^.F-^_ HIGHCOURT OF CHHATTISGARH,^ILASPUR D.B. Hon'ble Shri Raieev Gunta. C.J^& Hon'bleShri SunU Kuaaar Sinha, J. Writ Anneal No.56 of2007 M/s. Lafarge India Ltd Versus Mifhilesh Kumar and two others Writ Apoeal No.158 of2007 Mithilesh Kumar Versus M/s. Lafarge India Ud., and two others sawaa. JUDGMENT For consid^ration Sd/r Sunil Kumar Sinha Judge HON'BLE SHRI JUSTICE RAJEEV GUPTA J Sd/- ^CbiefJustice Post for'Uudgment:/^ /03/2009 . .r': ' Sd/- \ Sunii KumarSinha Judge HIGH COURT OF CHHAmSGARH. BILASPUR D.B. HON'BLB SHRI RAJEEV GUPTA. C.J. & HONB'LE SHRISUNIL KUMAR SINHA. J. WRIT APPEALNo.56of2007 APPELLANT 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 WRIT APPEAL No. 158 of 2007 APPELLANT RESPONDENT *» 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 Presulent, Sonadih Cement Plant, Sonadih, Post Raseda, Via Baloda Bazar, Distt. Raipur (C.G). 2 President, State Industrial Court, Mahanadikhand, Raipur (C.G). 3 Labour Gourt, Raipur W.A.No.56/2007 &W,A.NQj58/20Q7 Appearance: Mr. N.K. Vyas, counsel for M/s. Lafarge India Ltd. Mr. Mithilesh Kumar appears in person. "••-1 k.. JUDGMENT (/^Z.03.2009) The followingjudgment ofthe Court was delivered by Sunil Kuinar SinhaL»T, (1) These appeals have been directed against the order dated 05th of February, 2007, passed in Writ Petition No.5502/2005 by the learned Single Judge ofthis Court. (2) Pacts briefly stated are that appellant Mifhilesh 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 taken over by M/s. Lafarge India Ltd., with effect from 01.11.1999. Therefore, the serpices of appellant/employee Mithilesh Kumar were also transferred to the said Company. "» (3) Mithilesh Kumar wa,s dismissed from service, after a departmental enquiiy by order dated 16.4.2001 for a proved misconduet^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. u W.A.No.56/2007 & W.A.No. 158/2007 (4) After the said dismissal, Mithilesh Kumar filed an appUcation u/s 31(3) read with section 106 of M.P. Industrial Relations Act (for short fhe Acf) before the Labour Court challenging his dismissal on various grounds and prayed for reinstatement with back-wages. (5) The Company filed its written statement pleading that Mithilesh Kumar was not an employee as defined u/s 213 ofthe said Act. He was working in managerial/supendsory 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 appeUant 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 Industrial 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 ofback-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 W.A.No.56/2007 & W.A.No. 158/2007 moral turpitude as to disturb the industrial discipline and while confirming the fmdmg 6f 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 payRs.2 lakhs as compensation in lieu of reinstatement to the eniplo3Tnent. 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 fhe appellant/petitioner without back- wages. The leamed single Judge also held that the Indusfa-ial Court by granfcing 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 service period of the employee, grant of Rs.2 lakhs would not be sufGcient to make both the Jft ends meet. (10) Mr. N.K. Vyas, leamed counsel appearing on behalf ofthe T . 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 'f.'-., i Rr~. .'.E'S ^.atl 'T W.A.No.56/2007 & W.A.No.158/2007 reinstate the employee in services because the employer had lost faith on hiin and the order of compensation in lieu of reinstateinent was just and proper. He relied upon the decisions of the Apex Court rendered iri the matters of WB. Shrirmn Refriseration Industries _ -Vs- Hon'ble Addt Industrial Trlbunal-cum-Leibour Court, Hyderabad & pthers, 2001JEJ[«R 11J7_ and SSanagement pfAurofoodPvt. Ltd..Vs. S.Rctiulu 2008 AJRS.C.W. 2775. (11) On the other hand, the petitipner 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 Kz-imar (petitioner/appeUant, who appeared in person). (13) Firstly we may quote that the order of leamed Single Judge saying that the industrial Court by granting option to the employer has committed error as no reasons have been assigned for exercise ofoption to pay a sum ofRs.2 lakhs in lieu of reinstatement is not correet. A perusal of the order of the IndTistrial Cotirt, vide Para-12, would show that the Industrial Court has assigned reason for giving such option to the employer. Thelndustrial Court observed that'°No doubt, the misconduct of outraging the modesty of neighbour's daughter - a rainor girl has hot been proved against the employee Mithilesh Kumar, hence his dismissal from service for the sai'd "•"I ..\.^ W.A.No.56/2007 & W.A.No. 158/2007 misconduct cannot be justified. Hpwever, 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 fhe employee can give optimum -out-put nor the management can trust him, especially when he has to discharge duties of security oflife ofco-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. Corporation Ltd. and others, 1987 M.P.L.S.R.. 165 and then has formed the bpinion that present was a fit case to grant compensation in Ueu 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 dmount of compensation by the 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. p.4) In the matter of M/s Shriram Refngeration 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 the element of confidence is necessary in so far as a security guard is concemed, the Supreme Court issue^ notice of the Specied Leave Petition limited to the ^ .>.-:*. s'v WA.No.56/2007 & W,A.No.l58/2007 question of compensation to the workman in lieu of his reinstatement and thereafter the matter was finally disposed of by fixing 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 supervisor and another higher official by using foul and filthy language and saying to one of them fhat if he made a report against him to the management, he would breakliis 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 CoLtrt 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 Coiirt found that the workman has been out of employment since the year 1981 and despite succeedmg before fhe single Bench ofthe High Court on 09th February 2001, he has not yet been reinstated in service because of fhe 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 arid ultimately by obsendng fhat consequent upon the bitter relations betcveen the parties and as even the High Court has found the charges proved though ^trivial-' ahd the fact that the respondent has not been on duty ""«! <)-"ft ?a'^ ..."':" 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 reinstatenient, the employee would be entitled to the payment ofRs.lOlakhs 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 neighboi.ir'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 fhe employee of security department is leveled with such charges, he loses the faith andconfidence of employer and in such situation, on the above principles, enunciated by fhe Apex Couft in the said matters, we deem it proper to direct the employer to pay appropriate compensation to the employee in Ueu 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 fhe writ appeal filed by the employer, the petitioner/employee was getting a satary pf Rs.9750/- per '•••••< W.A.No.56/2007 & W.A.No.158/2007 month, Transportation Allowance Rs.800/-, p.m., Special Allowance Rs.3,775/- p.m., Leave Trave AUowance Rs.9,750/- per annum. Thus the petitioner/employee was getting a salary of Rs.13,875/- per mbnth. 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.10,00,000/- (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 shaU 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 wiU be no order as to costs. Sd/- ChiefJustice Sd/- SunilKumarSinha Judge Rao