JUDGMENT
B.P. Jha, J.
1. In an application under Articles 226 and 227 of the Constitution, the Management of M/s. Ashok Paper Mills Ltd. (hereinafter referred to as ‘the Management’) has prayed for issue of a writ of certiorari for quashing Annexure 9. Annexure 9 contains an award passed by the Labour Court.
2. The State of Bihar made a reference under Section 10(1)(c) of the Industrial Disputes Act, 1947 (hereinafter referred to as ‘the Act’) to the Labour Court, the following question for decision under Section 10(1)(c) of the Act:
Whether the dismissal of Shri Shyamnandan Singh, Store–keeper, is proper and justified? If not, whether he is entitled to reinstatement and/ or any other relief?
3. The Labour Court held that the dismissal of Sri Shyamnandan Singh was not justified on the facts and circumstances of the case, and, as such, he is entitled to reinstatement. It is a well settled law that where an employee is dismissed wrongfully, then ordinarily he is reinstated in service. This principle has been followed in this case.
4. Shyamnandan Singh (Respondent No. 3) was appointed temporarily vide Annexure 1. The appointment was made by Ashok Paper Mills Limited, having its registered office at 8, Russel Street, Calcutta–16. It is relevant to quote Annexure 1 which runs as follows;
We are pleased to appoint you as “Store-keeper” in our organisation on a consolidated salary of Rs. 250/- (Rupees two hundred fifty) per month.
Your appointment for the present will be on a temporary basis for a period of six months in the first instance and your services during that period will be liable to termination without notice from either side.
You will be governed by the duty hours of the organisation to which you will remain posted. You will be governed in all matter of leave, holidays, discipline, punctuality in attendance etc., by the rules and orders of the company as may be in vogue now or from time to time. Your confirmation will depend on a satisfactory discharge of your duties and observance of proper discipline and decorum as is expected from the employees of an organised establishment.
If the above terms are accepted, please report to the Assistant Engineer Ashok Paper Mills Limited, Rameshwar nagar.
5. On a perusal of the appointment letter, it is clear that he was appointed as a stor-keeper in the organisation of the Ashok Paper Mills Limited having its registered office at 8, Russel Street, Calcutta 16. According to the additional written statement filed by the petitioner before the Labour Court (which is also mentioned in paragraph No. 3 of the award) Ashok Paper Mills Limited, a Company registered under the Indian Companies Article 1956, having its registered office at Calcutta, have two manufacturing units’ one at Jogighopa and the other at Rameshwarnagar. It is, therefore clear that the appointment of Shyamanandan Singh was made by an organisation called Ashok Paper Mills Limited at Calcutta. According to the appointment letter, if his service was required to be terminated within a period of six months in the first instance, then his service could be terminated during that period without notice. In the present case, it is an admitted position that his services were terminated or he was dismissed without notice after the expiry of six months from the date of his appointment. His appointment was made on 13th February, 1972. His services were terminated by Annexure 5 which runs as follows:
The management has decided to terminate your services with effect from 1st August, 1974.
6. The only question for decision in the present case is whether the termination letter in question is a termination simpliciter, or it is by way of punishment? If the answer is that the termination is by way of punishment then it must be held that it is not a termination simpliciter. In this connection a reference was made to paragraphs 17 and 18 of the writ petition which run as follows:
17. That the Enquiry Officer in his report dated 4th October 1973 found Shri Shyam Nandan Singh (opposite party No. 3) guilty of the charge levelled against him.
18. That thereafter the services of Shri Shyam Nandan Singh were terminated by the Administrative Officer vide his letter No. 3709 dated 1st August, 1974″.
