Kerala Kaumudi Private Ltd v. P K Balakrishnan — 1985 DIGILAW 37 (KER)

JUDGMENT Radhakrishna Menon, J. 1. The challenge in this Original Petition is against Ext. P-1 the award passed by the 2nd respondent in I.D. No. 146 of 1977. 2. The facts lie in a narrow compass: The 1st respondent while working as Sub Editor, Kerala Kaumudi, a leading Malayalam Newspaper, was discharged from service by the petitioner accepting the findings of the Enquiry Officer, they had appointed, to go into the charges of misconduct levelled against him. The enquiry officer had framed 10 charges and after enquiry found that all the charges, "excepting a portion in charge 10, were proved." 3. The Government of Kerala thereafter by order, G. O. (Rt.) No. 1649/77/LBR, dated 28th December 1977 referred the dispute, namely, "Discharge of Sri P.K. Balakrishnan, Chief Sub Editor, Kerala Kaumudi, a Malayalam News paper", to the 2nd respondent for adjudication. 4. The 2nd respondent by a preliminary order dated 20th June 1980 found that "there was no defect in the formalities of the enquiry" that of the 10 charges levelled against the 1st respondent, charges Nos. 1, 3, 4 and 5 alone have been proved and that the case required to be posted for evidence and hearing on the question of punishment. 5. Subsequently the 2nd respondent passed the final award, Ext. P-1 dated 31st January 1981, and got it published in the Gazette dated 3rd March, 1981. The operative portion of the award, Ext. P-1 reads: "The order of the Management discharging the workman from service is set aside and the management is directed to reinstate the workman. The workman shall be paid 50 per cent of the back wages except for the period during which he was employed in Kerala Bhooshanam newspaper. The gratuity paid to him can be adjusted by the Management towards the back wages mentioned above. The workman will be entitled to be treated as in continuous service and also to other attendant benefits as if he had continued in service". The learned counsel for the petitioner submitted that the Labour Court, the 2nd respondent, ought to have given the petitioner an opportunity to adduce evidence to establish the charges which were found to be not proved and in not doing so, it has committed an error of law which is apparent on the face of the record. The learned counsel for the petitioner submitted that the Labour Court, the 2nd respondent, ought to have given the petitioner an opportunity to adduce evidence to establish the charges which were found to be not proved and in not doing so, it has committed an error of law which is apparent on the face of the record. He further submitted that the 2nd respondent is bound to give cogent reasons to depart from the conclusion arrived at by the enquiry officer; it is all the more so because the charges which are found to have been proved are sufficient to sustain the punishment awarded by the management. Yet another contention raised by the learned counsel for the petitioner is that, in as much as the management has lost confidence in the 1st respondent, the 2nd respondent, the Labour Court, ought not to have directed the reinstatement of the 1st respondent in service. 6. Before I deal with the various aspects of the above contentions, I shall state the law, applicable to the case: It is open to the management to request the Tribunal to consider the validity of the domestic enquiry as a preliminary issue. The management simultaneously could ask for an opportunity to adduce evidence to sustain their finding that the workman is guilty of misconduct and as such the punishment imposed by them is proper. The management however, should avail of the said opportunity to adduce evidence by making a suitable request to the Tribunal before the proceedings came to an end. If the management failed to avail of such an opportunity or failed to ask for such an opportunity before the proceedings are closed, the management could raise no grievance that the Tribunal did not provide them such an opportunity. In such cases the Tribunal will be justified to proceed with the enquiry with the evidence available on record. The right to adduce additional evidence is a right vested in the management and the same however, should be availed of by them by making a request at the appropriate stage. There is no duty cast on the Labour Court or the Tribunal "suo motu" to give such an opportunity because the Tribunal, being a quasi judicial authority, is under no obligation to acquaint parties of to advice them appearing before it about their rights, "more so in an adversary system which this quasi judicial court had adopted". There is no duty cast on the Labour Court or the Tribunal "suo motu" to give such an opportunity