Hindustan Coca-Cola Beverages Private Limited v. 1. The Presiding Officer Labour Court - ll

Counsel for the Petitioner : SRI G.V.S.GANESH Counsel for the Respondent Nos.1, 3 to 5 : GP FOR LABOUR Counsel for the Respondent No.2 : SRI V.NARASIMHA GOUD The Court made the following ORDER , HON'BLE SRI JUSTICE NAGESH BHEEMAPAKA WRIT PETITION No. 19755 OF 2O2l ORDER: Writ Pctition No. 19755 o[ 2O2l u'as fil:d by the management of tlindustan Coca Cola Beverages Private Limited against the Award dated 31.03.202 1 in I.D. No. 4 of 20 16 on the hle of the Labour Court-ll, Hyderabad.

2. Petitioner - Company was engaged in the business of manufacturc and sale of non-alcoholic beverages / soft drinks, fruil jui,:es, packaged drinking water under various brand names. The 2"d respondent, while u'orking as Loadcr in the company, it is alleged, misbehaved with Ms. A. Bodi, employee of petitioner's contractor M/ s Iris Services who was deputed to r.t'ork as a Sweeper in rhe premises of petitioner's plant. The Internal Complaints Comrnittee constitutr:d by the petitioner as per the provisions of Section 4 of the POSH Act, conducted enquiry and submitted report dated 12.1O.2O15, holding that charges of sexual harassment were proved against Respondent No.2, by assigning cogent reasons with reference to the evidence brotrght on record. \ t i i I I t ).

2.1 . it is stated, based on the recommendations of ICC, petitioner addressed letter dated 20.lO.2Ol5 to Respondent No.2 enclosing a copy of lhe report dated 12.1O.2O15 of the ICC. In response, on 04.11.2O15, Respondent No.2 replied denying all the [rndings arrived at by the ICC and also saying that he was not given or made to know the contents of evidences, which is in total contras[ to the matcrial available. As the explanation submitted was a clear alterthought and neither satisfactory nor tenable, Petitioner evaluated the proportionality of the punishment in the light of the findings arrived at by the ICC fully supported by valid material evidence, the gravity of the acts of misconduct proved and its implications -on the discipline among other employees, the recommendation of the ICC and since there were no extcnuating or mitigating circumstances to take a lenient view in the matter, Petitioner was convinced that no punishment lesser than that of dismissal can be imposed more so, as it has lost confidence in him, and thus, dismissed Respondent No.2 from the services uide Order dated

20.11.2015 and his account was also Iinally settled.

2.2. While so, Respondent No.2 approached Respondent No. 1 Labour Court under Section 2 A(2) of the Industrial ,i Disputes Act, 1947 (for short, 'the Acl'), u'hich u,as numbered as ID No. 4 ol 20) 6. Accordingly, the Labour Court, after receiving the pleadings on either side, proceeded to decide the validiLy ol the inquiry of t,he ICC and after hearing both thc sides, passed detailed order dated 30.12.2O2O upholding validlty of the enquiry condu<;ted by the ICC. and this order has become final as it remained unquestioned by the ',r,orkman. Thereafter, Respondent No. 1 proceeded to hear the final arguments under Section 1 1-A of the Act and passed a totally pt:rverse and arbitrary Award impugned, ignoring the principle s of law governing the exercise of jurisdiction under Section 11-A arbitrarily and illegally directing Petitioner to pay the purported compensation of Rs.12,48,OO0/- to the workman in lieu of reinstatement, while holding that he is entitled for continuity of service, back rvages and attendant benefits. Hence, the Writ Petition.

3. This Court by order dated 29.10.2021 suspended the impugned Award subject to petitioner depositing Rs.12,4B,O0O/- before the Labour Court-ll lr,ithin lour weeks from that day. It was made clear that Labour Court should deposit the amount in any nationalised bank. i t t t I I .+

4. The 2"d rcspondent workman filed counter stating that Ms. Bodi who was working as contract employee engaged by the contractor lalsely implicated him in this case when he refused to give canteen token free of cost and when he asked her to refund the money taken from him- Even before the ICC, no valid documents are placed in proof of the allegations of Ms' Bodi. In fact, the said Committee also held in its report that as complained by Bodi that in the morning respondent came to her and expressed his willingness [o have sex with her is concerned, the complainant, apart from hcr own statement, could not produce any other witncss; further, the witnesses examined before the ICC in support of complainant have-not corroborated the incident; the committee consisted four members but the report was submitted by only two members; on this ground also, the report is not sustainable and has no sanctity in law' According to the 2"d respondent, as per the

