M/s. Telco Limited (now Known as Tata Motors Limited), having its office v. G.C. Patnayak

and the concerned workman Mr. Patnayak is not entitled to get any benefits.” Being aggrieved with the award dated 03.08.2012 passed in Reference Case No. 29/2002 the respondent herein had preferred a writ application being W.P.(L) No. 4707 of 2013 which was disposed of on 17.08.2020, wherein it was held as follows:

11. Taking into consideration that petitioner has rendered 25 years of long and unblemished service and his service record was clean and he was victimized by the Management and was dismissed from service, the Award dated 03.08.2012, passed by -3- the Presiding Officer, Labour Court, Jamshedpur in Ref. Case No. 29 of 2002 is hereby quashed and set aside. The matter is remitted back to the respondent Management for taking a fresh decision on the point of quantum of punishment and to consider for inflicting any other punishment, other than dismissal from service considering the nature of the offence.

Mrs.

Rashmi Kumar, learned counsel appearing for the management-appellant has submitted that the impugned order dated 17.08.2020 passed in W.P.(L) No. 4707 of 2013 is ambiguous to the effect that though it has been held by the learned Single Judge that the inquiry conducted was fair and proper but at the same time the learned Single Judge has come to a conclusion that in spite of putting in 25 years of unblemished service the respondent-workman has been victimized by the Management and has been dismissed from service. It has further been submitted that though the matter was remanded back to the respondent-management to take a fresh decision on the quantum of punishment and to inflict any other punishment, other than dismissal from service, the learned Single Judge could have very well decided the issue instead of remanding the matter back to the Management. Learned counsel further submits that the theft committed by the respondent-workman has been proved in the enquiry proceeding and has also been upheld by the learned Labour Court and since the conduct of the respondent-workman amounts to the employer losing faith on the employee, the punishment of dismissal which was passed by management should not have been interfered with by the learned Single Judge.

In course of her submission learned counsel for the appellant has referred to the case of “Management of Bharat Heavy Electricals Limited versus M. Mani” reported in (2018) 1 SCC 285 and “The Management of Telco versus K.C. Bandyopadhyaya” reported in [2018 (1) JCR 159 (Jhr)]. -4- The charge which was levelled against the respondent- workman was with respect to theft of certain articles belonging to the company and which was recovered from his possession. There appears to be no doubt of the fact about the inquiry having been conducted in a fair and proper manner and the remand which have been made by the learned Single Judge is only with respect to the quantum of punishment as it has been held that the same is severe considering the fact regarding the nature of charge as well as the fact that the respondent-workman had put in 25 years of unblemished service. In this context, reference may be made to the case of “Management of Bharat Heavy Electricals Limited versus M. Mani”(supra) wherein it has been held as follows: “24.

Now coming to the order of writ court (Single Judge) though, in our opinion, the Single Judge rightly held the departmental enquiry as being legal and proper but committed an error in remanding the case to the Labour Court without precisely saying as to what the Labour Court has to decide after remand and why writ court cannot decide such issues in the writ petition. We find that the in concluded paragraph of the order, Single Judge, remanded the whole case afresh for its decision on merits.

In our considered view, the Single Judge (writ court) having held the enquiry to be legal and proper instead of remanding the case to the Labour Court should have himself examined the short question which had survived for consideration in the writ petition, namely, whether the punishment of dismissal was commensurate with the charges or it required any interference by the Court under Section 11-A of the Act.

In other words, the remand to the Labour Court in this case by the Single Judge was not called for. It would have become necessary, if the Single Judge had come to a conclusion that the departmental enquiry is illegal. In such situation, the question would have arisen as to whether the employer should now be given an opportunity to prove the charge before the Labour Court on merits by adducing evidence provided such opportunity had been asked for in any form by the employer (see Shankar Chakravarti v. Britannia Biscuit Co. Ltd.).

However, this occasion did not arise because, as observed supra, the enquiry was held legal and proper by the Labour Court and Single Judge. -5- legality of the

Now coming to the impugned judgment, in our considered opinion, there was absolutely no justification on the part of the Division Bench to have allowed the appeals of the respondents and restored the order of the Labour Court by setting aside the dismissal order. The Division Bench, in our view, did not take note of correct legal position, which we have discussed above.

In our opinion, this is a clear case where the departmental enquiry was held legal and proper. We also, on going through the record of the case, hold that the departmental enquiry was properly held and was, therefore, legal and proper. So far as the quantum of punishment imposed on the respondents is concerned, having regard to the nature of charge which stood proved in the enquiry, in our view, the order of dismissal from service was the appropriate punishment. It was commensurate with the charge.

An act of theft committed by an employee while on duty is a serious charge. This charge once proved in enquiry, employee from service.” in dismissing the employer justified In the case of “The Management of Telco versus K.C. Bandhopadhyaya” (supra) consideration was being made to a case of theft and while relying on various pronouncements of the Hon’ble Supreme Court it was concluded thus: “6. It was held by Hon’ble Supreme court in the case of Divisional Controller, N.E.K.R.T.C. v. H. Amaresh, reported in (2006) 6 SCC 187, in paragraph no.18 as under: In “18. case, instant and not misappropriation of the funds by the delinquent employee was only Rs 360.95. This Court has considered the punishment that may be awarded to the delinquent employees who misappropriated the funds of the Corporation and the factors to be considered. This Court in a catena of judgments held that the loss of confidence is the primary factor of money the sympathy or misappropriated and generosity factor which impermissible in law.

