Sh. O.P. Kaushik vs The Management Of Indian Red Cross ...
2010 Latest Caselaw 2126 Del

                 *IN THE HIGH COURT OF DELHI AT NEW DELHI

+                                    WP(C) 202/1997

%                                                   Date of decision: 22nd April, 2010

          SH. O.P. KAUSHIK                               ..... PETITIONER
                          Through: Petitioner in person.

                                         Versus

          THE MANAGEMENT OF INDIAN RED CROSS
          SOCIETY & ORS.                         ..... RESPONDENTS
                         Through: Mr. Ayushya Kumar, Advocate

CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

1.        Whether reporters of Local papers may                      No
          be allowed to see the judgment?

2.        To be referred to the reporter or not?                     No

3.        Whether the judgment should be reported                    No
          in the Digest?


RAJIV SAHAI ENDLAW, J.

1. The petitioner by this writ petition impugns the order dated 18th

November, 1995 and the award dated 13th August, 1996 of the Labour Court in

the following industrial dispute referred at the instance of the petitioner:

"Whether the dismissal from services of Sh. O.P. Kaushik is illegal and / or unjustified, and if so, to what relief is he entitled and what directions are necessary in this respect?"

2. The Labour Court vide order dated 18th November, 1995 decided first the issue:

"Whether the enquiry held by the management is not fair and proper?

3. The petitioner challenged the enquiry on following counts:-

(i) The appointment of the Enquiry Officer was illegal in view of the explanation already submitted by the petitioner in response to the memorandum issued to him.

(ii) That he was not supplied with copies of the documents demanded by him.

(iii) That the witnesses were examined at his back and he was not given the opportunity to cross examine the witnesses.

4. The Labour Court in the order dated 18th November, 1995 has found that:

(i) A memorandum dated 17th November, 1979 was issued to the petitioner asking the petitioner to explain the circumstances of the complaint against him. The petitioner however coming to know of the complaint absented himself from duties from 17th November, 1979 for about a month. Ultimately, communication dated 4th December, 1979 had to be sent by registered post to his residence and which was duly received at his residence by one Ms. Veena Sharma but no response was given thereto. It was in these circumstances, that a second communication was served on him vide memorandum dated 7th February, 1980.

(ii) That a perusal of the order sheet of the enquiry proceedings shows that the Enquiry Officer had called for the documents which had been demanded by the petitioner; the petitioner also in his statement admitted that he had received the memos whereby he was asked to submit his list of witnesses as well as documents relied upon by him; that the petitioner was sent copies of list of

documents / witnesses filed by the presenting officer and was advised that if he wanted to inspect the records of enquiry he could do so; the petitioner was also intimated of the next date of hearing.

(iii) The petitioner inspite of receipt of memo dated 16th April, 1981 giving him final opportunity to participate in the enquiry, though appeared before the enquiry officer on 22nd April, 1981 but left the proceedings after about five minutes and thereafter the witnesses of the management were examined. The petitioner, at about 16:00 hours only on the same day, submitted an application complaining of the examination of witnesses behind his back.

5. The Labour Court has thus held:

a. that the petitioner was given full opportunity to examine the documents relied upon by the management and was intimated the specific place, time and date at which he could make the inspection; the petitioner however avoided to make inspection of the documents.

b. that if the petitioner himself did not avail the opportunity, he could not make a grievance.

c. that the petitioner, instead of cooperating in the enquiry proceedings, was resorting to tactics to delay the same.

d. that there was no mala fide or illegality in the Enquiry Officer conducting the proceedings in the absence of the petitioner inasmuch as the petitioner had himself boycotted the proceedings and left the proceedings as aforesaid.

e. that the petitioner was fully aware of the proceedings being conducted by the Enquiry Officer and even then he intentionally walked out of the proceedings.

f. that there had been no denial of the principles of natural justice and the petitioner had been given full opportunity and the petitioner is himself to be blamed for the grievances made.

6. The Labour Court accordingly vide order dated 18th November, 1995

decided the issue aforesaid in favour of the respondent employer and held that

the enquiry conducted by the management was fair and proper and in accordance

with the principles of natural justice. Axiomatically, vide award dated 13th

August, 1996, the reference was decided in favour of the respondent employer

and against the petitioner.

7. At this stage, the nature of the charge against the petitioner may also be

recorded. The petitioner at the contemporaneous time was the Store Keeper of

the respondent Indian Red Cross Society. The respondent in or about November,

1979 received a letter from one M/s Malhotra Book & Stationery Stores stating

that the cash memo issued by the respondent to the said M/s Malhotra Book and

Stationery Stores for sale by the respondent of certain charts etc. did not bear any

number and seeking a cash memo bearing a number to avoid objection by

Income Tax & Sales Tax Authorities. It was the case of the respondent that upon

receipt of the said communication, it was found that no such sale had been

recorded in the records of the respondent and the sale price of the said cash

memo, paid by the said M/s Malhotra Book & Stationery Stores had also not

been credited in the accounts of the respondent. This led the respondent to

conduct further investigation into the stores and which revealed some other cases

of misappropriation of goods and accordingly six charges were framed against

the petitioner of which the enquiry officer held four to have been proved and the

disciplinary authority of the respondent accepted the said report of the enquiry

officer and imposed the penalty of dismissal from service on the petitioner. It

would thus be seen that the charges against the petitioner are serious, of

misappropriation of funds and defalcation of accounts.