4.1. provision of Standing Order, the past record has to be taken into"account while passing hnal order of punishment and if past record is good, lenient view has to be taken for imposing lesser punishment than that of removal from service, but it was not considered construcLively and imposed the punishment of \ \ I I ) 7 dismissal in art,itrary manner by violating the Standing Ordcrs of the company. The ICC did not consider constructively and imposcd the pr-tnishment of dismissal in arbitrary manner by violating the Standing Orders of the company' Sri C. Sridhar, Iearned Senior Counsel appearing on 5. behalf oi Sri (].V.S. Ganesh, learned counsel for petitioner submils that alter upholding the validity of Inquiry conducted by the lCC, the Labour Court, in utter disregard o1- the same interfcred u'ith lhe order of punishment and modified the same by granting compensation in lieu ol reinstatement without finding lault rvrth the valid conclusions of the ICC by cogcnt reasons, thus the Labour Court exceeded its jurisdiction under ' Section 1l-A ol the Act in altogether not even addressing the findings recorded by the ICC or returning a finding that the findings of ICC were perverse. In support of his contention' learnecl counsei relied on the judgment of the Hon'ble Supreme Cotrrt in Kerala Solvent Extractions Ltd" a' Unnikrishnanl ' u,hcrein it has t>een held as under: " ...-.ln recent times, there is an increasing evidence of this' perhaps rvell nleant but wholly unsustainable tendenc-v towards a denudation of ihe legitimacy of judicial rcasoning and process Thc ' (:oor)\: scc org i i t I I 6 reliefs granted by the courts must be seen to be logical and tenable within the framework of the larv and should not incur and justify the criticism that the jurisdiction of the Courts tends to degcnerate into misplaced sympathy, generosity and private benevolence lt is essential to maintain the integrity of legal reasoning and the legitimacl' of the conclusions. They must emanate logicall1- from the legal findings and the judicial results must be seen to be principled and supportable on those flndings. Expansive judicial mood of mistaken and misplaced compassion at the expense of the legitimacy of the process will eventually lead to mutualty irreconcitable situations and dcnude the its dignity, authority, predictability and judicial process oI respectabilitY." Learned counsel also relied on the judgment of the 5.1. Hon'b1e Supreme Court in U.P. Stqte Road Transport Corporation u. Vinod Kumar2, '"\'herein rt has been held as under: " As stated in the preceding paragraphs, the respondent had confined his case only to the conclusions reached by the Enquiry Ofhcer as we[1 as the quantum of punishment Therefore, since the respondent had not challenged the correctness, legality or validity of the inquiry conducted, it was not open to the Labour Court to go into the hndings recorded by the Enquiry Ofhcer regarding the misconduct committed bv the respondent. This Court in a number ofjudgments has held that the punishment of removal/ dismissal is the appropriate punishrnent for an employee found guilty oI misappropriation of functsl and the courts should be reluctant to reduce thc punishment on misplaced sympathy for a workman. That, there is nothing u'rong in the employer losing conhdence or faith in such an emplol'ee and arvarding punishment of dismissal. That in such cases, there is no place for generosity or '{zoos;tscctt: I - I 1 misptaced svmpathy on the part of the judicial forums and interfering r{ith the qlt.lntul,- of punishment....."

5.2 Bombag u. In another judgment \n Air-India Corporation, V.A" RebellouF, the Hon'ble Spreme Court at para 16 held as under: "

