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umakanthan53Certainly ' YES ' Mr.Kumar for it is the Natural Law or the Principles of Natural Justice which require that no man shall be punished unheard. Particularly, in any disciplinary action against an employee relating to his performance or behavioural issues, a departmental or domestic enquiry is indispensable before awarding any punishment. Particularly, apart from being an economic death sentence, dismissal carries in its fold an indelible mark of stigma. When the imputation is the misconduct of loss of confidence, it is all the more inevitable to conduct a departmental enquiry affording all reasonable opportunity to the delinquent and dispassionately analyze the enquiry officer's findings before awarding the punishment of dismissal on the charge of loss of confidence. I would suggest that even if the delinquent admits the charge of loss of confidence, a domestic enquiry shall be conducted for the reason that he may back track later that he was coerced to admit the charge or brainwashed on the ground of leniency resulting in a lesser punishment.
From India, Salem
KK!HRLoss of confidence in itself is not a misconduct. Loss of confidence could happen due to dereliction of duty, fraud, dishonesty, lack of integrity, disclosure of information, etc which are misconducts. Hence such misconducts have to be established against the employee as opined by Umakanthan Sir. When it comes to punishment, loss of confidence could be cited as a reason for imposing extreme punishment.
From India, Mumbai
nathraoLoss of confidence -here does it mean company has lost confidence on the worker or worker has lost confidence in his ability to do a job?
If company has lost confidence, then what is the basis for such an opinion?
Any documented incidents or negligence or incapability?
Loss of confidence is a subjective matter.
Can the root cause be identified and then acted upon.
If worker has lost confidence,then train/retrain him or give job less complex .
Dismissal of worker for loss of confidence may seem arbitrary.
From India, Pune
kumaracmeDear Elite Citehr leaders Thanks for your inputs and suggestions.
From India, New Delhi
PRABHAT RANJAN MOHANTYIs it mandatory to conduct a departmental enquiry prior to terminating. The termination of services of a workman on the ground of 'loss of confidence' not sounds proper and fit, it can be turned down in court if challenged. Therefore, the management should frame with other charges as exist in the standing orders or establishment manuals.
From India, Mumbai
umakanthan53I agree with the view of our learned members that "loss of confidence" per se is not a misconduct. However, it can be a resultant effect arising out of certain acts of grave misconduct affecting the reliability of the employee when the employee owes a fiduciary duty to the employer. Therefore, a domestic enquiry is inevitable in such a situation warranting termination.
From India, Salem
manoj-rajput1Calcutta High Court (Appellete Side)
M/S. Supreme & Co vs Netai Bhaduri & Anr on 1 August, 2014
Author: Soumen Sen
IN THE HIGH COURT AT CALCUTTA
Constitutional Writ Jurisdiction
The Hon'ble Justice Soumen Sen
W.P.13544 (W) of 2002
CAN 2334 of 2014
M/s. Supreme & Co.
Netai Bhaduri & Anr.
For the Petitioner : Mr. Amit Kumar Shaw
Mr. Biswarup Bhattacharya
Mr. Ravi Dubey
For the repondent-workman : Mr. R. Guha Thakurata.
Heard on : 19.06.2014, 09.07.2014.
Judgment on : 01th August, 2014
Soumen Sen, J:- This writ petition is directed against an award passed
by the Industrial Tribunal, West Bengal in connection with Case No.VIII-
The award was passed in favour of the workman. The Tribunal set
aside the order of termination and directed reinstatement in service with
full back wages.
Against this award of the industrial tribunal this writ petition has
been filed challenging the said award.
The workman was terminated from service without holding any
domestic enquiry. The writ petitioner employer does not feel it necessary
to issue any charge-sheet and hold any domestic enquiry on the ground
that the workman had admitted theft of a dice from the factory and in
view of such admission of guilt recorded in an alleged confessional
statement, no departmental enquiry is called for. The perception of the
management appears to be that by reason of proved misconduct
apparent in view of the confessional statement admitting theft the day
following when the theft had occurred and detected by Darwans of the
management holding a departmental enquiry is not required.
It was on the basis of such perception, the workman was
dismissed from service on the basis of such confessional statement. The
workman contemporaneously denied the confessional statement forming
the basis of the order of termination of service. Even thereafter, the
management did not feel it necessary to hold any enquiry and had
treated the said employee as dismissed from service.
This has resulted in raising of an industrial dispute by the
workman that has culminated in an award passed by the Tribunal.
The brief facts that are necessary to consider the legality and
propriety of the award passed by the Industrial Tribunal within the
limited parameters of judicial review stated hereinafter.
