# M/s Modi Industries Ltd., Distt: Ghaziabad v. Prescribed Officer, Labour Court, Distt: Agra & Anr

- **Citation:** (2020) 2 ILRA 518
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-01-03
- **Case number:** Writ C No. 49756 of 2013
- **Bench:** J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/m-s-modi-industries-ltd-distt-ghaziabad-v-prescribed-officer-labour-court-distt-45608
- **Pages:** 15

## Headnote

A. Civil Law-U.P. Industrial Dispute Act,
1947 - Section 4(k) - Labour dispute -
Domestic Inquiry - Fairness - Where the
2 All. M/S Modi Industries Ltd., Distt. Ghaziabad Vs. Prescribed Officer , Labour Court, Distt. Agra & Anr.
519
fairness of the inquiry was seriously impeached
by the workman so much so that the Labour
Court framed a preliminary issue to this effect
- The said issue being answered in favour of
the workman - The Labour Court proceeded to
require the Employers to lead evidence before
it in support of the charges; and, of course, in
his defence by the workman too - This course
of action adopted by the Labour Court was
eminently right, in the opinion of this Court.
(Para 15 and 16)
B. Constitution of India - Article 226 and
227 - Labour Court - Scope of Interference -
Perversity in finding - There is hardly any
conflict that findings of fact recorded by a
Labour Court, based on admissible evidence
taking a plausible view are not to be disturbed
by this Court in exercise of jurisdiction under
Article 226, or in the supervisory jurisdiction
under Article 227 of the Constitution -
Interference can only be made when the
findings of the Labour Court are perverse -
Else, the Labour Court is a final Court of fact
and its conclusions are not be to disturbed.
(Para 19)
C. Civil Law-Labour Dispute - Loss of
Confidence - Relationship of Employer with
workman - Once the Labour Court has found
the case to be one where charges are not at all
proved, the case of loss of confidence cannot
be imported for the mere fancy of the
Employers. (Para 23)
D. Civil Law-Labour Dispute - The Sick
Industrial
Companies
Act,
1985
-
Reinstatement - Effect of declaring the
employer sick - Entitlement of workman to get
Back-wages - The finding recorded by the
Labour Court that the charge on which that the
workman's services have been terminated, has
been held by it to be baseless and false - The
direction of the Labour Court with a finding of
that kind cannot be said to be illegal in any
manner - The only modifications that are
required to be made is on account of the fact
that the Employers are no longer a functional
unit and have since long closed down - In the
circumstances, apart from modifying the award
to
exclude
the
direction
regarding
reinstatement, the ends of justice would be
served by requiring the Employers to pay a
lump sum of Rs.5 lakhs, in lieu of the direction
for
reinstatement
with
back-wages
and
continuity of service. (Para 29)
Writ Petition allowed in part. (E-1)
List of cases cited:-

## Text

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518 INDIAN LAW REPORTS ALLAHABAD SERIES
as such could not have exercised the
power.

20. We do not find merit in the above
argument for the simple reason that subsection (b) of Section 3 not only talks of
notifying the limits but also of the
property. Admittedly, the bungalow No.
178 is the defence property and to that
extent, therefore, it stands notified as a
defence property. The notification of the
1957 by which municipal limits of Agra
has been extended and the cantonment
area has been excised, it equally saves the
property of the Central Government
particularly the defence where there is no
proper exercise has been carried out
transferring the property to the State
Government. No document has been led,
nor, anywhere it has been pleaded that the
bungalow No.178 itself has stood ipso
facto transferred with the notification of
extension of municipal limits to the area
where the bungalow situates.

21. Since we have already held that
the property belongs to the defence
department, it was a public premises for
the purposes of Section 5B of the Act,
1971 and, therefore, the defence estate
officer who has been assigned the duties of
Presiding Officer to act under the Act,
1971 has the jurisdiction and so he rightly
exercised the same in the present case. We
do not find any error in the authority of the
Defence Estate Officer exercising power
under the Act, 1971. The question of
constructions whether it would fall in the
category of unauthorized use of the public
premises or in contravention of conditions
prescribed under the old grant, we may
hold that the petitioner since has not been
able to demonstrate that he had old grant
in his favour and that he had otherwise
been a valid lessee, any construction or
alteration of the existing structure by the
petitioner required prior sanction and in
the event no such permission had been
accorded, raising of the structure may be
with the sanction of the local development
authority,
would
not
validate
the
development activity and the constructions
made in that regard. Thus, we are of the
view that the Defence State Officer, who
exercised the power as Presiding Officer
under the relevant provisions of the Act,
1971 rightly exercised the power and we
do not find any fault at his end in the
matter.

22. In view of the above the writ
petition being Writ- C No.- 46421 of 2006
lacks merit and is, accordingly, dismissed
and so other two writ petitions are also
dismissed.
----------
(2020)02ILR A518

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 03.01.2020

BEFORE
THE HON'BLE J.J. MUNIR, J.