16.llegulation 48 which has been set out earlier as its plarin language shon's does not lay down or contemplate any defined essenlial pre requisite lor invoking its operation. Action under this Regulation can be validll taken by the cmployer at his sweet wrll u'ithout assigning ant reason. c is no'- bound to disclose why he does not $'ant to continue in serr.rce the employee concerned. It may be conceded that an employer nust alwavs have some reason for terminating the serr"ices of his enrploree. Such reasons apart from misconduct may, inter aLa, be rvanl oI frrll satis[actien with his overall suitability in the job assigned to the emplo,yee concerned- The fact that the employer is not futl1 s:rtisfied r'r'ith the overall result of the performance of his duties by his employee does not necessarily imply misconduct on his part The only thing that remains to be seen is if in this case the impugned order is mala fide The record merel1' cliscloses that the appellant had suspicion about the complainant's sr.ritability for the job in which he was employed and this led to loss of confrdence in him with the result that his s(rrvices were terminated under Regulation 48 In our view, loss of confidence in such circllmstances cannot be considered to be mala fide. We are unable to conceivc of any rational challenge to the bona fldes of thc employer in making thc imptgned order in the above background. The complainant, it rnar be remembered had to deal with Air Hostesses in the Performatlce of his duties an(L if thc appellant was not fully satished be1'ond suspicion about his general conduct and behaviour while dealing !\ith them it cannol be said that loss of conhdence was not bona ltde Once bona Frdc ( rqTl) lhcc El'1 I I I t I 8 loss of confidence is aflirmed 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 though erroneous, if bona fide, is in our opinion final and not subject to revie,,v by the industrial adjudication, Such opinion may legitimatel-v rnduce the employer to terminate the employee's serwices; but such termination can on no rational grounds be considered to be for misconduct and must, therefore, be held to be permissible and immune from challenge-.

5.3. According to learned counsel, it is for the disciplinary authority and not for the court to decide as to what punishment be imposed on a delinquent even after the proved acts of sexual harassment and the Labour Court cannot substitute the penalt5r imposed by the employer setting aside dismissal order. In this connection, learned counsel relied on the judgment of the Hon'ble Supreme Court 1n Shornkar Chakra uo.rti a. Britannia. Biscuit Co.Ltd.a, wherein at para 32, it has been held as under: "

32. If such be the duties and functions of the Industrial Tribunal or the Labour Court, any party appearing before it must make a claim or demur the claim of the other side and when there rs a burden upon it to prove or establish the fact so as to invite a decision in its favour, it has to lead evidence. The quasi_judicial tribunal is not required to advise the party either about its rights or u,-hat it should do or omit to do. Obligation to lead evidence to establish an allegation made by a party is on the party making the allegation. ,I.he test q,outd be who would fail if no evidence is led. tt must seek an opportunity to lead ' 1t ozl; : scc :; t I I l 9 1 evidence and lead evidence. A contention to substantiate which evidence is necessarv has to be pteaded. Il there is no pleading raising a contcntion ther (-- rs no question of substantiating such a non cxisring contention Lr tvidence. [t is well-settled that allegation which is not pleacled, even il there is evidence in support of it, cannot be examined becausc lhc otlrer sidc has no notice of it and if entertained it u'ould bc tantamount lo granting an unfair advanta€le llrst mentioned part-\. We are not unmindful of the fact that pteadings before such boclies har.e not to be read strictly, but it is equally true that the ple:rdings [rr.rst be such as to give sufhcient notice to the other part_v of rhc case it is called upon to meet. This vier,r, expressed in Tin Printers (Private) Ltd. \'. Industrial Tribunal (1967) 2 LU 677 commends to us. The rules of fair pla1. demand that u'here a party seeks to establish a contcntiorr uhi,:h i[ proved would be suffrcient to deny lelief to the oppositc sicle, such a contention has to be specihcally pleaded and then proved. But if there is no pleading there is no question of proving sorlctlring rvhrch is not pleaded. This is very elementary". to th€

5.4 In Bharat Heaug Electrtcals Ltd. u. M. Chandrasekhrrr Reddg!, the Hon'ble Supreme Court held as "

26.'lhat apart, the reasons given by the Labour Court to rcducc the penaltl are reasons which are not sufhcient for the purpose ol reducing the senter.Ice by using its discretionary power- The fact that the misconduct norv alleged is the hrst misconduct again is no ground to condonc the misconduct, On the facts of this case as recorded by the Labour Court tre loss of confidence is imminent and no finding has beer-r 51ir.en by the courts below, including the [^abour Court, that either the fact of loss o[ confidence or the quantum of punishment is so harsh as to be vindictive or shockingly disproportionate- Without such finding \ '(:o(') I SCc rg t { I { ! t0 based on records. interference with thc award of punishment in a domestic inquiry is irnpermissible". I

6. On the other hand, learned counsel for the 2"d respondent Sri V. Narsaimha Goud submits that the Labour Court has power under Section i1-A to appreciate and re-appreciate the material and evidence available before the Enquiry Officer to come to the finding on the charges even after the Labour Court holding the domestic enquiry as valid and can defer from the hnding of the Enquiry Ofllcer. In support of his case, he relied on the judgments of the Hon'ble Suprcme Court in The Workmen of M/s Firestone Tlre & Rubber Co-of India Pttt.Ltd. a. The tnanagententa, Divisional Manager, APSRTC u. E. Rajq ReddgT, Depot Manage1 APSRTC' Guntur Dist. V. Clu Suresh Babu8.

