Case: L. Michael &amp; Anr Vs. M/S. Johnston Pumps India Ltd

2. The backdrop.The facts and circumstances become decisive of the fate of the case even where the law is simplistic or fair in its face. Here, what are the events end environments of employment reading to the worker being given the boot ? Is the order an innocent and therefore, legal quit notice sanctioned by the Standing Orders which does not stigmatise the worker but merely bids him good-bye ? Or is it a sinister intent to punish masked as a guideless order based on loss of confidence, an alibi which on a certain reading of this Courts rulings, is also a protective armour against judicial probe and setting aside ?3. Michael, a permanent employee of proved efficiency and six years standing, was appreciatively given two merit increments. But a letter of September 2, 1970 told him off service giving him one months notice-pay discharging him without damning, as distinguished from dismissing him for misconduct.4. The rival versions illumine the factual confrontation, the resolution of which is no easy legal essay. The worker, Michael, through his Union, protested against the sack order as victimisation of a Trade Union activist but the Management was heedless, conciliation was fruitless and the dispute between the Union and the Management was eventually referred by the Delhi Administration to the Labour Court for adjudication. The reference ran thus:"Whether the termination of services of Shri L. Michael is illegal and/or unjustified and, if so, to what relief is he entitled and what directions are necessary in this respect ?"Both sides stated their cases in their pleadings and the true nature of the conflict emerges from them.5. The story set out by the employee in his statement before the Labour Court was that although he was efficient, appreciated and awarded merit increments, the Management was antagonised by his active part in the formation of an Employees Union, especially because oral warnings by the Regional Manager against his Unionist proclivity was ignored. Michael became the treasurer of the Union. This Union chapter claimed its price, for the Management quietly terminated his services by a simple letter which reads:"We are sorry to advise that your services are no longer required by the Company. As such, this letter may be treated as a notice for the termination of your services with immediate effect. As for the terms of your employment letter, on termination of services you will be paid one months salary extra. You may please call on the undersigned and have your accounts settled."This act, claims the worker, was in flagrant violation of elementary principles of natural justice without assigning any reason and without giving him an opportunity to defend himself. This, in his statement, he challenged the termination as wrongful, male fide, illegal, and an act of victimisation. The counter case of the management set up in its statement, as is apparent from the discharge order is that no dismissal is involved, no enquiry necessary and no illegality invalidates.6. The management claimed that the alleged annoyance with the workman for union activity was a concoction in self-defence, as the Management had not even knowledge of the formation of the Union. This latter limb of the plea is a little too naive. The warning by the Regional Manager was denied and the reference to trade union activities by the worker was more to create a ground for the workmens claim and has been levelled as a matter of habit and routine. The basic plea of the management was that the action being a simple termination without a sting, the process and consequence of a disciplinary action were not attracted.7. The Management, however, took the Court into confidence to explain why the employee was discharged. He was employed a Receipt and Despatch Clerk in the office upto 10-3-l970. As an insider with access to office correspondence the employee misused his position by passing on very important and secret information about the affairs of the company to certain outsiders. He was consequentially shifted to the post of clerk handling posting of bills and collection of payments but the workman, although denied direct access to correspondence in the Receipt and Despatch section made attempt to elicit information from the section with a view to pass it on to outsiders. The upshot of these activities of which the management was alerted was a loss of confidence in the employee. This unreliability was visited with non-injurious termination of service by a bona fide order. Therefore, the action was claimed to be legal and immune to judicial interference.8. Two socially vital factors must inform the understanding and application of Industrial jurisprudence. The first is the constitutional mandate of Part IV obligating the State to make Provision for securing just and humane conditions of work,. Security of employment is the first requisite of a workers life. The second equally axiomatic consideration is that a worker who willfully or anti-socially holds up the wheels of production or undermines the success of the business is a high risk and deserves, in industrial interest, to be removed without tears. Legislation and judicial interpretation have woven the legal fabric. We have to see whether on the facts of the present case what the relevant law is, whether it has been applied by the Labour Court rightly and whether the appellant has merit on his side, judged by the social conscience and judicial construction of the law in this branch of discharge simpliciter versus disguised dismissal.9. A few salient facts need emphasis before the principles of law are applied. The workman in his statement stressed the case of malus animus due to his union activities, although he did vaguely refer to the termination of service as wrongful and male fide. From this it cannot be argued, as the Management sought to make out, that his denial of leaking out office secrets was an afterthought pleaded only in the rejoinder and therefore liable to be discredited. How could the worker have a hunch about the managements undisclosed ground for dismissal ? When the latter stated the reason which prompted this action for the first time before the Labour Court, the workman in his reply refuted this case. It is noteworthy that there is no speck of record or any hint of written material in support of the story that the management had credible information of the appellant betraying sensitive secrets of business. The letters sent by the Union and the worker requesting for reinstatement were being ignored. The management could well have disclosed their suspicion in reply and told the Union and the workman that they resorted to an innocuous discharge to avoid punitive trauma. The management could have divulged in writing to the Conciliation Officer their legitimate fears about the workers integrity and their considerate action of simple termination. This too they failed to do. In their written statement in Court the Management asserted for the first time that the employee was an intractable smuggler of inside information. The statement winds up with the legalistic plea : the management had, in the meanwhile lost confidence in the workman. This culminating collapse of trust is alleged to be the primary cause for the discharge from employment.10. At the time of the evidence, M. W.1, a former Regional Manager swore that the workman joined as a pump operator in 1963, was promoted as clerk in 1967, that the suspicion of disloyal communication arose for the first time in 1968 and yet thereafter he was giventwo increments extra in addition to normal increments. He was a hard working man and has a very good memory but the suspicion was there.11. These are the facts and the evidence in the case and it has been fairly conceded before the Labour Court by the Managements representative that were the action regarded as punitive it was bad, there having been no enquiry whatever with liberty to the employee to meet the charge. But the single slender stand on which the discharge was suspended was loss of confidence of the management in the employee. The Labour Court argued :"According to the management, as there was no proof with it for this suspicion it could not proceed against him departmentally and, in the circumstances, it was considered desirable to terminate his services by passing an order of discharge without any stigma attached to it."While on all hands it was agreed that the employee was efficient, the Court took the view that the motivation for the termination was the suspicion which lurked in the mind of the Regional Manager that information regarding tenders was being passed on by the workman.

