As per case facts, the Petitioner, a driver-cum-peon, was terminated after a domestic enquiry for alleged rash and negligent driving. The Labour Court found the termination illegal and disproportionate but ...
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Shabnoor
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.7320 OF 2019
Anil Sopan Koli,
Age: years, Occupation Nil,
C/o. D.P. Ikhar, r/at: 1064,
Shukrawar Peth, Subhash Nagar,
Galli No.9, Pune 400 002 … Petitioner
Vs.
Owner / Management,
M/s. Brihans Maharashtra Sugar,
Syndicate 600, Sadashiv Peth,
Pune 411 030 … Respondent
Mr. Neel G. Helekar with Mr. Kanhaiya Yadav and Mr.
Akhilesh Yadav for the petitioner.
Mrs. Anjali Raghunath Shiledar Baxi for the
respondent.
CORAM :AMIT BORKAR, J.
RESERVED ON :APRIL 23, 2026.
PRONOUNCED ON:APRIL 24, 2026
JUDGMENT:
1.By the present Petition instituted under Article 226 of the
Constitution of India, the Petitioner has called in question the
legality, correctness and propriety of the impugned order dated 16
September 2017 passed by the learned Labour Court at Pune.
1
SHABNOOR
AYUB
PATHAN
Digitally signed
by SHABNOOR
AYUB PATHAN
Date: 2026.04.24
16:07:36 +0530
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2.The facts giving rise to the present Petition, in brief, are that
the Petitioner came to be employed with the Respondent Company
in the capacity of a driver with effect from 01 December 2000. It is
the case of the Petitioner that during the entire period of his
service, his record remained clean, satisfactory and unblemished,
and that no memo, warning or disciplinary proceedings were ever
initiated against him at any point of time. According to the
Petitioner, to his utter shock and surprise, the Respondent
Company issued a charge-sheet dated 22 January 2008 alleging
certain acts of misconduct against him. Pursuant thereto, the
Respondent conducted a domestic enquiry against the Petitioner.
The Petitioner participated in the said enquiry proceedings and
submitted his reply to the show cause notice, wherein he denied
all allegations levelled against him. The Petitioner craves leave of
this Hon’ble Court to refer to and rely upon the said reply, if
required, at the appropriate stage. Upon conclusion of the
domestic enquiry, the Respondent Company terminated the
services of the Petitioner with effect from 23 August 2008. Being
aggrieved thereby, the Petitioner approached the Labour
Commissioner seeking redressal of his grievance. Since the
conciliation proceedings failed, the Appropriate Government
referred the industrial dispute for adjudication to the Labour Court
at Pune under the provisions of the Industrial Disputes Act, 1947.
Pursuant to such reference, the Petitioner filed his Statement of
Claim before the Labour Court seeking reinstatement in service
with continuity, full back wages and all consequential service
benefits. The Respondent Company resisted the said claim by filing
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its Written Statement and denied the averments made by the
Petitioner, contending inter alia that the order of termination was
legal, valid and justified. The Respondent further contended that
the past service record of the Petitioner was not satisfactory;
however, according to the Petitioner, no documentary material was
produced by the Respondent in substantiation of the said
contention. The Respondent additionally alleged that the Petitioner
had committed serious misconduct, including rash and negligent
driving, and had caused damage to the property belonging to the
Respondent Company.
3.Upon hearing the parties and considering the material placed
on record, the learned Labour Court passed its Award dated 16
September 2017, whereby it held that the punishment of dismissal
imposed upon the Petitioner was disproportionate to the
misconduct alleged and that the order of termination was illegal
and improper. However, despite recording the aforesaid findings,
the learned Labour Court, instead of directing reinstatement of the
Petitioner with continuity of service and full back wages, awarded
lump sum compensation of Rs.1,00,000/- in favour of the
Petitioner. The said Award came to be published on 10 January
2018. Being aggrieved thereby, the Petitioner has preferred the
present Petition.
