JUDGMENT S.U. Khan, J.
1. At the time of arguments no one appeared for the respondents, hence only the arguments of learned Counsel for the petitioner were heard.
2. This writ petition by the employer is directed against the award dated 12.9.1984 given by Presiding Officer, Labour Court Gorakhpur in Adjudication case No. 158 of 1980. Through the said award it was held that the action of the petitioner-employer in terminating the services of its employee Sri Vishram Chaudhary, respondent No. 3 on 25.3.1976 was illegal and bad in law. After recording this finding the Presiding Officer, Labour Court directed reinstatement of respondent No. 3 with full back wages from the date on which application for reference was made i.e. 2.4.1980 (the date 2.4.1980 was selected on the ground that on the said date employee instituted theconciliation case in respect of his termination).
3. Respondent No. 3 was appointed as Driver by the petitioner on 10.7.1974. Before the Labour Court petitioner admitted that neither any inquiry was held against the respondent No. 3 before terminating his services nor the compensation etc. payable under Section 6-N of U.P. Industrial Disputes Act was paid to the respondent No. 3 at the time of termination of his services. Further case of the petitioner was that in a Departmental inquiry, which was in the nature of preliminary inquiry and in which the respondent No. 3 was not heard, it was found that on 25.1.1976 while driving Bus No. USB 6537 he was in drunken state and abused and intimidated the passengers. The case of the employer was that due to that incident they had lost confidence in the respondent No. 3, hence they were authorized to terminate his services.
4. Learned Counsel for the petitioner during the course of arguments also emphasized the solitary argument of loss of confidence. Principles of loss of confidence have been discussed by the Supreme Court in Kanhaiya Lal Agarwal v. Factory Manager, Gwalior Sugar Factorv . In the said authority in paragraph 8 it has been held that:
What must be pleaded and proved to invoke the aforesaid principle of loss of confidence 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.
5. It has further been held in the same paragraph that loss of confidence can not be subjective based upon the mind of the employer. Objective facts which would lead to a definite inference of apprehension in the mind of the management regarding worthiness or reliability of the employee must be alleged and proved. If such facts are to be proved then naturally the workman would also have a right to show that the facts are not proved. This is exactly what happens in departmental proceedings or before Labour Court, if Labour Court finds that Departmental proceedings were not proper and permits the management to prove the alleged mis-conduct before the labour court itself. In most of the cases where the allegation is that existence of a particular fact legitimately warrants that management may form the opinion of loss of confidence may itself be sufficient mis-conduct for termination of the services of the employee. The theory of loss of confidence is, therefore, relevant only in those cases where the alleged misconduct of the employee may not be grave enough to warrant his dismissal, however, it may amount to loss of confidence permitting the employer to terminate the services. Such types of cases are bound to be few. In the instant case if it is proved that the driver employee, was driving the bus in a drunken state and he abused and intimidated the passengers then it is a gross mis-conduct warranting dismissal from service. The theory of loss of confidence in the instant case is therefore, only academic. However, neither the employee was heard before coming to the conclusion that he had committed the alleged mis-conduct nor the Labour Court found the said allegation to be proved.
6. However, it is important to note that employee did admit that some thing unusual happened on the fateful day. His version was that the passengers were compelling him to stop the bus at a place which was not regular stoppage and as he did not oblige the passengers by stopping the bus, hence they started quarreling with him The industrial dispute itself had been raised by the Workman after four years.
7. In view of all the above facts I am of the opinion that reinstatement with full back wages was not at all warranted. The employee had certainly done some thing irregular. The extent of irregularity was not ascertained with certainty by the Labour Court. The Supreme Court in several authorities including the following of Harvana State Electronics Development Corporation v. Mamni has held that even if termination is found to be illegal and violative of Section 25F of Industrial Disputes Act or Section 6-N of U.P. Industrial Disputes Act in as much as retrenchment allowance, compensation etc. has not been paid to the employee at the time of retrenchment still reinstatement shall not automatically be ordered:
1.Haryana State Electronics Development Corporation v. Mamni .
2. Dhampur Sugar Mills v. Bhola Singh ;
3. M.P. State Agro Indudstrial development Corporation v. S.C. Pandey . and
4. Nagar Mahapalika v. State 2006 (2) S.C.C. 2113.
8. Accordingly writ petition is allowed. Impugned award is modified and it is directed that in stead of reinstatement, respondent No. 3, the workman shall be paid consolidated amount of Rs. 20,000/-.
9. It may be mentioned that through interim order dated 22.1.1985 passed in this writ petition and confirmed on 6.5.1988, the operation of the impugned award was stayed subject to the payment of entire wages w.e.f. 12.9.1984. It was also directed that it was open to the petitioner to either take work from the respondent No. 3 or to continue to pay him wages month by month. Any amount which may have been paid to respondent No. 3 under the award and the interim order shall neither be refundable nor adjustable in the aforesaid amount of Rs. 20,000/-