1 201 wp 3449.97.doc K IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 3449 OF 1997 C.V.Narayanan ..Petitioner. Vs. Messrs Jaya Auto Repair Works ..Respondent. Mr. P.M. Patel for petitioner. Ms. Anjali P. Purav for respondent. CORAM : K.K.TATED, J. DATED : 3rd May, 2011. PC: 1 Heard learned counsel for the parties. 2 By this Petition under Articles 226 and 227 of the Constitution of India, Petitioner/Employee challenges the judgment and award dated 11th March, 1997 passed by the learned Presiding Officer, 7th Labour Court, Mumbai in Reference (IDA) No.362 of 1998 filed by him challenging his termination order dated 8th June, 1982 whereby his claim was rejected. 3 A few facts of the matter are as under: 2 201 wp 3449.97.doc The Petitioner joined services of the Respondent some time in 1965 as a Clerk. He worked with the Respondent till 1982. On 8th June, 1982 the Respondent issued termination letter to the Petitioner terminating his services on the ground that Petitioner was carrying on activities detrimental to their businesses. In the said termination letter it is stated that his services were terminated on the ground of loss of confidence from 8th June, 1982. Thereafter, the Petitioner made an application for preferring Reference. In the said Reference he filed his statement-of-claim dated 27th September, 1988. In his statement-of-claim the Petitioner stated that the respondent had terminated his services without following the conditions prescribed under section 25 (f) of the Industrial Disputes Act, 1947, without giving him any show cause notice or charge sheet or holding any enquiry against him. He further submitted that his services were terminated by the Respondent employer in colourable exercise of their powers and with utter disregard of the principles of natural justice and same was illegal and unjustified. He further submitted in his statement-of-claim that his termination was illegal as it was without giving any opportunity to him to explain the various allegations made against him. In his statement-of-claim he prayed that the termination order dated 9th June, 1982 issued by the 3 201 wp 3449.97.doc respondent/employer be quashed and set aside. He further prayed that Respondent be directed to reinstate the Petitioner in service with full back wages, continuity of service and other consequential benefits with effect from 9th June, 1982. 4 In the said Reference the Respondents filed their written statement dated 24th January, 1989 and opposed the Petitioner’s claim. The Respondents in their written statement contended that Petitioner was the person from native place of the proprietor of the Respondent in Kerala State. The proprietor of the respondent developed full faith in him and had given much more power of administrative, supervisory and managerial nature which the Petitioner misused. He started activities detrimental to the business of the Respondent. Petitioner started diverting the business of the Respondent Company to M/s Sun Motor Works situated at Gowaliya Tank. He was making false representation to the clients and customers of the Company that M/s Sun Motor Works was the new garage of the respondent company or it was a sister concern of the Company. Actually, M/s Sun Motors Works was started by the Petitioner in the name of his wife. 4 201 wp 3449.97.doc 5 The Respondent in their written statement contended that in March, 1982 M/s Borrough Welcome and Company (India) Private Limited had made an enquiry about the estimate for repairing their Ambassador car with the Petitioner. The Petitioner sent estimate to the Company. He submitted the estimate on or about 25th March, 1982. At the same time he told the representative of that company that M/s Jaya Auto Repairs Works have started a new garage by name M/s Sun Motors Works and in that new motor garage cars can be repaired at cheaper rate. On his advice M/s Borrough Welcome and Company’s representative took away the said car to M/s Sun Auto Repair Works for repairs. Afterwards, M/s. Borrough Welcome and Company discovered that the Petitioner had made false representation. Therefore, Marketing Director of the said Company by letter dated 25th April, 1982 complained to the Respondent Company. 6 In similar way, M/s Andhra Pradesh Paper Mill Ltd. made complaint to the Respondent. They contended in their written statement that they received letter dated 12th December, 1981 from Indian Oil Corporation Ltd., letter dated 11th February, 1982 from M/s J.M. Baxi and Company and letter dated 25th April, 1982 from Dr. V.A. Padval and letter dated 20th July, 1982 5 201 wp 3449.97.doc from M/s Andhra Pradesh Paper Mills Ltd. All these letters show that the Petitioner started diverting their business on one or other ground to M/s Sun Auto Repair Works which belonged to his wife. They further raised several grounds to show that they lost confidence in the petitioner and therefore, they issued termination letter dated 8th June, 1982 terminating the Petitioner’s services. 