JUDGMENT : 1. Avert delicate matter indeed for the respondent-employer. From the facts which would be narrated by me hereinafter it would be clear that the management of the respondent-employer did not have any grievance as such directly offending it in the sense of any misconduct having been committed by the petitioner qua the management. It appears that there was a spate of complaints from other workmen employed by the respondent-employer that thefts of money from their pockets of their clothes were taking place and that they had also lost their valuable items such as calculators, etc., from the premises of the company during the period when they were on the shopfloor when they had kept their usual civil dresses on the hangers outside the department provided by the management. The security officer appears to have taken cognisance of the frequent complaints from the workmen and after consulting his sub-ordinates and colleagues he laid a trap to catch the culprit. According to the management and rightly so a swift action became imminent in view of the growing unrest amongst the workmen as a result of the thefts which were taking place on the premises of the factory. In the aforesaid circumstances I have said that the misconduct alleged against the petitioner was not directly committed by him against the management but it was qua the other workmen whose property was being stolen. Even then when the acts of misconducts of thefts of money and other items belonging to the other workmen were taking place on the premises of the factory and the management was responsible for protecting and securing the property of the workmen who were employed by it. The trap was successfully operated by the watchman on 23 November 1985 at 8.30 A.M. at the gate of the factory. It appears that two currency notes of Rs. 10 each was found in a book which was carried by the petitioner while leaving the gate after completing his work in the third shift. It appears that it was a part of the trap that the workers who had kept their money in their pockets were required to note down the numbers of the currency notes. Accordingly, the notes which were found with the petitioner belonged to one workmen Sri S.P. Gogawale. Sri Gogawale appears to have given the numbers of the two tenners which were in his pocket. Accordingly, the notes which were found with the petitioner belonged to one workmen Sri S.P. Gogawale. Sri Gogawale appears to have given the numbers of the two tenners which were in his pocket. This writing was also signed by the other workmen. The numbers of the two notes seized from the petitioner's dairy/book tallied with those numbers. At the time of search when the aforesaid two notes were found with the petitioner, he gave it in writing on the very same day at that time on 22 November 1985, that the aforesaid two notes were found with him. This writing was signed by the others also. It was his admission that the notes were found with him and he had noted the numbers of such notes also. The owner of the said notes Sri Gogawale had already disclosed the numbers of the notes which he was having. Both the numbers were tallied. Sri Gogawale lodged a complaint with the management on the very same day that he lost the aforesaid two notes of Rs. 10 and that they were found with the petitioner after searching him. 2. As a result of the aforesaid episode the petitioner was served with the chargesheet, dated 23 November 1985, levelling a charge of committing theft and dishonesty on the premises of the company, etc The respondent-management instituted a domestic enquiry in the said charges and appointed one Sri Bhanage, a practising advocate, to hold such an enquiry in accordance with law. It appears from the record that initially the petitioner was suspended from employment from the very next day of the incident, i.e., 23 November 1985. It also appears from the record that the petitioner had attended the enquiry on 30 November 1985, 5 December 1985, 12 December 1985 and 13 January 1986. He did not remain present on 14 January 1986 He, however, was present on the next date, i.e., 27 January 1986. From 3 February 1986 to 13 April 1986 he did not attend the enquiry at all on six different dates and the enquiry officer appears to have adjourned the enquiry for want of his presence and to give him further ample opportunity to take part in the enquiry. From 3 February 1986 to 13 April 1986 he did not attend the enquiry at all on six different dates and the enquiry officer appears to have adjourned the enquiry for want of his presence and to give him further ample opportunity to take part in the enquiry. It also appears from the record that in the beginning of the enquiry he had told the enquiry officer that he himself would defend in the enquiry though, however, subsequently he appears to have changed his mind and requested the enquiry officer to permit him to be defended by a legal practitioner/an advocate in the enquiry. I may mention that initially the management was represented by a legally trained person but subsequently the said legally trained person, an employee of the company itself, was withdrawn and another officer replaced him as a management representative. The petitioner was finally not allowed to be defended by a legal practitioner/an advocate on the ground that there was no such provision under the Model Standing Orders which were applicable to the establishment. 