J.S. Joseph vs The Commercial Manager, Air India
2006 Latest Caselaw 2033 Del

JUDGMENT

Manju Goel, J.

1. Admit.

2. The petitioner was a Traffic Assistant with the respondent on 16.3.1987 when he was posted in the night shift. As per the facts available on record, he checked in six Nigerian passengers on Flight No. AI-880 at 0200 hrs. on 17.3.1987 who had confirmed tickets for Delhi-Bombay-Lagos. The passengers had excess baggage (18 bags). As per the allegations, the petitioner checked in the passengers for Delhi-Bombay only and prepared the baggage tag for Delhi-Bombay-Lagos but charged them for excess baggage only for Delhi-Bombay at the rate of Rs. 8/- per k.g. It is alleged that in this manner, the petitioner caused a loss of Rs. 1.50 lacs to the Corporation. There are further allegations that the petitioner had connived with the passengers and thus failed to maintain discipline and devotion to duty etc. The petitioner was chargesheeted on 21.12.1987. An inquiry was constituted in which the charges were held to be proved. On the basis of the inquiry report dated 19.7.1988, the petitioner was dismissed. The management filed an application under Section 33(2)(b) of the Industrial Disputes Act (hereinafter referred to as the `Act') before the Central Government Industrial Tribunal (`CGIT' for short), Bombay. The approval was granted vide an order dated 10.4.1989, Annexure `B' to the counter affidavit. The petitioner raised an industrial dispute. The industrial dispute was decided vide an award dated 10.9.2002 by CGIT, Lucknow which is impugned in the present writ petition.

The CGIT, Lucknow framed two issues:

(i) Whether the domestic enquiry held against the workman is fair and proper? and

(ii) As in terms of the reference?

3. The CGIT, Lucknow examined the pleas raised by the petitioner namely that the inquiry was an eye wash and that he had been denied the fair opportunity to defend himself in the inquiry and the principles of natural justice had not been followed. Further, it was submitted by the petitioner that only some part of the evidence was sent to the expert for his examination and that expert had acted on the dictation of the management. He also alleged that the Inquiry Officer had totally ignored the statement of the workman and his witnesses. The CGIT, Lucknow went into these pleas and held that the inquiry report was not perverse. It observed that going by the course of events, it was the workman/petitioner who had charged for Delhi-Bombay sector only from the Nigerian passengers. The Labour Court took note of the fact that the workman was fully aware that the destination of six passengers was Lagos. It also observed that there was nothing to show that the petitioner informed his counter part at Bombay about the issue of Extra Baggage Tickets only for Delhi-Bombay and the need to take further charges for Bombay-Lagos sector. The petitioner had even underlined the destination tag to clarify that the baggage were meant to be delivered at Lagos. On such self-evident facts, the CGIT, Lucknow observed that the report of the Inquiry Officer holding the petitioner guilty was not perverse.

4. It is submitted before this Court that the report was perverse inasmuch as the Inquiry Officer did not take into consideration that the rules permitted the passengers to be checked in only for Delhi-Bombay sector since the connecting flight was scheduled more than six hours after the flight from Delhi to Bombay. Further, it is submitted that the Inquiry Officer relied on the report of the expert without examining him and without affording the petitioner an opportunity to cross examine the expert and that the plea of the petitioner is that there could have been manipulations in the figure of `8'. He also submitted that there is manipulation inasmuch the petitioner charged Rs. 8/- but it was made to look like Rs. 108/-. Unfortunately, this is not even the management's case. There is no dispute that only Rs. 8/- was charged and there is no allegation anywhere raised by any side that this figure of Rs. 8/- had been manipulated.

5. On behalf of the respondent, it is submitted that the order passed on the application under Section 33(2)(b) of the Industrial Disputes Act was never challenged and, therefore, that order has become final and res judicata. The CGIT, Lucknow while passing the award was bound by the principles of res judicata and had to give effect to the finding of the Industrial Tribunal in the application under Section 33(2)(b) of the Industrial Disputes. Further, that order not being challenged, the present award cannot be set aside. The respondent relies upon the judgment of the Constitution Bench of the Supreme Court in the case of Bengal Bhatdee Coal Co., Ltd. v. Ram Probesh Singh and Ors. AIR 1964 Supreme Court 486 in which an Industrial Dispute referred under Section 10 of the Act was heard after approval for termination from service had already been granted under Section 33(2)(b) of the Act. The Supreme Court held that by granting approval under Section 33(2)(b) of the Act, the Industrial Tribunal could not subsequently hold that the inquiry was vitiated.

6. The CGIT, Bombay in deciding the application took into consideration the challenge to the report made before it but not before the inquiry officer. It observed that the petitioner had failed to summon or get the handwriting expert for cross-examination. It also took into notice some other facts which were taken into notice also by the CGIT, Lucknow and held that the inquiry was not perverse.

7. Since the finding of the CGIT, Bombay on the petition under Section 33(2)(b) of the Act has now become final and since the Constitution Bench has given its opinion as mentioned above, the present writ petition cannot be allowed and the award cannot be quashed. Even on merits, one can see that there was evidence before the Inquiry Officer on the basis of which it could arrive at the findings which were impugned before the two Tribunals. Therefore, the report of the Inquiry Officer also could not be said to have been vitiated.

8. It is again to be noticed that this Court is not sitting in an appeal on the CGIT, Lucknow award. The petitioner can seek only judicial review meaning thereby that only if the CGIT, Lucknow has committed some perversity in coming to a finding or has committed some blatant illegality or irregularity in giving its award, this Court can interfere under Article 226 of the Constitution of India.

9. The petitioner's case is that he was not given an opportunity by the CGIT, Lucknow for oral arguments. It is on record that written submissions were available before the CGIT, Lucknow. Therefore, there was no violation of principles of natural justice.

10. The writ petition is dismissed.