26. In NEKRTC v. H. Amaresh this Court held that the punishment should always be proportionate to the gravity of the misconduct. However, in a case of corruption, the only punishment is dismissal. Similar view has been reiterated in U.P. SRTC v. Vinod Kumar and U.P. -7- SRTC v. Suresh Chand Sharma.” (Emphasis supplied) It was further held by the Hon’ble Supreme court in the case of Rajasthan SRTC and another v. Bajrang Lal, reported in 2014 (3) JCR 316 (SC) : (2014) 4 SCC 693, in paragraphs No. 21 and 22 as under: “21. As regards the question of disproportionate punishment is concerned, the issue is no more res integra. In U.P. SRTC v. Suresh Chand Sharma, it was held as under: (SCC p. 561, para 22)

22. In Municipal Committee, Bahadurgarh v. Krishnan Behari this Court held as under: (SCC p. 715, para 4) ‘4. …… In a case of such nature—indeed, in cases involving corruption—there cannot be any other punishment than dismissal. Any sympathy shown in such cases is totally uncalled for and opposed interest. The amount misappropriated may be small or large; it is the act of misappropriation that is relevant.’ to public Similar view has been reiterated by this Court in Ruston & Hornsby (I) Ltd. v. T.B. Kadam, U.P. SRTC v. Basudeo Chaudhary, Janatha Bazar (South Kanara Central Co- op. Wholesale Stores Ltd.) v. Sahakari Noukarara Sangha, Karnataka SRTC v. B.S. Hullikatti and Rajasthan SRTC v. Ghanshyam Sharma.

In view of the above, the contention raised on behalf of the respondent employee, that the punishment of removal from service is disproportionate to the is not worth acceptance. The only delinquency punishment in case of the proved case of corruption is dismissal from service.” (Emphasis supplied) It was further held by the Hon’ble Supreme court in the case of Diwan Singh v. LIC others, reported in (2015) 2 JCR 101 (SC) : (2015) 2 SCC 341, as under: “8. As far as argument relating to quantum of punishment, as modified by the High Court, which results in consequential forfeiture of pensionary benefits in view of Rule 23, quoted above, is concerned, we do not find the punishment to be harsh or disproportionate to the guilt, in view of the nature of the charge of which the appellant is found guilty in the present case. Time and again, this Court has consistently held that in such matters no sympathy should be shown by the courts.

In NEKRTC v. H. Amaresh, this Court, in para 18 of the judgment has expressed the views on this point as under: (SCC p. 193)

18. In the instant case, the misappropriation of the funds by the delinquent employee was only -8- amount and not that may be awarded cannot be a Rs 360.95. This Court has considered punishment delinquent employees who misappropriated the funds of the Corporation and the factors to be considered. This Court in a catena of judgments held that the loss of confidence is the primary of money factor the sympathy or misappropriated and generosity factor which impermissible in law. When an employee is found guilty of pilferage or of misappropriating the Corporation’s funds, there is nothing wrong in the Corporation losing confidence or faith in such an employee and awarding punishment of dismissal. In such cases, there is no place for generosity or misplaced sympathy on the part of the judicial forums and interfering therefore with the quantum of punishment.

In Karnataka SRTC v. A.T. Mane in which unaccounted amount was only Rs 93 this Court expressed its opinion in para 12 as under: (SCC p. 259) factor

12. Coming to the question of quantum of punishment, one should bear in mind the fact that it is not the amount of money misappropriated that becomes a primary for awarding punishment; on the contrary, it is the loss of confidence which is the primary factor to be taken into consideration. In our opinion, when a person corporation’s funds, there is nothing wrong in the corporation losing confidence or faith in such a person and awarding a punishment of dismissal.

In Niranjan Hemchandra Sashittal v. State of Maharashtra, this Court has made following observations in para 25 of the judgment: (SCC p. 654) of misappropriating guilty

25. …… In the present day scenario, corruption has been treated to have the potentiality of corroding the marrows of the economy. There are cases where the amount is small, and in certain cases, it is extremely high. The gravity of the offence in such a case, in our considered opinion, is not to be adjudged on the bedrock of the quantum of bribe. An attitude to abuse the official position to extend favour in lieu of benefit is a crime against the collective and an anathema to the basic tenets of democracy, for it erodes the faith of the people in the -9- system. It creates an incurable concavity in the rule of law.

In Rajasthan SRTC v. Bajrang Lal, this Court, following Municipal Committee, Bahadurgarh v. Krishnan Behari, has opined that in cases involving corruption there cannot be any other punishment than dismissal. It has been further held that any sympathy shown in such cases is totally uncalled for and opposed to public interest. The amount misappropriated may be small or large; it is the act of misappropriation that is relevant. In the said case (Rajasthan SRTC), the respondent employee was awarded punishment of removal compulsory respondents submitted that on an earlier occasion, the appellant was awarded a minor punishment for his misconduct, regarding defalcation of stamps. And now he is found guilty for the second time.” 7. In view of the aforesaid decisions, whenever any theft or misappropriation of the amount or unauthorizedly any employee is indulging into such type of activities, quantum of punishment of dismissal cannot be labelled as shocking and disproportionate punishment.” the present case learned counsel retirement.