Dipakbhai Manilal Gohel vs Mannesmann Rexroth(India) ...
2021 Latest Caselaw 6801 Guj

     C/SCA/3760/2012                             IA JUDGMENT DATED: 24/06/2021




              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD


            MISC. CIVIL APPLICATION (FOR RECALL) NO. 1 of 2019
              In R/SPECIAL CIVIL APPLICATION NO. 3760 of 2012

FOR APPROVAL AND SIGNATURE:


HONOURABLE MS. JUSTICE SONIA GOKANI

==========================================================

1 Whether Reporters of Local Papers may be allowed to see the judgment ?

2      To be referred to the Reporter or not ?

3      Whether their Lordships wish to see the fair copy
       of the judgment ?

4      Whether this case involves a substantial question

of law as to the interpretation of the Constitution of India or any order made thereunder ?

========================================================== MANNESMANN REXROTH(INDIA) LTD,(NOW BOSCH REXROTH(INDIA)LTD.) Versus DIPAKBHAI MANILAL GOHEL ========================================================== Appearance:

MR KEYUR GANDHI with MR NISARG DESAI for NANAVATI ASSOCIATES for the PETITIONER(s) No. MR MUKESH H RATHOD for the RESPONDENT(s) No. MR PARITOSH CALLA for the RESPONDENT(s) No. ==========================================================

CORAM:HONOURABLE MS. JUSTICE SONIA GOKANI

Date : 24/06/2021

IA JUDGMENT

1. The applicant is the original respondent no.1 and the

opponents are the original petitioners and the original

C/SCA/3760/2012 IA JUDGMENT DATED: 24/06/2021

respondent no.2.

2. This application is preferred seeking to recall the order

dated 11.06.2019 passed by this Court in Special Civil

Application No. 3760 of 2012 whereby the award dated

18.02.2011 passed by the Labour Court Ahmedabad in

Reference (LCA) No. 1789 of 2000 has been modified and

reference of opponent no. 1 has been allowed with a direction

to the applicant - Company to reinstate the opponent no.1

with continuity of service and back-wages.

3. The brief facts leading to the present application is as

under:

3.1. The opponent no.1 was one of the employees of the

applicant - Company working as a Senior Clerk in the

Company. It is averred that on 15.06.1999 the opponent no.1

misbehaved with his superior Mr. P.A.Joshi and therefore, this

alleged serious misconduct on his part had led to the issuance

of show-cause notice on 16.06.1999 whereby, the opponent

no. 1 was suspended pending the inquiry and while seeking

his reply, the applicant - Company also issued an office order

on 28.06.1999 appointing one Mr. Ashwinbhai Panchal as an

Inquiry Officer to inquire into the charges levelled against the

opponent.

C/SCA/3760/2012 IA JUDGMENT DATED: 24/06/2021

3.2. A detailed reply has been furnished by the opponent no.1

on 28.06.1999 in response to the said show-cause notice. As

the reply was not acceptable, the inquiry was initiated. He

also sought permission to engage an advocate and cross-

examine the company's witnesses. Such a permission was

granted. After availing the opportunities to the parties

concerned, the inquiry was completed and the report was

given by the inquiry officer on 04.04.2000 holding the charges

to have been proved against the opponent no.1.

3.3. A second show-cause notice has been issued on

12.04.2000 along with the copies of the findings of the report

of the inquiry officer and a detailed reply has been submitted

by the opponent no.1 on 11.05.2000. However, not accepting

such reply on 18.05.2000, he was terminated from the

services.

3.4. The aggrieved opponent no.1 had moved before the

Assistant Commissioner of Labour who referred the dispute

for adjudication to the Labour Court, Ahmedabad vide

Reference (LCA) No. 1789 of 2000. The Statement of Claim

had been filed by the opponent no.1 on 10.07.2003 before the

Labour Court challenging the action of termination from

service by the applicant - Company.

