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2018 DIGILAW 2600 (BOM)

Zuari Industries Limited v. Roque Glenito Furtado

2018-10-24

C.V.BHADANG

body2018
JUDGMENT : C.V. Bhadang, J. 1. Rule made returnable forthwith. Respondent no. 1, who appears in person, waives service. Heard finally by consent of parties. 2. By this petition, the petitioner/party no. II is challenging an award dated 23.10.2017, passed by the Industrial Tribunal at Panaji (Tribunal, for short), thereby holding the action of the petitioner in terminating the services of the petitioner, as illegal and unjustified and directing payment of full back wages from the date of discharge, till the date of superannuation alongwith benefits of all the settlements, with costs of Rs. 2 lakhs. The relief of reinstatement was not competent, as in the interregnum, the petitioner had reached the age of superannuation. 3. The brief facts necessary for the disposal of the petition may be stated thus: The respondent no. 1 was employed as a Senior Accounts Assistant with the petitioner since 31.05.1983. He was confirmed in service on 02.06.1986. On 02.11.2007, the respondent no. 1 came to be discharged from service, on the ground that the management had lost confidence in him and it was found to be prejudicial to the interest of the petitioner, to retain him in service. By way of abundant caution, the petitioner was offered one month's wages. The reason why, according to the petitioner, it had lost confidence in the respondent no. 1, are set out in the letter of discharge dated 02.11.2007. In short, according to the petitioner, the respondent no. 1 had left the workplace, during working hours and attended the office of the Inspector of Factories, on the dates as set out in para 2 of the letter and had connived with one Mardolkar, an office bearer of the local unit of Shiv Sena, in obtaining certain information from the Inspector of Factories concerning the Company, under the Right to Information Act, 2005 (RTI Act, for short), in order to "project the Company as a bad corporate citizen". It was claimed that the respondent no. 1 being an employee of the Company could have obtained the information from the Company itself. It was also alleged that the respondent no. 1 had supplied information relating to the Company to Mr. Mardolkar including a copy of the internal notice/memo dated 26.05.2000 signed by Mr. Dilip Deshpande, Vice President of the Company. 4. 1 being an employee of the Company could have obtained the information from the Company itself. It was also alleged that the respondent no. 1 had supplied information relating to the Company to Mr. Mardolkar including a copy of the internal notice/memo dated 26.05.2000 signed by Mr. Dilip Deshpande, Vice President of the Company. 4. It may be mentioned that the petitioner was an office bearer of Zuari Agro Workers Union (Minority Union, for short), which was de-registered at the instance of the Company. It was contended that the act of the respondent no. 1 in conspiring with Mr. Mardolkar, a member of a political outfit and who was not an employee of the Company and acting against the interest of the Company, was to settle the score about de-registration of the Union. 5. Feeling aggrieved by the order of discharge, the respondent no. 1 raised an industrial dispute. The appropriate Government by an order dated 02.09.2008 referred the dispute to the Tribunal, under Section 10(1)(d) of the Industrial Disputes Act, 1947 (Act, for short). 6. The respondent no. 1 filed a statement of claim. It was contended that on his confirmation on 01.12.1983, the respondent no. 1 joined the Union and was a party to several negotiations and had signed certain settlements. The Union was a Minority Union, representing the workmen in the Administrative office, while the Zuari Agro Chemicals Limited Employees' Union (Majority Union), represented the workers in the technical categories. He was elected as a General Secretary of the Minority Union in January 1999 and had raised issues relating to the interest of the employees. The adverse allegations made, the charges levelled and the motives imputed were denied. It was contended that the respondent no. 1 never left during the working hours, without the permission of the competent authority. The allegations about engaging in conspiracy with Mr. Mardolkar were denied. It was contended that the petitioner being a permanent employee could not have been discharged on allegations, which were fabricated. It was contended that the action of the management was out of personal vindication and vengeance against him. 7. The petitioner filed a written statement and while resisting the claim of the petitioner has reiterated the contents of the letter of discharge dated 02.11.2007. 8. The parties led oral and documentary evidence. The respondent no. 1 examined himself. The petitioner examined Mr. Nikesh Doure, Manager-HR and IR. 7. The petitioner filed a written statement and while resisting the claim of the petitioner has reiterated the contents of the letter of discharge dated 02.11.2007. 8. The parties led oral and documentary evidence. The respondent no. 1 examined himself. The petitioner examined Mr. Nikesh Doure, Manager-HR and IR. The parties also produced certain documents. 9. The Tribunal came to the conclusion that the action of the petitioner in terminating the services of the respondent no. 1 by the letter dated 02.11.2007 was illegal and unjustified. In that view of the matter, the Tribunal by the impugned award allowed the reference as aforesaid. Hence, this petition. 10. I have heard Shri Cama, the learned Senior Counsel for the petitioner and the respondent no. 1 in person. The parties have also filed written submissions on record. I have gone through the same and the impugned award. 11. Shri Cama, the learned Senior Counsel for the petitioner has made the following submissions: (i) The respondent no. 1 is not a 'workman' within the meaning of Section 2(s) of the Act. It is submitted that to fall within the definition of a 'workman', the job of the employee concerned has to fall within one or the other categories enumerated in the said Section and merely showing that the employee concerned is not performing any managerial or supervisory work is not enough. Reliance in this regard is placed on the decision of the Supreme Court in the case of Mukesh K. Tripathi v. Senior Divisional Manager, LIC and Others, AIR 2004 SC 4179 : (2004) 8 SCC 387 : LNIND 2004 SC 898 and Sonepat Cooperative Sugar Mills Ltd. v. Ajit Singh, AIR 2005 SC 1050 : (2005) 3 SCC 232 : LNIND 2005 SC 142 : 2005-I-LLJ-1122. (ii) The individual reference under Section 10(1)(d) of the Act was not maintainable. Reliance in this regard is placed on the decision of the Supreme Court, in the case of P. Virudhachalam and Others v. Management of Lotus Mills and Another, AIR 1998 SC 554 : (1998) 1 SCC 650 : LNIND 1997 SC 947. (ii) The individual reference under Section 10(1)(d) of the Act was not maintainable. Reliance in this regard is placed on the decision of the Supreme Court, in the case of P. Virudhachalam and Others v. Management of Lotus Mills and Another, AIR 1998 SC 554 : (1998) 1 SCC 650 : LNIND 1997 SC 947. Although it was not disputed, that none of the above two contentions, were raised before the Tribunal, in the submission of the learned Senior Counsel, they can be allowed to be raised for the first time before this Court, as they go to the root of the matter and the material on the basis of which the questions are to be decided is already there on record. Reliance is placed on the decision of the Supreme Court in the case of Chittoori Subbanna v. Kudappa Subbanna and Others, AIR 1965 SC 1325 : LNIND 1964 SC 359 : (1966) 1 MLJ 67 , in order to submit that a pure question of law not depending on facts can be allowed to be raised for the first time, as an additional ground at a later stage. It is submitted that in any event, the Tribunal could not have examined the validity of the reference as held by the Supreme Court in the case of National Engineering Industries Ltd. v. State of Rajasthan and Others, AIR 2000 SC 469 : (2000) 1 SCC 371 : LNIND 1999 SC 1079 and therefore, second ground could have been raised before the Tribunal. (iii) It is submitted that this is not a case of victimisation of the respondent no. 1. It is pointed out that the respondent no. 1 was offered promotion on more than one occasion, but he refused to take it. (iv) It is submitted that the case of loss of confidence is established on the basis of the conduct of the respondent no. 1 before and after the date of discharge. The learned Senior Counsel was at pains to point out that the respondent no. 1 had conspired with Mr. Mardolkar, an office bearer of a political outfit in divulging information of the Company, sharing copy of the memo signed by the Vice President and seeking information under the RTI Act from the office of the Inspector of Factories only to show the Company in poor light and to project the Company as a bad corporate citizen. Mardolkar, an office bearer of a political outfit in divulging information of the Company, sharing copy of the memo signed by the Vice President and seeking information under the RTI Act from the office of the Inspector of Factories only to show the Company in poor light and to project the Company as a bad corporate citizen. It is pointed out that the application under the RTI Act was filed by the respondent no. 1 in his personal capacity. It is contended that as a share holder of the Company, the respondent no. 1 could have approached the Company seeking information. Because of the acts of the