The respondent No.1 was appointed as a permanent employee of
the petitioner firm in 1982. The grievance of the petitioner was that he was not receiving his salary and other service benefits. In order to resolve the said issue, the petitioner sought for an appointment from the partners of the petitioner firm. On 5th January, 1996 he again raised the issue with regard to his outstanding dues when he was asked to meet the management of the Company on the following day, namely, 6th January, 1996. On the aforesaid basis he reached the factory in his Motor Cycle at or about 8.30 A.M. as asked by Harish Chandra Agarwal and Om Agarwal being the persons in control of the said firm. The petitioner waited for two hours and at or about 10.40 A.M. The Agarwal brothers arrived at the factory and went to the office for a discussion with him. The workman went to the office room leaving the motor cycle without lock and key since the Darwans were present and as such he thought that the motor cycle is in safe custody. During the discussion, there were heated exchanges. However, the discussion remained inconclusive and the management did not pay his outstanding dues in spite of production of necessary valid documents. The workman thereafter left the premises and when he advanced towards his motor cycle he found three or four Darwans near the motor cycle. The factory premises was empty as it was Sunday. The workman without realizing the motive of the darwans standing near the motor cycle while approaching the motor cycle he was asked by said darawas to check the tool box and open the tool box. The workman to his utter surprise found an object like a dice having no intrinsic value. The darwans all of a sudden raised a hue and cry and tried to accuse the workman of stealing. Ultimately, the workman was allowed to leave from factory in his motor cycle. On the following day, when he entered the factory premises, he was asked by the owner. During such meeting the management forced him to sign a blank document. On the next day when the workman tried to enter the factory premises he was told at the gate by darwans that his service was terminated and he was not allowed to enter the factory and join his duties. Thereafter in or about 1st April, 1996 the workman was served with a letter of termination dated 22nd February, 1996 issued by the management wherefrom it appears that the service of the workman was terminated on the basis of his confessional statement recorded on 8th January, 1996 addressed to Director of the Company. The workman immediately on receipt of the said notice replied by letter dated 7th March, 1996 refuting all the allegations. Since then there had been an exchange of letters where the workman had categorically stated that he had never admitted any guilty and since he was illiterate he was not aware of the contents of the letter. The management, however, stuck to its point. In the written statement filed before the Tribunal, the management contended that since it is a case of admission of guilt according to the position of law, there would be no necessity for holding domestic enquiry and observations of the principles of natural justice.
The workman in his evidence has categorically stated that on 8th January, 1996, he asked to sign a blank paper. He is illiterate and the document was never shown to him after it was being filled up by Mr. A.K. Paul. He was forced to sign the letter in blank. The persons who were named as witnesses in the letter dated 8th January, 1996 were not present at the gate on 7th January, 1996. He had produced statements being Exhibit 5 to show that there are outstanding dues but the management avoided to pay. The said document bears the signature of the factory manager. He has further stated that he cannot write Bengali or read Bengali. This part of the evidence has remained undemolished. On the part of the management, Sri Harish Agarwal, one of the partners of the petitioner, Sri Alok Kr. Paul, the architect of the so-called letter containing the confession statement, Rama Prasad Samui, the security guard and Tapan Kr. Sadhukhan, claiming himself to be the supervisor of the factory were examined and cross-examined. Mr. Agarwal in his chief stated that he had asked Mr. A.K. Paul, the General Management of the factory to take down the confessional statement of Netai and such confessional statement was recorded in the presence of Netai, darwans and workers. After the letter was written, Netai, the darwans and the co- owners of Netai had also put their signatures on the confessional statement. The said confessional statement thereafter was forwarded to the secretary of the Union. The Union leaders met him and requested him to excuse Netai but he did not feel it necessary to take a lenient view. He attended the factory on 6th January, 1996 and thereafter he met the union leader. Ultimately on 22nd February, 1996 he issued the letter of dismissal and within two or three days thereafter he informed the Police about such occurrence. The dice, according to the witnesses, was received from the custody of the workman. The said dice has immense technical value and is part of secret production. During cross- examination, he stated that the said document was written by Mr. A.K. Paul as per the dictation of Netai as Netai could not write Bengali. The said document was written in a blank white paper and not in the composing letterhead. He admits that he did not lodge any FIR nor any seizure list on the date of occurrence and no signature of the workman concerned was taken to show that the dice was recovered from the custody of the said workman. There was also no document to show that the seized article was recovered from the custody of the workman. It is the evidence of Harish that dices are manufactured at a separate table the distance between the main gate of the factory and the office is about 70 ft. The security guard who deposed stated that at the time of entry of the motor cycle the darwans did not check the vehicle and such motor cycle was checked only at the time of his departure. The darwans found a dice inside the tool box. It was a Sunday, Netai went there to meet one Mr. Miya. The alleged theft was intimated to the management over phone.