C/SCA/3760/2012 IA JUDGMENT DATED: 24/06/2021

3.5. The Company filed its written statement on 18.12.2007,

where the opponent's advocate filed a pursis stating therein

that he was not challenging the legality and validity of the

inquiry but, he was challenging only the findings of the

inquiry and the punishment imposed.

3.6. The applicant - Company filed an affidavit by way of an

oral evidence of its witness Mr. Hiren Shah. It also submitted

the list of documents on 02.02.2010 and placed on record the

investigation report of private agency saying that opponent

no.1 had its own ownership firm in the name of 'Gohel

Traders' and he was engaged in the business during the

pendency of the reference proceedings. The witness of the

applicant - Company was also cross-examined by the advocate

of the opponent no.1.

3.7. Accordingly, the Labour Court partly allowed the

reference on 18.02.2011 and directed the company to pay the

lump-sum amount of compensation of Rs. 50,000/- in lieu of

the reinstatement. The Labour Court also held that the

findings arrived at during the inquiry proceedings were

perverse. It also in the very breathe noted that the misconduct

of the opponent no.1 since was found serious misconduct, the

C/SCA/3760/2012 IA JUDGMENT DATED: 24/06/2021

lump-sum compensation has been given.

3.8. This award has been challenged before this Court in

Special Civil Application No. 3760 of 2012. The Court

admitted the petition on 26.03.2012.

3.8.1. As no one appeared from the company despite due

service of notice, the Court heard the petition ex-parte and

allowed the petition vide order dated 11.06.2019. It set aside

the award of the Labour Court and directed the applicant -

Company to reinstate the opponent no.1 with continuity of

service and full backwages instead of payment of Rs. 50,000/-

awarded by the Labour Court. The opponent no.1 personally

visited the applicant - Company and handed over the copy of

the order dated 11.06.2019, although, the order of the Court

is not implemented till date.

3.9. In this backdrop of facts, it is the say of the respondent

company in this application for recall that in the year 2014 or

2015, the authorized signatory of the applicant - Company

handed over the signed vakalatpatra to the office of the

advocate of the applicant - Company however, due to

negligence of the registered clerk of the advocate of the

applicant - Company, the Vakalatpatra could not be filed,

C/SCA/3760/2012 IA JUDGMENT DATED: 24/06/2021

therefore, the name of the advocate for the applicant -

Company was not shown on the board when the petition was

notified for final hearing on 11.06.2019.

3.9.1. It is further contended that it was a bona fide

mistake not to file the vakalatpatra and therefore, the present

application has been preferred to recall the order as the same

would cause serious prejudice to the applicant/company.

3.9.2. It is the grievance on the part of the applicant that

earning of the opponent no.1 was to the tune of around Rs.

24,000/- per month while on suspension and when his matter

came to be decided finally, it was overlooked by the Court at

the time of directing reinstatement with backwages.

4. According to the applicant, it is a settled position of law

that in the event of grave misconduct, the employer is bound

to lose confidence in its employee and therefore, the employee

may not be entitled to the relief of reinstatement with

backwages and instead should be awarded the lump-sum

compensation. Therefore, the present application with the

following prayers: -

"(A) Your Lordships may be pleased to recall the order dated 11.06.2019 passed by this Hon'ble Court in Special Civil Application No. 3760 of 2012;

C/SCA/3760/2012 IA JUDGMENT DATED: 24/06/2021

(B) Your Lordship may be pleased to list Special Civil Application No. 3760 of 2012 for final hearing and decide the matter after hearing both the parties on its merits;

(C) Pass such other and further order and orders as may be thought fit in the interest of justice."

5. This Court issued notice on 24.09.2019 and an advance

copy came to be served upon Shri Mukesh Rathod, learned

advocate appearing for the original petitioner - opponent

no.1. It had been given to understand that not only this

application for recall is being heard for a limited purpose of

recall, but, the parties are permitted to even argue on merits

while arguing this application for recall and accordingly, both

the sides have extensively made their submissions along the

line of their respective stands.

