Gunaseelan M. vs Presiding Officer, Principal Labour Court and Another

P. Jyothimani, J.—This writ petition is filed challenging the award passed by the first respondent/Labour Court in I.D. No. 697 of 1991

dated December 20, 1995. The case of the petitioner is that he was employed as a Canteen cleaner in the second respondent-Management having

been employed since 1972, and he was confirmed in the year 1986. A charge memo was issued to the petitioner on February 16, 1990 as per the

Clause 13(4) of the Standing Orders of the second respondent/Management to the effect that he committed theft of a cycle belonging to another

employee by name G. Santhanakrishnan. The petitioner has given his explanation to that memo on February 21, 1990. By a subsequent

communication dated March 8, 1990, the second respondent issued another charge memo to the effect that the petitioner has threatened the

security watchman Mr. Manickam and one Mr. P.M. Krishnan, for which also the petitioner submitted his explanation on March 9, 1990 denying

the said charge. The second I respondent has initiated a domestic enquiry in which the Management examined 5 witnesses and the petitioner got

himself examined besides on his side examining one co-employee. On the basis of the enquiry, a report was submitted on April 26, 1990 and the

second respondent Management dismissed the petitioner from service by the order of dismissal on July 6, 1990. Thereafter, there were

proceedings before the Labour Court. The petitioner has, marked 14 documents to substantiate his case for reinstatement with back wages, even

though he did not let in any oral evidence. On the other hand, the second respondent has produced 25 documents on their side. Ultimately, the

Labour Court, Madras rejected the claim of the petitioner for reinstatement for back wages and passed an award for a sum of Rs. 25,000/-

against the second respondent. It is against the said award of the Labour Court, the present writ petition has been filed.

The second respondent filed a counter affidavit stating that the conduct of the petitioner in committing theft of a cycle is serious and that amounts

to grave misconduct and has been proved on the basis of the complaint of the owner of the cycle, namely G. Santhanakrishnan. It is also stated in

the counter affidavit that the Labour Court has fairly considered the entire facts and found that the charge against the petitioner that he threatened

the security and another person as not proved against the petitioner, while the charge of theft of cycle by the petitioner as proved. On that basis,

the claim of reinstatement and payment of back wages has been rejected, however, granting a monetary compensation to the petitioner.

I have heard the learned Counsel for the petitioner and the second respondent.

It is the contention of the learned Counsel for the petitioner that the said G. Santhanakrishnan did not give any complaint about the theft of cycle

either to the management or to the police. There is nothing to implicate the petitioner in the said incident. It is the case of the petitioner that by

mistake, he had taken the cycle belonging to G. Santhanakrishnan, after his shift work was over and on the very next morning, when he came to

know about it on information from G. Santhanakrishnan, he placed it in its original place from where the cycle was taken. Merely, because the

petitioner, namely the workmen has not examined himself or any other person on his behalf, it cannot be taken, as if the charge has been proved.

Therefore, according to the learned Counsel, the finding of the Enquiry Officer is perverse.

Per contra, the learned Counsel for the '' second respondent would contend that when, it is the case of the petitioner that he had placed the

cycle in its original place on the next morning, why he did not inform the same to the Security Officer. It was further contended that it is not correct

to state that G. Santhanakrishnan had not given any complaint when it is seen from Exhibit W-6, the document marked on the side of the workmen

himself that the said G. Santhanakrishnan had given a complaint about the missing of cycle on February 13, 1990. It is further contended that if the

petitioner has taken the cycle of G. Santhanakrishnan by mistake, his cycle would have been found in the row. Therefore, it cannot be stated that

the cycle was taken without any intention or by mistake. The respondent of the Enquiry Officer shows that G. Santhanakrishnan was examined as

witness before the Enquiry Officer. The Enquiry Officer in his report has found that the evidence clearly shows that a theft has been committed. In

such circumstances, inasmuch as misconduct of a serious nature has been proved, there is nothing to interfere with the finding of the Labour Court

is the submission of the learned Counsel for the second respondent.

