.R. Dhanuka, J.
1. For the reasons discussed in later part of this judgment, the petition is dismissed and rule is discharged with a direction to respondent No. 1 to deposit in Court or pay amount equivalent to six months' salary last drawn to each of the petitioner in full and final settlement of the petitioners' claims whatsoever (ex-gratia) on the conditions set out in the last paragraph of this judgment. The above referred direction is issued with consent of respondent No. 1 conveyed to this Court through its learned Counsel.
2. This petition is filed under Article 226 of Constitution of India. By this petition, the petitioners have impugned award dated 31st August, 1987, made by Shri R.M. Pathare, Presiding Officer, Eighth Labour Court, Bombay in reference (IDA) No. 378 of 1982. By letters dated 21st September, 1981, issued by respondent No. 1, the respondent No. 1 terminated the services of petitioners 1 to 7 on the ground that the petitioners had lost confidence in the said workmen. By letters dated 6th October, 1981, the respondent No. 1 similarly terminated services of petitioners Nos. 8 and 9 on the same ground. The basic facts concerning the termination of the petitioners' services are identical. In all the said letters, the respondent No. 1 referred to and relied upon Clause 3 of Letter of Appointment, concerning each of the workmen, the said clause being identical, in all respects. The Government of Maharashtra made a reference to the Labour Court for adjudication of Industrial Dispute between the petitioners and respondent No. 1 as contemplated under section 10(1)(c) of the Industrial Disputes Act, 1947. The said reference pertained to demand for reinstatement of the petitioners with full back wages and continuity of service. Two of the petitioners were employed in pharmaceutical Division of respondent No. 1 prior to being terminated. By the impugned award dated 31st August, 1987, the reference was rejected by the Eighth Labour Court. In other words, the claim made by the workmen for reinstatement etc., was rejected by the Court. The said order of termination were proceeded by a departmental inquiry to which reference would be made in the later part of this judgment. The facts are also set out with reasonable accuracy in the impugned award of the Labour Court. I am in agreement with the ultimate conclusions arrived at by the Labour Court. The relevant facts are briefly summarised hereinafter.
3. It is not disputed that on 27th June, 1981, the petitioners occupied 'Conference Room' in the office building of respondent No. 1 between 6-30 p.m. and 7-30 p.m. without any permission of the management. It is not disputed that 27th June, 1981 was a Saturday and the office timings were only upto 1 p.m. The respondent No. 1 recorded statement of one Mr. M. Salim, the Watchman, in writing to the effect that the petitioners were on the 6th floor of the office building of respondent No. 1 on that day, during the hours indicated above. The management took a serious view of the unauthorised user of the conference room by the petitioners. There was a discussion between the representatives of the management and one Mr. Bhavani Shankar, General Secretary of the concerned Union as admitted by Mr. Bhavani Shankar himself during the course of his deposition before the Enquiry Officer. Each of the 9 petitioners addressed a letter of unconditional and unqualified apology stating therein that each of the said workmen had unauthorisedly used the conference room of the company on 6th floor, Express Building 'for private entertainment' on 27th June, 1981. It was stated in the said letter of apology that the petitioners regretted for the said wrongful user of the office premises. It was further stated in the said letter of apology that the petitioners may be excused for their wrongful action. By the said letters of apology, each of the petitioners gave an assurance to the management to the effect that such wrongful acts shall not be repeated in future. One Mr. Nair authorised representative of the management had prepared a working draft of the proposed apology for discussion with Mr. Bhavani Shankar. According to him Mr. Bhavani Shankar the General Secretary of the Union, the said draft was discussed, revised and modified and a final draft was then prepared with consent. Bhavani Shankar states in his deposition recorded in the domestic inquiry that he had persuaded each of the workmen to tender written apology in terms of the above referred draft finalised by the union secretary as aforesaid. According to the statement of Bhavani Shankar before the Enquiry Officer, the representatives of the management had told him then that they will conduct preliminary enquiry to know the purpose of staff members occupying the conference room and a light punishment in the nature of warning letter would be given. The events that followed are summarised hereinafter.
4. It is of considerable significance that in reply to the charge-sheet dated 18th July, 1981, each of the petitioners relied on unqualified and unconditional apology and prayed for condonation of the wrong. At a much later stage the union of the employees took a stand that it had advised the workmen to given an apology hereby in spirit of goodwill and the management was not expected to hold an inquiry.