respondent no. 1, the Company had to face action from the Inspector of Factories. (v) It is submitted that it is not the case of the Company that the respondent no. 1 left the workplace during office hours without permission. It is pointed out that the case is essentially about misutilisation of the permission to engage in acts against the interest of the Company. (vi) It is submitted that the discharge/termination simpliciter on the ground of loss of confidence, without holding departmental enquiry is permissible under the applicable standing orders, as the employer has two options in the matter as held by this Court in the case of Dinkar Bali Palekar v. Bharat Forge Ltd. and Others, (1996) I CLR 649 : LNIND 1995 BOM 739 : 1997-III-LLJ-482. It is submitted that the letter of discharge sets out the reasons in support of the loss of confidence, which are substantiated on record. It is submitted that absence of reasons and not failure to hold enquiry is fatal. The petitioner having set out the reasons, the order of discharge is legal and proper. Reliance in this regard is placed on the following decisions: (i) Tata Engineering and Locomotive Company Ltd. v. Prasad (SC) and Another, (1969) 3 SCC 372 : LNIND 1969 SC 114 : 1969-II-LLJ-779; (ii) Air India Corporation v. V.A. Rebello, AIR 1972 SC 1343 : LNIND 1972 SC 128; (in) Binny Ltd. v. Workmen, AIR 1973 SC 1403 ; (iv) Siddhanath Krishnaji Kadam v. Dadajee Dhachjee and Company, (1978) 80 BOMLR 614; (v) Kamal Kishore Lakshman v. Management of Pan American World Airways Inc. and Others, AIR 1987 SC 229 : (1987) 1 SCC 146 : LNIND 1986 SC 491 : 1987-I-LLJ-107; (vi) Srinarayan Mevalal Gupta v. Padamjee Pulp and Paper Mills Ltd. and Others 1991 (I) CLR 93; (vii) Divisional Controller, Maharashtra State Road Transport Corporation, Yavatmal v. Sheikh Jamal Sheikh Chand 2011(III) CLR 643 : LNIND 2011 NGP 1117 and (viii) Ratnesh Kumar Choudhary v. Indira Gandhi Institute of Medical Sciences, 2016 (I) CLR 18 : AIR 2016 SC 467 : (2015) 15 SCC 151 : LNIND 2015 SC 606. (vii) It is submitted that even if no enquiry is held by the employer or the enquiry held is found to be defective, the Tribunal in order to satisfy itself about the legality and validity of the order had to give opportunity to the employer to adduce evidence before it. Reliance in this regard is placed on the decision of the Supreme Court in the case of Workmen of Firestone Tyre and Rubber Co. of India (Pvt) Ltd. v. Management and Others, AIR 1973 SC 1227 : (1973) 1 SCC 813 : LNIND 1973 SC 430. (viii) It is submitted that the only contentions raised on behalf of the respondent no. 1 are that he is not holding a "post of confidence" and no departmental enquiry is held, none of which can be accepted. (ix) It is submitted that there are no pleadings made or evidence led by the respondent no. 1 that he was not gainfully employed and as such, the Tribunal could not have granted back wages with benefits of all the settlements. It is submitted that there is nothing on record to show that the petitioner had delayed the reference. Thus, the petitioner cannot be foisted with an order to pay back wages, that too, with benefit of all the settlements. It is submitted that grant of back wages is not automatic on the termination being found illegal. It is submitted that there is nothing on record to show that the petitioner had delayed the reference. Thus, the petitioner cannot be foisted with an order to pay back wages, that too, with benefit of all the settlements. It is submitted that grant of back wages is not automatic on the termination being found illegal. Reliance in this regard is placed on the decision of the Supreme Court in the case of Mulin Sharma v. State of Assam and Others, AIR 2016 SC 3225 : (2016) 14 SCC 208 : LNIND 2016 SC 303 and the decision of this Court in the case of ICICI Bank Ltd. v. Babasaheb Dhanpal Gat (Desai) and Others, 2016 (151) FLR 111 : LNIND 2016 BOM 297, M.P. Electricity Board v. Hariram, 2004 (III) CLR 768 : AIR 2004 SC 4791 : (2004) 8 SCC 246 : LNIND 2004 SC 1003, Divisional Controller, Karnataka State Road Transport Corporation v. M.G. Vittal Rao, (2012) 1 SCC 442 : LNIND 2011 SC 1171, Twinkle Apparels and Another v. Jitendra Kumar Patel, 2012 (III) CLR 311 and Municipal Corporation Akola v. Shridhar Raibhan Shirsat, 2015 (II) CLR 866 : LNIND 2015 NGP 174. (x) It is alternatively submitted that in an appropriate case, the Tribunal can grant a notional/reasonable compensation in lieu of reinstatement in a case based on loss of confidence, as held by this Court in the case of Hindustan Petroleum Corporation Ltd. v. Yeshwant Redkar and Another, 2004 (II) CLR 1057 : LNIND 2004 BOM 518 : 2004-III-LLJ-877. 12. The respondent no. 1, who appears in person has supported the impugned award. It is submitted that the ground about the respondent no. 1 not being a workman and the competence of the reference under Section 10(1)(d) of the Act were not raised before the Tribunal and cannot be allowed to be raised for the first time before this Court. It is submitted that the grounds are otherwise not sustainable. Reliance is placed on the decision of a Division Bench decision of this Court in the case of R.P. Sawant and Others v. Bajaj Auto Ltd. and Another, 2002 (1) MhLJ 626 : LNIND 2001 BOM 481 : 2001-II-LLJ-1349, in order to submit that such a practice by the employer has been deprecated by this Court, which is indicative of an intention to prolong the "day of reckoning and tire out the workman". It is submitted that under Section 2-A of the Act, as introduced in the year 1965, a dispute as to the termination, dismissal or discharge of an individual workman, is an industrial dispute. It is submitted that the petitioner claims to have taken the action under the certified standing order applicable to all the workmen of the Company. The petitioner has filed an application for approval of the order of discharge before the Tribunal under Section 33(2) (b) of the Act and as such, it is not open to the petitioner to contend that the respondent no. 1 is not a workman. It is submitted that even otherwise, it is not shown that the respondent no. 1 is not a workman under Section 2(s) of the Act on the basis of the nature of the duties performed by the respondent no. 1. 13. It is submitted that the action of the petitioner in discharging the respondent no. 1 is not bonafide and is in colourable exercise of the power to discharge on the pretext of loss of confidence. It is submitted that the respondent no. 1 was not holding any post of confidence. It is submitted that the action by the petitioner is vindictive in nature and is out of malice and vengeance as the respondent no. 1 had raised issues relating to safety and other genuine concerns about the safety and security in the workplace and certain practices followed by the petitioner. It is submitted that the allegations made against him are trumped up and concocted and do not make out any case of established loss of confidence. It is submitted that the petitioner cannot rely on circumstances and documents subsequent to the order of discharge to support the order. Reliance is placed on the decision of the Supreme Court in the case of Karnani Properties Ltd. v. State of West Bengal and Others, AIR 1990 SC 2047 : (1990) 4 SCC 472 : LNIND 1990 SC 449, in order to submit that fresh material cannot be considered by this Court. It is submitted that the respondent no. 1 has not acted against or prejudicial to the interest of the Company and the Tribunal is justified in granting back wages alongwith all consequential benefits. 14. I have carefully considered the circumstances and the submissions made and I do not find that a case for interference is made out. It is submitted that the respondent no. 1 has not acted against or prejudicial to the interest of the Company and the Tribunal is justified in granting back wages alongwith all consequential benefits. 14. I have carefully considered the circumstances and the submissions made and I do not find that a case for interference is made out. I would first deal with the contention about the respondent no. 1 not being a workman and the competency of the reference under Section 10(1)(d) of the Act. None of these contentions were raised before the Tribunal. Such a practice of raising the contentions for the first time has been deprecated by this Court in the case of R.P. Sawant and Others v. Bajaj Auto Ltd. and Another (supra) as "indicative of an intention to prolong the day of reckoning to tire out the workmen". It is true that it was a case of a letters patent appeal and several contentions, which were sought to be raised before the Division Bench were not raised before the learned Single Judge. Nonetheless the principle would still apply. Normally, this Court would be slow in entertaining any such grounds, which are not raised before the Tribunal, except where the ground raises a pure question of law, which goes to the root of the matter and where the determination of such a question depends on facts, such facts are already on record. The question would depend on facts and circumstances of each case. However, I propose to consider the grounds as raised, in order to "avoid further expenditure of time, energy and money on litigation, the order of discharge being of the year 2007, which the workman "ill affords" as held by this Court in the case of R.P. Sawant and Others v. Bajaj Auto Ltd. and Another (supra). 