=1= IN IN IN THE THE THE HIGH COURT OF JUDICATURE AT BOMBAY HIGH COURT OF JUDICATURE AT BOMBAY HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORDINARY ORDINARY ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION APPEAL APPEAL APPEAL NO.26 OF 2003 NO.26 OF 2003 NO.26 OF 2003 IN IN IN WRIT WRIT WRIT PETITION PETITION PETITION NO.2227 OF 1995 NO.2227 OF 1995 NO.2227 OF 1995 The Under Secretary, Bombay Labour Union and others ...Appellants v/s Western India Automobile Association and anr. ...Respondents Mr N.M. Ganguli for Appellants. Mr R.J. Cama i/b M/s Sanjay Udeshi and Co. for Respondents. CORAM CORAM CORAM : D.K. DESHMUKH AND A.A. SAYED JJ. : D.K. DESHMUKH AND A.A. SAYED JJ. : D.K. DESHMUKH AND A.A. SAYED JJ. DATE DATE DATE : 12TH FEBRUARY 2009 12TH FEBRUARY 2009 12TH FEBRUARY 2009 =2= P.C. :- 1. By this appeal, the appellants challenge the order passed by learned Single Judge of this Court in writ petition No.2227 of 1995 dated 4th/5th September 2002. The facts that are material and relevant for deciding this appeal are that the Deputy Commissioner of Labour made a reference under the Industrial Disputes Act 1947 referring the dispute between the employer - respondents and the workmen viz. Mr K.V. Nair and Mr P.T. Bangera to the Industrial Court. After the reference was made, statement of claim was filed on behalf of the Trade Union - Bombay labour Union. In the statement of claim it was claimed that the concerned workmen were working with the employer for the last several years till their services were terminated on 30th November 1984. In the order terminating the services, it was stated that the reason for termination of their services is that the employer has lost confidence in them. The workmen therefore called upon the employer to disclose the grounds for saying that there is loss of confidence. The grounds were not disclosed by the employer. Ultimately, the grounds were disclosed by the employer during the conciliation proceedings. The employer stated that the reason that =3= weighed with the employer for terminating the services of the workmen for loss of confidence was domestic enquiry that was held against the workmen on the allegation of serious misconduct. The employer also filed its written statement before the Labour Court. On the basis of the rival pleadings, the Labour Court framed following issues :- "1) Whether the termination of service of two workmen was by way of discharge simpliciter as a result of loss of confidence ? 2) Whether the termination was punitive ? 3) If yes, whether the enquiry held against the workmen was fair and proper ?" . Before the Labour Court, it was a stand taken by the employer that in case the Labour Court comes to the conclusion that the termination of the services of the workmen is punitive, then the employer should be given an opportunity to lead evidence to prove the misconduct. Pursuant to that, the employer produced before the Labour Court the papers of the domestic enquiry. The Labour Court decided the reference by its award dated 6th July 1995. The Labour Court held that =4= the termination of services on the ground of loss of confidence is punitive. Then the Labour Court proceeded to enquire whether the domestic enquiry held against the workmen was fair and proper. The Labour Court came to the conclusion that the domestic enquiry held against the workmen cannot be said to be fair and proper and therefore the issues were answered accordingly. The employer, feeling aggrieved by these findings, filed writ petition No.2227 of 1995 in this Court which was decided by the learned Single Judge of this Court by order dated 4th/5th September 2002. The learned Single Judge confirmed the findings recorded by the Labour Court that the termination is punitive. The learned Single Judge however reversed the finding recorded by the Labour Court that the enquiry held against the two workmen was not fair and proper. It is the order of the learned Single Judge setting aside the finding of the Labour Court that the domestic enquiry was not fair and proper which is challenged in this appeal. 2. The learned counsel appearing for appellant - Union submits that the learned Single Judge could not have disturbed the finding recorded by the Labour Court. Relying on two judgments of the Supreme Court, one in the case of Sur Enamel and Stamping Works Ltd. v/s The Workmen, reported in 1963(7) FLR 236 and the other in the case of Chandrama Tewari v/s Union of India, =5= reported in AIR 1988 SC 117, the learned counsel submits that non-supply of copy of the report of Mr Rele, Enquiry Officer was fatal because heavy reliance was placed on that report and therefore the learned Single Judge was not justified in holding that non-supply of copy of that report to the workmen does not vitiate the enquiry. The learned counsel also submitted that the Labour Court was not justified in going into the question as to the validity or otherwise of the enquiry because it was not the case of the employer that they have held enquiry on the allegation of loss of confidence. We have heard the learned counsel appearing for employer and we have also gone through