6.1. On the issue of loss of conhdence, as argued by learned counsei for petitioner, learned counsel for lhe 2'd respondent relied on the judgments in Arrack Bottling Unit' Khammam o. l,abour Court'cum-Industrial Tribunal, Warangale, FGP Linited, Mumbai a. Presiding OfJicer' 6 AIR t97l sc 1227 ' leeg (5) ALD 735 'zurolz; at,o zoz 1on) " tottr tr at.o:2orDBr 1l t Labour Court'lfi, Hgderabadlo, Kanhigalal Agrautal a' Factory Manager, Gualior Sugar ComTtang Ltd'll and L' Michael u. M/s Johnson PumP Ltd.12 Having consiclered the material on record and 7 . having hcard learncd counsel on either side, it is to be noted that the gist of the complaint given by Ms'Bodi is that on 12.07.2015, tht: q'orkman came to her and abused in vulgar language and attempted lo molest her. In the complaint under Ex-M1, she did noL rcler about the incident allegedly happened at O7.0O a.rn- on the same day, this is one of the contradictions in her stzrtem(:nt g'hich create a doubt about tl-re incident allegedly happcned at O7.OO a.m. Further, it is stated that the said incident was u'itnessed by Dasrath and Santosh' But from their evidence, it is clear that they did not witness the incident' The Labour Court recorded that one fact is clear from the evidence of Dasarath who is the first eye witness to t'he incident that workman caught hold the hands of Ms Bodi pulling towards him and at that time, zip of his pant is open which suggcsts that tre misbehaved indecently towards Bodi Though 'u :ooo1t,1 eLo : t: " lzootl o scc roo 'r ( lqTi) I SCC \ I I t2 \\,orkman took a plea that when he refused to give moncy' Ms' Bodi foisted this case, he could not produce any of the workrnen in ,"r,hose presence Bodi requested for linancial help from him on any prcvious occasion. It further observed that no doubt the charges against workman are proved during ICC enquiry' but the fact remains that it is only such incident committcd by him in his entire service of 23 years; the so-calied victim continucd her e mployment and this incident did not shattcr the confidence of other women employees, hence, some iesser punishment can be given in the present case. In fact, the report of the lnternal Complaint Committee dated 12.1O 2015 also opined that as far as the complaint of Bodi retarding unwelcomed demand of having sex with him he made in the morning is concerned' she has given her own evidence and did not produce any supporting vr.itnesses. The Labour Court considering the undisputed fact

8. that workman worked in the same factory for the last 23 years' al his work place, there may be several women co-'*'orkers available, there is no such incident for the past 23 years where workman had allegedly misLrehaved with any woman worker hr-rd thi" is the oniy stray incident he behaved indecently with a I t I I l-1 1 colleague, the Litbour Court held that removal from service with stigma is harsh. Hcnce, held Lhat instead of removing him from servicc, some lesser punisl'rmcnt should have been given to him' This Court does not see any infirmity in the said findings recorded by the Labour Courl' g. Apart from that, it is also to be noted that on the complaint, Lhe rnanagement constituted a committee consisting of three members, namely a) N- Chaturvedi, b) (i. Manjula Upadhyay Prasa.d, c) M. Mohan Prasad and d) V. Kaly-an Kumar' As per Rule 7('/) of POSH Act, 20 13, in conducting enquiry, minimum three members of complaint Committee including the Presiding Ofhcer or the Chairpcrson as the case may be shall be present, but the report dated l2.l}.2ol5 was signed by two persons namel5' Nishi Kulshereshtha Chaturvedi and V' Kal Kumar which is not valid in the eye of law as it is not in accordance with the rule of the Sexual Harassment of Women at Workplace (Prevention, Prohihition and Redressal) Act, 2013.

10. As regards the argument of learned counsel for petitioner that Labour Court passed the impugned Award without jurisdiction and it exceeded jurisdiction to invoke the po'vvers under Section 1 1-A is concerned, in this context, it is \t -.-" t I I t4 ap[ to see thc judgments relied on by learned counsel for the 2"d respondcnt.

