JUDGMENT
V.S. Sirpurkar, J.
1. This is a petition challenging two orders one by the Labour Court and the other by the industrial Court, Nagpur, directing the reinstatement of respondent No. 2 into the school run by the petitioner-society.
2. Shortly stated the facts are as under :-
The petitioner is a Society and runs a school in an area known as Jaripatka. This is a co-educational school where 40% of the students are girl-students. There are also the lady-teacher in the school. The School has earned a name in the educational circle, inasmuch as invariably every year the students of this school find their names in the merits-list. there has also been a example where the girl-students of this school have topped in the Board Examinations in whole State of Maharashtra. Respondent No. 1 was working with this school as a watchman, having joined his service on 1.8.1978. It was his duty to attend the school and also keep a watch at night on the school buildings so that it remains safe. While working as such, a letter came to be received by the principal of the school, who is also petitioner No. 2 to this petition. The letter stated that the nefarious activities were going etc. In fact, there were about two or three letters which the said Principal received. Some were anonimous, some were sent purportedly by the social organisation and some by individual persons. The reputation of the school was, thus at stake because of what was going on in the school at night-time. The Principal as also the Managing Committee felt apprehensive about this, and it is also a plea of the employer that the Principal once visited the school at night only to find some unsocial elements fleeing from the sport. All the activities obviously could not have been done unless respondent No. 1 who was a watchman, was a party to some, or at least, without his connivance, it is also a case pleaded by the employer/ society that when the Principal begging his pardon and assured him that such events would not be repeated. All this took place in the months of December 1981. The Management Committee of the school took a very serious note of these letters which were sent by the organisations called “Karanti Dal” as also by the individuals, and decided to send a show-cause-notice to the respondent/ employee. They contemplated an action under Rule 28 (2) of the Maharashtra Employees of Private Schools (Conditions of the Services) Rules. 1981. (hereinafter referred to the ‘the Rules’) which permitted them to dismiss the employee without holding any Department Enquiry. They on the basis of that the power, dispensed with the enquiry as holding of the enquiry would have invited undesirable social consequences, and holding that the explanation of the respondent/employee was not satisfactory, they proceeded to dismiss him. However, nothing was stated in the dismissal order.
3. The order of dismissal came to be challenged by the respondent/employee by way of the complaint under the provisions of section 28 of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971. (hereinafter referred to ‘as the MRPU & PULP Act’) It was alleged by the employee in his complaint that unfair labour practices were committed by the school management. His contention was that though he was in continuous employment and had become permanent, he could not have been dismissed without holding any Departmental Enquiry,. His further contention was that though he was not expected to work both at day and night, he was asked to so work and his working hours exceeded fifty hours per week. His further contented that he had approached Praja Sattak Shikshan Sanstha, Maharashtra Rajya, Nagpur, complaining about he illegal heavy work-load given to him, which irked the management. He also contended that the misconduct alleged in the letter dated 1.2.1981 was nothing but an eyewash and that his dismissal bristled against the principles of natural justice. It is amply seen that he has made a specific grievance that Principal Bajaj had asked him to work at his (Principal) place as a domestic servant, and on his refusal, the Principal had taken such adverse stand against him which was false, In short, the respondent No. 1 employee complained of the unfair labour practices on the part of the petitioners, under clauses (a) (b) (d) (f) & (g) of Item 1 of the Schedule IV to the MRTU & PULP Act. It will not be out of place here it mention that he management, with the dismissal order, had sent a cheque for Rs. 2736.90 which amount was equal to six months salary. In keeping with the dictates of rule 28 (2) of the Rules, the respondent No. 1/employee claimed in the complaint that he had accepted this cheque, deposited the same in the bank, but only under protest.
4. This lengthy complaint was opposed by the petitioner by a written statement, probably equally length where the petitioner claimed that their’s was a institution of linguistic minority and has the constitutional protection minority and has the constitutional protection under Article 30 of the Constitution of India. It is further claimed that it was not a industry and the complainant/ respondent No. 1 was not a workman. Regarding the merits, it was claimed that the complaint was not a peon but a watchman and he had the duty to guard the school premises only from 10.00 p.m. to 6.00 p.m. and was not required to work during the day time at all. It was stoutly denied that the employee was ever asked to do any other work besides his duties as a watchman, domestic or otherwise. The society claimed that the management was aware of the rumours that the watchman allowed anti-social elements during the night to assemble in the school for gambling purposes. He also allowed certain unsocial and bad elements to bring girls in the social and bad elements to bring girls in the schools for immoral purposes. They also disclosed that they had received complaints in the form of letters and that the Principal had himself paid visit to the school premises at night hours only to find the rumours to be true. According to the management all these things were going on in the school for months together, but when the management started receiving complaints in the writing and when the principal himself was convinced because of his own visit, the management acted further. The management specifically pleaded that if a domestic enquiry had been held in this matter, it would it would have amounted to inviting undesirable social consequences. The management further pleaded that firstly it would have brought a blot on the reputation of the school and it would not have been in the interest of the institution to call the witnesses, like the girls who brought in the school at night time, for it would have affected the school in every possible manner. They claimed, therefore, that this was fit case with could be covered in the four-corners of rule 22 of the Rules and therefore, they took an action. They claimed a that they made a confidential enquiry inviting the reasons by giving an opportunity to the respondent No. 1/employee to explain and when they found that the explanation was not satisfactory, they acted under the rule by giving six months salary to the respondent No. 1/employee and by ordering his dismissal.
