JUDGMENT AND ORDER : DEVASHIS BARUAH, J. Heard Mr. S. Chakraborty, the learned counsel appearing on behalf of the Petitioner. Mr. M. Chetia, the learned Government Advocate appears on behalf of the Respondent No. 1 and Ms. A. Biyani, the learned counsel appears on behalf of the Respondent No. 2. 2. The present writ petition has been filed challenging the Award dated 19.01.2023 (hereinafter referred to as, “the impugned award”) passed by the learned Labour Court of Assam, Kamrup (M) at Guwahati (hereinafter referred to as, “the learned Labour Court”) in Reference Case No. 01/2022 whereby the Award was passed in favour of the Respondent No. 2 and against the Petitioner. 3. The legality of the said award is the subject matter of challenge in the present proceedings. To appreciate the same, this Court finds it relevant to take note of the brief facts which led to the filing of the instant writ petition. FACTUAL MATRIX 4. The Petitioner herein was admittedly appointed in the services of the Respondent No. 2 on 17.06.2009. On 23.03.2021, the HR Head of the Respondent No. 2 had issued a letter to the Petitioner alleging inter alia that a notice was received from Indian Oil Corporation Limited regarding payment of an outstanding amount of Rs. 1,57,745/- for fuels lifted by the Petitioner for 108 dumper service from April, 2014. It was also alleged in the said letter that there was a serious lapse on the part of the Petitioner and such an action was not acceptable. The Petitioner was asked to submit a written explanation within 48 hours from the receipt of the said show cause notice, failing which, the Respondent No. 2 would take disciplinary action up to service separation. 5. On the same day i.e. on 23.03.2021, the Petitioner’s service was relocated from Sivasagar to Kasomari in the Golaghat district and the Petitioner was asked to report on or before 25.03.2021. Although, the show cause notice dated 23.03.2021 made no reference on the basis of what communication as well as the contents of the communication, the allegations were leveled against the Petitioner, but the materials on record reveals that it was done so on the basis of a communication dated 15.10.2020 issued by one Sri Manoj Poddar, who was the proprietor of one Lohit Fuel Service. In the said communication dated 15.10.2020 which had been exhibited before the learned Labour Court by the Respondent No. 2 as Exhibit-A, it transpires that the said Sri Manoj Poddar alleged that an amount of Rs. 1,57,745/- was the outstanding amount payable against fuel given to 108 dumper service. It was also alleged that the said fuel was lifted by the Respondent No. 2’s Program Managers, namely one Sri Sourav Dutta and the Petitioner and in spite of constant reminders to make payment, the said amount was not paid and under such circumstances, requested the Respondent No. 2 to immediately release the payment. 6. The Petitioner thereupon submitted a reply stating inter alia that the Petitioner was not involved. Along with his reply, he enclosed a letter dated 24.03.2021 issued by Sri Manoj Poddar, the proprietor of Lohit Fuel Service which clarified that the Petitioner was not involved in respect to the pending bills. This communication issued by Sri Manoj Poddar dated 24.03.2021 wherein it was clarified that the Petitioner had no role was exhibited by the Respondent No. 2 before the learned Labour Court as Exhibit-D. It is pertinent herein to observe at this stage that in the said letter dated 24.03.2021 (Exhibit D), it was categorically mentioned that the Petitioner was not involved in respect to the pending bills. 7. The record further reveals that another communication was issued by Sri Manoj Poddar to the Respondent No. 2 dated 10.04.2021 which was exhibited as Exhibit-5 by the Petitioner wherein also it was categorically mentioned that the Petitioner had no role to play in respect to the pending bills. 8. Be that as it may, on 15.06.2021, the Respondent No. 2 terminated the service of the Petitioner with immediate effect on the ground that the management of the Respondent No. 2 found that the Petitioner was involved in fueling dumper by using Company's name which was against the Company's protocol and had violated the same by involving in the illegal activity. It is relevant to observe that the said termination of the Petitioner was done without holding any Domestic Enquiry. Resultantly, an Industrial Dispute arose which led to the Government of Assam issuing a Notification dated 19.04.2022 making a Reference under Section 10 of the Industrial Disputes Act, 1947 (for short, “the Act of 1947”). The terms of Reference were as follows: 1. Resultantly, an Industrial Dispute arose which led to the Government of Assam issuing a Notification dated 19.04.2022 making a Reference under Section 10 of the Industrial Disputes Act, 1947 (for short, “the Act of 1947”). The terms of Reference were as follows: 1. Whether the management of GVK EMRI was justified in terminating the Complainant? 2. Was due procedure followed in the form of disciplinary action before terminating the Complainant sufficient? 3. What relief the workman is entitled to in case the retrenchment is termed as invalid? 