Kanhaiyalal Agrawal & Ors Vs. The Factory
Manager, Gwalior Sugar Company Limited  Insc 482 (13 September 2001)
S. Rajendra Babu & S.N. Variava Rajendra Babu,
Appeal (civil) 6881-6883 of 1999
J U D G M E N T
These two sets of cases are cross-appeals filed
by the Management of the Gwalior Sugar Company Limited and their workmen.
The workmen were charged that on 9.2.1979 when Kanhaiyalal
Agrawal was on duty on trailer weigh bridge of the factory gate from 2 a.m. to 10 a.m. in collusion with Harihar
Giri, Centre Incharge, Ramesh Chandra Savita, Harihar Sharma, Devi Ram Rajak, Dedaram,
C.P. Madan, Hari Singh, Umeshchandra and Narendra Singh conspired to allow one
trailer sugar cane requisition slip No. 5999 in the name of Chatura for
bringing sugar cane by bullock cart at Sunwai Depot on false payment slip No.
14964 wrote gross weight 46.70 and did help him in making payment of Rs. 373.1 paise
without the arrival of sugar cane in the company for their respective benefits
and each of the workmen was dismissed after inquiry. Applications were filed by
them before the Labour Court challenging their termination from service.
In the case of Kanhaiyala Agrawal, the labour
court came to the conclusion as follows :- In the present case, the applicant
is working on the post of weighment clerk and he has contravened the prescribed
procedure and in collusion with other colleagues signed payment slip wrongly
prepared for a wrong date while on the day of incident Chetu or Chatura did not
bring sugarcane to the mill. The responsibility of applicant is that he should
sign on payment slip with correct date and the amount of sugarcane of concerned
farmer, while he should do its weigh. As a weighment clerk his work was of
faith and full responsibility. On the basis of evidence produced in the case
loss of trust of non-applicant in applicant appears to be proper. Therefore, it
is not proper to award relief of reinstatement to applicant. According to
accepted formula in the citation of 1990 Lab I.C. 995 (Dayaram & Ors. vs.
The Gwalior Sugar Company Ltd. & Anr.), which is in respect of industry of
non-applicant, applicant is entitled to get half salary and full returning
allowance from the date of dismissal till the date of this order.
On that basis, the labour court disposed of the
In the case of Ramesh Kumar Savita, the labour
court came to the conclusion as follows :- In the present case, applicant was
doing the work of punch man on gate and this was his responsibility that he
should allow the correct gadi on correct slip on correct date inside the gate
and if any vehicle comes without it then he should not allow to make its
payment non-applicant is successful in proving this thing that applicant has
done contravention of prescribed procedure. Due to this reason his faith is
correctly lost from applicant and on the basis of evidence, which has come in
the case, basis of loss of faith of non-applicant from applicant is proved.
Therefore, it is not proper to award relief of reinstatement in the citation of
1990 Lab. I.C. 995 (Dayaram & Ors. vs. The Gwalior Sugar Company Ltd. &
Anr.), applicant is entitled to get half salary with full returning allowance
from the date of dismissal from service till the date of this order.
And, in case of Chandra Prakash Madan the labour
court held as follows :- In the present case, applicant was working on the post
of checking clerk and he contravened the prescribed procedure and in collusion
with other colleagues on wrong slip and from the slip of original date prepared
weighment slip and did his signature.
His responsibility was this that he should
prepare his weighment slip on correct slip and on the basis on it. As a
checking clerk his work (duty) was of full faith. On the basis of security and
on the basis of evidence came in the case loss of faith of non-applicant from
applicant appears to be proper. Therefore, it is not proper to award relief of
reinstatement to applicant. According to accepted formula in citation of
industry of non-applicant, applicant is entitled to get half salary with full
returning allowance from the date of dismissal from service till the date of
Against these orders appeals were preferred
before the Industrial
The Industrial Court held that the employees had not
committed any mis-appropriation of money but were negligent in performing their
duties and the finding recorded by the labour court is in order. The Industrial Court, therefore, directed
reinstatement of the workmen in the office in each of the cases, however,
without back wages and the discussion on this aspect is as under :
In the case, whatever evidence (proof) is
produced, from its perusal, this thing appears definitely that employee had
done negligence in his work definitely procedure of purchase of sugarcane, its weighment
and its payment of price at employers mill is shown. From the perusal of
procedure only this conclusion is not drawn that actually and knowingly
employee has committed any such act with the object of causing damage to
employer, witnesses of employer has told that weighment slip is prepared at
mill gate. But according to the witnesses of employer actually sugarcane is not
weigh at the gate of mill. Therefore, some other instances of this type also on
the basis of which it will not be proper to draw inference of dishonesty
Learned Presiding Officer of Labour Court has
not held the employee guilty of misappropriation of money. I agree with this
conclusion. In the opinion of Labour Court employee had done the act of causing
damage to employer knowingly employee has done any wrong proceeding with the
object of causing damage to employer and fulfilment of his self interest. I
agree with this argument of Shri Bansal that doubt may be forceful to any
extent, but it cannot be given the place of proved evidence. In such
circumstance in my opinion it is not proper to deprive the employee from the
relief of reinstatement.