5. The Labour Court framed certain issues on the basis of the rival contentions of the parties. The issues related to the constitutionality of the action, the jurisdiction of the Labour Court to entertain the complaint as also whether the management could be said to be an industry. All these issues are of no consequence here. The other issues only related to the removal/termination of the complainant/respondent No. 1 form the service with effect from 15.21982, and whether such termination comes under the mischief of any clauses of items 1 of Schedule IV to the MRTU & PULP Act. Surprisingly enough, the Labour Court did not frame the issue which would have been the most germane issue. However, that question will be dealt with later on in this judgment. The employee examined himself and also some witnesses before the Labour Court only to show that everything was alright with the school and no activities, as alleged, ever took place in the school. On behalf of the petitioners, the Principal himself entered the witness-box and some persons, who wrote the letters, also came to be examined. All the correspondence, including the letters, the notices sent to the respondent No. 1/employee and the replies given by the respondent No. 1/employees were produced in the Labour Court record. The Labour Court came to the conclusion that rule 28 (2) of the Rules was not of any avail to the management. It came to the conclusion that the termination order, dated 15.21982 which was impugned in the complaint which was purported to be under rule 28 (2) of the Rules, was nothing but the colourable exercise of power. It was, in fact an order of the dismissal for misconduct of the respondent No. 1/ employee. It recorded a positive finding that the suspension order and the show-cause – notice which were sent to the employee, clearly showed that this was not a termination simpliciter and was, in fact, a penal order. The Labour Court came to the conclusion that since this penal order was passed without holding any enquiry, it amounted to an unfair labour practice as per clause (f) of item 1 of the Schedule IV to the MRTU & PULP Act. It came to the conclusion that on the ground alone the dismissal could be straightway quashed. It also came to the conclusion that he such enquiry was a sine qua non for the dismissal or termination, as the case may be and if the enquiry was not held, the termination could be deemed to the have been done in undue haste. The Labour Court adversely commented upon the evidence of the Principal and the two letter-writers, namely Shri Sadhwani and Shri Manwani, and came to the conclusion that after exraying the impugned termination order, it was of the opinion that it amounted to an unfair labour practice even under clause (f) thereof. The employer had relied upon a decision of the Supreme Court in Air India Corporation v. Rebello and it was pointed out that the holding of the domestic inquiry is not a must in each and every case, and particularly by recourse to rule 28 (2) of the Rules, the said enquiry could be dispensed with. The Labour Court did not agree with his contention,. It termed it as a malafide order and a penal order which was with undue haste. It took the stock of the witnesses examined on behalf of the respondent No. 1/employee and gave a finding on facts that the misconduct as alleged by the management against the complainant/respondent No. 1/employee was not proved at all. It also adversely commented on the letters written by the witnesses in fact the Labour Court has devoted goods deal of the space to this appreciation of the evidence of the purposes of the recording a finding that, In fact, the misconduct on the part of the employee was not proved at all. It is in view the finding that the misconduct itself was not proved that the Labour Court further went on to hold that the order of dismissal was nothing but a colourable exercise of power. It proceeded to hold that the merely because the management has lost confidence, the management could not dismiss the employee without holding any domestic enquiry. In this view of the matter, the Labour Court set aside the order of dismissal and directed the employee to the reinstated with full back wages.
6. A revision came to be filed against this order of the Labour Court by the present petitioners, The revisional court confirmed the order of the Labour Court. Beyond saying that the appreciation of evidence by the Labour Court was correct, the revisional Court has not done anything. For that matter the revisional Court has merely referred to some decisions referred to by the learned Counsel for respective parties before it and has proceeded to hold that in fact, when the termination was found to be not a termination simpliciter but by way of punishment for misconduct, then the holding of the domestic enquiry was a smut and by not holding such and enquiry was a must and by not holding such an enquiry the management had engaged itself into an unfair labour practice. At the closure of the judgment, In para 10, a fleeting reference has been made to rule 28 (2) of the Rules but there also again the revisional court has reiterated that in the absence of enquiry, the employee was deprived of the opportunity to explain the allegations made against him.
These two judgments have been challenged by the petitioners in this Court.
7. Shri Manohar, learned Counsel for the petitioners, has contended that the order passed by both the Courts below are patently illegal and incorrect. According to him, the Courts below have not appreciated the various provisions, which they were bound to appreciated and consider. According to him, there is a complete misreading of rule 28 (2) of the Rules and the whole approach of the Courts below has been incorrect because of the confused reading of the said provisions. Shri Manohar submits that, in fact, what is to be seen is whether the employer was justified in not holding the enquiry at all. According to Shri Manohar, the question of proof of misconduct before the Labour Court was absolutely of no consequence. According to him, the petitioner’s witnesses did not seek to prove misconduct, but only sought to reiterate the position that the holding of the enquiry was not feasible in the matter, at all, in keeping with the spirit of rule 28 (2) of the Rules. According to him, the charges were extremely grave. There was good material to hold that these charges were made in fact and at the instance of the persons in the society. Besides this, the Principal had also seen the events by his own eyes and, under the circumstances, it would have been extremely hazardous to hold the enquiry into this matter. He, therefore, reiterated that the Labour Court should have only examined as to whether there was any breach rule 28 (2) of the Rules. According to him, the exercise by the Labour Court to go into the merits of the matter and to give a finding regarding the misconduct on the part of the respondent No. 1/employee, is an exercise in wilderness, as that is neither warranted nor permissible in law. The learned Counsel further contends that since both the Courts below have completely failed to comprehend the situation, there has been a jurisdictional mistake on their part as, according to him, the Labour Court should have, really speaking, controlled itself by the constraint rule 28 (2) of the rules.
8. Shri Deopujari, learned Counsel appearing for the respondent No. 1, supported the orders and pointed out that the examination by the Labour Court could not be limited to the question as to whether there was any breach of rule 28 (2) of the Rules; or not. According to him, the Labour Court had the power and duty to look into the real nature of the order of termination, and if the Labour Court found that the said order of termination was brought about with an idea to throw the employee out of the service on account of his misconduct, then the holding of the domestic enquiry was a must, prior to the passing of this order. He contended that admittedly there was no enquiry held in the matter and, therefore, the order, which created an stigma against the employee, amounts to colourable exercise of power. According to him, no opportunity, whatsoever, was given to the respondent No. 1/employee to prove his innocence. His supported the findings of the Labour Court on the question of misconduct and reiterated that, in fact, there was no misconduct whatsoever committed by respondent No. 1/employee and also reiterated that the finding of fact regarding the misconduct was concurrent and, therefore, it cannot be gone into by this Court.
9. It will be better, first, to see the provisions of rule 28 (2) of the Rules, before the merits of the impugned orders is discussed. Rule 28 pertains to the removal or termination of service. Rule 28 (1) suggests that the services of temporary employees, other than the probationers, could be terminated by management at any time without assigning any reasons, after giving one calendar month’s notice or by paying one month’s salary in lieu of the notice. Sub-rule (2) of rule 28 pertains to the termination of the permanent employee and runs as under :-
“Subject to the provisions of sub-rule (3), the services of a permanent employee may be terminated by the Management on giving compensation equal to six months’ emoluments (pay and allowances) in case he has put in less than 10 years’ service, and 12 months’ emoluments (pay and allowances) if he has put in services of 10 years or more, in the following circumstances, namely :-
Immodest or immoral behavior with a female or male student or employee or such other action involving moral turpitude into which, if an open enquiry is held undesirable social consequences may follow.”