On a perusal of these two paragraphs of the writ petition, it is clear that the services of respondent No, 3 were terminated on the basis of an enquiry report submitted against respondent No. 3 on 4th October, 1973. According to the enquiry report, he had committed misconduct. It was also the case of the Management before the Labour Court that the Management after examining the enquiry report relieved the workman from duty with effect from 1st August, 1974 (see paragraph No. 5 of the award Annexure 9). The Labour Court also held in paragraph No. 33 that “in face of the allegation of the management the termination was on account of the findings of the Enquiry Officer in his Report (Ext. 16)”. If the facts in paragraphs Nos. 17 and 18 of the writ petition are read with paragraphs 3 and 33 of the award, the irresistible conclusion is that the termination of the service of Shyamnandan Singh was made on account of the findings of the enquiry officer in his report. The enquiry officer found that Shyamanandan Singh had misconducted himself. I therefore hold that the termination letter as contained in Annexure 5 is not a termination simpliciter, but it is by way of punishment as well as it casts a stigma on the character of Shyamnandan Singh.
7. In this connection, the decision of the Supreme Court in Bihar State Rand Transport Corporation v. State of Bihar 1973 (II) L.L.J. 138., is relevant In that case the Supreme Court has held that the Labour Court has jurisdiction to decide as to whether the tarmination order is termination simpliciter or it is by way of punishment. In that case, the Supreme Court has further held that if the Labour Court has interpreted that the termination order is by way of punishment, then in that case the High Court is not entitled to interfere with such a finding in a writ for certiorari unless it is perverse. Relying on this decision, I hold that this Court while exercising the writ jurisdiction would not be entitled to interfere with such a finding of fact. In the present case, the Labour Court held that the termination order was passed on the basis of the enquiry report, and, as such, it is not a termination simpliciter.
8. In the present case, the accusation against Shyamnandan Singh as contained in the chargesheet (Annexure 4) was that he had supplied excess stock of certain building material to the contractor, namely, 930 cft. of stone chips and 1326 oft. of sone sand. The management was of opinion that these materials were unauthorisedly issued from the Company’s store which the contractor had also admitted. Shyamnandan Singh was the store-keeper in Ashok Paper Mills Limited at Rameshwarnagar in the District of Darbhanga. It was also alleged in the chargesheet that he was of doubtful integrity (see Annexure-4). The enquiry report was not filed along with the petition. A copy of the enquiry report has been filed today by the lawyer of the petitioners. The enquiry officer held that the presumption would be that ulterior motive governed by supply of the excess quantity of the articles (930 cft, of stone chips and 1326 cft., of sone sand), According the finding of the Labour Court, the domestic enquiry was not fair and, as such, the Labour Court did not accept the enquiry report. Thereafter, witnesses were examined before the Labour Court. On the basis of the evidence before the Labour Court, it is of opinion that “there is no evidence that there was any shortage of stone chips and sone sand in the store of the company” (see paragraph No. 31 of the award Annexure 9).
9. The simple point for consideration before the Labour Court was as to whether Shyamnandan Singh being a store-keeper supplied any excess quantity of stone chips and sone sand to the contractor or not. In this connection, the Labour Court held in paragraph No. 28 as follows;
No witness of the management has said a word in the Court as to what was the excess quantity of the materials with the contractor. No competent witness of the management had deposed in this Court that workman, Shyamanandan Singh, had issued excess quantity of materials to contractor, Manikant Choudhary, The management has not produced the best evidence in his control like stock verification report and control register. Without making actual and physical verification of the stock, it was neither proper nor possible for any one to say that the storekeeper had issued the materials in excess to the contractor from the store. If the excess quantity would have been issued to the contractor, there must have been shortage in the actual stock of the store. Unless the physical verification is done, actual stock position cannot be ascertained, Unless the shortage in the stock of the store is established, it cannot be said that the contractor had excess of materials or the store keeper (workman) issued excess of materials to the contractor. The management has miserably failed to prove that there was any excess of materials with the contractor. The management has also failed to prove that workman, Shyamnandan Singh had issued excess of materials from the store to the contractor, Manikant Choudhary.