3. On and from 26 April 1986 realising finally that the petitioner had no intention to take part in the enquiry at all, the enquiry officer set down to record evidence and to complete the enquiry ex parte. The management adduced its oral evidence by examining 16 witnesses from 26 April 1986 to 7 May 1986 on four different dates. It is further significant to note that before initiating the enquiry ex parte the management had taken care of issuing a notice in the local newspaper Sakal on 22 April 1986 informing the delinquent petitioner that the enquiry against him would be proceeded ex parte in his absence on 26 April 1986. This was required to be done as the petitioner had not attended the enquiry pursuant to the letters addressed to him by the respondent-company. After closing the evidence of the management the enquiry officer fixed the enquiry for the evidence of the workman and for recording his statement, if any, on 14 May 1986. The enquiry officer had forwarded to the delinquent workman true copies of the proceedings so far recorded including the notes of evidence. After closing the evidence of the management the enquiry officer fixed the enquiry for the evidence of the workman and for recording his statement, if any, on 14 May 1986. The enquiry officer had forwarded to the delinquent workman true copies of the proceedings so far recorded including the notes of evidence. The enquiry officer has further recorded in his findings whatever had transpired between him and the workman on telephone, etc., and after waiting for a long period the enquiry officer fixed as the last date of the enquiry to be 9 July 1986. A letter, dated 25 June 1986, was posted to the delinquent workman by Registered A/D and the same was returned as “unclaimed” by the postal authorities. Since the petitioner delinquent workman chose to remain away from the enquiry the enquiry was closed finally ex pate. The enquiry officer submitted his report, dated 13 August 1986, finding him guilty of the misconduct levelled against him. After receiving the enquiry officer's report, the respondent-management dismissed the petitioner-workman from service from 1 December 1986 for the acts of misconduct proved in the enquiry. 4. The petitioner was aggrieved by the dismissal order and he raised an industrial dispute for reinstatement with full back-wages and continuity of service. The said industrial dispute was referred by the State Government for adjudication to the Labour Court. Both the parties filed their pleadings and their respective documents before the Labour Court. The workman had questioned the propriety and legality of the order of dismissal on various grounds while the management justified its action as legal and proper. The Labour Court framed a preliminary issue of question of fairness and legality of the domestic enquiry held by the management. On the basis of the material on record the Labour Court decided the said question against the workman that the enquiry was fair, proper and that there was no breach or violation of any principles of natural justice in the enquiry and that the findings recorded by the enquiry officer were based on material and evidence in the enquiry and the same were not perverse and baseless. 5. Sri Bukhari, the learned advocate for the petitioner-workman has repeated the points of attacks on Part I Award of the Labour Court. 5. Sri Bukhari, the learned advocate for the petitioner-workman has repeated the points of attacks on Part I Award of the Labour Court. His grievance can be precisely stated below: “The domestic enquiry was an ex parte enquiry and therefore the petitioner workman had no opportunity of hearing in the matter and therefore, the principles of natural justice were violated in the domestic enquiry.” I am not agreeable with the said submissions of Sri Bukhari. It is crystal clear from the record that the enquiry officer who was a practising advocate had given the longest rope to the workman and had given amplest opportunity to take part in the enquiry. It is very clear from the record that the enquiry officer waited for the workman for a long period by adjourning the enquiry from time to time so that the workman could participate in the enquiry. Getting tired of the adjournments of the enquiry in view of the persistent absence of the petitioner the enquiry officer became helpless and hence he decided to proceed ex parte in the enquiry Even at last he did not hastily commence the evidence but he directed the management to issue a Press Note informing the workman to attend the enquiry on 26 April 1986. The said Press Note appeared in Marathi local daily “Sakal” but it was all in vain as the workman persisted to remain away from the enquiry. The ex parte proceedings continued for four dates and the workman did not care to come on any date to participate in the enquiry and to cross-examine the company's witnesses. There were 10 witnesses examined in the enquiry, eight were workmen and two were from the management side. It is further pertinent to note that the enquiry officer has taken every precaution to comply with even the minute principle of natural justice and did not act in