Mr. A.K. Paul in his evidence has reiterated that the confessional statement was written by him. He read over the same and the workman was present in the room. Netai put his signature in the presence of Mr. A.K. Paul. After 8th January, 1996 Netai never attended the factory. Other co-workers claimed in the said so-called confessional statements were present. Such confessional statement was signed by Netai.
It was on the basis of the pleadings and evidence the Tribunal arrived at a finding that the said confessional statement appears to be extremely unusual and further held that there has been a flagrant violation of the principles of natural justice.
The main challenge to the award appears to be that the Tribunal has acted illegally and with material irregularity in disbelieving the confessional statement recorded in the letter dated 8th January, 1996. The learned Counsel for the writ petitioner submits that the award is perverse. The Tribunal on the basis of confessional statement and the evidence adduced on behalf of the management could not have rejected the contention of the writ petitioner that the respondent workman had committed the theft and admitted his guilt which has resulted in the order of termination. Since the theft is admitted, there is no need to hold any disciplinary proceedings. The learned Counsel by referring to a decision in L.K. Verma Vs. HMT Ltd. & Anr. reported in 2006 (2) SCC 269 Paragraph 16 submitted that it is now well-settled that the things admitted need not be proved. Once the respondent workman has admitted his signature in the document which contains confessional statement, there is no requirement to hold any disciplinary proceeding. It is further submitted that the Tribunal in deciding the said matter is required to take into consideration the totality of the situation and in such a proceeding, the strict and sophisticated rules of the Evidence Act would not apply.
The learned Counsel has also relied upon Additional District Magistrate (City) Agra -Vs- Prabhakar Chaturvedi & Anr. reported in JT 1996 (1) 207 and submitted that in the said decision, it was held that in view of clear admission in writing given by the delinquent employee, the charge stood proved on admission and, accordingly, the punishment of dismissal from service was upheld. The learned Counsel has also submitted that the management has led evidence to corroborate the facts stated in the letter of confession and in view of such corroborative evidence, the letter of confession could not have been disregarded.
The learned Counsel referring to the decision of State of Haryana & Anr. Vs. Rattan Singh reported in 1977 (2) SCC 491 submitted that in the said decision the Hon'ble Supreme Court held that all materials which are logically probative for a prudent mind are permissible. Departmental authorities and Administrative Tribunals must be careful in evaluating such material and should not glibly swallow what is strictly speaking not relevant under the Evidence Act. In the present case, it is submitted that the evidence of A.K. Paul and some of the witnesses to the confessional statement would justify the ultimate order of termination passed by the management and the Tribunal has completely misdirected its mind in holding that in absence of any certificate mentioned in the document stating that the contents of the said document containing the confessional statement, was read over and explained to Netai, the said document cannot be taken into consideration. It is argued that the Tribunal on a surmise held that it is unusual that ten workmen were present and signed the confessional statement before the Management as attesting witnesses which is without any basis. Such confessional statements are not required to be proved like proof of a document under the Evidence Act. In this regard, Mr. Shaw in addition to the aforesaid judgement has relied upon the decisions reported in 1997 (5) SCC 129 (High Court of Judicature at Bombay through its Registrar Vs. Uday Singh S/o Ganpatrao Naik Nimbalkar & Ors.): JT 1997(5) SC 298 and AIR 1982 SC 673, 1997(2) SCC 699 (J.D.Jain Vs. The Management of State Bank of India) AIR 1977 SC 1512.
It is submitted that in a departmental proceeding, the standard of proof is different from the standard of proof required in a criminal trial. The learned Counsel has referred to the decision of the High Court of Judicature (supra) and submitted that in the case of a disciplinary enquiry, the technical rules of evidence have no application. The doctrine of "proof beyond doubt" also has no application. The learned Counsel refers to the observation made by the Hon'ble Supreme Court in the said decision that preponderance of probabilities and some material on record would be necessary to reach a conclusion whether or not the delinquent has committed misconduct. The test is to see whether there is evidence on record to reach the conclusion that the delinquent committed misconduct and whether a reasonable man, in the circumstances, would be justified in reaching that conclusion.
It is submitted that once the theft by an employee is admitted and it has resulted in loss of confidence, the Tribunal ought not to have interfered with the order of termination. In support of such submission, the learned Counsel has relied upon a few decisions reported in 1989 LIC 2220 (Cochin Shipyard Ltd. Vs. Labour Court Ernakulam & Others 2006(2) SCC 373 (Govt. of Andhra Pradesh and Others Vs. Mohd Nasrullah Khan, 2007(1) CHN 229 (Stateman Ltd Vs. Second Industrial Tribunal, West Bengal).