5. The respondent No. 1 proceeded to hold an inquiry in the conduct of the petitioners indicated above. On 18th July, 1981, a charge-sheet was issued to the petitioners. By an identical letters dated 22nd July, 1981, the petitioners informed the respondent No. 1 as under :-
'I acknowledge receipt of your memo dated 18th July, 1981. In my letter dated 1st July, 1981 I have already explained my position regarding entry into the Office Premises on Saturday the 27th June, 1981 and I have nothing more to add to the same.
I have already tendered unconditionally my unqualified apologies.
I once again appeal to you to kindly condone the same and I assure you that I shall not repeat the same'.
The petitioners relied on the above referred letters of apology and requested for being pardoned. The Enquiry Officer issued notices fixing the date of the inquiry. One Mr. P.S. Shetty, Joint Secretary of the Union was allowed to defend the petitioners as desired by the petitioners.
6. It appears to have been agreed between the parties during the course of inquiry that the same witnesses need not be repeated again and again and the statements recorded during the course of inquiry or inquiries can be relied upon by the parties for purpose of taking decision in respect of the petitioners. As a matter of formality, several enquiries were held. The management examined Mr. M. Salim, the watchman as the first witness in support of its case. The management also examined one Mr. A.R. Clair, the Superior. Sometimes employees are requested to work overtime after office hours. The object of examining Mr. Clair appears to have been to lead evidence to the effect that the petitioners were not called upon to work overtime on that day on 27-6-1981. It is not even the case of the petitioners that the petitioners were required to be in the office on that day after 1 p.m. for office work at the instance of the management. The petitioners' case is that on 27th June, 1981, the S.G.T. Sports Club had organised a film show at Eros Cinema between 3 p.m. and 6 p.m. for the benefit of staff members of the company and their family and there was heavy rain between 5-30 p.m. to 8 p.m. as a result whereof the local trains were dis-organised. It is the petitioners' case that the distance between Eros Cinema and Churchgate Railway Station is about 150 square feet and the distance between the railway station and the office premises of the company is about 50 feet. None of the petitioners examined themselves before the Enquiry Officer. The defence story remained unproved in material particulars. Every Single petitioners refused to make statement regarding the facts and circumstances in which they had entered the conference room on that day or the purpose for which they had so entered. None of the petitioners explained to the Enquiry Officer as to 'what was the light entertainment' referred to in the letters of apology. The Enquiry Officer sought clarification from the petitioners. The petitioners refused to answer the question of the Enquiry Officer. Mr. Bhavani Shankar was examined as a defence witness in one of the inquiries. It was not the version of Bhavani Shankar that the letters of apology were extracted by the management as a result of coercion or duress. As a matter of fact the evidence of Bhavani Shankar clearly disclosed that the final draft of letters of apology was prepared after discussion and deliberation between Mr. Bhavani Shankar on one hand and Mr. Nair and other office bearers of the management on the other hand. The two statements made by Bhavani Shankar during course of this testimony before the Enquiry Officer are of considerable significance are as under :-
'The management also told me that they will conduct a preliminary enquiry to know the purpose of staff members occupying the conference room'. There was not question of any entertainment'.
'Q. Were you told what will be the attitude of the Management in case such a letter is given?
'A. Yes, a light punishment of the nature of warning letter would be given.
These two statements even if assumed to be true clearly show that the management insisted in holding the enquiry as it was bewildered as to why the petitioners had occupied the conference room for 45 minutes on that day and it was keen to investigate the reason or object behind the entry and use of the conference room by the petitioners at this hour of the day. If the petitioners were merely to be in the office building without occupying the conference room because of the local trains having been disorganised as alleged by petitioners, it would have been not a serious matter. It is not even the version of Bhavani Shankar that no inquiry was to be held at all and no punishment was to be imposed at all by the management. One does not know whether the local trains were in fact disorganised. The conference room in office of a company has special significance and no workman can occupy such a room without permission of management except for official work. If it was occupied by the petitioners in emergent circumstances for bona fide reason, it was for petitioners to prove their case.
7. I must now refer to the very curious attitude adopted by each of the workmen during course of inquiry. The learned Counsel for the petitioners has tendered three different bunches of three different inquiries for purpose of consideration by the Court indicating illustratively as to what had happened during the course of inquiry. Bunch A pertains to inquiry against Mr. Khandekar, petitioner No. 3. At page 15 of the said bunch, proceedings pertaining to the statement of Mr. Khandekar are to be found. Mr. Khandekar made a statement that he did not want to make any statement for his defence. The Enquiry Officer wanted to seek clarification as e.g. the Enquiry Officer asked a question to Mr. Khandekar as under :-
'Mr. Khandekar, Q. Were you in the office premises on 27th June, 1981 during 6-30 p.m. to 7-15 p.m. ?'