15. Now, admittedly, the petitioner has taken the impugned action of discharge on the basis of the certified standing orders, as applicable to all the workmen of the Company. The petitioner has admittedly sought approval of the order of discharge under Section 33(2)(b) of the Act before the Tribunal. The order of discharge records that the respondent no. 1 was an office bearer of the Zuari Agro Workers Union, which was a Minority Union operating in the Company, which was subsequently de-registered pursuant to the information furnished by the Company. 16. The order of discharge records that the respondent no. 1 was an office bearer of the Zuari Agro Workers Union, which was a Minority Union operating in the Company, which was subsequently de-registered pursuant to the information furnished by the Company. 16. There is no manner of dispute with the preposition that, for a person to be a 'workman' under the Act, he must be employed to do the work in any of the categories i.e. manual, skilled, unskilled, technical, operational, clerical or supervisory and it is not enough that he is not covered by any of the four exceptions to the definition of the 'workman' under Section 2(s) of the Act, as held by the Hon'ble Supreme Court in the case of Mukesh K. Tripathi v. Senior Divisional Manager, LIC and Others (supra) and Sonepat Cooperative Sugar Mills Ltd. v. Ajit Singh (supra). However, the question whether, a person is a 'workman' would depend upon facts and circumstances of each case. In the present case, it is not even suggested to the respondent no. 1, during the course of his cross examination, that he does not fall within the definition of a 'workman' or that he was doing a job which was not falling under the various categories as set out in Section 2(s) of the Act. It has come in the evidence of the workman that he joined the Company as a Government apprentice on 01.06.1982 and was absorbed in the employment of the Company on 01.06.1983. He worked in the taxation department for more than ten years. He was thereafter transferred and asked to handle the accounts of the provident fund, gratuity fund and the pension funds and was subsequently transferred to Works Account, where he worked till 02.11.2007, the date on which he was discharged. 17. The decision in the case of Mukesh K. Tripathi v. Senior Divisional Manager, LIC and Others (supra) and Sonepat Cooperative Sugar Mills Ltd. v. Ajit Singh (supra) turned on their own facts. In the case of Mukesh K. Tripathi v. Senior Divisional Manager, LIC and Others (supra), the petitioner was employed as an apprentice. 17. The decision in the case of Mukesh K. Tripathi v. Senior Divisional Manager, LIC and Others (supra) and Sonepat Cooperative Sugar Mills Ltd. v. Ajit Singh (supra) turned on their own facts. In the case of Mukesh K. Tripathi v. Senior Divisional Manager, LIC and Others (supra), the petitioner was employed as an apprentice. The Hon'ble Supreme Court found that though, the definition of a workman includes apprentice, the workman thereunder must conform to the requirements laid down in the Act, namely, he must have worked in one or the other category as mentioned in Section 2(s) of the Act, in order to acquire the status of a workman. In the case of Sonepat Cooperative Sugar Mills Ltd. v. Ajit Singh (supra), the respondent was possessing a law degree and was appointed as Legal Assistant. The respondent claimed to be a workman, performing duties of "legal clerical nature". The Hon'ble Supreme Court found that the job of the clerk ordinarily implies stereotype work without power of control or initiative or creativeness. On facts, it was found that the respondent did not do stereotype job as he rendered legal opinions, drafted pleadings and represented the appellant before various Courts/Authorities and was discharging quasi-judicial function as an inquiry officer in domestic enquiries against the workmen. It was in these circumstances held that the job would not make him a workman. 18. Considering the nature of the duties performed by the respondent no. 1, the absence of a ground challenging the status of the respondent no. 1, as a workman before the Tribunal and further having regard to the fact that the respondent no. 1, has been discharged in pursuance of the powers conferred under the standing orders, applicable to a workman, the petitioner having filed an application under Section 33(2)(b) of the Act before the Tribunal for approval, it is not possible to accept that the respondent no. 1 is not a workman. 19. This takes me to the ground that the reference under Section 10(1)(d) of the Act was not competent. The contention in my considered view cannot be accepted. It is now well settled that mere mentioning of wrong provision of law would not be decisive and in fact, would be inconsequential, if the existence of power is not in dispute. 19. This takes me to the ground that the reference under Section 10(1)(d) of the Act was not competent. The contention in my considered view cannot be accepted. It is now well settled that mere mentioning of wrong provision of law would not be decisive and in fact, would be inconsequential, if the existence of power is not in dispute. After the introduction of Section 2-A of the Act, an individual dispute relating to discharge, dismissal, retrenchment or otherwise termination of services of the workman, is an industrial dispute notwithstanding that no other workman nor any Union of the workmen is a party to such a dispute. Thus, the dispute about the discharge of the respondent no. 1 would clearly come within the ambit of an industrial dispute under Section 2-A of the Act in respect of which, a reference can be made to the Industrial Tribunal. Section 2-A of the Act was amended in the year 2010 by addition of sub-section 2 and sub-section 3. Under subsection 2 of Section 2-A of the Act, notwithstanding anything contained in Section 10, any such workman as is specified in subsection 1 can make an application directly to the Labour Court or Tribunal for adjudication of the dispute referred to therein. It can thus be seen that prior to introduction of subsection 2 of Section 2-A of the Act (in the year 2010), the reference in respect of a dispute pertaining to an individual workman has to be made under Section 10 of the Act. In any event, even assuming that the reference is said to be wrongly made under Section 10(1)(d) of the Act, would not be decisive for the reason that a mere mentioning of wrong statutory provision is inconsequential, if the existence of power is not otherwise in dispute. Thus, the contention that the reference was not competent, to my mind, cannot be accepted. 20. This takes me to the merits of the order of discharge. Before going to the facts, it would be worthwhile to recapitulate the legal position as to the authority of an employer to terminate/discharge the employee, simpliciter on the ground of loss of confidence and the scope of the challenge to such an order. In the present case, admittedly, the services of the respondent no. Before going to the facts, it would be worthwhile to recapitulate the legal position as to the authority of an employer to terminate/discharge the employee, simpliciter on the ground of loss of confidence and the scope of the challenge to such an order. In the present case, admittedly, the services of the respondent no. 1 have been terminated and he has been discharged on the ground of loss of confidence, without holding an enquiry and the respondent no. 1 was offered one month's wages in lieu of notice. According to the petitioner, the action is referable to SO No. 24 (I)(e) of the Certified Standing Orders, applicable to all the workmen. SO No. 24 pertains to punishment. Under SO No. 24(I)(e), a workman guilty of 'misconduct' may be discharged from service without notice or payment in lieu of notice. Thus, there is an authority in the employer, under the applicable standing order to effect discharge simpliciter by paying/offering one month's salary/wages to the employee. However, where such an order of discharge is challenged and gives rise to an industrial dispute, the form of the order would not be decisive and the Tribunal would be entitled to examine the substance of the matter and decide, as to whether, the termination is in fact discharge simpliciter or it amounts to dismissal, which has put on the cloak of discharge simpliciter. If the Industrial Tribunal is satisfied that the order of discharge simpliciter is (i) punitive or (ii) that it is malajide or that it amounts to victimisation or an unfair labour practice, the Tribunal would be competent to set aside the order and to direct reinstatement as held by the Supreme Court in the case of Tata Oil Mills Company Ltd. v. It's Workmen, AIR 1965 SC 155 : LNIND 1964 SC 111 : 1964-II-LLJ-113. 