In paragraph No. 29, the Labour Court has discussed the evidence of the Management. After discussing the evidence of the management’s witnesses, the Labour Court was of opinion that there was no evidence that there was any shortage of stone chips and sone sand in the store of the company. It is relevant to quote paragraph No. 32 of the award which runs as follows;
On a consideration of all the facts, evidence and circumstances discussed above, I am satisfied to hold that the management has failed to prove that there was any excess of stone chips and sone sand of the company with Manikant Choudhary contractor. I also hold that the management has failed to prove that workman, Shyamanandan Singh had in any manner issued excess of stone chips and sone sand to the extent of 930 cft. and 1326 oft. respectively to Manikant Choudhary. I also hold that there was no negligence in discharge of duty on the part of the workman in issue of stone chips and sone sand to the contractor. I further hold that the charge (Ext. 4/a) levelled against workman, Shyamanandan Singh by the management have not been proved. Consequently, the management has failed to establish any misconduct on the part of the workman. Point No. (4) is decided in favour of the workman and against the management.
10. On a persual of paragraphs 28, 29, 31 and 32 of the award (Annexure 9), it is clear that there was no evidence to suggest that Shyamnandan Singh had issued any excess quantity of stone chips and sone sand to the contractor, Manikant Chaudhary. In a case of this type, there was no option to the Labour Court but to pass an order for reinstatement in favour of Shyamnandan Singh. I am also of the opinion that the termination letter is not a termination simpliciter, but it is by way of punishment. In my opinion, the enquiry report casts a stigma of the character of Shyamanandan Singh. In these circumstances, the Labour Court was justified in examining as to whether the termination letter (Annexure-5) is a termination simpliciter or it is by way of punishment. The Labour Court is of opinion that it is by way of punishment, and, as such, it was justified in ordering reinstatement. Such a question of fact cannot be agitated in a writ jurisdiction. It is a settled law that the High Court, while exercising the writ jurisdiction, can interfere with the order in question if it appears that there is any mistake of law apparent on the face of the record. The High Court cannot interfere with the findings of fact arrived at by Labour Court or the Tribunal and, hence, I am unable to interfere with such a finding of fact.
11. Learned Counsel for the petitioner contends that the Management has no confidence in Shyamnandan Singh, and, as such, he should not be reinstated in service, but he should be granted compensation. It appears from the award that this point was not raised before the Labour Court. The award of the Labour Court (Annexure-9) contains about 80 pages and this argument was not at all mentioned in the whole of the award. It is conceded by the learned Counsel of the petitioners that this fact is also not mentioned in the writ petition to the effect that the argument about the compensation was made before the Labour Court for which no finding was given by the Labour Court. At one place, the Labour Court has framed points to be decided in the award. The point in respect of payment of compensation or of losing confidence is not at all mentioned in the points to be decided in the award. In this circumstance, this petitioner cannot raise a question of fact for the first time before the High Court in a writ jurisdiction. In this connection, a decision of the Supreme Court in the Management of Panitola Tea Estate v. The Workmen 1971 Lab. I.C. 1235. was referred to. It is relevant to quote a portion of paragraph No. 7 of the judgment of the Supreme Court;
It is significant that no such plea was sought to be substantiated before the Labour Court. It is undoubtedly true that the store of the Tea Estate would contain goods of substantial value and a person really suspected of being untrust-worthy may not justifiably be forced on the unwilling employer, but that aspect requires determination on facts which should have been properly placed before the Labour Court and a finding secured after appropriate trial. The suggestion that having regard to the nature of the proceedings against Bhagavati, the management has lost confidence is unacceptable.
12 The question for consideration in that case was as to whether the employee should be retained as store-keeper or not. The argument advanced on behalf of the Management was the employee concerned should not be reinstated in service as a store-keeper as the Management had lost its confidence in him The Supreme Court rejected this contention on the ground that this plea was not substantiated before the Labour Court. In order to raise this point the Management ought to have led evidence in this connection before Labour Court In other words, the Management ought to have produced the materials on the basis of evidence to show that the Management had lost confidence in such a person. Then, on the basis of that evidence, the Management could have argued before the Labour Court that instead of reinstatement, compensation should be paid to the employee as he has lost confidence in him. There is nothing in the award (Annexure-9) to suggest that any evidence was led in this connection I nor any material was placed before the Labour Court In come to the conclusion that he should not be reinstated. It is also clear that no such argument was placed before the Labour Court. If such an argument would have been placed, we could have known the opinion of the Labour Court in this connection. I cannot allow party to raise a question of fact for the first time before this Court. I, therefore hold that there is no evidence, nor any material to come to the conclusion that Shyamnandan Singh should not be reinstated in service. Such materials were placed in the writ petition also before this Court. I, therefore, hold that on the basis of the decision of the Supreme Court aforesaid it is a fit case where reinstatement should be
13 Learned Counsel for the petitioners cited a decision of the Supreme court on the point of compensation in the case of the Management of Monghyr Factory I. C. Ltd. v. The Presiding Officer, Labour Court, Patna . In that case the employee had superannuated as it is clear from paragraph No. 20 of the judgment which reads as follows;
The fact that he has superannuated was not disputed by Mr. Santokh Singh.