because the Tribunal, being a quasi judicial authority, is under no obligation to acquaint parties of to advice them appearing before it about their rights, "more so in an adversary system which this quasi judicial court had adopted". If such an opportunity to adduce evidence is requested for by the management before the proceedings are closed, the Tribunal is bound to give such an opportunity to the management. If the management with a view to sustain the punishment awarded, relies on only the domestic enquiry and does not adduce additional evidence or request for an opportunity during the pendency of the proceedings to adduce evidence, the management deems necessary to sustain the punishment, the duty of the Tribunal is only to consider the correctness or the validity of the domestic enquiry as well as the findings recorded therein and decide the issue. Even in a case where the Tribunal holds that the domestic enquiry has not been held properly or that the domestic enquiry is defective, the Tribunal is not bound to "invite suo motu" the management to adduce evidence before it to substantiate the charges. 7. The above principles of law emanate from the various decisions of the Supreme Court. However, it is unnecessary for me to cite all those decisions except to refer to two of them. They are (1) Shankar Chakravarti v. Britannia Biscuit Co., 1979 (2) LLJ 194 and (2) Delhi Cloth and General Mills Co. Ltd. v. Ludh Budh Singh 1972 (1) LLJ 180 . However, it is unnecessary for me to cite all those decisions except to refer to two of them. They are (1) Shankar Chakravarti v. Britannia Biscuit Co., 1979 (2) LLJ 194 and (2) Delhi Cloth and General Mills Co. Ltd. v. Ludh Budh Singh 1972 (1) LLJ 180 . In Britannia Biscuit Co., case, 1979 (2) LLJ 194 reviewing the entire case law on the subject, the Supreme Court has held thus: "Having given our most anxious consideration to the question raised before us, and minutely, examining the decision in Cooper Engineering Ltd. case (supra) to ascertain the ratio as well as the question raised both on precedent and on principle, it is undeniable that there is no duty cast on the Industrial Tribunal or the Labour Court while adjudicating upon a penal termination of service of a workman either under S.10 or under S.33 to call upon the employer to adduce additional evidence to substantiate the charge of misconduct by giving some specific opportunity after decision on the preliminary issue whether the domestic enquiry was at all held, or if held, was defective, in favour of the workman. Cooper Engineering Ltd. case (supra) merely specifies the stage at which such opportunity is to be given, if sought. It is both the right and obligation of the employer, if it so chooses, to adduce additional evidence to substantiate the charge of misconduct. It is for the employer to avail of such opportunity by a specific pleading or by specific request. If such an opportunity is sought in the course of the proceeding the Industrial Tribunal or the Labour Court, as the case may be, should grant the opportunity to lead additional evidence to substantiate the charges. But if no such opportunity is sought nor there is any pleading to that effect no duty is cast on the Labour Court or the Industrial Tribunal suo motu to call upon the employer to adduce additional evidence to substantiate the charges." (emphasis supplied) 8. But if no such opportunity is sought nor there is any pleading to that effect no duty is cast on the Labour Court or the Industrial Tribunal suo motu to call upon the employer to adduce additional evidence to substantiate the charges." (emphasis supplied) 8. In Delhi Cloth and General Mills case 1972 (1) LLJ 180 the Supreme Court has held: "If the employer relies only on the domestic enquiry and does not simultaneously lead additional evidence or ask for an opportunity during the pendency of the proceedings to adduce such evidence, the duty of the Tribunal is only to consider the validity of the domestic enquiry as well as the finding recorded therein and decide the matter. If the Tribunal decides that the domestic enquiry has not been held properly, it is not its function to invite suo motu the employer to adduce evidence before it to justify the action taken by it". (emphasis supplied) 9. The learned counsel for the 1st respondent, relying on the above principles or law submitted that the petitioner shall not be permitted to contend that the 2nd respondent should have given them an opportunity to let in evidence to sustain all the charges, they had levelled against the 1st respondent, as they have not either laid the foundation for such a claim in the pleadings or for that matter have they made a specific request in that regard, before the 2nd respondent closed the proceedings which resulted in the award, Ext. P-1. 