4.Mr. Helekar learned Advocate appearing for the Petitioner
submits that the learned Labour Court has committed an error in
recording a finding that the Respondent Company had lost
confidence in the Petitioner and, on such premise, in declining the
relief of reinstatement. It is contended that the Petitioner was
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working merely in the capacity of a driver and was not occupying
any post involving trust, confidence or fiduciary responsibility. It is,
therefore, submitted that the finding regarding alleged loss of
confidence is wholly misconceived, untenable and unsustainable in
law. It is further contended that, in any case, the Respondent could
have assigned the Petitioner alternative duties in any suitable post
falling within the category of Class IV employment. The learned
Advocate for the Petitioner further submits that once the order of
termination has been held to be illegal, the Petitioner becomes
entitled to all consequential reliefs flowing therefrom, including
reinstatement in service with continuity and grant of back wages.
It is submitted that the learned Labour Court failed to appreciate
that the Petitioner had completed 240 days of continuous service
and, therefore, was deemed to be in continuous employment
within the meaning of the provisions of the Industrial Disputes Act,
1947. It is contended that after having recorded a finding that the
termination was illegal, denial of reinstatement is contrary to the
settled principles governing industrial jurisprudence.
5.It is further submitted that in the facts and circumstances of
the present case, the impugned judgment and award passed by the
learned Labour Court at Pune deserve to be quashed and set aside,
and the Respondent be directed to reinstate the Petitioner in
service with continuity and all consequential benefits from the date
of termination, along with regularisation of his services. The
learned Advocate for the Petitioner submits that the affidavit filed
on behalf of the employer itself discloses that the Petitioner was
appointed in the capacity of Driver-cum-Peon, and therefore the
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nature of the post held by the Petitioner cannot be construed as
one involving trust, confidence or fiduciary responsibility. It is
contended that in view thereof, the finding recorded regarding
alleged loss of confidence is wholly misplaced and unsustainable,
as the post occupied by the Petitioner was not such as would
attract the doctrine of loss of confidence in service jurisprudence.In
support of his submissions, the learned Advocate for the Petitioner
has placed reliance upon the decisions in
Mahavir Ispat Ltd. and
Another vs. Mohammed Ismail Siddiqui, 1994 SCC OnLine Bom
831; and Umesh Kumar Pahwa vs. Board of Directors, Uttarakhand
Gramin Bank & Ors., reported in (2022) 4 SCC 385
.
6.Per contra, Ms. Baxi the learned Advocate appearing for the
Respondent submits that the Respondent, being the first party
before the Labour Court, had resisted the claim of the Petitioner,
being the second party therein, by filing its detailed Written
Statement. It is submitted that apart from the admitted factual
aspects, the Respondent had specifically contended that the past
service record of the Petitioner was unsatisfactory. It is further
submitted that the Respondent had initiated disciplinary
proceedings against the Petitioner on account of grave and serious
misconduct. A domestic enquiry was thereafter conducted, in
which the Petitioner duly participated through his representative.
It is submitted that the charges levelled against the Petitioner were
in relation to misconduct falling under the relevant Standing
Orders, namely habitual neglect of work or gross habitual
negligence; drunkenness or riotous, disorderly or indecent
behaviour on the premises of the undertaking; wilful
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insubordination or disobedience of lawful and reasonable orders of
a superior; wilful damage to work in process or property of the
undertaking; and frequent repetition of acts or omissions for which
fine may be imposed under the Payment of Wages Act, 1936.
7.The learned Advocate for the Respondent further submits
that the Petitioner was charged with several serious acts of
misconduct including rash and negligent driving, which resulted in
damage to the property belonging to the Respondent Company. It
is submitted that on 20 April 2006, a serious accident occurred on
the Bangalore–Pune Highway, in which consultants of the
Respondent sustained injuries. It is further submitted that prior
thereto, on 26 November 2004, another incident involving
negligent driving by the Petitioner had occurred, resulting in
injuries to company officials. It is also submitted that two further
incidents arising out of negligent driving by the Petitioner took
place on 04 March 2005 and 18 February 2006 respectively. The
learned Advocate for the Respondent submits that the domestic
enquiry was conducted strictly in consonance with the principles of
natural justice. It is submitted that the Enquiry Officer considered
both oral and documentary evidence adduced during the enquiry
proceedings and, upon due appreciation thereof, held the
Petitioner guilty of the charges levelled against him. It is further
submitted that the past service record of the Petitioner was also
taken into account, following which the Respondent Company
dismissed the Petitioner from service with effect from 23 August
2008.