Mr. Shetty again raised the same objection as raised earlier.
'A. In view of the objection raised by Mr. Shetty, I do not want to reply'
Mr. Khandekar refused to give any clarification whatsoever to the Enquiry Officer in respect of the matters in issue. Mr. Khandekar could have deposed to the facts within his special knowledge and explained to the Enquiry Officer the purpose of entry and user of conference room on that day after office hours. Mr. Khandekar could have explained to the Enquiry Officer as to for what purpose he and his colleagues were in the conference room. Mr. Khandekar could have explained to the Enquiry Officer as to why the expression 'for light entertainment' was used in the letters of apology and exactly for what purpose they used the conference room on that day in late evening after office hours. It appears that the main gate of 6th floor premises was closed by the concerned workmen i.e. the petitioners.
8. In view of the above, the Enquiry Officer recorded findings to the effect that the charge levelled against each of the workmen was duly proved, particularly in view of letters of apology which could be relied upon as reliable material, the same having been issued by the petitioners without any coercion or duress.
9. It may be stated here and now that in view of this incident the management took precaution to issue a circular being circular dated 4th July, 1981, clearly stating therein that the watchman had been instructed not to allow anyone to get into the office building except in the situation mentioned therein for office work. The said circular made therefore, explicit what were already implicit. Even prior to the issue of said circular the workman had no legal right to enter the office premises of the company much after the office hours except for the bona fide purpose of attending to the office work at the instance of higher officers. Merely because the said circular is dated 4th July, 1971, it does not follow that prior thereto the workmen could use the conference room of the company after office hours for private entertainment or otherwise. The employers are bound to feel suspicious about such activity of workmen and treat the conduct of workmen as a wrongful act unless the bona fides are established by the workmen.
10. In view of the facts referred to hereinabove, the Labour Court rightly reached the conclusion that there was no merit in the grievance made by the petitioners in the reference. The reference made to the Labour Court was therefore, rejected.
11. Before I discuss the relevant submissions made by the learned Counsel for the petitioners, I must observe here and now that a departmental inquiry cannot be equated to a criminal trial. In a criminal trial governed by the Code of Criminal Procedure, an accused may remain silent and he cannot be compelled to answer the questions of the Court or of the prosecution. In a criminal trial an accused has a right to enter upon the defence and examine himself as a witness but he is not bound to do so. The learned Magistrate or Sessions Judge is bound to give an opportunity to an accused to explain the incriminating circumstances appearing against him from the evidence on record. The accused is not bound to give an explanation even in respect of incriminating circumstances put to the accused for explanation. In a departmental enquiry, the delinquent officers may be asked relevant questions by the Enquiry Officer. The provision of Code of Criminal Procedure do not apply to a departmental inquiry. If the Charge-sheeted Officer refuses to co-operate with the Enquiry Officer and refuses to answer the relevant clarificatory questions of the Enquiry Officer, adverse inference can be drawn by the Enquiry Officer against the Charge-sheeted Officer. If the facts are within the special knowledge of the chargesheeted officer as in this case, it is the bounden duty of the Charge-sheeted Officer to disclose the facts and clarify himself. A departmental inquiry cannot be equated to a criminal trial for all purposes. The Enquiry Officer is not merely entitled but is duty bound to ask clarificatory questions to the Charge-sheeted Officer in order to do justice to his job. It is true that the Enquiry Officer should not enter the arena of controversy too much and assume the role of a prosecutor and cross-examine the Charge-sheeted Officer as such. Having given voluntary and candid apology and having relied on this apology in answer to the charge-sheet, the petitioners had no courage to enter the witness box and make statement of defence during the course of inquiry. The petitioners had no real defence to the charge levelled against them. The only inference from withholding of the relevant evidence by the petitioners can be that the petitioners impliedly accepted the allegations made in the charge-sheet. The learned Counsel for the petitioners submitted that the petitioners must have been advised by the Union representative defending the petitioners not to lead any defence evidence and not to answer a single question of Enquiry Officer as no reliable evidence was led by the management in proof of the charge. The learned Counsel for the petitioners further submitted that the questions asked by the Enquiry Officer were not really clarificatory but were in the nature of cross-examination. I do not agree with either of the submissions. In view of the letters of apology under the signature of the petitioners and the said letters having been proved by the management, it would not be correct to state that the management had not led adequate evidence to prove the charge or that the petitioners were not referred to the charge or lead defence evidence. If the petitioners did not lead any defence evidence on the erroneous assumption of law that the departmental inquiry was liable to be equated to a criminal trial or that the same was governed by the Code of Criminal Procedure, the petitioners must thank themselves. Prima facie there is no justice in the case of the petitioners.
