Bombay High Court
Shri Sham Dattatraya Dhokale vs The Regional Aviation Manager Indian ... on 4 March, 2025
2025:BHC-AS:10158
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.7250 OF 1999
Shri Sayyad Abdul Rafiq ... Petitioner
V/s.
The Regional Aviation Manager,
Indian Oil Corporation Ltd. and ors. ... Respondents
WITH
CIVIL APPLICATION NO.121 of 2016
IN
WRIT PETITION NO.7250 OF 1999
WITH
WRIT PETITION NO.368 OF 2002
WITH
WRIT PETITION NO.4493 OF 2000
______________
Mr. Nitin A. Kulkarni, Advocate for the Petitioner in WP No.7250 of 1999
and for the Respondent No.2 in WP No.368 of 2002.
Mr. Piyush Shah, Advocate for the Respondent No.1 in WP No.7250 of 1999
and WP No.4493 of 2000 and for the Petitioner in WP No.368 of 2002.
_______________
CORAM : SANDEEP V. MARNE, J.
RESERVED ON : 20th FEBRUARY 2025
PRONOUNCED ON : 4th MARCH 2025
JUDGMENT:
1. These are cross-petitions filed by the Employer-Indian Oil
Corporation Limited (IOCL) and by its two employees challenging the
judgment and order dated 7th May 1999 passed by the Member, Industrial
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Court, Pune, by which the Industrial Court has modified the order passed by
the Labour Court by awarding compensation of Rs.2 lakhs each to both the
employees. The Labour Court, by its judgment and order dated 1 st
November 1995, had directed reinstatement of both the employees with
50% backwages with effect from 2 nd March 1983. While Employer-IOCL is
aggrieved by the orders passed both by Labour and Industrial Courts, the
two employees are aggrieved by only the order passed by the Industrial
Court to the extent of substitution of direction for reinstatement with 50%
backwages with that of compensation of Rs. 2 lakhs.
2. Briefly stated facts of the case are that:-
The Indian Oil Corporation is a Public Sector Undertaking dealing in
business of various petroleum products. One of the petroleum products
supplied and sold by IOCL is aviation fuel and it supplies the aviation fuel at
the Air Force Base at Lohgaon, Pune. The Employee-Mr. Sham Dattatraya
Dhokale was initially appointed as Khalasi in IOCL in the year 1977 and
posted at the Aviation Fueling Station (AFS) of IOCL at Lohgaon, Pune. Mr.
Sayyad Abdul Rafiq was initially employed as Khalasi on 23 rd November
1977 and was promoted as Tank Truck Driver in the year 1980-81. On 10 th
April 1982, Mr. Sayyad Abdul Rafiq was assigned to drive tank truck for
bridging Aviation Fuel Gas (AVG) 100/130 at Wadala Terminal of the
Petitioner and he was to be accompanied by Mr. B. T. Kamble, Khalasi from
AFS, Lohgaon, Pune. However, it is alleged that Mr. Sayyed Abdul Rafiq
made Mr. B.T. Kamble get down at Kirkee at Pune and Mr. Dhokale, who
was actually on leave from 9 th April, 1982 to 14th April, 1982, was allowed
to accompany Mr. Sayyad Abdul Rafiq to go to Wadala, Mumbai. It is
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alleged that after taking the allotted load of the AVG in his tank truck from
Wadala Terminal, Mr. Rafiq and Mr. Dhokale sold about 2000 litres of AVG
at Kamshet and after reaching the AFS at Lohgaon, Pune at night, the duo
made good the shortage by taking the product from another storage tanks
PN 8 and PN 10. On 11 th April 1982, it was observed that the dips of
100/130 AVG in the tanks PN 8 and PN 10 was found short by 3 cms. as
compared to the closing dips taken on the previous night. It was also
observed that when reading was taken from the dips, it showed difference
of 2,019 litres of AVG, on the basis of which an inference was drawn that
the product was removed from tanks PN 8 and PN 10. It is alleged that Mr.