In view of the fact that the employee had superannuated, therefore their Lord-ships of the Supreme Court awarded compensation to the employee. The Supreme Court also took into consideration the following facts:
1 From the documents on record it is abundantly clear that the management and Shri Ram Kishan Pathak are not on happy terms for several years.
2. The service card indicates that the service records of Shri Pathak are not neat and clean.
In my opinion the facts of the present case are quite different from the facts mentioned in that judgment and as such, it does not apply to the present case.
14. Learned Counsel for the petitioners also relied on another decision of the Supreme Court in Ruby General Insurance Company, Ltd. v. Chopra (P.P.)1970 (I) L.L.J. 63., In that case, the Tribunal instead of passing an order of reinstatement directed the Company to pay compensation to him. In that case also, the point was raised before the Tribunal and the Tribunal considered on the basis of the evidence of that case that it would not be beneficial to order reinstatement. It is on the basis of the judgment of the Supreme Court, I hold that the point about reinstatement or compensation should have been raised before the Labour Court and such point cannot be allowed to be raised for the first time before the High Court. The Labour Court being a Court of fact would have considered the argument raised by the Management as to whetner it is a case of reinstatement or a case of payment of compensation. On the basis of the evidence and materials on the record, the Labour Court could have come to certain conclusions, but in the present case such an argument was not at all raised before the Labour Court. I also asked the learned Counsel for the petitioners to show the discussion of evidence about the fact that Shyamnandan Singh had lost confidence of the Management which the learned Counsel failed to point out in the award. In these circumstances, I hold that it is not a case of compensation, but it is a case of reinstatement.
15. In the result, I dismiss the Writ petition. The parties shall bear their own costs.
Sia Saran Sinha, J.
16. I agree to the order proposed by my learned Brother. But, I would like to make a few observations of my own.
17. In the reference under Section 10(1)(c) of the Industrial Disputes Act 1947 (hereinafter referred to as ‘the Act’) what was referred to the Presiding Officer of the Labour Court for adjudication was the propriety of the decision about the dismissal of respondent No. 3 by the petitioner as also the question of his entitlement to reinstatement or other reliefs. The scope of enquiry by a Governmental machinery, in a departmental proceeding and that in course of adjudication by a Tribunal or a Labour Court, as rightly submitted by Shri Tarakant Jha, is manifeslty different in the sense that the scope of enquiry by the latter is much more wider in scope than that by the former. This is so by the introduction of Section 114 of the Act by amending Act 45 of 1971 which states, inter alia, that “where an industrial dispute relating to the discharge or dismissal of a workman has been referred to a Labour Court, Tribunal or National Tribunal for adjudication and, in the course of the adjudication proceedings, the Labour Court, Tribunal or National Tribunal, as the case may be, is satisfied that the order of discharge or dismissal was not justified, it may, by its award, set aside the order of discharge or dismissal and direct reinstatement of the workman on such terms and conditions, if any, as it thinks fit, or give such other relief to the workman including the award of any lesser punishment in lieu of discharge or dismissal as the circumstances of the case may require.” Relying on Annexure-5 to the writ application, the letter of termination, the Management contended before the Labour Court that the removal of Respondent No. 3 from service was a termination simpliciter, founded on conditions of service as laid down in Annexure ], the appointment letter. The petitioner-Management alleged certain lapses, one of them being serious in nature, against respondent No. 3. One related to serious negligence in discharge of duty causing heavy financial loss to the Company and the other about his doubtful integrity. The Management launched upon the departmental enquiry. It culminated in a report by the enquiry officer appointed by the Management who, in substance, found both the charges to have been substantiated against Respondent No. 3. For some reasons not quite known, the Management were advised not to pass final orders on the departmental proceeding. After waiting for some time, the Management came out with the letter (Annexure 5) which, according to Shri Ranen Roy, learned Counsel for the petitioner, was a termination simpliciter. The Labour Court was of the view that it was not a case of termination simpliciter. but the termination was by way of punishment actuated by the findings of the enquiry officer, referred to above. This led the Labour Court to bold an enquiry itself. It did so, and, ultimately found that none of the two charges levelled against the petitioner had at all been substantiated. It, therefore, concluded that the termination by way of punishment which obviously amounted to dismissal from service was illegal. Shri Ranen Roy failed to point out any material on the record to show any illegality or perversity, in this finding of the Labour Court.