I also considered those arguments of Shri Gupta
according to which employer has lost faith on employee. In my opinion on the
basis of proof, which is produced, this argument of Shri Gupta is not
acceptable. This is definite that procedure, which was shown by the witnesses
is of employer was not followed word by word by the employee. This is also not
misconduct in itself but it is definitely serious negligence. In my opinion for
the acts like negligence it is not proper to deprive the employee from the
relief of reinstatement. After the termination of services of employee, about
more than 10 years time has lapsed. If employee is deprived from the back
salary or returning allowance of this period even then in view of the
circumstances of the case it will be sufficient punishment.
Against the said decision both the workmen and
the Management filed writ petitions. The learned Single Judge of the High Court
did not interfere with the order made by the Industrial Court in any one of the
matters after noticing that the conclusion reached by the Industrial Court on
examination of the case on the question of loss of confidence that it was not such
a case and for the negligence committed by the workmen in question, held the
punishment of denial of back wages would meet the ends of justice and,
therefore, upheld the order made by the Industrial Court. Against that order of
the learned Single Judge writ appeals were preferred by both the Management and
the Workmen. The writ appeals were, however, dismissed on the basis that they
were not maintainable inasmuch as the same arose out of proceedings under
Article 227 of the Constitution which is revisional in nature. In the appeals
before us the order made by the Division Bench of the High Court is in
So far as the law on the matter is concerned as
to whether an appeal would lie against an order made in writ petition before
the High Court challenging an order of the lacour court, this Court in its
decision in Lokmat Newspapers Pvt. Ltd. vs. Shankarprasad, 1999 (6) SCC 275,
stated that if a Single Judge exercises jurisdiction under Article 226, Letters
Patent Appeal would be maintainable, but if the jurisdiction is exercised under
Article 227 it will not be maintainable. But with an explanation that if the
Single Judge of the High Court in considering the petition under Article 226 or
Article 227 does not state under which provision he has decided the matter and
where the facts justify filing of petition both under Article 226 and Article
227 and a petition so filed is dismissed by the Single Judge on merits, the
matter may be considered in its proper perspective in an appeal. This Court
held as aforesaid in view of the decisions of this in Umaji Keshao Meshram vs. Radhikabai,
1986 Supp. SCC 401; Ratnagiri District Central Co- operative Bank Ltd. vs. Dinkar
Kashinath Watve & Ors., 1993 Supp (1) SCC 9, and Sushilabai Laxminarayan Mudliyar
& Ors. vs. Nihalchand Waghajibhai Shaha & Ors., 1993 Supp (1) SCC 11.
Hence, we are of the view that it is wholly
unnecessary for us to examine this aspect of the matter in view of the
declaration of law made by this Court in Lokmat Newspapers Pvt. Ltd. vs. Shankarprasad
(supra) after adverting to all the decisions on the point.
We have looked into the orders made by the labour
court, the Industrial
the learned Single Judge of the High Court and we are of the view that the
conclusions drawn by the Industrial Court in appeal which stood affirmed in the writ petitions are
based upon the facts arising in the case.
Substantial contention on the merits of the case
by the employer in these appeals is that the finding of loss of confidence in
the employee by the labour court has been reversed in appeal by the Industrial Court on unreasonable
grounds. What must be pleaded and proved to invoke the aforesaid principle is
(i) the workman is holding a position of trust
(ii) by abusing such position, he commits acts
which results in forfeiting the same; and
(iii) to continue him in service would be
embarrassing and inconvenient to the employer or would be detrimental to the
discipline or security of the establishment.
All these three aspects must be present to
refuse reinstatement on ground of loss of confidence. Loss of confidence cannot
be subjective based upon the mind of the Management. Objective facts which
would lead to a definite inference of apprehension in the mind of the
Management regarding trustworthiness or reliability of the employee must be
alleged and proved.
Else, the right of reinstatement ordinarily
available to the employee will be lost.
Tested on these principles on the charges
against the workmen concerned on the proved facts whether there was any loss of
confidence so far as the workmen were concerned, the inferences have been
It cannot be stated that the conclusions
emanating from the orders of the Industrial Court are one of non-application of mind to
the facts or ignoring any of the relevant facts or taking into consideration
any of the facts not available on record, much less can the conclusions be characterised
as perverse. We think, the writ jurisdiction has been appropriately exercised
by the learned Single Judge. Hence, we decline to interfere with the order by
the learned Single Judge.
The appellants in these appeals also claim
payment of back wages. On that aspect also both the Industrial Court and the learned Single
Judge have given cogent reasons and, therefore, we do not think, there is any
justification for us to interfere with that aspect of the matter either.
In the light of this order, it is unnecessary to
make any order on I.A. Nos. 4, 5 and 6 and are rejected. It is open to the parties
to work out their respective rights in appropriate proceedings.
In the result, these appeals stand dismissed.
However, in the circumstances, there shall be no order as to costs.
[ S. RAJENDRA BABU ] J.
[ S.N. VARIAVA ] SEPTEMBER 13, 2001.