Dhokale gave a confession about involvement in the theft and sale of AVG
by his letter dated 15 th April 1982. Similarly, Mr. Sayyad also issued similar
confession letter dated 16th April 1982.
3. Accordingly, charge-sheets dated 12th May 1982 were issued to Mr.
Dhokale and Mr. Sayyad. After conduct of inquiry, the charges were held to
be proved and IOCL passed orders dated 2 nd March 1983 dismissing the duo
from service. Appeals preferred by both the employees were also rejected on
22nd July 1983.
4. Both the employees filed Complaint (ULP) Nos. 115 of 1983
and 185 of 1988 before 2 nd Labour Court, Pune alleging unfair labour
practice under Items 1(a), 1(b), 1(c), 1(f) and 1(g) of schedule IV of the
Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour
Practices Act, 1971 (the Act). The Complaints were resisted by IOCL by
filing written statement. It appears that criminal prosecution was also
lodged against both the employees. In order passed on preliminary issues,
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Labour Court found that the inquiry was vitiated and findings of the Inquiry
Officer were found to be perverse. IOCL therefore led evidence before the
Labour Court by examining six witnesses and producing various documents.
By a common judgment and order dated 1 st November 1995, the Labour
Court partly allowed the Complaints and directed reinstatement of both the
employees with effect from 2 nd March 1983 with continuity of service and
50% backwages. Both the IOCL as well as the two employees filed Revisions
before Industrial Court. IOCL filed Revision Application (ULP) No.172 of
1995 and 173 of 1995 for setting aside the entire order of the Labour Court,
whereas the employees filed Revision Applications (ULP) No.46 of 1996 and
47 of 1996 praying for payment of full backwages. By interim order, the
Industrial Court stayed the operation of the order of the Labour Court
during pendency of the Revision Applications. By common judgment and
order dated 7th May 1999, the Industrial Court dismissed all the four
Revision Applications. However, it modified the operative portion of the
order of the Labour Court directing reinstatement, continuity and 50% back
wages and substituted the same with a direction to IOCL to pay lump-sum
compensation of Rs. 2 lakhs each to the two employees.
5. In pursuance of the orders passed by the Industrial Court, IOCL
paid compensation of Rs.2 lakhs each to both the employees vide Demand
Drafts dated 5th July 1999 which have been encashed by them. The
employees however filed Writ Petition No.7250 of 1999 (Sayyad Abdul
Rafiq) and Writ Petition No.4493 of 2000 (Sham Dattatraya Dhokale)
challenging the order of the Industrial Court. Thereafter, IOCL has also filed
Writ Petition No.368 of 2002 challenging the orders passed by the Labour
and Industrial Courts.
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6. Mr. Shah the learned counsel appearing for the Employer-IOCL
would submit that the Labour and Industrial Courts have grossly erred in
interfering in the order of punishment of dismissal from service imposed on
both the employees. He would submit that both the employees are involved
in serious charges of theft of petroleum products of IOCL. That they have
confessed their involvement in the act of theft by issuing specific confession
letters. That the said confession letters have been produced before the
Labour Court. That IOCL also examined as many as six witnesses to justify
its action before the Labour Court. He would therefore submit that
sufficient evidence was produced before the Labour Court to justify the
action of dismissal of the two employees. That the charges are specifically
admitted by the two employees and therefore, it was not even necessary for
the employer to lead any evidence. In support of his contention, he would
rely upon the judgment of this Court in S.K. Awasthy Vs. M.R. Bhope and
ors1. He would submit that even hear-say evidence is admissible in domestic
inquiries and in support he would rely upon judgment of the Apex Court in
Balkrushna Misra Vs. Presiding Officer, Central Government Industrial
Tribunal, Orissa and anr.2. He would accordingly pray for setting aside the
orders passed both by Labour as well as Industrial Courts.
7. Petitions are opposed by Mr. Kulkarni, learned counsel
appearing for the Employee-Sayyad Abdul Rafiq. He would submit that
there is absolutely no evidence on record to connect the employees to the
misconduct alleged against them. That the entire case was sought to be
1 (1994)1 CLR 254
2 CJID 1977(35) FLR 11
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built on the alleged confessional statement, originals of which were not
even produced before the Labour Court. That the photocopies of the alleged
confession statements shown to have been recorded before issuance of the
charge-sheet does not mean admission of charge before the Inquiry Officer.