any manner hastily. As soon as the management had closed its evidence on 7 May 1986 he did not declare the enquiry to be closed on the very same day which he could have done with justification. We however sent a notice along with the compilation of the proceedings including the notes of evidence recorded by him to the workman calling upon him to meet the case against him by making his oral statement and also by adducing his own evidence. We however sent a notice along with the compilation of the proceedings including the notes of evidence recorded by him to the workman calling upon him to meet the case against him by making his oral statement and also by adducing his own evidence. The workman did not attend on 14 May 1986 nor did he attend on any date thereafter. He did not even care to claim the registered letter sent by the enquiry officer requiring him to attend the enquiry on 9 July 1986. I fail to understand what more was required to be done by the management and the enquiry officer to quench the thirst of the workman for principles of natural justice. If the delinquent workman doggedly persists to remain away from the enquiry inspite of invitations after invitations to attend the enquiry, to cross-examination the company's witnesses, to make his own statement and to examine his own witnesses, there was absolutely no alternative before the management and also before the enquiry officer to complete the enquiry ex parte in the absence of the delinquent workman. None, not even any Court of law could have waited more or indefinitely for the workman to appear in the enquiry. The findings recorded by the Labour Court that there was no infirmity in the enquiry and that there was no violation of any principles of natural justice cannot be faulted with. According to me, there is absolutely no illegality or infirmity or any breach or any principles of natural justice in the conduct of the enquiry. 6. In our case the workman was cajoled and coaxed enough by the management to get his appearance before the enquiry officer but he was never pleased to show his face in the enquiry. It does not therefore lie in his mouth to say that there was no enough opportunity for him to attend the enquiry. There is not even a iota of violation of any principles of natural justice in the enquiry on the part of the enquiry officer. 7. Sri Bukhari has further contended that the findings are baseless and perverse Barring his submissions nothing more was pointed out to me to hold and dub that the findings recorded by the enquiry officer as perverse. 7. Sri Bukhari has further contended that the findings are baseless and perverse Barring his submissions nothing more was pointed out to me to hold and dub that the findings recorded by the enquiry officer as perverse. I have myself perused the whole record and the report and I do not find any conclusion drawn by the enquiry officer which is not based on the material on record. According to me, the findings recorded by the enquiry officer and also by the Labour Court are legal, proper and justified in this respect. The third attack of Sri Bukhari on the point of enquiry was that the delinquent workman was not allowed to be defended by a legal practitioner/an advocate. From the record it is clear that initially the management representative was a legally trained person but when it was pointed out by the workman by demanding from the enquiry officer that even he should be allowed to be represented by a legally trained person, the management immediately changed the earlier legally trained person by appointing another officer as its representative. According to Sri Bukhari it was an illegal act on the part of the management. Sri Bukhari however did not elaborate how it was an illegal Act on the part of the management. After realising the correctness in the view point of the workman that he was pitted against a legally trained person the management removed the legally trained person and appointed another officer who was not so legally trained person to match the fight Even then Sri Bukhari points out that the other person appointed by the management was also a legally trained person as he had attended ? enquiries. I do not agree with the said submission of Sri Bukhari Merely because an employee or an officer has attended ? enquiries for the management he does not become a legally trained person. It is an elementary necessity or requirement in the enquiry that the company will have to put forward its case through some educated and well informed officer, i.e., its employee or an officer who is to carry the file, documents and to present the case before the enquiry officer. As far as the workman is concerned even an educated clerk would be an unmatched for him. As far as the workman is concerned even an educated clerk would be an unmatched for him. The principles of natural justice cannot be stretched so far that the management also should appoint a person of the equal level of the delinquent workman According to Sri Bukhari since the workman was pitted against such a legally trained person his request to engage a legal practitioner ought to have been granted Sri Bukhari therefore contends that in the absence of an advocate there was a great handicap for the workman to defend himself, a serious prejudice