Back
2001 (2) JLJ 315
(SUPREME COURT)
S. Rajendra Babu and S.N. Variava, JJ.
Kanhaiyalal Agrawal and others v. The Factory Manager,
Gwalior Sugar Co. Ltd.
Civil Appeals No. 6878-6880 of 1999 with Civil Appeals No. 6881-6883 of
1999; against the judgment passed by the M.P. High Court in LP A Nos. 247,
249 and 255 of 1996; Decided on 13.9.2001.
(2) Constitution of India -- Art. 227 -- order in writ petition challenging order of labour Court --letters patent appeal not maintainable.
(3) Constitution of India -- Arts. 226 and 227 -- Single Judge not mentioning particular Article -- facts justifying filing under either Article -petition dismissed on merits -- order is appealable.
So far as the law on the matter is concerned as to whether an appeal would lie against an order made in writ petition before the High Court challenging an order of the Labour Court, this Court in its decision in Lokmat Newspapers Pvt. Ltd. v. Shankarprasad [(1999) 6 SCC 275] stated that "if a Single Judge exercises jurisdiction under Article 226, letters patent appeal would be maintainable, but if the jurisdiction is exercised under Article 227 it will not be maintainable". But with an explanation that if the Single Judge of the High Court in considering the petition under Article 226 or Article 227 does not state under which provision he has decided the matter and where the facts justify filing of petition both under Article 226 and Article 227 and a petition so filed is dismissed by the Single Judge on merits, the matter may be considered in its proper perspective in an appeal. (1999) 6 SCC 275, 1986 Supp. SCC 401, 1993 Supp. (1) SCC 9 and 1993 Supp. (1) SCC 11 relied on. [Para 5
(4) Industrial Disputes Act, 1947 -- S. 7, Second Schedule, Cl. 3 -dismissal of employee for ‘loss of confidence -- requirements.
What must be pleaded and proved to invoke the aforesaid principle is that (i) the workman is holding a position of trust and confidence; (ii) by abusing such position, he commits acts which result in forfeiting the same; and (iii) to continue him in service would be embarrassing and inconvenient to the employer or would be detrimental to the discipline or security of the establishment. All these three aspects must be present to refuse reinstatement on ground of loss of confidence. Loss of confidence cannot be subjective based upon the mind of the management. Objective facts which would lead to a definite inference of apprehension in the mind of the management regarding trustworthiness or reliability of the employee must be alleged‘ and proved. [Para 8
¼1½ Hkkjr dk lafo/kku&vuq- 226&fjV ;kfpdk esa vkns‘k ftlesa Je U;k;ky; ds vkns‘k ij vk{ksi fd;k x;k&ysVlZ isVsaV vihy pykus ;ksX; gSA ¼2½ Hkkjr dk lafo/kku&vuq- 227&fjV ;kfpdk esa vkns‘k ftlesa Je U;k;ky; ds vkns‘k ij vk{ksi fd;k x;k&vihy pykus ;ksX; ugha gSA ¼3½ Hkkjr dk lafo/kku&vuq-227 rFkk 227&,dy U;k;k/kh‘k }kjk fof‘k"V vuqPNsn dk mYys[k ugha fd;k tkuk&rFksa }kjk nksuksa esa ls fdlh vuqPNsn ds v/khu Qkby dh tkuk rdZlaxr&;kfpdk xq.kkxq.k ij [kkfjt&vkns‘k vihyuh; gSA Je U;k;ky; ds vkns‘k ij vk{ksi djrs gq, mPp U;k;ky; ds le{k fjV ;kfpdk esa vkns‘k ds fo#) D;k vihy gksxh] bl fo"k; ij tgk¡ rd fof/k dk laca/k gS] bl U;k;ky; us yksder U;wtisilZ çk- fy- fo- ‘kadj çlkn ¿¼1999½ 6 ,l lh lh 275À esa vius fu.kZ; esa dgk gS fd ^^;fn dksbZ ,dy U;k;k/kh‘k viuh vf/kdkfjrk vuqPNsn 226 ds v/khu ç;qDr djrk gS] ysVlZ isVsaV vihy gksxh] fdarq ;fn vf/kdkfjrk vuqPNsn 227 ds v/khu ç;qDr dh tkrh gS] og pykus ;ksX; ugha gksxhA** fdarq ml Li"Vhdj.k ds lkFk fd mPp U;k;ky; dk dksbZ ,dy U;k;k/kh‘k ;fn vuqPNsn 226 vFkok 227 ds v/khu ;kfpdk ij fopkj djrs le; ;g mYys[k ugha djrk fd fdl mikca/k ds v/khu mlus ekeyk fofuf‘pr fd;k gS rFkk tgk¡ rF;ksa }kjk ;kfpdk vuqPNsn 226 vkSj vuqPNsn 227] nksuksa ds v/khu Qkby dh tkuk rdZlaxr gks vkSj ,slh Qkby dh xbZ ;kfpdk ,dy U;k;k/kh‘k }kjk xq.kkxq.k ij [kkfjt dj nh xbZ Fkh xbZ gks] ekeys ij mlds leqfpr ifjçs{; esa vihy esa fopkj fd;k tk ldrk gSA ¼1999½ 6 ,l lh lh 275] 1986 lIyh- ,l lh lh 401] 1993 lIyh ¼1½ ,l lh lh 9 rFkk 1993 lIyh ¼1½ ,l lh lh 11 voyafcrA ¿iSjk 5 ¼4½ vkS|ksfxd fookn vf/kfu;e] 1947&/kkjk 7] f}rh; vuqlwph] [kaM 3&fo‘okl lekIr gks tkus ds dkj.k deZpkjh dh inP;qfr&vis{kk,¡A iwoksZDr fl)karksa dk vkJ; ysus ds fy, tks vo‘; vfHkopfur vkSj lkfcr fd;k tkuk pkfg, og ;g gS fd
Rajendra Babu, J. -- 1. These two sets of cases are cross-appeals filed by the management of the Gwalior Sugar Company Limited and their workmen.
