A. Gopala2 Raju v. quash the award passed by the 1st

Counsel forthe Petitioner: SRI A. K. JAYAPRAKASH RAO Counsel for the Respondent No.1: GP FOR LABOUR Counsel for the Respondent No.2: SRI S. SRIDHAR The Gourt made the following: ORDER *'.7 ) 1 wp_5923_2017 NBK, ] THE HO\'BL!] SRIJUSTIC E NAGESH BHEEMAI'AKA \vRIT PETITION No.5923 of 20r 1,.:- ORDER: -fhe casc' i) 'lhe petitioner! as per the writ affitiz*'i'. is tliat he was initially appc,int.:: as Office Assistant-lll in 1979- iat:r lL"ouoted as Grade-l Ollicr: r\ssistant. and served as ClashieL iirr 16 yeal's. On 3 1 .05.2008, : t;as I slroftage of {2.00 lakhs was reporied i orr a damaged Almilal'r, which lrrr I been brought to thc notice of supe rior-; c:r' iiel rvithout remedial ac[,..:t. l re petitioner imruediately infbrme,i r]liirril!.lrlcnI upon discovering tir: ; t.rrlage, and under advice of Depui',' (lcni: al ,v4anager Mr. SrvarooJr Pa'rJa. repaid the amount on 05.06.2008 b', 1n()itgaging his wife's gold. -[hr: retitioner was issued a charge slrt:et tlt't 12.06.2008 despite abse'nc:e .ri mala fide or criminal intent. ln tlic c i:partmental enquiry, no Jr:gla e vitlence was plroduced to substantiate '-,ha .gcs of tlieft or flaud, air(l {.r\3i- tire Lnquiry Ofilcer held there li'as 1-l 1;; l>clof s'-rch allegations. ,1i51 l,rrting only negligence. Hou'ever. the pe.itioner was disrnissed. tlc l'ile J an appeal belore thc Labour f o'.tr':. .tt rl tlre sane ended inilisrnissai J'he petitioner's plea befbre the l,ribotii i,,rtrlL detailed his forced pirvr)rcr. of the disputed amount, his wil-e's cict':t'io'ating heallh and eventtral ileittlr c'u-t 03.07.2014 due to shock fronr tlir' rl,srnissai, lack of alternatir',: e:ntlrloyment due to the stigma of :lisnr issi.i. Terminal benefits \\rerr (.\ :rtually credited under protest. On thc in crt,:ntion of the union. the nraniig t'rnent assured fair treatment upon rear.\'n'ent, but the same \\ras dishorr,r-ed.'lhe petitioner therefore seeks;.r \\'rii ,rlCertiorari to quashthe ari,r,ro dated 13.01.2016 in I.D. No. 15,-f 2{,l1r,ird to direct z reinstatemcnt witl.r continuity of service' back consequential benefits from the date of dismissal superannuation frorn serv' ice i'e', 0 1'04'20 1 6' wp_5923_2017 NBK, ] wages, and all to his date of