Sub-rule (3) of rule 28 thereafter suggest that the said order of termination could not be issued under sub-rule (2), unless a show-cause notice is given the employee by the management within a reasonable time and unless such cause shown by him, if any, is considered by the management. It further specifically provides as under :-
“If, after considering the cause shown, if any, an order of termination; of services of an employee is passed, the Management may not assign any reason in the order to be issued to the employee.”
Sub-rule (4) is not relevant for our purpose. However, sub-rule (5) provides that the employee can be punished on one of the four grounds, they being (a) misconduct; (b) moral turpitude; (c) wilful and persistent negligence of duty and (d) incompetence. In the same sub-rule, the term ‘moral turpitude’ is further defined, which is as under :-
“Moral turpitude” includes the acts mentioned in sub-rule (2).
10. The text of rule 28 of the Rules, as it stood at the relevant time, i.e., in the year 1982, is reproduced above. The position is different today as the entire sub-rule (2) is now deleted by notification No. PST 1083/194/E-3 (CELL), dated 20.12.1984. For the purposes of this case, since the impugned dismissal has taken place on 16.2.1982, it is the unamended rule 28 which will have to be considered. Indeed, the management has acted in pursuance of unamended rule 28 (2) only. The Act, i.e., Maharashtra Employees of Private schools (Conditions of Service) Regulation Act, was given assent of the President on 20th March, 1978. However, it came into force on 15th July, 1981. It is, therefore, clear that on the day when the termination notice was initiated as also on the day when the termination was effected by the petitioner/society in pursuance of rule 28 (2) of the Rules, it was the unamended rule 28 (2) which was on the anvil. The subsequent amendments, therefore, are of no consequence to us for the purpose of controversy in this case. Though an effort was made by Shri Deopujari, learned Counsel for the respondent No. 1/ employee, to contend that it is the subsequent law, i.e., the amended rule 28 (2) which was liable to be relied upon, the argument cannot be accepted, for the simple reason that the entire rule 28 (2) came to be deleted subsequently in the year 1984 and the penal consequences; of the notice as well as the dismissal from the service had already taken place in the year 1982 itself, when the parties could never have dreamt of the subsequent amendments. There is again nothing to show that the said amendment by which rule came to be redrafted, is retrospective in any manner. A faint attempt was made by Shri Deopujari that the rule, being procedural law, the amendment to the same is retrospective in nature and, therefore, for the purposes of this case also, rule 28, as it stands after the amendment should be red and not the unamended rule. The argument is obviously incorrect. It is the right of the management to effect the termination in a particular manner which was covered by rule 28 (2). That right being of a substantive nature, the said amendment cannot be deemed to be only a procedural amendment. The argument of Shri Deopujari, that the rule merely prescribes a procedure to dismiss or to terminate an employee in a particular manner, is not correct for this reason that rule 28 (2) provided an exception to the general rule that for every termination or dismissal, there must be a prior domestic enquiry. Be that as it may, the reading of rule 28 (2) clearly brings out a fact that where the employee was guilty of immodest or immoral behaviour with a female or male student or employee, or involved himself in any action involving moral turpitude, then the management was free to terminate the services of such employee even without holding a domestic enquiry, where holding; of such enquiry would invite undesirable social consequences. The language of rule 28 (2) is very clear. In order to come under the clutches of rule 28 (2), firstly there has to be an immodest; or immortal behaviour on the part; of the employee, with female or males students of employee. We are obviously not concerned with this part,; in this case, because it is nobody’s case that the employee had misbehaved with any of the male or female students or employee. That is, indeed, not the allegation. The second part, however, pertains to; an action involving moral turpitude. The definition of ‘moral turpitude’ in sub-rule (5), as it stood then, substantially differs with the definition which is available now after the amendment. The definition of ‘moral turpitude’ in the unamended Act was not an exhaustive provision; it was only an inclusive provision. Therefore, the ‘moral turpitude’ could be in any event beyond and in addition to the acts mentioned in sub-rule (2) of rule 28. In short, the ‘moral turpitude’ was not limited to an immodest or immoral behaviour with a female or male student or employee. That was only one of the facets of the moral turpitude. The definition itself suggests that the act could be any thing beyond the terms mentioned in sub-rule (2) of rule 28.
11. The acts complained of in the present situation against respondent No. 1/employee are undoubtedly covered by the words ‘moral turpitude’. What was alleged against respondent No. 1/employee becomes clear from the letters, which are annexed to the petitions as Annexure-A. The first letter is dated 25.5.1981 which had been sent by one stelranti Dal. This letter specifies that the school becomes a Gunda-den at night and some unsocial elements go to the extent of bringing girls to the school. It is claimed in that letter that the residential houses of the members of the Dal are just beside the school and, therefore, the inmates; of the same houses are able to hear all kinds of noises including that letter that on 22.4.1981, when the author of the letter was going home at about 1-O’clock in the night, after seeing a second-show, he heard the shouts from the school.
The second letter also mentions that the activities, like prostitution and gambling are freely going; on in the school at night and the watchman himself allows these nefarious activities to take place, in consideration of money. This second letter is written by Gagandas Manwani who claims to have seen some persons gambling in the school. Even the names of those gamblers are given in the said letter dated 30.11.1981. The third letter, dated 3.12.1981, is also to the same effect, where the author; of the letter, Shri Chandrakumar Sadwani, even offers to give the names of the girls who are brought to the school, ‘ on condition that the principal should not disclose those names to anybody. It is further alleged that people drink liquor in the school at night and the watchman goes to the extent of supplying water to them. In short, the charges against the watchman were – allowing the prostitution and gambling to go on in the school at night, taking money for such activities from the concerned unsocial elements and even assisting the concerned persons to commit any offences including the sexual offences by either being a silent spectator or by keeping quite and also by assisting such persons in so; me manners. There is no doubt that such acts on the part of the employee would amount to the acts involving moral turpitude. The term ‘moral turpitude’ is not only well understood but also stands defined by the provisions of laws and also by the decision of the law courts. It does not need any further interpretation. However, when the acts of prostitution or an assistance in committing these activities is alleged against a person, there is no doubt that such acts involve the moral turpitude.