5.1. Accordingly, on the next adjourned date, both the sides

have been heard on merits. The written submissions also have

been given where the reliance has been sought on various

decisions of the Apex Court.

6. Learned advocate Mr. Keyur Gandhi has urged that the

reason why the matter has gone ex-parte is because there was

non-filing of the vakalatpatra by the registered clerk and his

affidavit to that effect also has been filed.

C/SCA/3760/2012 IA JUDGMENT DATED: 24/06/2021

6.1. On merits, he urged that when the Labour Court found

the inquiry perverse, it ought to have given an opportunity to

the applicant to lead evidence which has not been done.

Therefore also, there is a requirement for indulgence.

6.2. It is further emphasized by learned advocate Mr. Gandhi

that the employer must be given an opportunity to adduce

evidence once the Labour Court comes to a conclusion that

the findings in the inquiry are perverse and baseless, more

particularly, when the employer has sought an opportunity to

adduce evidence before the Labour Court.

6.3. Reliance is placed on the decision on Bharat Forge Co.

Ltd. vs. A.B.Zodge and Another; reported in (1996) 4

SCC 374, where the Apex Court recognized the right of the

employer to adduce evidence before the tribunal or Court

when disciplinary proceeding is held vitiated or where no

inquiry is in fact held.

6.4. Similar view has been taken by the Apex Court in case of

Neeta Kaplish vs. Presiding Officer, Labour Court and

Another; reported in (1991) 1 SCC 517, where tribunal is

expected under the law to avail opportunity to the employer to

justify its action of termination/dismissal by leading fresh

C/SCA/3760/2012 IA JUDGMENT DATED: 24/06/2021

evidence.

6.5. Various other decisions also have been relied upon and

on the strength of ration of those decisions, it has been

submitted that lump-sum compensation of Rs. 50,000/- was

just and proper and the respondent would not be entitled to

reinstatement with full back-wages and consequential

benefits.

6.6. It is also emphatically urged that the judgment dated

11.06.2019 of this Court deserves to be recalled and the main

petition be dismissed.

7. According to learned advocate Mr. Mukesh Rathod, the

opponent no.1 was charged essentially for disobedience and

misbehaviour with the superior. The opponent no.1 has also

ventilated the grievance that the oral evidence of the

complainant comprehended two more incidents of 09.06.1999

and 10.06.1999. In relation to the evidence, the witness in the

oral statement also has spoken of the abusive language which

was never the charge framed against the petitioner. It further

urged that the Labour Court has rightly found the oral

evidence at variance with the charge levelled against the

petitioner. The Labour Court, according to learned advocate

C/SCA/3760/2012 IA JUDGMENT DATED: 24/06/2021

Mr. Rathod, had rightly concluded that the charges de hors

the notice were sought to be proved against the petitioner by

oral evidence. Therefore, it found inconsistency and ambiguity

in the charges and the notice. The findings during the inquiry

were rightly held by the Labour Court as perverse on its

elaborate and precise discussion in relation to the evidence

adduced.

8. Having thus heard both the sides and also having

examined the judgments/orders and other materials on

record, it can be noticed that this Court had issued rule in the

main petition and the applicant despite the service of notice of

rule chose not to appear, which led the Court to decide the

matter ex-parte. The opponent no.1/employee had not

challenged the legality and validity of the inquiry before the

Labour Court but, challenged the findings only, rendered in

the inquiry.

9. Before this Court chooses to consider the request of

recall of the judgment and order of SCA 3760 of 2012, apt

would be to refer to some of the decisions which are sought to

be relied upon by the original respondent and the present

applicant.

9.1. Taking firstly the decision in case of Bharat Forge Co.

C/SCA/3760/2012 IA JUDGMENT DATED: 24/06/2021

Ltd. vs. A.B.Zodge and Another; reported in (1996) 4

SCC 374, in this matter, the domestic inquiry was a focal

point and the Court held that domestic inquiry may be vitiated

either for noncompliance of the rules of natural justice or for

perversity. The disciplinary action taken on the basis of

vitiated inquiry does not stand on a better footing than the

disciplinary action with no inquiry. It further emphasized the

right of the employer to adduce evidence in both the

situations and the employer is also entitled to adduce the

evidence for the first time before the tribunal even if the

inquiry was not held or the inquiry held by the employer found

perverse. Before the Apex Court, it appears that before

closure of proceedings, the prayer made by the employer was

to lead evidence in support of the order of dismissal.

