Delhi High Court
Shri Vinod Kumar Sharma vs The Delhi Consumers Cooperative ... on 31 March, 2016
Author: I. S. Mehta
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ Judgment delivered on: March 31, 2016
% W.P.(C) No. 6771/2004
SHRI VINOD KUMAR SHARMA ..... Petitioner
Through: Mr. Sandeep Sharma and Ms. Risha
Mittal, Advocates.
versus
THE DELHI CONSUMERS COOPERATIVE WHOLESALE
STORE LIMITED
.....Respondent
Through: Ms. Sujata Kashyap and Mr. M. K.
Sharma, Advocates.
CORAM:
HON'BLE MR. JUSTICE I.S. MEHTA
JUDGMENT
I. S. MEHTA, J.
1. The present petitioner, i.e., Shri Vinod Kumar Sharma
(hereinafter referred to as the „petitioner-workman‟) has preferred the
present Writ Petition under Article 226 and Article 227 of the
Constitution of India for setting aside the impugned Award dated
01.10.2003 passed by the Presiding Officer, Labour Court No. V,
Karkardooma, Delhi (hereinafter referred to as the „learned Labour
Court/Industrial Adjudicator‟) in I.D. No. 320/1991.
2. The brief facts stated are that the petitioner-workman, i.e., Shri
Vinod Kumar Sharma, was working under the respondent-
management, i.e., Delhi Consumers Cooperative Wholesale Store Ltd.,
w.e.f. 05.07.1985 as a senior salesman, posted at liquor shop at I.N.A
market, New Delhi and was assisted by other employees, i.e., Shri
Dalip Singh, Shri Kamleshwar, Shri Sunil Bhagat and Shri Nam Singh
(helper). Shri J.K. Kaushik was the Manager at the shop. On
09.06.1989, while the petitioner-workman was on duty at the shop,
Shri J.K. Kaushik found that the petitioner-workman gave a case of
whiskey to one person and after receiving the amount, the petitioner-
workman kept the same in his pocket instead of depositing the same in
the cash box. Shri J.K. Kaushik further made inquiries from the
petitioner-workman and found that the petitioner-workman had also
swindled an amount of Rs. 5000/-. Apart from the theft committed by
the petitioner-workman in respect of cash, he was also found
unauthorisedly selling crates of whiskey. Thereafter, being caught red
handed by Shri J.K. Kaushik, the petitioner-workman admitted his
guilt about the theft of cash and unauthorized sale of whiskey by letter,
i.e., Ex. MW1/7. The petitioner-workman was issued with a charge-
sheet dated 11.08.1989. Thereafter, an inquiry was conducted wherein
the inquiry officer, i.e., Shri Sunil Malhotra, found the petitioner-
workman to be guilty of the charge. Consequently, the petitioner-
workman was ordered by respondent-management to explain why
suitable action should not be taken against him and after going through
the reply and thoughtful consideration, the petitioner-workman was
dismissed from service vide order No. DCCWS/ADM/Estt./90/1043-
51 dated 07.09.1990. The petitioner-workman thereafter proceeded
against his dismissal order by raising an Industrial Dispute before the
conciliation officer but since no conciliation was effected, the matter
was referred to the learned Industrial Adjudicator vide notification No.
F.24(2310)/91-Lab./26729-34 dated 26.09.1991 on the following term
of reference:-
"Whether the dismissal from service of Shri Vinod
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. On the pleadings before the learned Industrial Adjudicator, the
following issues were framed:
"i. Whether a proper and valid enquiry was held?
ii. Relief in terms of reference."
and the learned Industrial Adjudicator treated issue No. 1 as
preliminary issue, and vide order dated 22.01.2001 held that the
inquiry was not fair and the same was vitiated. Thereafter, the
respondent-management preferred to lead the evidence before the
learned Industrial Adjudicator on the issue of inquiry and moved an
application dated 27.08.1998, which was allowed by the learned
Industrial Adjudicator and the parties were given fair opportunity to
adduce evidence on issue of inquiry and its rebuttal.