That no witness directly connected with the alleged incident has been
examined. That the Labour and Industrial Courts have scrutinized the entire
evidence and concurrently held that charges could not be established by
IOCL. He would therefore submit that no interference is warranted in
concurrent findings recorded by the Labour and the Industrial Courts, as
this Court is not expected to reappreciate the evidence on record.
8. Mr. Kulkarni would further submit that the Industrial Court has
grossly erred in substituting the directions of the Labour Court for
reinstatement with 50% backwages with that of lump-sum compensation of
Rs.2 lakhs. That no reasons are recorded by the Industrial Court why the
relief of reinstatement is denied. That there is no finding of loss of
confidence. That denial of reinstatement has resulted in loss of pension for
the employees. He would rely upon judgment of the Apex Court in Tapash
Kumar Paul vs. Bharat Sanchar Nigam Limited and anr. 3 in support of his
contention that directions for reinstatement cannot be casually substituted
with direction for payment of compensation. That none of the factors
identified by the Apex Court for substituting directions for reinstatement
with a direction for payment of compensation exists in the present case. He
would therefore pray that the order of Industrial Court be set aside by
restoring the order of the Labour Court, which had directed payment of
3 (2014)15 Supreme Court Cases 313
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50% backwages and continuity while ordering reinstatement of the
employees.
9. None has appeared on behalf of the Employer-Sham Dattatraya
Dhokale in Writ Petition No.4493 of 1999 who is also Respondent No.1 in
petition filed by IOCL bearing Writ Petition No.368 of 2002. However, since
the petitions of both the employees were simultaneously filed raising same
contentions, I have thought it appropriate not to await appearance on
behalf of Mr. Dhokale as submissions canvassed by Mr. Kulkarni would
squarely cover the case of Mr. Dhokale as well.
10. Rival contentions of the parties now fall for my consideration.
11. The Employer-IOCL is aggrieved by the orders passed by
Labour Court as well as Industrial Court in which it is concurrently held
that charges could not be established and that the dismissal orders are
vitiated. According to IOCL, sufficient evidence is led to prove the charges
and that Labour Court ought not to have interfered in the findings of guilt
or in the punishment order. On the other hand, the employees are aggrieved
only by the orders passed by the Industrial Court to the extent of denial of
relief of reinstatement with 50% backwages and they are not happy with
direction of the Industrial Court for payment of lump-sum compensation of
Rs.2 lakhs.
12. It would therefore be appropriate to first take up Writ Petition
No.368 of 2002 filed by IOCL. The Employer-IOCl examined six witnesses
before the Labour Court after the inquiry was held to be vitiated in the part-
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I Award. The sheet anchor of IOCL's case before the Labour Court were the
confessional statements given by the two employees. It would be apposite to
reproduce the said confessional statements. Mr. Sham Dattatraya Dhokale
gave following confessional statement on 15th April, 1982:
एस. डी. ढोकळे
रि प्युलिं ग हेल्प
३ बी ११७९४,
पुणे ए. एफ. एस.
प्रति ,
स्टेशन मैनेज ,
इंतिडयन ऑइ काप, श े न लि मिमटेड,
पुणे, ए.एफ.एस.-पुणे-०११०३२.
महाशय,
मि1षय - टॅंक ट्रक नं. एमटीडी-३८७५.
मी शुक्र1ा मि8नांक ०९/०४/१९८३ े १४/०४/१९८२ या का ा जे1 हो ो, श्री
एस.ए. मिफक, टैंक ट्रक ड्रायव्ह ने (इ नं ११६८७) म ा शुक्र1ा ी ात्री नऊ 1ाज ा घ ी येऊन
मिन ोप मि8 ा की, म ा साहेबांनी बो मि1 े आहे 1 नं मी जेव्हा त्याना ात्री 8हा 1ाज ा ये 1डा
बस स्टॉप1 त्यांना भेट ो ेव्हा ो म ा म्हण ा की ु ा साहेबांनी बो मि1 े असे मी खोटे
सांमिग े 1 म ा उ8या त्यांच्या ब ोब मुंबई ा येण्यास सांमिग े.