"7. A domestic enquiry may be vitiated either for non- compliance of rules of natural justice or for perversity. Disciplinary action taken on the basis of a vitiated enquiry does not stand on a better footing than a disciplinary action with no enquiry.

The right of the employer to adduce evidence in both the situations is well-recognised. In this connection, reference may be made to the decisions of this Court in Workmen of Motipur Sugar Factory (P) Ltd. Vs. Motipur Sugar Factory (P) Ltd. (1965 (II) LLJ 162 (SC>). State Bank of India Vs. R.K.Jain (1971 (III) LLJ 599 (SC>). Delhi Cloth General Mill Co. Ltd. Vs. Ludh Budh Singh (1972 (1) LLJ 180 (SC>) and Firestone Tyre Co.s Case (supra). The stage at which the employer should ask for permission to c additional evidence to justify the disciplinary action on merits was indicated by this Court in Delhi Cloth and General

C/SCA/3760/2012 IA JUDGMENT DATED: 24/06/2021

Mill's case (supra). In Sankar Chakrabarty's case (supra), the contention that in every case of disciplinary action coming before the Tribunal, the Tribunal as a matter of law must frame preliminary issue and proceed to see the validity or otherwise of the enquiry and then serve a fresh notice on the employe- by calling him to adduce further evidence to sustain the charges, if the employer chooses to do so, by relying on the decision of this Court in the case of Cooper Engineering Ltd. (1975 (2) LLJ 379 (SC>), has not been accepted. The view expressed in Delhi Cloth Mill's case (supra) that before the proceedings are closed, an opportunity to adduce evidence would be given if a suitable request for such opportunity is made by the employer to the Tribunal, has been reiterated in Sankar Chakrabarty's case after observing that on the question as to the stage as to when leave to adduce further evidence is to be sought for, the decision of this Court in Cooper Engineering Ltd. has not overruled the decision of this Court in Delhi Cloth Mill's case. There is no dispute in the present case that before the closure of the proceedings before the Tribunal, payer was made by the employer to lead evidence in support of the impugned order of dismissal. Hence, denial of the opportunity to the employer to lead evidence before the Tribunal in support of the order of dismissal cannot be justified."

9.2. In case of Neeta Kaplish vs. Presiding Officer,

Labour Court and Another; reported in (1991) 1 SCC

517, the appellant was dismissed from service after the

domestic inquiry. The Labour Court came to a conclusion that

inquiry conducted by the management was not fair and proper

and therefore, called upon the management to produce the

evidence on merit. The management, however, informed the

Labour Court that it wanted to rely on the evidence already

C/SCA/3760/2012 IA JUDGMENT DATED: 24/06/2021

recorded during the inquiry proceedings and therefore, it did

not produce any fresh evidence before the Labour Court. In

such a view of the matter, the Apex Court held that when the

inquiry has been held and found to be defective, the Labour

Court/ Tribunal can call upon the Management or the

employer to justify the action taken against the workman 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 ground at any

subsequent stage and if the opportunity availed of and the

evidence is adduced by the management, the validity of action

taken by it has to be scrutinized and adjudicated upon on the

basis of such fresh evidence.

10.3. The appellant questioned the domestic inquiry on

number of grounds. The Labour Court found that the inquiry

was not fair nor properly conducted. After recording this

finding, the Labour Court called upon the management to lead

the evidence on merit which it did not do. The Apex Court

held thus: -

"26. Learned counsel for the appellant 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

C/SCA/3760/2012 IA JUDGMENT DATED: 24/06/2021

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 that 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 full opportunity of hearing was given to her in consonance with the principles of natural justice. This contention has not been accepted by the 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."