12. The matter does not stop here. There is a further rider, and that is where the whole controversy has arisen. The management, on account of these letters, gave a show-cause notice as contemplated in rule 28 (3), as it stood then, and demanded the explanation of respondent No. 1/employee. The giving; of the notice and consideration of the reply thereof is a must, before the subsequent action of termination is taken. However, even before that it must be found that an open enquiry into these acts cannot be held because if it is so held, the undesirable social consequences would follow. Now, what could these undesirable social consequences be, is a question in this case. Shri Manohar contends, and in my opinion rightly, that if the enquiry into these allegations had been held, it would have brought a discredit to the otherwise bright name of the school. He contends that such enquiry would be required to be conducted during the office hours and not only the concerned persons but even the parents could have come to know all these instances. Not only this but the girls, who were brought in the school, would have been required to be examined, and in that event, their identity would have been disclosed the whole world. He pointed out that one of the authors of the letter had offered to disclose the names of the girls who had gone, or who were taken, to the school. He further pointed out that this was the school where 40% of students were girl-students, There were number of lady-teachers. If the enquiry had been made public, as was bound to happen, the girl-students as also the lady-teachers would have been alarmed, and such reaction on these girl-students would have affected their performance, scholastic or otherwise, Shri Manohar contended that in order to avoid all this, the exercise of enquiry was not undertaken by the management.
13. Shri Deopujari, learned Counsel for the respondent No. 1, very strenuously pointed out that such was not the pleading of the petitioners and, in fact, the employer/managing committee should have specifically pleaded regarding the details of such undesirable social consequences.
14. The pleadings are perused by me. The management has undoubtedly pleaded that it did not think it proper to hold the enquiry, as it would have invited undesirable social consequences. This is what has been stated in the written-statement :
“The said action is wholly proper and valid and is in accordance with the Rules governing the relationship between the complainant and the respondent nos. 1 and 2. It is submitted that in the nature of the allegations made against the complainant, an enquiry into the same would be extremely damaging to many persons involved in the said activities of the complainant and as such no enquiry is necessary to be made.”
The acts; of the employee/watchman have been reiterated in this written-statement and it is in respect of these acts that the abovementioned plea is taken by the management for not holding the enquiry, apart from borrowing the words of the rule itself. Under the circumstances, what those undesirable social consequences, would be, is a matter only of, detail. When the plea, that such undesirable social consequences follow, has been taken, not providing the precise reasons and the precise undesirable social consequences, does not become fatal to the case of the management. In fact, the management has taken a plea that the identification of the persons involved in these activities would have detrimentally affected the concerned persons, is speaking enough. It cannot be, therefore, said that the management had not pleaded before the Labour Court that the holding of domestic enquiry was not necessary in this case. Indeed, one can visualise the typical predicament in which the management was caught, in this case on one hand, the bright name of the school, and on the other, the inevitable defamation of that bright name. Indeed, if the enquiry had been held as per the procedure provided in the Act and the Rules, it had to be done in the school premises. Respondent No. 1/employee could have called employee of an; other private school to act as his friend. Even the Education Officer person on the Enquiry Committee. The enquiry would be required to be held during the office hours when possibly even the school would be working. Under such circumstances, if the management decided to fall back upon rule 28 (2), it could not be said that it was acting in the colourable exercise of its powers.
15. Shri Deopujari is quite right when he says that the Court must examine as to whether the employer acted with a tainted mind of bringing about the result of termination of the services of the employee, without the following any procedure of law, and with the malafide intention. It is perfectly permissible for the Labour Court to go into this question. A faint attempt was made by Shri Deopujari to show that in fact it was alleged by the respondent No. 1/employee that he was asked to work in the shop of Shri Bajaj and also to work in his (Bajaj’s) house as a domestic servant. In fact, as regards this plea, the employee himself is not sure, as to whether he was to work in the shop or whether he was to work as a domestic servant. The pleading in that behalf is extremely vague and confused. So also, there is very little evidence in support of this pleading. Shri Bajaj has specifically denied having asked respondent No. 1/employee, who seems to be well aware to his rights, has not, in any manner, complained prior to the incident to any of the authorities regarding his being asked to work as a domestic servant. His only complaint was that he was asked to work for more than fifty hours a week. A complaint made by respondent No. 1/employee to some other body called Priya Sattak Shikshan Sanstha, Maharashtra Rajya, Nagpur, does not pertain to his this complaint. Under such circumstances, it is difficult to hold that responsible Principal of a prestigious institution like the petitioner, insist upon a person like watchman to work in the cloth shop owned by his son. The plea is no plea in law. The management also served a show-cause notice on the respondent/employee after suspending him. In this show-cause-notice, he has been asked to show-cause why action should not be taken against him on account of his acts, such as taking the money from some undesirable social elements and allowing them to gamble in the buildings at night. It has also been alleged that he allowed those undesirable social elements to bring some girls and engage themselves in the sexual intercourse/sexual offences with those girls. The reply to this notice is also very typical and peculiar. The employee challenges the said allegation and reiterated that there are no eye-witnesses for such activities. para 5 of the reply is rather telling. He claim that no girls was brought in this presence. However, he adds that if such activities take place in the play-ground which is without any compound, how he could help in the matter. He also makes a complaint that the whole ground is without any compound and, therefore, it is extremely dangerous for him to work. This reply itself goes to show that some nefarious activities were, in fact, going on, if not in the school buildings at least, in the school compound.
16. The management also examined the Head Master himself alongwith the two other witnesses, before the Labour Court. The Labour Court has very severely come down on these witnesses. According to the Labour Court, the two other witnesses, i.e. the authors of the letters, Chandar Sadwani and Gangadas Manwani, admitted that they were prosecuted for criminal offences, like robbery etc. The Labour Court has also found fault with the Head Master’s evidence. This Court would not ordinarily go into the appreciation of evidence, However, if the whole appreciation and the findings are such which cannot be sustained, then even in the constitutional jurisdiction of this Court, it shall not be slow to go into the evidence.
17. In the first place, the whole approach of the Labour Court is faulty. The Labour Court treated this evidence, as the evidence to prove the misconduct on the part of the employer. It treated it as if the school justified the action taken by it and because it had failed in hold any domestic enquiry, It was now taking its opportunity to bring the misconduct before the Labour Court. This was wholly a wrong and an incorrect approach. The management had very specifically pleaded that it was proceedings under the provisions of rule 28 (2) of the Rules, which provided for the taking the action even without holding the domestic enquiry, but under certain circumstances. The evidence was led before the Court only to justify the circumstances for not holding a domestic enquiry and for nothing more. What was being sought to be proved before the Labour Court was that the management was not acting on the imaginary letters. or it was not acting on something which was not in existence. The management only tried to show to the Labour Court that there was tangible material in its possession on the basic of which it was acting, and if such material had been declared open to the general public, it would have invited drastic consequences, including the complete demolition of the reputation of the school. The Labour Court completely missed this vital aspect of the matter, probably because the Labour Court did not properly understand the spirit of rule 28 (2) of the Rules. Rule 28 (2) necessarily and essentially pertained only to such arena which was to be left virgin from the field of the domestic enquiry, considering the peculiarities under which the school has to function. The Labour Court completely ignored the fact that this was a co-educational institution where there number of ladies and girls daily coming and going out. That, the citizens of the Jaripatka locality were sending their daughters with certain confidence regarding the goods and pious atmosphere in the school. Had the facts, which came into knowledge of the management been even enquired into in the Enquiry, the reputation of the school, which boasts of the having meritorious students, would have gone to dogs. Not only the school would have suffered, but the confidence of the parents who send their children to this school would have also been shaken. This whole aspects has been completely missed by the Labour Court and it simply treated the evidence of these three witness to be the evidence in support of the misconduct alleged in the notice by the management. Rule 28 (2) was brought into existence precisely for these reasons. It is quite another matter that this rule has now been deleted. Probably because the rule was more misused than used. To this, Court will desist from expressing its opinion, as it is not called upon to do so.