7 The learned Presiding Officer, 7th Labour Court, Mumbai by its judgment and award dated 11th March, 1997 rejected the Petitioner’s Reference. Being aggrieved by the said order, Petitioner preferred present Writ Petition. 8 The learned counsel appearing on behalf of Petitioner submits that the Judgment and award passed by the learned Presiding Officer, 7th Labour Court, Mumbai, dated 11th March, 1997 is against justice, equity and good conscience and same is liable to be set aside. He further submits that the learned Presiding Officer erred in accepting the case of the respondent that the Petitioner’s termination of services was due to loss of confidence on account of activities which were detrimental to the interest of the respondent. He further submits that the respondents without conducting any enquiry and without 6 201 wp 3449.97.doc following principles of natural justice, terminated Petitioner’s services. He submits that the learned Presiding Officer of the Labour Court erred in placing reliance while rejecting the Reference on documents Exhibit C-7 which he had earlier rejected by concluding that the same were fabricated. He submits that once the document is held to be fabricated, it is not open for the learned Presiding Officer to accept the recitals thereon. He submits that the learned Presiding Officer erred in relying on the evidence led on behalf of respondent to come to the conclusion that the Petitioner was carrying on the activities detrimental to the interest of the Respondent when in Award, Part-I, the learned Presiding Officer had discarded the same evidence. He submits that the learned Presiding Officer of the Labour Court erred in placing reliance on letter at Exhibit C-25 for coming to the conclusion that the Petitioner was a partner of M/s Sun Auto Repair Works or he was connected with the same in any manner. 9 The learned counsel appearing on behalf of the Petitioner further submits that the learned Presiding Officer of the Labour Court erred in coming to the conclusion that Petitioner carried an activities detrimental to the business of Respondent on the basis of three letters dated 12th December, 1981 of Indian Oil 7 201 wp 3449.97.doc Corporation Ltd., letter dated 11th February, 1982 of J.S. Jhaveri, Senior Executive, J.M. Baxi and Company and letter dated 25th April, 1982 of Dr. V.A. Padval. He further submits that it is impossible to come to the conclusion on the basis of bare reading of these letters that Petitioner carried on the activities detrimental to the business of respondent. He further submits that even the respondent’s witnesses in their evidence failed to make out any case against the Petitioner to show that he carried activities detrimental to the business of the respondent. 10 The learned counsel appearing on behalf of Petitioner submits that the learned Presiding Officer of the labour Court failed to appreciate that the burden is on respondent-employer to prove case of loss of confidence which they failed to do so. He further submits that the respondent failed to establish either by leading oral evidence and/or documentary evidence to show that petitioner’s wife was interested in M/s Sun Motor works. He submits that the Respondent failed to adduce evidence to justify loss of confidence in Petitioner. Not only that the respondent failed to adduce any cogent evidence on record to show that they suffered any monetary loss. He submits that the learned Presiding Officer, Labour Court passed impugned judgment and award merely on suspicion and conjuncture and not on any 8 201 wp 3449.97.doc evidence whatever and as such is bad in law. In support of this contention, he relies on Apex Court’s judgment in the matter of Nand Kishore Prasad vs. The State of Bihar and others reported in AIR 1978 SC 1277. On the basis of these submissions, the learned counsel appearing on behalf of Petitioner submits that the impugned judgment and award passed by the learned Labour Court is liable to be set aside and the Reference to be allowed with costs. 11 On the other hand, the learned counsel appearing on behalf of respondent vehemently opposed the present writ petition. The learned counsel appearing on behalf of respondent submits that the present writ petition is not maintainable under articles 226 and 227 of the Constitution of India as it calls for re-appreciation of the evidence on record. She submits that the Labour Court decided the Reference on the basis of evidence adduced by the respondent and on appreciating of the evidence on record, the Labour Court dismissed the Petitioner’s Reference. She submits that the evidence cannot be re-appreciated in a writ petition preferred under Articles 226 and 227 of the Constitution of India. She submits that on this ground alone, the writ petition is liable to be dismissed with costs. 