10.4. In case of Karnataka State Road Transport

Corporation vs. Lakshmidevamma (Smt) and Another;

reported in (2001) 5 SCC 433, the issue was in relation to

the right of employer to lead additional evidence in the

proceedings under Section 10 or 33(2)(b) against termination

C/SCA/3760/2012 IA JUDGMENT DATED: 24/06/2021

of service. The Court held that such right must be exercised

when he files his statement of claim or makes an application

for permission to take certain action or for approval of the

action taken by him. The Court held that it is just and fair and

does not conflict with the decision in Rajendra Jha case (1984

Supp SCC 520). The Court also held that application for

permission made after domestic inquiry was found to be

vitiated and was rightly rejected. The Court further held that

this position would not derogate from the powers of the Court

or the Industrial Tribunal to require or direct the parties to

lead additional evidence at any stage before closure of

proceedings if on facts and circumstances deemed just and

necessary in the interest of justice. The Court held that the

right of employer to lead evidence before the Labour Court/

Industrial Tribunal in justification of the impugned action is

not a statutory right, but, a procedure as laid down by the

Supreme Court.

"15. The question again arose in the case of Shambu Nath Goyals case (supra) as to the propriety of waiting till the preliminary issue was decided to give an opportunity to the management to adduce evidence, because after the decision in the preliminary issue on the validity of the domestic enquiry, either way, there was nothing much left to be decided thereafter. Therefore, in Shambu Nath Goyals case this Court once again considered the said question in a different perspective. In this judgment, the Court after discussing the earlier cases including that of

C/SCA/3760/2012 IA JUDGMENT DATED: 24/06/2021

Shankar Chakravarti vs. Britannia Biscuit Co. Ltd. & Anr. (1979 (3) SCR 1165), which was a judgment of this Court subsequent to that of Cooper Engineering (supra), the following principles were laid down:

"We think that the application of the management to seek the permission of the Labour Court or Industrial Tribunal for availing the right to adduce further evidence to substantiate the charge or charges framed against the workman referred to in the above passage in the application which may be filed by the management during the pendency of its application made before the Labour Court or Industrial Tribunal seeking its permission under section 33 of the Industrial Disputes Act, 1947 to take a certain action or grant approval of the action taken by it. The management is made aware of the workmans contention regarding the defeat in the domestic enquiry by the written statement of defence filed by him in the application filed by the management under section 33 of the Act. Then, if the management chooses to exercise its right it must make up its mind at the earliest stage and file the application for that purpose without any unreasonable delay. But when the question arises in a reference under s.10 of the Act after the workman had been punished pursuant to a finding of guilt recorded against him in the domestic enquiry there is no question of the management filing any application for permission to lead further evidence in support of the charge or charges framed against the workman, for the defeat in the domestic enquiry is pointed out by the workman in his written claim statement filed in the Labour Court or Industrial Tribunal after the reference had been received and the management has the opportunity to look into that statement before it files its written statement of defence in the enquiry before the Labour Court or Industrial Tribunal and could make the request for the opportunity in the written statement itself. If it does not choose to do so at that stage it cannot be allowed to do it at any later stage of the proceedings by filing any application for the purpose which may result in delay which may lead

C/SCA/3760/2012 IA JUDGMENT DATED: 24/06/2021

to wrecking the morale of the workman and compel him to surrender which he may not otherwise do."

16. While considering the decision in Shambu Nath Goyals case, we should bear in mind that the judgment of Vardarajan,J. therein does not refer to the case of Cooper Engineering (supra). However, the concurring judgment of D.A.Desai,J. specifically considers this case. By the judgment in Goyals case the management was given the right to adduce evidence to justify its domestic enquiry only if it had reserved its right to do so in the application made by it under section 33 of the Industrial Disputes Act, 1947 or in the objection that the management had to file to the reference made under section 10 of the Act, meaning thereby the management had to exercise its right of leading fresh evidence at the first available opportunity and not at any time thereafter during the proceedings before the Tribunal/Labour Court.

