wp 4631-05 judgment.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 4631 OF 2005
D.D.Bhatt
Block No.20, 4th floor,
Vatsalaya Gopal Nagar,
Dombivali (East),
District Thane ..Petitioner
v/s.
M/s. Indian Organic Chemicals Ltd.,
Bhupati Chambers, 3rd Floor,
13 Mathew Road, Opera House,
Mumbai 400 004 ` ..Respondents
Mr. Mahendra Agvekar i/b. Rajesh Gehani for the Petitioner
Mr. P.C.Pavaskar for the Respondent.
CORAM : SMT. ANUJA PRABHUDESSAI, J.
DATED : 12th SEPTEMBER, 2017.
JUDGMENT.
1. The petitioner herein has challenged the validity of part I award dated 21st December, 2001 and final award dated 29 th January 2002 passed by the Labour Court, Mumbai in Reference (IDA) No. 82 of 1997.
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2. The brief facts necessary to decide this petition are as under:- The petitioner was employed with the respondent no.1 company as a Despatch clerk. In addition to his duty as a Despatch Clerk, he was also required to order stationery as per the requirement of the respondent company, from the approved suppliers.
3. The petitioner came to be suspended on 29 th march, 1994. The said suspension order was followed by charge memorandum dated 7th April, 1994 alleging that the petitioner was involved in taking money from the suppliers for purchasing different stationery and other related items, which constituted mis-conduct under 22(d) and 22(e) of the Model Standing Orders. The petitioner refuted all the charges leveled against him. The disciplinary enquiry was initiated, during the pendency of which the respondent company issued another charge memorandum dated 6 th June, 1994 making similar allegations. The Inquiry Officer after completing the inquiry vide report dated 14th March, 1996 held the petitioner guilty of the charges. By order dated 27th February, 1996 the respondent pps 2 of 7 ::: Uploaded on - 14/09/2017 ::: Downloaded on - 15/09/2017 01:12:12 ::: wp 4631-05 judgment.doc terminated the services of the petitioner.
4. The petitioner raised an industrial dispute, which was referred for adjudication in IDA No.82 of 1997. The petitioner, as well as the respondent company filed their statement of claim/written statement. The learned Judge, by Part I award dated 21 st February 2001 held that the domestic enquiry was fair and proper and that the findings of the Inquiry Officer were not perverse. Thereafter, after considering the evidence on merits, the learned Judge passed final award dated 29th January 2002 holding that the termination order was justified and thus rejected the reference. Being aggrieved by these orders, the petitioner has filed this petition.
5. Mr. Agvekar, the learned Counsel for the petitioner, has submitted that the charge memorandum does not mention the bribe amount allegedly received by the petitioner as bribe or illegal gratification. The charge memorandum also does not specify the names of the suppliers from whom the petitioner had allegedly received the said amount. He, therefore, claims that the charges pps 3 of 7 ::: Uploaded on - 14/09/2017 ::: Downloaded on - 15/09/2017 01:12:12 ::: wp 4631-05 judgment.doc were vague and that the enquiry was not fair and proper. The learned Counsel for the petitioner has further submitted that the respondent had not examined the suppliers who had allegedly paid the bribe amount to the petitioner. He therefore claims that the respondent failed to prove the charges leveled against the petitioner. The learned Counsel for the petitioner submits that the learned Judge was therefore not justified in holding that the inquiry was fair and proper and that the charges were proved.
6. Mr. Pavaskar, the learned Counsel for the respondent submitted that the chargesheet was preceded by a show cause notice wherein all the details were given. He has further submitted that the petitioner had proceeded with the inquiry without asking for any details about the charges. He claims that the charges leveled against the petitioner were not vague. The learned Counsel for the respondent further submitted that the petitioner had admitted having received money from the suppliers and hence the onus was on the petitioner to prove his defence that he had received the said money as loan. He submits that the petitioner had not discharged the said pps 4 of 7 ::: Uploaded on - 14/09/2017 ::: Downloaded on - 15/09/2017 01:12:12 ::: wp 4631-05 judgment.doc onus. He therefore contends that the charges leveled against the petitioner have been proved. He has submitted that the learned Judge has considered all the relevant aspects and that the award does not warrant any interference.
7. I have perused the records and considered the submissions advanced by the learned Counsel for the petitioner and the learned Counsel for the respondent. The petitioner herein was employed with the respondent no.2 as Despatch Clerk. It is not in dispute that in addition to his duty as Despatch Clerk, he was also required to place orders for stationery from the approved suppliers. The petitioner was served with the chargesheet alleging that he had taken bribe and illegal gratification from the suppliers. The records reveal that the petitioner herein was fully aware and had understood the charges leveled against him. Even otherwise, he had not raised the issue about the vagueness of charges before the Inquiry Officer. The records further reveal that the petitioner was given ample opportunity to controvert the charges and/or to defend himself. The principles of natural justice have been fully complied with.
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Considering all the above facts and circumstances, in my considered view, the learned Judge was perfectly justified in holding that the Inquiry was fair and proper.
8. It is to be noted that the petitioner herein had not disputed having received money from the suppliers. He had taken A specific defence that the said money was not received as bribe or illegal gratification, but was received as loan. In view of the afore stated defence set up by the petitioner, non examination of the suppliers is hardly of any consequence. The petitioner having admitted receipt of money from the suppliers, it was for him to prove that the said amount was received by way of loan. In this regard the petitioner has failed to prove that the said amount was received by way of loan. It is not the case of the petitioner that he had friendly relationship with the said suppliers or that the said suppliers were involved in business of financial transaction. In the circumstances, there was absolutely no reason for the petitioner to avail loan either friendly, or commercial, from the said suppliers. In view of the above, the learned Judge was perfectly justified in discarding the defence set up pps 6 of 7 ::: Uploaded on - 14/09/2017 ::: Downloaded on - 15/09/2017 01:12:12 ::: wp 4631-05 judgment.doc by the petitioner. The findings of the learned Judge that the petitioner had failed to establish that he had received the said money as loan is based on evidence on record. There is no error of law which is apparent on the records, which warrants correction in writ jurisdiction. .
9. As regards the quantum of punishment, the records reveal that the petitioner has failed to act as per the expected standard of conduct, which has resulted in betrayal of trust and confidence. Considering the seriousness and the misconduct, the punishment is not disproportionate much less shockingly disproportionate. In such circumstances, the learned Judge was justified in not interfering with punishment of termination of services. I do not find any merit in the petition and the same is accordingly dismissed.
(ANUJA PRABHUDESSAI, J.)
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