Consolidated Pneumatic Tools Co. ... vs President, Association Of ...
2001 Latest Caselaw 45 Bom

ORDER

R.J. Kochar, J.

1. The Petitioner company has challenged in this petition under Article 226 of the Constitution of India, two awards dated September 9, 1996 and May 30, 1998 in reference IDA No. 501 of 1987 by the two Labour Courts respectively.

2. One Shri Sane is the concerned workman in the present petition. Though the President of his union is impleadcd as the Respondent No. 1, I would be referring hereinafter Shri Sane, the concerned workman, as the workman. Broadly, the facts which have arisen are as follows:

The workman joined the company on February 20, 1974 and he was working as a machine operator. On October 20, 1985 he was served with a charge sheet, whereby, he was charged of commission of theft of company's property and also an act of subversive of discipline. The workman submitted his reply to the said charge sheet denying the charges as false, fabricated and an act of victimisation. Not satisfied with the explanation given by the workman, the petitioner company instituted a domestic enquiry in the charge sheet. In the enquiry, the petitioner company adduced evidence of several witnesses who were cross examined by the union representative of the workman. The Enquiry Officer also recorded the statement of the workman and permitted the representative officer of the company to cross examine him. The Enquiry Officer submitted his findings and thereby held the workman guilty of misconduct of theft or dishonesty in connection with the employer's business or property within the establishment and also commission of an act subversive of good behaviour within the establishment or of discipline of the establishment. On the basis of aforesaid findings dated October 23, 1986, the petitioner company by its order dated November 12, 1986, dismissed the workman from employment. The workman challenged legality and propriety of this order of dismissal by raising an industrial dispute and prayed for reinstatement with full back wages and continuity of service with effect from November 12, 1986. The said industrial dispute was referred for adjudication under Section 10(1) of the Industrial Disputes Act, 1947 by the State Government to the Labour Court. Both the parties filed their pleadings and adduced their respective evidence on the points of fairness and propriety of the enquiry and on the question of punishment and back wages.

3. By an award (Part-I) dated January 5, 1994 it was held by the Labour Court that the enquiry was conducted in accordance with the legal provisions and the same was fair and proper.

4. By an order dated September 9, 1996 the Labour Court answered the issue "Whether the findings of misconduct are justified by evidence led during the course of enquiry" in negative. The learned Judge observed as under:

"Considering the entire evidence, I find that there is serious doubt as to the commission of alleged misconduct by the workman finding that the charges are proved, is not justified by the evidence led during the course of the enquiry."

The Labour Court thereafter, gave opportunity to the petitioner company to lead whatever additional/fresh evidence to justify the action taken by it. This order was carried by the petitioner company before the High Court and having failed, it further went up to the Supreme Court and having finally failed there also, the Petitioner company availed of the opportunity given by the Labour Court to justify its action of dismissal of the workman. The Petitioner company examined two witnesses before the Labour Court. The workman examined himself in rebuttal. The final award was given by the Labour Court on May 30, 1998, whereby it quashed and set aside the dismissal of the workman as illegal, improper and void. The petitioner company was consequently directed to reinstate the workman with continuity of service and l/3rd back wages on his post of Machine Operator within a period of one month from the date of the award.

4. The petitioner company has challenged both the awards viz., the award dated September 9, 1996 holding findings not justified and the final award dated May 30, 1998 directing reinstatement of the workman with 1/3rd back wages and continuity of service.

5. The workman has also challenged the part of the final award through union to the extent of denial of 2/3rd back wages. He has also challenged the other part of the findings of the Labour Court holding that charge of dishonesty was proved against him.