8.The learned Advocate for the Respondent further submits
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that under Section 11-A of the Industrial Disputes Act, 1947, the
Labour Court possesses jurisdiction to appreciate the evidence
adduced before the Enquiry Officer and also to interfere with the
punishment imposed by the employer, wherever warranted. It is
submitted that the incidents referred to in the charge-sheet pertain
to rash and negligent driving on the part of the Petitioner. Despite
repeated instructions and warnings issued by the Respondent from
time to time, the Petitioner allegedly continued to act in a
negligent manner. It is contended that neglect of duty resulting in,
or likely to result in, danger to the life and safety of employees
constitutes serious misconduct. It is further submitted that
although no criminal proceedings came to be initiated against the
Petitioner and though certain material on record indicates that one
of the accidents at Kolhapur was not attributable to the negligence
of the Petitioner and had occurred due to the fault of the opposite
vehicle, the Enquiry Officer, upon consideration of oral as well as
documentary evidence, found all charges proved except the charge
relating to wilful damage to work in process or property of the
undertaking. The learned Advocate for the Respondent submits
that having regard to the nature and gravity of the misconduct
proved against the Petitioner, the punishment imposed upon him
was fully justified and proportionate. In support of the said
contention, reliance has been placed upon the judgment of the
Supreme Court in
Union of India & Ors. vs. Subrata Nath, reported
in (2024) 20 SCC 402
.
9.The learned Advocate for the Respondent, however, submits
that the establishment of the Company situated at Shirur, where
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the Petitioner was originally engaged in service, has since been
closed down and that the Respondent Company is presently
carrying on its operations only from its Head Office at Pune. It is,
therefore, contended that in view of closure of the said
establishment, the question of reinstating the Petitioner at the
original place of employment does not arise and the relief of
reinstatement, as sought by the Petitioner, has become
impracticable in the facts of the present case.
REASONS AND ANALYSIS:
10.I have heard the learned advocates appearing for the
respective parties at considerable length and with their assistance
have carefully perused the pleadings, documentary material,
findings recorded by the learned Labour Court, and the entire
record made available before this Court.
11.The first aspect which requires examination is the nature of
the appointment held by the petitioner, for the same goes to the
root of the finding regarding loss of confidence recorded by the
Labour Court. The affidavit filed by the employer indicates that the
petitioner was appointed as a driver-cum-peon. The material on
record does not indicate that the petitioner was entrusted with
handling of confidential documents, financial transactions,
custody of sensitive records, or any fiduciary obligations of such
nature where trust forms the basis of employment. A driver-cum-
peon falls in the category of subordinate workman discharging
operational duties. Such employment requires discipline, careful
conduct and responsible behaviour, particularly where driving of
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vehicles is involved; however responsibility cannot elevate such
post to the category of one involving confidence. Every
employment requires degree of trust, but the doctrine of loss of
confidence applies in circumstances where the relationship
between employer and employee is founded on faith. In the
present case, the Labour Court appears to have proceeded on an
assumption that because allegations of misconduct were made
against the petitioner, the employer was justified in claiming loss
of confidence. Loss of confidence cannot be accepted as a general
expression to deny reinstatement whenever misconduct is proved.
It must arise from facts demonstrating that the employee occupied
a position where trust formed the essence of the relationship and
that such trust has been broken. In the absence of such foundation,
the doctrine cannot be invoked. Here no such material exists.
Therefore the reasoning of the Labour Court on this aspect appears
legally unsustainable.