10. The learned counsel for the petitioner however, submitted that the tenor of the preliminary order of the 2nd respondent dated 20th June 1980 is that the 2nd. respondent was prepared to give an opportunity to the petitioner to prove the misconduct alleged against the 1st respondent, had it found that the domestic enquiry was defective. In this connection he referred to the following passage from the preliminary order: "Only where the domestic enquiry is held to be defective, considering also the findings of the enquiry officer, the Management has to be given another chance to prove before this Court the misconducts alleged against the worker and the worker the chance to adduce evidence contra. In the instant case, I have held that there is no defect, in the formalities followed by the Enquiry Officer". In the instant case, I have held that there is no defect, in the formalities followed by the Enquiry Officer". According to the learned counsel, the above finding would indicate that there was no need for the petitioner to request for an opportunity to adduce fresh evidence to prove the charges of misconduct against the 1st respondent and sustain the punishment awarded against him. He therefore submitted that the 2nd respondent ought to have given the petitioner an opportunity to adduce further evidence, if the 2nd respondent was of the view that the evidence already on record, was not sufficient to sustain the punishment. In this connection the learned counsel called my attention to Ext. P-11 wherein the petitioner has categorically stated that they have accepted the preliminary order without prejudice to their rights to challenge the same, if such a need arises. In support of this contention he relied on the decision of the Supreme Court in Rajendra Jha v. Presiding Officer, Labour Court, Dhanbad, AIR 1984 SC 1696 . I am afraid that the said decision, instead of supporting the above contention of the petitioner, in fact, cuts at the very root of the said contention. The decision in fact, reiterates the principles enunciated in the earlier decisions of the Supreme Court and that it is so can be seen from the following excerpts therefrom: "The employers, who are respondent 2 to this appeal, filed an application under S.33(2)(b) of the Act, asking for the approval of the Labour Court to the order of dismissal which was passed against the appellant. By that application, they did not ask alternatively for an opportunity to lead evidence to justify the order of dismissal .......... The events which supervened the Labour Court's order strengthen the conclusion that there is no substance in the contention of the appellant that the Labour Court acted on its own initiative in allowing the employers to lead evidence." (emphasis supplied) 11. In the light of the above well established principle of law, I reject the aforesaid contention of the learned counsel for the petitioner. 12. In Workmen of Firestone Tyre and Rubber Co. In the light of the above well established principle of law, I reject the aforesaid contention of the learned counsel for the petitioner. 12. In Workmen of Firestone Tyre and Rubber Co. v. Management, 1973 (1) LLJ 278 the Supreme Court has held thus: " Even if no enquiry has been held by an employer or if the enquiry held by him is found to be defective, the Tribunal in order to satisfy itself about the legality and validity of the order, has to give an opportunity to the employer and employee to adduce evidence before it. It is open to the employer to adduce evidence for the first time justifying his action; and it is open to the employee to adduce evidence contra." Relying on this passage the learned counsel for the petitioner submitted that in as much as the 2nd respondent has held that the findings of the enquiry officer regarding charge numbers 2 and 6 to 10 are perverse and therefore the enquiry itself is defective, the 2nd respondent should have held that the entire matter is at large and as such the petitioner is entitled to adduce fresh evidence to sustain the order of dismissal for misconduct. This submission is liable to be rejected straightaway because the Supreme Court in the same decision has reiterated the principle enunciated in Delhi Cloth and General Mills case 1972 (1) LLJ 180 , namely that "If the Tribunal decides that the domestic enquiry has not been held properly, it is not its function to invite suo motu the employer to adduce evidence before it to justify the action taken by it. This submission even otherwise is liable to be repelled on the short ground that the 2nd respondent has not entered any such finding in the award