10. 1. In The Worktnen of M/s Firestone Tyre & Rubber Co.o;f India Put. Ltd. (supra), the Hon'ble Supreme Court held as under: " 32- From those decisions, the following principles broadly emerge ' {1}Thc nght to take disciplinary action and to decide upon the quantum o[ punishment are mainly managerial functions, but if a dispute is relet t-ccl to a Tribur.ral, the latter has power to see if action of the emplol'er is j usttfied. (2) Before imposing the punishment, an employer is expected to conduct a proPer enquiry in accordance with the provisions of the Standing Orders. if applicable, and principles of natural justice The enquirv should not be an empty formality (3) When a Proper enquiry has been held by an employer, and the hnding of misconduct is a plausible cbnclusion flowing from the evidence, adduccd at the said enquiry, the Tribunal has no jurisdiction to sit in judgment over the decision of the employer as an appellate bodl'- The interlerence u'ith the decision of the employer will be justified only when the findings arrived at in the enquiry are perverse or the managemcnt is guiltv of victimisation, unfair labour practice or mala hde, (4) Dven if no enquiry has been held by an employer or if the enquiry held by him is found to be defective, the Tribunal in order to satisfv rtself about the tegality and validity of the order, had to give an opportunit-\' to thc emplol'er and employee to adduce evidence before it' lt is open to the emplo-ver to adduce evidence for the first time justifying his action, and it is open to the employee to adduce evidence contra- I t t t - l5 (5) Thc elfect of an emplo_ver not holcling an enquiry is that the Tribunal \r,ould not have to considcr onl-r. s hether thcre \!.i1s a prima facie case. On the other hand, the rssue about thc merits of the impugned order rf dismissal or discharge is at large before rhe Tribunal and the latter, o. the cvidence addur_.er] before it, has to deci(ie for itself whether thc misconduct alleged is provcd. [n such cases, the poirlt about the cxercise of managerial funcrjons does not arisc at all. A case of defective enquiry stands on the sarne footing as no enqui4 . (6) The Tribunal gets jurisdiction lcl considcr the evidence placed before it for the lirst time in justillcation oI the action taken only, if no enquiry has been held or after the enquin.conducted by an employer is found to be defecrive. (7) It has never been recognisr:d rhat the Tribunal shouid straightawal-, without anything more, clircct reinstatement of a dismissed or discharged employee, once it is lound that no domestic enquiry has been held or the said encluin is lound to bc defective- (8) An emplover, ivho u,ants to avail himself ol the opportunit]. of adducing evrdence for the first timc belore the Tribunal to lustify his action, should ask for it at the appropriate stage, lf such an opportunity is asked for, the Tribunal has no po$,er to refuse. The giving of an opportunity to an employer to adduce eviclence for the first time before the Tribunal is in the interest of both the management and the employee and to enable the Tribunal itself to trc satistied about the alleged misconduct. (9) Once the misconduct is provecl cither in the enquiry conductecl by an emplol.er or by the evidence placed before a Tribunal tor the first time, punishment imposed cannot be interlerecl with by the .lribunal except in cases where the punishment is so harsh as to suggest victimisation. (10) In a particular case, after setting aside the order of dismissal, whether a u-orkmru should be reinstated or paid compensation is, as held by this Courr in Management of panitole Tea Estate v. Workmen within the judicial decision of a Labour Court or Tribunal_,, \ { I I i I I r6 1o.2. ln E. Raja Reddg's corse (supra), this Court held at para 24 as under: " (a) 'lhe Labour Court/ Industrral Tribunal after introduction of Section 11Aol thc tndustrial Disputes Acl, 1947, is clothed with necessary porver, and jurisdiction to reappraise the material available on record and substitute its or.r'n findings for that of the disciplinary authority. The porvcr exercised by the Labour Court/ Industrial Tribunal is akin to that of an appellatc Court. (b) The Labour Court/ tndu strial Tribunal is duty bound to reappreciate the evidence even in cases $'here the rvorkman files a memo conceding as lo the vali,iitr ol llrc domcslic inquir) (c) The Labour Court/'lrrbunal even after holding that the domestic inquiry was hclcl in accordance uith the principles of natural justice may, yet, interfcre $ith the findings and substitute its own hndings; on the basis of the ven' samc evidence it can reach its own conclusion by recording its o$n lindiDgs and may reverse the hndings arrived at by the disciplinary authoritv and hold that the charges are not established- (d) The tabour Court/'lribunat can also find that the evidence and material available on record justifies the llndings of misconduct arrived at by the disciplinan' authoritv and still hold that the order of discharge or dismissal is not justihed under the circumstances of a particular case and accordinglv onll lesser punishment. 1O.3. In Ch. Suresh Bobu's case (supra), this Court at para 26 held as under: " It is ho$ever to be noticed that a two Judge Bench of the Supreme Court in The Workmen of Firestone Tyre and Rrrtrber Co of India (Pvt.) Lt<1. r,- Thc Managernent, AIR 1973 SC 1227, categorically held that the labour Court/ Industrial Tribunal would have the power to reappraise the evidence for itself and hold that the misconduct itself is I a l1 not proved or that the misconduct provcd clid not \1arrant the punrshment of dismissal or discharge. The Stlpremc Court further hcld that Section 1 L-1, of thc Industrial Disputes Act, i9'+7, gi!'es full po$'er to the labour Court/ Industriat Tribunal to go into thc cvidence irnd satisf]' itself on both th(:se points. In the light of this jttdsment, thc contention of Sri N. Praveen Reddy, learned Counsel, that the labottr Court II, Hyderabad, ought not to have reappraised the cviclence cannot bc countenanced. The other judgments cited b1' him rvith regard to thc High Court undertaking such an exercise have no application, as the learned Judge has not done so and r,ve do not propose to do so 'ither It is an admitted fact that despite the clear finding of the Latrcttr Court [[, Ilyderabad, that the finding recorded in the cnquin a6iainst k. Narsaiah, the petitioner irr WP No. 16833 of 201 l, \\-as pcir.crse, the erstwhile APSRTC and its successor-in-interest, the TSRTC, did not choose to assail the sai<l linding by laying a challenge to the said Au'ard. This hnding has therefore attained finalitv. In the light oI this finalitv, thcre is no justification on the part of the Labour Court II. H-r clerabad, in imposing a lesser punishment by directing $ ithholding of tr,r'o annual increments of K. Narsaiah without cumulative effect. No reasons whatsoever are forthcoming from the Award as to whr thc labour Court <leemed it appropriate to impose this punishment, haqng held the finding of the ErLquiry Officer to be perverse. Setting asicle ol this lesser punishment by the learned Judge was thercfore rrell.lustified" These judgments are aut-horitativc judgments

