l^ ^•F'A ~JL HIGH COURT OF CHHATTISGARH. BILASPUR D.B. Hon»bleShri Raieev Guota, C.J. & Hon*ble Shri Sunil Kumar Sinha. J. Writ Aoneal No.56 of 2007 M/s. Lafarge India Ltd Versus Mithilesh Kumar and two others Writ Aooeal No. 158 of 2007 Mithilesh Kumar Versus M/s. Lafarge India Ltd., and two others JUDGMENT For considjsration -IJ ^ Sd/- Sunil Kumar Sinha Judge HON»BLBSHRI JUSTICE RAJEEV GUPTA J ^-^r^- Sd/- Chief Justice Post for Judgment:;^ /03/2009 Sd/- Sunil Kumar Sinha Judge AF(^ HIGH COURT OF CHHAmSGARH, BILASPUR D.B. HON»BLBSHRI RAJEBV GUPTA, C.J. & HONB'LE SHRI SUNIL KUMAR SINHA. J. WMT APPEALNo.56of2007 <2J2^) APN^LLANT M/s. Lafarge India Ltd., through its Vice President, Sonadih Cement Plant, Sonadih, Post Raseda, Via Baloda Bazar, Distt. Raipur (C.G). ^ RESPONDENT 2 3 Versus Mithelesh Kumar, aged about 40 years, r/o C-38, Sonadih Cement Plant Colony, Lafarge India Ltd., Post Raseda Via Baloda Bazar, Distt. Raipur (C.G). President, State Industrial Court, Mahanadikhand, Raipur (C.G). Labour Court, Raipur 1« WRIT APPEALNo. 158 of 2007 APPELLANT RESPQNDENT 1 Mithelesh Kumar, aged about 41 years, Son of Shri P.N. Singh, R/o C-38, Sonadih Cement Plant Colony, Lafarge India Ltd., Post Raseda Via Baloda Bazar, Distt. Raipur (C.G). Versus M/s. Lafarge India Ltd., through Vice President, Sonadih Cement Plant, Sonadih, Post Raseda, Via Baloda Bazar, Distt. Raipur (C.G). 2 President, State Industrial Court, Mahanadikhand, Raipur (C.G). 3 Labour Court, Raipur /' W.A.No.56/2007 & W.A.No. 158/2007 ^-2-1 Aooearance: Mr. N.K. Vyas, counsel for M/s. Lafarge India Ltd. Mr. Mithilesh Kumar appears in person. JUDGMENT (^.03.2009) The followingjudgment of the Court was delivered by Sunil Kumar Sinha, J, (1) These appeals have been directed against the order dated 05th of Febmary, 2007, passed in Writ Petition No.5502/2005 by the leamed Single Judge of this Court. (2) Facts brieUy stated are that appellant Mithilesh Kumar was working as Sub-Inspector in the Central Reserve Police Force (CRPF) in between 1988 and 1993. In the year 1993, he was posted as Assistant Officer (Security) by M/s. Tata Steel Limited (Cement Division) in its Plant at Sonadih which was subsequently takenover by M/s. Lafarge India Ltd., with effect from 01.11.1999. Therefore, the services of appellant/employee Mithilesh Kuinar were also transferred to the said Company. (3) Mithilesh Kumar wa,s dismissed from service, after a departmental enquiry by order dated 16.4.2001 for a proved misconduct of attempt to molest a neighbour's minor girl, aged about 11-12 years on the common terrace of his official quarter in the colony of the Employer M/s. Lafarge India Limited. W.A.No.56/2007 & WA.No. 158/2007 (4) After the said disinissal, Mithilesh Kuniar filed an application u/s 31(3) read with section 106 of M.P. Industrial Relations Act (for short the Acf) before the Laboiu- Court challenging his dismissal on various grounds and prayed for reinstatement with back-wages. (5) The Company filed its written statement pleading that Mithilesh Kuinar was not an employee as defined u/s 213 of the said Act. He was working in managerial/supervisory capacity in the category of Sub- Inspector and was drawing a salary of Rs.13000/- p.m. The Company also took other available defences and prayed for dismissal of the said application filed before the Labour Court. (6) The Labour Court vide its orders dated 19.1.2005 reinstated the appellant Mithilesh Kumar without back-wages. Against the said order, the employer preferred an appeal u/s 65 of the C.G. Industrial Relations Act challenging the order of reinstatement before the Industi^al Court at Raipur being Appeal No.35/CGIR Act/A-II/2005. Appellant Mithilesh Kumar also filed an appeal before the Industrial Court, Raipur, being Appeal No.38/CGIR Act/A-II/2005 challenging the order of denial of back-wages. (7) The said appeals were disposed of by Order dated 26.9.2005. The industrial Court held that the alleged misconduct committed by the employee has not been found proved; even otherwise the alleged misconduct does not involve ^ZS-2^ W.A.No.56/2007 & W.A.No. 158/2007 moral turpitude as to disturb the industrial discipline and while confinning the finding of labour Court with regard to