Ashok Kumar Sharma vs The Presiding Officer And Anr.
2007 Latest Caselaw 1375 Del

JUDGMENT

Hima Kohli, J.

1. By way of the present writ petition, the petitioner prays for issuance of a writ in the nature of certiorari or any other appropriate writ/ direction for quashing the impugned award dated 31.01.1996, passed by the Presiding Officer, Labour Court, whereunder it was held that the punishment of dismissal from services as imposed on the petitioner by the respondent no. 2 (hereinafter referred to as `the Management') on the allegation of committing theft of the property of the respondent by the petitioner, was just and proper and that the dismissal of the petitioner from the services of the respondent management is not illegal or unjustified.

2. Briefly stated, facts of the case are as follows. The petitioner workman was employed with the management as a Loader since 10.3.1980. On 31.8.1986, when the petitioner workman was returning from duty, he was found to be illegally carrying 30 KLM spoons in his shoes. The petitioner workman admitted his guilt vide letter dated the 31.8.1986 and again on 1.9.1986, the petitioner workman gave a statement in writing, duly signed by him, elaborating the circumstances in which he had stolen the above said 30 KLM spoons in his shoes. On the basis of the said the admission, the management dismissed the workman from service vide notice dated 3.9.1986. As against the said dismissal from service, the petitioner workman made a representation to the management on 4.10.1986 and finally, a legal notice dated 15.10.1986 was served by the petitioner workman on the management wherein he denied the allegations of theft that the management had leveled against him. Conciliation proceedings were initiated thereafter, and on the failure of the same, the petitioner workman raised an industrial dispute which was referred for adjudication in the following terms of reference:

Whether the dismissal of Shri Ashok Kumar Sharma is illegal and/or unjustified and if so, to what relief is he entitled and what directions are necessary in this respect?

3. In the statement of claim filed by the petitioner workman, he stated that the management had hatched a conspiracy against him and that he was made to admit the allegation of theft under threat and pressure of the management. After hearing the arguments of the parties and after going through the material placed on record and evidence adduced, the learned Presiding Officer observed that it was an admitted case of both the parties that before dismissal of the workman from service, no charge sheet was issued to the workman by the management nor any show cause notice was issued. The petitioner workman was also not given an opportunity to show cause as to why penalty of dismissal be not imposed on him. The learned Presiding Officer held that though the petitioner workman had admitted his guilt, still his dismissal by the management without issuing any charge sheet or holding a domestic inquiry was contrary to the principle of natural justice as the petitioner workman was not afforded any opportunity of being heard. On that ground, the dismissal of the petitioner workman was held to be contrary to law.

4. However, in view of the permission sought by the respondent/ management in its written statement, for leading evidence to substantiate the allegations against the petitioner/ workman in case it was the petitioner/ workman in case it was held that his dismissal from service was contrary to law in the absence of any domestic enquiry, evidence was permitted to be lead by both sides on merits of the case. Taking note of the cross-examination of the petitioner workman and the testimony of MW-2, Shri Rajan Chopra, the allegations of theft as leveled against the petitioner workman were found to be correct. Accordingly, it was held that dismissal of the petitioner workman from the service of the management was not illegal and/or unjustified. But the order of dismissal passed by the management was found to be contrary to law and therefore the petitioner workman was held entitled to receive full back wages from the date of his dismissal till the date of the award.

5. Counsel for the petitioner contended that the impugned award is based on "no evidence" and was therefore liable to be set aside. It was further canvassed that this Court can exercise its jurisdiction under Article 226 of the Constitution whenever there is any finding based on "no evidence" or when the finding is contrary to the evidence or if the finding is perverse. In support of his contentions, he placed reliance on the following judgments rendered by the Supreme Court:

1. Satyanarayan Laxminarayan Hegde v. Millikarjun Bhavanappa Tiruale

2. Agnani v. Badri Das 1963 1 L.L.J. 684

3. Union of India v. H.C. Goel

4. The Management of Indian Compressors Makers Corporation, New Delhi v. D.D. Gupta 1977 Lab. I.C. 694.

5. State of U.P. v. Dharmender Prasad Singh

6. In order to substantiate his argument, counsel for the petitioner drew the attention of the Court to the affidavit and the cross-examination of MW-1, Mr. C.A. Anthony, who was working as the Supervisor, Personnel Department with the management at the relevant time, to state that the said witness was not present at the time of the incident and had no personal knowledge of the same.

7. Counsel for the petitioner also referred to the cross-examination of Mr.Rajan Chopra, MW-2, who was working as a Manager with the management at the relevant time, and emphasis was placed on the statement of the said witness to the effect that though the spoons in question were with him, but he could not produce the same before the Presiding Officer. An attempt was also made to bring out the anomalies in the evidence of Sh. J.C. Nair, MW-3, who was employed as an Electrician with the management at the relevant time, by adverting to his affidavit in contrast to his deposition during cross-examination.

