Jaipal Singh vs Mohan Hotels (P) Ltd.
2007 Latest Caselaw 2071 Del

JUDGMENT

A.K. Sikri, J.

1. The petitioner herein, who was in the employment of the respondent Management (hereinafter referred to as the 'Management') in the capacity of Attendant (for short, the 'workman'), was issued charge sheet and a departmental enquiry was held against him as per which charges were proved, on the basis of which his services were terminated. The workman raised industrial dispute challenging his termination, which was referred to the Labour Court. The Labour Court pronounced its order dated 28.8.1993 holding that enquiry was conducted in accordance with the principles of natural justice and there was no defect in the enquiry proceedings. Thereafter, vide Award dated 15.3.1995, the reference is answered in favor of the Management holding that having regard to the nature of charge, punishment of dismissal was not excessive. Challenging the aforesaid order and the Award, the present petition has been filed by the workman.

2. Before coming to the challenge to the aforesaid order and Award, it would be appropriate to scan through the relevant facts and also the contents of the impugned order and Award.

3. The workman was appointed as a trainee with the Management on 24.8.1983 at a salary of Rs.350/- p.m. With effect from 1.4.1986, he was confirmed in services and his salary was also raised to Rs.650/- p.m. However, vide memo dated 10.1.1987, the petitioner was served with a charge sheet and was also placed under suspension. The charges related to theft, fraud and dishonesty in connection with the employer's business and property. The precise charge levelled against the workman reads as under:

a) On 5.1.87, when you were in the second shift, you were allotted the jobs of Cleaning the washing area, Ice cube room, Loading, Off loading and Garbage room, you were found roaming around outside the main building adjacent to Store receiving area, by Mr. Veer Singh, Security Guard (Rounder) on duty, at 6.45 p.m.

b) Again at 7.45 p.m. on the same day you were found going towards Transport area in the rear side by Mr. Veer Singh, Security Guard (Rounder) on duty without any specific purpose.

c) Thereafter on the same date you were seen by Mr. Janardhan, Security Guard on duty (rear side), throwing out something through barbed fencing of the rear side. While you were coming back from the barbed fencing side after throwing out the same Mr. Janardhan, Security Guard, caught you and took you back to the site where you had thrown the above. While searching Mr. Janardhan, Security Guard found a full sealed bottle of Liquor wrapped in two cloth dusters (White & Blue) and brought the same Along with you up to the Store receiving dock shutters and also told you to accompany him up to the Security Supervisor at gate for reporting the matter but you ran away from the store receiving dock shutter leaving Mr. Janardhan, Security Guard and entered the building through the rear gate of store receiving area.

These above acts amount to misconduct under the Model Standing Orders, Clause (b) of Sub-Section 3 of Section 14, reading as under:

theft, fraud or dishonesty in connection with employer's business or property

4. The Factory Manager was appointed as the Enquiry Officer, who held the domestic enquiry and submitted his report. Acting thereon the workman was dismissed from service vide orders dated 19.2.1987. Raising the industrial dispute it was referred to the Labour Court with the following terms of reference:

Whether the services of Shri Jaipal Singh have been terminated illegally and/or unjustifiably by the Management and if so to what relief is he entitled and what directions are necessary in this respect?

After service of notice to the parties, the workman filed statement of claim to which the Management filed its reply. On the basis of pleadings, the following two issues were framed:

1. Whether valid and proper enquiry in accordance with the principle of natural justice was conducted?

2. As per terms of reference.

Case was taken up on Issue No. 1, i.e. for adjudging the validity of the enquiry. The Enquiry Officer appeared as witness to prove his Enquiry Report. On the other hand, the workman examined himself.

5. I may state at the outset that the workman contests that he was not given proper opportunity by the Enquiry Officer to defend himself. Insofar as procedure adopted by the Enquiry Officer to conduct the Enquiry is concerned and the case of the Management that fair opportunity was granted to the workman to defend himself, the workman did not join issue. However, his only submission was that after the Enquiry Report was submitted, he had not been supplied with a copy of the Enquiry Report before inflicting the punishment and, therefore, was deprived of the opportunity to make representation against the proposed penalty. It was contended that the said action amounted to violation of principles of natural justice. In fact, even in this writ petition the plea remains the same.