2. Heard Mr. A.K. Jayaprakash Rao' learned petitioner;andlearnedSeniorCounseiMr'VedutaSrinivasappearingon behalf of Mr. S S|idhar, leamed counsel for respondent No'2' Perused the counsel for the record. 3. Learned counsel for the petitioner' rvhilc making submissions on the lines of writ aflidavit, would essentiailY contend that the Award dated 13.01.2016 in 1.D. No. l5 of 2012' published on25'02'2016 by the l't respondent-l.abour C)our1, is liable to be quashed as it is illegal' arbitrary' perverse, and contrary to the principles of natural justice and the mandate of Section 11A of the lndustrial Disputes Act' 1941 ' It is contended that the petitioner, lvho.ioined the 2nd respondent company it 1979 and served as a Cashier with an unblemished record for 16 years' u'as unfairiy dismissed tiom service on 28'05 2009 without any proof of theft or fraud' despite the Enquiry Officer having categorically held that there was no such misconduct and onll' a linding of negligence was recorded' lt is contendedthatthepetitionerhadvoluntarilyandpromptlyinformedthe management about the cash shortage of t2'00 lakhs on 31'05'2008' which occurredduetoabrokenAlmirahpreviouslybroughttotlrenoticeof superiors, and under pressure and assurance from senior officials' repaid the amount on 05.06'2008 by pledging his lvife's gold omarnents; however', a charge sheet was served on the petitioner on 12'06'2008' Leamed counsel contends that the Labour Court failed to consider the Enquiry Oflicer's conclusions, disregarded the disproportionality of !- '.y ) 5 wQ 5923_2A17 NBK, J ptrnishment a.tril grlons6gsly relied on the case law i1 Rcgirtr al \,Ianager UPSRTC t' t'i,tri ,ul (AIR 2003 SC 1462), and exc(.ede-l irs jurisdiction by differinrr ri ir.h ihe Enquiry Officer's findings. It is c()pte rcled that no police cornnlarrrt r',as filed regarding the alleged thefi, th,:rebi,there is no culpable ot.i:nc:e. and the insurance claim for tht. rnissir..:rr cash was rejected drrc r-o tlt.: 2nd respondent's own negligencrr in ,nlirrtlrining thc cash chest. ir i:; contended that the stigrnatic clismissii,l r.Lrineri the petitioncr's larn lr Iil-e, and his wif-e was shocked abour ihc :isrrissal of petitioner t',nr :;t.l'ice and later expired, and his dis,tissll d:prived him of livelihocrl LLnt I his retirernent on 01.04.2016, an,,i rir,-, pc.iiioner u,as tbrced to a t:c e1r te rminal beneflts under protesi. Lcari t:d counsel contends titir t th,- inrpugned Award is inconsisteni ,,r'iLh ire enquir_.l findings, r,,irl th,..r , tb'e arbitrary and illegal and henr c L1t.:i\.s 1.o set aside the Award artcl rcirstate the petitioner. with continu ty .t- sr I.vice, back wages, and all c,:r;r.rcquential benefits.