17. Keeping in mind the object of providing an opportunity to the management to adduce evidence before the Tribunal/Labour Court, we are of the opinion that the directions issued by this Court in Shambu Nath Goyals case need not be varied, being just and fair. There can be no complaint from the management side for this procedure because this opportunity of leading evidence is being sought by the management only as an alternative plea and not as an admission of illegality in its domestic enquiry. At the same time, it is also of advantage to the workmen inasmuch as they will be put to notice of the fact that the management is likely to adduce fresh evidence, hence, they can keep their rebuttal or other evidence ready. This procedure also eliminates the likely delay in permitting the management to make belated application whereby the proceedings before the Labour Court/Tribunal could get prolonged. In our opinion, the procedure laid down in Shambu Nath Goyals case is just and fair.

19. For the reasons stated above, we are of the opinion that the law laid down by this Court in the case of Shambu Nath Goyal vs. Bank of Baroda & Others (1984(1) SCR 85) is the correct law on the

C/SCA/3760/2012 IA JUDGMENT DATED: 24/06/2021

point."

10.5. In case of M.L.Singla vs. Punjab National Bank;

reported in 2018 SCC OnLine SC 1585, the appellant was

directed against the final judgment and order passed by the

High Court of Punjab and Haryana, where it allowed the Writ

Petition filed by the respondent Bank and quashed and set

aside the award passed by the Presiding Officer, Central

Government, Industrial Tribunal-cum-Labour Court. The Court

discussed at length the decision of Shankar Chakravarti vs.

Britannia Biscuit Co. Ltd.(1979)3 SCC 371, where the

question addressed was that when the domestic inquiry is

held illegal and improper by the Labour Court, whether the

Labour Court is duty bound to afford an opportunity to the

employer to lead evidence to prove the charge against the

workman on merits before the Labour Court. The Apex Court

while answering this question held that it is for the employer

to ask for such opportunity to lead evidence to prove the

charge of misconduct and once such a prayer is made, the

same cannot be denied to the employer.

              "45. This     Court     while     answering       the
              aforesaid question     held    that    it is for the

employer to ask for such opportunity to lead evidence to prove the charge of misconduct and once such prayer is made in any form, i.e., orally or by application or in the pleading, the same cannot be denied to the employer. It has to be granted to enable him to prove the misconduct. This

C/SCA/3760/2012 IA JUDGMENT DATED: 24/06/2021

Court further held that no duty is cast upon the Court to offer such opportunity to the employer suo motu, if he does not ask for it. In other words, he has to ask for from the Court by any of the three modes mentioned above."

10.6. In case of Pidilite Industries Ltd. vs. Hitesh

Jivrambhai Panchal and Another; reported in 2016 SCC

OnLine Guj 336, challenge is made to the award passed by

the Labour Court, where the Court held thus: -

"4. Having heard learned advocates for the respective parties and having gone through the material on record, this Court finds that the workman was charge sheeted on 10.02.1997 and was dismissed from service vide order dated 27.06.1998. The Labour Court has set aside the said dismissal vide order dated 27.04.2015. Reinstatement is ordered with 50% back wages.

The foundation of setting aside the dismissal order is that the charge against the workman was not proved. This Court finds that Labour Court has committed error while coming to this conclusion, because this question was already gone into by the Labour Court on the specific plea raised by the workman and an order to that effect was also passed below Exh.33 on 06.07.2013 holding that the inquiry was legal and proper. The Labour Court fell in error at the time of recording the final award that the charge against the workman was not proved, on the face of earlier order dated 06.07.2013 which attained finality. Even otherwise, it was not open to the Labour Court to straight away set aside the dismissal order since the employer had already asked for permission to lead evidence and to prove the charge before the Labour Court, in the event the Labour Court comes to the conclusion that inquiry was not legal and proper. The Labour Court has not done any such exercise. Had the question of legality of the inquiry been not gone into by the Labour Court on earlier occasion, the matter could have been remanded to the Labour Court for fresh consideration, however

C/SCA/3760/2012 IA JUDGMENT DATED: 24/06/2021

that is not warranted since that question was already gone into by the Labour Court and the same was decided against the workman and it had attained finality. So far, the decision relied by learned advocate for the workman is concerned, not only it will not help the workman, it would support the case of the employer keeping in view the observations made in para:22 of the said decision. Considering the totality this Court finds that impugned award is unsustainable in the eyes of law and the same needs to be quashed and set aside."