9. Pursuant to the Reference being made to the learned Labour Court, notices were issued to the Petitioner and the Respondent No. 2 and both the parties duly submitted their pleadings. 10. In the written statement filed by the Respondent No. 2, it was mentioned that the proceedings were initiated on the basis of the communication received dated 15.10.2020 from the proprietor of the Lohit Fuel Service. It was also mentioned that upon such letter, investigation was carried out and it was found that both the Petitioner and his reporting Manager Mr. Sourav Dutta were involved in such illegal act. Mr. Sourav Dutta on being asked, resigned from his post as Program Manager, Upper Assam, but as the Petitioner did not resign, a show cause notice dated 23.03.2021 was issued. It was further mentioned that on the very next date of the show cause notice issued by the Management to the Petitioner, the owner of the Lohit Fuel Service wrote another letter dated 24.03.2021 wherein it was mentioned that they had received a letter from the Petitioner stating that he had been lifting fuel from Lohit Fuel Service for his own 108 vehicle and had mentioned the names of Jatin Buragohain, Sourav Dutta, Sourav Bora and Kukil Buragohain were involved in the case. It was mentioned that the above written statement by the Petitioner to the owner of Lohit Fuel Service confirmed that the Petitioner was aware about the lifting fuel in illegal way and he was involved in it. It was further averred that after due investigation and dissatisfied with the reply of the Petitioner and the owner of Lohit Fuel Service, the Petitioner’s services were terminated considering him as irresponsible, errant and demotivate the entire 108 team by illegal activities. It was further averred that after due investigation and dissatisfied with the reply of the Petitioner and the owner of Lohit Fuel Service, the Petitioner’s services were terminated considering him as irresponsible, errant and demotivate the entire 108 team by illegal activities. At paragraph No. 11 of the said written statement, it was mentioned that the Respondent No. 2 operates the “Mrityunjoy-108” Ambulance services in the State of Assam and it is an emergency healthcare service for the people of Assam and violating the Rules of Standing Order, the Petitioner cheated with the Respondent No. 2 to run 108 services and his termination cannot be re-considered as he was misusing the brand name of 108 services for his own interest. 11. The Petitioner also submitted his written statement wherein he stated about his appointment made on 17.06.2009; the issuance of the show cause notice; the reply submitted by the Petitioner as well as the termination of the Petitioner. In addition to that, the Petitioner also stated that he had made a complaint before the learned Labour Officer-cum-Conciliation Officer, Sivasagar, Assam, but the Conciliation proceedings failed. The reliefs which were sought for by the Petitioner were reinstatement in service with full back wages from the date of termination plus all consequential benefits of his service and Rs. 2,00,000/- as cost of litigation. 12. The Petitioner had also submitted a re-joinder to the written statement filed by the Management stating inter alia that the Management had not conducted any Domestic Enquiry against the workman by issuing Charge-sheet and by appointing anyone as an Enquiry Officer. The Management had also not served notice before terminating the service of the Petitioner as required under law. 13. On behalf of the Management, evidence was adduced by 1 (one) witness and 6 (six) documents were exhibited as Exhibit-A to Exhibit- F. On behalf of the Petitioner, he adduced himself as witness and exhibited 6 (six) documents which were exhibited as Exhibit-1 to Exhibit-6. Both the witnesses were duly cross-examined. 14. The learned Labour Court passed the impugned award whereby it was opined that the Petitioner was involved in committing criminal breach of trust of the Management thereby causing heavy financial loss and reputation. It was also mentioned that the Management had lost total confidence upon the workman for his dishonesty and doubtful integrity. Both the witnesses were duly cross-examined. 14. The learned Labour Court passed the impugned award whereby it was opined that the Petitioner was involved in committing criminal breach of trust of the Management thereby causing heavy financial loss and reputation. It was also mentioned that the Management had lost total confidence upon the workman for his dishonesty and doubtful integrity. It was further opined by the learned Labour Court that the Respondent No. 2 was justified in terminating the workman from service as the Petitioner was found to be involved in such incident. Accordingly, the learned Labour Court opined that the Petitioner is not entitled to get the relief of reinstatement in service, but the Petitioner would be entitled to get PF contribution and other terminal benefits, if any. 15. Being aggrieved, the present writ petition has been filed. SUBMISSIONS MADE BY THE LEARNED COUNSELS FOR THE PARTIES. 