High Court · 1999

The management had also lodged an FIR against the workman, which gave rise to G.R. Case No.539/1994 u/s 379/420 of the Indian Penal Code in the Court of Sub- Divisional Judicial Magistrate, Biswanath Chariali. During the pen dency of the reference before the Labour Court, the above criminal case was hear d and decided on 14-09-1999. The workman was acquitted on benefit of doubt as th e prosecution failed to prove the charge beyond all reasonable doubt.

10. The Labour Court by its award dated 21-02-2003, which was notifi ed on 20-08-1998, after holding that the Labour Court was not bound by the findi ngs of the Criminal Court, held that the case of theft of the new tyre stood pro ved against the workman and answered the reference against the workman.

11. e. Aggrieved, the workman filed the writ petition as indicated abov

12. The management filed a counter affidavit. In the counter affidav it, the management has stated that the workman was charged for an act of gross m isconduct. His reply was considered but found not satisfactory. Thereafter, dome stic enquiry was ordered where the workman was provided full opportunity of hear ing. The charge was established in the enquiry whereafter the workman was dismis sed from service. Before dismissal, further opportunity was granted by the manag ement to the workman but he failed to avail the opportunity. The action of the m anagement was upheld by the Labour Court. Therefore, the management has sought f or dismissal of the writ petition.

13. well as Mr. S. Chakraborty, learned Counsel for the respondent management. Heard Mr. B. Chakraborty, learned Counsel for the petitioner as

14. Learned Counsel for the petitioner submits that after the acquit tal of the petitioner in the Criminal Case, the Labour Court ought to have exone rated the petitioner. The Labour Court failed to consider the judgment of the Cr iminal Court in the proper perspective and the same has vitiated its findings. H e has also drawn the attention of the Court to certain short comings in the dome stic inquiry as well as in the proceeding before the Labour Court. According to the learned Counsel, the factum of theft of the tyre from the company’s vehicle was never proved and, therefore, punishment of dismissal is harsh and disproport ionate. He, therefore, prays for setting aside of the dismissal order and for re lease of all the dues of the workman till the date of his death to his widow. In support of his submissions, learned Counsel for the petitioner refers to and re lies on the following decisions :- (1999) 3 SCC 679 (Para- 34 and 35) (Capt. M.Paul Anthony -vs- Bharat Gold Mines Ltd. and another) (2006) 4 SCC 713 (Para-26, 42, 44 and 45) (Narinder Mohan Arya -vs- United India Insurance Company Ltd. and Ors.)

15. Learned Counsel for the respondent management on the other hand submits that the workman was given all reasonable opportunity both in the domest ic enquiry and in the proceeding before the Labour Court. He submits that the di sciplinary authority had considered all aspects of the matter before imposing th e punishment. As a matter of fact, the disciplinary authority had called the pet itioner to meet him but the workman failed to avail the said opportunity. Statin g that the employer had lost faith in the workman, therefore, he could not have retained him in service. In support of the said submission, learned Counsel for the respondent management relied on a decision of the Apex Court rendered in the case of State Bank of Bikaner and Jaipur -vs- Nemi Chand Nalwaya reported in (2 011) 4 SCC 584.

16. The submissions made have been considered.

17. oner was theft of a new tyre of a vehicle belonging to the Tea Estate. As has already been noticed above, the charge against the petiti

