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2005 DIGILAW 582 (KER)

P. Cherian Urmis v. Labour Court

2005-09-01

KURIAN JOSEPH

body2005
Judgment :- The scope and extent of application of the principles of natural justice, even with regard to procedural matters, in the case of disciplinary proceedings in labour cases is the issue considered in this case. Ext.P4 award of the Labour Court, Ernakulam in T.D.49/93 is under challenge at the instance of the workman. The issue referred for adjudication is “whether the dismissal of Sri. Cherian Urmis is justifiable or not, if not what should be the relief entitled to him.” The petitioner was working as Fitter Grade I under the second respondent company. While so, disciplinary proceedings were initiated against him. The allegation is that the petitioner kept tools and other items belonging to the company in his personal locker. And such conduct amounted to theft or fraud or dishonesty. A domestic enquiry was conducted. The Enquiry Officer found that the delinquent was guilty of the misconduct of dishonesty connected with the property of the company. The disciplinary authority accepted the findings of the Enquiry Officer and he was dismissed from service. Though the petitioner made an attempt by way of a representation, it was not considered and hence the dispute. The Labour Court in the impugned award upheld the domestic enquiry and justified the punishment. Hence the writ petition. 2. It is the main contention of the petitioner that the domestic enquiry conducted is in violation of the principles of natural justice, he was not given any list of witnesses or documents. There is also a contention that the petitioner was not given copy of the enquiry report and the third contention is that no notice was given before imposing the punishment. Virtually the workman was denied of any opportunity to make an attempt to disabuse the impressions in the mind of the disciplinary authority. The punishment order would show that even the past unrelated conduct of the petitioner was taken into consideration while imposing the punishment and yet an opportunity for hearing was denied. Sri Pathrose Mathai, learned Senior counsel appearing for the second respondent defended and justified the procedure followed by the disciplinary authority contending that the disciplinary proceedings are taken and concluded only on the basis of the standing orders of the company. Sri Pathrose Mathai, learned Senior counsel appearing for the second respondent defended and justified the procedure followed by the disciplinary authority contending that the disciplinary proceedings are taken and concluded only on the basis of the standing orders of the company. It is further contended that at any rate, the whole issue was before the Labour Court and the Labour Court has considered the case on merits and has found that the penalty as imposed is justified and hence this Court may not go into the merits of the case or other contentions now advanced by the petitioner. It is further contended that the standing orders do not provide for the enquiry report to be furnished to the delinquent and in any case no prejudice has been caused to the petitioner on that ground. Reliance is placed on the decisions of the Supreme Court in Union Bank of India v Vishwa Mohan (1998) 4 SCC 310) and Managing Director, ECIL, Hyderabad and others v. B. Karunakar and others (1993 (4) SCC 727). 3. I am afraid, the contentions of the learned Senior Counsel cannot be appreciated. It is not in dispute that the domestic enquiry was conducted by an officer other than the disciplinary authority. It is also not in dispute that the report of the enquiry was relied on by the disciplinary authority. Thus a material not disclosed to the petitioner is used against the delinquent. A perusal of Ext.P3 order imposing the punishment would show that the disciplinary authority has even gone beyond the recommendations of the Enquiry Officer, while imposing the harshest punishment of dismissal from service. The disciplinary authority has gone to the extent of inferring the motive of the delinquent in keeping the articles in his personal locker. To quote from the punishment order, “having considered the evidence in the enquiry, I am satisfied that he has dishonestly removed these articles and he has done this for the ultimate removal of the listed items from the factory itself.” It is also seen from the punishment order that the disciplinary authority had examined the past record of the petitioner in arriving at a decision to impose the punishment. One material relied on is the memo dated 20.11.1989 issued to the delinquent. One material relied on is the memo dated 20.11.1989 issued to the delinquent. It is stated in the writ petition that the said memo pertained only to an overstayal and it has nothing to do with the impugned misconduct. Thus it is a case where the disciplinary authority accepted the findings of the Enquiry Officer without affording an opportunity to the delinquent to offer his explanation on the findings, it is a case where no opportunity was given to the delinquent before imposing the harshest punishment of dismissal from service and it is a case where the disciplinary authority relied on materials other than the enquiry report for imposing the maximum punishment and in such process apparently misdirected himself in also referring to irrelevant factors. 4. The Labour Court in the impugned award, despite the contentions of the petitioner on violation of the principles of natural justice, lack of fair opportunity, the enquiry being improper on the ground of non-service of documents and witnesses in advance, upheld the domestic enquiry mainly observing that “In arriving at the findings, the Enquiry Officer relied on the evidence of responsible workers in the factory. So the findings are supported by legally acceptable evidence. No interference is called for. Therefore, the domestic enquiry is held valid and proper.” Thereafter, the Labour Court proceeded to consider the question of punishment under Section 11A of the Industrial Disputes Act, 1947. The Labour Court, without any further discussion held, in the factual background as referred to above that “the worker who commits dishonesty or fraud in handling the property of the employer deserves no sympathy. No leniency is called for in case of theft or dishonesty in the matter of dealing with the employer’s property. Such workmen have to the shown the “exit” so that the industry may “exit”. The principle is certainly sound; but the question is as to how to show the ‘exit’. 