C. Joseph vs Divisional Controller, K.S.R.T.C.

A.N. Venugopala Gowda, J.—Challenge in this writ petition is to an award passed by the Labour Court rejecting a claim petition filed by the petitioner as against an order of dismissal from service. Petitioner/workman joined service in KSRTC as Helper-B. He was working as Assistant Helper B at Gundlupet depot. On 2.10.2003 at about 5.45 a.m. while he was about to leave the depot, it was found that he was stealthily carrying a new tube in a hand bag and was caught by the Security Personnel. The Depot Manager having been informed of the aforesaid aspect, submitted a report to the Disciplinary Authority. Based on the report of the Depot Manager, the Disciplinary Authority issued articles of charge dated 5.12.2003, for which a reply dated 14.12.2003 was submitted, wherein, the allegation was denied by the workman. A domestic enquiry was ordered by appointing a retired District Judge as an Enquiry Officer. Before the Enquiry Officer, the Depot Manager, Security Guard, Junior Assistant and a Senior Security Guard were examined by the Management to substantiate the allegation made against the workman, in the articles of charge dated 5.12.2003. The workman submitted defence statement dated 22.7.2005. The enquiry having been concluded, a report was submitted, wherein, it was found that the workman is guilty of the charge levelled against him. A copy of the said report was furnished along with the show cause notice to the workman, who submitted a reply dated 16.8.2004. Considering the record, Disciplinary Authority passed an order dated 8.6.2006 dismissing the workman for the charged misconduct of committing ''theft1 of Management''s property.

The same was assailed by the workman by filing a claim petition u/s 10(4A) of the Industrial Disputes Act, 1947 ("the Act" for short) in the Labour Court at Mysore. 4 issues were raised based on the pleadings of the parties. Both sides adduced evidence, both oral and documentary. Labour Court by its order/award dated 17.3.2011 arrived at the conclusion that there was sufficient evidence before the Enquiry Officer to hold the workman guilty of the charges levelled against him. The finding of misconduct recorded by the Enquiry Officer was found to be justified. Considering the issue, whether the punishment imposed is grossly disproportionate, the Labour Court found that the punishment which has been imposed is proportionate to the misconduct committed by the workman. As a result, the claim petition was rejected. This writ petition is directed against the said award.

Sri M.C. Pyati, learned counsel, by placing reliance on the decisions reported in Bhagwati Prasad Dubey Vs. Food Corporation of India and Another, contended that the finding of misconduct recorded against the petitioner is based on no evidence and the order of dismissal passed is arbitrary. He submitted that the Labour Court has not considered the matter in the correct perspective and its findings are perverse and illegal. He further submitted that the non-exercise of power u/s 11A of the Act by the Labour Court is unjustified, since the petitioner had served the Corporation for nearly 32 years and hence, there is substantial failure of justice.

Sri Hareesh Bhandary T, learned counsel for the respondent on the other hand, by taking me through the record of the case and placing reliance on a decision reported in Air India Limited Vs. P.K. Upadhyay and Another, made submissions in support of the findings recorded in the impugned Award.

Perused the record. The point for determination is, whether the impugned award is perverse and illegal?

Before the Enquiry Officer, MW. 1 Lakshme Gowda has said that he was the Gundlupet Depot Manager and the accused/workman was Helper-B in the Depot and that Chandrashekar/MW. 2, Security Guard gave a statement as per Ex. M1, based on which he sent the report Ex. M2.

MW. 2/Chandrashekar has said that on the early morning of 2.10.2003 at about 5.45 a.m. when the workman was about to go out of the depot, he checked the workman who was possessing a hand bag and when the same was checked, it was found that the bag had in it a new tube measuring 900 x 20 and the tube belonged to the Corporation. He has further said that when questioned, the workman fumbled and hence, he retained the workman in the depot and on arrival of the higher authority, he informed the fact and he gave the report Ex. M1, which was signed by other employees and according to him, value of the tube was about Rs. 504. He has further said that the workman was on duty on the previous day from 4.00 p.m., till 1.00 a.m., in the mid night and there is a practice of the employee whose shift ends in the mid night, to sleep in the depot.

MW. 3 Sriram has said that he is working as Junior Assistant in Gundlupet depot and he knows the accused/workman. He has stated that he came to duty at 5.45 a.m. and MW. 1/Chandrashekar brought the bag which was in the hand of the accused/workman and it was found that there was a new tube in it. He has said that the Depot Manager came at 6.30 a.m. and MW. 1 informed about the incident. He has signed Ex. M1 and has said that the value of the new tube is Rs. 504. He has seen the new tube which was found in the hand bag of the accused/workman.

MW. 4 G.N. Nagesh has said that he was working in the Security Assistant in Gundlupet depot and the accused/workman was working as Helper-B and on 2.10.2003, he went to the depot at 6.30 a.m., to take the charge and found in security branch, his colleague Chandrashekar (MW. 2) was with the accused and when the hand bag of the accused was checked, it had in it a new tube, which fact was immediately informed to the Depot Manager and a mahazar Ex. M1 was prepared. His signature on Ex. M1 has been identified as Ex. M1(b). He has said that no police complaint was filed against the accused/workman and that the accused/workman refused to put his signature to the mahazar Ex. M1.

The enquiry officer has taken note of the evidence of the said witnesses and upon appreciating record of enquiry, has arrived at the conclusion that the accused had committed theft of new tube which was found in the hand bag of the accused at 5.45 a.m. on 2.10.2003, when the accused was about to leave the depot and was caught red handed.

Finding of the Enquiry Officer was accepted by the Disciplinary Authority. The Labour Court taking notice of the oral and documentary evidence brought on its record, after appreciation of the material placed on its record by both the parties has concluded that the findings of the enquiry officer are well founded and do not call its interference.

Keeping in view the aforesaid aspects i.e., evidence which has been brought on record by the parties, the findings recorded by the Labour Court cannot be termed as perverse or illegal. Having perused the evidence which has been brought on record of the Labour Court, I do not find any error on the part of the Labour Court in reaching the finding that the workman has committed theft of the employer''s property.

Taking into consideration the materials brought on record by the Management, decision taken by the Management to dismiss the petitioner from service does not suffer from any infirmity and could not have been successfully impeached and, therefore, the Labour Court was justified in upholding the action of the Management. The contention that the findings recorded against the petitioner is based on no evidence is devoid of merit. The decisions on which Sri M.C. Pyati placed reliance have no application to the instant case, in view of the material evidence which has been brought on record of the case.

The alternate contention of Sri M.C. Pyati with reference to the power of the Labour Court u/s 11A of the Act is concerned, the grave charge of theft of the property belonging of the Management having been proved, which being an heinous act, taking any lenient view with regard to the punishment is concerned would be wholly unjustified. Under similar circumstances, in the case reported at Air India Limited Vs. P.K. Upadhyay and Another, it has been held by this Court as follows:

In the instant case, the allegation made against the respondent is, committing theft of the property of the Management which is a very heinous act. Under the circumstances, taking any lenient view in the matter would cause damage to the discipline in the industry. Any lenient view in the matter and showing sympathy to the delinquent workmen who are found to be guilty of theft and fraud would amount to misplacing the sympathies. In view of the law laid down by the Supreme Court, a stringent view has to be taken against the delinquent workmen and any leniency in the matter of punishment is not warranted.

In the circumstances, the Tribunal is justified in hot exercising power u/s 11A of the Act to interfere with the punishment of dismissal from service passed by the Management.

Writ petition is devoid of merit and hence, is dismissed with no order as to costs.