8. Rule was issued in this writ petition on 17th October, 1997. Vide order

dated 9th March, 1999, the provident fund of the petitioner with up-to-date

interest was directed to be paid to the petitioner. On 6th January, 2000, it was

recorded that except gratuity, rest of the terminal benefits had been released by

the respondent to the petitioner. On 4th September, 2000, it was informed that

gratuity, if payable to the petitioner, was in the sum of Rs.4,000/- and interest

accrued thereon till that date was Rs.14,483/-. This Court on 1st December, 2000

held that no direction for payment of gratuity could be issued as the same was

subject matter of the writ petition. The petitioner appearing in person filed

written submissions in the Court on 5th September, 2005. The petitioner

appearing in person at the time of hearing also, has relied upon the said written

submissions only and after the conclusion of hearing, has also handed over in the

Court an application stating further facts.

9. It is significant that the petitioner has in the writ petition not denied the

issuance of the cash memo aforesaid to M/s Malhotra Book & Stationery Stores.

He pleads that it was intended to be an "Estimate" and was wrongly labelled as a

cash memo. However, a perusal of the said document filed by the petitioner as

Annexure-P3 shows that the same has been formally prepared on the printed cash

memo of the respondent society and thus the occasion for any mistake therein did

not arise. I have myself also gone through the copies of the enquiry proceedings

filed by the petitioner before this Court and from a perusal of the same, I am

satisfied that there is no error in the order dated 18th November, 1995 of the

Labour Court holding the enquiry to be legal and valid and in compliance with

principles of natural justice.

10. The Supreme Court in Delhi Cloth & General Mills Company Vs. Ludh

Budh Singh, AIR 1972 SC 1031 held that if the Industrial Tribunal is satisfied

that the enquiry proceedings have been held properly and are valid, the question

of going into the merits of the charges does not arise. It is only when the Tribunal

holds that the enquiry proceedings have not been properly held, that it derives

jurisdiction to deal with the merits of the dispute and in such a case it has to

consider the evidence adduced before it by the management and decide the

matter on the basis of such evidence. The Industrial Tribunal in the present

case has held that the departmental enquiry held prior to the order of dismissal of

the petitioner was valid, legal and in accordance with the principles of natural

justice. This Court is thus to only see whether the order of the Tribunal on this

aspect requires interference by this Court.

11. The petitioner in his written submissions on this aspect has urged:

(i) That the memo dated 4th December, 1979 was not issued to him.

(ii) That the finding that the petitioner was indulging in dilatory tactics in the enquiry proceedings is incorrect.

(iv) That the petitioner was permitted to inspect the documents only after his evidence had been led.

(v) That the enquiry officer was influenced by the Evidence Act.

12. All the aforesaid are questions of fact. The Labour Court has found that

what the petitioner is claiming to be his evidence was merely a record of his

contentions. This Court in the exercise of writ jurisdiction cannot act as an

Appellate Authority; the said jurisdiction is circumscribed and confined to

correct errors of law or procedural errors, if any, resulting in manifest

miscarriage of justice or violation of principles of natural justice. Judicial review

is not akin to adjudication on merit by re-appreciating the evidence as an

Appellate Authority (see Government of Andhra Pradesh Vs. Mohd. Narsullah

Khan AIR 2006 SC 1214). In Sadhu Ram Vs. Delhi Transport Corporation

AIR 1984 SC 1467, it was held that jurisdiction under Article 226 in such

matters has to be exercised with great circumspection. It was held that it is not

for the High Court to constitute itself into an appellate court over Tribunals

constituted under special legislations to resolve disputes of a kind qualitatively

different from ordinary civil disputes and to re-adjudicate upon questions of fact

decided by those Tribunals. No such case is made out here. The charge against

the petitioner was of misappropriation and defalcation of accounts. The

respondent society was fully justified in losing confidence in the petitioner on the

said charges. No injustice is found to have been meted out to the petitioner. The

Supreme Court in Bharat Heavy Electricals Ltd. Vs. M. Chandrasekhar Reddy

AIR 2005 SC 2769, after considering a number of judgments, reiterated that

when an employer loses confidence in his employee, particularly in respect of a

person who is discharging an office of trust and confidence, there can be no

justification for the Courts to interfere. The petitioner in the present case was the

Store Keeper and which is a position of trust and confidence and does not

deserve any sympathy. Any indulgence shown to the petitioner would not only

be embarrassing and inconvenient to the respondent society but would also be

detrimental to the discipline and security in the respondent establishment.

13. It is not the case of the petitioner that he was victimized or that there were

any other ulterior reasons / motives for the respondent society to so proceed

against him. This is yet another circumstance which leads me to hold that no

inference is called for in this proceeding. There is no merit in the petition; the

same is dismissed. No order as to costs.

RAJIV SAHAI ENDLAW (JUDGE) 22nd April, 2010 gsr