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2008 DIGILAW 1591 (BOM)

Sayyed I. H. A. v. BEST Undertaking, Mumbai

2008-11-11

D.Y.CHANDRACHUD

body2008
P.C. Per Dr. D.Y. CHANDRACHUD, J. Petitioner was employed as a Vulcanizer with the BEST Undertaking. A charge-sheet was issued to him on December 13, 2004 in which it was alleged that the petitioner had committed a theft of property belonging to the Undertaking. It was alleged that on November 10, 2004, the bag of the petitioner was checked at the gate of the Deonar Depot by the security guard and during the course of the check two aluminum strips were recovered. The petitioner was dismissed from service after a disciplinary enquiry. The petitioner filed a complaint of unfair labour practices before the Labour Court. The Labour Court by its judgment dated December 29,2007 came to the conclusion that the enquiry was fair and proper and that the findings were not perverse. However, the Labour Court was of the view that the punishment of dismissal was disproportionate to the charge of misconduct which was proved. Reinstatement with 50% back wages was accordingly awarded. The Undertaking moved the Industrial Court in revision. The Industrial Court allowed the revision application. The revisional Court held that before the Labour Court, the workman had conceded to the fairness of the enquiry and to the correctness of the findings arrived at therein. The Industrial Court held that once the charge of theft was established, the quantum or value of the property was not material and that consequently the order of the Labour Court, was unsustainable. The complaint of unfair labour practices was accordingly dismissed and the judgment of the Labour Court was set aside. The workman has challenged the order of the Industrial Court in these proceedings under Article 226. 2. Counsel appearing for the petitioner submitted that the petitioner was in service for 27 years and was drawing a salary of Rs. 12,000/- per month. It was urged by the learned counsel that it is inconceivable that the petitioner would have committed a theft of scrap material consisting of two aluminum strips with a negligible marketable value. Moreover, it was submitted that in order to establish a charge of theft a dishonest intention to deprive the employer of his movable property ought to have been established which is not so in the present case. 3. Moreover, it was submitted that in order to establish a charge of theft a dishonest intention to deprive the employer of his movable property ought to have been established which is not so in the present case. 3. There is no merit in the submission The Labour Court in the course of its discussion observed in paragraph 8 of its judgment that even during the course of the submissions it was conceded on behalf of the workman that the enquiry was fair and proper and that the findings recorded by the Enquiry Officer were not perverse. Once this concession was made before the Labour Court the only surviving question which remained was as regards the proportionality of the punishment. The order of the Labour Court was challenged by the employer in revision. The workman did not question the order of the Labour Court insofar as it denied a portion of the back wages. In fact the submissions which have been recorded by the Industrial Court in paragraph 7 of its judgment would also show that the substance of the grievance of the petitioner related to the quantum of the punishment that was imposed. The submission which was urged before the Industrial Court and which was reiterated in these proceedings is that the petitioner had no reason to commit a theft of a worthless article since he had a good past record and was drawing a monthly salary of Rs. 12,000/-. The submission is devoid of substance. The question as to whether the charge of misconduct stood proved could not be answered on a hypothetical assumption that an employee in the position of the petitioner would have no reason to commit a theft of what according to him is a worthless article. The question in all such cases is whether the finding of misconduct is sustainable with reference to the evidence on the record. In the present case, it was found during the course of the enquiry that the petitioner was caught red handed by a security guard at the Deonar bus depot with movable as property viz. aluminum strips belonging to the employer in his bag. The Industrial Court was clearly justified in holding that the value of the article in respect of which the theft was committed would not determine whether the charge of misconduct is established. aluminum strips belonging to the employer in his bag. The Industrial Court was clearly justified in holding that the value of the article in respect of which the theft was committed would not determine whether the charge of misconduct is established. Theft of any movable property is a serious matter which has to be seriously dealt with by the employer in adopting disciplinary proceedings. Consequently on both the counts, the submission of the petitioner cannot be accepted; Firstly, having conceded that the enquiry was fair and proper and that the findings were not perverse, the petitioner cannot be allowed to contest the correctness of the findings of the enquiry at this stage. Secondly even on merits, the challenge to the finding of misconduct is entirely hypothetical, the ground of challenge cannot be accepted in the face of the evidence on the record of the enquiry. 4. On the finding of misconduct that was found to be proved, the Industrial Court was clearly correct in interfering with the order of the Labour Court which granted reinstatement with half back wages. Once the charge of theft was held to be proved, the exercise of discretion by the Labour Court to award reinstatement with a component of back wages was clearly not warranted. The charge in the present case was a serious charge involving the property of the Undertaking. 5. The next submission which has been urged on behalf of the petitioner is that by an order dated January 2, 2006 the entire quantum of gratuity has been forfeited in exercise of powers under Section 4(6)(b) of the Payment of Gratuity Act, 1972. From the record it would appear that the complaint of unfair labour practices was instituted on January 7, 2006. The Undertaking has proceeded to forfeit the amount of gratuity purely on the ground that no reply was received to a notice to show cause dated September 6, 2005. On March 7,2006 the petitioner addressed a letter to the Undertaking complaining that he had not received the show cause notice dated September 6,2005. In a letter dated April 20, 2006 the establishment officer informed the petitioner that the notice to show cause was dispatched to the local address of the petitioner and was acknowledged on September 27,2005. On March 7,2006 the petitioner addressed a letter to the Undertaking complaining that he had not received the show cause notice dated September 6,2005. In a letter dated April 20, 2006 the establishment officer informed the petitioner that the notice to show cause was dispatched to the local address of the petitioner and was acknowledged on September 27,2005. At this stage it may not be necessary to delve into the question as to whether the notice to show cause was duly served or otherwise. Section 4(6)(b) of the Act permits an employer to forfeit either wholly or in part the gratuity payable to an employee inter alia if the services of the employee have been terminated for any act which constitutes an offence involving moral turpitude, provided such o offence is committed by him in the course of his employment. The order of forfeiture in the present case has been passed purely on the ground that no reply was furnished to the notice to show cause. The order of forfeiture does not contain any discussion on the question as to whether the requirements of Section 4(6)(b) have been fulfilled. In these circumstances, insofar as the aspect of forfeiture is concerned, it would be appropriate and proper if the communications dated January 2, 2006 and April 20, 2006 are quashed and set aside. The Undertaking shall within a period of four weeks from today, furnish to the petitioner a copy of the notice to show cause against the forfeiture of gratuity. The petitioner would be at liberty to file a reply thereto if so advised within a period of four weeks thereafter. A fresh decision shall be arrived at by the undertaking on the issue of forfeiture of gratuity, in accordance with law having regard to the provisions of the Payment of Gratuity Act, 1972. In the event that the petitioner is aggrieved by the action of the Undertaking, he would be at liberty to espouse, such remedies as are available in law. Counsel appearing for the Undertaking has stated that apart from the issue of gratuity, other legal dues, if any that are admissible in accordance with law, to the petitioner, shall be paid over within a period of four weeks from today. Rule is made absolute to the aforesaid extent. The challenge to the order of the Industrial Court dated June 12,2008 shall accordingly fail. Rule is made absolute to the aforesaid extent. The challenge to the order of the Industrial Court dated June 12,2008 shall accordingly fail. The Petition shall stand disposed of in these terms. There shall be no order as to costs.