and it was only for want of sufficient evidence, the 2nd respondent held that the said charges have not been proved. In such circumstances, the Labour Court or the Tribunal as the case may be, has the power to reappreciate the evidence led before the enquiry officer in exercise of the jurisdiction conferred by S.11-A of the Industrial Disputes Act to satisfy itself whether the said evidence relied on by the management would establish the guilt of the employee. The decision of the Supreme Court in Rajinder Kumar v. Delhi Administration AIR 1984 SC 1805 supports the above view. The decision of the Supreme Court in Rajinder Kumar v. Delhi Administration AIR 1984 SC 1805 supports the above view. The Supreme Court has stated thus: "We have not at all attempted to reappreciate the evidence though in exercise of the jurisdiction conferred by S.11-A of the Industrial Disputes Act, 1947 both arbitrator and this Court can reappraise the evidence led in the domestic enquiry and satisfy itself whether the evidence led by the employer established misconduct against the workman. It is too late in the day to contend that the arbitrator has only the power to decide whether the conclusions reached by the enquiry officer were plausible one deducible from the evidence led in the enquiry and not to reappreciate the evidence itself and to reach the conclusion whether the misconduct alleged against the workman has been established or not. This Court in workmen of M/s Fires tone Tyre and Rubber Co. of India (P) Ltd. v. Management 1973 (3) SCR 587 : ( AIR 1973 SC 1227 ) = 1973 (1) LLJ 278 , held that since the introduction of S.11-A in the Industrial Disputes Act, 1947, the Industrial Tribunal is now equipped with the powers to reappraise the evidence in the domestic enquiry and satisfy itself whether the said evidence relied upon by the employer establishes the misconduct alleged against the workman ..................It is thus well settled that where the findings of misconduct are based on no legal evidence and the conclusion is one to which no reasonable man would come, the arbitrator appointed under S.10-A or this court in appeal under Art.138 can reject such findings as perverse. Holding that the findings are perverse does not constitute reappraisal of evidence, though we would have been perfectly justified in exercise of powers conferred by S.11-A to do so." (emphasis supplied) 13. The Supreme Court in M/s Fires tone Tyre and Rubber Co. Holding that the findings are perverse does not constitute reappraisal of evidence, though we would have been perfectly justified in exercise of powers conferred by S.11-A to do so." (emphasis supplied) 13. The Supreme Court in M/s Fires tone Tyre and Rubber Co. case 1973 (1) LLJ 278 has held as follows: ".........If a proper enquiry is conducted by an employer and a correct finding arrived at regarding the misconduct, the Tribunal, even though it has now power to differ from the conclusions arrived at by the management, will have to give very cogent reason for not accepting the view of the employer......." The learned counsel for the petitioner called my attention to the above ruling of the Supreme Court and contended that the 2nd respondent erred in interfering with the findings in respect of those charges, which are found to be established, particularly those in respect of charge No. 3 which falls under sub clause (1) of Clause.18 of the standing orders. The said charge reads: Charge No. 3. "You have committed a serious misconduct as an employee of the Kerala Kaumudi Private Ltd., by wilfully refusing to accept Memo No. 1016 of 1976 dated 7th May 1976 issued to you by the Management at 11-55 p.m. on 7th May 1976." The 2nd respondent after considering the evidence and the arguments of the respective parties, has held as follows: " The refusal to dissociate himself from participation in the strike though no doubt constituted disobedience of orders, has to be viewed against the backgrounds stated above. So viewed these charges do not appear to be so grave as to justify the extreme penalty of discharge." While holding so, the 2nd respondent has found that the above charge and charges Nos. 4 and 5 form part of the same transaction namely, continued participation of the workmen in the strike despite the direction of the management to abandon the strike. The activities covered by charges Nos. 3, 4 and 5 may fall under sub clauses (b) and (1) of Clause.18 of the standing orders. That by itself would not constitute the said charges a grave or serious transaction warranting dismissal or discharge from service, the 2nd respondent observes. When the 2nd respondent held so, it must be having in view the provisions contained in sub clause (5) of