4. Lcarned ri,: tior Counsel, basing on the cou)lr--ll. r ifidavit of respondent lr rrr,2. , ould contend that the writ petition is n(]t rn titrtainable, suff-ers frorr-r laclr.: - as it was filed nearly a 1,ear aft;r tite .1u.ard dated 13.0 1.2015 h,', tl ,c l't respondent, and that no sufficienr crp anation fbr the delay has bc,rl provided by the petitioner. Relianic is placed on jtrdgments inc luc ii.g Stote Bank o/'India v. Rom Lal .ghu.;kc;r i(201 l) l0 SCC 219], l.'r;15tit,1 Yarayan Wonjori v. Joi Bhartt Sh;kslt tn Sqnstlut [(2018) 12 S,a](,- f.C). State Bank of Bikaner and Jrti.ct,. i,. \,_.,1i Cltarul Nalwaya l(1))l .i SCC 5841, tndian Oyersetts lJ,rnk ,,.. t OB. Staff Canreen wbrltt:,,.., r, nion [(2000) 4 scc 2451, among c,rirer.s, i( asserl that writ courts carnor reappreciate evidence or act as appe late forums i, 4 wp_5923_2017 NBK,.] disciplinary matters. It is contencled that it is an undisputed fact that the petitioner was working as a cashier with the 2nd respondent until his dismissal on 28.05.2009 following a domestic enquiry initiated after Rs.2,00,000/- went missing frorn the company's safe under his custody on 31.05.2008. The petitioner was charged with negligence of dury and prejudicial conduct, both major misconducts under the appticable Standing Orders, as established in the enquiry report dated 23'07 '20A8' 'Ihe evidence showed, inter alia, that the petitioner failed to properly securetheairrirah,failedtoinformsuperiorstimelyaboutthedef.ective lock. and left Rs.3.5 lakh uuattended despitc security concerns' It is contendedthatthereisnorecordofthepetitionerinforminghissuperiors about the malfunctioning lock prior to 31'05'2008 even as per his own enquiry statements and reply dated 25'08'2008' It is contended that the petitioner had a past record of misconduct' and he was warned for absenteeism on 16.04.1982 and 05'04'1991' and he f'aced disciplinary action including stoppage of increment by order dated 21'03'1990 foliowing abuse and insubordination as per charge sheet dated 01 .02. 1990, and refused to accept a notice on 29'01 ' 1990 lt is contended that these records submitted before the l'abour Couft further jLrstifu the penalty of dismissal. It is contended that oncc a tait enquiry is held and the findings are not perverse' the Coufis including under Section 11,A. of the Industrial Disputes Act cannot interfere unless punishment is shockingly disproportionate' Reliance is placed on The General Secretary, South Indian Cashew F-actories lVbrkers' {Jnionv Kerala State Cashew Dettelopment Corp' l(2006) 5 SCC 201)'' Tata Engineering v' N.K. Singh(2006) 12 SCC 5541' Honthe Gowda Education Trust v' State I I i i i I i i ) 5 \{'p 5923_2017 NBK,J of Karnatr;/:,,, [r .]')(){r) I SCC 430], and Davolsab fltrttin;ob Mulla v. Ntr|'KRTC I(.10 l; l0 SCC 1851. It is contended thar th: issue was publicly ru,lor1 i:i tarnishing the .company's image, arrc given the petitioner's f)rlsilt')n cf trust and his gross negligencr:. th: 1,, I respondent justifiablv l:s-:r,tlldence in him and rightly implsec tht, penalty of disrrrissal. llelv in1. ot1 Kanhaiyalal Agrawal v. Gwtt,irr. \u.qtu. ct)tnplttty L.td l(?-0A1 ) 9 Ii:l( 6091, ir is contended that an1. ieni:r.rcy would undennine cis,:irl ne, and therefore the impugned Arlarc d,r:s not suffer from an1, illr:gelrti u,amanting interference by this Cour.t. 5. Ha'i,r c. rsidered the respective contentio*s :r rc ;cr.,sed the rccord, it nrtr\' bc noted that the petitioner who was a ('ash er rvith thc respondcnt-[]a,1.. ,i,:rs charge sheeted fbr cash-missing of Rs.2 Iakh, which leil t: a iepiiftmental enquiry and ultirnat:i_r iiisi-:issal fi.om sen'ice. anr! lar-c' 1::rminal benefits were extended urrder pro,est. At this .iunclure. it i; .e r'. ant to refer to the Enquiry Offict:r fi*clir 1:,s at point Nc.4 r-elatili. t'r ' rcthcr the petitioner indutged in trrelt ,rr f .arcl. eithcr alonc or in c.nr:r rrce with another person(s). The erq,iry 1i rdings read as lb liou's: ,,Mr. A. ii6,pala Raju is cashier and used to handte r:ash indeperrdentl. There is no 2nd person having joint key c{ the almirah. i+err,:,:, Mr. A. Gopala Raju in solely resporsibl{-" for r:ash operatir:ns. l- e knows pretty well that he is totally r(]sponsib ie for maintaininq :lsh_ He too knows that he has to reimt>urs: the cash if 1{rertr is; any short fall any time. On 31.05.2013 the C.S.W. found a cash shortage c,f 2 iakhr,. On the adice of )y. General Manager, the C.S.W reimbu'sed sho 1:fall amotrlt on 35.06.2008 by cheque. He has produced lwo .tank 6 wp _5923-2011 NBK, J receipts as proof of borrowed a{nount of Rs'1'62 lakhs' There was no proof of theft or fraud on the part of GSW' The Management Witnesses also did not express any doubt towards thisdirection.lnthepastalsotheCsWfacedmanyroutineand surprise cash and verifications and in no incident there was proof of any short fall / missing or fraud except the incident of 31.05.2008. Hence benefit of doubt is extended to the accused'"

6. Further, for Point No'5 relating to whether there was gross negligence on the pafi of CSW' the enquiry ofilcer recorded the tinding as fbltows: ".... He has infornred his superior Mr' G' Rama Rao 10 days ago that outside handle of almarah was broken' But the CSW did not pursue the matter later on' He should have followed up the matter and got it repaired' He has not done it' On 3{ '05"2008 before going to bank noticed that inside safety locking system has also failed. He should have informed this matter immediately to his superior before going to bank itself' he has not informed immediately. Later on he informed about this matter from bank over phone. By this it is clear that the CSW was not serious about the safety of cash' When he has to keep Rs'3'5 lakhs cash he would have sought alternate safe alrangements' or another almarah in place of the existing one' The CSW himself declared that about 20 persons usually go inside the strong room' ln that case also he should be more cautious and careful' There is no evidence of any such precautions taken by CSW' By his improper locking of almarah and carelessness, a cash of Rs'2 lakhs cash ofthe company was stolen.... " l \.!p 59)3_2077 N8K, ]