Writ C No. 49756 of 2013

M/s
Modi
Industries
Ltd.,
Distt:
Ghaziabad ...Petitioner
Versus
Prescribed Officer, Labour Court, Distt:
Agra & Anr. ...Respondents

Counsel for the Petitioner:
Sri Tarun Agrawal, Sri Shakti Swarup
Nigam, Sri Alok Kumar Srivastava

Counsel for the Respondents:
C.S.C., Sri Ramgee Prasad

A. Civil Law-U.P. Industrial Dispute Act,
1947 - Section 4(k) - Labour dispute -
Domestic Inquiry - Fairness - Where the
2 All. M/S Modi Industries Ltd., Distt. Ghaziabad Vs. Prescribed Officer , Labour Court, Distt. Agra & Anr.
519
fairness of the inquiry was seriously impeached
by the workman so much so that the Labour
Court framed a preliminary issue to this effect
- The said issue being answered in favour of
the workman - The Labour Court proceeded to
require the Employers to lead evidence before
it in support of the charges; and, of course, in
his defence by the workman too - This course
of action adopted by the Labour Court was
eminently right, in the opinion of this Court.
(Para 15 and 16)
B. Constitution of India - Article 226 and
227 - Labour Court - Scope of Interference -
Perversity in finding - There is hardly any
conflict that findings of fact recorded by a
Labour Court, based on admissible evidence
taking a plausible view are not to be disturbed
by this Court in exercise of jurisdiction under
Article 226, or in the supervisory jurisdiction
under Article 227 of the Constitution -
Interference can only be made when the
findings of the Labour Court are perverse -
Else, the Labour Court is a final Court of fact
and its conclusions are not be to disturbed.
(Para 19)
C. Civil Law-Labour Dispute - Loss of
Confidence - Relationship of Employer with
workman - Once the Labour Court has found
the case to be one where charges are not at all
proved, the case of loss of confidence cannot
be imported for the mere fancy of the
Employers. (Para 23)
D. Civil Law-Labour Dispute - The Sick
Industrial
Companies
Act,
1985
-
Reinstatement - Effect of declaring the
employer sick - Entitlement of workman to get
Back-wages - The finding recorded by the
Labour Court that the charge on which that the
workman's services have been terminated, has
been held by it to be baseless and false - The
direction of the Labour Court with a finding of
that kind cannot be said to be illegal in any
manner - The only modifications that are
required to be made is on account of the fact
that the Employers are no longer a functional
unit and have since long closed down - In the
circumstances, apart from modifying the award
to
exclude
the
direction
regarding
reinstatement, the ends of justice would be
served by requiring the Employers to pay a
lump sum of Rs.5 lakhs, in lieu of the direction
for
reinstatement
with
back-wages
and
continuity of service. (Para 29)
Writ Petition allowed in part. (E-1)
List of cases cited:-
1. Depot Manager, A.P.S.R.T. Corporation vs.
Reghuda Siva Sankar Prasad, 2007 (112) FLR
703

2. West Bokaro Colliery (TISCO LTD.) vs. Ram
Pravesh Singh, (2008) 3 SCC 729: 2009 (120)
FLR 1147

3. Neeta Kaplish vs. Presiding Officer, Labour
Court, (1999) 1 SCC 517: 1999 SCC (L&S) 302

4. Management of Madurantakam Co-operative
Sugar Mills Ltd vs. S. Viswanathan, 2005 (104)
FLR 1229

5. Divisional Controller, Karnataka State Road
Transport Corporation vs. M.G. Vittal Rao,
(2012) 1 SCC 442

6. Indian Airlines Ltd. Vs. Prabha D. Kanan,
(2006) 11 SCC 67

7. Modi Industries Ltd. vs. Additional Labour
Commissioner, 1994 (1) LLJ 482

(Delivered by Hon'ble J.J. Munir, J.)

1. The petitioner M/s Modi Industries
Ltd., Modi Nagar, District Ghaziabad,
U.P. have preferred this petition under
Article 226 of the Constitution challenging
an award of the Presiding Officer, Labour
Court, U.P., Agra dated 07.09.2012
(published
on
11.03.2013)
made
in
Adjudication Case No. 200 of 1991. By
the said award (for short the 'impugned
award') the Labour Court has held the
termination of services of the second
respondent-workman
(for
short
the
'workman') by the petitioner-Employers
(for short the 'Employers') with effect from
520 INDIAN LAW REPORTS ALLAHABAD SERIES
16.12.1989 to be illegal and improper,
setting aside the Employers' order dated
16.12.1989 with a consequential direction
that the workman, a Godown Keeper shall
be reinstated in service with continuity,
payment of balance of his salary during
the period of his suspension from service
and the entire back wages. The Employers
were further ordered to pay the entire back
wages within a period of one month from
the date of enforcement of the award. The
workman has also been awarded costs in
the sum of Rs. 2500/-.

2. Apart from the respective case of
parties, the facts leading to this writ
petition are that the workman was
employed by the Employers at their Agra
Depot with effect from 5th November,
1981. He was appointed on the post of a
peon. Lateron, on November the 15th,
1985, the workman was promoted to the
post of a Godown Keeper. As a Godown
Keeper, he was responsible for the
maintenance and upkeep of the Company's
Godown at Agra. These Godowns were
utilized to store poly packs of Vanaspati
Ghee. The Employers did a surprise check
of their Godown on 17th February, 1988
that was carried out by one Pradeep
Kumar Agarwal, a Branch Executive with
the Employers. He is said to have noticed
that some of the poly packs carrying
Vanaspati Ghee were deliberately slashed
by a sharp object and were damaged. The
aforesaid officer of the Employers is
further said to have noticed that vegetable
Ghee had been removed from the damaged
poly packs and these damaged poly packs
were dumped along with other damaged
poly packs, in order to show that the
Godown stock was as per inventory. An
inspecting official of the Employers
appears to have submitted a report,
recommending initiation of legal action
against the workman. The Employers on
the basis of the aforesaid report on 11th
March, 1988 served the workman with a
charge-sheet dated 20th April, 1988. The
workman was charged with deliberately
damaging poly packs of vegetable Ghee by
slashing these with a sharp edged object
and removal of the packaged contents for
personal use or benefit.