ठ 1ल्याप्रमाणे सकाळी 8हा 1ाज ा स1M श्री एस. एस. मिफक 1 मि1. टी. कांबळे , ख ासी
(इ. नं.0 ५९५८) हे टैंक ट्रक नं-एमटीडी मधून ये 1ड बस स्टॉप ा येऊन थांब े . ेथे मी गाडी
चढू न आम्ही ति थे मुंबई ा जाऊ ाग ो 1ाटे येथे उ ा श्री बी. टी. कांबळे आम्ही पुढे
मुंबई ा 8पु ा ी येथे पोहाच ो गाडी १२००० लि ट अव्हीजी १००१ 8पु ा ी 1ाज ा पुण्याकडे
जाय ा मिनघा ी 1ाटे 8ापो ी येथे आम्ही चहा मिपण्याक ा थांब ो हो ो. ति थून पुढे मिनघून
पूनम पेट्रोलि यम, ागशे येथे 1ाज ा पोहच ो. ति थल्या पेट्रो टाकी २००० लि ट मधून
खा ी के े. त्या1ेळी ेथे पंपाचा मा क हज हो ा. त्यांनी मिफकनेच सिस े काढू न प
ा1 ी. नं एएफएस पुण्या ा ११.00 1ाज ा आ ो त्या1ेळी एएमएस मध्ये कोणीही नव्ह े.
नं नं.२ कंपाटM मेंटमध्ये आम्ही पंप 1 गेट हे स1M आम्ही १२.३० 1ाज ा संप1ून
प गे ो. २००० हजा ीट पूनम पेट्रोलि यम कागशे ा मि8ल्याबद्द काही पैसे
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मिमळा े काय याबद्द मिफक ाच माही आहे ; म ा काही नाही. फक्त हे स1M यशस्1ी
का पास ु ा रु. २०००/- (8ोन हजा ) 8ेई असे सांमिग े.
हे रु. २०००/- (8ोन हजा ) रुपये मिफकने त्याच मि81शी घ ी जा ाना म ा मि8 े. या
प्रसंगानं (१०.११ एमिप्र १९८२) माझी 1 मिफकची गाठ नाही.
हे स1M मी आपणM हून सांग आहे 1 याबद्द म ा काही जब 8स् ी झा े ी नाही
मि8नांक - १५/४/१९८२ (शाम 8. ढोकळे )
1ॉडM स1Z नं. २, घ नं. ७३,
गणेशनग , ये 1डा.
जबाब लि हून घेणा
श्री एस एस गे े
एव्हीएशन गुप
पुणे, ए.एफ.एस.
13. The Tank Truck Driver Mr. Sayyad Abdul Rafiq gave following
confessional statement:
"स्टेशन मैनेज ,
पूना ए.एफ.एस.
मैं एस. ए. फीक अपनी म जी सें यह लि खक 8े ा हूँ मिक, १०/०४/८२ के मि8न
९.३० बजे पुना से ३८७७ गाडी बॉम्बे 1डाळा के ास् े ए ोटा खंड ी के पास शाम
रि प्यूलिं ग हेल्प ) खड़ा था. जो के एक मि8न पह े ही मुझे मे े घ आक ब ाया की मैं
क आने 1ा ा हूँ ऐसे काम के लि ये ो 1ह आया. शाम की गाडी मैं बैठा औ हम
ीनो गाडी ेक खड़की क गये 1हाँ मिब.टी. कांबळे जो मे ा मि_न है ऊसे चाय पानी
के लि ए बीस रूपये मि8ये औ उसे गाड़ी से उ ा क घ भेज मि8या. हम गाडी ेक
1डा ा में २ बजक २० मिममिनट प पहुचे. को गाडी भ क बाह मिनक े गाडी मे
१३०० भ ा हुआ था 1हाँ से मिनका क हम सफे8ी एक घंटा चाय पानी के लि ए गया.