12.The respondent has endeavoured to justify its action by
contending that the petitioner was involved in multiple incidents
of rash and negligent driving and that his conduct had endangered
both life and property. Specific reference is made to an accident
dated 20 April 2006 on the Bangalore Pune Highway wherein
consultants of the respondent allegedly sustained injuries. Reliance
is also placed on incidents said to have occurred on 26 November
2004, 4 March 2005 and 18 February 2006. There can be no
dispute with the proposition that allegations of negligent driving
against a driver are serious. A driver entrusted with transport of
officers or employees is expected to maintain caution and care.
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Therefore this Court is conscious that if negligence is duly proved,
the employer would be justified in taking disciplinary action.
However while appreciating such allegations the Court cannot lose
sight of the necessity of examining the findings returned in the
enquiry and the factual matrix. Mere multiplicity of allegations
does not establish misconduct to justify termination. What requires
consideration is whether the charges were proved, whether the
misconduct was of such gravity as to terminate employee and
whether the punishment imposed was proportionate. In the
present case the record indicates that the Enquiry Officer did not
hold every charge proved. Further one of the accidents at Kolhapur
was not attributable to negligence of the petitioner but had
occurred due to fault of the opposite vehicle. This circumstance
dilutes the submission of misconduct. It demonstrates that the
petitioner’s conduct cannot be viewed as reckless in every instance.
Thus while some negligence may have been found, the record does
not suggest conduct so dangerous to justify termination. In such
circumstances, the question of punishment necessarily required
proportionate evaluation.
13.It is true that a domestic enquiry was conducted by the
respondent and the petitioner participated therein. The respondent
has urged that the enquiry was held in accordance with principles
of natural justice and that adequate opportunity was afforded to
the petitioner. It is further submitted that evidence was considered
by the Enquiry Officer. However even assuming the enquiry to be
fair and procedurally valid, the matter does not conclude there.
Under Section 11-A of the Industrial Disputes Act, the Labour
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Court is vested with powers to examine the findings and
determine whether the punishment imposed is proportionate to
the misconduct. The power under Section 11-A empowers the
Labour Court to interfere where the punishment shocks
conscience or appears excessive in relation to the misconduct
established. In the present case, the Labour Court itself has
exercised such jurisdiction and recorded a positive finding that the
punishment of dismissal was disproportionate and that the
termination was improper. Once the Labour Court itself arrives at
such finding, the legal consequence ought to follow. It becomes
inconsistent for the same Court, after holding dismissal unjustified,
to then deny reinstatement and substitute it with compensation
without recording sustainable reasons. In the present case, the
only reason assigned is alleged loss of confidence which is
unsupported by the nature of employment and factual record.
Therefore the conclusion reached by the Labour Court suffers from
legal infirmity.
14.The submission advanced on behalf of the petitioner that,
assuming the respondent was of the view that the petitioner ought
not to be continued in the capacity of driver, he could have been
assigned some alternative duties. Where misconduct alleged
against a workman pertains to deficiency in performance of a
particular nature of duty, the employer is not compelled to bring
about total severance of employment if a lesser alternative is
available. If the respondent formed an opinion that engagement of
the petitioner in driving duties was not desirable having regard to
the allegations of negligent driving, it was always open for the
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respondent to examine whether the petitioner could be
accommodated in some other assignment of equivalent category.
This is particularly so when the petitioner was working in the
cadre of driver-cum-peon and therefore his engagement was not
confined to one irreplaceable position. The employer has not
placed before this Court any material to demonstrate that no
alternate work existed. There is no material showing that the
respondent’s organisation is so limited in nature that except
driving work no other duties of basic character were available.
The record also does not indicate that the respondent ever
examined such possibility.
15.The affidavit filed on behalf of the respondent through its
authorised signatory states that in the year 2010 the respondent
company sold its manufacturing business to another concern by
transfer of licence and assets such as land, building, plant,
machinery and trade marks, and that at present the company is
not owning any business. It is further stated that only few
employees are working at the head office at Pune. This statement
is pressed into service to contend that reinstatement of the
petitioner is not practicable. It does not fully prove extinction of
employer identity or impossibility of providing any employment at
head office.