Reasoning:
17. We have gone into this decision at length to disabuse the impression that a new defence mechanism to protect termination of service simpliciter, viz, loss of confidence, had been propounded in this ruling. We do not agree that any such innovation has beenIndia Corporation Case (l972) 3 SCR 606   = (AIR 1972 SC 1343  ) may seem to support the no confidence doctrine but a closer study contradicts any such view. Of course, Shri Tarkunde, Counsel for the management, placed great reliance on this ruling. Needless to say, this Court recognised the power of the Tribunal to go behind the form of the order, look at the substance and set aside what may masquerade as termination simpliciter if in reality it cloaked a dismissal for misconduct as a colourable exercise of power by the management. The Court repeated that an Industrial employer cannot hire and fire his workmen on the basis of an unfettered right under the contract of employment. On the facts of the Air India case the Court concluded that it was not possible to hold this order to be based on any conceivable misconduct. Special reference was made to the grave suspicion regarding the complainants private conduct with air-hostesses. Where no misconduct spurs the action and a delicate unsuitability for the job vis a vis the young women in employment in the same firm is strongly suspected, resort to termination simpliciter cannot be critised as a male fide machination. In that background, the action was held to be bona fide and the overall unsuitability led to a loss of confidence in the employee. Not that the loss of confidence was exalted as a ground but the special circumstances of the case exonerated bad faith in dischargesimliciter.In the light of what we have Indicated, it is clear that loss of confidence is often a subjective feeling or individual reaction to an objective set of facts and motivations. The Court is concerned with the latter and not with the former, although circumstances may exist which justify a genuine exercise of the power of simple termination. In a reasonable case of a confidential or responsible post being misused or a sensitive or strategic position being abused, it may be a high risk to keep the employee, once suspicion has started ant a disciplinary enquiry cannot be forced on the master. There, a terminationsimpliciter maybe bona fide not colourable, and loss of confidence may be evidentiary of good faith of the employer.21.In the present case, the catalogue of circumstances set out in the earlier part of the judgment strikes a contrary note. The worker was not told when he wrote the Union was not disclosed when they demanded : the Labour Court was treated to verbal statements like very reliable sources and other credulous phrases without a modicum of evidence to prove bona fides. Some testimony of unseemly attempts by the workman to get at secrets outside his orbit some indication of the source of suspicion, some proof of the sensitive or strategic role of the employee, should and would have been forthcoming had the case been bona fide. How contradictory, that even when a strong suspicion of leaking out sensitive secrets was being entertained about the employee he was being given special merit increments over and above the normal increments ! A case of res ipsa loquitur. Circumstances militate against the I say so of M. W. 1 that the management had suffered an ineffable loss of confidence. To hit below the belt by trading legal phrases is not Industrial Law. We are constrained to express ourselves unmistakably lest industrial unrest induced by wrongful terminations based on convenient loss of confidence should be generated.22. Before we conclude we would like to add that an employer who believes or suspects that his employee, particularly one holding a position of confidence, has betrayed that confidence can, if the conditions and terms of the employment permit, terminate his employment and discharge him without any stigma attaching to the discharge. But such belief or suspicion of the employer should not be a mere whim or fancy. It should be bona fide and reasonable. It must rest on some tangible basis and the power has to be exercised by the employer objectively, in good faith, which means honestly with due care and prudence. If the exercise of such power is challenged on the ground of being colourable or male fide or an act of victimisation or unfair labour practice, the employer must disclose to the Court the grounds of his impugned action so that the same may be tested judicially. In the instant case this has not been done. There is only the ipse dixit of the employer that he was suspecting since 1968 that the appellant was divulging secrets relating to his business. The employer has not disclosed the grounds on which this suspicion arose in 1968. Further, after 1968, the appellant was given two extra increments, in addition to his normal increments, as stated already, in appreciation of his hard work. This circumstance completely demolishes even the whimsical and tenuous stand taken by the employer. It was manifest therefore that the impugned action was not bonais true that this Court. in appeal, as a rule of practice, is loath to interfere with a finding of fact recorded by the trial Court. But if such a finding is based on no evidence, or is the result of a misreading of the material evidence, or is so unreasonable or grossly unjust that no reasonable person would judicially arrive at that conclusion, it is the duty of this Court to interfere and set matters right. The case before us is one such instance, where we are called upon to do so.24. The Labour Court has misled itself on the law and we set aside its order. The workman will be reinstated with back wages. However, the management will be free, if it has sufficient material and if so advised, to proceed against the workman for misconduct or on other grounds valid in law.The above study of the chain of rulings brings out the futility of the contention that subsequent to Murugan Mills case (1965) 2 SCR 148   = (AIR 1965 SC 1496  )colourable exercise of powerhas lost validity andloss of confidencehas gained ground.