9 201 wp 3449.97.doc 12 The learned counsel appearing on behalf of respondent submitted that the Petitioner failed to enter into the witness box to justify his case. For want of cogent evidence on the part of the petitioner, the Labour Court rightly rejected his Reference. She further submits that the respondent in support of their case, i.e. the Petitioner carried activities detrimental to the business of the Respondent, examined M.K. Bhasker Poojari partner of M/s Jaya Auto Repair Works (respondent), Mr. P. Dharma who was working with Indian Oil Corporation as Administration Officer, Dr. Vishnu Atmaram Padwvl working as Marketing Director in M/s Borrough Welcome and Company and Jintendra Suryanbhan Jhaveri,, Senior Executive of J.M. Baxi and Company. She further submits that the respondent produced on record following documents to justify how they lost their confidence in petitioner: 1 Letter dated 12th December, 1981 of Indian Oil Corporation Ltd., 2 Letter dated 11th February, 1982 of J.S. Jhaveri, Senior Executive, J.M. Bazi, and 3 Company and letter dated 25th April, 1982 of Dr. V.A. Padval. 13 The learned counsel appearing on behalf of respondent further submits that the Petitioner at the time of cross- 10 201 wp 3449.97.doc examination of the respondent’s witnesses did not make out any case to discard their evidence regarding the activities of the petitioner detrimental to the business of the Respondent. Therefore, the Presiding Officer, Labour Court was perfectly right in relying on their evidence fully supported by the documentary evidence and as such there is no substance in the present writ petition and the same is liable to be dismissed with costs. 14 With the assistance of both the counsel, I have gone through the documentary evidence adduced on record, deposition of witnesses and other material. I have gone through the decision of the Supreme Court in the case of Nand Kishore Prasad vs. The State of Bihar and others, reported in AIR 1978 SC 1277 relied on by the learned counsel for the petitioner. It is not applicable to the facts of the present case. The petitioner was from respondent’s native place and hence the respondent had full faith in him. He used to prepared estimate of car repairs, dealt with the clients directly. In other words, the respondent had full faith on the petitioner for carrying out day to day activities of his workshop. Taking advantage of this fact the petitioner started diverting the vehicle repairs business of the respondent’s garage to another garage namely, M/s Sun 11 201 wp 3449.97.doc Auto Repair Works in which he and his wife had interest. This can be gathered from the letters dated 12th December, 1981 from Indian Oil Corporation Limited, letter dated 12th February, 1982 from J.M. Baxi and Company and letter dated 25th April, 1982 from Dr. V.A. Padval which are duly proved by the witnesses. Those witnesses also categorically stated in their deposition that the Petitioner told their staff that they could get their cars repaired at cheaper rate at the garage M/s Sun Auto Repair Works. He gave out to them that the said M/s Sun Auto Repair Works was the sister concern of the respondent’s garage. On knowing those facts, it can be legitimately inferred, the respondent was bound to loss confidence in the petitioners. Therefore, he terminated the services of the petitioner on the ground of the loss of confidence. The Apex Court in the matter of Ramesh Chandra Sharma vs. Punjab National Bank and another reported in 2007 DGLS (Soft.) 656 held that once an employer has lost the confidence in the employee and the bonafide loss of confidence is affirmed, order of punishment must be considered to be immune from challenge for reason that discharging office of trust and confidence require absolute integrity. Head note ‘B’ of that judgment reads as under: 12 201 wp 3449.97.doc “Service Law – Quantum of punishment – Grave misconduct – Loss of confidence – Reinstatement – Judicial Interference – Ordinarily High Court should not interfere with quantum of punishment imposed by the Disciplinary Authority – Once the employer has lost the confidence in employee and the bona fide loss of confidence is affirmed, order of punishment must be considered to be immune from challenge, for reason that discharging office of trust and confidence requires absolute integrity – In a case of loss of confidence, reinstatement cannot be directed – Granting such an employee relief of reinstatement would be “an act of misplaced sympathy which can find no foundation in law or in equity.” 15 In the present case, the respondent adduced documentary as well as oral evidence to prove that the petitioner indulged in the activities detrimental to the interest of respondent’s trade or business. On account of those activities, the respondent lost confidence in the petitioner and they issued termination order and terminated his services on that ground. All these facts are considered by the Labour Court. I do not find any reason to interfere with the well reasoned order passed by the Labour Court. 13 201 wp 3449.97.doc 16 Considering these facts, the Petition preferred by the Petitioner is dismissed. 17 No order as to costs. (K.K.Tated, J.)