It is further argued that the document containing the confessional statement was marked as exhibit without objection. There is no requirement to prove the contents of the said document. The Tribunal has completely misdirected its mind in disbelieving the contents of the said document. The learned Counsel in this regard has relied upon an unreported decision in M/s. Ludlow Jute and Specialities Ltd. & Anr. Vs. The State of West Bengal & Ors. (W.P.38096(W) of 2013) decided on January 9,2014.
Learned Counsel submitted that the Tribunal on serious misconception of law has awarded back wages along with reinstatement. It is submitted that the petitioner has not been able to make out any case for back wages. The granting of back wages according to the learned Counsel is not automatic. The learned Counsel in referring to J.K. Synthetics Ltd Vs. K.P. Agarwal reported in 2007 (2) SCC 33 submitted that in order to get back wages it is necessary for the employee to plead that he was not gainfully employed from the date of termination. In the same vain, he has referred to the case of Rudhan Singh (2005) (5) SCC 519.
Per contra, Mr. R.N. Guha Thakurata, the learned Counsel appearing on behalf of the workman submits that the Tribunal on proper appreciation of facts and law has interfered with the order of punishment and the award passed by the Tribunal is required to be upheld. The learned Counsel has referred to the documents forming part of Exhibits in the reference case to show that the workman has contemporaneously challenged the order of dismissal. The Officer-in-charge of the Police Station was also informed about the illegal action that the employer could take and such apprehensions expressed by the workman has now come true. He has also referred to the documents to show that the management had acknowledged the dues of the petitioner but had failed to pay such dues. It is submitted that the evidence would show that the workman not only had denied the confessional statement recorded in the said letter dated 8th January, 1996 but also apprehended ill-motive on the part of the employer and for which he had lodged diary. It is submitted that Exhibit 5 would justify the visit of the workman to the factory for holding a discussion that the management with regard to settlement of such dues. It is submitted that the Exhibit 5 and contents thereof have not to have been demolished during cross-examination. The aforesaid amount has not been paid by the management. On the contrary, the management laid a trap and made out a false case of theft in order to avoid its obligation to pay the lawful dues of the workman. It is submitted that in such a adjudication proceeding, the industrial law has to be interpreted in favour of the weaker section, namely, the labour. The benefit of the reasonable doubt on law and facts if there be such doubt must go to the weaker section, labour. It is submitted that the plea of loss of confidence touches upon the integrity of the employee and the employer must prove that there is enough justification for loss of confidence. The fact that the adjudication was pending for a long time should not be used for denial of the normal relief of reinstatement if it is otherwise justified in accordance with the normal rule. It is submitted that the burden of proving a fact lies on the party asserting it and not on the party who denies it. It is for the employer to prove the misconduct for which the workman may be dismissed from service. While the provisions of the Evidence Act per se do not apply to industrial adjudication, general principles do apply. When an workman is terminated without enquiry the onus to prove that it was not possible to conduct the enquiry and that the termination was justified because of misconduct by the employer lies on the management. The learned Counsel has ruled upon the decisions reported in 1971(1) LLJ 233 (The management of Panitole Tea Estate And Workman), 2003 LLR 337 (Indian Railway Construction Co. Ltd. Vs. Ajay Kumar), 1978 (36) FLR 217(SC) (The KCP Employees Association, Madras and The Management of K.C.P. Ltd. Madras and 2010 (8) Supreme 299 (Amar Chakravarthy & Others. Vs. Maruti Suzuki India Ltd.).
If a confession is made voluntarily, it must be taken into account not only constitutionally and legally but also morally. The confessional statement made voluntarily in case of free will and volition can form the basis of punishment and may in a given situation a justification for dispensing any departmental enquiry. The true test is if such confessional statement has been made voluntarily. In the instant case the admitted fact is that the employee is illiterate and the letter was not written by him. The letter containing such alleged confession would not show that the contents of the said letter was read over and explained to the employee. If the management contends that there is no requirement of any departmental enquiry on the basis of such confessional statement and an issue is raised with regard to the legality and validity of such confessional statement, it is for the management to establish before the Tribunal the existence of such confessional statement since the employer has imposed the punishment without holding any disciplinary proceeding solely on the basis of such statement. When the dismissal is based without holding any enquiry still it would be open for the employer in a proceeding before the Industrial Tribunal to produce materials and establish facts and circumstances that the action was legal and justified.