18. Shri Deopujari, further contended that even if there was some material the court can still go into the question, whether, in fact, it was essential to hold the enquiry. On the basis of the such material, and whether the management was justified in avoiding the enquiry. Shri Deopujari pointed out that the Labour Court had recorded a finding that, in fact the management could not have availed for rule 28 (2) of the Rules. He invited my attention to the observations of the Labour Court in para 27 of the judgment. The whole discussion in the para 27 unfortunately is of no help to Shri Deopujari. The Labour Court has never considered the rule spirit and interpretation of rule management for not holding the enquiry only. It has gone to the extent of saying :
“As stated earlier, no student of the school was involved and no immoral behaviour of employee with any school student or teacher was involved in the present allegations made against the complainant. There is no justification to dispense with the enquiry and the industrial law does not permit to punish an employee, without any enquiry on the basis that he has committed serious type of misconduct. If such thing is allowed, then the employment of the every industrial employee would be jeopardised and come in peril because the employer would straightway make allegation of the misconduct and then resort to apparent termination simpliciter on the basis of the service conditions or the Standing Orders applicable to the industry.”
These observations would bring out the hollowness of the logic on the part of the Labour Court. The Labour Court completely forgot that it was dealing with a school, that too, in a locality like Jaripatkar, where practically each house of that locality was sending its ward to this school. It was not concerned with the industry as such. It was not called upon to decide the rights of a worker in a mill, a factory, or a shop. In philosophising the whole aspect, the Labour Court has allowed itself to be swept away and, in the end, it has found itself in such a situation which produces only confusion and nothing else. In the first place, the Labour Court has not understood the import of language of rule 28 (2) at all. In has completely missed the significance of the words – “action involving moral turpitude”. It has committed an error in limiting the misconduct prescribed in rule 28 (2) to the indecent or immoral behaviour of the employee with any school student or teacher. The further words are completely ignored by the Labour Court. Those were extremely important. Legislature never uses extra words. All the words used must be given their proper meaning, while interpreting a provision. The non-mention of the words – “other action involving moral turpitude” speaks volumes for the confusion in the mind of the Labour Court. In fact, the acts, which have been discussed earlier in the Judgement, were undoubtedly the acts involving moral turpitude. They showed guilty mind of the employee. They showed that he could be corrupted with the influence of money and could allow the horrible activities, like prostitution and gambling, in the temple of learning. Undoubtedly, those were the allegation of the acts involving moral turpitude. The only fault, that was found by Labour Court, was that the management did not hold any enquiry. That indeed could not be the only consideration. The Labour Court had first to find out and give a finding as to whether the management was right in avoiding an enquiry on the basis of rule 28 (2) of the Rules. If the answer of that issue was that such enquiry could not have been avoided, then alone the Labour Court could have proceeded ahead to decide as to whether there was, in fact, a misconduct committed by the employee or not.
6.8.1993
19. Shri Manohar, learned Counsel for the petitioners, invited my attention to the decision reported in Air India Corporation, Bombay v. V. A. Rebello, . Shri Manohar relied on the observations of the apex Court, more particularly in paragraphs 14 and 15. In that case also the services of the workman were terminated, relying upon regulation 48 of the Air India Employees’ Service Regulations, which provided that services of a workman could be terminated by paying the salary of 30 days in lieu of he notice. What was pointed out by Shri Manohar was that this regulation 48 specifically provided that the employer was not bound to disclose the reasons, where he was satisfied that the worker could not be continued in service. The following observations in the above cited case are pertinent :
“The complainant, it may be remembered, had to deal with Air-Hostesses in the performance of his duties and if the appellant was not fully satisfied beyond suspicion about his general conduct and behaviour while dealing with them, it can not be said that loss of confidence was not bona fide. Once bona fide loss of confidence is affirmed, the impugned order must be considered to be immune from challenge. The opinion formed by the employer about the suitability of his employee for the job assigned to him even thought erroneous, is bona fide, is in our opinion final and not subject to review by the industrial adjudication.”
This case may not support Mr. Manohar fully to the extent that he is canvassing. However, where the question of behaviour of an employee with the lady-folk is concerned, even the apex Court has been extremely sensitive in the matter. This case undoubtedly goes on to show that where the employer was not certain about the behaviour of the employee with the lady-flok, it had good reason to discontinue the services of the employee on the theory of loss of confidence.