21. In the case of Air India Corporation v. V.A. Rebello (supra), the Supreme Court held that once bonafide loss of confidence is established, the order of termination/discharge must be considered immune from challenge. The Court further held that the opinion formed by the employer about the suitability of his employee for the job assigned to him even though erroneous, if bonafide is final and not subject to review by the Industrial Tribunal. The Court further held that the opinion formed by the employer about the suitability of his employee for the job assigned to him even though erroneous, if bonafide is final and not subject to review by the Industrial Tribunal. In that case the Air India Corporation had taken action under Regulation 48, in which, the Corporation had suspicion about the suitability of the respondent for the job in which he was required to deal with the Air Hostesses. which had led to loss of confidence. In that case, on facts, it was found that services of the respondent were not terminated because of any misconduct. It is evident that whether, or not the action of discharging the employee on the ground of loss of confidence is bonafide or is in colourable exercise of the power or is by way of victimisation, would depend upon facts and circumstances of each case. 22. Even in the case of Tata Engineering and Locomotive Company Ltd. v. Prasad (SC) and Another (supra), on facts, it was found that the Company had not acted in a malafide manner or to victimize the employee concerned, who was a member of the dissident group and there were allegations about assault of a co-employee who was grievously hurt. 23. In the case of Binny Ltd. v. Workmen (supra), the employee concerned had sought leave on false ground of visiting the native place to settle a land dispute with his brother-in-law and the employee was found to have participated in a hunger strike organised by Bangalore Silk Mills Employees' Association for redressal of certain grievances with which the management had no concern. The employee was not even an ordinary member of that Association and had refused to return to duty inspite of being called upon and continued with his hunger strike. 24. In the case of Siddhanath Krishnaji Kadam v. Dadajee Dhachjee and Company (supra), a Division Bench of this Court took note of the decision of the Supreme Court in the case of L. Michael and Another v. Johnston Pumps India Ltd., 1975 LABIC 399 : AIR 1975 SC 661 : (1975) 1 SCC 574 : LNIND 1975 SC 55, in which, the Supreme Court has drawn a distinction between "employees, particularly holding a position of confidence and the ones who do not so hold such position". In respect of the former, even a suspicion of betrayal of the confidence would be sufficient, while in the case of later, a "belief about betrayal of the confidence would be necessary. Although, the Division Bench has held that it is not possible to under estimate the element of such confidence in the harmonious, smooth and effective working of any undertaking, the Court has however to ensure that such claim for loss of confidence is genuine and is based on objective facts, lest the protection afforded to the workman becomes illusory. The Division Bench further held as under: "Well founded suspicion against the employee holding post of highly confidential nature may be considered enough for loss of confidence. In other instances, such as the petitioner, the proof of his having worked privately after leaving the office on false pretext should be held enough for the loss of confidence in him." It can thus be seen that the case turned on its own facts, where the employee was found working privately in other's garage, after leaving the office on false pretext. The Division Bench held that in such case, absence of reasons and not failure to hold enquiry, that would render such discharge malafide or an act in colourable exercise of power raising an inference of victimisation. 25. It may be significant to note that the learned Senior Counsel for the petitioner did not dispute that the petitioner was not holding a post of "highly confidential nature". It is however submitted that the material is sufficient to support a belief that the respondent no. 1 was acting against the interest of the Company, giving rise to a claim of loss of confidence, as held by the Supreme Court in the case of L. Michael and Another v. Johnston Pumps India Ltd. (supra). 26. In the case of Kamal Kishore Lakshman v. Management of Pan American World Airways Inc. and Others (supra), the Supreme Court noted its earlier decision in the case of Chandu Lal v. Pan American World Airways, AIR 1985 SC 1128 : (1985) 2 SCC 727 : LNIND 1985 SC 138, in which, it was held that the allegations about loss of confidence amounted to stigma. It was held that loss of confidence by the employer in an employee is a feature, which certainly affects the character of the employee. It was held that loss of confidence by the employer in an employee is a feature, which certainly affects the character of the employee. The Court further held that whether, termination is grounded upon stigma, would vary from case to case depending upon whether, it involves a government servant or a workman. The procedural safeguards appear to be different when termination is sought to be grounded on stigma. If the disciplinary enquiry has not preceded the order, in the case of a government servant the same would be bad. However, in the case of a workman the order could be justified in the course of the adjudication before the Tribunal. 27. In the case of Srinarayan Mevalal Gupta v. Padamjee Pulp and Paper Mills Ltd. and Others (supra), a Division Bench of this Court held that the case of loss of confidence can be accepted when the same is based on good grounds and dependable material. In that case, the employee was found to have made wild and baseless allegations against the Company of indulging in goondaism, regionalism and acting as dictator and harassing workmen from north India and there being rampant corruption in the Company. Significantly the employee concerned did not give a single instance in support of the wild allegations made against the Company. It was in these circumstances held that the case of loss of confidence was made out. 28. In the case of Ratnesh Kumar Choudhary v. Indira Gandhi Institute of Medical Sciences (supra), the Supreme Court held that if the misconduct/misdemeanor constitutes the basis of the final decision of the competent authority to dispense with the service of a probationer, albeit by a non stigmatic order, the Court can lift the veil and declare that in the garb of termination simpliciter, the employer has punished the employee for an act of misconduct. 29. The case of Divisional Controller, Karnataka State Road Transport Corporation v. M.G. Vittal Rao (supra) turned on its own facts. The respondent/employee in that case was allegedly found involved alongwith four others for theft of cash by cutting the padlock of the cash room of the employer. The respondent was proceeded with departmentally, apart from being prosecuted under Sections 457, 381 read with Section 34 of IPC. The respondent was found guilty in the departmental enquiry, while he was acquitted by the Revisional Court in the criminal case. The respondent was proceeded with departmentally, apart from being prosecuted under Sections 457, 381 read with Section 34 of IPC. The respondent was found guilty in the departmental enquiry, while he was acquitted by the Revisional Court in the criminal case. One of the questions before the Supreme Court was whether, on acquittal, the respondent was entitled to reinstatement. It was held that the dismissal not having been based on the conviction, the respondent was not entitled to reinstatement on acquittal by the Revisional Court. The Court also noticed that the standard of proof required in a criminal case is much higher than what is required in a departmental enquiry. It can thus be seen that in that case there was an independent departmental enquiry, in which the respondent was found guilty. The Court further held in para 25 of the judgment that once the employer has lost confidence in the employee and the bonafide loss of confidence is affirmed, the order of punishment must be considered immune from challenge, for the reason that discharging the office of trust requires absolute integrity and in a case of loss of confidence, reinstatement cannot be directed. The principles apart, the case clearly turned on its own facts. 30. Coming to the present case, the respondent no. 1 was employed with the petitioner as a Senior Account Assistant in the Works Account and was dealing with payments of various works undertaken in the factory and elsewhere. Significantly, there are no allegations against the respondent no. 1 of any financial irregularities being indulged into. The gravamen of the allegations as set out in the letter dated 02.11.2007 are as under: That, the respondent no. 1 on some ten occasions (as set out in para 2 of the letter) left the work place during office hours and attended the office of the Inspector of Factories (Inspector, for short). That, he had associated with one Mr. Mardolkar, who was a President of the local unit of a political party in obtaining information relating to Company, mostly about the compliances by the Company with the Factories Act, with respect to certain safety measures, adopted in the factory and certain restrictive practices being adopted in the Company in violation of the said Act. Mardolkar, who was a President of the local unit of a political party in obtaining information relating to Company, mostly about the compliances by the Company with the Factories Act, with respect to certain safety measures, adopted in the factory and certain restrictive practices being adopted in the Company in violation of the said Act. As a consequence, the Company was required to face an enquiry from the office of the Inspector as to the fact of the Company willfully reporting accidents as required under section 88(A) of the Act. That, the respondent no. 1 having asked for inspection of the files, as set out in para 5 of the letter, which again are about the safety measures adopted in the Company and about a notice under Section 41H of the Act. That, instead of approaching the inspector the respondent no. 1 could have sought for information from the Company, as the respondent no. 1 was an employee and a share holder of the Company. That, the respondent no. 1 having shared information relating to the Company with Mr. Mardolkar, including a copy of the internal notice/memo of 26.05.2000 signed by one Mr. Dilip Deshpande Vice President (Technical) of the Company. 