5. The Labour Court failed to advert to the contention regarding violation of the principles of natural justice in the procedure adopted for imposing the punishment. Apparently the Labour Court, taking note of the charge being dishonesty and the same having been proved in the domestic enquiry took the view that nothing more is necessary. The first question is not whether the delinquent deserved such punishment. That question is whether the delinquent has been condemned in accordance with law. Apparently the Labour Court, taking note of the charge being dishonesty and the same having been proved in the domestic enquiry took the view that nothing more is necessary. The first question is not whether the delinquent deserved such punishment. That question is whether the delinquent has been condemned in accordance with law. One may have committed the worst of offences, say even murder. But that does not mean that he should be condemned, convicted and sentenced to death otherwise than in accordance with the procedure provided under law. And that procedure should be just, fair and reasonable and not autocratic and arbitrary. Infraction/byepassing of such procedural safeguards would be negation of the fundamental rights under Article 14 of the Constitution of India. Assuming for argument’s sake that the petitioner is found guilty of the dishonesty, and if the delinquent has a case that the said finding is either erroneous or erroneously arrived at, should he be not told as to what is the finding on dishonesty and should he be not shown the finding so that he could make an attempt to persuade the disciplinary authority not to accept such findings? Such an opportunity in the instant case was inevitable even going by the very conduct of the disciplinary authority in imposing the punishment. From the discussions by the Labour Court it is seen that the domestic enquiry officer only held that the charges were proved. But the disciplinary authority has gone beyond the findings, as already observed above, holding that the materials were thus kept in the personal locker with an ulterior motive of removing the same from the factory itself. Whether there was such a finding at all in the enquiry report is not quite clear. Had the delinquent been given any opportunity at any stage either before the findings are accepted or before imposing the punishment by way of a show cause notice regarding the tentative conclusion arrived at by the disciplinary authority, it could have been said that the disciplinary authority had acted in the reasonable manner. 6. The contention based on the Union Bank of India’s case (supra) that in the absence of any prejudice, non-supply of the enquiry report before imposition of penalty will not vitiate the proceedings, cannot be appreciated. 6. The contention based on the Union Bank of India’s case (supra) that in the absence of any prejudice, non-supply of the enquiry report before imposition of penalty will not vitiate the proceedings, cannot be appreciated. For one thing it has to be seen that it was a case where a bank employee was proceeded against on various charges. The Supreme Court took note of the fact that …..”the appellant had in his possession the enquiry report/findings when he filed the statutory appeal…” Thus the employee in that case had an opportunity at least to pursue the matter before the appellate authority and to persuade the appellate authority not to go by the impressions of the disciplinary authority on the basis of the findings in the enquiry. It is also stated at paragraph 12 of the judgment as follows: “The respondent was unable to demonstrate before us how prejudice was caused to him due to non-supply of the enquiry authority’s report/findings in the present case. It needs to be emphasized that in the banking business absolute devotion, diligence, integrity and honesty needs to be preserved by every bank employee and in particular the bank officer. If this is not observed, the confidence of the public/depositors would be impaired. It is for this reason, we are of the opinion that the High Court had committed an error while setting aside the order of dismissal of the respondent on the ground of prejudice on account of non-furnishing of the enquiry report/findings to him.” Evidently, that is not the factual situation in the instant case. I have already discussed above as to how the lack of opportunity has caused prejudice to the delinquent. As held by the Constitution Bench of the Supreme Court in Managing Director, ECIL, Hyderabad v. B. Karunakar and others (1993 (4) SCC 727), the principles of natural justice will have to be read into in such situation even if the statute governing the procedure is silent on such requirements. 7. The issue referred for adjudication is dismissal from service. Necessarily, the Labour Court had to look into whether there is a wrongful dismissal. A dismissal has to be held wrongful when the same is in violation of the principles of natural justice, even assuming for argument’s sake that on merits, the authority may have taken the same view on dismissal. The issue referred for adjudication is dismissal from service. Necessarily, the Labour Court had to look into whether there is a wrongful dismissal. A dismissal has to be held wrongful when the same is in violation of the principles of natural justice, even assuming for argument’s sake that on merits, the authority may have taken the same view on dismissal. If only an opportunity had been given to the delinquent, he could have made an attempt to dispel the impressions in the minds of the disciplinary authority regarding inference of the motive, which is seen to be based on no evidence and other circumstances requiring a different view. The Labour Court has simply been swayed by the findings of the domestic Enquiry Officer and the question of procedural safeguards has been completely missed. The first question to be considered, as already observed above, is not whether the Labour Court on merits is satisfied or not regarding the punishment, but whether the disciplinary authority had entered a proper satisfaction. That is not there is apparent on the face of the record. The award is thus patently unjust, unreasonable and illegal. I quash the same. The matter is remitted to the Labour Court, Ernakulam. A proper award shall be passed within six months from the date of receipt of a copy of the judgment.