As stated above, a perusal of the award passed by the Labour Court show that while the Labour Court has found the charge of threatening of

some of the officials of the second respondent by the petitioner was not proved but the charge of theft was found to be proved, the question that

now arises for consideration is as to whether the findings of the Enquiry officer as well as the Labour Court can be interfered with especially when

it is not even the case of the petitioner that some bias has been shown (sic) against him. The question that also arises for consideration is as to

whether the punishment of dismissal is disproportionate to the charge for theft proved. This Court can interfere into the quantum of punishment,

considering the improper punishment awarded for the charge stated to have been proved. Reliance is placed on a judgment of Division Bench of

this Court rendered in The Management of T.I. Diamond Chain Limited Vs. P.L. Ramanathan and The Presiding Officer, I Addl. Labour Court, .

That was a case where workman was found guilty of committing theft of a chain and dismissed. However, the Labour Court held that considering

the fact that the workman has worked in the establishment for 15 years and the value of the stolen chain was only Rs. 30, he should be reinstated

with 50% back wages. While considering the hierarchy of judgments, the Division Bench of this Court revised the order of the Labour Court

holding that the reinstatement is bad and ordered dismissal of the employee. Reliance was also placed on the judgment of the Hon''ble Supreme

Court rendered in Orissa Mining Corporation and another Vs. Ananda Chandra Prusty, wherein while dealing with the burden of proof in the

disciplinary enquiry relating to the Industrial Disputes, the Supreme Court held that the burden of proof depends upon the nature of the explanation

offered and nature of the charges. In the present case, while admittedly the petitioner has taken the cycle belonging to somebody, it was for the

petitioner/workman to prove that this would not amount to misconduct. There is yet another judgment of this Court rendered by R. JAYASIMHA

BABU, J. (as he then was) in Assistant General Manager, T.I. Cycles of India Ltd. Vs. Presiding Officer, Labour Court and Another, in which it

was held that the Labour Court had failed to consider that the management has lost confidence of the workman due to his accomplicity in the theft

of materials. The same view was taken in another judgment of the Supreme Court rendered in Francis Klein and Co. (P) Ltd. Vs. Their Workmen

and Another, in which it was held that the direction of the Labour Court in reinstating a workman on the basis that in the domestic enquiry there

was insufficient evidence is not proper awarding compensation on the ground of loss of confidence of the employer.

I have considered the rival submission. The fact remains, that the Enquiry officer conducted a detailed enquiry and in fact, the person who lost

his cycle namely G. Santhanakrishnan has given a complaint marked Exhibit-W-6 and he also examined himself as witness in the domestic enquiry.

That apart, it was the case of the petitioner that he himself had taken the cycle and left the same in the next morning only after G. Santhanakrishnan

has informed to him. In my considered opinion, the findings of the Labour Court that the charge of the theft has been proved are not motivated or

biased and I am of the view that the report of the Enquiry Officer cannot be found fault with.

Now, the question that arises for consideration is as to whether the compensation awarded is adequate. The further question that arises for

consideration is in a domestic enquiry, what is the nature of evidence that can be let in. It is held by the Supreme Court in the judgment in State of

Haryana and Another Vs. Rattan Singh, that in a domestic enquiry, the strict and sophisticated rules of evidence under the Indian Evidence Act

may not apply and all the materials which are logically probative for a prudent mind are permissible.

Now, turning to the amount awarded as compensation, it is found that the petitioner is in service in the second respondent company from 1972

onwards and he has been continued till the date of his dismissal, which was on July 6, 1990. The Labour Court awarded an amount of Rs.

25,000/- towards compensation payable to the petitioner in lieu of reinstatement with back wages and other attendant benefits. Even if a prudent

interest is calculated on the said amount as on the date of the award, it should have been definitely much more. Considering the circumstances of

the case, I am of the view that the petitioner should be paid an amount of Rs. 75,000/- towards compensation.

In the result, the order of the Labour Court dated December 20, 1995 made in I.D. No. 697 of 1991 insofar as it relates to the rejection of

the claim of the petitioner for reinstatement and back wages is confirmed and in respect of the payment of compensation to the petitioner, a

direction is issued to the second respondent to pay an amount of Rs. 75,000/- to the petitioner. No costs. The writ petition is partly allowed.