6. I have heard both the petitions together. I have heard both the learned counsel for quite at length. I have also carefully gone through the proceedings before me. On going through the whole matter very carefully, my first impression is that the petitioner company for the reasons best known to it has blown this matter out of proportion. From the charge sheet, it appears that on October 20, 1985 which happened to be a Dasera day, the factory workmen were engaged in performing usual "Dasera Pooja". It was seen by one Shri R.M. Rane, Junior Engineer of the Petitioner company that the workman was carrying one measuring instrument which is known as Vernier Calliper (for short the instrument) wrapped in a paper bag. Shri Rane appears to have questioned the workman as to why he had not returned the said instrument in the stores department. This fact has been labelled as theft and dishonesty in connection with the company's property within the establishment. According to the petitioner company, the fact of possession of the said instrument amounted to a serious misconduct under Standing Order 22(4) (xii). The petitioner company suspended the workman during the pendency of enquiry in the charge sheet. In his explanation dated October 30, 1985, the workman has explained the possession of the said instrument. According to him, the said instrument was taken by him from the stores department for his job on October 19, 1985 during 2nd shift. On October 20, 1985, when he reported for duty he took the said instrument to return the same in the stores department but on finding the stores department closed, he carried it in his hand wrapped in a paper and went near the Pooja place where all the workers had gathered. He has denied the charge of theft and dishonesty and pointed out that he had put in 12 years of service without giving any cause for complaint of such nature. The petitioner company, however, appears not satisfied with his explanation and proceeded to hold an enquiry in the said charge sheet. As I have already stated earlier that the petitioner company examined certain witnesses and the Enquiry Officer also recorded the statements of the workman, I need not dwell upon the evidence in detail and the reasoning recorded by the Enquiry Officer, though both the learned advocates have taken me through the whole evidence before the Enquiry Officer and his findings. What I find from the record is that on October 19, 1985 the workman was on duty and had taken the said instrument for the purpose of his job. The Petitioner company has a stores department from which the operators are issued all such instruments as against a token deposited by the respective workman taking instrument. Every workman is given 10 tokens for the purpose of collecting the required tools or instruments from the stores department as and when necessary. On returning the instruments taken, the tokens are given back by the stores department. According to the company's witnesses, the system is fool proof. As and when the instruments are brought back by the workmen, they collect the tokens given by them in the stores department. According to the workman, he had collected the instrument on giving his token in the stores department. He could not return the said instrument on that day itself as he had forgotten in the course of his working. On the next day he found that the instrument was lying on the machine where he was working, he took the same to be returned to the stores department and when he found that the stores department was closed and nobody was there to receive the instrument, he went ahead at the place of Pooja as he was told that he being a Brahmin, he would be required to sit for the Pooja. The second factor being on that day there was tension in the company on account of some violent incident and there was police bandobast to maintain law and order. At the place of Pooja Shri Rane, Junior Engineer appears to have confronted the workman as to why he was carrying the instrument and why he did not return the same to the stores department. The workman explained to him the facts but it appears that Shri Rane was not satisfied and he appears to have moved further the wheels of misfortune of the workman. The witnesses examined by the company before the Enquiry Officer have stated that the instruments or tools are issued against the token deposited by the workmen who came to the stores department with such a request and when the tools/instruments are returned back to the stores department by the respective workers the tokens are given back to them. The story which all the witnesses of the company have put forward says that the workman had returned the instrument in October 19, 1985 and that he had stolen the same by entering into the stores department on October 20, and that is how he was in possession of the said instrument. This is the total sum and substance of the version of the witnesses examined by the petitioner company.

7. As against this it was the explanation of the workman that he had collected the instrument on October 19, 1985 by giving his token and he had forgotten to return it at the end of the shift and on the next day when he realised he went to the stores department but finding the same closed he proceeded further with the instrument in his hand wrapped in a brown envelope at the place of pooja where Shri Rane saw him. According to the workman, he had not returned the instrument on October 19, 1985 and his token was lying in the stores department. While according to the petitioner company the workman had returned the instrument on October 19, at the end of the shift as per the rules and he had committed theft of the instrument on the next date by opening the stores department.

8. It is the case of the petitioner company that for issue of material from the stores department, they have fool proof procedure of issuance of material against the deposit of token by the recipient of such material from the stores department. Such tokens are kept at the place of the instrument and the tokens are replaced as and when the instruments are returned. In addition to this system of token there is also a system mentioned by the learned Labour Judge in his final award in para 62 as under:

"The statement of token issued and received for October 19, 1985 was prepared in the stores. It is not filed in the enquiry proceedings or here in the Court. It is true that from the said record one would be able to find out all the instruments were returned on October 19, 1985 or not."

It is a universal system prevalent everywhere in the stores department that registers are maintained for delivery or issuance of stores material. The Petitioner company being a very well organised and renowned company cannot be an exception to such a fool proof system. The learned Judge has also specifically recorded in his final award the same though he has not given any importance to this most important and crucial aspect of the matter.

9. It was the simple say of the workman that he had forgotten to return the instrument on October 19, 1985 and therefore it was in his possession on the next date. To falsify his version, the statement of token would have been a clinching documentary evidence which was part of regular business transaction in the stores department. It is most surprising that the aforesaid crucial document was not produced by the petitioner company, not only before the Enquiry Officer, but also before the Labour Court. From this statement of token, the defence of the workman would have been either proved or falsified. Since the petitioner company has deliberately not produced the said statement of token at any stage of the proceedings, adverse inference would have to be drawn against the company, as had it produced the said statement of token it would have definitely falsified its case and would have gone against it and would have proved the defence of the workman true that on October 19, 1985 he had not returned the instrument in the stores department. If the said statement of token would have shown the entry of receipt of the instrument back in that case, the workman would have been placed in a very tight and vulnerable corner and he would have been required to prove how on October 20, in the morning he got the instrument, whether against a token or by theft. Since the petitioner company has deliberately not produced the most crucial documentary evidence which was in its custody and possession, it must be held that the workman was authoritatively in possession of the said instrument against his own token which was lying in the stores department and not in any surreptitious manner or dishonestly. According to me, he, therefore cannot be accused or charged of theft or dishonesty of the said instrument as he was carrying the same as against his own token which was lying in the stores department. No doubt, the Petitioner company has examined store keeper Shri Pednekar but his oral testimony is no substitute for the documentary evidence which deliberately appears to have been suppressed from the Enquiry Officer as well as from the Labour Court.