8. It was contended that the impugned award was erroneous and illegal in view of the discrepancies as brought out by the counsel for the petitioner, in the evidence tendered by the witnesses of the management. It was further stated that the Labour Court did not go into the question as to how 30 spoons could fit into one shoe, and that in the absence of the Labour Court having considered the said issue from the said angle, as also keeping in view the fact that the evidence on which the award was based suffered from various lacunae and inconsistencies, the award was liable to be set aside being based on "no evidence". It was also submitted that the onus to prove that an attempt of theft was made by the petitioner workman, lay on the management and not on the petitioner, and the management having failed to discharge the said burden, the impugned award could not have been passed.

9. Per contra, learned Counsel for the management stated that the arguments raised by the counsel for the petitioner were based on disputed questions of facts, and such disputed questions of facts having already been examined by the Labour Court, this Court while exercising its powers under Article 226 of the Constitution of India, ought not to interfere with the findings arrived thereon by the Labour Court. It was submitted that the writ court is not a court of appeal and to reappreciate evidence while exercising writ jurisdiction is beyond the scope of judicial review. Reliance in this regard was placed on the judgment rendered by the Supreme Court in the case of Depot Manager, A.P.SRTC v. V. Velayudham and Anr. reported as .

10. It was further pointed out that the petitioner had made no allegations of malafides or victimization against any authority, and in absence of any such allegations, no grounds were made for the writ petition to be allowed. Counsel for the respondent averred that it is clearly mentioned in the impugned award, that the findings arrived at are based on the admission of the petitioner workman, which was totally voluntary and on the testimony of MW-2, Mr. Rajan Chopra, and therefore the same should not be interfered with.

11. I have heard the counsels for both the parties and have carefully perused the material placed on record including the impugned award and the evidence of the witnesses.

12. A bare perusal of the impugned award shows that the Labour Court while arriving at the conclusion that the punishment of dismissal from service as imposed on the petitioner workman by the respondent management was just and legal, took into account the admission of the petitioner workman, which was found to be voluntary, and also the testimony of MW-2, Mr. Rajan Chopra, which went on to prove that the allegation of theft as leveled by the management against the petitioner workman was correct.

13. The contention of the petitioner workman, that the impugned award is erroneous as the same is based on 'no evidence', cannot be sustained. The judgments cited in this regard have no application to the facts of the present case and are of no help to the petitioner, as the law laid down in the said judgments is to the effect that for the issue of a writ of certiorari, it must be shown that the impugned award suffers from an error apparent on the face of the record and that such error should be an error of law, not an error of fact. However, if it is shown that a finding of fact is based on no evidence, then it would be a point of law open to be urged under Article 226 of the Constitution.

14. In the present case, the award does not suffer from any error apparent on the face of the record, nor is it based on no evidence. As has been stated above, the award is well reasoned and is based on the admission of the petitioner workman himself and also on the testimony of the MW-2. The term "no evidence" extends to such cases where the evidence taken as a whole is not reasonably capable of supporting the finding, or where in other words, no Tribunal could reasonably reach such a conclusion on that evidence. However, since the impugned award is based on the admission of the petitioner workman himself, this is not a case where the Labour Court could not have arrived at the aforesaid findings at all.

15. Having come to the conclusion that the award is not based on "no evidence" and therefore, cannot be held to be perverse or illegal on the said ground, it is pertinent to note that it is not appropriate for this Court, while exercising jurisdiction under Article 226 of the Constitution, to reappreciate evidence or to interfere with the findings of facts as arrived at by the Labour Court. The jurisdiction exercised by the writ court under Article 226 of the Constitution is supervisory and not appellate in nature. Reappraisal of evidence without sufficient reason in law, to arrive at a finding of fact contrary to those arrived at by the Subordinate Court, is not the intent of exercising the powers of judicial review. Reliance in this regard can be placed on the following judgments of the Supreme Court:

(i) Harbans Lal v. Jagmohan Saran

(ii) B.C. Chaturvedi v. Union of India

(iii) Indian Overseas Bank v. I.O.B. Staff Canteen Workers' Union AIR 2000 SC 1508

(iv) Municipal corporation of Delhi v. Asha Ram and Anr.

16. It has also been held in a catena of judgments that loss of confidence is the primary factor and not the amount of money or value of thing involved, and that sympathy and generosity cannot be a factor for interfering with the quantum of punishment. Support is drawn from the recent judgment of the Supreme Court in the case of Depot Manager, A.P.S.R.T.C. v. Raghuda Siva Sankar Prasad reported as . In these circumstances, this Court declines to interfere with the quantum of punishment imposed by the respondent management on the petitioner workman.

17. In the instant case, the petitioner workman has failed to make out any ground for this Court to interfere with the impugned award. The impugned award does not suffer from any illegality, infirmity or perversity. In view of the facts and circumstances of the present case, and the position of law as discussed above, the writ petition is dismissed as being devoid of merits. No order as to costs.