The standard of proof required in recording a finding of conviction in a criminal case and in a departmental proceeding are distinct and different, whereas in a criminal case, it is essential to prove a charge beyond all reasonable doubt, in a departmental proceeding preponderance of probabilities would serve the purpose. In Kuldip Singh v. State of Punjab reported in 1996 (10) SCC 659 in Paragraph 10 , the Hon'ble Supreme Court stated:-
"10. Now coming to the main contention of the learned Counsel for the appellant, it is true that a confession or admission of guilt made by a person accused of an offence before, or while in the custody of, a police officer is not admissible in a court of law according to Sections 25 and 26 of the Evidence Act, 1872 but it is equally well-settled that these rules of evidence do not apply to departmental enquiries...."
The Hon'ble Supreme Court in Commissioner of Police, New Delhi Vs. Narender Singh reported in 2006 (4) SCC 265 referred to the said decision and held that the provisions of the Evidence Act are not applicable in a departmental proceeding. In State of A.P. Vs. Chitra Venkata Rao reported in 1975(2) SCC 557, the Hon'ble Supreme Court stated:-
"The High Court is not a court of appeal under Article 226 over the decision of the authorities holding a departmental enquiry against a public servant. The Court is concerned to determine whether the enquiry is held by an authority competent in that behalf and according to the procedure prescribed in that behalf, and whether the rules of natural justice are not violated. Second, where there is some evidence which the authority entrusted with the duty to hold the enquiry has accepted and which evidence may reasonably support the conclusion that the delinquent officer is guilty of the charge, it is not the function of the High Court to review the evidence and to arrive at an independent finding on the evidence. The High Court may interfere where the departmental authorities have held the proceedings against the delinquent in a manner inconsistent with the rules of natural justice or in violation of the statutory rules prescribing the mode of enquiry or where the authorities have disabled themselves from reaching a fair decision by some considerations extraneous to the evidence and the merits of the case or by where the conclusion on the very face of it is so wholly arbitrary and capricious that no reasonable person could ever have arrived at that conclusion. The departmental authorities are, if the enquiry is otherwise properly held, the sole judges of facts and if there is some legal evidence on which their findings can be based, the adequacy or reliability of that evidence is not a matter which can be permitted to be canvassed before the High Court in a proceeding for a writ under Article 226."
In Natvarbhai S. Makwana Vs. Union Bank of India & Ors.
reported in 1985 Lab I.C. 422 a learned Single Judge of the Gujarat High Court held that the confession made by a delinquent employee not forming the part of the charges and imposed punishment solely on the basis of his confession cannot be sustained. It was further held that admission has got to be correlated with the charge only. Moreover, it was found that there was no other evidence at all. Accordingly, the punishment on the basis that the petitioner had admitted guilt was set aside. It was further held that the delinquent officer charged with misconduct may be induced to confess the guilt for one reason or another. Therefore, the factum of misconduct must be established. Ordinarily, admission alone of the delinquent officer cannot be regarded as sufficient proof of misconduct as well as the facts constituting misconduct.
In Employers of Firestone Tyre and Rubber Co. (Private) Ltd., Vs. The Workmen reported in AIR 1968 SC 236 it was stated that although in a domestic enquiry, it may be desirable to call for an explanation before serving a charge-sheet on a delinquent workman, there is no principle which compels such a course. The calling for an explanation can only be with a view to making an enquiry unnecessary where the explanation is good but in many cases, it would be open to the criticism that the defence of the workman was being fished out. The principle that in a domestic enquiry before a delinquent is asked anything all the evidence against him must be led cannot be an invariable rule in all cases. The situation is different where the accusation is based on a matter on record or the facts are admitted. In such a case, it may be permissible to draw the attention of the delinquent to the evidence on the record which goes against him and which if he cannot satisfactorily explain must lead to a conclusion of guilt. In certain cases, it may even be fair to the delinquent to take his version first so that the enquiry may cover the point of difference and the witnesses may be questioned properly on the aspect of the case suggested by him. It is all a question of justice and fairplay. If the second procedure leads to a just decision of the disputed points and is fairer to the delinquent than the ordinary procedure of examining evidence against him first, no exception can be taken to it. It is, however, wise to ask the delinquent whether he would like to make a statement first or wait till the evidence is over but the failure to question him in this way does not ipso facto vitiate the enquiry unless prejudice is caused. It is only when the person enquired against seems to have been held at a disadvantage or has objected to such a course that the enquiry may be said to be vitiated.