20. The provisions of the Maharashtra Employees of Private schools (Conditions of Service) Regulations Act, 1997 vis-a-vis the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 fell for consideration before this Court in Write Petition No. 2442 of 1981 Panchsheel High School v. Shamrao, decided by Jamdar, J. on 16.12.1981. In that petition also, the workman was an employee of a school, being its Head Master. He questioned his termination, not by way of an appeal under section 9 of the Maharashtra Employees of Private Schools (Conditions of Service) Regulations Act, 1977 (hereinafter referred to as ‘the’ Act of 1977), but by way of a complaint under the MRTU & PULP Act. The Court had ordered his re-instatement, holding that the employer, the Head Master and the Secretary of the Society had engaged themselves in unfair labour practice in terminating the services of the said Laboratory Attendant. The interim application under sub-section (2) of section 30 of the MRTU & PULP Act by the complainant in that case was allowed by the Labour Court, which order was challenged in the said writ petition by the employer/education society. What was contended in that writ petition was that in view of he provisions of sections 8 to 15 of the Regulations At, 1971, which had come into force on 15.7.1981, the jurisdiction of the Labour Court constituted under section 6 of the MRTU & PULP Act was necessarily barred, and whether the order passed by the Labour Court under provisions of the MRTU & PULP Act was a good order in law. The facts are pretty similar to the facts in our case, where also the employee, who has been terminated has, instead of approaching the School Tribunal by way of Appeal under section 9 of the Act of 1977, chosen to proceed under the provisions of the MRTU & PULP Act. After taking resume of the provisions of section 28 of the MRTU & PULP Act as also sections 8 to 15 of the Act of 1977, this Court came to the conclusion that after promulgation of the Act of 1977, the provisions of the General Act ceased to apply to the worker because of the legal principle Generalia Specialabus Non Derogant. The Court, in that case, firstly, held that the school was an industry and the laboratory attendant, who was pursuing his remedy, was a workman. It then proceeded to hold that the provisions of the MRTU & PULP Act were applicable to the whole industry and as such it would cover all kinds of industries, generally. It is pointed out thereafter that out of the general gamut of industries, the Act of 1977 provided for the service conditions of he teaching and non-teaching staff of the private schools. The Court, thus, came to a conclusion that the Act of 1977 operated in a restricted field of the workers working in private schools. In that view of the mater, following the Supreme Court judgments on the subject, this Court held that, in fact, in the wake of the Orders passed in 1981, the workers in the school had to proceed under the Act of 1977 and not under the general Act, like MRTU & PULP Act. This is how the Court proceeded :
“If we examine the provisions of the Unfair Labour Practices Act and the Act in question in the light of the above legal position, it is clear that the general provisions in section 7 read with section 28(1) read with Item 1 of Schedule IV of the Unfair Labour Practices Act are not available to the employees of private schools. No doubt, Unfair Labour Practices Act is also a special Act enacted for the purposes stated in the preamble and is applicable only to industries as defined in section 3(7) of he said Act, but compared to the Act in question, it is a general Act because it is available to all persons who are employees within the meaning of section 3(5) of the said Act in all industries in the State of Maharashtra and which come within the sweep of the definition of that word contained in section 3(7). As mentioned above, in view of the decision in Bangalore Water Supply and Sewerage Board (citation supra), the sweep of the definition of the word ‘Industry’ given in section 2(i) of the Industrial Disputes Act has become very wide. The Act in question, however, governs only the employees employed in private schools in the State of Maharashtra. Hence, between the two, the Unfair Labour Practices Act is a general Act while the Act in question is a special Act.”
21. Shri Manohar also invited my attention to the following observations made in that judgment, in para-7 :
“Section 3(1) of he Act makes the provisions of the Act applicable to all private schools in the State of Maharashtra, whether receiving any grant-in-aid from the State government or not. By section 2 (24), the words “school” is defined to mean a primary school, or higher secondary school, or any part of any such school, a Junior College of Education, or any other institution or part thereof which imparts education or training below the degree level including any institution which impart education or training below the degree level including any institution which imparts technical or vocational education. It is an admitted position that the school in which respondent No. 1 is employed is a private school run by petitioner No. 2 society. Hence, with effect from 17.5.1981, i.e., the date on which the Act came into force, the conditions of service of all employees; teaching as well as non-teaching of petitioner No. 1 School, are governed by the Act.”
The situation is identical in our case also, and it must be held that the respondent, after 15.7.1981, was governed by the Act of 1977, insofar as his service conditions were concerned. This Court has held in the abovementioned case that the remedy under the general Act would be barred, if there is a remedy available to the employee under a special Act, like Act of 1977. In that case, however, the distinction was made on the basis of the fact that on the date when the complaint was filed by the workman before the Labour Court, the School Tribunal, as contemplated in the Act of 1977, had not come into force. It was in view of this, that this Court proceeded to hold that since there was no remedy available to the workman under the said Act, his complaint under the general Act, i.e., the MRTU & PULP Act, was maintainable. The Court, thus, allowed the worker to pursue the remedy under the general Act, in that case.
The situation is no different in our case. On the date when the present complaint was filed, admittedly, the School Tribunal was not constituted and no appointment of the Presiding Officer was made on the same. Under the circumstances, there was nothing wrong if the employee, in the present case, proceeded under the provisions of the MRTU & PULP Act. The question, however, was as to whether, while proceeding under that Act, could he still be governed by the provision of the Act of 1971. The answer to this question will have to be in the affirmative, because even if the workman proceeded under the provision of section 28 of the MRTU & PULP Act, it did not automatically extricate himself from the operation of the Act of 1977 which had become promulgated because of he provision contained therein, right from the date on which it came into existence, i.e. on 15.7.1981. It can not, therefore, be said that the provisions of the Act of 1977 and the Rules made there under were not applicable, and on that count, the recourse could not be had to rule 28 (2) by the employee. The employee had every right to proceed under rule 28 (2) because on the date when the present complaint was filed, the Act of 1977 had already come into force and it was already made applicable to the private schools, like the petitioner school, and the employees working therein. Indeed, even if the employee proceeded under the provisions of the MRTU & PULP Act, nothing very different was to be decided even under the provisions of that Act. For that matter, it is clearly observed by Jamdar, J., that the powers of the school Tribunal, as envisaged in the Act of 1977, were really no different or distinct from the powers of the Labour Court mentioned in clauses (a) to (g) of Item 1 of Schedule IV of the MRTU & PULP Act. This is how Shri Jamdar, J. proceeded to hold :
“It will be clear from sub-section (2) of section 11 of the Act in question that he Tribunal constituted under the Act can take into consideration all aspects of the matter enumerated in clauses (a) to (g) of Item 1 of schedule IV of the Unfair Labour Practices Act and can grant same relief to an employee of he private school, which the Labour Court is competent to grant in exercise of the powers conferred by the Unfair Labour Practices Act. I have already demonstrated above that sections 8 to 15 of the Act prescribe a self-contained Code in the matter of dismissal, removal or otherwise termination or reduction in rank of an employee in a private school.”