10.7. The above decision had been challenged before the

Division Bench of this Court in Letters Patent Appeal No. 101

of 2016 arisen from Special Civil Application No. 15845 of

2015, where there was a broad consensus between the parties

to set aside the dismissal order, order of reinstatement and to

remit the matter to the Labour Court from the stage of

permitting the employer to lead the evidence before the

Labour Court to prove the charges and misconduct against

the employer.

10.8. In case of Torrent Power Ltd. and Another vs.

Chelabhai Nathabhai Luhar and Others; reported in

2017 SCC OnLine Guj 2472, the Court held thus: -

"10. The principle of law which emerges from the above cited judicial pronouncements can be summarized thus:

10.1. Once the employer has lost the confidence in the employee and the bona fide loss of confidence is affirmed, the order of discharge must be considered to be immune from challenge, for the

C/SCA/3760/2012 IA JUDGMENT DATED: 24/06/2021

reason that discharging the office of trust and confidence requires absolute integrity, and in such a case of loss of confidence, reinstatement cannot be directed.

10.2. The test to find out as to whether there was bona fide loss of confidence in the employee is thus:

(i) Whether the workman is holding the position of trust and confidence; (ii) by abusing such position, he commits 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.

10.3 Loss of confidence cannot be subjective but must rest on objective tangible facts leading to a definite apprehension in the mind of the management, regarding trustworthiness or reliability of the employee. An employer who believes or suspects that his employee, particularly one holding a position of confidence, has betrayed that confidence, can, if the conditions and terms of the employment permit, terminate his employment and discharge him without any stigma attaching to the discharge. But such belief or suspicion of the employer should not be a mere whim or fancy. It should be bona fide and reasonable. It must rest on some tangible basis and the power has to be exercised by the employer objectively, in good faith, which means honestly with due care and' prudence.

10.4. Expressing dissatisfaction with the overall result of the performance of duties by employee does not necessarily imply misconduct on the part of the employee and thus it would be permissible to dispense with the service of the employee in private employment subject to the terms and conditions by expressing the dissatisfaction with the performance of the private employee. The opinion formed by the employer about the suitability of his employee, for the job assigned to

C/SCA/3760/2012 IA JUDGMENT DATED: 24/06/2021

him even though erroneous, if bona fide, is final and not subject to review by the industrial adjudication.

10.5 Thus, if the facts constituting misconduct resulting in loss of confidence form the record of the employer, the employer in its discretion may invoke the power to discharge simpliciter for loss of confidence while dispensing with inquiry into the conduct of the workman."

10.9. In case of Mulin Sharma vs. State of Assam and

Others; reported in (2016) 14 SCC 208, the Court had

directed the reinstatement without backwages. It was

reiterated that payment of backwages is discretionary power

which must be exercised by the Court keeping in view the

facts in their entirety and no straitjacket formula can be

evolved nor rule of universal application can be laid down in

such cases. Reinstatement does not necessarily result in

payment of backwages which is independent of reinstatement.

In absence of any evidence to prove that appellant was

unemployed during the period in question, the backwages

cannot be granted since he had not worked for that period.

11. Reverting to the facts of the instant case, the applicant

herein, in the written statement dated 18.12.2007 filed before

the Labour Court, sought opportunity to lead evidence to

prove the charges of misconduct before the Court, if it arrives

at a finding that inquiry is illegal or perverse or is in

C/SCA/3760/2012 IA JUDGMENT DATED: 24/06/2021

contravention of the principles of natural justice, therefore

even, when the termination has been held illegal, the

applicant - Company has urged that it ought to have granted

opportunity to lead evidence to prove the charges before the

Labour Court.