2. The workmen were charged that on 9.2.1979 when Kanhaiyalal Agrawal was on duty on trailer weigh bridge of the factory gate from 2 a.m. to 10 a.m. in collusion with Harihar Giri, centre-in-charge, Ramesh Chandra Savita, Harihar Sharma, Devi Ram Rajak, Dedaram, C.P. Madan, Hari Singh, Umeshchandra and Narendra Singh conspired to allow one trailer sugarcane requisition slip No. 5999, in the name of Chatura for bringing sugarcane by bullock cart at Sunwai depot on false payment slip No. 14964 wrote gross weight 46.70 and did help him in making payment of Rs. 373.1 paise without the arrival of sugarcane in the Company for their respective benefits and each of the workmen was dismissed after inquiry. Applications were filed by them before the labour Court challenging their termination from service.
3. In the case of Kanhaiyalal Agrawal, the labour Court came to the conclusion as follows:
"In the present case, the applicant is working on the post of weighment clerk and he has contravened the prescribed procedure and in collusion with other colleagues signed payment slip wrongly prepared for a wrong date while on the day of incident Chetu or Chatura did not bring sugarcane to the mill. The responsibility of applicant is that he should sign on payment slip with correct date and the amount of sugarcane of concerned farmer, while he should do its weigh. As a weighment clerk his work was of faith and full responsibility. On the basis of evidence produced in the case, loss of trust of non-applicant in applicant appears to be proper. Therefore, it is not proper to award relief of reinstatement to applicant. According to accepted formula in the citation of 1990 Lab, I.C. 995 (Dayaram and others v. The Gwalior Sugar Company Ltd. and Anr.), which is in respect of industry of non-applicant, applicant is entitled to get half salary and full returning allowance from the date of dismissal till the date of this order."
On that basis, the labour Court disposed of the matter.
4. In the case of Ramesh Kumar Savita, the labour Court came to the conclusion as follows :-- .
"In the present case, applicant was doing the work of punchman on gate and this was his responsiblity that he should allow the correct gadi on correct slip on correct date inside the gate and if any vehicle comes without it then he should not allow to make its payment, non-applicant is successful in proving this thing that applicant has done contravention of prescribed procedure. Due to this reason his faith is correctly lost from applicant and on the basis of evidence, which has come in the case, basis of loss of faith of non-applicant from applicant is proved. Therefore, it is not proper to award relief of reinstatement in the citation of 1990 Lab. I. C. 995 (Dayaram and others v. The Gwalior Sugar Company Ltd. and another), applicant is entitled to get half salary with full returning allowance from the date of dismissal from service till the date of this order."
And, in case of Chandra Prakash Madan the labour Court held as follows :-
"In the present case, applicant was working on the post of checking clerk and he contravened the prescribed procedure and in collusion with other colleagues on wrong slip and from the slip of original date prepared weighment slip and did his signature. His responsibility was this that he should prepare his weighment slip on correct slip and on the basis on it. As a checking clerk his work (duty) was of full faith. On the basis of security and on the basis of evidence came in the case loss of faith of non-applicant from applicant appears to be proper. Therefore, it is not proper to award relief of reinstatement to applicant. According to accepted formula in citation of industry of non-applicant, applicant is entitled to get half salary with full returning allowance from the date of dismissal from
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