6. The Labour Court considered the aforesaid plea of the workman. On facts there was no dispute that copy of the Enquiry Report was not supplied to the workman before imposing the punishment. Case of the Management, however, was that there was no such requirement for supply of copy of the Enquiry Report at that time. The learned Labour Court vide its order dated 28.8.1993, while upholding the plea of the Management, decided the aforesaid issue in the following manner:

7. ...To my mind, this question cannot be gone into at this stage. Presently, the court is concerned, with the question, whether the enquiry is fair and proper and was held in accordance with the principles of natural justice. What transpired after the enquiry would be caused under Item No. 2 and the court cannot give any verdict on the same right now. Therefore, at this stage I would restrain myself from giving any finding on the question whether a second show cause notice was required to be served upon the petitioner before inflicting the punishment of dismissal from service.

8. That as far as issue No. 1 is concerned the petitioner has simply taken up the plea in the statement of claim that the enquiry officer, had acted in bad faith, malafidely and had violated the principles of natural justice. So, there are only vague allegations. Similarly, where the petitioner appeared as WWI he could not point out, as to how the principles of natural justice, during the enquiry proceedings were violated. Similarly in the cross examination of the enquiry officer also, who had appeared as MW I nothing was brought on record, which could suggest that the enquiry had not been held in accordance with the principles of natural justice. So much so that no defect in the enquiry proceedings was also pointed out either in the statement of claim or in the written arguments. Thus, I have no manner of doubt, that a valid and proper enquiry in accordance with the principles of natural justice, has been held by the respondent. The issue is accordingly decided in the affirmative.

7. Both the parties have filed their written submissions and I have gone through the same.

8. The aforesaid approach of the learned Labour Court was clearly erroneous as it was not proper to confine to the discussion relating to the conduct of enquiry itself, insofar as, principles of natural justice are concerned. Whatever requirements under the law or as per the provisions of principles of natural justice till the imposition of punishment are concerned, they have to be followed. The enquiry was conducted under the Model Standing Orders and the submission of the workman was that as per the Standing Order No. 14 it was necessary for the Management not only to supply copy of the Enquiry Report but also to give second show-cause before penalty of dismissal was imposed. Relevant Standing Order No. 14(4)(c) provides as under:

If on the conclusion of the inquiry, or as the case may be, of the criminal proceedings, the workman has been found guilty of the charges framed against him and it is considered, after giving the workman concerned a reasonable opportunity of making representation on the penalty proposed, that an order of dismissal or suspension or fine or stoppage of annual increment or reduction in rank would meet the ends o justice, the employer shall pass an order accordingly.

As mentioned above, this was the only argument pressed at the time of hearing of the petition and in the written submissions filed by the learned Counsel for the workman in this petition. Since there was a violation of the aforesaid provision, it could safely be held that no reasonable opportunity was given to the workman before passing the dismissal order in question. However, the matter does not rest at that.

9. Interestingly, it may be mentioned at this stage that after the aforesaid order, when the matter proceeded for decision on Issue No. 2 and arguments were advanced after recording the evidence thereon, this very argument of breach of Model Standing Orders was pressed again by the workman. By that time, there was change of the Presiding Officer and the new Presiding Officer, who rendered the Award dated 15.3.1995, appreciated this argument and held that since no reasonable opportunity was given, it amounts to breach of principles of natural justice and the same vitiates the order of dismissal of the workman, as can be found from para 13 of the Award, which is as follows:

13. So from the above discussion it is clear that if no reasonable opportunity was given to the workman concerned by the employer before passing the dismissal order in question, this amounts to a breach of principle of natural justice and this vitiates the dismissal of the workman concerned and the order of dismissal cannot be sustained. It has amount(ed) to depriving the delinquent workman of a reasonable opportunity to defend himself by stating that the finding of the Enquiry Officer could not be sustained or at any rate the proposed punishment is excessive.

