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Judgment
A. Varadarajan, J.—This writ petition under Article 226 of the Constitution of India is for the issue of a writ of certiorari or any other
appropriate writ or order calling for the records in Industrial Dispute No. 33 of 1975 on the file of the Labour Court. Madras and quashing the
order dated 24th March, 1976 passed therein.
The petitioner was employed as a storekeeper of the first respondent Neyveli Lignite Corporation Limited, Neyveli having entered service as
stores assistant in 1966. According to the petitioner, on 21st June, 1973, when he was coming out of the factory of the first respondent, his cycle
was checked by the Sainik (Watchman) and he was taken to the Sainik''s room. It was alleged that a brass-screw, I'' in length and weighing about
1.2 kg. was removed from his cycle, where it had been kept wrapped in a khaki cloth. The petitioner was taken by the Sainik to the Jamadar and
his statement was recorded In the statement he had admitted that the rod was found in the khaki cloth and had stated that it was not however
known how it came to be placed on his cycle. It was his case in that statement that the rod had been planted on the cycle by someone else. A
charge memo was issued on 18th July, 1973 stating that he had committed misconduct as per Clauses (iii), (xxiii), (xxx) and (xxxv) of Standing
Order 46 in the Standing Orders Exhibit M-14 and he was suspended on that date. The petitioner submitted his explanation on 19th July, 1973
saying inter alia that there was no evidence to show that the rod was recovered from his possession. It may be stated at this stage that the
petitioner had not stated anything in his explanation about his earlier statement recorded on 21st June, 1973 soon after he was taken by the Sainik
to the Jamadar. Subsequently, an enquiry was held and two sainiks were examined on the side of the management and three witnesses were
examined on the side of the petitioner herein. The enquiry officer, the Plant Engineer of the Management, found in his report Exhibit M-5, that the
charge was proved. A second show cause notice was issued to the petitioner on 10th September, 1973 and he submitted his reply, Exhibit M-8
saying inter alia that it had not been established in the enquiry that the rod belonged to the first respondent. He had taken this stand regarding the
ownership of the rod even in his first appeal memo. Exhibit M-10. However, the same Plant Engineer, who held the enquiry, dismissed the
petitioner from service by his order Exhibit M-9 dated 26th October, 1973. As provided by the service rules, the petitioner filed an appeal under
Exhibit M-10 to the first appellate authority viz., the Deputy Superintendent, Mechanical Division, on 12th November, 1973 and it was dismissed
by the order, Exhibit M-11, dated 3rd January, 1974. The petitioner further appealed as per Exhibit M-12 dated 17th January, 1974 to the
Superintendent, Production Fertilizer, who dismissed the same by his order Exhibit M-13 dated 1st February, 1974. Subsequently, the petitioner
raised an industrial dispute u/s 2-A of the Industrial Disputes Act, 1947, alleging inter alia in his claim statement that the statement dated 21st June,
1973 was obtained by coercion and that he was not furnished with a copy of the sainik''s report to the management. The petitioner further
contended that the Plant Engineer who passed the order of dismissal, Exhibit M-9 was not the competent authority and that the order is therefore
invalid.
The first respondent contended in the counter-statement before the Labour Court that the petitioner was found to be in unauthorised possession
of a brass screw one foot in length and weighing about 1.2 kgs. rolled in a khaki cloth and kept in the carrier of his cycle and he had voluntarily
given a statement on the same date to the security personnel admitting his possession of the brass-screw covered in a khaki cloth. It is further
stated in the counter-statement that the petitioner had been given all opportunities to defend himself and the finding of the enquiry officer is based
upon sufficient evidence placed before him. It is further stated in the counter-statement that the Plant Engineer was the competent authority to
award the punishment of dismissal for misconduct.
No witness was examined on either side before the Labour Court. The Labour Court found that the enquiry was fair and no prejudice was
caused by the failure on the part of the management to furnish a copy of the sainik''s report, to the petitioner. The Labour Court further found that
the allegation that the statement dated 21st June, 1973 was obtained by coercion is an afterthought and it relied mainly on that statement Exhibit
M-4 and found that the misconduct had been proved without however recording a finding as to the ownership of the rod about which nothing has
been stated in the enquiry report and held that the punishment of dismissal was proper having regard to the prior punishment as can be gathered
from the petitioner''s service register Exhibit M-15. Accordingly the Labour Court found that the non-employment of the petitioner was justified
and that he was not entitled to any relief and directed the parties to bear their respective costs.
