Gundu Baburao Shinde v. Managing Director, Shetkari Sahakari Sangh Ltd. , Kolhapur — 1995 DIGILAW 100 (BOM)

JUDGMENT : 1. This Writ Petition under Article 227 of the Constitution of India impugns an order of the Industrial Court dated November 23, 1987 made in Revision Application (ULP) Nos. 25 of 1986 and 52 of 1986 under the provisions of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 (hereinafter referred to as the Act). The Petitioner was working as a "Mapadi" (an employee measuring and selling articles in a shop) in the service of the Respondent which sells consumable articles in its shops including kerosene which is a controlled commodity under the provisions of the Essential Commodities Act. 2. In March 1980 the Petitioner was working in the Vaibhaywadi shop of the Respondent. On March 31, 1980 there was a surprise visit to the said shop by D. D. Pawar, a Director of the Respondent, along with S. R. Chavan, Manager, Diesel Division, and a Inspector, M. A. Dalvi. During the course of the surprise visit, three irregularities were noticed by them. The first was that the Petitioner had not worn the uniform while on duty, as he was required to do. The second was that the Petitioner had been collecting Rs. 5.90 for four litres of kerosene sold instead of the controlled price of Rs. 5.84, thereby collecting 6 paise in excess for every litre of kerosene sold. An unexplained excess amount of Rs. 45.80 was also found in the cash till. Lastly, it was found that the Petitioner had tampered with the carbon copies of the bills by over-writing the figures "1 litre - Rs. 1.46" in place of "2 litres - Rs. 2.92" which were the figures written on the originals, giving rise to the suspicion that he might have misappropriated an amount of Rs. 105.12. A detailed report of the incident was made by the Inspector on April 4, 1980 in which it was suggested that the Petitioner was indulging in irregular practice of selling kerosene at excess price and also might have misappropriated the amount of Rs. 105.12 in addition to not wearing his uniform on duty. The Inspector also obtained a statement signed by seven customers who were present at the shop at the time of the visit indicating the bill numbers, the quantity of kerosene sold to them and the actual amount collected from them. 105.12 in addition to not wearing his uniform on duty. The Inspector also obtained a statement signed by seven customers who were present at the shop at the time of the visit indicating the bill numbers, the quantity of kerosene sold to them and the actual amount collected from them. On May 7, 1980, the Petitioner was served with a charge sheet calling upon him to explain his conduct. Three charges were levelled against him. One pertained to not wearing the uniform while on duty. The second pertained to the over-writing in the carbon copies of coupon Nos. 1 to 72 coupled with the allegation that he had misappropriated Rs. 105.12. The third charge pertained to collection of Rs. 5.90 for every 4 litres instead of Rs. 5.84 for every 4 litres. 3. By his reply dated May 10, 1980 the Petitioner denied the charges against him. Though he admitted that he was found on duty without wearing his uniform, his explanation was that both the sets of uniform supplied to him had been given for washing; with regard to the charge of over charging, his explanation is somehow terse. He only says that he had written the memos in which for every two litres the sale amount was shown as Rs. 2.92 because there was a big crowd of customers. He expressed regrets and stated that he would take care in future. With regard to the third charge of discrepancy between the originals and the duplicate of coupon No. 1 to 72, he said that till he had written the first 72 memos, he had not noticed the fact that sale price had been shown as Rs. 2.92 for every two litres. When it came to his notice, he decided to correct it and since the memos were very small, it was not possible to reinsert the carbon and correct the originals and the duplicates simultaneously. It was for this reason that he corrected the duplicate in ink without correcting the originals. He also expressed regrets for his action and promised that in future he would he careful. 4. An inquiry was held into the chargesheet given to the Petitioner in which two witnesses were examined. The first was Y. M. Pathak, Secretary, who was actually the representative of the Respondent. He also expressed regrets for his action and promised that in future he would he careful. 