Thus, in the final Award, the court remedied this error committed in the earlier order dated 28.8.1993.

10. After giving this finding, the learned Labour Court proceeded to discuss as to what should be done in such a situation. This poser and the manner in which the Labour Court decided to proceed further is found in para 14 of the Award:

14. The next point which arises for consideration is what should be done in such a situation. Labour Court No. VII by its order dated 28.8.93 has already held that a valid and proper enquiry in accordance with the principles of natural justice had been held by the respondent. I have no power to upset the said findings. However, I will resolve this problem by looking at it from another angle with the aid of Section 11A of the Industrial Disputes Act, 1947.

11. The Labour Court proceeded on the basis that after coming into effect the provisions of Section 11A of the Industrial Disputes Act, 1947, an adjudicator is bound to apply the said provisions which govern the adjudication {See - Firestone Tyre and Rubber Co. of India (Pvt) Ltd. v. The Management (1973) 1 LLJ 278}. In view of Section 11A stipulating "in the course of adjudication proceedings, the Tribunal is satisfied that the order of discharge or dismissal was not justified", this aspect was to be looked into by the Tribunal by reappraisal of the evidence in the domestic enquiry and to see as to whether the evidence relied upon by the employer establishes the misconduct alleged against the workman. After delineating the aforesaid parameters, the Labour Court looked into the enquiry record in the light of submission of counsel for the workman that no charge of theft was made against the workman and the finding of the Enquiry Officer to the contrary were perverse in the eyes of law. However, after analysing the evidence on record, he concluded that the charge against the workman stood proved. There is a detailed discussion in the Labour Court Award passed on the analysis of the evidence on record from para 22 to 28 and the Labour Court itself, on the basis of said evidence, recorded the finding to the effect that misconduct of theft stood proved against the workman. Significantly, finding was not even assailed by the learned Counsel for the petitioner at the time of arguments as no submissions were made on this aspect.

12. The learned Labour Court also discussed the question of proportionality of the punishment of dismissal and having regard to the fact that the misconduct, which was proved against the workman, related to the acts of theft, fraud and dishonesty, he held that the punishment of dismissal was perfectly justified.

13. As pointed out above, on the aforesaid aspects dealt with by the Labour Court, no argument was even raised by learned Counsel for the petitioner, who confined her submission to non-supply of copy of the report and non-giving of second show-cause notice. However, in the present case, a finding of fact is recorded by the learned Labour Court itself holding that the charges stood substantiated as there was sufficient evidence, oral as well as documentary. These are the findings of facts and unless it is shown that such findings are perverse or based on no evidence, this Court, in exercise of its powers under Article 226 of the Constitution of India, is precluded from disturbing those findings of facts recorded by the learned Labour Court. No such attempt was even made to show that such findings were perverse.

14. The Supreme Court in the case of Janatha Bazar (South Kanara Central Cooperative Wholesale Stores Ltd. v. The Secretary, Sahakari Noukarara Sangha 2000 LLR 1271 held as under:

...the charges against the workmen for breach of trust and misappropriation of funds entrusted to them for the value mentioned in the charge-sheet had been established...may be for a small or large amount, there is no question of showing uncalled for sympathy and reinstating the employees in service and in view of proof of misconduct, a necessary consequence will be that Management has lost confidence that the workman would truthfully and faithfully carry on his duties.

Another Division Bench judgment of the Bombay High Court in the case of Karnal Sahdev Karna v. Bharat Petroleum Corporation Ltd. 2002 LLR 537, is wholly applicable, wherein the Court held as under:

...committing theft of an article owned by ones own company, is a grave misconduct and no leniency could be shown to such an employee. In case of theft, value of the articles would hardly matter because it is an act of theft itself which is punishable. Reinstatement of such an officer, is bound to send wrong signals to other workmen.

15. Thus, I do not find any merit in this writ petition, which is accordingly dismissed.

No costs.