This will show that essentially the Labour Court was also proceeding to consider the correctness or otherwise of the termination of the employee in this case. While doing so, it could not have ignored the provisions of rule 28 (2), the recourse to which had been taken by the employer while terminating the services of the respondent No. 1 in this case. The plain language of rule 28 (2) gave the power to the employer to terminate the services of an employee, without holding a domestic enquiry, if the holding of that enquiry was such as would have invited undesirable social consequences. If the petitioner/Society, therefore, could prove that such social consequences would have followed, then the scope of the enquiry before the Labour Court would be restricted only to rule 28 (2) of he Rules. In that case the Labour Court could not hold the petitioner/society guilty of not having held any domestic enquiry and, on that account alone the Labour Court could not find the fault with the termination effected by the society. In this case, the Labour Court proceeded on the theory that the non-holding of the domestic enquiry was by itself an unfair labour practice, and it deprived the employee of an opportunity to prove his innocence or otherwise. The Labour Court actually found fault with the employer and held that because the enquiry was not held, all the subsequent action on the part of the employee was rendered illegal. In the wake of rule 28 (2), such interpretation was not possible. In fact, if the Labour Court had considered rule 28 (2) in its true perspective, such confusion would not have ensued in recording a finding to the effect that the whole action of termination was bad for non-holding of domestic enquiry. The fears expressed by the Labour Court in paragraph 27 of its judgment are laos totally unfounded, in view of the clear language of rule 28 (2) of the Rules. It was not as if a general drastic power was given to the management via rule 28 (2) to dismiss an employee without holding a domestic enquiry. The safeguards have been provided in the rule itself and a burden was cast upon the employer to prove that the holding of enquiry would have invited undesirable social consequences. It was only under these circumstances, that the dismissal could be effected without holding any domestic enquiry. The Labour Court has unnecessarily dilated on the issue as to whether this was a termination simpliciter or a dismissal. It termed this as a dismissal and allowed to be a confused by this finding. This was undoubtedly not a termination simpliciter and, indeed, that is not the import of rule 28 (2). Rule 28 (2) did provide for an order which had the penal consequence, but only gave that right to the employer in certain situations, and the situations in the present case undoubtedly warranted the use of rule 28 (2).
22. Shri Deopujari very seriously contended that these were the findings of facts and they should not be interfered with by this Court in its writ jurisdiction. Shri Deopujari pointed out that even the Industrial Court had confirmed the view taken by the Labour Court. I have gone through the order of the Industrial Court. The Industrial Court has done nothing, excepting paraphrasing the contentions of the parties and thereafter picking up the logic and reasoning by the Labour Court. The Labour Court, at least took the trouble to go into the question itself and to decide the questions in the light of the evidence as led before it. It undoubtedly has taken an incorrect view and was taken astray because of the incorrect view it took on the language of rule 28 (2) of the Rules. However, the Industrial Court did not even do that, and what it has done is to repeat the reasons given by the Labour Court and thereafter comment on the cases cited before it by the learned Counsel in the case. The Industrial Court also did not consider the true import of rule 28 (2) and its impact on the rights of the parties. In short, the Industrial Court fell into the same error as that of the Labour Court, resulting in the dismissal of the revision. The contention of Shri Deopujari, that this amounts to a concurrent finding of fact, is, therefore, not correct, for this reason that the findings of the Courts below are all shadowed by their incorrect reading of rule 28 (2), its form, substance and the true meaning thereof.
23. Shri Deopujari, thereafter, invited my attention to various cases and contended that this was a case where the dismissal had been brought about by a guilty mind and in pursuance on the colourable exercise of powers. He contended that not holding the domestic enquiry was a design on the part of the management and, in fact, the management was not justified in, firstly, calling the employee for domestic services of Shri Bajaj and, thereafter, punishing him for not complying with the dictates of Shri Bajaj. I have already rejected this contention. I have already held that the employee has not proved at all that he was ever called for a private service of Shri Bajaj. There is absolutely no reason why a responsible person like shri Bajaj, who was heading a premier institution in the city, would unnecessarily speak against a watchman, like the present respondent No. 1.
24. Shri Deopujari, thereafter, submitted that it is the duty of the Court to consider the real nature of the termination order, and if it comes to a conclusion that the said termination order is brought about by guilty-mind, then the termination could be set aside on that count alone. He also contended that the termination was brought about because of the loss of confidence and, indeed such punishment could not be given by merely showing reason ‘loss of confidence’, unless a proper domestic enquiry was held. In support of his contention, he relied on L. Michael v. M/S Johnson Pumps Ltd. (1975) L. I. C. 399 an Chandu Lal v. The Management of M/S Pan American World Airways Inc. (1985 L. I. C. 1225).
In the first mentioned case, the Supreme Court has observed as under :-
“That, the Tribunal has the power and indeed, the duty to X-ray to order and discover its true nature, if the object and effect, if the attendant circumstances and the ulterior purpose be to dismiss the employee because he is an evil to be eliminated. But if the management to cover up the inability to establish by an enquiry, illegitimately but ingeniously passes an innocent – looking order of termination simpliciter, such action is bad and is liable to be se aside. Loss of confidence is no new armour for the management; otherwise security of tenure ensured by the new industrial jurisprudence and authenticated by catena of cases of the Supreme Court, can be subverted by this neo-formula.”
There, indeed, cannot be any dispute with this proposition. However, in the present case, it, must be remembered that the facts are entirely different. Shri Deopujari had relied upon this case probably because in this case also, the order does not mention any such misconduct on the part of the employee. He, therefore, wants to suggest that the management in this case has passed innocent-looking order with the sole idea to dismiss the employee for the wrong which he had committed, It is probably with this idea that this case has been relied upon by Shri Deopujari. The Labour Court has also devoted a good deal of time to this aspect and has strenuously discussed that though the order was of simple termination, in fact, it was an order with stigma. The Labour Court proceeded to hold so on the basis of exchange of notice, the show cause notice and the correspondence as also the report made by Shri Bajaj. It went on to hold that thought the order was a simple termination, it in fact, was the dismissal with a stigma and, therefore, on that that count it proceeded to hold that this could not be done unless domestic enquiry was held. Now, one took at rule 28 would have cleared the cob-webs of confusion in the mind of the Labour Court an the Industrial Court also. The order, in this case was, indeed, not an order of termination simpliciter. It only was worded like this, probably because rule 28 (3) specifically provides that if, after considering the cause shown by the employee, the order of termination of his services is passed, the Management may not assign any reason in the order to be issued to the employee. It was in the sake of this expressed language of rule 28 (3) that the order did not mention any reason therefore though in fact this was an order with stigma. This was a case where though the employee was to be terminated with stigma, the law specifically provided that the management could do so, without holding an enquiry and without mentioning the said reason inviting the stigma in the order. The management did proceed under rule 28 (2) and (3), as it stood than, and the order is in keeping with the expressed language of rule 28 (3). In this view of the matter, the argument of Shri Deopujari that this was a couched termination simpliciter, has no merits. Apart from this, in the above referred L. Michael’s case, the Supreme Court was deciding and commenting upon the case of an employee who was terminated in pursuance of the Standing Orders, which did not stigmatise the worker. The Supreme Court there was not considering the provisions like rule 28 (2) and (3) which gave a liberty to the employer to dispense with the holding of the domestic enquiry. The fact in that case and in the present case are entirely different. The law to be interpreted is also entirely different and, therefore, Shri Deopujari cannot rely upon the ratio laid down in that case.