16. Mr. S. Chakraborty, the learned counsel appearing on behalf of the Petitioner submitted that the termination of the Petitioner without holding a Domestic Enquiry thereby providing full opportunity to defend was contrary to the settled position of law. The learned counsel submitted that the impugned award therefore suffers from patent illegality as this very aspect of the matter was not taken into consideration. The learned counsel for the Petitioner further submitted that the entire action was based upon a communication dated 15.10.2020 and there is no materials placed, as to what, investigation was carried out justifying that the Petitioner was involved in respect to any alleged misappropriation, that too, when the author of the document dated 15.10.2020 subsequently on 24.03.2021 and 10.04.2021 categorically mentioned that the Petitioner was nowhere involved. The learned counsel submitted that if there was no Domestic Enquiry held prior to termination, the Management of the Respondent No.2 had the burden to satisfy, on what basis or investigation, the Petitioner was found to have misappropriated. Nothing to that effect has been brought on record as would be seen from the pleadings as well as from the evidence of record. 17. Nothing to that effect has been brought on record as would be seen from the pleadings as well as from the evidence of record. 17. The learned counsel appearing on behalf of the Petitioner further submitted that on one hand the learned Labour Court relied upon the communication dated 15.10.2020 issued by the proprietor of Lohit Fuel Service without the proprietor being adduced as a witness and on the other hand, the learned Labour Court insisted that the Exhibits- 4, 5 and 6 were not proved on the ground that the proprietor of Lohit Fuel Service did not appear as a witness. Referring to Exhibit-F, which is a document exhibited by the Management of the Respondent No.2, the learned counsel submitted that in that very document, the Management had duly admitted about the continuous communications issued by the proprietor of Lohit Fuel Service to the effect that the Petitioner was not involved. The contents of Exhibit-F being not taken into consideration by the learned Labour Court and thereby not relying upon Exhibits-4, 5 and 6 have rendered the impugned award perverse and requires interference. The learned counsel further submitted that the Petitioner is not only entitled to reinstatement, but also entitled to full back wages and in that regard had referred to a judgment of the Supreme Court in the case of Deepali Gundu Surwase Vs. Kranti Junior Adhyapak Mahavidyalaya (D.ED.) & Others reported in (2013) 10 SCC 324 . 18. The instant writ petition was heard at length on 18.09.2025, on which date, this Court asked both the parties to address on the issue, as to whether, the Petitioner can be reinstated if the termination is held to be illegal on the aspect of loss of confidence. 19. Mr. S. Chakraborty, the learned counsel appearing on behalf of the Petitioner submitted that the aspect pertaining to loss of confidence has not only to be pleaded, but also proved on 3 (three) aspects. First, that the Petitioner was holding a post of trust and confidence; secondly, that the Petitioner had abused such position and he had committed acts which results in forfeiting the same and thirdly, to continue the Petitioner in service would be embarrassing and inconvenient to the employer or would be detrimental to the discipline or security of the establishment. First, that the Petitioner was holding a post of trust and confidence; secondly, that the Petitioner had abused such position and he had committed acts which results in forfeiting the same and thirdly, to continue the Petitioner in service would be embarrassing and inconvenient to the employer or would be detrimental to the discipline or security of the establishment. The learned counsel for the Petitioner submitted that these 3 (three) parameters are to be objectively satisfied and not based upon subjective satisfaction of the Management. In that regard, he has relied upon the judgment of the Supreme Court in the case of Kanhaiyalal Agrawal & Others Vs. Factory Manager & Others reported in (2001) 9 SCC 609 . 20. Per contra Ms. A. Biyani, the learned counsel appearing on behalf of the Respondent No. 2 submitted that the materials on record would show that on 15.10.2020, a communication was received by the Management of the Respondent No.2 stating inter alia that for the period from 16.12.2013 to 16.04.2014, the Petitioner along with one Mr. Sourav Dutta were involved in lifting of the fuel to the 108 dumper service in the name of the Respondent No.2 and they have not paid any amount. Upon coming to learn about the said aspect, internal investigations were carried out and thereupon after finding that both Mr. Sourav Dutta and the Petitioner were involved in such illegal acts, Mr. Sourav Dutta was asked to resign which he did so. However, as the Petitioner did not resign, he was issued a show cause notice on 23.03.2021. The learned counsel further submitted that on the next date i.e. on 24.03.2021, the proprietor of Lohit Fuel Service issued a communication wherein it has been also admitted that the Petitioner had filled up fuel in the 108 dumper service which vindicates the stand of the Respondent No.2 that the Petitioner was involved in illegal acts of misappropriation. The learned counsel further submitted that the Petitioner though submitted a reply on 24.03.2021, but the said reply stated nothing except producing the document dated 24.03.2021 issued by the proprietor of Lohit Fuel Service. It was found that the Petitioner was duly involved. 