16.The affidavit of respondent also contains statement that from
2008 till 2026 no skilled labourer can remain idle and that
petitioner is working with Chandukaka Saraf and Sons Pvt. Ltd. at
Akluj, District Solapur, and is member of provident fund while
enjoying other facilities. Such assertion does become relevant
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when it is read together with the affidavit filed by petitioner
himself.
17.Coming to the affidavit filed by the petitioner, he states that
due to accident dated 20 April 2006 he became bedridden and
remained unemployed till end of year 2009. He further states that
in year 2010 he briefly worked as driver for one private person and
lost said work after few weeks. He then states that during period
2010 to 2012 he remained unemployed and that his wife obtained
part time work as ASHA worker on small honorarium, by which
family survived. These averments indicate that petitioner was not
in regular gainful employment for long period and had faced
financial hardship. Such statements also show that petitioner was
making efforts to maintain livelihood in difficult circumstances.
18.The petitioner further states that during period from 2013 to
2017 he worked as part time driver on daily wages and was
earning meagre amount of Rs.13,425 per month on average
whenever work was available. He has also referred to annexure
concerning salary slip of his wife. Thereafter, he states that after
year 2017 he again remained unemployed for about four years till
2021 and only thereafter obtained temporary work with
Chandukaka Saraf at Pune involving housekeeping, sweeping and
cleaning floors for monthly salary of Rs.6,000, without provident
fund or allowances. These statements are significant for two
reasons. Firstly, they substantially rebut the suggestion of
respondent that petitioner was continuously employed in secure
and regular service after termination. Secondly, they also amount
to admission by petitioner himself that he had undertaken
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intermittent, temporary and low paid work after termination.
19.The petitioner has also disputed alleged sale or closure of
manufacturing unit and states that in absence of documents such
statements cannot be accepted. He has further alleged that
respondent suppressed alleged sale of year 2010 from the Labour
Court during earlier proceedings. This objection has some
substance because no documentary proof of sale or closure is
produced before this Court. Therefore, this Court cannot record
finding of closure merely on basis of affidavit. At the same time,
considering tenor of pleadings and passage of time, some
subsequent change in scale or structure of respondent business
appears probable. Hence, while plea of closure is not fully proved,
restructuring or reduction in operations also cannot be ignored
while moulding final relief.
20.When both affidavits are read together, a balanced picture
emerges before the Court. Once petitioner admits intermittent
income, and no precise calculation of actual unemployment period
or comparative wages is brought on record, grant of full back
wages would not be justified. Therefore, the documents on record
support a middle course, namely restoration of service with
continuity, but without grant of back wages.
21.In view of the foregoing discussion and for the reasons
recorded hereinabove, the following order is passed:
(a) The Petition is partly allowed;
(b) The impugned Judgment and Award dated 16
September 2017 passed by the learned Labour Court, Pune,
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is quashed and set aside to the extent it denies reinstatement
to the Petitioner;
(c) The Respondent is directed to reinstate the Petitioner
in service in a suitable post commensurate with his cadre
and eligibility, at its Pune office or at any other existing
establishment within a period of eight weeks from the date
of this order;
(d) The Petitioner shall be entitled to continuity of service
for all consequential and retiral purposes from the date of
termination;
(e) However, the Petitioner shall not be entitled to back
wages for the intervening period;
(f) The Respondent shall give effect to this order within
the stipulated period, failing which the Petitioner shall be at
liberty to adopt appropriate proceedings in accordance with
law;
(h) It is recorded that the Respondent has deposited an
amount of 1,00,000/- in furtherance of order dated 2 May₹
2022, out of which the Petitioner has already withdrawn
50,000/-.₹
(i) The Respondent is permitted to withdraw the balance
amount of 50,000/- together with accrued interest thereon,₹
if any, in accordance with rules.
(j) The amount of 50,000/- already withdrawn by the₹
Petitioner shall be adjusted towards future salary payable to
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the Petitioner after reinstatement, in reasonable monthly
instalments to be determined by the Respondent, without
causing undue hardship.
(k) Rule is made absolute in the aforesaid terms. No order
as to costs.
(AMIT BORKAR, J.)
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