4. Thereafter, the learned Industrial Adjudicator after giving fair
opportunity to both the parties to lead the evidence on respective
issues, heard the parties on the matter in controversy and passed the
impugned Award dated 01.10.2003. Hence, giving rise to the present
Writ Petition.
5. The learned counsel on behalf of the petitioner-workman has
pointed out that the learned Industrial Adjudicator has misdirected
itself by adopting perverse approach in the matter of appreciation of
the materials available and without following the guiding principles in
regard to the appreciation of the materials placed during domestic
inquiry as laid down by the Apex Court in various cases.
6. The learned counsel for the petitioner-workman has further
submitted that the learned Industrial Adjudicator overlooked the
material evidence on record, i.e., letter dated 12.06.1989, written by
the petitioner-workman to the respondent-management stating therein
that he was forced to write the letter, i.e., Ex. MW1/7 and travelled
beyond the judgement, i.e., Anna Transport Corporation Ltd., Salem
vs. The Presiding Officer, Labour Court, Salem and R. Thangavel,
MANU/TN/1554/2002.
7. The learned counsel on behalf of the petitioner-workman has
further submitted that instant is a case where the allegation against the
petitioner-workman is of theft, therefore, the standard of proving the
charge is higher and the same is to be proved by the one who alleges
the charge. The reliance is placed upon the judgment in the case of P.
B. Rocho vs. Union of India (UOI) and Ors., MANU/KE/0156/1984.
8. On the other hand, the learned counsel on behalf of the
respondent-management has submitted that the finding given by the
learned Industrial Adjudicator is correct and the same is based on the
facts and law which requires no interference. It is further submitted
that under Article 226 and Article 227 of the Constitution of India, the
finding given by the learned Industrial Adjudicator cannot be re-
appreciated, and, therefore, the present Writ Petition is liable to be
dismissed.
9. The allegation against the petitioner-workman by the
respondent-management is that firstly, the petitioner-workman has
stolen the amount of Rs. 5000/- from the cash box while he was on
duty at I.N.A. branch of IMFL wine shop, New Delhi. Secondly, on
09.06.1989, the petitioner-workman was caught red handed by the
incharge/complainant Shri J.K. Kaushik of the I.N.A. branch while he
was unauthorisedly selling the cases of whiskey. Thirdly, on
verification of the stock in the aforesaid shop, it was found that the six
cases of IMFL were found short and lastly, during the inquiry the
petitioner-workman admitted the guilt in writing, which is Ex.
MW1/7.
10. The contention of the learned counsel for the petitioner-
workman that the finding of the learned Industrial Adjudicator is
perverse does not seem to be correct as the respondent-management
opted to lead the evidence before the learned Industrial Adjudicator to
prove the misconduct and the petitioner-workman participated in the
said proceedings and both the parties were given fair opportunities to
lead the evidence before the learned Industrial Adjudicator. Since the
impugned Award is based on the evidence led before the learned
Industrial Adjudicator where fair and proper opportunity was given to
both the parties, it cannot be said that the finding given by the learned
Industrial Adjudicator on the basis of evidence adduced before him
was perverse. The learned Industrial Adjudicator had examined the
complainant, who was witness to the incident dated 09.06.1989. The
complainant/witness, i.e., Shri J.K. Kaushik, had supported the version
of the respondent-management for committing the misconduct. The
plea taken by the petitioner-workman that the letter, i.e., Ex. MW1/7,
was forcefully obtained as the same was disclosed by him in his
subsequent letter dated 12.06.1989 seem to be a false plea taken for
want of rebuttal evidence of Shri Dalip Singh, Shri Kamleshwar, Shri
Sunil Bhagat and Shri Nam Singh who were also the employees at the
liquor shop.
11. The contention of the learned counsel for the petitioner-
workman that the allegation against the petitioner-workman is that of
theft and the same has not been proved by respondent-management in
terms of the judgement, i.e., P. B. Rocho vs. Union of India (UOI)
and Ors., MANU/KE/0156/1984 is not convincing.