मिनक क हम कागशे पंपप रुके औ 1हाँप १५००० लि ट खा ी मिकये उसके
बा8 ६०००/- रूपये ेक पुना ए.एफ. एस के लि ये 1ाना हो गे. पुना ए.एफ.एस. में हम
१०.३ 0 के आये."
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14. Thus, the confessional statements contain clear admission of
sale of 2000 liters quantity of AVG to the dealer Punam Petroleum. The
statements allege that Mr. Rafiq apparently collected Rs.6,000/- for the sale
of the said petroleum products from the dealer out of which he handed over
Rs. 2000/- to Mr. Dhokale.
15. It appears that the original confessional statements, which were
recorded by IOCL, were collected by the police in connection with the
investigations and the same formed part of criminal prosecution. On
account of the said confessional statements being part of criminal
prosecution, the originals of the said confessional statements could not be
produced before the Labour Court. Therefore, photocopies of the said
confessional statements were produced before the Labour Court. IOCL
examined Mr. Vijaykumar Madhusudan Mandhare, clerk-typist posted at
AFS, Lohgaon during 1982. He is the witness to the confessional statement
of Mr. Rafiq and gave evidence that the statement was written by Mr. Rafiq
in his presence. Thus, a direct witness was examined before the Labour
Court in respect of confessional statement of Mr. Rafiq. The Labour Court
and Industrial Court however proceeded to discard the said confessional
statements on a solitary ground that the originals thereof were not
produced before the Labour Court. It appears that IOCL made efforts of
securing originals of the confessional statements from the Criminal Court
and examined Mr. Ratnakar Janardan Choudhari to demonstrate the efforts
taken by him to secure the original confessional statements from the
Criminal Court. However, the originals were found to be not traceable in the
Court records.
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16. In the domestic enquiry, strict rules of evidence do not apply. The
person who witnessed recording of confessional statements was examined
before the Labour Court. Hear-say evidence is not allergic to the domestic
inquiry. Therefore, the confessional statements ought to have been accepted
as proved by the Labour Court after considering the evidence of witness, in
whose presence the same was recorded. IOCL had appropriate explanation
for its inability to produce the original confessional statements. Most
importantly, both the employees did not step into the witness-box and did
not deny having given the confessional statements. In the light of this
position the approach of the Labour Court in completely discarding the
confessional statements was improper.
17. Even if the confessional statements were to be momentarily ignored,
there appears to be adequate evidence on record to bring home charges
against both the employees. Mr. P. B. Saigal In-charge Station Manager
posted at Lohgaon Air-force station in the year 1982 gave evidence that Mr.
Dhokale was on leave from 9th April, 1982 to 14th April, 1982 and was not
expected to accompany Mr. Rafiq on his journey to Wadala. He has given
evidence as to how Mr. B. T. Kamble was allotted as Khalasi on the Tank
Trunk driven by Mr. Rafiq. Thus, there is direct evidence of Mr. Dhokale
intentionally joining Mr. Rafiq on trip to Wadala though was on leave. The
witness further led evidence about Octroi Debit Memo prepared at Bhopodi
naka where the weight of the truck was recorded and the truck weighed
only 13300 kg. with full capacity of AVG fuel of 12000 litres. The tank truck
ought to have weighed 14700 kg. This is how witness Mr. Saigal gave
evidence of shortage of about 1400 kg. AVG equivalent to 2000 litres. The
Octroi Memo was produced by the witness through proper custody and the
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same become admissible piece of evidence. The witness gave evidence
about price of sold products at Rs.16,000/-. The witness also gave evidence
about the Register showing opening and closing meter readings of tanks PN
8 and PN 10 and stated that the dip of the tank showed shortage of 2000
litres. The register entries were again produced by the witness from the
proper custody and became admissible evidence in domestic inquiry. Thus,
witness Mr. Saigal gave about two vital aspects-weighing of the truck at
Bhopodi Naka being recorded short by 1400 kg. equivalent of 2000 litres of
AVG (before the tank truck reached Lohgaon and the short quantity of AVG
was replaced by the duo from tanks No.PN 8 and PN 10). The witness also
gave evidence of shortage in Tank Nos. PN 8 and PN 10 of almotst
equivalent quantity based on the entries in the register. Thus there is a
direct evidence of the tank truck driven by Mr. Rafiq in which Mr. Dhokale
was present, which had less quantity of AVG by 2000 litres when it reached
Bhopodi Tol Naka and there is also evidence of removal of the equivalent
quantity (2000 liters) AVG from IOCL's tank Nos. PN 8 and PN 10 by the
duo to make good the shortage.