12. It is obvious to me from the narration of the above facts that any reasonable person could come to the conclusion that the petitioners had something to conceal or hide while refusing to answer questions of the Inquiry Officer. The Union General Secretary Mr. Bhavani Shankar has been candid enough to state in his deposition that the management was keen to hold at least a preliminary enquiry to find out as to for what purpose the petitioners had remained in the conference room for all this time.
13. I shall now deal with each of the submissions made by the learned Counsel for the petitioners one by one.
14. While terminating the services of the petitioners, the respondent No. 1 had paid amount of notice pay plus amount equivalent to retrenchment compensation which would have been payable if the petitioners were as a matter of fact and law retrenched. The services of the petitioners were merely terminated under Clause 3 of the appointment letter. The petitioners accepted the said amounts under protest. The said amounts aggregated to about Rs. 1,11,000/-.
15. I shall now deal with the submissions made by the learned Counsel for the petitioners and the authorities cited by her one by one as far as relevant.
16. The learned Counsel for the petitioners submitted that the management had clearly stated in the letter of termination dated 21st September, 1981 that it had lost confidence in the petitioners. It is well settled law by this time that termination of service on the ground of loss of confidence must perhaps be preceded by an enquiry. In this case, the necessary domestic enquiries were in fact held and the findings were in fact recorded. The learned Counsel for respondent No. 1 has explained to this Court as also explained to the Labour Court that the respondent No. 1 had decided not to pass an order of dismissal but pass an order of termination of service simplicityor as an act of generosity and with a view to preventing the petitioners from suffering any pecuniary loss. The question to be asked as to whether there was some tangible basis for coming to the conclusions that the management had lost confidence in the petitioners. The relevant principles are laid down by the Hon'ble Supreme Court in the case of L. Michael and another v. M/s. Johnson Pumps India Ltd., : (1975)ILLJ262SC . In view of the refusal of the petitioners to explain as to for what purpose they had occupied the conference room on that day and in view of the letter of apology having been issued without any use of any coercion or duress, I have reached the conclusion that the management was entitled to take the view that it had lost confidence in the petitioners. Any reasonable person would have taken the same view. If the workman would have explained by making statement from the witness box that there was at the most some sort of indiscretion in using of the conference room on that day after office hours but the same was used by the petitioners bona fide as the petitioners were stranded by reason of alleged disorganisation of local trains, perhaps it would have been a different matter. It is now an unsolved mystery as to for what purpose the conference room was used and occupied by the petitioners after office hours and as to why the petitioners have refused to clarify the facts within their special knowledge. The draft of apology was settled after discussion between Mr. Nair representative of the management and Mr. Bhavani Shankar General Secretary of the Union. In letters of apology, it was stated that the conference room was used for private light entertainment. It was therefore, incumbent upon the petitioners to give clarification and answer the questions of the Enquiry Officer in this behalf and state as to for what purpose the conference room was used by the petitioners. What they meant by 'light entertainment'. The learned Counsel for the petitioners relied upon the judgment of the Hon'ble Supreme Court in the case of Chandulal and The Management of M/s. Pan American World Airways Inc., reported in : (1985)IILLJ181SC . In that case no inquiry whatsoever was held and the services of the workman were terminated on the grounds of loss of confidence without any inquiry whatsoever. The said case is thus clearly distinguishable. The learned Counsel for the petitioners relied on judgment of this Court in the case of Employee's Union and others v. S.V. Kotnis and others, Writ Petition No. 2013 of 1983, decided on 3rd December, 1991. It was held in this case Pendse, J., that there must be substantial evidence available on record from which the Court could reach the conclusion that a reasonable person would lose confidence in the employee. In that case the statement secured from the workman were found to be totally unreliable. In this case the Labour Court has rightly held that letters of apology could be relied upon as the reliable material in support of the view that the management had rightly lost confidence in the petitioners.
17. The learned Counsel for the petitioners submits that the management had failed to prove the allegations made in the charge-sheet. The learned Counsel for the petitioners pointed out so called lacuna and discrepencies from the evidence of witness Salim, the watchman of the company as witness No. 1 on behalf of the management. I am not prepared to re-appreciate the evidence. In view of refusal of the petitioners to make any statements in respect of the admitted occupation of conference room after office hours even though the facts were within the special knowledge of the petitioners it must be held as held by Labour Court that the management had proved allegations made in the charge-sheet. It was upto the management to decide as to whether it would issue order of dismissal or order of termination simplicity in exercise of power reserved under Clause 3 of Letter of appointment issued to each of the workman. From whichever view, the matter is examined, no injustice is done to the petitioners and no merit is found in the petition. No case is made out for intervention of this Court.
