Shashi Bhushan Sharma vs M/S Indian Sewing Machines Co. ...
2011 Latest Caselaw 3918 Del

        IN THE HIGH COURT OF DELHI AT NEW DELHI
#7
                             W. P. (C) 6648/2000

        SHASHI BHUSHAN SHARMA                   ..... Petitioner
                      Through: Mr. Shankar Raju with Mr. Amit
                               Anand, Advocates.
                 Versus

        M/S INDIAN SEWING MACHINES CO.       ..... Respondent
                      Through: Mr. Kailash Vasdev, Senior
                               Advocate with Mr. Sanjay Kumar
                               Shandilya, Advocate.

        CORAM: JUSTICE S. MURALIDHAR
          1.    Whether Reporters of local papers may be
                allowed to see the judgment?                              No
          2. To be referred to the Reporter or not?                       No
          3. Whether the judgment should be reported in Digest? No

                              ORDER

12.08.2011

CM APPL Nos. 9365/2002 & 9366/2002

1. Mr. Kailash Vasdev, learned Senior counsel appearing for the

Respondent states that costs in the sum of Rs. 25,000/- was tendered by

way of cheque to the workman through counsel in January 2011 but was

not accepted. It was later sent by post but returned undelivered. It is

directed that the said sum be given to the Petitioner by way of a demand

draft on or before 23rd August 2011.

2. The applications are disposed of.

Review Petition No. 123 of 2002

3. Learned counsel for the parties state that this review petition does not

survive in view of the subsequent developments.

4. The review application is disposed of.

W. P. (C) 6648/2000 & CM APPL No. 13567/2002

5. The challenge in this writ petition is to an Award dated 6 th March 2000

passed by the Labour Court in I.D. No. 75 of 1986 holding that the

inquiry held by the Respondent management, M/s Indian Sewing

Machine Co. Ltd. („ISMCL‟), preceding the dismissal of the Petitioner

from service was just and fair. A further prayer is for a direction to

Respondent management to reinstate the Petitioner in service with effect

from 30th March 1985.

6. The Petitioner was appointed as Assistant Ware House Keeper in

Respondent No. 2 ISMCL with effect from 22nd March 1979. He was

promoted as Ware House Keeper with effect from 20th May 1982.

7. On 30th January 1985, the management issued to the Petitioner a

chargesheet listing out six items of charge as under:-

"1. You demanded and collected a sum of

Rs. 150/- from Mr. Gurwant Singh Kathuria, Agent of M/s Kanpur Delhi Goods Transport Co. (P) Ltd., Delhi, in respect of lorry loads booked to Kanpur under G. R. Nos. 422489 and 163465 (copies enclosed).

2. You demanded and collected a sum of Rs. 360/- from the said Mr. Gurwant Singh Kathuria in respect of 2 lorry loads booked to Madras/Cochin under L. R. Nos. 259782 and 259783 both dated 17.8.84 (copies enclosed), of Patel Roadways, Delhi.

3. You demanded and collected a sum of Rs. 45/- from the said Mr. Gurwant Singh Kathuria against G. R. 222212 dated 18.884 (copy enclosed) of M/s Kanpur Delhi Goods Transport Co. (P) Ltd.

4. You demanded and collected moneys from Mr. Suresh Dewan C & F Agent as under:

                (i)      Rs. 238/- on 3.9.84 in respect of a
                         consignment of accessory boxes carried by
                         him to Ludhiana.


                (ii)     You demanded money from Mr. Suresh
                         Dewan for allotting Accessories Box-



                          Assembly      contract,   when   there     was
                         proposal from Purchase & Distribution
                         Department, Bombay.


                5.       Under Invoice No. 1141 dated 15.9.84,

(copy enclosed), raised on M/s. R. K. Enterprises, Delhi, only 18 cartons, i.e., 2592 oil bottles (85ml each) were to be supplied whereas, you actually supplied or caused to be supplied 24 cartons i.e., 3456 oil bottles (85ml each) thus cheating the Company to the extent of excess oil bottles and appropriating the proceeds thereof.