4. An inquiry was held into the chargesheet given to the Petitioner in which two witnesses were examined. The first was Y. M. Pathak, Secretary, who was actually the representative of the Respondent. I fail to see the purpose of examining him in the inquiry, because all that he narrated in the inquiry was hearsay and purely on the basis of the record, apart from repeating the allegations against the Petitioner as contained in the charge-sheet. The inquiry documents do not show that he was offered for cross-examination. The second witness was Mansingrao A. Dalvi, the Inspector. There is a specific endorsement in the inquiry documents showing that he was offered for cross-examination to the Petitioner and the Petitioner declined to cross-examine him. Thereafter, the Petitioner himself gave his statement to the Inquiry Officer on which he was asked some questions. During the course of his statement, in addition to repeating his stand that he did not wear the uniform on the day of the incident because both sets were under washing, and reiterating his explanation about the over-writing in the carbon copy of the memos had been brought to the notice of the Manager after the first 72 copies had been written and, as instructed by the Manager, he had corrected them. With regard to the charge of collecting excessive money through the customers, the Petitioner categorically admitted the same. He also admitted that an excess amount of Rs. 45.80 paise had been collected by him. His only explanation was that he had collected Rs. 5.90 per every four litres on the kerosene sold, instead of Rs. 5.84 paise, because there was no change available. The Inquiry Officer found the Petitioner guilty of the misconduct alleged against him and the Petitioner was finally dismissed from service. 5. The Petitioner Challenged the dismissal by way of a complaint under Item 1 of Schedule IV of the Act. The Labour Court by its preliminary order dated June 29, 1984 held that the domestic inquiry held against the Petitioner was illegal and improper for want of sufficient opportunity in the inquiry. Two reasons were advanced in support of the conclusion by the Labour Court. The Labour Court by its preliminary order dated June 29, 1984 held that the domestic inquiry held against the Petitioner was illegal and improper for want of sufficient opportunity in the inquiry. Two reasons were advanced in support of the conclusion by the Labour Court. The first was that a the customers who had signed on the statements giving information about their bill numbers, names, the quantity of sale of kerosene and the amount collected from them, had not been examined before the Inquiry Officer. The second reason was that Pathak was not offered for cross-examination. Thereafter, the Labour Court. By an order dated July 18, 1986 the Labour Court held that the Respondent had engaged in an unfair labour practice within Item I of Scheduled IV of the Act, because in its view the charge of misappropriations and overwriting had not been borne out, but that the only charge borne out was the charge of not wearing the uniform on duty and an order of dismissal for such a minor misconduct was grossly disproportionate. In this view of the matter, the Labour Court, by the said order, directed the Respondent to take the Petitioner in service as a fresh appointee and denied the reliefs of reinstatement, continuity of service and full back wages. Both parties being aggrieved by the order of the Labour Court, moved the Industrial Court in Revision. The Petitioner's Revision Application was Revision Application (ULP) No. 25 of 1986, while the Respondents Revision Application was Revision Application (ULP) No. 152 of 1986. By the impugned order dated November 25, 1987, the Industrial Court allowed the Revision Application of the Respondent and dismissed the Petitioner's Revision Application and the original Complaint and denied all reliefs to the Petitioner. Being aggrieved by both the orders, the petitioner. Being aggrieved by both the orders, the Petitioner is before this court by the present Writ Petition. 6. Mr. S. B. Naik, learned counsel for the Petitioner, contends that the Industrial Court acted in excess of its jurisdiction on interfering with the order of the Labour Court and the exercise of the jurisdiction by it was clearly contrary to the law laid down in Hindustani Prachar Sabha v. Dr. Miss Rama Sen Gupta 1986 I.C.L.R. 77 regarding the limits of interference by Industrial Court in Revision. Miss Rama Sen Gupta 1986 I.C.L.R. 77 regarding the limits of interference by Industrial Court in Revision. He also contends that there was absolutely no evidence, either in the domestic inquiry or before the Court, to sustain the charges and, therefore, the Industrial Court should have exercised its powers in favour of the Petitioner and directed reinstatement with full back wages. It is not possible to accept either of these contentions. In the first place, the first finding made by the Industrial Court was that the Labour Court had completely misread the evidence on record in taking the view that the domestic inquiry was bad. The Industrial Court has pointed out, and in my view rightly, that both the reasons advanced by the Labour Court for holding the domestic inquiry were unsustainable. In the first place, Pathak was merely acting as the representative of the Management in the domestic inquiry and had not deposed to any facts of his own independent knowledge other than repeating what the contents of the admitted documents were. In these circumstances, even assuming he was not