The employer always takes a risk in dismissing an employee without holding any disciplinary proceedings. Since, if it is challenged then by reason of the judgement of the Hon'ble Supreme Court in The Workman of Firestone Tyre & Rubber Co. and The Management & Others reported in 1973 (1) SCC 815: AIR 1973 SC 1227 it would be upon to the employer to adduce evidence for the first time justifying his action and it is equally upon to the employee to adduce evidence contra. It was further stated in the said decision:
(1) The effect of an employer not holding an enquiry is that the Tribunal would not have to consider only whether there was a prima facie case. On the other hand, the issue about the merits of the impugned order of dismissal or discharge is at large before the Tribunal and the latter, on the evidence adduced before it, has to decide for itself whether the misconduct alleged is proved. In such cases, the point about the exercise of managerial functions does not arise at all. A case of defective enquiry stands on the same footing as no enquiry. (2) The Tribunal gets jurisdiction to consider the evidence placed before it for the first time in justification of the action taken only, if no enquiry has been held or after the enquiry conducted by an employer is found to be defective.
(3) It has never been recognized that the Tribunal should strightaway, without anything more, direct reinstatement of a dismissed or discharged employee, once it is found that no domestic enquiry has been held or the said enquiry is found to be defective. (4) An employer, who wants to avail himself of the opportunity of adducing evidence for the first time before the Tribunal to justify his action, should ask for it at the appropriate stage. If such an opportunity is asked for, the Tribunal has no power to refuse. The giving of an opportunity to an employer to adduce evidence for the first time before the Tribunal is in the interest of both the management and the employee and to enable the Tribunal itself to be satisfied about the alleged misconduct.
(5) Once the misconduct is proved either in the enquiry conducted by an employer or by the evidence placed before a Tribunal for the first time, punishment imposed cannot be interfered with by the Tribunal except in cases where the punishment is so harsh as to suggest victimization.
Since, no enquiry was held and the employee was dismissed simpliciter on the basis of the alleged confessional statement admitting guilt, the Tribunal on the request of the Management, permitted the Management to adduce evidence in support of the order of dismissal. The Tribunal thus, on the materials on record placed before the Tribunal for the first time in support of the action taken by the employer as well as the evidence adduced by the workman contra noticed various unusual features in the confessional statement. Unusual features noticed in the confessional statement as noted by the Tribunal are that the Netai Bhaduri on the said document has signed Netai which is very unusual for any workman of a factory to put his name only, there is no evidence to show that the contents of the letter used as a confessional statement was read over and explained to Netai and it is equally unusual that 10 workmen attended and signed the confessional statement before the Management. The Tribunal expressed its doubt with regard to the genuinely of the confessional statement. The Management wants to justify its order of dismissal on the basis of this confessional statement. If the existence of the confessional statement casts a serious doubt and a finding is arrived that the said document is not genuine, the order of dismissal cannot be sustained.
In service jurisprudence dismissal from employment is akin to civil death. When the fact remains that no disciplinary proceeding has been held the Management has to discharge its heavy burden and onus to establish that its action is justified. The evidence on record would show that the workman had some genuine claims. The workman had produced documents duly signed by the factory Manager which would show that sum of Rs.26,000/- approximately was due and payable by the Management to the concern workman. The said statement was produced during examination-in-chief and was marked as " Exhibit -5". This part of the evidence has not been demolished during cross- examination.
This explains the visit of the workman to the factory for the purpose of holding discussion with the Agarwal Brothers. The strong possibility that the Management had laid a trap in order to get rid off the workman so as to avoid the payment of any amount cannot be ruled out having regard to the manner and conduct in which the matter was proceeded. The workman had contemporarily raised his objection with regard to the confessional statement. He had also informed the local police station contemporarily that he apprehends some mischief from the Management. The Tribunal on the basis of such materials has arrived at a finding that the dismissal was wrongful. There cannot be any two opinions with the proposition that in a domestic enquiry guilt may not be required to be established beyond reasonable doubt and proof of misconduct would be sufficient. The fact remains, whether the Management has been able to establish misconduct. In a domestic enquiry, all materials, which are illegally probative in a domestic, all materials which are logically probative including hearsay evidence can be acted upon provided it has a reasonable nexus and creditability. In J.P.Jain (Supra), it was held that strict rules of evidence are not applicable in a domestic enquiry for the purpose of a departmental enquiry, complaint, certainly not frivolous, but substantiated by circumstantial evidence, is enough. Confessional evidence and circumstantial evidence, despite lack of any direct evidence, would be sufficient to hold the delinquent guilty of misconduct and justify the order of termination that has been passed. All materials which are logically probative for a prudent mind are permissible. Applying the principles laid down by the aforesaid decisions it cannot be said that the Tribunal has committed any error in directing the reinstatement by disbelieving that the workman has confessed his guilt. The order of dismissal can only be sustained provided it is a proved misconduct. It is extremely unusual that the workman would steal a dice hardly of any value and would keep it in the tool box. Holding doubt against the Management in the given facts and circumstances is a reasonable view and a plausible view.