3. It also appears that a little later on
the 3rd of May, 1988, post issue of the
charge-sheet, the workman was placed
under suspension pending conclusion of
disciplinary proceedings by a formal order
to that effect issued by the Employers. The
workman submitted his reply to the charge
sheet on 16th May, 1988. The Employers
appointed an Inquiry officer to go into the
validity of the charges against the
workman. One A.C. Mittal was appointed
as the Inquiry Officer. The Inquiry Officer
submitted his report on 31st August, 1989
to the Employers. Relying upon the
findings carried in the inquiry report dated
31st August, 1989, last mentioned, the
workman was dismissed from service vide
order dated 16th December, 1989.

4. It was in the context of this action
taken by the Employers that the workman
raised an industrial dispute under Section
4-K of the U.P. Industrial Disputes Act,
1947 (for short the 'Act') on the basis of
which the competent authority made a
reference dated 27th September, 1991 to
the Labour Court in the following terms
(translated
into
English
from
Hindi
vernacular):-

"Whether
the
act
of
the
Employers in terminating the services of
their
workman
Sri Vishan Chandra
Agarwal s/o Sri Manohar Lal Agarwal,
Godown
Keeper
with
effect
from
2 All. M/S Modi Industries Ltd., Distt. Ghaziabad Vs. Prescribed Officer , Labour Court, Distt. Agra & Anr.
521
16.12.1989 is proper and lawful, if not to
what
relief/benefits
the
concerned
workman is entitled to, and in what
terms?"

5. The Labour Court registered the
aforesaid reference as Adjudication Case
No. 200 of 1991 and issued notice to
parties. The workman filed his written
statement dated 16.01.1993 whereas the
Employers
also
filed
their
written
statement on 16.01.1993. The workman
filed
his
rejoinder
statement
dated
02.06.1993 whereas the Employers filed
their rejoinder statement dated 04.06.1993.
The Labour Court upon exchange of
pleadings appears to have framed a
preliminary issue on January the 12th,
1994 as regards the validity and procedural
fairness of the domestic inquiry held. The
aforesaid issue that was determined as a
preliminary, reads thus:

"क्या सेवायोजकोों द्वारा श्रकमक श्र
कविन चन्द्र अग्रवाल के कवरुद्ध क गई घरेलू
जाोंच उकचत, कनयकमत, वैधाकनक है? यकि नह ों
तो उसका प्रभाव।"

6. Both sides led evidence. On the
preliminary issue regarding the fairness
and regularity of the domestic inquiry
framed by the Labour Court, after
considering the evidence led on both sides,
the Labour Court held by its order of
November 14th, 2006 that the domestic
inquiry conducted by the Employers was
illegal and vitiated. The preliminary issue
was thus answered in favour of the
workman. In consequence of the aforesaid
finding, the Labour Court directed parties
to adduce evidence afresh before the
Labour Court in support of the charge by
the Employers, and by the workman, to
defend himself.

7. Consequent upon the said
direction both parties led evidence in
support of their respective case before the
Labour Court on the merits of the charges
that were laid against the workman in the
charge-sheet. On behalf of the Employers,
one
Pradeep
Kumar
Goyal,
Branch
Executive, last mentioned, testified on
19th February, 2007. He was cross
examined the same day. Two other
witnesses who appeared on behalf of the
Employers were one Kamlendra and
another Devendra. The workman took
stand in the witness box on 21.09.2007
where he testified in support of his case.
He was cross examined extensively at the
conclusion of his examination-in-chief, the
same day. After conclusion of evidence
and hearing parties, the Labour Court by
means of the impugned award, answered
the reference in favour of the workman
and against the Employers with an award
in terms set out in the opening part of this
judgment.

8. Aggrieved, the present writ
petition has been filed by the Employers.

9. Heard Sri Shakti Swaroop Nigam,
learned Senior Advocate assisted by Sri
Alok Kumar Srivastava, learned Counsel
for the Employers and Sri Ramgee Prasad,
learned Counsel appearing on behalf of the
workman.

10. The foremost fact to be
considered is that the employers have
charged the workman with intentional
slashing of poly packs of vanaspati ghee
and dishonest removal of the edible
contents that he is alleged to have
converted to his own use. He is further
charged of mixing up the poly packs from
which contents had been removed, with
other damaged packets, in order to deceive
522 INDIAN LAW REPORTS ALLAHABAD SERIES
the Employers by a stratagem that the
empty packets would be accounted for in
the godown stock of damaged packets,
without detection of the removed contents.