25. In the second case referred to above, i.e. in Chandulal’s case (1985 Lab. I. C. 1225), the Supreme Court proceeded to hold that where the service of a workman were terminated on grounds that the workman was being involved in an act of smuggling. On basis of loss of confidence, without holding any domestic enquiry, the order of termination was vitiated as it did amount to be one with stigma and warranted a proceeding contemplated by law preceding termination. As stated earlier, there is absolutely no dispute about this proposition. However, in this case, the law does permit via rule 28 (2) to dispense with the enquiry and, therefore, ruling is of not much help to Shri Deopujari.
26. Shri Deopujari then urged that the holding of the enquiry was must and any provision like rule 28 (2), could not be allowed to stand on the statute book, as it was a drastic provision dispensing with holding of the enquiry. He invited my attention to a reported decision in Delhi Transport Corporation v. D. T. C. Mazdoor Congress, (1991 L. I. C. 91). There, the Supreme Court was called upon to interpret Regulation 9 (b) of the Delhi Road Transport Authority) conditions of Appointment and Service) Regulation (1952), which conferred the powers on the authority to terminate the services of the permanent and confirmed employee by issuing a notice without assigning any reason in the order and without giving any opportunity of hearing to the employee, before passing the impugned order. The Supreme Court commented upon this particular Regulation and proceeded to hold that such provision really contained the much hated and abused rule of hire and fire reminiscent of the days of laissez faire and unrestrained freedom of contract. It also held by majority judgment that such power could by majority judgment that such power could not be allowed to be given to an employee as such power was wholly arbitrary, uncanalised and unrestricted, violating principle of nature justice as well as Article 14 of the Constitution of India. The Supreme Court further held in that case that the Service Regulations and the Rules to be tested by touch-stone of Article 14 of the constitution of India, and the procedure prescribed by the Rules and Regulations must be reasonable, fair and just and not arbitrary, fanciful and unjust. It, therefore, held that Regulation 9 (b), which conferred unbridled, uncanalised and arbitrary power on the authority to be suffering from the vice of arbitrariness and, therefore, stuck it down. The Supreme Court also embarked upon the well-settled principle of audi alteram partem. The argument of Shri Deopujari, that provisions of rule 28 (2) and partly of rule 28 (3) have now been deleted by the Legislature by the subsequent amendment and that on the test laid down by the Supreme Court in Delhi Transport Corporation’s case also, rule 28 (2) should not have been allowed to be taken recourse to by the Management even though it was a valid rule then is incorrect for two reasons. Regulations 9 (b) of the Delhi Road Transport Authority (Conditions of Appointment and Service) Regulations (1952), which the Supreme Court was called upon to interpret, differed substantially from rule 28 (2) of the Rules of 1981 in the present case. In the Regulation 9 (b), there was undoubtedly an uncanalised power to terminate the services of the employees, without assigning any reasons and without holding any enquiry. However, the circumstances under which the said enquiry could be dispensed with are not enumerated in any manner in the said Regulation 9, the reference to which is to be found in para 2 of the Delhi Transport Corporation’s case. Such is not the case here. There is no unbridled and uncanalised power of dispensing with the enquiry and terminating the service of the workman without assigning any reasons, insofar as the Act of 1977 or the Rules framed thereunder are concerned. It is only when the employee engages himself in an obnoxious behaviour of committing any immodest or immoral act or behaviour with female or male Student and employees, or when he engages himself in any action involving moral turpitude and, secondly, when the holding of the enquiry would invite the undesirable social consequence then alone the enquiry can be dispensed with If Regulation 9 (b) in the Delhi Transport Judgment is compared with rule 28 (2) & (3) of the Rules of 1981, the inherent, difference in the two provisions would immediately repel the argument of Shri Deopujari that the provision in rule 28 (2) & (3) is equally obnoxious and uncanalised as in the case of Delhi Transport Corporation. The argument, therefore, must be reject. The authority is of no help to Shri Deopujari.
27. If this be so, then it will have to be held that the order of the Labour Court as also the confirming order of the Industrial Court are wholly incorrect, erroneous and suffer from the vice of non-application of mind. Both the Courts have failed to properly read rule 28 (2) & (3) of the Rule 1981 and have not realised the true and proper implication thereof. Because of the incorrect reading of rule 28 (2) & (3), the Courts below have allowed themselves to be swept away from, the main path and to go astray. In that view of the matter, both the orders, will have to be set aside.
28. Since is it held that the Management was justified in not holding the enquiry, it will have to be held that there could or demerits of the allegations made. It has already been pointed out that the Management had examined all the three witnesses. It has pointed out that there were not only murmurs but strong rumours reverberated in the whole area that everything was not alright with the school and that school was being mismanaged and that all kinds of nefarious activities, like prostitution, gambling an drinking, were going in the school at the instance of the employee, respondent No. 1 in the present case. The Management has also pointed out that it was not on the basis of something untangible and something in the air that it had acted, but it has in its possession the letters, the reports; and the responsible officer, like Shri Bajaj, of the School had got himself convinced by visiting the school at night and seeing for himself that some unsocial elements were present in the school premises. It had, therefore, discharge its burden before the Labour Court to show that it was acting bona fide and not in the mala fide manner, without being convinced of the situation. It also has pointed out specifically that if the enquiry had been held, some drastic result would have followed. The school would have suffered in its reputation. Besides, some lady-folk would have also come in genuine difficulties because of the disclosure of names in the enquiry. Under such circumstances, it had shown that it was acting well within the four-corners of rule 28 (2) and, therefore, was justified in not holding an enquiry. It has also proved that it has property complied with all other modality of rule of giving show-cause notice, then giving active consideration to the reply of the show-cause-notice and also giving of six months pay as compensation which undoubtedly was accepted by respondent No. 2 employee, without murmur. It is significant that had this been the simple dismissal, respondent No. 2/employee would not have been entitled to the six months of pay. If therefore, there was total compliance with rule 28 (2), there was no question of further enquiring in to the merits or demerits of the allegations made. Rule 28 (2), as it stood then, was fully complied with., In that view of the matter, the Labour Court should have only dismissed the complaint of the employee. In not doing so, it had erred in law, and for these reasons, the order passed by the Labour Court and confirming order passed by the Industrial Court which failed to consider anything, will have to be set aside and are hereby set aside and the complaint is ordered to be dismissed.
29. In the result, the petition is allowed and the rule is made absolute. However, in the circumstances, there shall be no order as to the costs.