The dispensation of the domestic enquiry in the instant case, is rather unusual. It is not the contention of the Management that it is impracticable to hold an enquiry. Dispensing with enquiry is an exception and heavy onus lies on the Management to show that either the enquiry is not required or it is impracticable. In Amar Chakravorty (Supra) it was held that when a workman is terminated without any enquiry onus to prove that it is not possible to conduct the enquiry and that the termination was justified because of misconduct by the employee lies on the Management. The burden of proof that the confessional statement was signed by the workman is on the employer. It is for the employer to prove the misconduct for which the workman was dismissed or discharged. This onus has not been discharged. The argument based on loss of confidence also falls to ground since the materials would show that such ground is imaginary, colourable and have taken motivetedly with a view of deprive the workman of its legitimate dues. Moreover, the theft is not proved. The Management also did not lodged any complain with the local police station against the workman alleging theft. The loss of confidence has to be a bonafide and not imaginary or cooked up and a stratagem or device to dismiss an employee where, in reality the fact is otherwise. The loss of confidence relates to the integrity of the employer and this has to be substantiated before the Labour Court. The Order of dismissal passed on theft and loss of confidence is a stigma attached to the workman and no self respect person would like such stigma to continue still he survives. On the basis of the materials on record before the Tribunal in my view, the Tribunal was justified in disbelieving the Management.
In Mahavir Singh Vs. Delhi Transport Corporation reported in 1995(86) FJR 227 it is stated that if there is a termination of service without applying the provisions of the Industrial Dispute Act and Rules and is based on misconduct or casts stigma then such a termination would amount to dismissal for which opportunity of being heard should be afforded to the workman. The learned Counsel has referred to the observation made by the learned Single Bench in the aforesaid decision which states that "sometimes one act of omission or commission is sufficient to terminate the contract of service. The doctrine of natural justice could not be imprisoned within the strait-jacket of a rigid formula and its application depends upon several factors. It could not remain the same for all times to come nor would apply to all conditions. The rules of natural justice is not inflexible and that, in the circumstances and the facts of each case, the requirement of natural justice had to be satisfied. This principle might differ in different circumstances. Therefore, it would be wrong to say that since the termination had nexus with the incident of misappropriation, the action could not be called mala fide nor based on any bias. In such circumstances if an enquiry was not held, it could not be said that the principles of natural justice were infringed particularly when at the spot before the passengers he admitted his guilt".
These principles are to be applied in a given fact situation and cannot be applied in vacuum. It has to be seen whether, in a particular case dispensation with holding any disciplinary proceeding was justified. As it has been observed earlier under the facts and circumstances the employer was not justified in dispensing domestic enquiry. Moreover, even before the Tribunal the employer has failed to establish its action.
Now, turning on to the question with regard to the payment of back wages, it is true that payment of back wages is not automatic. In J.K. Synthetic (Supra) it was held that in case an employee is exonerated of the misconduct or it is found that employee was being victimized, then the principle applicable would be those in cases of illegal termination. The Hon'ble Supreme Court noticed the burden of proof with regard to the payment of back wages and held that there has been a noticeable shift in the approach. It is held that for back wages it would be necessary for employee to plead that he was not gainfully employed from the date of termination. Though, employee cannot be asked to prove the negative he however, would be required to assert at least on oath that he was neither employed nor engaged in any gainful business or venture and that he did not have income and only thereafter the burden would shift to the employer. Even if the Court finds necessary to award back wages, the question would be whether back wages should be awarded fully or only partially. This would depend upon the facts and circumstances of each case. Any income received by the employee during the relevant period on account of alternative employment or evidence is relevant factor to be taken of while awarding back wages in addition to several other factors mentioned in Rudhan Singh (Supra) . In a fairly recent decision reported in 2013 (10) SCC 324 Deepali Gundu Surwase Versus Kranti Junior Adhyapak Mahavidyalaya (D.ED) & Others. The concept of reinstatement and back wages have been dealt with and explained. After discussing the various discussions including the observations in J.K Synthetics Ltd. It was held that the Court would take into consideration the following factors while deciding the issue of back wages:
(i) In cases of wrongful termination of service, reinstatement with continuity of service and back wages is the normal rule.
(ii) The aforesaid rule is subject to the rider that while deciding the issue of back wages, the adjudicating authority or the court may take into consideration the length of service of the employee/workman, the nature of misconduct, if any, found proved against the employee/workman, the financial condition of the employer and similar other factors.
(iii) Ordinarily, an employee or workman whose service are terminated and who is desirous of getting back wages is required to either plead or at least make a statement before the adjudicating authority or the court of first instance that he/she was not gainfully employed or was employed on lesser wages. If the employer wants to avoid payment of full back wages, then it has to plead and also lead cogent evidence to prove that the employee/workman was gainfully employed and was getting wages equal to the wages he/she was drawing prior to the termination of service. This is so because it is settled law that the burden of proof of the existence of a particular fact lies on the person who makes a positive averment about its existence. It is always easier to prove a positive fact than to prove a negative fact. Therefore, once the employee shows that he was not employed, the onus lies on the employer to specifically plead and prove that the employee was gainfully employed and was getting the same or substantially similar emoluments.