18. The submission of Shri Ranen Roy was that the Management could not be deprived of the right of terminating the services of their employee if it possessed such a right because it earlier launched upon a departmental enquiry against him, and, in support of his contention he relied on a decision of the Supreme Court reported in Oil and Natural Gas Commission and Ors. v. Dr. Md. S. Iskander Ali . The facts of this case are distinguishable from the facts of the instant case. In the instant case, we are concerned with the provisions of the Act, whereas that case concerned the interpretation of Article 311 of the Constitution which deals with a servant of the Government. The powers of the Labour Court to go behind Annexure 5 and find for itself whether it was a termination simpliciter or termination by way of punishment amounting to dismissal cannot be disputed, I do not, therefore, see any reason to interfere with the finding of the Labour Court on this point, particularly while sitting in writ jurisdiction.
19. Some argument was raised before this Court regarding the applicability or otherwise of the Industrial Employment (Standing Orders) Act, 1946. In view of the findings of fact recorded by the Labour Court, Shri Ranen Roy conceded, and in my opinion, very reasonably that it was difficult for him to challenge the finding of the Labour Court that it was termination by way of punishment in case his contention that it was a termination simpliciter is negatived. Since it is not a case of termination simpliciter and Annexure 5 cannot be said to flow from Annexure 1, once the Labour Court found that the charges against the respondent No 3 had not been established, the termination by way of punishment or dismissal whatever it might be called, of the respondent No. 3 cannot be supported in law, and it has to be set aside as it has been rightly done so by the Labour Court. In these circumstances, it is not necessary to consider the contention of the learned Counsel for the parties regarding the applicability or otherwise of the Industrial Employment (Standing Orders) Act, 1946.
20. The further contention raised by Shri Ranen Roy was that in a case like the instant one, the Labour Court instead of ordering reinstatement Of respondent No. 3 should have ordered for payment of an adequate compensation to him. This aspect has been dealt with by my learned Brother in detail. I would, however, like to add that apart from the infirmity in the argument of Shri Ranen Roy, as pointed out by my learned Brother, the facts and circumstances of this case, when considered on merit, do not also justify the contention of Shri Roy. There might be justification for the Management in deciding not to keep under them an employee in whom they have lost faith for the simple reason that it may not be conducive to industrial peace. The question, however, is Should the Management be allowed to remove one of its employees on a fake ground of loss of confidence which has absolutely no basis. A charge of excess supply was levelled against respondent No. 3 in the past. Respondent No. 3 was asked to show cause which he did. Respondent No. 3 was pardoned. Thereafter, the instant lapses were detected. These lapses were enquired into by the Labour Court and were found to be non-est. In such a situation, the argument that the Management lost confidence in respondent No. 3 is not at all justified and fit to be accepted. I, therefore, agree with my learned Brother that in the facts and circumstances of this case, the Labour Court justly and properly ordered for reinstatement of the respondent No. 3. This writ application must, therefore, fail. Parties to bear their own costs.