6. Under invoice No. 983 dated 10.8.84 (copy enclosed) raised on M/s. Khanna Traders, Sadar Bazar, Delhi, only 12 cartons i.e. 1728 oil bottles (85ml each) were to be supplied whereas you actually supplied to the party 36 cartons, i.e. 5184 oil bottles (85ml each), thus cheating the company to the extent of the excess oil bottles and appropriating the proceeds thereof.

The surplus oil and oil bottles were generated by you by deliberately causing the oil bottles, particularly the ones supplied free with accessory boxes, under-filled and reporting short receipts of empty oil bottles and procuring supplies against such short receipts.

In respect of such supplies, however, you never used to raise regular invoices on the dealer or dealers concerned while effecting supplies but used to circumvent this requirement by calling the dealer in person to the warehouse and obtaining his acknowledgement."

8. The Petitioner was asked to show cause as to why an inquiry should

not be held against him for:

(i) dishonesty in connection with the business of the company.

(ii) commission of acts subversive of discipline.

9. The Inquiry Officer („IO‟), after due notice to the Petitioner, held

proceedings on 21st February 1985. The report of the IO records, inter

alia, that though the Petitioner stated that he had submitted an

explanation to the chargesheet, when asked by the IO whether he would

like to submit a copy to the IO, he replied in the negative. The

management examined four witnesses. The report of the IO records that

the Petitioner was given an opportunity to cross-examine all the four

witnesses. However, the Petitioner did not examine them. The Petitioner

confirmed having received the chargesheet and having understood its

contents. He reiterated that he had submitted an explanation but

answered in the negative when asked whether he would like to submit a

copy thereof. The management however, informed the IO that no such

explanation had been received from the Petitioner.

10. The report dated 8th March 1985 of the IO discussed each item of

charge and the evidence presented before the IO in support of each

charge, in great detail. The IO concluded that while charges at Serial

Nos. 1, 5 & 6 were proved, the charges at Serial Nos. 2, 3, & 4 were not

proved. On the basis of the report of the IO, the managing director of

ISMCL on 26th March 1985 dismissed the Petitioner from service.

11. The resultant dispute was referred for adjudication to the Labour

Court in ID No. 75 of 1986 which held the inquiry, held prior to the

dismissal of the Petitioner, to be fair and proper. On the said issue, the

Labour Court examined the evidence in great detail. It was held that the

management had given 15 days‟ time to arrange for a co-worker to

represent him and also witnesses in its defence in the inquiry which was

held on 15th February 1985. The inquiry proceedings were not conducted

on that date but postponed to 21st February 1985. In his cross-

examination, the Petitioner admitted that he had signed the inquiry

proceedings and received a copy of the same. The Petitioner had at no

point protested to the IO or the management about the inquiry being

conducted contrary to the principles of natural justice or in an improper or

unfair way. The Labour Court held that the Petitioner was fully

conversant with the charges and the material against him and had cross-

examined the witnesses produced by the management at length. The IO

held the charges at Serial Nos. 1, 2 and 4(i) & (ii) to be proved. The

remaining charges were held not to be proved, by giving the benefit of

doubt to the workman. The fact that the inquiry was concluded in one

day was held not to have caused any prejudice to the Petitioner. The non-

examination of Mr. Kartar Singh was held not to have vitiated the

inquiry. It was, therefore, held by the Labour Court that the inquiry was

fair and proper.

12. Mr. Shankar Raju, learned counsel appearing for the Petitioner

reiterated that the Petitioner was not given an effective opportunity to

defend himself against the charges. In particular, he was not permitted to

file a statement of defence or lead evidence.

13. However, this Court finds on a perusal of the record that the Petitioner

in fact declined to provide the IO with a copy of the defence statement

and also declined to lead evidence apart from examining himself.