was caused to him and therefore, the principles of natural justice were to be violated. I am not able to agree with the said contention of Sri Bukhari. Admittedly the parties are governed by the model Standing Orders. The rights of the delinquent workman to be defended is restricted wholly to the provisions under the Standing Orders wherein he can be defended only by the co-workman or his union representative. Sri Bukahri has submitted that in view of the charge against the workman neither any co-workman nor any union representative was prepared to defend the delinquent workman in the enquiry and therefore, it was necessary for him to seek permission to bring in a legal practitioner. His rights are founded in and are confined to the Standing Orders. No party can travel beyond the Model Standing Orders applicable to them. 8. It is further clear from the report of the enquiry officer that in the beginning for a number of dates the workman himself had attended the enquiry and had clearly submitted to the enquiry officer that he would defend himself. It is possible that on a second thought on the basis of legal advice he had sought permission to engage a legal practitioner in the enquiry. Since it was not permissible under the Standing Orders the management has objected to such a request. The enquiry officer had declined to accept the request made by the workman in that behalf. According to me, the delinquent workman had voluntarily remained away from the enquiry till the end and refused to participate therein. He even went to the extent of not responding to the enquiry officer's invitation to appear before him and make his own statement for which at least he could have come and explained his version to the charge to the enquiry officer. He even went to the extent of not responding to the enquiry officer's invitation to appear before him and make his own statement for which at least he could have come and explained his version to the charge to the enquiry officer. He did no even care to perform his part of the duties to get absolved from the charge made by his co-workman against him. He failed to exercise his right which is available under the Standing Orders and he insisted to have a right which did not exist under the provisions of the Standing Orders. The law on this point has been sufficiently clarified and crystalised by the Supreme Court in the judgment of Crescent Dyes and Chemicals, Ltd v. Ram Naresh Tripathi reported in 1993 (1) L.L.N. 761 . The Bench of the three Hon'ble Judges of the Supreme Court has succinctly stated after considering its earlier decisions in Paras. 11, 12, 13, 14, 15 and 16. The Supreme Court has finally concluded that the right to be represented through counsel or agent was restricted, controlled or regulated by statute, rules regulations or Standing Orders. It is further observed that a delinquent has no right to be represented through counsel or agent unless the law specifically confers such a right. Sri Bukhari has tried to distinguish the said judgment of the Supreme Court on the ground that the earlier judgment in the case of Board of Trustees, Port of Bombay v. Dilipkumar Raghavendranath Nadkarni reported in 1983 (1) L.L.N. 314 , was not considered by the Supreme Court in its subsequent judgment. It is a fact that in Crescent Dyes case there is no reference to Nadkarni case decided by the two Judges. The ratio laid down by the Crescent Dyes judgment is specifically on the point in respect of the right of the delinquent workman to be defended in the enquiry and it has been explained and crystalised. The Crescent Dyes judgment was given by three Judges and is a later judgment on the specific point before me and hence I am bound by the same Apart from that aspect, in the case of Nadkarni the management had appointed a legally trained officer to represent it while in our case there was no such legally trained officer pitted against the workman. In any case there is no inconsistency in the philosophy underlying both the judgments. In any case there is no inconsistency in the philosophy underlying both the judgments. According to me, the principles of natural justice have been codified under the Standing Orders determining the rights of the delinquent workman and therefore such codified Standing Orders would be determinative of the rights of the parties. Besides, in our case the facts are so simple and the position is more or less not disputed by the delinquent workman that two notes of Rs. 10 were found in his dairy/book which he was carrying in his hand and the numbers of the said notes tallied with the numbers given by the owner of such currency notes Sri Gogawale. It is obvious that the two tenners found in the possession of the delinquent workman did not belong to him but were claimed to be owned by Sri Gogawale who had given the numbers of the said two currency notes in advance. There is absolutely no explanation given by the delinquent workman how he came in possession of the said two currency notes, the number of which tallied with the numbers given by Sri Gogawale. It was very simple case of explanation how he came in possession of the said two currency notes. It did not involve any question of law, much less a complicated one There were number of witnesses who had signed the