11. Now, these charges were found
established
during
the
disciplinary
proceedings but post reference to the
Labour Court, on determination of the
preliminary issue the Labour Court did not
find the inquiry to be fairly and legally
done, and by an order dated 14.11.2006
passed by the Labour Court, while
determining
the
preliminary
issue
regarding fairness and regularity of the
inquiry, ordered the employers to prove
the charges before the Labour Court; and
the workman to defend. The most vital fact
in
issue,
therefore,
is
whether
the
employers were able to establish the
charges before the Labour Court on merits
when inquiry into those charges was laid
open before the Labour Court. Decidedly ,
it was for the employers whether in the
domestic inquiry or before the Labour
Court to establish the charge against the
workman by the civil standard. In other
words, the employers were required to
establish the charges by preponderance of
probability. The aforesaid charges against
the
workman
have
arisen
in
the
background of allegations that emanate
from personal differences between the
workman and Mr. P.K. Agarwal, Branch
Executive of the Employers, who reported
his misconduct leading to the disciplinary
proceedings. Shorn of unnecessary detail,
according to the workman's version, Mr.
P.K.
Agarwal
removed one
Rakesh
Kumar, an office peon in August, 1988
because he would make him run errands at
home. After Rakesh Kumar was removed,
Mr. P.K. Agarwal required the workman
to take over those household duties of his.
It is claimed by the workman that Mr. P.K.
Agarwal required him to do his household
chores, including washing his linen which
the
workman
says,
he
declined.
Thereupon, Mr. P.K. Agarwal assigned
him this job in the office and deputed him
as office clerk to serve at the godown,
where these poly packs are stored.

12. According to the workman on
16.02.2018, which was a holiday, Mr. P.K.
Agarwal visited the godown in the
workman's absence and removed the
contents of some of the poly packs. The
consignment of vanaspati Ghee had to be
dispatched that day to a certain Jain Sales
Corporation, Agra. Mr. P.K. Agarwal
ordered the workman to go to the godown
on
the
following day,
that
is
on
17.02.1988. On reaching the godown, the
workman claims to have found the slashed
poly packs regarding which he gave
telephonic
information
to
Mr.
P.K.
Agarwal. The workman further claims to
have submitted a complaint in the matter
to the sales office which is on record as
Exhibit W-4. After this report by the
workman, Mr. P.K. Agarwal, on the letter
head of the Employers, scribed a report
which is Exhibit W-5. It is claimed by the
workman also that since Mr. P.K. Agarwal
knew that it was his misdeed, he stayed
quiet for a month about the issue. At the
end of it all, the workman says that in
connivance with his brother-in-law, one
S.C. Goel who is the Chief Chemist, Modi
Nagar Factory of the Employers, he
colluded with certain officers in the head
office to draw a false report against the
workman, wherein the workman was
framed and suspended.

13. The Labour Court while going
into the proof of the charges on evidence
led by the employers and weighing
probabilities, considering the workman's
2 All. M/S Modi Industries Ltd., Distt. Ghaziabad Vs. Prescribed Officer , Labour Court, Distt. Agra & Anr.
523
defence, returned a finding which reads to
the following effect (in Hindi vernacular):

"mi;qZDr ds laca/k esa i{kksa dks lquk
x;kA muds }kjk nkf[ky fyf[kr dFku] izR;qRrj]
lk{; ,oa vfHkys[kksa dk voyksdu fd;k x;kA
oknh Jfed ds vuqlkj og xksnke dhij ds in
ij dk;Zjr jgkA vkxjk lsYl vkfQl esa dk;Zjr
Jh jkds'k pijklh dks Jh iznhj dqekj vxzoky
czkap ,DthD;wfVo }kjk o"kZ 1988 esa ?kj dk dke
djus ls euk djus ds dkj.k gVk fn;kA Jh
jkds'k dks gVkus ds ckn Jh iznhj dqekj vxzoky]
czkap ,DthD;wfVo }kjk oknh ls ?kj dk dke vkSj
diM+s /kksus dk dke djus ds fy, dgk x;kA
oknh }kjk euk dj nsus ij Jh iznhi dqekj
vxzoky czkap ,DthD;wfVo ukjkt gks x;s vkSj
muds }kjk oknh Jfed ls xksjke dh txg
vkfQl esa dke ysus yxs vkSj vkfQl DydksZa ls
xksnke dk dke yus yxs rkfd dksbZ xyrh gksus
ij oknh dks Qalk;k tk ldsA oknh ds vuqlkj
mlds }kjk bldh lwpuk gsM vkfQl dks Hkh nh
x;h FkhA okn esa lquokbZ ds nkSjku izfroknh
lsok;kstd i{k }kjk oknh Jfed dh mDr
rF;kRed lk{; ,oa dFku dk dksbZ [kaMu ugha
fd;k x;kA vr% bls lgh ekuus dk iw.kZ vkSfpR;
gSA

oknh Jfed ds vuqlkj xksnke
dh pkfHk;ka Lo;a Jh iznhi dqekj vxzoky
czkap ,DthD;wfVo ds ikl jgrh Fkh vkSj
og ftls pkgrs Fks mls pkfHk;ka nsrs FksA
Lvksj eq[; :i ls Jh iznhi dqekj
vxzoky] czkap ,DthD;wfVo dh ns[kjs[k esa
jgrk FkkA izfroknh lk{; Jh iznhi dqekj
vxzoky czkap ,DthD;wfVo }kjk viuh
'kiFkiwoZd lk{; esa Hkh Lohdkj fd;k x;k
gS fd xksnke dh pkfHk;ka muds ikl jgrh
FkhA fnukad 16-02-1988 dks og xksnke ,oa
cjkensa dh lHkh pkfHk;ka vius lkFk ?kj ys
vk;s FksA bl izdkj rF;ksa ds voyksdu ,oa
foospu ls Li"V gS fd xksnke dh pkfHk;ka
Jh iznhi dqekj vxzoky czkap ,DthD;wfVo
ds ikl jgus dh fLFkfr esa xksnke esa j[ks
eky dh pksjh vFkok Msest gksus ds laca/k
esa izfroknh }kjk oknh Jfed ij vkjksi
fdl vk/kkj ij yxk;k x;k gS\ bldk
dksbZ rF;kRed lk{; ,oa fooj.k izfroknh
lsok;kstd i{k }kjk okn esa lquokbZ ds
nkSjku nkf[ky@izLrqr ugha fd;k x;k gSA