11.1. It would be apt to consider the approach of the

Labour Court in a matter where the opponent no.1 was

charged for disobedience and misbehaviour with his superior

while on duty on 15.06.1999. This Court noticed that the

workman when was proceeded against in the domestic

inquiry, there were no specific accusations in relation to the

incidents dated 09.06.1999 and 10.06.1999. In the charge /

memorandum of charges, the oral evidence was found at

variance by the Labour Court. The Labour Court also justly

gave a right conclusion that the charges de hors the notice

were sought to be proved against the petitioner by oral

evidence. The findings during the inquiry were held by the

Court as perverse and it further held that the case of

dismissal from service against the opponent no.1 was not

made out. The Labour Court also held that the witness Mr.

P.A.Joshi and Mr. Chaudhari corroborated the incident dated

15.06.1999. It questioned seriously the conduct of the

opponent no.1 on the ground of insulting his superior and it

C/SCA/3760/2012 IA JUDGMENT DATED: 24/06/2021

chose not to direct the reinstatement because of the conduct.

11.2. In wake of such findings of the Labour Court, the

termination when has been held illegal on the ground that the

findings in the inquiry are perverse and are in contravention

of the principle of natural justice, the question is as to

whether the company ought to have been given the

opportunity to lead additional evidence to prove the charges

before the Labour Court. It is to be noted that at no point of

time the applicant herein has questioned the action on the

part of the Labour Court for not availing the opportunity of

adducing evidence. The applicant has become aggrieved only

because this Court has directed reinstatement with

backwages, whereas the Labour Court had granted Rs.

50,000/- by way of compensation in lieu of reinstatement and

backwages.

12. There is no cross petition of SCA 3760 of 2012 which has

been challenged by the opponent. Therefore, to urge this

Court to allow the opportunity after nearly a decade as the

date of award of the Labour Court is of 18.02.2011, is not

found justifiable. At the same time, this Court cannot be

oblivious of the fact that there cannot be automatic

reinstatement and the complete backwages merely because

C/SCA/3760/2012 IA JUDGMENT DATED: 24/06/2021

the Court held the findings of the inquiry perverse.

13. This Court noticed that the Supreme Court as mentioned

herein above in Mulin Sharma's (supra) case has held that

backwages is not necessarily to be awarded for the same

being a discretionary relief which can be exercised by the

Court keeping in view the facts in its entirety and no

straitjacket formula can be applied. The applicant has also

produced the evidence before the Labour Court that the

opponent no.1 has employed with the partnership firm called

'Gohel Traders' and he was looking after the marketing of

Nisaar Brand of Bindi. His monthly income was approximately

24,000/- per month.

14. As mentioned herein above, in absence of any challenge

to the lump-sum payment of compensation of Rs. 50,000/-,

there does not arise any question of remanding the matter

back to the Labour Court for adducement of evidence or for

the purpose of invoking the powers of employer of proving the

charges of departmental inquiry. There has been a sufficient

opportunity given to the employer, who after accepting the

amount of compensation, is questioning this only because of

the payment of consequential benefit of backwages.

15. This Court is not inclined to take into consideration the

C/SCA/3760/2012 IA JUDGMENT DATED: 24/06/2021

plea of permitting additional evidence for proving the charges

levelled against the opponent no.1. Undoubtedly, as

mentioned in case of Shambu Nath Goyal (supra), the

evidence had been asked for in the written statement by the

applicant. In a peculiar circumstance as mentioned herein

above, such a request is not to be acceded to. With the

evidence of his association with the Gohel Traders having

already come on record, even that does not require any

further opportunity.

16. Resultantly, the present application being Misc. Civil

Application No. 01 of 2019 for recall is allowed. The main

petition being Special Civil Application No. 3760 of 2012 is

dismissed with no order as to costs.

(SONIA GOKANI, J) Bhoomi