12. In the instant case, there is an allegation by the respondent-
management against the petitioner-workman of theft and a similar
allegation of misappropriation of cash amounting to Rs. 1500/-, Rs.
1000/- and Rs. 150/-. The respondent-management examined the
complainant/witness to the incident, i.e., Shri J.K. Kaushik, in person
whose oral statement is on record and directed qua against the theft,
seen through his naked eye in his presence and the subsequent conduct
of the petitioner-workman by tendering an apology through letter, i.e.,
Ex. MW1/7, to him wherein the petitioner-workman has admitted the
allegations alleged by the respondent-management, which leaves no
doubt in discharging the onus of proving of required standard of the
balance of probabilities in the instant disciplinary proceedings to show
that the petitioner-workman has misconducted as admitted in the letter,
i.e., Ex. MW1/7, losing the faith of the respondent-management, and
the learned Industrial Adjudicator has rightly appreciated the material
evidence on record.
13. The pointing out of the petitioner-workman that the learned
Industrial Adjudicator appreciated the evidence on different occasions
differently and reached to the contrary conclusion which leads to
perversity and illegality in the impugned Award does not seem to be
correct.
14. Bare perusal of the record ipso facto clarifies that the learned
Industrial Adjudicator framed two issues in the presence of both the
parties on 19.04.1993, which is reproduced as under;
"i. Whether a proper and valid enquiry was held?
ii. Relief in terms of reference."
15. Both the parties after framing of the aforesaid issues treated the
issue No.1 to be the preliminary issue and led the evidence. The
respondent-management has examined the inquiry officer, i.e., Shri
Sunil Malhotra, as MW1 and the petitioner-workman examined
himself as WW1.
16. During the adjudication on issue No.1 before the learned
Industrial Adjudicator, the petitioner-workman has raised the objection
that the inquiry carried out by the inquiry officer was not proper and
the statements of the witnesses alleged to be recorded in presence of
the inquiry officer were not recorded factually by the inquiry officer in
presence of the inquiry proceedings. Consequently, three witnesses
gave common statement, which means the statement recorded during
the inquiry proceedings was nothing but the statement recorded at the
back of the petitioner-workman.
17. Another objection raised by the petitioner-workman before the
learned Industrial Adjudicator was that the witnesses examined during
the inquiry proceedings were not cross-examined by the petitioner-
workman, rather it was the inquiry officer himself who cross-
examined the management witnesses as if he is working as an agent of
the respondent-management.
18. The non cross-examination to the management witnesses by the
petitioner-workman has been admitted by the inquiry officer, i.e., Shri
Sunil Malhotra as MW1, which ultimately resulted in the vitiation of
the domestic inquiry and the respondent-management opted for
proving the misconduct of the petitioner-workman before the learned
Industrial Adjudicator himself only vide order dated 22.01.2001
leaving behind adjudication in terms of the reference.
19. The only recourse left out in the adjudication before the parties
was whether the petitioner-workman has misconducted as alleged
before the learned Industrial Adjudicator in terms of the reference.
20. The evidence led by both the parties twice was firstly, issue
pertaining to the domestic enquiry, i.e., whether the inquiry officer
carried out the domestic inquiry properly after giving due and fair
opportunities to both the parties in relation to the incident and
secondly, both the parties were given opportunity to prove the
allegation of the misconduct in presence of the learned Industrial
Adjudicator himself pertaining to the alleged misconduct.
21. The respondent-management examined the inquiry officer, i.e.,
Shri Sunil Malhotra, whose deposition is not qua the incident but
pertains only to the manner of carrying out his domestic inquiry,
whereas the witness examined MW2, i.e., Shri J.K. Kaushik, who is
the author of the written complaint Ex. MW1/6 and witness to the
incident dated 09.06.1989.