21. The learned counsel further submitted that the Petitioner though submitted a reply on 24.03.2021, but the said reply stated nothing except producing the document dated 24.03.2021 issued by the proprietor of Lohit Fuel Service. It was found that the Petitioner was duly involved. 21. The learned counsel for the Respondent No. 2 further submitted that the Respondent No.2 is a non-profitable organization and runs the GVK EMRI Ambulance Services and the Petitioner's position was a position of trust and confidence and investigations which were carried out showed that the Petitioner was duly involved and as such, the Petitioner was rightfully terminated. The learned counsel further submitted that even assuming for argument sake although not admitting that the termination was not proper, then also on the ground of loss of confidence, the Petitioner ought not to be directed for reinstatement as on the basis of suspicion also, a person can be terminated from service and in that regard referred to the judgment of the Supreme Court in the case of Air-India Corporation, Bombay Vs. V.A. Rebellow & Others reported in (1972) 1 SCC 814 . 22. The learned counsel appearing on behalf of the Respondent No. 2 submitted that there is not a single whisper in the writ petition before this Court that the Petitioner is not gainfully employed in any services and as such, even assuming for argument sake that this Court were to interfere, the question of payment of back wages do not arise. ANALYSIS AND DETERMIANTION 23. At the outset, it is relevant to observe that even without a Domestic Enquiry, a workman can be terminated from service. However, in doing so, if an industrial dispute arises and the matter is placed before the Tribunals under the Act of 1947, it is the burden upon the Management to prove that the termination was justified. 24. This Court has further taken note of the pleadings as well as the evidence on record. The entire dispute arose on account of the communication dated 15.10.2020 which is Exhibit-A issued by the proprietor of Lohit Fuel Service wherein allegations were leveled against one Mr. Sourav Dutta and the Petitioner. This Court finds it very pertinent to take note of Exhibit-F which is a document exhibited by the Respondent No.2. The entire dispute arose on account of the communication dated 15.10.2020 which is Exhibit-A issued by the proprietor of Lohit Fuel Service wherein allegations were leveled against one Mr. Sourav Dutta and the Petitioner. This Court finds it very pertinent to take note of Exhibit-F which is a document exhibited by the Respondent No.2. The contents of the said document i.e. Exhibit-F reveals that the owner of Lohit Fuel Service had recanted his position as stated in the communication dated 15.10.2020 (Exhibit-A) and in fact, the Management of the Respondent No.2 had issued a letter to Lohit Fuel Service to stop sending letters clarifying that the Petitioner had no involvement in respect to the alleged misappropriation. 25. This Court finds it also very pertinent to observe that on one hand the learned Labour Court had relied upon Exhibit-A without the author of the said document being adduced as witness however on the other hand insisted that Exhibit-4, 5 and 6 cannot be proved without the author of the said documents been adduced as witness. It appears that had the author of the Exhibit-A been adduced as witness, his evidence would have been in favour of the Petitioner and as such, the Management of the Respondent No.2 did not find it proper to adduce him as a witness. But on the other hand, on the basis of his allegations which were subsequently recanted on three different occasions as would be seen from Exhibits-4, 5 and 6, the learned Labour Court came to an opinion that criminal breach of trust was proved against the Petitioner. 26. It may not be out of place to state that this is not a case where there has been already a Domestic Enquiry carried out, but this is a case wherein the Respondent No.2 was required to prove that the Petitioner was involved in an act of misconduct necessitating the Petitioner’s termination. The evidence on behalf of the Management only mentioned that they made certain internal investigations, but there is no mention whatsoever, as to what, investigation was carried out. In the opinion of this Court, this is a case where there was no evidence against the Petitioner which was proved as regards his misconduct, but the learned Labour Court failed to take into consideration the said aspect of the matter. In the opinion of this Court, this is a case where there was no evidence against the Petitioner which was proved as regards his misconduct, but the learned Labour Court failed to take into consideration the said aspect of the matter. Under such circumstances, as there was no evidence, the findings so arrived at as regards the terms of Reference Nos. 1 and 2 that the Petitioner was involved in acts of criminal breach of trust is a finding based upon perverse reading of the evidence. 