D.K.Seth - (1.) IN the domestic inquiry, pursuant to the charge-sheet dated 29.6.1973, filed as Annexure 3 to the writ petition, the petitioner's service was terminated ultimately by an order dated 18.6.1974. Once earlier order of termination having been suspended and fresh inquiry having been instituted, the said order of termination, Annexure 8 to the writ petition, was passed afresh and the same was challenged by means of a reference being. Adjudication case No.69 of 1979 wherein by an Award dated. 26.11.1984, it was found that while deciding preliminary issues, it was held that the domestic inquiry held was invalid and that the employer was given opportunity to prove the said charges at the trial, but the employer had failed to prove the said charges and, therefore, the order of dismissal was found to be invalid, But, the labour court had upheld the order of dismissal on account of 'loss of confidence in the petitioner by the employer' and had awarded a sum of Rs. 5,000 as compensation. This award is Annexure 14 to the writ petition, which is under challenge in the present case.
(2.) SRI Raj Kumar Jain in support of the writ petition contended that since the charges have not been proved, there cannot he any question of loss of confidence in the petitioner by the employer, and, therefore, the award passed by the Tribunal cannot be sustained. According to him, there was sufficient material to prove the charges. The employer had failed to prove the said charges despite adequate opportunity given during the course of trial. He alternatively argued that assuming but not admitting that the order of the labour court up-holding the termination on account of loss of confidence is correct, even then according to him, the compensation awarded is not adequate. SRI Jain refers to the decision in the case of N. Venkataraman v. National Agricultural Co oprative Marketing Federation of India Limited, 1983 (46) FLR 198 and contends that dismissal of the employee on account of loss of confidence should be bona fide and cannot be mala fide and it is for the court to find out as to whether the said order is perverse, capricious or mala fide. According to him, such a finding has not been given by the labour court. Therefore, the said order cannot be sustained. He next refers to the decision in the case of Anil Kumar Chakraborty and another v. Saraswatipur Tea Company Ltd. and others, 1982 (45) FLR 71, in support of his contention that the compensation awarded in the present case in wholly unreasonable inasmuch as in the said case, a sum of Rs. 50,000 was awarded in respect of the period in 1973. He next relies upon a decision in the case of Jai Vikram Shah, and Gulf Air Co. v. R. P. Tripathi and another, 1983 Lab IC 605, in order to contend that the termination on the ground of loss of confidence in the present case, is arbitrary because the same has not been disclosed in the written statement and no question was put to the employee in the cross-examination. Sri Shiv Nath Singh, assisted by Sri G. D. Misra, learned counsel appearing on behalf of Milk Board, on the other hand, contends that the labour court though had found that the charges were not proved but the same finding was arrived at on account of absence of sufficient evidence. But it was not free from doubt as to whether really there was no offence at all. According to him, the learned labour court has by reasons justified the case of 'loss of confidence' which is apparent from the reasoning given in the award itself to which he draws my attention by translating at the bar the relevant portions. According to him, Section 11A of the Industrial Disputes Act empowers the Tribunal to alter the punishment in appropriate cases. While exercising discretion, the labour court having arrived at a different conclusion which is supported by reasoning given by him, which are the questions of facts, cannot be gone into in exercise of writ jurisdiction. He further contends that compensation is adequate inasmuch as according to him, because of 'loss of confidence', he cannot be given any more benefit. However, very fairly he concedes, though he does not agree with the contentions of Sri Jain, that in appropriate cases, three years' salary may be calculated as reasonable compensation. But he vehmentally submits that this is not a case in which compensation awarded should be increased because of the allegations being very serious in nature. Though he contends that the petitioner must be in gainful employment during this period, but he has not been able to bring on record any material to support his contention that the petitioner is in gainful employment. After having heard the learned counsel for the parties, it appears that from the impugned award, as has been translated at the bar that the labour court has found that the charges were not proved but at the same time he finds that there were certain reports given by some of the witnesses but those witnesses had denied the correctness of those reports while admitting that those reports were given by them at the behest of some other officers and they have given such reports on the mere asking of such officers. Therefore, he cannot rely on the evidence of those witnesses or the reports which were sought to be proved. He has given reasons for his finding supporting the termination on the ground of loss of confidence in a manner different from the reasoning given above. But still then, when he has not relied on certain evidence because of certain reasons, still then he might have some doubt but the benefit of such doubt has been given to the petitioner by reason whereof he found that the charges were not proved. On that account, it cannot be said that he was not justified in upholding the dismissal on account of loss of confidence. Even if he has not gone into the questions as to whether termination was arbitrary or not, but still then he has upheld the said order of dismissal which itself implies that he had found the order to be bona fide and not perverse and mala fide.
(3.) IT is admitted proposition of law that if the employer bona fide decides that confidence has been lost, then it would not be open for a person not connected with the business of the employer to hold otherwise and quash the decision of the employer. All that is required to be considered is whether the decision is mala fide, arbitrary and capricious. This has been so laid down in the case of N. Venkataraman (supra), as relied by Sri Jain. Such observation was supported by reasoning that "it is easy for a person detached from the work of the employer to take a different view than the one taken by the employer or to hold that the employer was fully justified in drastic action that he took against some employees but not against all. IT is, however, the employer, who has to repose confidence in his employees and it is for him to decide whether a particular employee retains that confidence or not." The labour court has by reasons supported his view about the loss of confidence by the employer and he has not found the same perverse, arbitrary or mala fide on the basis of materials placed before him. Sri Jain has not been able to point out anything before this court to show that the said decision of the labour court is perverse. While exercising writ jurisdiction, this court is slow in interfering with the finding of fact in absence of any perversity. I have not been able to persuade myself to find out any perversity in the impugned award with regard to the same, as has been translated at the bar. So far as the decision in the case of Jai Vikram Shah and Gulf Air Company v. R. P. Tripathi (supra) is concerned, there it has been held that it is incumbent upon the employer to set out in the written statement the reasons for loss of confidence and that the present case is not one of colourable or mala fide exercise of power or victimisation or unfair labour practice and that the dismissal has been made in good faith and honesty.;