Clause.19 of the standing orders. That by itself would not constitute the said charges a grave or serious transaction warranting dismissal or discharge from service, the 2nd respondent observes. When the 2nd respondent held so, it must be having in view the provisions contained in sub clause (5) of Clause.19 of the standing orders. It reads: " In awarding a penalty under these standing orders the punishing authority shall take into account the gravity of offence, the previous record, if any of the working journalist and any other extenuating or aggravating circumstance that may exist. A copy of the order passed by the punishing authority as well as the remarks made by the editor if any, shall be supplied to the working journalist concerned." It is in view of this clause, I am sure, that the 2nd respondent observed that the management was bound to consider the record of the petitioner's past service in determining the punishment to be imposed. The 2nd respondent has further observed that either in Ext. M-3, the show cause notice or in Ext. M-5, the order of discharge there is anything to show that the management had considered this aspect of the matter. The 2nd respondent thus has found that there is no material to show that during his 17 years of service the 1st respondent was having any bad record of service. 14. After considering the various aspects of the matter, the 2nd respondent has stated thus in the award: "A perusal of Ext. M-3 shows that in proposing the punishment of termination of service the management had mainly relied on the above mentioned charges which no doubt are of a very serious nature. One cannot help concluding that it was in view of these charges that the Management decided to impose the punishment of termination of service. Now that these charges have been found to be not established, the basis for the imposition of this severe penalty has ceased to exist as it were. This circumstance has also to be taken into account to considering the propriety of the punishment imposed. On a consideration of the various circumstances discussed by me above, I am of opinion that for the four charges found proved the punishment of discharge from service is excessive. This punishment has therefore to be set aside." 15. This circumstance has also to be taken into account to considering the propriety of the punishment imposed. On a consideration of the various circumstances discussed by me above, I am of opinion that for the four charges found proved the punishment of discharge from service is excessive. This punishment has therefore to be set aside." 15. In the light of the above findings, based on materials available on record, I am of opinion that the 2nd respondent was justified in interfering with the punishment of discharge imposed on the 1st respondent by the petitioner. In this connection I would observe that the ruling of the Supreme Court in Burn and Co. Ltd. v. Workmen 20 Indian Factories and Labour Reports 273 cited by the counsel for the petitioner to bring home the position that Labour Court cannot sit in appeal over the order of discharge passed by an employer, has no application here in view of the later decisions of the Supreme Court including Rajinder Kumar's case AIR 1984 SC 1805 interpreting S.11-A of the Industrial Disputes Act, brought into force with effect from 14th December 1971, as conferring on Tribunals, like the 2nd respondent the powers of the appellate court. 16. The learned counsel for the petitioner lastly contended that in view of the fact that the petitioner has lost confidence in the 1st respondent, the 2nd respondent was not justified in ordering reinstatement of the 1st respondent in service. In support of this contention the learned counsel cited the decisions of the Supreme Court reported in Ruby General Insurance Co. v. Chopra 1970 (1) LLJ 63 M/s Francis Klein and Co. (P) Ltd. v. Workmen 1971 920 LLJ 615 and L. Michael v. M/s Johnson Pumps India Ltd. 1975 (1) LLJ 615. The sum and substance of the law stated in these decisions is that the refusal, to order reinstatement which is the normal rule in cases where orders of dismissal or discharge are held invalid, on the ground of loss of confidence, shall be in the rarest of rare cases. What are the rarest of rare cases? No doubt, it is difficult to define them. However, generally it could be said that where an employer loses confidence in an employee who is discharging the functions of an office of trust and confidence, the order directing reinstatement cannot be justified. What are the rarest of rare cases? No doubt, it is difficult to define them. However, generally it could be said that where an employer loses confidence in an employee who is discharging the functions of an office of trust and confidence, the order directing reinstatement cannot be justified. In all other cases, the normal rule that the employee should be reinstated in cases where the dismissal or discharge is declared invalid, shall be followed. 