22. The deposition of MW2, i.e., Shri J.K. Kaushik is in relation to
the manner of misconduct committed by the petitioner-workman in his
presence as well as other employees, i.e., Shri Dalip Singh, Shri
Kamleshwar, Shri Sunil Bhagat and Shri Nam Singh posted at the said
liquor shop. Therefore, the aforesaid set of evidence cannot be said to
be contradictory to each other.
23. The MW2, i.e., Shri J.K. Kaushik, is witness to the incident
dated 09.06.1989 and author of the complaint, i.e., Ex. MW1/6 as well
as witness to the manner of the misconduct committed by the
petitioner-workman.
24. As per MW2, i.e., Shri J.K. Kaushik, he has seen the petitioner-
workman selling a case of whiskey to a customer and putting the sale
amount in his personal pocket on 09.06.1989 and after catching him
red-handed at the said liquor shop, the petitioner-workman made the
admission of stealing the cases of whiskey from the shop on different
occasions and the petitioner-workman admitted the same in his
presence.
During the cross-examination of MW 2, i.e., Shri J.K. Kaushik,
he has suggested that the letter, i.e., Ex MW1/7 was written in his
presence.
25. The letter, i.e., Ex. MW1/7, is made in favour of the
complainant, i.e., Shri J.K. Kaushik, who was then the incharge of the
said liquor shop, wherein the petitioner-workman has admitted that he
has stolen cash on three occasions amounting to Rs. 1500/-, Rs. 1000/-
and Rs. 150/- from the cash counter and also admitted that he has sold
two cases of whiskey and further admitted that on 09.06.1989 he was
caught red-handed.
26. The statement of MW2 is directed towards the misconduct on
the part of the petitioner-workman and his subsequent letter dated
12.06.1989, i.e., Ex. WW1/3, is a result of afterthought version which
smells the false plea taken and nothing else in presence of his own
suggestion that the letter, i.e., Ex. MW1/7 was written in presence of
MW2, i.e., Shri J.K. Kaushik, which is reproduced as under:
"It is correct that the worker wrote the letter MW1/7 in
my presence."(Underlining Supplied)
27. The plea of the learned counsel of the petitioner-workman that
the impugned Award is perverse loses significance in presence of the
ocular statement of MW2, i.e., Shri J.K. Kaushik, and the complaint,
i.e., Ex. MW1/6, and the admission letter, i.e., Ex. MW1/7.
28. The judgment relied upon by the petitioner-workman in the case
of Anna Transport Corporation Ltd., Salem vs. The Presiding
Officer, Labour Court, Salem and R. Thangavel (Supra) loses its
significance in the present context as the petitioner-workman was a
senior salesman posted at liquor shop at I.N.A market, New Delhi was
found indulging in stealing and misappropriation of respondent-
management's money, which amounts to a serious misconduct and
requires no interference in quantum of punishment awarded by the
respondent-management. The reliance is placed on the judgment of the
Apex Court in the case of Depot Manager, A.P.S.R.T.C. vs. Raghuda
Siva Sankar Prasad, AIR 2007 SC 152 wherein the Apex Court has
made the following observation:
"As held by this Court, in a catena of judgments that
the loss of confidence occupies the primary factor and
not the amount of money and that sympathy and
generosity cannot be a factor which is permissible in
law in such matters. When the employee is found guilty
of theft, there is nothing wrong in the Corporation
losing confidence or faith in such an employee and
awarding punishment of removal. In such cases, there
is no place of generosity or place of sympathy on the
part of the judicial forums and interfering with the
quantum of the punishment."
29. As discussed above, this Court finds no infirmity under Article
226 and Article 227 of the Constitution of India to interfere in the
impugned Award dated 01.10.2003 passed in I.D. No. 320/1991 and
the reliance is placed on the judgment of the Apex Court in the case of
Raj Kumar Dixit vs. Vijay Kumar Gauri Shanker, 2015 (146) FLR
158.
30. Consequently, the present Writ Petition is dismissed. The
Lower Court record be sent back with a copy of this Judgment. No
order as to costs.
I.S.MEHTA, J
MARCH 31, 2016
dc‟
