Case: M/S. Sylvester &amp; Company Vs. Their Workman Through Transport &amp; Dock Workers' Union &amp; Another

that the workman was indulging in anti employer activities and was conducting himself in such manner as would cause loss, fraud, cheating and insubordination in the management and affairs of the company. The Employer submits that the workman was given ample opportunities for improving himself in his conduct but instead of improving himself in the discharge of his duties, the workman became more careless and negligent and continued his activities which have caused harm to the financial funds and reputation of the company. ... The employer has listed number of instances whether of misconduct, negligence or carelessness on the part of the workman in the discharge of his duties. The employer submits that due to this misconduct, carelessness and continued arrogant attitude of the workmen the employer lost confidence in him and came to the conclusion that it was not in the interest of the company to continue his services as the continuance of his services in the company would have adversely affected the reputation of the company and would have caused demoralisation effect on other workmen of the company. 22. At this stage, it would be material to note that in para 6 of the Written Statement, the Appellant specifically pleaded that it was ready and willing to establish the allegations of misconduct, dereliction of duties, fraud, misappropriation and misuse of funds before the Tribunal. The Tribunal held that if the termination was an act of discharge simpliciter it constituted retrenchment within the meaning of Section 2(oo) and was invalid for want of compliance with the requirement of Section 25F. Alternatively, if the termination was punitive, it was invalid on the ground that no disciplinary enquiry was held. 23. Now a case where no disciplinary enquiry has been held, stands on the same footing as one where the enquiry is held to be defective. As held by the Supreme Court in Kamal Kishore Laxmans case (supra), it would be open to the management to justify its conduct before the Industrial Tribunal in a case where a disciplinary enquiry has not preceded the act of termination. The employer having sought an opportunity of leading evidence to substantiate the charge of misconduct, such an opportunity ought to have been afforded to the employer by the Tribunal. 24. The judgment of the Learned Single Judge notes the submission of the employer that in view of the decision of the Supreme Court in Kamal Kishore Laxman (supra), the Tribunal should have given an opportunity to the management to lead evidence to prove the misconduct and there should be a remand for that purpose. We are, with respect, of the view that the Learned Single Judge was in error in not accepting this plea of the employer and in declining to remand the proceedings back to the Tribunal. In the concluding part of the judgment, the Learned Single Judge held that the management had sought the permission of the Labour Court only to prove that it had acted bona fide and that it had not applied to the Labour Court to prove the charges. This, with great respect, would not be a correct reading of the request made by the employer in the Written Statement which shows that the employer was ready and willing to lead evidence to establish the charge of misconduct against the workman. There is, therefore, merit in the submission that has been urged on behalf of the management. The Learned Single Judge ought not to have reappreciated such evidence as there was on the record of the case, but ought to have remanded the proceedings back to the Industrial Tribunal. For one thing, there is no appreciation of the evidence in the Part II award of the Industrial Tribunal. Appreciation of evidence lies within the jurisdiction of the Tribunal. Moreover, the Industrial Tribunal failed to furnish an opportunity to the employer to specifically lead evidence to substantiate the charge of misconduct. 25. In these circumstances, we are of the view that the appeal would have to be allowed in part. We confirm the finding of the Learned Single Judge that the reference before the Tribunal was validly made by the Central Government since the Central Government is the appropriate Government within the meaning of section 2(a)(i) of the Industrial Disputes Act, 1947. We also hold that the termination of service in the present case was not an act of discharge simpliciter but was a punitive termination for misconduct. No disciplinary enquiry was held. The employer having made a request to that effect in the Written Statement, he would be entitled to an opportunity to lead evidence before the Industrial Tribunal to substantiate the charge of misconduct. To the aforesaid extent, we quash and set aside the Judgment and Order of the Learned Single Judge and the Part-II award of the Industrial Tribunal in so far as it awards reinstatement with back wages and continuity of service. We remand the proceedings back to the Industrial Tribunal which shall permit the employer to lead evidence to substantiate the alleged misconduct. The workman would, it is needless to add, be at liberty to adduce evidence in rebuttal. Having regard to the fact that the dispute in the present case has arisen as far back as in 1986, we direct that the proceedings on remand shall be concluded by the Industrial Tribunal expeditiously and preferably within a period of six months from the date on which a certified copy of this order is produced on the record of the Tribunal by either of the parties. There shall be an order accordingly. 