The petitioner has admitted in his statement Exhibit M-4 dated 21st June, 1973 that the brass rod, one foot in length and weighing 1.2 kgs.
wrapped in a khaki cloth was found on his cycle. Having regard to the fact that in his explanation submitted to the charge memo, he has not even
whispered that the statement Exhibit M-4, had been obtained from him by coercion, there is no reason to differ from the Labour Court that the
contention put forward in the claim statement that the statement had been obtained by coercion is an afterthought. Having regard to the evidence of
the sainiks produced before the enquiry officer and the statement Exhibit M-4 it has to be held that it has been proved in the enquiry that the brass
rod one foot in length and weighing 1.2 kgs. was found wrapped in a khaki cloth placed oil the cycle of the petitioner when he was leaving the
premises of the factory on 21st June, 1973. The petitioner has not substantiated his case that the brass rod had been planted by someone on his
cycle. There is no material on record from which it can be held that the enquiry was not fair or any serious prejudice has been caused to the
petitioner by the copy of the report of the sainik not having been furnished to him. However, it may be stated that neither the original nor any copy
of the alleged report of the sainik has been made available before even the Labour Court inspite of the petitioner''s complaint that he had not been
provided with a copy of that report. It would have been in the interests of justice if either the original report which must have been available in the
custody of the management or a copy thereof had been produced at least at the enquiry before the Labour Court.
Two contentions were raised before me by learned Counsel for the petitioner. The first is that the rod wrapped in a khaki cloth, found on the
cycle of the petitioner when be was leaving the factory premises on 21st June, 1973, has not been proved to be the property of the management or
of any other person of the factory. The second objection is that the Plant Engineer who conducted the enquiry and awarded the punishment of
dismissal to the petitioner is not the competent authority. If it is found that the Plant Engineer is not the competent authority, and that it is the only
irregularity the matter will have to go back for fresh enquiry by the management. It is therefore desirable to deal with that question first. The
punishment of dismissal awarded to the petitioner is undoubtedly, a major punishment. Standing Order 47 in the Standing Orders Exhibit M-14,
deals with punishments for misconduct and Standing Order 47 (o)(iii) under the heading, ""major punishments"", shows that dismissal from service
without notice or pay/wage in lieu of notice is a major punishment. It is laid down in that Standing Order that the management or the employee of a
company authorised in this behalf may, at its or his discretion, institute an enquiry against a workman before imposing on him any of the minor
punishments. No order imposing any major punishment shall be made except after holding an enquiry against the workman concerned in respect of
the alleged misconduct. In the first appeal, Exhibit M-10 also the petitioner had questioned the competency of the Plant Engineer for awarding the
punishment of dismissal. It was submitted by the learned Counsel for the 1st respondent that proceedings No. 502 (E. & G.) of 1966 dated 26th
August, 1966 were placed before the Labour Court for its perusal. That is found in the bundle of papers submitted to this Court by the Labour
Court. It is seen from Appendix II to those proceedings that so far as the industrial unit is concerned, the Plant Manager or the Plant Engineer is
the disciplinary authority in the case of major punishments to employees in the industrial unit, and that the Deputy Superintendent or the Deputy
Chief Engineer is the first appellate authority and the Chief Engineer or the Superintendent is the second appellate authority and that in the case of
employees in the Stores, the Stores Officer, the Material Controller and the Controller of. Stores and Purchases are the disciplinary authority, the
first appellate authority and the second appellate authority respectively. According to Standing Order 47 (a) of the Standing Order Exhibit M-14,
which came into force on 31st January, 1971, the employees of the company authorised in this behalf shall be specified by the management from
time to time. If the aforesaid appendix to the proceedings dated 28th June, 1966 was in force on the date of the enquiry in the present case, it was
only the Stores Officer who would have been the competent authority to hold the disciplinary proceedings and award the major punishment of
dismissal. But the enquiry has been held and the punishment of dismissal has been awarded, as stated earlier, only by the Plant Engineer. No
doubt, in the first appellate order it is stated that the Plant Manager or the Plant Engineer is the competent authority to impose the punishment of
dismissal. But it is not stated in that order that the Plant Engineer had been authorised by the Management as required by Standing Order 47 (c) in
Exhibit M-14 to hold the enquiry and empowered to award the punishment of dismissal. No doubt, in the second appeal memo. Exhibit M-12, the
petitioner has not raised this question once again. It is not possible to hold from this circumstance alone that the petitioner has abandoned this
contention, for he has repeated that contention which had been raised in the first appeal, Exhibit M-10 even in the claim statement filed before the
Labour Court. The Management has not produced any record to show that the Plant Engineer who held the enquiry and awarded the punishment
of dismissal has been authorised in this behalf by the management. Therefore, it is not possible to agree with the Labour Court that the Plant
Engineer who conducted the enquiry and awarded punishment of dismissal has been proved to be the competent authority as per the Standing
Orders of the first respondent. Under the circumstances mentioned above, I uphold the objection raised by the petitioner that the Plant Engineer
has not been proved to be the competent authority and that the punishment of dismissal awarded by him to the petitioner cannot be upheld. If my
finding on the question of the necessity to prove the ownership of the brass rod seized from the petitioner''s cycle on 21st June, 1973 is not in
favour of the petitioner, the matter with regard to the competency of the enquiry officer to hold the enquiry and award any punishment to the
petitioner has to go back to the management.