11. wherein it was held that the Labour Courl has power under Section 1 1(A) to appreciate and re-appreciate thc material and evidence available before the Enquiry Officer to come to the findings on the charges even after the Labour Court holding the domestic enquiry as valid and can deler from the finding of \ l-\ t i I t 18 Enquiry Ofilcer. After conside ring the precedents under Section 11-A of the Act which came into cffect, the Hon'ble Supreme Court gave ruling that Section 11-A is now clothed with power to re-appraise lhe evidcnce in [he domestic enquiry and satisfy itself whether the said evidence relied on by an employer establish the misconduct alleged against workman' In view of the same, the judgments relicd on by learned counsel lor petitioner cannot be of help to them.

12. Yet another contention of learned counsel for petitioner is that the impugned award portrays absolute pewersity in the ma[ter of interfering with thc punishment and gralting compensation which descrves to be quashed. When the Hon'ble Supreme Court held that proved acts of sexual harassment cannot be interfercd with, more so, when the loss of conhdence also comes to the fore , there cannot be a case for reinstatement under any circumstances; when that is the position, there cannot be any qucstion of reinstatement, the question of granting compensation in lieu of reinstatement smacks of perversity and arbitrariness, the Labour Court hnding that this incident did not shatter the confidence of other women employees is absolutely pervcrse- The Labour Court ! l t I I - t9 passed the Award while applying the totallf irrelevant consideration that it is only one stray incident committed by the workman in his cntire service of 23 years and that iL hacl no serious ramificzrtions, is nothing but surmises and r:on_;ecLures, being based on no valid evidence at all.

13. In this regard, learned counsel lor norkrnan contends that zrrgument of learned counsel for petitroner is not sustainable bec:ause, admittedly, the workman put in 23 years of service r,r.ith r:lean record of service. The Labour Court having held that the punishment of termination as harsh. instead of directing the management to take the workman inlo ser-vice and consider imposition of lesser punishment, stepped into the shoes of disciplinary authority and entered the dornain of the authority by granting monetary compensa[ion on sheer assumptions and presumptions about his physical and mcntal condition. He submits that payment of compensation on the ground of loss of conhdence would not substitutc the employmenl. Here are the judgments relied on in this context.