the record. It is clear that in the termination order, there was no reason given for loss of confidence though loss of confidence was the reason cited for termination. During the conciliation proceedings however, the employer disclosed that the conclusions recorded on the conclusion of the domestic enquiry were the reasons for the employer losing confidence in the workmen and therefore in view of the judgment of the Supreme Court in the case of Kamal Kishore Lakshman v/s Management of M/s Pan American World Airways Inc. and others, reported in AIR 1987 SC 229, it was open to the employer to lead evidence and prove the misconduct. The observations of the Supreme Court in paragraph 10 of the said judgment are relevant which read thus :- =6= "10. Retrenchment as defined in S.2(oo) of the Industrial Disputes Act and as held by this Court in several cases means termination of service for any reason whatsoever otherwise than punishment inflicted by way of disciplinary action and the other exceptions indicated therein. In the present case though no formal domestic inquiry had been held, the employer took the stand in the adjudication that termination was grounded upon loss of confidence and substantiated that allegation by leading evidence. The legal position firmly established is that if there has been no appropriate domestic enquiry or no enquiry at all before disciplinary action is taken, it is open to the employer to ask for such opportunity in the course of adjudication. In the facts of the present case, the order of separation grounded upon loss of confidence has been justified before the Labour Court and the Labour Court has come to that conclusion upon assessment of the evidence." . It is thus clear that before the workmen approached the Labour Court, they knew that the foundation of the order terminating their services is =7= the domestic enquiry and therefore, in our opinion, the Labour Court was justified in granting an opportunity to the employer to prove the misconduct. The charges that were levelled against the workmen in the domestic enquiry were extremely grave and serious and therefore, the moment it is held that those charges have been proved, resultant loss of confidence by the employer in the workmen was a natural consequence. In our opinion, therefore, after recording the finding that termination was punitive and once the employer relied on departmental enquiry, the Labour Court was justified in going into the question whether enquiry was fair and proper. Perusal of the order of the Labour Court shows that the Labour Court relied on two grounds, one ground was non-supply of report submitted by Mr Rele on which the Enquiry Officer had relied. The learned Single Judge has held that non-supply of report of Mr Rele to the delinquents - workmen was not fatal because it is an admitted position that full inspection of that report to the representatives of the workmen was given and they were also permitted to take notes and after that Mr Rele was cross-examination by the representatives. We find no fault with this finding because there is nothing on record of the appeal to show that permitting inspection of the report and permitting the representatives to take notes thereof was not enough compliance of principles of natural justice. When rules of natural justice are not =8= incorporated in the statute and when they are not complied with, proof of prejudice has to be given before an action taken in breach of principles of natural justice is held to be bad The second reason that weighed with the Labour Court for holding that the enquiry was not fair and proper was - "Further considering the nature of the incident and the allegations made against the workmen it clearly appears that the Form ’A’ was another important document which ought to have been produced as asked for by the workmen. Non-production of the form despite request also was in violation of the principles of natural justice as a fair opportunity was refused." This ground has been discussed by the learned Single Judge and he has held that the Labour Court was not justified in holding that the domestic enquiry is not fair and proper on this ground because this ground was not raised in the statement of claim. We asked the learned counsel appearing for respondents to show us from the record as to when and at what juncture, production of Form ’A’ was called for and it was refused. The learned counsel was not in a position to point out to us from the record that the employer was asked to produce Form ’A’ and they failed to produce it. In our opinion, therefore, no fault can be found with the finding of the learned Single Judge holding that on this count also the enquiry cannot be said to be not fair and proper. In our opinion, therefore, no fault =9= can be found with the order of the learned Single Judge. In the result therefore, appeal fails and is dismissed with no order as to costs. Notice of motion No.146 of 2003 is disposed off. . Parties to act on the copy of this order duly authenticated by the Associate / Private Secretary of the Court. . Certified copy is expedited. ( D.K. DESHMUKH J.) ( A.A. SAYED J.)