10. In the aforesaid circumstances in addition to the reasoning recorded by the Labour Court in its final award it is not possible for me also to hold that the workman was guilty of the charge of theft and dishonesty with the company's property. The Labour Court has already absolved the workman of the charge of theft but has held him guilty of charge of dishonesty with the company's property. In my opinion, from the record it is crystal clear that in the absence of the documentary evidence of statement of token it cannot be held that the workman was guilty of any of the charges levelled against him, neither of theft nor of dishonesty nor of any subversive act. Had the Labour Court given due importance to this crucial fact, it would have been very difficult for it and it is very difficult for any reasonable man to come to a conclusion that the workman was guilty of even dishonesty with the company's property as held by the learned Presiding Officer of the 6th Labour Court. There is nothing unusual or unnatural in the say of the workman that on October 19, he had just forgotten to return the instrument to the stores department. We need not ridicule or mock every time at the explanation of forgetting to do a certain thing. There are slips in the memory of every human being. It is not a case of instantly disbelieving the workman. The only evidence available with the company has been withheld by it. The statement of token would have perhaps clinched the case of the company that the workman had returned the instrument in the stores department and that he had not forgotten to return it. In that case, the burning ball would have been in the court of the workman to explain how he came in possession of the instrument on October 20. I am, therefore, not able to sustain the findings of the Labour Court that the workman was guilty of dishonesty with the company's property. I agree with the conclusion of the Labour Court that the workman had not committed any theft of the instrument. There is not an iota of evidence on record to prove that on October 20, 1985 he had opened the stores department and had taken away the instrument wrongfully. The charge of theft is a very serious charge against anyone and it cannot be levelled lightly without any sufficient evidence. The petitioner company has miserably failed to prove the charge of theft and dishonesty against the workman.

11. Now coming to the contention of Shri Pavaskar for the company that the decision of the Labour Court in Part I award dated September 9, 1996 that the findings of the Enquiry Officer were not justified and were perverse. I am in complete agreement with the Labour Court that the findings recorded by the Enquiry Officer were not justified. Shri Pavaskar has tried to make distinction between the findings being perverse and findings being unjustified. The concluding paragraph 11 of the award would speak for itself, which is reproduced hereinbelow:

"I have carefully considered all the judgments relied upon by both the sides. Considering the entire evidence, I find that there is a serious doubt as to the commission of the alleged misconduct by the workman. The finding that the charges are proved, is not justified by the evidence led during the course of the enquiry. It was submitted that in case the findings are held to be unjustified or perverse, the company should be given an opportunity to lead evidence before this Court in support of the charges. Mr. Kulkarni, learned counsel for the workman had fairly conceded that the company has a legal right to prove the charges by leading evidence afresh in such a contingency. Considering the facts and circumstances of the case, and the submissions made, I deem it just and proper to permit the company to lead whatever additional/fresh evidence they want in order to justify the action taken."

The learned Judge has used both these words and therefore there is no justification for Shri Pavaskar to criticise and ridicule the findings of the learned Judge. He has definitely come to a correct conclusion that the findings were not justified from the evidence on record and therefore they were perverse. The learned Judge has also given cogent reasons after carefully considering the entire evidence for not holding the workman guilty of theft or any ill intention and dishonesty. The learned Judge has expressed serious doubts about the incident involving the workman. The learned Judge has discussed the oral evidence before the Enquiry Officer to find out whether the charges were proved or not and whether the conclusion of the Enquiry Officer was based on material on record. These findings of the Labour Court have been confirmed by the Division Bench of this Court (M.B. SHAH, C.J. as he then was and J.N. PATEL, J.). The order of the Division Bench was challenged before the Supreme Court but the SLP was dismissed. I, therefore, do not find any reason for interference with the said award of the Labour Court on the question of findings of the Enquiry Officer. The Labour Court has already decided by its first award dated January 5, 1994 that the procedural part of the enquiry was fair and proper and that there was no breach or violation of the principles of natural justice. If the enquiry is procedurally fair and proper and if the workman is given adequate and reasonable opportunity, in that case, the Labour Court is justified to consider the entire evidence for itself to find out whether the charge levelled against the workman is proved or not and whether the findings or conclusions of the Enquiry Officer are based on the evidence on record of the enquiry and whether such conclusions flow from the material before the Enquiry Officer. Since the procedural part of the enquiry is not quashed and set aside as being unfair or improper. According to me, such evidence can be relied upon by the employer at a subsequent stage, if the findings are struck down as unjustified or perverse.

