ORDER
R.J. Kochar, J.
1. The petitioner, a five star hotel, is aggrieved by the Judgment and order dated 24th July 1997 passed by the Presiding Officer. Labour Court, Mumbai in Complaint ULP No. 226 of 1993 filed by the respondent employee under Item I (A, B. D, E. F & G) of Schedule IV of M.R.T.U. & P.U.L.P. Act against the order of termination passed by the petitioner terminating the services of the employee with effect from 20th June, 1992 on the ground of loss of confidence on account of an Incident which appears to have taken place on 21.12.1991 when the said employee Shri Vincent was working in his third shift from 11.00 p.m. (on 20th December, 1991) to 7.00 a.m. on 21st December. 1991. The petitioner passed the impugned order without holding a domestic enquiry before terminating the said employee from employment. In the order of termination it is mentioned that the Security Supervisor Mr. Suleman Shaikh on his round at 4.00 a.m. on 21st December. 1991 found the said employee moving in a very suspicious manner on 6th floor of the hotel and he saw the employee entering in room No. 66 after knocking the door at the odd hour. The Supervisor further reported to have heard a talk between the employee and the occupant in respect of exchange of U.S.S into Indian Currency. In these circumstances, the said employee was brought down in the lobby when he started running away but on alarm raised by the Supervisor he was caught and was taken to the security cabin. On search an amount of Rs. 16,350/- was found on his body. It is also mentioned in the order of termination that by letter dated 21.12.1991, the employee had admittedhis guilt. In the aforesaid circumstances, as reported by the Security Supervisor, the employee was terminated from employment on the ground of loss of confidence. The order was by way of discharge simplicitor. narrating the incident and the ground on which the management of the petitioner appears to have lost confidence in the employee.
2. A complaint of unfair labour practice was filed on behalf of the said employee by his union viz., Bhartiya Kamgar Karmachari Mahasangh. From the averments in the complaint, it appears that the explanation of the employee was that he had carried the amount of Rs. 16,350/- with him which was to be paid to his brother who was residing nearby the hotel at Juhu, as the employee had taken loan for purchase of a residential flat for himself and he was 15 to 20 minutes late in attending his duty at 11.00 p.m. in the third shift. He could not declare in the security department at the time of search that he was carrying the said amount with him. According to him, that was the money belonging to him and that he had not committed any act of theft or any misconduct. It was also pleaded that the order of discharge simplicitor was a punitive order which ought to have preceded a domestic enquiry and since no such enquiry was held and since he was not given an opportunity of hearing, the action of discharge simplicitor was not a bona fide action but the same was mala fide and amounted to colourable exercise of powers and therefore, unfair labour practice within the meaning of Item 1 of Schedule IV of the Act. It was also pleaded that there was violation of Section 25(F) of the Industrial Disputes Act, 1947, as according to the employee the order of discharge simplicitor without holding an enquiry amounted to retrenchment as defined under the Industrial Disputes Act and since Section 25(F) of the said Act was not compiled with, the order of discharge simplicitor suffer from the vice of undue haste.
3. The petitioner Company contested the complaint of the union by filing its written statement and the necessary documents. Both the parties adduced their oral and documentary evidence. Since the petitioner Company had not held a domestic enquiry before passing the impugned order of discharge simplicitor, it adduced evidence before the Labour Court to justify its action of termination of the employee on the ground of loss of confidence. The employee had also adduced his own evidence. He had also examined his brother. On the basis of the evidence on record, the Labour Court has held that unfair labour practice within the meaning of Item I (b, f and g) of Schedule IV of the Act was proved against the petitioner and therefore, the Labour Court directed an amount of Rs. 1,50,000/- to be paid to the employee in lieu of relief of reinstatement with backwages. The Labour Court had also ordered payment of subsistence allowance to the employee from 21.12.1991 to 19.6.1992. The petitioner was also ordered to refund the amount of Rs. 16,350/- to the employee which was seized from him.