oknh Jfed ds vuqlkj mlds }kjk
fnukad 17-02-1988 dks dksbZ FkSyh ugha QkM+h vkSj
u ?kh fudkykA mlds Åij >wBk vkjksi yxk;k
x;k gSA fnukad 16-02-1988 dks Jh iznhi dqekj
vxzoky czkap ,DthD;wfVo vodk'k ds fnu
xksnke x;s vkSj iksyhiSd [kkyh fd;s vkSj muds
}kjk mlh fnu eS0 tSu lsyl dkjiksjs'ku] vkxjk
dks eky fMLiSp djk;k x;kA fnukad 17-02-1988
dks Jh iznhi dqekj vxzoky czkap ,DthD;wfVo
}kjk oknh Jfed dks xksnke tkus ds fy, dgk
rks ogka tkdj oknh us dVs gq, iSd ik;s tkus dh
lwpuk Jh iznhi dqekj vxzoky czkap ,DthD;wfVo
dks nwjHkk"k ij nh] fdUrq og ogka ugha igqapsA
oknh ds vuqlkj mlh fnu lsYl vkfQl vkdj
fjiksVZ dh tks izn'kZ Mcyw&4 gSA okn esa lquokbZ
ds nkSjku Jh iznhi dqekj vxzoky czkap
,DthD;wfVo }kjk viuh lk{; esa crk;k x;k fd
og fnukad 16-02-1988 dks ikfVZ;ksa dks eky
fudyokus ds fy, xksnke x;s Fks vkSj oknh
Jfed Jh fo'ku pUnz vxzoky dks vius lkFk
ugha ys x;s Fks D;ksafd ml fnu NqV~Vh Fkh
blfy, oknh Jfed M~;wVh ij ugha FkkA Jh
iznhi dqekj vxzoky] czkap ,DthD;wfVo ds
vuqlkj og vdsys xksnke x;s FksA muds lkFk
vU; dksbZ deZpkjh ugha x;k FkkA Jh iznhi dqekj
vxzoky] czkap ,DthD;wfVo ds vuqlkj muds }kjk
dksbZ ,slk rF; ;k izek.k izLrqr ugha fd;k fd
fnukad 16-02-1988 dks tc xksnke ls okil vk;s
rks xksnke esa lgh o [kjkc eky dh ek=k;sa D;k
Fkha\
Jh
iznhi
dqekj
vxzoky]
czkap
,DthD;wfVo}kjk lk{; esa ;g Hkh crk;k x;k fd
muds }kjk Jfed dks iksyhiSd dkVrs ugha ns[kkA
ekSds ij iksyhiSd dkVus dk lkeku dSaph] CysM
vkfn ugha feykA dksbZ ,slk izR;{knh'khZ xokg
ugha gS ftlus Jfed dks FkSyh dkVrs ;k eky
fudkyrs ns[kk gksa izfroknh }kjk ikyhiSd dkVdj
?kh fudkyus@pksjh djus dh ?kVuk dh dksbZ
izkFkfedh Hkh ntZ ugha djkbZ x;hA bldk Hkh
dksbZ dkj.k ugha crk;k x;kA bl izdkj oknh
Jfed ij fnukad 17-02-1988 dks iksyhiSd dks
dkVdj ?kh fudkyus] mldh pksjh djus ds
yxk;s x;s vkjksi ds lanHkZ esa izfroknh i{k dh
524 INDIAN LAW REPORTS ALLAHABAD SERIES
mDr lk{; ,oa dFku ds voyksdu ,oa foospu
ds i'pkr eSa bl er@fu"d"kZ dk gaw fd oknh
Jfed ij fnukad 17-2-1988 dks iksyhiSd dh
FkSfy;ksa dks dkVdj mlesa ls ?kh fudkyus dk
yxk;k x;k vkjksi vlR; ,oa fujk/kkj gSA
izfroknh }kjk nh x;h mDr lk{; ,oa dFku ds
ifjizs{; esa oknh Jfed ij yxk;k x;k vkjksi
fl)@izekf.kr ugha gksrk gSA"

14. Sri Shakti Swaroop Nigam,
learned Senior Counsel for the petitioner
has assailed the findings recorded by the
Tribunal on ground, amongst others, that
the Labour Court cannot sit in appeal over
the conclusions of the domestic inquiry. It
is submitted that the Labour Court can
only do a Wednesbury review or a
secondary review of the findings recorded
by the Inquiry Officer and may interfere
where the procedure by which the decision
is reached is not found to be fair, just and
reasonable. However, the Labour Court
cannot go into the correctness or validity
of the decision itself, if the Inquiry Officer
has recorded findings taking a reasonable
view of the evidence on record. In support
of his contention, he placed reliance upon
the
decision
in
Depot
Manager,
A.P.S.R.T. Corporation vs. Reghuda
Siva Sankar Prasad, 2007 (112) FLR
703. He has also, in particular, placed
reliance upon the decision of the Supreme
Court in West Bokaro Colliery (TISCO
LTD.) vs. Ram Pravesh Singh, (2008) 3
SCC 729: 2009 (120) FLR 1147. In
support of the contention aforesaid,
referring to their Lordships decision in
West Bokaro Colliery (TISCO LTD.)
(supra), attention of this Court has been
drawn to paragraphs 14, 15, 16, 17 and 18
of the report by Sri Nigam, where it is
held:

"14. The Tribunal in its order on
reappreciation of evidence came to the
conclusion that in the absence of any
independent evidence other than of fellow
workmen, the charge of indecent, riotous
and disorderly behaviour with superior and
co-worker was not proved. Insofar as the
absence from the duty is concerned, the
Tribunal came to the conclusion that
according to the workman, he had left the
place of work at 12.25 p.m. and as the
incident allegedly had taken place at 12.30
p.m., the respondent could not have
reached the place of incident at 12.30 p.m.
after collecting his other associates. In
para 14 of its order, the Tribunal
concluded that Management had failed to
substantiate the charges brought against
the workman beyond reasonable doubt.

15.
This
Court
in
Divl.
Controller, KSRTC (NWKRTC) v. A.T.
Mane [(2005) 3 SCC 254 : 2005 SCC
(L&S) 407] held that: (SCC p. 258, para 9)

"9. From the above it is clear that
once a domestic tribunal based on
evidence comes to a particular conclusion,
normally it is not open to the Appellate
Tribunals and courts to substitute their
subjective opinion in the place of the one
arrived at by the domestic tribunal. In the
present case, there is evidence of the
inspector who checked the bus which
establishes
the
misconduct
of
the
respondent.
The
domestic
tribunal
accepted that evidence and found the
respondent guilty. But the courts below
misdirected themselves in insisting on the
evidence of the ticketless passengers to
reject the said finding which, in our
opinion, as held by this Court in Rattan
Singh [State of Haryana v. Rattan Singh,
(1977) 2 SCC 491 : 1977 SCC (L&S) 298]
is not a condition precedent. We may
herein note that the judgment of this Court
in Rattan Singh [State of Haryana v.
Rattan Singh, (1977) 2 SCC 491 : 1977
SCC (L&S) 298] has since been followed
2 All. M/S Modi Industries Ltd., Distt. Ghaziabad Vs. Prescribed Officer , Labour Court, Distt. Agra & Anr.
525
by this Court in Devendra Swamy v.
Karnataka SRTC [(2002) 9 SCC 644 :
2002 SCC (L&S) 1093]."

16. In U.P. SRTC v. Vinod
Kumar [(2008) 1 SCC 115 : (2008) 1 SCC
(L&S) 1 : (2007) 13 Scale 690] this Court
again observed that in the absence of a
challenge to the legality or fairness of the
domestic enquiry, the Court should be
reluctant to either interfere with the
finding recorded by the enquiry officer or
the punishment awarded by the punishing
authority.

17. After going through the order
of the Industrial Tribunal, we are of the
opinion that the Tribunal has interfered
with the findings recorded by the domestic
tribunal as if it was the Appellate Tribunal.
There was evidence present on record
regarding indecent, riotous and disorderly
behaviour of the respondent towards his
superiors. The Management witnesses who
were present at the scene of occurrence
have unequivocally deposed about the
misbehaviour of the respondent towards
his superiors. Their evidence has been
discarded by the Tribunal by observing
that in the absence of independent
evidence, the statements of the workmen
who were present at the scene of
occurrence could not be believed. The
Industrial Tribunal fell in error in
discarding the evidence produced by the
Management only because the independent
witnesses were not produced.

18. It is nobody's case that the
independent witnesses were available at
the
scene
of
occurrence
and
the
Management had failed to produce them.
It is possible that at the time of occurrence,
only the workers of the Management and
the persons who were trying to put up the
construction
unauthorisedly
were
the
persons present and no independent
evidence was available. Statements of the
fellow workmen had established the
misconduct of the respondent. Enquiry
officer accepted the testimony of the
witnesses produced by the Management
who had clearly implicated the respondent.
It was a legitimate conclusion which could
be arrived at and it would not be open to
the Industrial Tribunal to substitute the
said opinion by its own opinion."

15. This Court finds that though the
principle which Sri Nigam has urged is
well settled but that applies to a situation
where the fairness of the inquiry is not in
issue. In West Bokaro Colliery (TISCO
LTD.) (supra) relied upon by the learned
Senior Counsel for the petitioner, shows
on a perusal of paragraph 8 of the report
that there the respondent had made a
statement before the Labour Court that he
did not want to challenge the legality,
fairness or proprietary of the domestic
inquiry. It was in the context of that kind
of a lis where the Labour Court reviewed
the findings recorded by the Inquiry
Officer that the law in paragraphs 14 to 18
of the aforesaid decision of their Lordships
has been laid down. The present is one
where the fairness of the inquiry was
seriously impeached by the workman
somuch so that the Labour Court framed a
preliminary issue to this effect, as already
detailed hereinabove. The said issue being
answered in favour of the workman, the
Labour Court proceeded to require the
Employers to lead evidence before it in
support of the charges; and, of course, in
his defence by the workman too.