18. Witness- Mr. Subhash Sundar Rege, Senior Aviation Superintendent
also gave evidence about Mr. Dhokale's leave on the concerned day, but he
still accompanied Mr. Rafiq for trip to Wadala. The witness gave evidence
about departure timing of tank truck from the log-sheet. As per the witness,
the log-sheet showed Mr. Rafiq reaching Wadala at 2.15 p.m. and that the
tank truck left Wadala at 4.00 p.m. and reached Lohgaon Station at 10.30
p.m. The witness gave evidence that the Air-force Station had closed at 8.00
p.m. and no official was present when the tanker reached Lohgaon station
at 10.30 p.m. The witness gave evidence of loading of 12000 liters of AVG
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at Wadala station and that the quantity was reflected in two different
documents VI-Stock Transfer Chalan and AV/3 certificate. He stated that
both the documents reflected that the volume loaded product was 12000
liters. The witness also gave evidence of the document generated at
Bhopodi Octroi Naka, in which gross weight of the truck was noted as
13300 kg. The witness stated that after loading 12000 liters of AVG, the
weight of the tank truck ought to have been 14700 kg. The witness
accordingly led evidence of shortage of 1400 kg. equivalent to 2000 liters.
The witness also led evidence about entries of dips taken at 2 times at 8.00
pm. and 10.00 p.m. at Lohgaon station and how the dips showed shortage
by 3.00 cms each, equivalent to roughly 2000 liters.
19. In my view, the above evidence is sufficient in a domestic enquiry to
bring home the charges. The confessional statements not denied by the
employees coupled with the evidence on record was actually sufficient to
prove the charges before the Labour Court.
20. I am aware of the limitation for this Court to reappreciate the
evidence on record in exercise of jurisdiction under Article 227 of the
Constitution of India. However, I clearly see gross and jurisdictional error in
the findings recorded by the Labour and the Industrial Courts in not
appreciating the position that there was some evidence on record of the
Labour Court for proof of the charges. The Labour and the Industrial Courts
have ignored the position that the test of proof of charge in a domestic
inquiry is preponderance of probability and not proof beyond reasonable
doubt. It would be apposite to refer the judgment of a Kuldeep Singh Vs.
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The Commissioner of Police and ors.4 in which it is held in paragraph
No.10 as under:
"10. A broad distinction has, therefore, to be maintained between the
decisions which are perverse and those which are not. If a decision is
arrived at on no evidence or evidence which is thoroughly unreliable and
no reasonable person would act upon it, the order would be perverse. But
if there is some evidence on record which is acceptable and which could be
relied upon, howsoever compendious it may be, the conclusions would not
be treated as perverse and the findings would not be interfered with."
(emphasis added)
21. In State of Haryana Vs. Rattan Singh5, it is held that even hear-say
evidence is admissible in domestic inquiry, provided it has reasonable nexus
and creditability. The Apex Court has reiterated that so long as there is
some evidence on record, charges in the domestic inquiry can be held to be
proved. The Apex Court held in paragraphs No.4 of the judgment in Rattan
Singh as under:
4. It is well settled that in a domestic enquiry the strict and
sophisticated rules of evidence under the Indian Evidence Act may
not apply. All materials which are logically probative for a prudent
mind are permissible. There is no allergy to hearsay evidence
provided it has reasonable nexus and credibility. It is true that
departmental authorities and Administrative Tribunals must be
careful in evaluating such material and should not glibly swallow
what is strictly speaking not relevant under the Indian Evidence Act.