31. In the submission of the learned Senior Counsel for the petitioner the last mentioned fact was serious enough alongwith the other allegations for the Company to have lost confidence in the respondent no. 1. While the petitioner claims that the act of the respondent no. 1 was to settle personal score as the Union of which the respondent no. 1 was an office bearer was de-registered, on the basis of the information supplied by the Company, the respondent no. 1 on the other hand, claims that the act of the petitioner in terminating/discharging the respondent no. 1 is in colourable exercise of powers and by way of victimisation as the respondent no. 1 was bonafidely pursuing the genuine concerns about the safety measures employed in the Company and the compliance with the various provisions of the Factories Act. 32. It is undisputed that the respondent no. 1 was the General Secretary of the registered Minority Union operating in the Company, while Mr. Mardolkar was the President of the Contract Workers Union in the Company. The Minority Union of which the respondent no. 32. It is undisputed that the respondent no. 1 was the General Secretary of the registered Minority Union operating in the Company, while Mr. Mardolkar was the President of the Contract Workers Union in the Company. The Minority Union of which the respondent no. 1 was the General Secretary was de-registered on the basis of the information supplied by the Company. The Tribunal has noticed that the order of deregistration of the Union was set aside in appeal and the Company has challenged the same before this Court. It is further a matter of record that the respondent no. 1 has put in about 25 years of unblemished service, when the respondent no. 1 came to be discharged. The petitioner had examined Mr. Nikesh Doure, who joined the services of the Company on 07.01.2014 i.e. about seven years from the date of discharge of the respondent no. 1. The Tribunal has noticed that Mr. Nikesh Doure thus, had no personal knowledge of the matter and has found that the allegations are based on the documents which are placed on record. In fact, I find that the evidence led by the parties, in this case, is predominantly of a documentary nature, about which there is no much of dispute. The question is whether, essentially the action of the petitioner in discharging the respondent no. 1, on the ground of loss of confidence is a bonafide exercise of the power as conferred under SO No. 24(I)(e) or whether, it is in colourable exercise of power, thus amounting to victimisation of the respondent no. 1. The allegations against the respondent no. 1 can be broadly classified into three categories. The first is with reference to leaving of the workplace on some ten occasions and attending the office of the Inspector. Secondly, about conniving with Mr. Mardolkar in filing application and seeking information under the RTI Act and thirdly, about the respondent no. 1 having supplied a copy of the internal notice/memo dated 26.05.2000 to Mr. Mardolkar, signed by Mr. Dilip Deshpande, Vice President of the Company. 33. The Tribunal has considered the evidence as led by the parties on all these three aspects and has found that the petitioner has failed to establish any of the allegations. Mr. 1 having supplied a copy of the internal notice/memo dated 26.05.2000 to Mr. Mardolkar, signed by Mr. Dilip Deshpande, Vice President of the Company. 33. The Tribunal has considered the evidence as led by the parties on all these three aspects and has found that the petitioner has failed to establish any of the allegations. Mr. Nikesh Doure, during the course of his cross examination had volunteered to produce the written correspondence of the Union to attend the Court proceedings or conciliation proceedings prior to 2007, if available, which he ultimately did not produce. Mr. Nikesh Doure admitted that there is nothing in writing with the Company to show that the respondent no. 1 had left the workplace without any approval. The learned Senior Counsel for the petitioner also pointed out that it is not the case of the petitioner that he left the workplace unauthorisedly or without permission. It is contended that the respondent no. 1 sought permission and misused the same by attending the office of the Inspector. It is not possible to accept the said contention. This is because it is not shown on the basis of record that the respondent no. 1 had sought permission or leave for specific reason and in breach thereof, had attended the office of the Inspector. It is thus, not possible to accept that the respondent no. 1 had attended the office of the Inspector in breach of the permission granted by the petitioner. 34. This takes me to the second ground about the RTI applications filed by the respondent no. 1. The petitioner has produced certain RTI applications (Exhibit 32), which are filed admittedly after the termination of the respondent no. 1. Thus, these applications, which are produced at Exhibit 32 cannot form the basis of the order of discharge. Exhibit 35 (colly) are the applications filed by Mr. Mardolkar to the Public Information Officer (PIO), while Exhibit 36 (colly) are the proceedings before the Inspector. Exhibit 37 are the letters addressed to the PIO by the respondent no. 1, while Exhibit 48 are the proceedings before the Inspector. The Tribunal has found and to my mind rightly so, that the nature of these documents does not show that the respondent no. 1 had made any false or malicious allegations against the petitioner or that the respondent no. 1, while Exhibit 48 are the proceedings before the Inspector. The Tribunal has found and to my mind rightly so, that the nature of these documents does not show that the respondent no. 1 had made any false or malicious allegations against the petitioner or that the respondent no. 1 was working against the interest of the Company, by filing the RTI applications. The Tribunal in my considered view is right in concluding that mere filing of the applications under RTI Act and seeking information, would not be sufficient for the employer to claim loss of confidence. 35. There may be a case where there is gross abuse or misuse of the RTI Act and such applications are filed or information is sought maliciously, in order to malign the reputation or image of the Company. However, once, it is found that the act of the respondent no. 1, in seeking the information was not malicious, it cannot be accepted that the filing of the RTI applications, would be sufficient for the Company to infer or claim loss of confidence in the concerned employee. If a third party can justifiably seek permissible information under the RTI Act, there is no reason as to why an employee of the Company, would be unable to seek such information. The respondent no. 1 was seeking information regarding the safety measures adopted in the Company and the compliance with the Factories Act, which was otherwise the statutory duty of the petitioner. The Tribunal in my considered view is right in holding that the respondent no. 1, being the General Secretary of the Union had every right to seek information regarding the safety measures adopted in the Company for the benefit of the workmen. Even in his personal right, the respondent no. 1 was entitled and justified in seeking the information. 36. The Tribunal has also considered the allegation about the respondent no. 1 having conspired with Mr. Mardolkar in seeking information under the RTI Act and sharing a copy of the internal memo with him. On behalf of the petitioner reference is made to the letter dated 19.06.2007 (Exhibit 35) written by Mr. 36. The Tribunal has also considered the allegation about the respondent no. 1 having conspired with Mr. Mardolkar in seeking information under the RTI Act and sharing a copy of the internal memo with him. On behalf of the petitioner reference is made to the letter dated 19.06.2007 (Exhibit 35) written by Mr. Mardolkar to the then Inspector of Factories, in which, an inquiry was sought by him on some issues, particularly, on some restrictive practices adopted by the Company and whether, the Company did not willfully report accidents as required under Section 88A of the Factories Act. The Tribunal has found that the said letter dated 19.06.2007 referred to another letter dated 01.04.2003, addressed by the petitioner to the then Inspector of Factories and Boilers in response to a notice dated 22.01.2003 by the Zuari Agro Chemical Ltd. Workers' Union, which was obtained under the RTI Act. The Tribunal has found that the letter written by Mr. Mardolkar was on the basis of the information he received under the RTI Act and Mr. Mardolkar got access to the letter dated 22.01.2003 which contained the memo dated 26.05.2000 (Exhibit 16). In that view of the matter, the Tribunal has found that the respondent no. 1 had not shared the copy of the memo with Mr. Mardolkar and in fact, Mr. Mardolkar already had an access to the said memo, which was annexed to the letter dated 22.01.2003, which Mr. Mardolkar obtained under the RTI Act. In my considered view, the finding so recorded is based on the evidence as laid and cannot be faulted. 37. It would be significant to note that there is documentary evidence on record to show that there were complaints made by the General Secretary of the Majority Union, which were addressed to the General Manager and the copies of which were marked to the Inspector of Factories and Boilers and Deputy Labour Commissioner, Margao. The said complaints also pertained to the inadequate manpower in the plant, non working of the dehumidifier, unsafe working of NPK plant with a potential to result into an accident and cause casualties amongst the workmen. It can thus be seen that even the Majority Union had made certain allegations against the safety measures, with the Inspector of Factories and Boilers and the Labour Commissioner. 