Full Judgment Text
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CASE NO.:
Appeal (civil) 6878-6880 of 1999
PETITIONER:
KANHAIYALAL AGRAWAL & ORS.
Vs.
RESPONDENT:
THE FACTORY MANAGER, GWALIOR SUGAR COMPANY LIMITED
DATE OF JUDGMENT: 13/09/2001
BENCH:
S. RAJENDRA BABU & S.N. VARIAVA
JUDGMENT:
WITH
CIVIL APPEAL NOS. 6881-6883 of 1999
J U D G M E N T
RAJENDRA BABU, J. :
These two sets of cases are cross-appeals filed by the Management
of the Gwalior Sugar Company Limited and their workmen.
The workmen were charged that on 9.2.1979 when Kanhaiyalal
Agrawal was on duty on trailer weigh bridge of the factory gate from 2
a.m. to 10 a.m. in collusion with Harihar Giri, Centre Incharge, Ramesh
Chandra Savita, Harihar Sharma, Devi Ram Rajak, Dedaram, C.P.
Madan, Hari Singh, Umeshchandra and Narendra Singh conspired to
allow one trailer sugar cane requisition slip No. 5999 in the name of
Chatura for bringing sugar cane by bullock cart at Sunwai Depot on false
payment slip No. 14964 wrote gross weight 46.70 and did help him in
making payment of Rs. 373.1 paise without the arrival of sugar cane in
the company for their respective benefits and each of the workmen was
dismissed after inquiry. Applications were filed by them before the
Labour Court challenging their termination from service.
In the case of Kanhaiyala Agrawal, the labour court came to the
conclusion as follows :-
"In the present case, the applicant is working on the post of
weighment clerk and he has contravened the prescribed procedure
and in collusion with other colleagues signed payment slip
wrongly prepared for a wrong date while on the day of incident
Chetu or Chatura did not bring sugarcane to the mill. The
responsibility of applicant is that he should sign on payment slip
with correct date and the amount of sugarcane of concerned
farmer, while he should do its weigh. As a weighment clerk his
work was of faith and full responsibility. On the basis of evidence
produced in the case loss of trust of non-applicant in applicant
appears to be proper. Therefore, it is not proper to award relief of
reinstatement to applicant. According to accepted formula in the
citation of 1990 Lab I.C. 995 (Dayaram & Ors. vs. The Gwalior
Sugar Company Ltd. & Anr.), which is in respect of industry of
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non-applicant, applicant is entitled to get half salary and full
returning allowance from the date of dismissal till the date of this
order."
On that basis, the labour court disposed of the matter.
In the case of Ramesh Kumar Savita, the labour court came to the
conclusion as follows :-
"In the present case, applicant was doing the work of punch man
on gate and this was his responsibility that he should allow the
correct gadi on correct slip on correct date inside the gate and if
any vehicle comes without it then he should not allow to make its
payment non-applicant is successful in proving this thing that
applicant has done contravention of prescribed procedure. Due
to this reason his faith is correctly lost from applicant and on the
basis of evidence, which has come in the case, basis of loss of
faith of non-applicant from applicant is proved. Therefore, it is
not proper to award relief of reinstatement in the citation of 1990
Lab. I.C. 995 (Dayaram & Ors. vs. The Gwalior Sugar Company
Ltd. & Anr.), applicant is entitled to get half salary with full
returning allowance from the date of dismissal from service till the
date of this order."
And, in case of Chandra Prakash Madan the labour court held as
follows :-
"In the present case, applicant was working on the post of
checking clerk and he contravened the prescribed procedure and
in collusion with other colleagues on wrong slip and from the slip
of original date prepared weighment slip and did his signature.
His responsibility was this that he should prepare his weighment
slip on correct slip and on the basis on it. As a checking clerk his
work (duty) was of full faith. On the basis of security and on the
basis of evidence came in the case loss of faith of non-applicant
from applicant appears to be proper. Therefore, it is not proper to
award relief of reinstatement to applicant. According to accepted
formula in citation of industry of non-applicant, applicant is
entitled to get half salary with full returning allowance from the
date of dismissal from service till the date of this order."
Against these orders appeals were preferred before the Industrial Court.
The Industrial Court held that the employees had not committed any
mis-appropriation of money but were negligent in performing their duties
and the finding recorded by the labour court is in order. The Industrial
Court, therefore, directed reinstatement of the workmen in the office in
each of the cases, however, without back wages and the discussion on
this aspect is as under :
"In the case, whatever evidence (proof) is produced, from its
perusal, this thing appears definitely that employee had done
negligence in his work definitely procedure of purchase of
sugarcane, its weighment and its payment of price at employer’s
mill is shown. From the perusal of procedure only this conclusion
is not drawn that actually and knowingly employee has committed
any such act with the object of causing damage to employer,
witnesses of employer has told that weighment slip is prepared at
mill gate. But according to the witnesses of employer actually
sugarcane is not weigh at the gate of mill. Therefore, some other
instances of this type also on the basis of which it will not be
proper to draw inference of dishonesty towards employees.
Learned Presiding Officer of Labour Court has not held the
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employee guilty of misappropriation of money. I agree with this
conclusion. In the opinion of Labour Court employee had done
the act of causing damage to employer knowingly employee has
done any wrong proceeding with the object of causing damage to
employer and fulfilment of his self interest. I agree with this
argument of Shri Bansal that doubt may be forceful to any extent,
but it cannot be given the place of proved evidence. In such
circumstance in my opinion it is not proper to deprive the
employee from the relief of reinstatement.