18. The learned Counsel for the petitioners then submitted that punishment awarded by the management was shockingly disproportionate. In my opinion the impugned termination order cannot be treated as punitive in nature. In alternative I record my finding to the effect that the impugned termination of service could not be treated as shockingly disproportionate in view of the petitioners having refused to answer the questions of the Enquiry Officer and explain as to for what purpose the petitioners had occupied the conference room. The petitioners virtually boycotted the enquiry and indulged into the conduct which can be described as blameworthy.
19. The learned Counsel for the petitioner submitted that the impugned inquiry was vitiated by reason of the Enquiry Officer having asked question of the petitioners in the nature of cross-examination. I do not agree. No questions were asked by the Enquiry Officer in the nature of cross-examination. The Enquiry Officer merely sought clarification from the petitioners on main points of the case but the petitioners refused to answer a single question.
20. It must be stated that in the case of petitioners Nos. 3 and 8, the Labour Court rejected the reference on the ground that their claims were beyond the order of reference as the said workmen were working in Pharmaceutical Division of respondent No. 1 and the terms of reference did not take within its sweep their claim. No submissions were made across the bar by learned Counsel for the petitioners on this aspect.
21. In the result the petition is liable to fail. At the commencement of the hearing of this petition I had enquired from the learned Counsel for the respondent No. 1 as to whether the respondent No. 1 would be willing to pay some amount (ex-gratia) to the petitioners in full and final settlement of their claim with a view to cut short this litigation and future span thereof. The learned Counsel for respondent No. 1 has informed the Court that the management is ready and willing to pay the amount equivalent to six month's salary at the rate of last drawn wages in full and final settlement of the petitioners. At the end of arguments advanced by the learned Counsel for the petitioners I enquired of the learned Counsel for the petitioners as to whether the petitioners would like to make any submissions in alternative for award of monetary compensation. The learned Counsel for the petitioners was obviously handicapped for want of instructions on this aspect. None of the petitioners remained present before the Court. The learned Counsel for the petitioners, however, made a general submissions at the end of her arguments to the effect that the Court may award such lump sum compensation or ex gratia amount as the Court deems fit. The management has filed a copy of the settlement dated 28th April, 1988 on record with which this Court is not directly concerned while deciding this petition.
22. In the result the petition fails. The petition is dismissed. Rule is discharged. No order as to costs.
23. It is hereby directed that the respondent No. 1 do deposit in this Court amounts equivalent to six month's salary which would have been payable to the petitioners at the rate of last drawn wages if the petitioners would have been terminated from service 6 months later. It is hereby clarified that the respondent No. 1 is agreeable to deposit the said amount in this Court on the condition that the said amount would be accepted by the petitioners in full and final settlement of their claims, if they so desire. Alongwith the said deposit, the respondent No. 1 shall file a precipe and the statement of calculation pertaining to each of the petitioners. The petitioners i.e. each one of them shall be at liberty to withdraw the said amount strictly on the condition that the workman may accept the amount in full and final settlement of his claim which is subject matter of this petition and all other claims whatsoever and no other basis. The petitioners would not be bound to accept the said amount offered in full and final payment as indicated above. If the petitioners desire to pursue the remedy of an appeal, the petitioners ought not to withdraw the said amount offered by the management as the said offer is a conditional offer. If one or some of the petitioners are interested in withdrawing the amount and some are interested in pursuing the remedy of an appeal they may do so. The choice is theirs. In case the said amounts remain un withdrawn for a period of six months from 6th June, 1994, the Prothonotary and Senior Master shall refund the said amount to respondent No. 1. In such an event it would follow that the petitioners are not interested in availing of the above referred conditional offer made by respondent No. 1. In terms whereof I have issued the direction of the Court as indicated above. The said directions are issued with consent of respondent No. 1 but without consent of the petitioners.
24. Having regard to the facts and circumstances of the case, there shall be no order as to costs.
25. The Prothonotary & Senior Master shall accept the above referred amount on the basis of covering letter of advocate for respondent No. 1 and on the basis of ordinary copy of this Order duly authenticated by the Associate of this Court.
26. Issue of certified copy is expedited.