The court held that findings of loss of confidence must be substantiated by evidence; otherwise, reinstatement is warranted, and compensation awarded in lieu is unsustainable.

JUDGMENT :

Ajay Mohan Goel, J.

1. By way of this writ petition, the petitioner has challenged the award dated 01.11.2022, passed by learned Presiding Judge, Labour Court, Shimla, in Application No. 82 of 2020, titled as Yog Raj vs. M/s HFCL Limited, in terms whereof, though the complaint filed by the petitioner under Section 33-A of the Industrial Disputes Act was allowed by the learned Labour Court but by erroneously holding that there was loss of confidence between the employer and the employee, learned Labour Court rather than ordering reinstatement of the petitioner, ordered payment of lump sum compensation of Rs. 4.00 Lac in lieu of reinstatement, back wages and other consequential service benefits.

2. Brief facts necessary of the adjudication of this writpetition are that two References were pending before the learned Labour Court, i.e. Reference No. 138 of 2019 and Reference No. 141 of 2019 when the petitioner was dismissed from service by the respondent on 17.07.2020 vide letter dated 14.07.2020. This was followed by filing of an application under Section 33(2)(B) of the Industrial Disputes Act by the Company before the learned Labour Court on 22.07.2020 seeking ratification of its act of dismissing the services of the petitioner, which as per the Company was done after holding due enquiry.

3. Feeling aggrieved by the order of dismissal of services, the petitioner also preferred an application/complaint under Section 33-A of the Industrial Disputes Act before the learned Labour Court on 12.10.2020 alleging therein that as the employer had changed the service conditions of the petitioner during the pendency of the reference petitions, without adhering to the statutory provisions of the Industrial Disputes Act, the impugned act of the employer was bad.

4. To cut the controversy short, the petition filed by the employer under Section 33(2)(b) of the Industrial Disputes Act was dismissed by learned Labour Court in terms of order Annexure P-6, dated 01.11.2022. While dismissing said application filed by the employer, learned Labour Court held that the Company had miserably failed to prove its case beyond preponderance of probabilities and had failed to justify its act of dismissing the services of the petitioner on the grounds assigned in the application. Learned Labour Court further held that the petitioner was a protected worker and employer was not able to justify the application filed by it under Section 33(2)(b) of the Industrial Disputes Act so as to persuade the Court to grant necessary approval.

5. It is a matter of record that this order has attained finality as the same has not been assailed by the employer.

6. Coming back to the order under challenge, after holding that the complaint filed under Section 33-A of the Industrial Disputes Act by the petitioner was a valid complaint and indeed there was a change in service conditions of the petitioner, firstly by issuing transfer order dated 27.07.2019 and thereafter dismissing him from service on 17.07.2020, as already observed hereinabove, learned Labour Court granted lump sum compensation in favour of the petitioner instead of reinstatement with consequential benefits.

7. Feeling aggrieved, the petitioner has filed this writ petition.

8. Learned Counsel for the petitioner has vehemently argued that after learned Labour Court came to conclusion that there was an arbitrary change in the service conditions of the petitioner by the employer and further learned Labour Court was pleased to dismiss the application filed under Section 33(2)(B) of the Industrial Disputes Act, the act of the learned Labour Court of not ordering the reinstatement of the petitioner from the date of illegal dismissal is per se bad. Learned Counsel submitted that once the application filed under Section 33(2)(b) of the Industrial Disputes Act was dismissed and complaint filed under Section 33-A of the Industrial Disputes Act was allowed, consequences were to ensue, which entail that the dismissal once be