Panchanama in respect of the numbers of the notes recorded by Sri Gogawale and also the numbers of notes found in possession of the delinquent workman and the crucial fact that both the numbers tallied. There is also evidence eon record that delinquent workman was found searching the pockets of the other workmen. There were eight co-workmen who gave evidence against the delinquent workman. The delinquent workman has not even whispered why they were against him. The delinquent workman has claimed that he was being victimised by the management as he was active trade unionist. As against his such a tall claim of being active trade unionist eight workers have deposed against his “activities” inside the department and there was a specific complaint to the management that they were losing their money from their pockets and also their valuable items after they come in the factory for work. In the aforesaid circumstances there is hardly any point in favour of the delinquent workman to get any sympathy from any corner. In the aforesaid circumstances there is hardly any point in favour of the delinquent workman to get any sympathy from any corner. It is therefore, a futile effort on the part of Sri Bukhari to have put forward a plea that the delinquent workman was not allowed to be defended by a legal practitioner in the enquiry and therefore he was seriously prejudiced. All the facts are so simple which stare in the face to conclude that there was absolutely no breach of any principles of natural justice and no violation of any Standing Orders and there was no prejudice caused to the delinquent workman. 9. The next point which Sri Bukhari argued was that the delinquent workman had requested the management to change the venue of the enquiry from the factory to somewhere else outside the work place. It was his case that when he tried to enter the factory he was threatened by the security personnel, etc. There is absolutely no substance in Sri Bukhari submission as there is no provision under the Standing Orders or any other law brought to my notice that the delinquent workman is entitled to have as his place of enquiry according to his choice. As far as the venue of the enquiry is concerned it is for the management to decide the place of the enquiry considering various factors. Ordinarily the work place of the delinquent workman is always safe as he would be amongst his co-workman and would be safe in the work place. Any place outside the factory might be more unsafe as there would be nobody to protect such a workman, who would be alone outside the factory. Even the management would not dare to bring outside elements to cause any harm or hurt the delinquent workman. It is therefore, always safe for a delinquent workman to be on the factory premises or at the work place for facing a domestic enquiry. In our case the delinquent workman who was under suspension was required to join his regular employment on revocation of suspension from 23 November 1985. The order of suspension was revoked on 21 February 1986 and he was required to join from 3 March 1986. He was required to attend his duties and at the same time to attend the enquiry on the given dates. The order of suspension was revoked on 21 February 1986 and he was required to join from 3 March 1986. He was required to attend his duties and at the same time to attend the enquiry on the given dates. It would have been very convenient for him as well as for the management to have attended the enquiry in the factory premises. None was required to go out from time to time. The delinquent workman could have done his work when enquiry was not proceeding and he could have attended the enquiry as and when called by the enquiry officer. All the witnesses were employed in the company and eight workmen who were examined in the enquiry were also working in the factory. Any venue outside the factory would have caused dislocation to work and inconvenience to many workmen and witnesses. According to me, there was no prejudice caused to the delinquent workman by the decision of the management not to change the venue of the enquiry. The last point which Sri Bukhari tried to urge was non-payment of subsistence allowance during the enquiry. This point according to Sri Purav for the respondent-employer was not raised before the Labour Court. Nevertheless I do not find any merit in the said contention of Sri Bukhari. The suspension order, dated 23 November 1985 was withdrawn by an order, dated 21 February 1986, and the workman was required to be on duty from 3 March 1986. The workman had already started remaining absent from 4 January 1986 and he never attended the enquiry. He could have very well attended the enquiry and made his grievance before the enquiry officer and before the management that it was not possible for him to attend the enquiry if he did not get his subsistence allowance. No such grievance was even made at any time including before the Labour Court. It is therefore futile to argue that the delinquent workman did not attend the enquiry for want of subsistence allowance. 10. A very serious grievance was made by Sri Bukhari that from 3 March 1986 after revocation of suspension, the delinquent workman was not allowed to enter the factory at all and therefore he could not attend the enquiry. From the entire correspondence on record and the report of the security personnel the submission of Sri Bukhari has no substance. 