13. 1. ln Arrack Bottling Unit's case (supra), at para 34, the Hon'ble Division Bench of this Court held as undcr: t I I i i 2o "

34. An order for payment of lump sum amount as compensation in lieu of reinstatement u'ith or uithout back u''ages can never be an effective substitute for non cmplovment Employment is the Iivelihood for skrlled and unskilled rvorkmen' it is a secunty for the life of a person capable of working and some sort of insurance to himself and those who depends on him. The famill's welfare' children education, health care and savings for tuture alt depend on the employment especially in the area whcre Natton morc and more depends ontheserviceSectorforltseconomicprogressanddevelopment.The issue therefore cannot be liBhtly taken bt ttre Courts by following any straight Jacket formula. There could be instances whcre for some reason or the other, the workmen delaled their approach to labour Court/IndustrialTribunat.insuch,cases'certainlytheCourtcan adjudicate the competing rights bet\a'een the capital and labour and grant retief without sacrtltcing the one for the other' In an1 evcnt' even if there are no strong valid reasons denS'ing the bcst relicf o[ reinstatement to the workmen and granting him relief of compensation in lieu of reinstatement is and must be considerecl as no1 compa lihle with the constitutional vision of justice 13.2. In FGP Limited's cose (supra), the Hon'ble Supreme Court at para 57 held as under: "

57. when an emptoyer loses coufidencc in his employee' particularly in respect of a person who is discharging an offrce of trust andconfidence,therewouldbenojustificationindirecting reinstatement and it woutd also be idle to ask him to employ such a person in another job. In lieu of reinstatement' thc employer could be required to pay a lumpsum amount to the emplo-\'ee as compensation' (Francis Klien & Co. v. Workman, (1972) 4 SCC 569: AIR 1971 SC 24141. To invoke the principle ol "loss of confidence' the employer must plead and prove that (i) the workman is holding a position of trust and conhdence; (ii) by abusing such position, he has committed acts rvhich \ results in forfeiting the same; and (iii) to continue him in service would I t t t 2l beembarrassirlganclinconvenienttotheemployerandwouldbe dctrimental to the disciptine or security of the establishment All these thrce aspects Inust be llresent to refuse reinstatement on the ground of Ioss of confidencr:. Loss of conltdence cannot be subjective Objective facts.u,hiclr\r,ouidleadtoadefiniteinferenceofapprehensloninthc mind of the management regarding trustworthiness or reliabilitY of the emplo,tee, Inusl bc alleged and proved (Kanhaiyalal Agrawal !' Factor! Manager, Grvalior Srtgar Co Ltd (2001) 9 SCC 609 AIR 2001 SC 3615)' In the present case, none of these three conditions have been pleadcd or proved before thr: labour Court- This Court' in certiorari proceeclings' rvould not, normzrlll', examine issues which have not been urged' argued andestablisherllleforetndustrialTribunals/LabourCourts.l.hepleaof loss of conlldence, taken for the first time before this Oourt' hers thcrefore to be rejected"' ht KoLnhigatat Agranoal's co:;e (supra)' the

13.3. Hon'ble Supreme Court at paras 3 and 9 stated thus: " tn ttre present case, the applicant is working on the post of Weighment Cterk ancl he has contravened the prescribed procedure anrl in collusion \^,lth other colleagues Signed. payment slip wrongly preparerl for a rvrong 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 o[ sugarcane of farmer concerned, while he should do its rveighing As a Weighment Clerk his work was of faittr and full responsibilitv On thc basis of evidenc,: produced in the case, loss of trust of non-applicant in applicant appears to be proper- Therefore' it is not proper to an'ard relief of reinstatement to applicant According to accepted formula in l)ayaram v. GrvzLlior Sugar Co Ltd which is in respect of industn'o[ non applicant, applicant is entitled to get half salary and full returning allowance lrom the clate of dismissal till the date of this order'

9. :iubstantial contention on the merits of thc case bl' thc employer i11 these appeals is that the f,rnding of loss of conliclence in rhe \ t i I )2 employee by the Labour Court has been reverscd in appeal by thc industrialCourtonunreasonablegrounds.WhatmuStbcpleadedand proved to invoke the aforesaid principte is that (1) the workman is holding a position of trust and confidence; (/) by abusing strch position' he commits acts which results in forfeiting the same' and (i) to continue him in service u'ould be embarrassiltg and inconvenient to the employer or would be detrimental to the disciplinc or secunty of the establishment.Allthesethreeaspectsmustbepresenttorefuse reinstatement on the ground of loss of confidence Loss of confidence cannot be subjective based upon the mind of the management- Obicctive factswhichwouldleadtoaderlniteinferenceofapPrchensioninthe mind ot the management regarding tru stu'orthincss or relrabilitl' of the employee must be alleged and proved Else' the [ight o[ reinstatement ordinarilv available to the employee u'ill be lost"