18. The Enquiry Officer held as follows :- (cid:28)From the evidence of the prosecution witnesses it is found that P.W.1, P.W.2 an d P.W.4 have corroborated each other on all material points. P.W.1 and P.W.2 wer e eye witnesses to the alleged occurrence. Both of them were present at the time of occurrence. From their evidence the following points are proved:- (a) mself, from Monabari T.E. to a Garage at Baghmari. that the accused took out the vehicle No.AMD-4867 driving the same by hi (b) that it was in the month of September, 1994 (c) le at the said Garage. that the accused instructed P.W.1 to unload the spare wheel of the vehic (d) that the new tyre of the spare wheel, so unloaded, was replaced with an old tyre by the person working in the Garage (i.e. P.W.3) as per instructions of the accused. (e) Garage. that the accused intentionally left the new tyre so removed at the said From the evidence of P.W. 4 following points are proved :- (a) n of the vehicle. that on 26-09-94 the accused asked him for permission to have a trial ru (b) that he saw P.W. 1 and P.W. 2 in the vehicle while the said vehicle was taken out for trail run by the accused from the Monabari T.E. to the outside of the garden premises. (c) that P.W.3 Shri Bisu Ghose was working in the Garage at Baghmari. (cid:29) (cid:28)After careful appreciation of evidence of the witnesses, the statement of the a ccused and the Appendix-A, B, C, N, S and P in the Enquiry I find that the prose cution side has proved the charge as alleged in the charge sheet beyond any doub t against the accused person and the accused has missed the point to disprove th e same and also has failed to crate any doubt in my mind. The charge, as alleged in the charge sheet, under Clause (a) (2) of Rule 10 of the Standing Orders is proved. The evidence led by the prosecution are conclusive and consistent and ar e not explainable in any other hypothesis except the quilt of the accused. In the result, I hold the charge sheeted employee Shri Subhas Routh guilty under Clause (a) (2) of Rule 10 of the Standing Orders, more particularly to say The Assam Industrial Employment (Standing Orders) Rules, 1947. (cid:29)

19. In the reference, the Labour Court held as follows:- (cid:28)None of the contentions for the workman stand to reason, inter alia, on the fol lowing grounds. Domestic enquiry is not a judicial proceeding. A delinquent workman cannot urge with a lawyer as a matter of right. Domestic enquiry is held by the management a nd not by any independent authority. Holding of domestic enquiry with an experie nced lawyer adds to its credibility. Mukti Sharma is a hearsay witness. Non-examination of him in the domestic enquir y did not cause any prejudice to the workman. However, he has been examined duri ng enquiry before this Court. Shri D. Choudury, Asstt. Manager, in his statement to the Enquiry Officer did no t say that he gave any written permission to the workman for trial run. For a tr ial run of a vehicle normally no written orders are issued. Non-production of do cuments regarding issuance of a new tyre for the mine truck does not prove that no tyre was there in the truck as against the oral evidence of the helpers and m echanic Mukti Sarmah. Nor during domestic enquiry the workman did insist for pro duction of such documents. He rather stated that he made the trial run within th e garden premises and did not go to Bagmari. It is in evidence that the truck wa s not loaded with goods. The gate chowkidar as such, did not find it necessary t o have entries in the gate book. The enquiry officer discarded the evidence of Bishu Ghosh. Bishu Ghosh was an em ployee in the garage run by Sankar Rauth, a brother of the workman. The garage i s within the homestead land of the workman. Bishu himself participated in the in cident. As such, he will, naturally, not implicate the workman. The enquiry offi cer rightly discarded the evidence of Bishu. Quality of evidence has to be taken in appreciation of evidence. Quantity is of little importance. Non-production of garden chowkidar did not affect the enquiry . This Labour Court is not bound by the findings of the Criminal Court. This has b een discussed at length in this Court’s order dated 01-11-2002. The case of theft of new tyre has been proved to the hilt against the workman. I t has been gross misconduct. The issues are answered against the workman. He is not entitled to any relief. (cid:29)

20. From a close perusal of the enquiry report as well as the order of the Labour Court, this Court is of the view that the domestic enquiry did not suffer from such procedural lapse having the effect of nullifying the proceedin g itself. The Labour Court also considered the relevant aspects and thereafter c ame to the conclusion that the workman was not entitled to any relief.

21. In the factual context of the present case, the reliance placed by the p etitioner on the decisions in the case of Capt. M.Paul Anthony and Narinder Moha n Arya appears to be misplaced. In the criminal case, the workman was acquitted on benefit of doubt as the prosecution had failed to prove the charge beyond all reasonable doubt. It is well settled that the approach and standard of proof in a criminal trial and in a domestic enquiry are different. The Labour Court cons idered the judgment of the Criminal Court but in the facts and circumstances of the case, decided not give benefit of such acquittal to the workman. No fault ca n be found with the approach of the Labour Court.

22. Considering the fact that the charge related to the theft of company’s p roperty and that the management had lost confidence in the workman, the manageme nt was perhaps justified in deciding not to retain him in service.

23. n. The same is accordingly dismissed but without any order as to cost. For the aforesaid reasons, this Court finds no merit in the writ petitio