16. This course of action adopted by
the Labour Court was eminently right, in
the opinion of this Court. The law
governing the course to be adopted by a
Labour Court in such circumstances is laid
down by their Lordships of the Supreme
526 INDIAN LAW REPORTS ALLAHABAD SERIES
Court in Neeta Kaplish vs. Presiding
Officer, Labour Court, (1999) 1 SCC
517: 1999 SCC (L&S) 302, where it is
held thus:

"24. In view of the above, the
legal position as emerges out is that in all
cases where enquiry has not been held or
the enquiry has been found to be defective,
the
Tribunal
can
call
upon
the
management or the employer to justify the
action taken against the workman and to
show
by
fresh
evidence
that
the
termination or dismissal order was proper.
If the management does not lead any
evidence by availing of this opportunity, it
cannot raise any grouse at any subsequent
stage that it should have been given that
opportunity, as the Tribunal, in those
circumstances, would be justified in
passing an award in favour of the
workman. If, however, the opportunity is
availed of and the evidence is adduced by
the management, the validity of the action
taken by it has to be scrutinised and
adjudicated upon on the basis of such fresh
evidence.
(Emphasis by Court)

25. In the instant case, the
appellant had questioned the domestic
enquiry on a number of grounds including
that her own answers, in reply to the
questions of the Presiding Officer, were
not correctly and completely recorded and
that the Enquiry Officer was not impartial
and
was
biased
in
favour of
the
respondent. It was further contended that
her own witnesses were not called and she
was not given the opportunity to lead
evidence. The Labour Court has discussed
a few of these grounds but has not given
any finding on the bias of the Enquiry
Officer
or
the
ground
relating
to
incorrectly recording the statement of the
appellant. The Labour Court, however,
found that the enquiry was not fairly and
properly held. It was after recording this
finding that the Labour Court called upon
the Management to lead evidence on
merits which it did not do.

26. Learned counsel for the
appellant (sic respondent) contended that
in spite of the direction by the Labour
Court to the respondent-Management to
lead evidence, it was open to the
Management to rely upon the domestic
enquiry proceedings already held by the
Enquiry Officer, including the evidence
recorded by him, and it was under no
obligation
to
lead
further
evidence,
particularly as the Management was of the
view that the charges, on the basis of the
evidence already led before the Enquiry
Officer, stood proved. It was also
contended that under Section 11-A, the
Labour Court had to rely on the "materials
on
record"
and
since
the
enquiry
proceedings
constituted
"material
on
record", the same could not be ignored.
The argument is fallacious.

27. The record pertaining to the
domestic enquiry would not constitute
"fresh evidence" as those proceedings
have already been found by the Labour
Court to be defective. Such record would
also not constitute "material on record", as
contended
by
the
counsel
for
the
respondent, within the meaning of Section
11-A as the enquiry proceedings on being
found to be bad, have to be ignored
altogether.
The
proceedings
of
the
domestic enquiry could be, and were in
fact, relied upon by the Management for
the limited purpose of showing at the
preliminary stage that the action taken
against the appellant was just and proper
and that a full opportunity of hearing was
given to her in consonance with the
principles
of
natural
justice.
This
contention has not been accepted by the
2 All. M/S Modi Industries Ltd., Distt. Ghaziabad Vs. Prescribed Officer , Labour Court, Distt. Agra & Anr.
527
Labour Court and the enquiry has been
held to be bad. In view of the nature of
objections raised by the appellant, the
record of enquiry held by the Management
ceased to be "material on record" within
the meaning of Section 11-A of the Act
and
the only
course
open
to
the
Management was to justify its action by
leading fresh evidence as required by the
Labour Court. If such evidence has not
been led, the Management has to suffer the
consequences."

17. It is all the more important to
point out that the decision of the Labour
Court to hold an inquiry itself into the
charges was not challenged by the
Employers, once the domestic inquiry was
condemned by the Labour Court not to be
one that was procedurally fair, just and
reasonable. Rather, they elected to lead
evidence in support of the charges before
the Labour Court, where the workman
defended himself. This Court is of clear
opinion that in a case like the present one
where the Labour Court has directed
evidence on the merits of the charge to be
led before it, the Labour Court is not a
Tribunal confined in its role to do a
secondary review. In proceedings where
all evidence is led before the Labour Court
by the Employers and the workman after
holding the domestic inquiry to be
procedurally unfair, the Labour Court
assumes the role of a primary decision
maker. All questions of fact, assessment of
evidence
and
proportionality
of
punishment to be awarded, if any, in this
kind of exercise are open to the Labour
Court. In the aforesaid background the
decision
in
West
Bokaro
Colliery
(TISCO
LTD.)
(supra)
and
Depot
Manager,
A.P.S.R.T.
Corporation
(supra) would not be of any assistance to
the Employers. The Labour Court has
recorded a categorical finding of fact, on a
meticulous evaluation of evidence that was
led before it, that charges against the
workman carried in the Employer's charge
sheet, are all false and baseless. It has
further been held that termination of the
workman's services by the Employers,
based on these unproved charges, vide
order dated 16.12.1989, is illegal and
unjust.

18. The findings that have led to
these firm conclusions by the Labour
Court have been extracted hereinabove.
Those findings in no way have been
demonstrated by the learned Senior
Counsel for the petitioner to be perverse or
based on irrelevant evidence or nonconsideration of relevant materials. The
Labour Court has entered into a detailed
analysis of the sequence of events about
the manner in which the misconduct is
said to have been committed, the articles
recovered from the place of occurrence,
the fact that no one is an eye witness to the
workman's misconduct, and many others;
all relevant considerations from which the
conclusions drawn by the Labour Court
could reasonably be recorded.