17. To sustain the order directing reinstatement, the learned counsel for the 1st respondent cited the decision of the Supreme Court, in Workmen of Assam Match Co. Ltd. v. Labour Court 1973 (2) LLJ 279. He submitted that the petitioner has no right to attack the said order in this Original Petition on the ground of loss of confidence because he has not laid proper foundation in this regard either before the enquiry officer or before the 2nd respondent. A reference in this connection to the various charges of misconduct levelled against the petitioner, is relevant, he submits. There is no reference in any of these charges that the 1st respondent is holding an office of trust and confidence. No materials appear to have been placed before the Labour Court to substantiate this contention and therefore the Labour Court is justified in holding as follows: "A mere assertion by the Management that they have lost confidence in the workman is not sufficient to deny reinstatement." This plea of loss of confidence, no doubt, is often a subjective feeling referable to an objective set of facts. That means there must be something tangible on record to sustain this plea. The Labour Court/Tribunal has the power to review such facts, to discover the true nature of the order of dismissal/discharge passed by the employer. I am fortified in this view by a decision of the Supreme Court in Michael's case 1975 (1) LLJ 262 . The Supreme Court in the case has stated thus: " The Tribunal has the power and, indeed, the duty to X-ray the order and discover its true nature, if the object and effect, if the attendant circumstances and the ulterior purpose to dismiss the employee because he is an evil to be eliminated. The Supreme Court in the case has stated thus: " The Tribunal has the power and, indeed, the duty to X-ray the order and discover its true nature, if the object and effect, if the attendant circumstances and the ulterior purpose to dismiss the employee because he is an evil to be eliminated. But if the management, to cover up the inability to establish by an enquiry, illegitimately but ingeniously passes an innocent looking order of termination simpliciter, such action is bad and is liable to be set aside. Loss of confidence is no new armour for the management; otherwise security of tenure, ensured by the new industrial jurisprudence and authenticated by a catena of cases of this Court, can be subverted by this neoformula. Loss of confidence in the Law will be the consequence of the loss of Confidence Doctrine." 18. Here it may not be out of context to refer to the decision of this Court in Management of Arya Vaidya Pharmacy (Coimbatore) Ltd. v. Secretary, Arya Vaidya Pharmacy Employees Union 1982 (1) LLJ 364. This Court has held thus: " In other words, the action initiated on grounds other than loss of confidence could not be converted into or developed into a case of loss of confidence to suit the convenience of the management to sustain the act of termination which the Labour Court on the facts established found to be illegal. In the present case the order of termination was passed by the management solely on the finding of the enquiry officer that the delinquent workmen were involved in an act of theft. When the Labour Court found that the termination order based on the finding in the domestic enquiry could not be sustained it is not open to the management as a matter of right to raise an alternate plea of loss of confidence which plea was never advanced at an earlier stage." In the case on hand also the position is the same as in the above decision. The petitioner never had such a case before the enquiry officer. This aspect of the case for the first time was raised before the Labour Court, and as is seen from the award, the petitioner has not adduced any evidence to sustain this plea of loss of confidence. Mere assertion is not a substitute for materials or evidence, without which such a plea cannot be established. This aspect of the case for the first time was raised before the Labour Court, and as is seen from the award, the petitioner has not adduced any evidence to sustain this plea of loss of confidence. Mere assertion is not a substitute for materials or evidence, without which such a plea cannot be established. 19. In this view of the matter, I have no hesitation to reject the above contention of the petitioner. The Original Petition is without merits. The same is therefore dismissed. No order as to costs.