4. The petitioners have challenged the aforesaid order of the Labour Court directing them to pay a sum of Rs. 1,50,000/- as compensation to the employee after holding that they had engaged in a unfair labour practice within the meaning of Item I (b. f and g) of Schedule IV of the Act. Shri Pal, the learned Counsel for the petitioners has submitted that the employee had not declared when he had entered the hotel at the timeof reporting for work that he was carrying an amount of Rs. 16,350/-with him. Shri Pai pointed out that this was the rule in the hotel that any employee who carries with him an amount of more than Rs. 200/-must declare at the security that he was carrying such an amount with him. The learned Counsel pointed out that it was an admitted fact that the employee knew this rule that any employee who carries with him an amount more than Rs. 200/- must declare at the security that he is carrying such an amount with him. The learned Counsel pointed out that it was an admitted fact that the employee knew this rule. He. further stressed the point that at the gate on search by the watchman, nothing was found on the body of the said employee. Assuming that he had forgotten to declare, if the employee had carried the said amount with him on search that amount would have been found with him, but it was not found when he was searched before entering the hotel premises for reporting for work. Shri Pal further pointed out that there is no dispute about the fact that at 4.00 a.m. on search the aforesaid amount of Rs. 16,350/- was found with him and he had admitted his guilt by giving a letter to the Security Officer. Shri Pai has pointed out that the petitioners are running a five star hotel where foreign visitors come and occupy the suites. Though there was no complaint of theft from any of the visitor, the fact that the employee was found in possession of the said amount speaks volumes to shake confidence in him. In these circumstances, Shri Pai has assailed the order of the Labour Court granting a compensation of Rs. 1,50,000/- to the employee. On the contrary Shri Baj the learned Advocate for the Respondent Nos. 1 and 2 strongly supported the judgment and urged all the points which were submitted before the Labour Court. He further submitted that the amount seized from the workman should be returned to him as he had proved that it was his amount and that none else had claimed the same.
5. In my opinion, the facts proved before the Labour Court are eloquent to conclude that there was no valid and convincing explanation given by the workman as to how and from where he got this amount of Rs. 16,350/- with him in the night shift. We cannot forget the fact that when he reported for work, neither the said amount was declared by him at the security gate nor was it found on his body or with him at the time of search. These two facts put together would prove that he did not carry the said amount with him when he reported forwork. It, therefore, cannot be accepted that he had brought the amount for repayment of the loan to his brother who was residing at Juhu. There is no other explanation as to from where during the night shift between 11.00 to 7.00 in the morning he got this amount, which was found with him at 4.00 a.m. According to him these facts and circumstances are enough for any employer to lose confidence in his employee, particularly in the establishment of the nature of the petitioner, wherein guests do come in to occupy suites for some time and if such event takes place the reputation of the hotel would certainly be spoilt and lowered down in the eyes of the tourists. The petitioners have cogently proved the basis on which they have lost confidence in the workman. The Labour Court has also observed that the workman had admitted that the said amount was seized from him when he was on duty. According to me, it was not atall necessary for the management to have examined any customer or it was also not necessary to have received any complaint of theft or loss of money. The Labour Court has also erroneously held that the dismissal order was illegal as no subsistence allowance was paid to the workman from 21.12.1991 to 20/6/1992 and that no charge- sheet was issued and that no enquiry was held and that there was no compliance of Section 25(F) of the I. D. Act. The Labour Court has totally misconceived the law on this point. An order of discharge simplicitor for loss of confidence is certainly a punitive order, which ought to have been preceded by a domestic enquiry or the employer ought to have proved and justified its action before the Labour Court. In case, the employer adduced cogent material before the Labour Court to justify its action of discharge simplicitor for loss of confidence is proved before the Labour Court, there is no question of compliance with Section 25(F) of the I.D. Act, it is not the case of retrenchment but it is a case of punishment for certain acts whereby the employer loses confidence in his workman. I, therefore, do not agree with the observations of the Labour Court that the order of discharge simplicitor is illegal or improper because there was no charge-sheet or there was no enquiry held before the order of discharge simplicitor was passed or there was no compliance with Section 25(F) of the I.D. Act. The law requires the employer to justify his action of discharge simplicitor for loss of confidence before the adjudicating authority. In the present case, the petitioners have proved before the Labour Court the basis on which they have lost confidence in the workman. According to me, the petitioner employer has acted on the basis of preponderence of probabilities which is the golden rule in the civil litigation. In these circumstances, I do not agree with the findings of the Labour Court that the order of discharge simplicitor is illegal and therefore, the workman should be awarded compensation to the tune of Rs. 1,50,000/-. I, therefore, quash and set aside the impugned judgment and order of the Labour Court. Rule is thus made absolute with no orders as to costs.
6. Shri Pal, the learned Counsel for the petitioners had made a statement that the workman has already withdrawn 50% of the amount of compensation deposited by the petitioner Company pursuant to the orders passed by this Court. If the workman accepts the present order passed by this Court, the petitioners would not claim or recover back the aforesaid amount which the workman would be otherwise liable to return. The petitioners are, however, directed to refund or return the amount of Rs. 16,350/- to the workman concerned to give him .benefit of doubt in the circumstances of the present ease and also for the reason that he would be losing the balance of compensation to the tune of Rs. 75,000. Shri Pai has fairly made a statement that the petitioners would pay the workman gratuity for the total service put in by him till the date of the order of discharge if the workman applies for the same.