12. It is very significant to note that at the stage of justifying its action before the Labour Court, the petitioner company has not examined any witnesses who were eye witnesses to the incident. It has not examined any witnesses who would have proved the misconduct of the workman. Both the witnesses examined before the Labour Court hardly say anything in support of the charges. On the contrary Shri Bhatia the first witness of the company totally falsifies the case when Shri Bhatia said on oath that "there was a complaint from the tools stores Section that the present workman has taken the Vernier Calliper in the second shift on October 19, 1985 and the same was not returned by him on that day." He came to know on October 20, 1985 that the instrument was not returned by the workman. This evidence further lends support to the case of the workman that he had not returned the instrument on October 19, 1985 as is falsely stated by the witnesses of the company elsewhere. It is rather surprising that the learned Presiding Officer Shri Bhuyar has condemned the testimony of the workman containing contradictory statements and reducing him as an incredible witness but the learned Judge has not noted the glaring contradiction in the evidence of the company's witness Shri Bhatia. Having said so in para 4, as above, in para 5 of his evidence Shri Bhatia says:

"the workman had got the instrument from the Stores where all such instruments were ikept. It was returned by the workman Sane on October 19, 1985. On October 20, 1985 there was Dasera Pooja in the company. The employees were busy in performing Pooja. The workman Sane had taken the instrument from the Stores on that day when other people were busy in performing Pooja."

Shri Bhatia has further vowed that the system was fool proof. In the rest of his testimony he has repeated the same story that the workman had returned the instrument on October 19, 1985 and had taken the same from the stores on the next date.

13. The next witness examined by the petitioner company is Shri Arun Manjarekar.

This witness has merely repeated the story narrated by Stores Supervisor Shri Pednekar that on October 19, 1985 all the instruments which were issued on that date were returned to the stores. It was the foremost duty of this witness to have produced the statement or register of token recording issue of material and had he done so, the matter would have been simple. As against these two witnesses examined by the company, the workman has emphatically and repeatedly stated that he had

taken the instrument on October 19, 1985 against his token and that he had forgotten to return the same at the end of his shift and that on the next date when he went to return the same in the stores department, he could not do so as at that time the stores department was closed. Finally he had returned it to one Shri Shagir Ahmed, the Shift Supervisor, who was there in the stores department and he accepted it and gave his token back to the workman. The workman has flatly and totally denied the case put up to him in cross examination that on October 19, 1985 he had returned the instrument and that he had taken back his token and that on October 20, he had opened the lock of the stores department to take back the instrument. It is extremely important to note that the token was lying in the stores and it was returned by Shri Shagir Ahmed on receipt of the instrument.

14. From the above circumstances and discussion, I entirely agree with the reasoning of the learned Labour Judge Shri D.H. DESHMUKH that the findings of the Enquiry. Officer were not justified and were perverse. To put it differently, the findings and the conclusions of the Enquiry Officer do not flow from the evidence. This conclusion further gets strengthened if we consider the absence of the most crucial document i.e. the token register or statement of token maintained in the stores department for issuance of the material. I am also in agreement with the conclusion of the next incumbent of the Labour Court i.e. Shri P.W. Bhuyar that the workman was not guilty of theft. I, however, do not agree with the second conclusion that the workman was guilty of dishonesty with the company's property. I may clarify that I do not entirely agree with the reasoning recorded by him. Even he has not given any proper attention to the absence of the crucial and clinching documentary evidence i.e. the token register/statement of token maintained by the stores department and the contradictory evidence of Shri Bhatia.

15. The Labour Court has rightly granted the relief of reinstatement to the workman. However, the Labour Court has denied him the 2/3rd back wages being punishment for his "proved dishonesty" as held by the Presiding ' Officer. As I have come to the conclusion that there was no dishonesty in the conduct of the workman he cannot be inflicted with any punishment of denial of 2/3rd back wages. I have already given my reasons for finding the workman not guilty of the charges levelled against him. The workman is, therefore, entitled to the normal relief of reinstatement with full back wages and continuity of service and all other consequential benefits. It is needless to mention that the petitioner company would be entitled to adjust the amounts of wages paid to the workman under Section 17-B of the Industrial Disputes Act and the amount of 1/3rd back wages, if he has withdrawn the same from the Court. While computing the amount of full back wages, the petitioner company would be entitled to deduct the aforesaid amount and pay the balance. The workman would be entitled to get all the consequential benefits in computation of the back wages such as increments, bonus etc. permissible under the law.

16. Both the learned advocates have cited a number of judgments before me. In the peculiar facts and circumstances of the case in hand, it is not necessary to discuss each and every decision though I have followed the principles laid down therein.

17. The Petition therefore, fails. The rule is discharged with no order as to costs.