Ashok Kumar Sharma vs Oberoi Flight Services
2009 Latest Caselaw 865 Del

LPA NO.39/2008                                       Page No. 1

                                         REPORTABLE
*         IN THE HIGH COURT OF DELHI AT NEW DELHI
+                 LPA NO. 39 OF 2008

%                              Date of Decision : 18th March, 2008.

ASHOK KUMAR SHARMA                                  .... Appellant.
                              Through Mr. D.N. Vohra, Advocate.

                              VERSUS

OBEROI FLIGHT SERVICES                   .... Respondents.

Through Mr. V.K. Rao with Mr.Saket Sikri, Advocates

CORAM:

HON'BLE DR. JUSTICE MUKUNDAKAM SHARMA, CHIEF JUSTICE HON'BLE MR. JUSTICE SANJIV KHANNA

1. Whether Reporters of local papers may be allowed to see the judgment?

2. To be referred to the Reporter or not ? Yes

3. Whether the judgment should be reported in the Digest ? Yes

SANJIV KHANNA, J:

1. The appellant-Mr.Ashok Kumar Sharma has filed the present

Appeal against the Order dated 30th July, 2007 passed by the

Single Judge dismissing his writ petition and upholding Award

dated 31st January, 1996 passed by the Labour Court.

2. The appellant was employed on 10th March, 1980 with the

respondent-Management, M/s. Oberoi Flight Services as a

Loader. His services were terminated by the respondent-

Management by notice dated 3rd September, 1986. No

enquiry was held by the management before termination. The

appellant made representation dated 4th October, 1986 and

also served legal notice on 15th October, 1986 on the

respondent-management. The dispute could not be resolved

even after conciliation proceedings. Thereupon an industrial

dispute was referred for adjudication on 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. The Labour Court by Award dated 31st January, 1996 has

observed that it was an admitted case of both the parties that

no chargesheet or show cause notice was issued to the

appellant before his dismissal. Labour Court also opined that

the appellant was not given any opportunity to show cause

why the penalty of dismissal should not be imposed and

therefore the Order of dismissal was bad in law. It was also

observed that principles of natural justice had been violated.

4. The management had made an allegation that on 31st

August, 1986 the workman was caught carrying 30 big soup

spoons in his shoes and therefore the dismissal was justified.

It was stated that the workman had admitted having

committed the theft in writing. The management at that stage

led evidence to prove and establish the charges before the

Labour Court. Reliance was heavily placed by the

respondent-management on the admission made by the

appellant on 31st August, 1986 and 1st September, 1986. On

the other hand, the stand of the workman was that his

signatures were obtained under force and coercion as he was

repeatedly intimidated and threatened with police action and

arrest. It was also stated by the workman that on 1st

September, 1986 he had gone to perform his duties but was

again pressurized, threatened and intimidated. It is the

admitted case of the parties that the alleged statements were

made by the workman before one Mr. G.C. Mishra. Mr. G.C.

Mishra was not examined by the management. On the other

hand, the respondent-management in 1994, nearly eight

years after the incident filed three affidavits of Mr. C.A.

Anthony, Mr. Rajan Chopra and Mr. J.C. Nayar in support of

the allegations against the appellant. Mr. C.A. Anthony in his

cross examination admitted that the documents executed by

the appellant were not written in his presence and do not bear

his signatures. He has stated that he had no personal

knowledge of the incident on 31st August, 1986. The second

witness Mr. Rajan Chopra stated that he had seen Mr.G.C.

Mishra questioning the appellant and had taken the appellant

to locker room where 30 big soup spoons were recovered

from his shoe. In his cross examination, Mr.Rajan Chopra

denied the suggestion that he was not present at the time of

the incident. He also denied the suggestion that in one shoe

no one can hide 30 big soup spoons. The third witness,

Mr.J.C. Nayar claimed that he along with Mr. Rajan Chopra

and Mr.G.C.Sharma had gone to the locker room and

thereupon in his presence 30 big soup spoons were

recovered from the shoe of the appellant. In the cross

examination, however, Mr.J.C.Nayar stated that he does not

identify signature of the workman and the workman had not

signed the documents in his presence. There is material

contradiction of the statement of Mr. J.C. Nayar and Mr.

Rajan Chopra. Both of them claimed that they were present at

the time when 30 big soup spoons were found concealed in

the shoe of the appellant. Mr. Rajan Chopra claims that the

workman had written a confessional note thereupon,

whereas Mr.J.C.Nayar claims that no document was

written and the document in question was already signed by

the workman. The evidence of the witnesses has not been

scrutinised and considered by the Labour Court. In fact the

Labour Court was required to examine the evidence in depth

and detail as a Court of first instance before reaching any

conclusion, as in the present case, no domestic enquiry had

been held. On the other hand, Labour Court accepted the

respondent-management's version on the ground that the

appellant had admitted his guilt and fault. We may note here

that Mr.Rajan Chopra had in the cross examination stated

that it was incorrect to suggest that in one shoe the appellant

could have hidden 30 big soup spoons and walked upto the

security check area. The big soup spoons were shown to us

in the Court. It is difficult to believe that a person could have

kept 30 big soup spoons in one or even both shoes and

walked. It is not the case of the respondent-management that

the soup spoons had been kept in the socks or in the pocket.

5. Normally, writ courts are reluctant to examine the findings of

facts recorded by industrial or labour courts. We do not want

to assess sufficiency or adequacy of evidence. But in the

present case, we find it difficult to believe accept the

contention of the respondent-management that 30 big soup

spoons could be put in a shoe and the appellant walked with

the said spoons in his shoe from the work area to the security

check area. The present case is also one in which the

respondent-management did not conduct any departmental

enquiry and had dismissed the workman without issuing him a

chargesheet or show cause notice.

6. Keeping in mind the entire facts and circumstances of the

case and the fact that the appellant has not worked with the

management since 1986 and was employed with the

management for about 6 years, we feel that the order of

reinstatement of the appellant-workman will not be justified

and monetary compensation would meet the ends of justice. It

is accordingly directed that the respondent-management will

pay Rs.60,000/- to the appellant towards full and final

settlement. The aforesaid payment will be made within a

period of four weeks from today failing which the interest will

be paid @ 10% p.a. from the date of judgment till payment.

7. The Writ Petition is accordingly disposed of in above terms.

No costs.

                                   (SANJIV            KHANNA)
                                                   JUDGE


                                 (DR. MUKUNDAKAM SHARMA)
                                           CHIEF JUSTICE
MARCH        18, 2008.
P