26. Before concluding, we must record that during the course of the hearing of these proceedings, Counsel appearing on behalf of the Employer and the workman made several efforts to resolve the dispute by persuading the parties to enter into a settlement. Counsel appearing on behalf of the workman has stated before the Court that the workman has not been willing to accept the offer of settlement that was made by the employer.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]The definition in Section 2(j) excluded an office of a mine which was separately defined by Section 2(k). Hence, the Supreme Court was of the view that the head office wherever it may be situated cannot be said to do mining operations within the meaning of the definition. Hence, a dispute between the employees engaged at the Head Office at Calcutta and the employer was not an industrial dispute concerning a mineWe are unable to conceive of any rational challenge to the bona fides of the employer in making the impugned order in the above background. The complainant, it may be remembered, had to deal withs in the performance of his duties and if the appellant was not fully satisfied beyond suspicion about his general conduct and behaviour while dealing with them it cannot be said that loss of confidence was not bona fide. Once bona fide loss of confidence is affirmed the impugned order must be considered to be immune from challenge. The opinion formed by the employer about the suitability of his employee for the job assigned to him even though erroneous, if bona fide, is in our opinion final and not subject to review by the industrial adjudicator21. In the present case, following the law laid down by the Supreme Court, we are of the view that the letter of termination exfacie demonstrates that the termination of service was founded on allegations of misconduct against the workman. Indeed, theWritten Statement by the employer before the Industrial Tribunal showed that the submission of the employer was that the workman was being terminated from service on grounds of misconductWe are, with respect, of the view that the Learned Single Judge was in error in not accepting this plea of the employer and in declining to remand the proceedings back to the Tribunal. In the concluding part of the judgment, the Learned Single Judge held that the management had sought the permission of the Labour Court only to prove that it had acted bona fide and that it had not applied to the Labour Court to prove the charges. This, with great respect, would not be a correct reading of the request made by the employer in the Written Statement which shows that the employer was ready and willing to lead evidence to establish the charge of misconduct against the workman. There is, therefore, merit in the submission that has been urged on behalf of the management. The Learned Single Judge ought not to have reappreciated such evidence as there was on the record of the case, but ought to have remanded the proceedings back to the Industrial Tribunal. For one thing, there is no appreciation of the evidence in the Part II award of the Industrial Tribunal. Appreciation of evidence lies within the jurisdiction of the Tribunal. Moreover, the Industrial Tribunal failed to furnish an opportunity to the employer to specifically lead evidence to substantiate the charge of misconduct25. In these circumstances, we are of the view that the appeal would have to be allowed in part. We confirm the finding of the Learned Single Judge that the reference before the Tribunal was validly made by the Central Government since the Central Government is the appropriate Government within the meaning of section 2(a)(i) of the Industrial Disputes Act, 1947. We also hold that the termination of service in the present case was not an act of discharge simpliciter but was a punitive termination for misconduct. No disciplinary enquiry was held. The employer having made a request to that effect in the Written Statement, he would be entitled to an opportunity to lead evidence before the Industrial Tribunal to substantiate the charge of misconduct. To the aforesaid extent, we quash and set aside the Judgment and Order of the Learned Single Judge and theI award of the Industrial Tribunal in so far as it awards reinstatement with back wages and continuity of service. We remand the proceedings back to the Industrial Tribunal which shall permit the employer to lead evidence to substantiate the alleged misconduct. The workman would, it is needless to add, be at liberty to adduce evidence in rebuttal. Having regard to the fact that the dispute in the present case has arisen as far back as in 1986, we direct that the proceedings on remand shall be concluded by the Industrial Tribunal expeditiously and preferably within a period of six months from the date on which a certified copy of this order is produced on the record of the Tribunal by either of the parties. There shall be an order accordingly26. Before concluding, we must record that during the course of the hearing of these proceedings, Counsel appearing on behalf of the Employer and the workman made several efforts to resolve the dispute by persuading the parties to enter into asettlement. Counsel appearing on behalf of the workman has stated before the Court that the workman has not been willing to accept the offer of settlement that was made by the employer.