holding of departmental enquiry as bad, the industrial Court allowed the appeal of the employer Company directing that the employer should either reinstate the employee on the same post or it should pay Rs.2 lakhs as compensation in lieu of reinstatement to the employment. The appeal of the employee for grant of back wages was dismissed. (8) Being aggrieved with the order passed by the Industrial Court, Petitioner Mithilesh Kumar ffled W.P.No.5502/2005 challenging the appellate order of Industrial Court and for payment of back-wages. (9) The leamed single Judge disposed of the writ petition with a direction to reinstate the appellant/petitioner without back- wages. The leamed single Judge also held that the Industi-ial Court by granting option to the employee has committed error as no reasons have been assigned for exercise of option to pay a sum of Rs.2 lakhs in lieu of reinstatement. The Court further held that looking to the span of sendce period of the employee, grant of Rs.2 lakhs would not be sufficient to make both the ends meet. (10) Mr. N.K. Vyas, leamed counsel appearing on behalf of the employer Company would submit that relationship between the employer and employee is based upon an element of trust and .confidence between them, therefore, it would not be proper to ^^^ W.A.No.56/2007 & W.A.No.158/2007 reinstate the employee in sendces because the employer had lost faith on him and the order of compensation in lieu of reinstatement was just and proper. He relied upon the decisions of the Apex Court rendered in the matters of M/s. Shriram Refriaeration Industries -Vs- Hon'ble Addt Industrial Tribunal-cunt-Labour Court, Huderabad & pthers. 2001 LLR 1117 and Mancifiement of Aurofood Pvt. Ltd.. Vs. S. Raiulu 2008AIR S.C.W. 2775. (11) On the other hand, the petitioner opposed these arguments and prayed for back wages refused by the writ Court. (12) We have heard Mr. Vyas on behalf of the employer and Mr. Mithilesh Kumar (petitioner/appellant, who appeared in person). (13) Firstly we may quote that the order of leamed Single Judge saying that the industi^al Court by granting option to the employer has committed error as no reasons have been assigned for exercise of option to pay a sum of Rs.2 lakhs in lieu of reinstatement is not correct. A perusal of the order of the Industrial Court, vide Para-12, would show that the Industrial Court has assigned reason for giving such option to the employer. The Industrial Court observed that <<No doubt, the misconduct of outraging the modesty of neighbour's daughter - a minor girl has not been proved against the employee Mithilesh Kumar, hence his dismissal from service for the said 5S2-^ \Ji W.A.No.56/2007 & W.A.No.158/2007 misconduct cannot be justified. However, the fact remains that if the employee continues in service, he will always has to face disdainful looks of his fellow workers as well as of management. This is bound to have miserable circumstance. In such a situation, neither the employee can give optimum out-put nor the manageinent can trust him, especially when he has to discharge duties of security of life of co-employees and property of the employer." The Industrial Court has also relied on a decision of the Apex Court rendered in the matter of O.P. Bhandari Vs. Indian Tourism Dev. CorDoration Ltd. and ofhers. 2987M.P.L.S.J?.. 165 and then has formed the opinion that present was a fit case to grant compensation in lieu of reinstatement. The Industrial Court has further taken into account the length of service and the salary which the employee was drawing, and then the amount of Rs.2 lakhs was determined as the amount of compensation by fhe Industrial Court. Therefore, setting aside the said order of payment of compensation by leamed Single Judge on the ground that it was passed without assigning any reason does not appear to be correct. (14) In the matter of M/s Shriram Refrigeration Industries (Supra), the employee was a security guard and a plea was raised by the Management that they had lost all confidence in the employee. Since fhe element of confidence is necessary in so far as a security guard is concemed, the Supreme Court issued notice of the Special Leave Petition limited to the ^^$~ ^•^£ W.A.No.56/2007 & W.A.No.158/2007 question of compensation to the workman in lieu of his reinstatement and thereafter the matter was finally disposed of by flxing a sum of Rs.2,25,000/- as amount of compensation in lieu of reinstatement. (15) In the matter of Management of Aurofood Pvt. Ltd. -vs- S. Rajulu (supra), the employee was a Packer who misbehaved with his supendsor and another higher offlcial by using foul and filthy language and saying to one of them that if he made a report against him to the management, he would break his legs. There were also charges that he had misbehaved with one Mrs. Sasirekha and used filthy language against her. In the domestic enquiry, the charges were found proved and he was dismissed from service. The Labour Court upheld the finding. However, the High Court in Writ Petition directed for reinstatement with full back-wages and an appeal filed before the Division Bench was also dismissed. The Supreme Court found that the workman has been out of emplo5mient since the year 1981 and despite succeeding before the single Bench of the High Court on 09th Febraary 2001, he has not yet been reinstated in service because of the interim order, therefore, on account of situation now existed, it would be appropriate that the employee be given a compensation package rather than an order of reinstatement and ultimately by observing that consequent upon the bitter relations between the parties and as even the High Court has found the charges proved though trivial' and the fact that the respondent has not been on duty W.A.No.56/2007 & W.A.No.158/2007 with the appellant management since the year, 1981, it would be inappropriate to foist a cantankerous and abrasive workman on it, the appeal was dismissed but it was directed that instead of reinstatement, the employee would be entitled to the payment of Rs.IO lakhs as compensation as full and final settlement with respect to his entire claim. (16) If we apply the above principles in the facts and circumstances of the present case, it would appear that though the charges of misconduct were not proved against the employee but the charges were of serious nature, as the allegations were with regard to molestation of a neighbour's minor girl, aged about 1 1 years; and thus an element of question of trust and confidence is involved in the matter. If an employee particularly the employee of security department is leveled with such charges, he loses the faith and confidence of employer and in such situation, on the above principles, enunciated by the Apex Court in the said matters, we deem it proper to direct the employer to pay appropriate compensation to the employee in lieu of his reinstatement, setting aside the direction of the learned single Judge in this regard. (17) Now the question arises that what amount of compensation would be appropriate in such a case. It has been observed by the leamed single Judge that the petitioner has worked for 9 years and has still 21 years left. As per the pleadings of Para-1 of the writ appeal filed by the employer, the \petitioner/employee was getting a salary of Rs.9750/- per 22.7 W.A.No.56/2007 & W.A.No. 158/2007 mpnth, Transportation Allowance Rs.800/-, p.m., Special Allowance Rs.3,775/- p.m., Leave Trave Allowance Rs.9,750/- per annum. Thus the petitioner/employee was getting a salary of Rs.13,875/- per month. Therefore, considering the overall scenario as also the period for which he has not worked and the period which he would now be getting in case of his reinstatement, a sum of Rs. 10,00,OOO/- (ten lakhs) would be appropriate amount of compensation for the appellant. (18) In view of the above discussions, the impugned order passed by the leamed single Judge is set aside; the appeal filed by the employer Lafarge India Limited i.e., W.A No.56/2007 is partly allowed and the appeal filed by the employee i.e. W.A.No. 158/2007 is dismissed. It is directed that the employer Lafarge India Limited shall pay to the appellant/employee Mithilesh Kumar a sum of Rs.IO lakhs within a period of 6 (six) months from today as compensation as full and final settlement with respect to his entire claim. (18) There will be no order as to costs. r2_^-g Sd/- Chief Justice Sd/- Sunil Kumar Sinha Judge Rao