For this proposition it is not necessary to cite decisions nor text
books, although we have been taken through case-law and other
authorities by counsel on both sides. The essence of a judicial
approach is objectivity, exclusion of extraneous materials or
considerations and observance of rules of natural justice. Of course,
fairplay is the basis and if perversity or arbitrariness, bias or
surrender of independence of judgment vitiate the conclusions
reached, such finding, even though of a domestic tribunal, cannot be
4 1999(2) SCC 10
5 AIR 1977 SC 1512
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held good. However, the courts below mis-directed themselves,
perhaps, in insisting that passengers who had come in and gone out
should be chased and brought before the tribunal before a valid
finding could be recorded. The 'residuum' rule to which counsel for
the respondent referred, based upon certain passages from American
Jurisprudence does not go to that extent nor does the passage from
Halsbury insist on such rigid requirement. The simple point is, was
there some evidence or was there no evidence -- not in the sense of
the technical rules governing regular court proceedings but in a fair
commonsense way as men of understanding and worldly wisdom
will accept. Viewed in this way, sufficiency of evidence in proof of
the finding by a domestic tribunal is beyond scrutiny. Absence of any
evidence in support of a finding is certainly available for the court to
look into because it amounts to an error of law apparent on the
record. We find, in this case, that the evidence of Chamanlal,
Inspector of the Flying Squad, is some evidence which has relevance
to the charge levelled against the respondent. Therefore, we are
unable to hold that the order is invalid on that ground.
(emphasis supplied)
22. In Balkrushna Mishra (supra), the Apex Court has reiterated
the principle that even hearsay evidence is admissible in a domestic inquiry.
It is held in paragraphs Nos. 8,9 and 10 as under:-
"8. It is well settled that a finding recorded in a domestic enquiry cannot
be characterised as perverse by the Labour Court unless it can be shown
that such a finding is not supported by any evidence, or is entirely opposed
to the whole body of the evidence adduced. In a domestic enquiry once a
conclusion is deduced from the evidence, it is not permissible to assail that
conclusion even though it is possible for some other authority to arrive at a
different conclusion on the same evidence vide M/s The Benaras Electrict
Light and Power Co. Ltd. v. The Labour Court II, Lucknow(1)
9. If the decision of the learned Tribunal is judged keeping in view the
aforesaid dictum of the Supreme Court, it would appear that the decision
is not perverse and it is not that the finding is not supported by any
evidence, or is entirely opposed to the whole body of evidence adduced. In
fact there is evidence on record and the learned Tribunal has accepted the
same. Even though there can be any possibility to arrive at a different
conclusion on the same evidence, this Court cannot substitute its
conclusion on facts. In an application under Articles 226 and 227, the High
wp 7250-99 judgement and ors-c.dox.docx
Court cannot sit in appeal ever the findings recorded by the competent
Tribunal. It cannot reappreciate the evidence. It would however, be
justified in setting aside the finding if it is based on no evidence.
10. It is contended on behalf of the petitioner that the evidence of M.W. 1
to the extent that the petitioner had told his wife about the amount, is not
admissible in evidence as the same is hearsay. In our opinion, such a
statement cannot be said to be hearsay. M.W. 1 states about the enquiry
made by the wife of the petitioner while he handed over the money to her.
The petitioner himself cross-examined, but did not challenge the aforesaid
statement.
Even assuming that it is hearsay evidence, there is no bar on the part of
the competent authority to rely on the same in a disciplinary proceeding.
Law is well settled that the Evidence Act has no application to such a
proceeding. If the Evidence Act has no application then the principles of
that Act have equally no strict application. It is the principle of natural
justice which should be followed (See Harihar Das v. I.G. of Police,
Orissa(2). In that case, a question arose whether hearsay evidence was
admissible in a disciplinary proceeding. Following two English decisions,
this Court came to the conclusion that hearsay evidence was admissible
before a domestic tribunal provided the essential condition that an
opportunity was afforded to the parties to comment and contradict such
evidence was fulfilled. This view has also been reaffirmed in another
decision of this Court in Ramesh Chandra Behera v. State of Orissa. This
Court has consistently held that hearsay evidence is admissible in a
departmental proceeding. As such, the contention of the petitioner has no
force.