7. A pei,rsrll r, 'the findings of the enquiry officer *,orild s lroq,that the petitioner' \.\ iir. :!'\ al'c that he has to reimburse the casrr ir. ther.e is any shortfall an" rirr j as per company policy, and the p,etilione hacr in fact reinrburserj th,r s[-o'1fbll amount on C5.06.200g by che,iucs o,idencing bor.or+'ed L.r{rrrir . FLrrther, it is the specific finding or-tht,c-n,1uir.1.oft-rcer that titere is rr. Jrr..o1'of theft or fraud on the parl of t[ e p. ritir ner., and the Managerr,eiri \vit:,-'sses arso did not express any doubts .n tr r: petitioner in 1he dire'':tic:. : I liaud or theft, and further it rs aiso he specific obsen'ati.rr rrl'tlr' e'nquiry officer that there was no cese ,rr'fi:ruci or theft on the pari,l 1r:' i .:titioner on any earrier occasion ard t:rcr.eibre benefit of do.bt ii;.ltcn,l:tl to rrirn. Furthermore, it is arso tht: sp.cifi: fi,ding of thc enquirr .lJic,:r. th.at the petitioner had informed iti:; .;uprrior Mr. G. Rama Rao thel tl r :uiside handle of the almarah was bro|rn. 8' It is no. rirc 'r isc of the respondent authorities thrrt the pe litio,er has not inlbrrned tl'e ;.rne.ior authority that the outside hardre of tre, armarah had brolter- i ir i:r ri iact the petitione. informed his sL,per. or . rre \4r. G. Rarna Rao :rr rl thcr:fbre when the petitioner had admited y ir-. forrned his superior ahorrr i,r'li rnctionin-q of the locking system or'al,rara r ab.ut ten da1,'s plior- to il.r,,, i,i.:id,--nt of cash-missing, and futher rrtel tirt pe:titioner was tbund to he rr,rt involved in fraud or theft, anc the N,i;rnagement Witnesses also cl i, i l_i{lt express any such doubts on the r critioner ,s intcgritl'. ancl lLr;-tlr,r ' benefit of doubt was arso extencit:cr irr far oLu. of the petitioner. rhe p,rr rr;ir,rent of dismissal from servict: arcl s,:tLring his terminal bcnelir'r , ri,ler protest ii an arbitrary a,d illeg;rI aciion. 9. Further'. tlrt, :ppreciation of evidence by the o; tll irnpugned Award where MW2 I't respt,ndent, at admittr:r that the paragraph l5 8 wp-5923-2017 NBK, J ( outside handle of the almirah was broken but the locking svstem was working, is contradictory and inconsistent with the findings of the enquiry officer at Point Nos'4 and 5 of ihe enquiry proceedings' ln that view of the matter, the irnpugned Award dated 13'01'20 i6 is liable to be set aside anil is accordinglY set aside- i0. The writ petitiorr is allowed' hoiding that the petitioner is entitled to continuity of service and consequential notional benefits from the date of dismissal to the date of his superannuation' and his terminal benefits shall accordingly be calculated and paid within eiglrt u'eeks from the date of lece ipt of a cop-v of this order' The petitioner shall not claim back rvages fitm rhc clate of dismissal to the date of superannuation' No costs' . Miscellaneous petitions pending' iI'an1" s:hall starrd closed' That Rule Nisi has made Absolute as above witness witness THE HON'BLE ACTING JUSTICE SjJOYPAUL' Friday' Wednesday' The Twentv'tnntn'i" 6t'i]'v r*o Thousand And Twentv Five //TRUE COPY// SD/.K. MADHAVT AS STANT REG ISTRAR SECTION OFFICER To, Court Warangal

1. The Chairman-cum-Presiding Officer' The lndustrial Tribunal-cum-Labour 2. ITC Limited, Paper Board (Specialty Paper) Division' Sarpaka' Khammam 3. One CC to Sri A' K Jayaprakash Rao' Advocate IOPUCI 4 Two CCs to GP for Labour' High Court for the State of Telangana' at District- HYderabad [OUT]

5. One CC to Sri S Sridhar' Advocate IOPUCI 6. Two CD CoPies W TJ BS HIGH COI,RT NBK,J DATED:28|AS|ZO2S ORDER WP.No.592 i\ of 2011 q ./i Z''ri':) 1/sa () Jn fU t ']c,. '-i: rHE s 14 lllt 2025 tq;cHIrJ) * I I I I I i I I I l I ! i l I ALLOWING THE WRIT PETITION WITHOUT COSTS 11