I also considered those arguments of Shri Gupta according to
which employer has lost faith on employee. In my opinion on the
basis of proof, which is produced, this argument of Shri Gupta is
not acceptable. This is definite that procedure, which was shown
by the witnesses is of employer was not followed word by word by
the employee. This is also not misconduct in itself but it is
definitely serious negligence. In my opinion for the acts like
negligence it is not proper to deprive the employee from the relief
of reinstatement. After the termination of services of employee,
about more than 10 years time has lapsed. If employee is
deprived from the back salary or returning allowance of this period
even then in view of the circumstances of the case it will be
sufficient punishment."
Against the said decision both the workmen and the Management filed
writ petitions. The learned Single Judge of the High Court did not
interfere with the order made by the Industrial Court in any one of the
matters after noticing that the conclusion reached by the Industrial
Court on examination of the case on the question of loss of confidence
that it was not such a case and for the negligence committed by the
workmen in question, held the punishment of denial of back wages
would meet the ends of justice and, therefore, upheld the order made by
the Industrial Court. Against that order of the learned Single Judge writ
appeals were preferred by both the Management and the Workmen. The
writ appeals were, however, dismissed on the basis that they were not
maintainable inasmuch as the same arose out of proceedings under
Article 227 of the Constitution which is revisional in nature. In the
appeals before us the order made by the Division Bench of the High
Court is in challenge.
So far as the law on the matter is concerned as to whether an
appeal would lie against an order made in writ petition before the High
Court challenging an order of the lacour court, this Court in its decision
in Lokmat Newspapers Pvt. Ltd. vs. Shankarprasad, 1999 (6) SCC
275, stated that "if a Single Judge exercises jurisdiction under Article
226, Letters Patent Appeal would be maintainable, but if the jurisdiction is
exercised under Article 227 it will not be maintainable". But with an
explanation that if the Single Judge of the High Court in considering the
petition under Article 226 or Article 227 does not state under which
provision he has decided the matter and where the facts justify filing of
petition both under Article 226 and Article 227 and a petition so filed is
dismissed by the Single Judge on merits, the matter may be considered
in its proper perspective in an appeal. This Court held as aforesaid in
view of the decisions of this in Umaji Keshao Meshram vs.
Radhikabai, 1986 Supp. SCC 401; Ratnagiri District Central Co-
operative Bank Ltd. vs. Dinkar Kashinath Watve & Ors., 1993 Supp
(1) SCC 9, and Sushilabai Laxminarayan Mudliyar & Ors. vs.
Nihalchand Waghajibhai Shaha & Ors., 1993 Supp (1) SCC 11.
Hence, we are of the view that it is wholly unnecessary for us to
examine this aspect of the matter in view of the declaration of law made
by this Court in Lokmat Newspapers Pvt. Ltd. vs. Shankarprasad
(supra) after adverting to all the decisions on the point.
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We have looked into the orders made by the labour court, the
Industrial Court and the learned Single Judge of the High Court and we
are of the view that the conclusions drawn by the Industrial Court in
appeal which stood affirmed in the writ petitions are based upon the
facts arising in the case.
Substantial contention on the merits of the case by the employer in
these appeals is that the finding of loss of confidence in the employee by
the labour court has been reversed in appeal by the Industrial Court on
unreasonable grounds. What must be pleaded and proved to invoke the
aforesaid principle is that (i) the workman is holding a position of trust
and confidence; (ii) by abusing such position, he commits acts which
results in forfeiting the same; and (iii) to continue him in service would
be embarrassing and inconvenient to the employer or would be
detrimental to the discipline or security of the establishment. All these
three aspects must be present to refuse reinstatement on ground of loss
of confidence. Loss of confidence cannot be subjective based upon the
mind of the Management. Objective facts which would lead to a definite
inference of apprehension in the mind of the Management regarding
trustworthiness or reliability of the employee must be alleged and proved.
Else, the right of reinstatement ordinarily available to the employee will
be lost.
Tested on these principles on the charges against the workmen
concerned on the proved facts whether there was any loss of confidence
so far as the workmen were concerned, the inferences have been
appropriately drawn.
It cannot be stated that the conclusions emanating from the orders
of the Industrial Court are one of non-application of mind to the facts or
ignoring any of the relevant facts or taking into consideration any of the
facts not available on record, much less can the conclusions be
characterised as perverse. We think, the writ jurisdiction has been
appropriately exercised by the learned Single Judge. Hence, we decline
to interfere with the order by the learned Single Judge.
The appellants in these appeals also claim payment of back
wages. On that aspect also both the Industrial Court and the learned
Single Judge have given cogent reasons and, therefore, we do not think,
there is any justification for us to interfere with that aspect of the matter
either.
In the light of this order, it is unnecessary to make any order on
I.A. Nos. 4, 5 and 6 and are rejected. It is open to the parties to work out
their respective rights in appropriate proceedings.
In the result, these appeals stand dismissed. However, in the
circumstances, there shall be no order as to costs.
.....................................J
.
[ S. RAJENDRA BABU ]
....................................J.
[ S.N. VARIAVA ]
SEPTEMBER 13, 2001.
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