13.4. In L. Michael's coLse (supra)' the Hon'be Apex Court observed that: " 2C.. In the light of what we have indicated' it is clcar that loss of confidence is often a subjective feeling or indiviclual rcaction to an objective set of facts and motivations- The Court is concented rvith the latter and not with the lormer, although circumstances mav cxist which justify a genuine exercise of the power of stmple termination ln a reasonablecaseofaconfidentialorresponsiblepostbeingmisusedora sensitive of strategic position being abused' it mar be a high risk to keep the employee, once suspicion has started and a disciplinan enquirv cannot be forced on the master' There, a termination simpllciter may be bona hde, not colourable, and loss of conhdence mal' be evidentiary of good faith o[ the emPloyer' 22- Before we conclude we would like to add that an employer who believes suspects that his employee' particular one holding a position of conftdence, has betrayed that confidence can' if the conditionsandtermsoftheemploymentpermlt,terminatehis employment and discharge him without any stigma attaching to the { I ) discharge. Rut such betie[ or suspicion of the employer should not be a merc rvhim or fancl', it should be bona hde and reasonable. It must rest on somc tangible basis and the power has to be exercised by the emplol'er objectrvcll', in good faith, rvhich means honestly with due care and prudence. I[ the exercise of such pow'er is challenged on the ground of being colourabl,: or mala llde or an act of victimisation or unfair labour practice, ttre emplo1'er must disclose to the Court the grounds o[ his impugned action so that the same may be tested judicially, in the instant case this has not been done- There is only the ipse dixit o{ tht-- emplol'cr that hc was suspccting since 1968 that the appellant was divulging secrcts relating t: his business. The employer has not disclosed the grounds on l,hich this suspicion arose in 1968. Further, after 1968, the appellant $'as given t\r,o extra Increments, in addition to his normal increments, as stated alread-v, in appreciation of his hard rvork. This circllmstance conrpletely demolishes even the whimsical and tenuous stand taken b--v the emplo-ver. It was manifest therefore that the impugned action \!as not bona hde.

23. It rvas urged by Mr Tarkunde, learned counsel for the employer that thc question whether or not the employer had lost confidence in the employee, rvas essentially one of fact and this Court should not disturb the finding of fact recorded by the trial court on this point. It is true that this Court, in appeal, as a rule of practice, is loath to interfere r.r,ith a finding of fact recorded by the trial court. But if such a hnding is based on no evidence, or is the result of a misreacling of the malerial evidence, or is so unreasonable oi grossly unjust that no reasonable person uould judicialty arrive at that conclusion, it is the dut-\ of this Court to interfere and set matters right. The case before us is one such instance, u,here wc are called upon to do so-

24. The Labour Court has misled itself on the law and rve set aside its order. The workman will be reinstated with back \\'ages. Horvever the management will be free, if it haq sufficient material and if so advised, to proceed against the workman for misconduct or on other grounds valid in law", { i { 21 t4 In view of the above law, this Court is not inclined to agree with submissions of learned counsel lor petitioncr, hence , of the opinion that Writ Petition is liable to bc dismissed 15 cosls. t6 closed The Writ Petition is accordingly, dismissed. No Miscellaneous petitions, pending if any, shall stand //TRUE COPY// SD/- MOHD. ISMAIL PUTY REGISTRAR ECTION OFFICER To Hvderabad. [OUT]

1. Two CCs to GP FOR LABOUR, High Court for the z. oill-cd io snt cv.s.cnNESH, Advocate [oPUC] 5. o;; ca i;SRiv-NnnnstuHn GoUD, Advocate (oPUC) 4. Two CD CoPies of Telangana at SA PVL M. &. r'rr. .:.1 I u]_ (' 'e.\. .- 29 SEP 7r1n a iJI,.,, .- ,., HIGH COURT DATED:1710912025 ORDER WP.No.19755 ot 2021 DISMISSING THE W.P WITHOUT COSTS, 1 a \ 1

1. $