19. It is by far the legal position,
about which there is hardly any conflict
that findings of fact recorded by a Labour
Court, based on admissible evidence
taking a plausible view are not to be
disturbed by this Court in exercise of
jurisdiction under Article 226, or in the
supervisory jurisdiction under Article 227
of the Constitution. Interference can only
be made when the findings of the Labour
Court are perverse. Else, the Labour Court
is a final Court of fact and its conclusions
are not be to disturbed. In this connection,
reference may be make to the decision of
their Lordships of Hon'ble Supreme Court
528 INDIAN LAW REPORTS ALLAHABAD SERIES
in Management of Madurantakam Cooperative Sugar Mills Ltd vs. S.
Viswanathan, 2005 (104) FLR 1229,
where in paragraph 12 of the report, it is
held:

"12. Normally, the Labour Court
or the Industrial Tribunal, as the case may
be, is the final court of facts in these type
of disputes, but if a finding of fact is
perverse or if the same is not based on
legal evidence the High Court exercising a
power either under Article 226 or under
Article 227 of the Constitution of India
can go into the question of fact decided by
the Labour Court or the Tribunal. But
before going into such an exercise it is
necessary that the writ court must record
reasons why it intends reconsidering a
finding of fact. In the absence of any such
defect in the order of the Labour Court the
writ court will not enter into the realm of
factual disputes and finding given thereon.
A consideration of the impugned order of
the learned Single Judge shows that
nowhere he has come to the conclusion
that the finding of the Labour Court is
either perverse or based on no evidence or
based on evidence which is not legally
acceptable.
Learned
Single
Judge
proceeded as if he was sitting in a court of
appeal on facts and item after item of
evidence recorded in the domestic enquiry
as well as before the Labour Court was
reconsidered and findings given by the
Labour Court were reversed. We find no
justification for such an approach by the
learned Single Judge which only amounts
to
substitution
of
his
subjective
satisfaction
in
the
place
of
such
satisfaction of the Labour Court."

20. In this view of the matter, this
Court is of the opinion that the finding of
the Labour Court holding the charges to be
not proved against the workman is a sound
finding that accords well with the law and
evidence on record. The said finding does
not require inference by this Court in
exercise of jurisdiction under Article 226
of the Constitution.

21. The other contention urged by Sri
Nigam is that whatever be the outcome
and the findings of the Labour Court,
looking to the essence of the charge that is
one of theft, the findings of the domestic
inquiry even if not found to be valid by the
Labour Court, in principle, or in law, or
even on facts, the present is a case of loss
of confidence of the Employers in their
workman. He submits that so far as the
Employers are concerned, for their part are
convinced
that
the
workman
has
committed an act of theft by which he has
shattered their confidence, as it is
described. In the nature of things, the
Employers
cannot
be
compelled
to
reinstate a workman in service about
whom, they by their conscience feel is a
thief. In this connection Sri Nigam, again
has placed reliance on the decision of the
Supreme Court in Depot Manager,
A.P.S.R.T. Corporation vs. Reghuda
Siva Sankar Prasad (supra), where in
paragraph 19 of their Lordships' decision,
it is held:

"19. The learned Judges of the
High Court have also failed to appreciate
that once an employee has lost the
confidence of the employer, it would not
be safe and in the interest of the
Corporation to continue the employee in
the service. ...."

22. He has further placed reliance on
the
decision
of
Supreme
Court
in
Divisional Controller, Karnataka State
Road Transport Corporation vs. M.G.
2 All. M/S Modi Industries Ltd., Distt. Ghaziabad Vs. Prescribed Officer , Labour Court, Distt. Agra & Anr.
529
Vittal Rao, (2012) 1 SCC 442, where it
has been held:

"25. Once the employer has lost
the confidence in the employee and the
bona fide loss of confidence is affirmed,
the
order
of
punishment
must
be
considered to be immune from challenge,
for the reason that discharging the office
of trust and confidence requires absolute
integrity, and in a case of loss of
confidence,
reinstatement
cannot
be
directed. [Vide Air India Corpn. v. V.A.
Rebellow [(1972) 1 SCC 814 : AIR 1972
SC 1343] , Francis Klein & Co. (P) Ltd. v.
Workmen [(1972) 4 SCC 569 : AIR 1971
SC 2414] and BHEL v. M. Chandrasekhar
Reddy [(2005) 2 SCC 481 : 2005 SCC
(L&S) 282 : AIR 2005 SC 2769].]

26. In Kanhaiyalal Agrawal v.
Gwalior Sugar Co. Ltd. [(2001) 9 SCC 609 :
2002 SCC (L&S) 257 : AIR 2001 SC 3645]
this Court laid down the test for loss of
confidence to find out as to whether there was
bona fide loss of confidence in the employee,
observing that, (SCC p. 614, para 9) (i) the
workman is holding the position of trust and
confidence; (ii) by abusing such position, he
commits an act which results in forfeiting the
same;
and
(iii)
to
continue
him
in
service/establishment would be embarrassing
and inconvenient to the employer, or would be
detrimental to the discipline or security of the
establishment. 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. (See also Sudhir
Vishnu Panvalkar v. Bank of India [(1997) 6
SCC 271 : 1997 SCC (L&S) 1662 : AIR 1997
SC 2249].)

27. In SBI v. Bela Bagchi [(2005) 7
SCC 435 : 2005 SCC (L&S) 940 : AIR 2005
SC 3272] this Court repelled the contention
that even if by the misconduct of the employee
the employer does not suffer any financial loss,
he can be removed from service in a case of
loss of confidence.