38. It can thus be seen that even the Majority Union had made certain allegations against the safety measures, with the Inspector of Factories and Boilers and the Labour Commissioner. 38. It is true that the Tribunal had at more than one places observed that the respondent no. 1 was not holding a position of trust and confidence and the petitioner has been unable to show that continuing the respondent no. 1 in service would be "embarrassing and inconvenient or would be detrimental to the discipline or security of the establishment". The learned Senior Counsel for the petitioner was at pains to point out that every employee is in a sense holding a position of trust and confidence, as held by the Supreme Court in the case of L. Michael and Another v. Johnston Pumps India Ltd. (supra) and the Division Bench of this Court in the case of Siddhanath Krishnaji Kadam v. Dadajee Dhachjee and Company (supra). It is true that every employee, irrespective of his hierarchical position in service, would hold a position of trust and confidence and it is not possible to under estimate the element of such confidence in the harmonious, smooth and effective working of any undertaking as held in the case of Siddhanath Krishnaji Kadam v. Dadajee Dhachjee and Company (supra). As noticed earlier, the Supreme Court has drawn a distinction in the case of L. Michael and Another v. Johnston Pumps India Ltd. (supra) between the employees particularly, one holding a position of confidence and the ones, who do not so hold such position. In the case of former, a suspicion of the employer about the betrayal of the confidence, while in the case of later, a belief as to such betrayal would be required to support the order of discharge/termination. The learned Senior Counsel for the petitioner did not dispute that the present case would fall under the later category and as such, the action of discharge on the ground of loss of confidence will have to be supported on the basis of "belief about betrayal of confidence" as held by the Supreme Court in the case of L. Michael and Another v. Johnston Pumps India Ltd. (supra). 39. 39. As noticed earlier, it is not shown that the petitioner has absented the workplace without permission or had attended the office of the Inspector in breach of a specific permission granted or obtained for any other purpose. Secondly, the mere filing of the applications under the RTI Act and seeking information particularly, when it is not shown that the information was sought with a malicious intent. Thirdly, the petitioner having failed to establish that the respondent no. 1 had diverted the information and the memo (Exhibit 16) to Mr. Mardolkar, it cannot be accepted that the respondent no. 1 was acting in a detrimental manner to the interest of the petitioner. Thus, the petitioner has failed to show that there was enough material to support a belief of betrayal of confidence. 40. I have carefully gone through the reasoning articulated by the learned Tribunal, while refusing to accept the ground of loss of confidence and I do not find that it suffers from any infirmity so as to require interference. In all probability, the action of the petitioner was actuated on account of the fact that the respondent no. 1 had raised a grievance concerning the safety measures, adopted by the Company and about non-compliance with the provisions of the Factories Act. As noticed earlier, the reliance placed on the RTI applications, which are subsequent to the order of discharge, would not be permissible. Thus, the Tribunal was justified in holding that the impugned order of discharge cannot be sustained. 41. Shri Cama, the learned Senior Counsel for the petitioner submitted that even where no inquiry is held, the employer can substantiate the order on the basis of the evidence led before the Tribunal. There cannot be any manner of dispute with the preposition as canvassed. However, it may not come to the aid of the petitioner, in this case for the simple reason that the evidence, which is predominantly of a documentary nature, is already placed on record and the parties had an opportunity to lead evidence, which has been availed. 42. This takes me to the relief, which can be granted to the respondent no. 1. The Tribunal has extensively considered this aspect, while considering the issue nos. 2 and 3. The material contention on behalf of the petitioner is that the respondent no. 42. This takes me to the relief, which can be granted to the respondent no. 1. The Tribunal has extensively considered this aspect, while considering the issue nos. 2 and 3. The material contention on behalf of the petitioner is that the respondent no. 1 had not pleaded in the statement of claim nor in the evidence that he is not gainfully employed or that he could not secure employment inspite of efforts made and therefore, the respondent no. 1 has not discharged the initial burden cast on him. It is contended that direction to pay full back wages is not automatic, consequent upon the termination/discharge/dismissal order being found to be bad in law. It is submitted that there is discretion vested in the Tribunal whether, or not to grant the relief of full back wages and such a discretion being a judicial one has to be exercised in a objective manner in the facts and circumstances of each case. 43. On the contrary, it is contended by the respondent no. 1 that there is gross delay in disposal of the reference on account of frivolous defences taken by the petitioner. 44. The Tribunal has noticed the decision of the Supreme Court in the case of Padmavati and Others v. Harijan Sewak Sangh, 154 (2008) DLT 411 : LNIND 2008 DEL 2711, in order to hold that in certain cases frivolous defences are taken as a calculated venture to prolong the litigation, so as to deprive the rights of the workman and enjoy the fruits of illegalities. The Tribunal has also noticed the decision of the Supreme Court in the case of Deepali Gundu Surwase v. Kranti Junior Adhyapak Mahavidyalaya (D. Ed) and Others, 2014 (II) CLR 813 : (2013) 10 SCC 324 : LNIND 2013 SC 800, in which the Supreme Court has held that in the case of wrongful termination of service, reinstatement with continuity of service and back wages is the normal rule. 45. The Tribunal has then noticed that the respondent no. 1 had filed statement of claim on 11.12.2008 and affidavit in evidence on 08.07.2009 and had sought reinstatement with full back wages. The Tribunal has found that the fact that the respondent no. 1 had sought full back wages would mean that he is not gainfully employed and the petitioner has not rebutted the claim of the respondent no. 1. 1 had filed statement of claim on 11.12.2008 and affidavit in evidence on 08.07.2009 and had sought reinstatement with full back wages. The Tribunal has found that the fact that the respondent no. 1 had sought full back wages would mean that he is not gainfully employed and the petitioner has not rebutted the claim of the respondent no. 1. The Tribunal has held that the Industrial Disputes Act being a beneficial legislation and the respondent no. 1 having sought reinstatement with back wages, it has to be presumed that the respondent no. 1 was not gainfully employed. The Tribunal has found that "there is no evidence to the contrary". In that view of the matter, the Tribunal has refused to accept that the respondent no. 1 is not entitled to full back wages. 46. I have carefully considered the rival circumstances and the submissions made. The law relating to the grant of back wages on the order of dismissal/discharge/termination being found to be illegal has not been static and has developed over a period of time. Although, it is fairly well settled that the grant of back wages is not automatic, on the order of dismissal/discharge/termination having been found to be illegal, the question of burden and onus to prove that the workman was not gainfully employed, has evolved over a period of time and has undergone a change. In some of the decisions, placing reliance on Section 106 of the Evidence Act, it has been held that the workman cannot be expected to discharge the negative burden of proving that he/she was not gainfully employed, during the period he/she was out of service. There are decisions holding that the workman has to plead and aver that he/she was not gainfully employed, so as to discharge the initial burden, when the onus would shift to the employer to show otherwise. In the case of Deepali Gundu Surwase v. Kranti Junior Adhyapak Mahavidyalaya (D. Ed) and Others (supra), the question was whether, the appellant was entitled to wages for the period during which she was forcibly kept out of service by the management of the school. In the case of Deepali Gundu Surwase v. Kranti Junior Adhyapak Mahavidyalaya (D. Ed) and Others (supra), the question was whether, the appellant was entitled to wages for the period during which she was forcibly kept out of service by the management of the school. The Supreme Court inter alia held that in cases of wrongful termination of service, reinstatement with continuity of service and back wages is the normal rule and the High Court committed grave error in interfering with the order passed by the Tribunal directing payment of back wages. The Supreme Court after taking survey of several decisions, holding the field has culled out the principles in para 33 of the judgment as under: "33. The propositions which can be culled out from the aforementioned judgments are: (i) In cases of wrongful termination of service, reinstatement with continuity of service and back wages is the normal rule. (ii) The aforesaid rule is subject to the rider that while deciding the issue of back wages, the adjudicating authority or the Court may take into consideration the length of service of the employee/workman, the nature of misconduct, if any, found proved against the employee/workman, the financial condition of the employer and similar other factors. (iii) Ordinarily, an employee or workman whose services are terminated and who is desirous of getting back wages is required to either plead or at least make a statement before the adjudicating authority or the Court of first instance that he/she was not gainfully employed or was employed on lesser wages. If the employer wants to avoid payment of full back wages, then it has to plead and also lead cogent evidence to prove that the employee/workman was gainfully employed and was getting wages equal to the wages he/she was drawing prior to the termination of service. This is so because it is settled law that the burden of proof of the existence of a particular fact lies on the person who makes a positive averments about its existence. It is always easier to prove a positive fact than to prove a negative fact. Therefore, once the employee shows that he was not employed, the onus lies on the employer to specifically plead and prove that the employee was gainfully employed and was getting the same or substantially similar emoluments. It is always easier to prove a positive fact than to prove a negative fact. Therefore, once the employee shows that he was not employed, the onus lies on the employer to specifically plead and prove that the employee was gainfully employed and was getting the same or substantially similar emoluments. (iv) The cases in which the Labour Court/Industrial Tribunal exercises power under Section 11-A of the Industrial Disputes Act, 1947 and finds that even though the enquiry held against the employee/workman is consistent with the rules of natural justice and/or certified standing orders, if any, but holds that the punishment was disproportionate to the misconduct found proved, then it will have the discretion not to award full back wages. However, if the Labour Court/Industrial Tribunal finds that the employee or workman is not at all guilty of any misconduct or that the employer had foisted a false charge, then there will be ample justification for award of full back wages. (v) The cases in which the competent Court or Tribunal finds that the employer has acted in gross violation of the statutory provisions and/or the principles of natural justice or is guilty of victimizing the employee or workman, then the concerned Court or Tribunal will be fully justified in directing payment of full back wages. In such cases, the superior Courts should not exercise power under Article 226 or 136 of the Constitution and interfere with the award passed by the Labour Court, etc., merely because there is a possibility of forming a different opinion on the entitlement of the employee/workman to get full back wages or the employer's obligation to pay the same. The Courts must always be kept in view that in the cases of wrongful/illegal termination of service, the wrongdoer is the employer and sufferer is the employee/workman and there is no justification to give premium to the employer of his wrongdoings by relieving him of the burden to pay to the employee/workman his dues in the form of full back wages. (vi) In a number of cases, the superior Courts have interfered with the award of the primary adjudicatory authority on the premise that finalization of litigation has taken long time ignoring that in majority of cases the parties are not responsible for such delays. Lack of infrastructure and manpower is the principal cause for delay in the disposal of cases. (vi) In a number of cases, the superior Courts have interfered with the award of the primary adjudicatory authority on the premise that finalization of litigation has taken long time ignoring that in majority of cases the parties are not responsible for such delays. Lack of infrastructure and manpower is the principal cause for delay in the disposal of cases. For this the litigants cannot be blamed or penalised. It would amount to grave injustice to an employee or workman if he is denied back wages simply because there is long lapse of time between the termination of his service and finality given to the order of reinstatement. The Courts should bear in mind that in most of these cases, the employer is in an advantageous position vis-à-vis the employee or workman. He can avail the services of best legal brain for prolonging the agony of the sufferer, i.e., the employee or workman, who can ill afford the luxury of spending money on a lawyer with certain amount of fame. Therefore, in such cases it would be prudent to adopt the course suggested in Hindustan Tin Works Private Limited v. Employees of Hindustan Tin Works Private Limited, (1979) 2 SCC 80 . (vii) The observation made in J.K. Synthetics Ltd. v. K.P. Agrawal and Another, (2007) 2 SCC 433 that on reinstatement the employee/workman cannot claim continuity of service as of right is contrary to the ratio of the judgments of three Judge Benches referred to hereinabove and cannot be treated as good law. This part of the judgment is also against the very concept of reinstatement of an employee/workman." 47. In my considered view, the present case would be governed by clause (v) of para 33 of the judgment in the case of Deepali Gundu Surwase v. Kranti Junior Adhyapak Mahavidyalaya (D. Ed) and Others (supra), where the competent Court or Tribunal finds that the employer has acted in gross violation of the statutory provisions and/or the principles of natural justice or is guilty of victimising the employee or workman, then the concerned Court or Tribunal will be fully justified in directing payment of full back wages. The Supreme Court has held that in such cases, the Superior Courts should not exercise power under Article 226 or 136 of the Constitution and interfere with the award passed by the Labour Court, merely because there is a possibility of forming a different opinion on the entitlement of the employee/workman to get full back wages or the employer's obligation to pay the same. 48. In the case of Mulin Sharma v. State of Assam and Others (supra), it was found that the appellant did not perform his duties in the School at the behest of the respondents and the fact of he being unemployed throughout the period was not proved and in that view of the matter, the learned Single Judge after examining that the resignation was not voluntary had refused direction of back wages. The Supreme Court found that no case for interference was made out. 49. The present case can be looked at from another angle. The petitioner during the pendency of the reference before the Tribunal, has attained the age of superannuation and as such, the relief of reinstatement is not competent. Thus, if it is to be held that the respondent no. 1 is also not entitled to any back wages, the fact about the illegal discharge of the respondent no. 1, would stare us in face. It would lead to a situation, where inspite of the fact that the Court has come to the conclusion, that the order of discharge is illegal and amounting to victimisation of respondent no. 1, would refuse to grant any relief i.e. neither of reinstatement (as it has become incompetent) nor of back wages. It is not possible to accept such an incongruous situation. 50. The learned Senior Counsel for the petitioner has made an alternate submission of grant of some compensation in lieu of reinstatement. For this purpose, reliance is placed on the decision of the Division Bench of this Court in the case of Hindustan Petroleum Corporation Ltd. v. Yeshwant Redkar and Another (supra). In that case, the Division Bench placing reliance on the decision of the Supreme Court in the case of O.P. Bhandari v. I.T.D.C., AIR 1987 SC 111 : (1986) 4 SCC 337 : LNIND 1986 SC 353 : 1986-II-LLJ-509 had modified the award by restricting the salary to 3.33 years in place of salary for 4 years granted by the Tribunal. 51. 