14. It was next submitted that sufficient time was not given to the

Petitioner to prepare for the cross-examination of the management

witnesses since the list was not given to him in advance. Moreover, the

entire cross-examination of the witnesses was concluded on one single

day. Therefore, an effective opportunity of cross-examining the

management witnesses was not given.

15. There is no merit in the above contention as well. In his cross-

examination in the Labour Court, the Petitioner admitted that he had

received copies of the proceedings and in fact had cross-examined each of

the management witnesses. He had at no point protested to the IO about

the procedure adopted. It appears that at that stage, the Petitioner did not

have any grievance.

16. In any event, even assuming that the Petitioner did not get the

opportunity to lead evidence, he could have examined witnesses in the

Labour Court in support of his claim or at least filed an application before

the Labour Court asking it to summon some of the witnesses including

Mr. Kartar Singh. The Petitioner did not do so and therefore, missed

another opportunity of producing evidence before the Labour Court to

substantiate his claim. In the circumstances, this Court is unable to

accept the submission made on behalf of the Petitioner that great

prejudice was caused to the Petitioner on account of the entire inquiry

having been concluded on one single day.

17. The last point urged by Mr. Shankar Raju was based on the decision

of the Supreme Court in Managing Director, ECIL, Hyderabad v. B.

Karunakar (1993) 4 SCC 727. In particular, he relied upon the

observations in para 30(iv) in which it was held that the right to make

representation to the disciplinary authority against the findings recorded

in the inquiry report is an integral part of the opportunity of defence

against the charges and it is a breach of principles of natural justice to

deny the said right. Further, it was observed that this rule should apply to

employees in all establishments "whether Government or non-

Government, public or private".

18. In the present case, prior to the impugned order dismissing the

Petitioner from service, he was not furnished with a copy of the inquiry

report. The second grievance is that the order of dismissal refers to the

past record of the Petitioner having been taken into account by the

management. It is submitted that this past record could not be used to

prove the charges against the Petitioner and therefore, the process of

awarding the punishment of dismissal was unfair. Lastly, it is submitted

that in the chargesheet itself, it was stated that the Petitioner if found

guilty of the said charges would be dismissed from service. It is

accordingly submitted that the management had already made up its mind

about the punishment even before the inquiry commenced and, therefore,

the inquiry proceedings were an empty formality.

19. As regards the submission concerning non-furnishing of the inquiry

report to the Petitioner, the consequences would be that the proceedings

will have to be relegated to the stage at which they were prior to the

issuance of the order of dismissal. Then again all that would be done is

that the management would issue to the Petitioner a show cause notice on

the penalty imposed asking him to make his representation against the

inquiry report. Considering the passage of time, it does not appear to be

expedient to relegate the matter to the disciplinary authority of the

management at this stage. If the Labour Court could exercise its powers

under Section 11A of the Industrial Disputes Act, 1947 („ID Act‟) and

interfere with the quantum of punishment, upon finding it to be shocking

to the judicial conscience, then this Court too can determine if the

punishment awarded to the Petitioner was appropriate.

20. The Petitioner has been unable to outline the circumstances that

would justify the award of a lesser punishment to the Petitioner. This is

particularly true in the light of the charges which have now been held to

be proved against the Petitioner. Charges at Serial Nos. 1, 5 & 6 touch

upon the issue of dishonesty. This Court is unable to find any perversity

in the findings of the IO as regards these charges. In any event,

considering that the Petitioner has been held guilty in three of the six

charges which substantiate the management‟s plea that he acted

dishonestly, the punishment of dismissal cannot be said to be

disproportionate. If the ultimate punishment awarded to the Petitioner

does not call for interference, no purpose would be served relegating the

entire matter to the management for a fresh determination as to the

quantum of punishment.

21. For all the above reasons, this Court finds no ground having been

made out for interference with the impugned Award of the Labour Court.

22. The writ petition and the pending application are dismissed.

S. MURALIDHAR, J.

AUGUST 12, 2011 ha