27. Now let this Court take into consideration as regards the third point of Reference, as to what relief or reliefs, the Petitioner herein is entitled to. 28. The materials on record and the above discussions show that the Respondent No. 2 had failed to prove misconduct of the Petitioner requiring termination from service. Under such circumstances, the termination of the petitioner has to be held to be bad in law. Now the question arises, as to whether, this is a fit case for reinstatement. 29. At this stage, this Court finds it pertinent to take note of the judgment of the Supreme Court in the case of Kanhaiyalal Agrawal (supra), more particularly, paragraph No.9 which being relevant is reproduced here in under: “ 9. Substantial contention on the merits of the case by the employer in these appeals is that the finding of loss of confidence in the employee by the labour court has been reserved in appeal by the Industrial Court on unreasonable grounds. What must be pleaded and proved to invoke the aforesaid principle is that (i) the workman is holding a position of trust and confidence; (ii) by abusing such position, he commits acts which results in forfeiting the same; and (iii) to continue him in service would be embarrassing and inconvenient to the employer or would be detrimental to the discipline or security of the establishment. All these three aspects must be present to refuse reinstatement on ground of loss of confidence. Loss of confidence cannot be subjective based upon the mind of the Management. Objective facts which would lead to a definite inference of apprehension in the mind of the Management regarding trustworthiness or reliability of the employee must be alleged and proved. Else, the right of reinstatement ordinarily available to the employee will be lost.” 30. Loss of confidence cannot be subjective based upon the mind of the Management. Objective facts which would lead to a definite inference of apprehension in the mind of the Management regarding trustworthiness or reliability of the employee must be alleged and proved. Else, the right of reinstatement ordinarily available to the employee will be lost.” 30. The above quoted paragraph reveals the 3 (three) principles which are required to be pleaded and proved when the Court deals with the aspect pertaining to loss of confidence. The pleadings of the management as well as the evidence so laid do not show that the Petitioner herein was holding a position of trust and confidence. There is nothing mentioned on the basis of which there can be any objective satisfaction that the Petitioner had abused his position and it would be embarrassing and inconvenient to the Respondent No. 2 or would be detrimental to the discipline or security of the establishment. 31. Considering the above, it is therefore the opinion of this Court that the submission pertaining to loss of confidence and the findings so arrived at by the learned Labour Court in respect to loss of confidence cannot be sustained. 32. This Court also finds it relevant to take note of that though the Petitioner herein claims back wages, but there is not a single averment made in the writ petition that the Petitioner is not gainfully employed. Considering the above, this Court is of the opinion that the Petitioner is not entitled to any back wages for the period after the impugned award dated 19.01.2023 had been passed. However, taking into account that the Petitioner has mentioned that the Petitioner was not gainfully employed in the written statement and there was no pleadings or evidence led by the Management of Respondent No. 2 that the Petitioner was not gainfully employed, it is the opinion of this Court that the Petitioner would be entitled to back wages w.e.f. 16.06.2021 till 19.01.2023. 33. Accordingly, the instant writ petition stands disposed of with the following observations and directions: (i) The impugned award dated 19.01.2023 passed in Reference Case No. 01/2022 is set aside and quashed. (ii) The Petitioner is entitled to reinstatement with full back wages w.e.f. 16.06.2021 till 19.01.2023. The Petitioner would not be entitled to any back wages w.e.f. 20.01.2023 till date. Accordingly, the instant writ petition stands disposed of with the following observations and directions: (i) The impugned award dated 19.01.2023 passed in Reference Case No. 01/2022 is set aside and quashed. (ii) The Petitioner is entitled to reinstatement with full back wages w.e.f. 16.06.2021 till 19.01.2023. The Petitioner would not be entitled to any back wages w.e.f. 20.01.2023 till date. (iii) The Petitioner be reinstated and he be paid his back wages for the period directed above within 6 (six) weeks from the date a certified copy of the instant judgment is served upon the Respondent No.2. (iv) The Registry is directed to forthwith return the TCR to the learned Court below.