On the aforesaid analysis, we hold that there is no justifiable ground to
interfere with the decision of the learned Tribunal and this writ petition is
without any merit."
(emphasis and underlining added)
23. Applying the above broad principles to the facts of the present case, it
cannot be said that there is total absence of evidence to connect the two
employees to the misconduct alleged against them. IOCL has proved before
the Labour Court that the entries made at Bhopodi Otroi Naka showed
lesser quantity of AVG by 2000 liters in the tank truck driven by Mr. Rafiq.
Similarly, documentary evidence is produced to show that the dips reading
wp 7250-99 judgement and ors-c.dox.docx
of tanks No.PN 8 and PN 10 at Lohgaon during opening and closing hours
showed shortage of above 2000 litres of AVG. Coupled with this
documentary evidence, there are confessional statements of the two
employees which are not disowned by them by stepping into the witness
box. Therefore, though no direct evidence is led to prove actual sale of the
product to the dealer Punam Petroleum and pocketing of Rs.6,000/-
towards such sale, it appears probable that the employees were responsible
for shortage of 2000 litres of AVG when the tanker reached Lohgaon Air-
force Station. This is not a criminal trial that direct evidence of sale of AVG
was required to be led for proving the charges of theft. Even if the employer
is unnable to prove that 2000 litres of AVG worth Rs.16,000/- was missing
when the tank truck reached Lohgaon station and the shortage was made
good by removing similar quantity of AVG from tank Nos.PN 8 and PN 10
which correspondently showed shortage of 2000 litres of AVG, probability
of commission of misconduct on the part of the two employees became
more than probable. In my view, therefore, the Labour Court has grossly
erred in the setting aside the punishment of dismissal and in awarding
reinstatement in favour of the two employees.
24. Though the Industrial Court has partly corrected the error by
the Labour Court by setting aside the order for reinstatement, whether the
compensation could have been awarded to the two employees considering
their gross misconduct becomes quite questionable. Such direction, in my
view was uncalled for. However, both the employees had already paid the
said amount of compensation of Rs.2 lakhs each way back in the year 1999
and considering passage of 26 long years, I am not inclined to direct
recovery of the same. Therefore, though I am fully convinced that both the
employees indeed committed mistake and are fully responsible for loss of
wp 7250-99 judgement and ors-c.dox.docx
AVG of 2000 liters, I am not inclined to direct recovery of amount of
compensation already paid to both the employees as a result of order
passed by the Industrial Court. It must also be noted that IOCL was
apparently not aggrieved by the order passed by the Industrial Court and
filed Writ Petition No.368 of 2002 only as afterthought, after learning
about filing of Writ Petition No.7250 of 1999 and Writ Petition No.4493
of 2000 by the two employees. Otherwise IOCL had already paid
compensation of Rs.2 lakhs each to both the employees on 5 th July 1999.
This is yet another reason why I am not inclined to direct recovery of
amount of compensation already paid to both the employees, though this
Court is not in agreement with the findings recorded by the Industrial Court
on the issue of proof of charges.
26. No relief therefore can be granted either in favour of the two
employees in Writ Petitions No.7250 of 1999 or 4493 of 2000 as I am
satisfied that the evidence on record was sufficient to prove their
misconduct. Similarly, no relief can be granted in favour of the Employer-
IOCL in Writ Petition No.368 of 2002 as I am not inclined to direct refund
of amount of compensation already paid to the employees, considering the
unique facts of the case. All the three petitions therefore deserve to be
dismissed.
27. All the three petitions are accordingly dismissed. Rule is discharged.
There shall be no order as to costs.
28. In view of disposal of the Writ Petition, the Civil Application also
stands disposed.
Digitally
signed by
PRIYA
PRIYA RAJESH
RAJESH SOPARKAR
SOPARKAR Date:
(SANDEEP V. MARNE, J.)
2025.03.04
18:10:31
+0530