10. A very serious grievance was made by Sri Bukhari that from 3 March 1986 after revocation of suspension, the delinquent workman was not allowed to enter the factory at all and therefore he could not attend the enquiry. From the entire correspondence on record and the report of the security personnel the submission of Sri Bukhari has no substance. The delinquentworkman has tried to create some record to show that he had tried to attend the factory and the enquiry but he was not allowed to enter the factory The respondent-management has replied all his letters denying the allegations that he was not allowed to enter the factory. According tome, when the delinquent workman entered the factory safely from 30 November 1985 to 31 January 1986 and there was no obstruction for him to attend the enquiry there is possibly no reason for the management to have ordered orally the watchman at the gate not to allow him to come in the factory. According to me, the delinquent workman has tried to create a false record perhaps on advise being a second thought or after thought On 14 January 1986 the delinquent workman had not attended the enquiry while on the next date 27 January 1986. he had attended the enquiry after entering into the factory and thereafter he did not care to come at the factory gate at all though he has addressed some letters to the effect. I do not think that the enquiry officer a practising advocate would go to this extent. I further do not feel that the management also would stoop to this level as there is no material to infer such a conduct on the part of the management. It is borne out from the record that the delinquent workman had even telephonic contact with the enquiry officer. It is perhaps possible that the decision of the delinquent workman was on an ill advice received by him to abstain from the enquiry and to create a false record against the management that he was not allowed to enter in the factory 11. The Labour Court gave his Part II award on 31 May 1998, whereby he held that the misconduct was established from the evidence in the enquiry and also before the Court and that the punishment of dismissal was justified. The Labour Court gave his Part II award on 31 May 1998, whereby he held that the misconduct was established from the evidence in the enquiry and also before the Court and that the punishment of dismissal was justified. Consequently the Labour Court has further held that the delinquent workman was not entitled to the relief of reinstatement with full back-wages and continuity of service. In exercise of his powers under S. 11A of the Industrial Disputes Act, 1947, the learned Judge himself has gone into the evidence and material before the enquiry officer to find out whether the findings and conclusions recorded by the enquiry officer were flowing from the same and that they were not perverse or baseless. The Labour Court has taken sufficient care to go through the entire material on record. It has also considered the plea of the delinquent workman that he was victimised and that one Sri Kadem had given a threat that he would be removed from employment. Apart from everything else there is no manner of doubt in my mind that the misconduct alleged against the delinquent workman has been far more sufficiently proved than is ordinarily required in such matters. I have carefully gone through the part II award of the Labour Court and I do not find any illegality or infirmity in the same. The Labour Court has carefully considered the case-law in the context of the facts of the present case. In the given circumstances the Labour Court has rightly found that the charge was very serious and had serious adverse effects on the discipline and morale of the workman who were reporting for work every day in the course of their employment. It is legal and moral responsibility of the management to protect such workmen by every means while they are under its roof in work place. Not only the workmen should be physically safe and secure but even their property, that is, some pocket money, their clothes and their belongings which they are permitted to bring in should be safe and secure. The management is lawful and moral custodian of the workmen and their property till they are within the presincts of the factory. Not only the workmen should be physically safe and secure but even their property, that is, some pocket money, their clothes and their belongings which they are permitted to bring in should be safe and secure. The management is lawful and moral custodian of the workmen and their property till they are within the presincts of the factory. The Labour Court has rightly exercised its discretionary power under S. 11A of the Act in not granting any reliefs to the delinquent workman, and there is absolutely no illegality or infirmity in the impugned Awards of the Labour Court requiring any interference by this Court in exercise of its extraordinary jurisdiction under Arts. 226 and 227 of the Constitution of India. The petition is therefore dismissed and the Rule is discharged. No order as to costs. 12. Issuance of certified copy of this judgment and order is expedited.