(iv) The cases in which the Labour Court/Industrial Tribunal exercises power under Section 11-A of the Industrial Disputes Act, 1947 and finds that even though the enquiry held against the employee/workman is consistent with the rules of natural justice and/or certified standing orders, if any, but holds that the punishment was disproportionate to the misconduct found proved, then it will have the discretion not to award full back wages. However, if the Labour Court/Industrial Tribunal finds that the employee or workman is not at all guilty of any misconduct or that the employer had foisted a false charge, then there will be ample justification for award of full back wages.
(v) The cases in which the competent court or tribunal finds that the employer has acted in gross violation of the statutory provisions and/or the principles of natural justice or is guilty of victimising the employee or workman, then the court or tribunal concerned will be fully justified in directing payment of full back wages. In such cases, the superior courts should not exercise power under Article 226 or Article 136 of the Constitution and interfere with the award passed by the Labour Court, etc. merely because there is a possibility of forming a different opinion on the entitlement of the employee/workman to get full back wages or the employer's obligation to pay the same. The courts must always keep in view that in the cases of wrongful/illegal termination of service, the wrongdoer is the employer and sufferer is the employee/workman and there is no justification to give a premium to the employer of his wrongdoings by relieving him of the burden to pay to the employee/workman his dues in the form of full back wages.
(vi) In a number of cases, the superior courts have interfered with the award of the primary adjudicatory authority on the premise that finalisation of litigation has taken long time ignoring that in majority of cases the parties are not responsible for such delays. Lack of infrastructure and manpower is the principal cause for delay in the disposal of cases. For this the litigants cannot be blamed or penalised. It would amount to grave injustice to an employee or workman if he is denied back wages simply because there is long lapse of time between the termination of his service and finality given to the order of reinstatement. The courts should bear in mind that in most of these cases, the employer is in an advantageous position vis-à-vis the employee or workman. He can avail the service of best legal brain for prolonging the agony of the sufferer i.e the employee or workman, who can ill-afford the luxury of spending money on a lawyer with certain amount of fame. Therefore, in such cases it would be prudent to adopt the course suggested in Hindustan Tin Works (P) Ltd., (1979) 2 SCC 80.
(vii) The observation made in J.K. Synthetics Ltd. case, (2007) 2 SCC 433 that on reinstatement the employee/workman cannot claim continuity of service as of right is contrary to the ratio of the judgments of three-Judge Benches and cannot be treated as good law. This part of the judgment is also against the very concept of reinstatement of an employee/workman.
The observations in J.K. Synthetics Ltd. (Supra) that on reinstatement the employee/workman cannot claim continuity of service of right, has been held to be not a good law. Applying the principles laid down by the Hon'ble Supreme Court in Deepali Gundu (Supra) in my view, the Tribunal was justified in directing reinstatement with back wages.
Moreover, the scope of the interference with an award is extremely limited. The High Court Under Article 226 cannot act as an Appellate Authority and reassess and re-appreciate the evidence. In Government of A.P (Supra) it was held that jurisdiction is circumscribed and confined to correct errors of law apparent on the face of the record or procedural error, if any, resulting in manifest miscarriage of justice or violation of the principles of natural justice. Judicial review is not akin to adjudication on merit by re-appreciating the evidence as an Appellate Authority.
The award cannot be said to have been passed without any evidence. Sufficiency and appreciation of evidence falls in the domain of the Tribunal in contradistinction to an award based on no evidence. The Court cannot enter into the reasonableness of the reason while reviewing an award. Even if the court may not agree with the findings of the tribunal on appreciation of evidence still it would not be a ground to interfere with the award unless there are glaring discrepancies and perversity. The award of the Tribunal in my view, does not suffer from any infirmity which calls for any interference.
The writ application is accordingly stands dismissed. However, there shall be no order as to costs.
C.A.N. 2334 of 2014 -
Since the writ application is heard along with CAN 2334 of 2014, the said application being CAN 2334 of 2014 is disposed of by directing the employer to pay the amount which have remained due on account of interim relief within a period of two weeks from date.
(Soumen Sen, J.)
From India, Rajkot
Pradipta NathWhatever the ground of terminating the employee, he/she should not be denied the Principle of Natural Justice i.e. Right to be heard.
From India, Kolkata
AnonymousShould be there as it will help alot.
From India, Nashik
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