offered for cross-examination, there was no prejudice caused to the Petitioner and the inquiry could not have been held to be bad on that ground. About non-examination of customers in the domestic inquiry, the Industrial Court rightly relied on a judgment of the Supreme Court in State of Haryana and Another Vs. Rattan Singh, (1977) 2 SCC 491 , wherein it was pointed out that in a case where members of public were involved, unless there were extra-ordinary grounds to suspect that complaints had been mala fide given by them, a statement taken from a member of public even if not subject to cross-examination, could be accepted. In the instant case, Inspector Dalvi had obtained a joint statement of seven customers to whom the Petitioner was alleged to have sold kerosene at higher rates. The statement gave full particulars of the sale, the name of the customer and his signature or thumb impression. As a matter of fact, the Petitioner himself did not dispute the said fact. In the circumstances, to characterise the domestic inquiry as illegal or improper was nothing, but a perverse conclusion and, in my view, the Industrial Court was therefore, entitled to set aside the said finding and reverse it. As a matter of fact, the Petitioner himself did not dispute the said fact. In the circumstances, to characterise the domestic inquiry as illegal or improper was nothing, but a perverse conclusion and, in my view, the Industrial Court was therefore, entitled to set aside the said finding and reverse it. Once it is held that the domestic inquiry does not suffer from any infirmity, there is no difficulty in holding that the evidence on record in the domestic inquiry more than amply proves the charge against the Petitioner. The explanations given to all three charges by the Petitioner were undoubtedly lame and intended to save his skin. The most important of the three charges, was the one which pertained to selling of kerosene at price in excess of the statutory controlled price. The Petitioner does not dispute that charge at all but gives a lame excuse that he had to do it because there was no change available. This conduct of the Petitioner would perhaps have entailed both criminal and civil consequences for the Respondent, as the employer. Its licence to sell kerosene could have been cancelled and it could have been prosecuted under law for selling an essential commodity at a price in excess of the controlled price. The Petitioner's explanation with regard to the charge of over-writing and correcting the duplicate copies of the memos is also unacceptable. The Petitioner tried to wriggle out of it by throwing the blame on the Manager and said that the Manager had instructed him to do so. Obviously, this was an after-thought and unbelievable. In this state of circumstances, the Inquiry Officer had no difficulty in holding the Petitioner guilty of atleast two serious charges of over-writing in the cash memos and charging excess price for selling kerosene. As far as the sale of kerosene is concerned, the petitioner admitted not only that he had sold kerosene at the rate of Rs. 5.90 for every four litres, but also that the excess cash collected by him thus was Rs. 45.80, which means that he must have effected sale of about 700 litres. Since kerosene was being sold on couples of 2, 4 and 6 litres, even if it be assumed that all customers purchased 5 litres at a time, it would mean that the Petitioner must have effected sales to more than 100 customers in order to collect Rs. 45.80, which means that he must have effected sale of about 700 litres. Since kerosene was being sold on couples of 2, 4 and 6 litres, even if it be assumed that all customers purchased 5 litres at a time, it would mean that the Petitioner must have effected sales to more than 100 customers in order to collect Rs. 45.80 as excess. In these circumstances, I am not impressed by the contention of Mr. Naik that there was no evidence whatsoever at the domestic inquiry to sustain the charge against the Petitioner. 7. In my view, the Industrial Court did not exceed its jurisdiction and has acted very much within its jurisdictional limits delineated by the Divisional Bench judgment of this Court in Hindustani Prachar Sabha (supra). The Industrial Court has given good reasons for interfering with the impugned order of the Labour Court and pointed out that, once it was held that a very serious misconduct had been committed, the Labour Court ought not to have come to the conclusion that there was unfair labour practice on the part of the Respondent, much less could it have interfered with the punishment meted out to the Petitioner. I find it difficult to accede to the contention that the Industrial Court exercised jurisdiction either irregularly or that it exceeded its jurisdiction. In my view, the Industrial Court was right in interfering with the order of the Labour Court and dismissing the Complaint. There is no merit in the Petition which deserves to be dismissed. 8. Writ Petition is dismissed. Rule discharged. No orders as to costs.