The recovery of the brass rod wrapped in a khaki cloth from the petitioner''s cycle has not been disputed. The brass rod has not been produced
either at the domestic enquiry or before the Labour Court. The relevant portion of the charge memo. Exhibit M-l issued to the petitioner is as
follows:
It has been reported that Sri S. Ramamurthy working as Store-keeper Grade, C. Mechanical Division II of the Fertiliser Factory in the Lignite
Project at
Neyveli under the control of the Neyveli Lignite Corporation Ltd., has committed the following acts or omissions which are misconduct falling
under Sub-Clauses (iii), (xxiii), (xxx) and (xxxv) of Standing Order No. 46;
That on 21st June, 1975 at about 16 hours, Sri S. Ramamurthy, Store-keeper Grade-C, Working in Mechanical Division II of the Fertiliser
Factory was found to be in possession of a brass screw about one foot in length and weighing 1.2 kgs. in a khaki cloth, rolled in his cycle carrier,
when the security personnel at the Fertiliser East Gate were checking the employees going out of the plant on completion of their general shift duty.
Clause (vii) of the Standing Order No. 46, in Exhibit M-14 mentions theft, fraud or dishonesty in connection with the company''s business or
property as a misconduct. Clause (xxiii) mentions unauthorised use of any property, machinery tool, quarter or land belonging to the company as
misconduct. Clause (xxx) mentions theft of property belonging to any other workman, or from any of the work spots, or any premises belonging to
the company, and Clause (xxxv) mentions any act or omission punishable according to law as a misconduct. The charge memo. did not say that the
brass rod belonged to either the company or any workman of the company or that it had been picked up from any work spot or any premises
belonging to the company. One of the ingredients of the offence of theft is that the property involved must belong to some person and the person
alleged to have committed theft in respect of that property must have removed that property. In the absence of any finding at the enquiry that the
rod removed from the carrier of the petitioner''s cycle when he was leaving the premises of the factory on 21st June, 1973 was the property either
of the management or of any workmen employed under the management or that it was lying in any work-spot or within any premises belonging to
the company before it was found on the carrier of the petitioner''s cycle, it is not possible to hold that the petitioner had committed theft of the rod
or offence of unlawfully removing the rod from any work spot or any premises belonging to the company. Notwithstanding the fact that the
petitioner had raised this question of ownership of the rod not only in his reply, Exhibit M-8 to the second show-cause notice, but also in the first
appeal memo. Exhibit M-10, the management has not made any attempt even before the Labour Court to establish that the brass rod belonged to
the management or any of the workmen or that it was lying in any work spot or any premises belonging to the company before it was found
wrapped in a khaki cloth on the carrier of the petitioner''s cycle on 21st June, 1973. It is not possible to agree with the learned Counsel for the first
respondent that this question cannot be gone into this writ petition on the ground that the question of ownership of the brass rod had not been
raised either in the claim statement filed in the Labour Court or in the affidavit filed in support of this writ petition, for that point is an important point
which has to be established by the management'' before the petitioner could be said to have committed theft of the property belonging to the
management or any of its workmen or to have unlawfully removed the property from the work spot or any of the premises of the company,
especially when that question has been raised at the earliest stage of the enquiry, viz., in Exhibit M-8, the petitioner''s reply to the second show-
cause notice, as well as in the first appeal memo. Exhibit M-10. In the absence of any finding either in the domestic enquiry or before the Labour
Court that the brass rod was the property of either the management or any of the workmen or that it was lying in any work spot or in any premises
of the company it is not possible to hold that the management has proved any offence of theft alleged against the petitioner. The punishment of
dismissal awarded to the petitioner is therefore invalid. Accordingly, the order of the Labour Court, dated 24th March, 1976 passed in I.D. No.
33 of 1975 is quashed and the writ petition is allowed with costs. Counsel''s fee Rs. 250.