51. It would be necessary to refer to the decision of the Supreme Court in the case of O.P. Bhandari v. I.T.D.C. (supra). In that case, the services of the appellant, who was working as a Manager at Hotel Ranjit, New Delhi, run by the respondent-Corporation, were terminated, in exercise of powers under Rule 31(v) of the ITDC Conduct Discipline and Appeal Rules, 1978, on the ground that his services were no longer required. On behalf of the appellant an alternate submission was made that in the event, the Court is not inclined to order reinstatement, the appellant be awarded full allowances and salary, which would have accrued to him till the date of his superannuation, which was more than eight years away. The Supreme Court, in the circumstances, found it unreasonable to allow him eight years salary and allowances in lieu of reinstatement. This is because to do so would have amounted to paying the appellant 20% over and above what he would have earned, if he was in service, without doing any work. Apart from that, the appellant would get interest if he had invested the amount. In the peculiar circumstances of the case, the Supreme Court found that the compensation equivalent to 3.3 years salary (including allowances as admissible) on the basis of last drawn salary by the appellant, would be a reasonable amount to award in lieu of reinstatement, taking into account the following factors, as noticed in the judgment: "The corpus if invested at the prevailing rate of interest (15%) will yield 50% of the annual salary and allowances. In other words every year he will get 50% of what he would have earned by way of salary and allowances with four additional advantages: (i) He will be getting this amount without working. (ii) He can work somewhere else and can earn annually whatever he is worth over and above, getting 50% of the salary he would have earned. (iii) If he had been reinstated he would have earned the salary only upto the date of superannuation (upto 55, 58 or 60 as the case may be) unless he died earlier. As against this 50% he would be getting annually he would get not only beyond the date of superannuation, for his & lifetime (if he lives longer), but even his heirs would get it in perpetuity after his demise. As against this 50% he would be getting annually he would get not only beyond the date of superannuation, for his & lifetime (if he lives longer), but even his heirs would get it in perpetuity after his demise. (iv) The corpus of lump sum compensation would remain intact, in any event. No doubt he will not have the advantage of further promotion, but then what are his prospects, given the present relationship? Besides, the chances of promotion can be set off against the risk of a departmental disciplinary proceeding. Factors (i), (ii), (iii) and (iv) are of such great significance that compensation on the basis of 50% of his annual salary and allowances is much more to his advantage." In that case, the respondent-Corporation was given an option to either reinstate the appellant with full back wages including the usual allowances or pay salary equivalent to 3.3 years including usual allowances, provident fund etc. 52. Coming to the present case, the respondent no. 1 has already attained the age of superannuation and as such, the relief of reinstatement is not competent. It is not possible to accept that the compensation in lieu of reinstatement can be restricted to 3.3 years of wages including allowances. The case of O.P. Bhandari v. I.T.D.C. (supra), insofar as fixing the quantum of compensation is concerned, turned on its own facts. It may not be out of place to mention that one of the reasons for the amount equivalent to 3.3 years salary was found to be adequate was the prevailing rate of interest at the relevant time, which was 15%, which at present is about 7.5%. The period for which the respondent no. 1 is out of service is from 02.11.2007 to 31.12.2015, which is about eight years and one month. I find that grant of wages, with all permissible allowances for the aforesaid period, would be reasonable compensation, in the present case. 53. This takes me to the issue about the benefit of the previous settlements being granted to the respondent no. 1. It has come on record that the Union of which, the respondent no. 1 was a General Secretary, did not accept the benefit of the settlements dated 16.01.2003, 24.03.2006 and 30.11.2009 and the Union has submitted a separate charter of demands, which is pending. 54. 1. It has come on record that the Union of which, the respondent no. 1 was a General Secretary, did not accept the benefit of the settlements dated 16.01.2003, 24.03.2006 and 30.11.2009 and the Union has submitted a separate charter of demands, which is pending. 54. The learned Senior Counsel for the petitioner has referred to the evidence of the respondent no. 1 in IT Nos. 62/1999 and 45/2003, in order to submit that the Union did not accept the benefit of the aforesaid three settlements and as such, the Tribunal was in error in directing payment of full back wages, including the benefit of all the settlements to the respondent no. 1. The parties have brought, in all five settlements, to my notice, out of which the settlement dated 19.05.2000 being a settlement under Section 12(3) of the Act, the benefit of the same has been extended to the Minority Union represented by the respondent no. 1. The three settlements as referred to above, alongwith yet another settlement dated 11.12.2014, which are settlements under Section 2(p) of the Act, have not been accepted by the respondent no. 1 or the Minority Union. It is a matter of record that this issue is pending before the Tribunal. It was submitted on behalf of the petitioner that the issue about the extension of the benefit of the settlements would depend upon the outcome of the reference i.e. IT Nos. 62/1999 and 45/2003. 55. On the contrary, it is submitted by the respondent no. 1 that the respondent no. 1 is personally agreeable to accept the benefit of the said settlements and is ready to give the required undertaking to the petitioner. 56. In my considered view, once the order of discharge is held to be not legal or justified and in view of the specific statement by the respondent no. 1 that he is personally ready to accept the benefit of the settlements, it would not be appropriate to deny the benefit of the said settlements to the respondent no. 1. 57. This takes me to the question of grant of interest. The Tribunal has awarded interest at the rate of 18% per annum "on account of inflation" from 2007 onwards on the amount of back wages. 1. 57. This takes me to the question of grant of interest. The Tribunal has awarded interest at the rate of 18% per annum "on account of inflation" from 2007 onwards on the amount of back wages. It was pointed out by the learned Senior Counsel for the petitioner that the Tribunal could not have granted interest on the amount of back wages from the date of discharge/termination. It is submitted that however there are cases in which, interest is granted on the amount of back wages from the date of the award, in the event, if the amount is not paid within the stipulated period. It is submitted that the respondent no. 1 having not accepted the settlements, the Tribunal was in error in awarding interest on the back wages after giving benefit of the various settlements. 58. The respondent no. 1 also in all fairness submitted that he could not find any case in which such interest is granted from the date of discharge or termination. He however submitted that he has suffered pecuniary loss on account of the order of discharge, which was passed on concocted grounds, which needs to be compensated. 59. I have given my anxious consideration to the circumstances and the submissions made and to my mind, the learned Counsel for the petitioner is right in contending that the Tribunal was in error in granting interest at the rate of 18% per annum from the date of discharge, particularly, when the respondent no. 1 has not accepted the benefit of the settlements. It will be unjust to ask the petitioner to pay interest on the revised wages, calculated as per the settlements, when the petitioner was not ready to accept the benefit of the said settlements and had raised separate charter of demands through the Minority Union. 60. This takes me to the last aspect about grant of costs of Rs. 2 lakhs. The Tribunal has granted this amount towards costs of litigation, so also towards the "pain and agony, which the respondent no. 1 has suffered for no fault of his". It is submitted by the learned Senior Counsel for the petitioner that the Tribunal does not have jurisdiction to grant costs for pain and suffering or agony. The learned Senior Counsel for the petitioner is right in that respect. 1 has suffered for no fault of his". It is submitted by the learned Senior Counsel for the petitioner that the Tribunal does not have jurisdiction to grant costs for pain and suffering or agony. The learned Senior Counsel for the petitioner is right in that respect. However, the order of discharge having been found to be illegal and further having found that the respondent no. 1 was required to pursue the litigation for a period of 10 years, I am inclined to grant costs of Rs. 1 lakh, as a special case. 61. In the result, the following order is passed: (a) The petition is partly allowed. (b) The part of the impugned award, holding the action of the management of M/s. Zuari Industries Limited, Goa in discharging/terminating the services of the respondent no. 1 with effect from 02.09.2007, being illegal and unjustified, is hereby confirmed. (c) The petitioner (party no. II) is directed to pay to the respondent no. 1 (party no. I) an amount equivalent to full back wages for the period from the date of discharge, till the date of superannuation, alongwith all consequential benefits, including the benefits of all the settlements. (d) The extension of benefits of all the settlements to the respondent no. 1, shall be subject to an individual undertaking being furnished by the respondent no. 1 to the petitioner, unconditionally accepting all such settlements, which have been entered into with the Majority Union. The undertaking shall be furnished within four weeks from today. (e) The petitioner shall deposit the aforesaid amount before the Tribunal, within a period of sixty days from the date of furnishing of the undertaking, failing which, the amount shall carry interest at the rate of 9% per annum. (f) If the undertaking as above is not furnished, the petitioner shall pay the back wages with all admissible benefits, on the basis of last drawn wages of the respondent no. 1 on the date of discharge, within sixty days from the expiry of the period for filing the undertaking, failing which, the amount shall carry interest at the rate of 9% per annum. (g) The respondent no. 1 shall also be entitled to costs of Rs. 1 lakh. (h) Rule is made absolute in the aforesaid terms.