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2020 DIGILAW 773 (JHR)

G. C. Patnayak v. Telco Ltd.

2020-08-17

S.N.PATHAK

body2020
JUDGMENT : Heard the parties. 2. Petitioner-workman has approached this Court with a prayer for quashing the Award dated 03.08.2012, passed by the Presiding Officer, Labour Court, Jamshedpur in Ref. Case No. 29 of 2002, whereby the learned Tribunal has answered the Award against the petitioner-workman and in favour of the respondent-management. 3. Shorn of unnecessary details, the petitioner-workman was employed by the respondent-Management on 28.02.1974 and since then he performed his duties to the best of his ability and satisfaction of his superior. On 22.07.1999, while he was in ‘B’ Shift duty, he was caught red handed with the materials of company and the said material was seized. Thereafter, he was issued charge-sheet dated 20.08.1999 for the theft, fraud and dishonesty and the petitioner submitted his reply on 30.08.1999, stating therein that he had kept the materials due to inadvertence and there was no intention on his part to steal those materials. Being not satisfied with the reply submitted by the petitioner, the respondent-management initiated departmental proceeding by appointing Enquiry Officer. Thereafter, the petitioner represented before the Enquiry Officer and the proceeding was started, in which the Enquiry Officer held the petitioner guilty of the charges and subsequently, the respondent-management dismissed him from services. After his dismissal, the petitioner raised the dispute before the appropriate government which was referred for adjudication before the Labour Court, Jamshedpur. The terms of reference was as follows: “Whether the dismissal of Shri G.C. Patnayak by the Management of M/s. Telco Ltd., is justified? If not, what relief he is entitled to?” 4. Upon receipt of the same, the Tribunal registered the case as Ref. Case No. 29 of 2002 and issued notices to the parties for filing their respective written statements and both the parties filed the same. After hearing the parties in detail and perusing the evidences and documents brought on record, the learned Tribunal answered the Award against the petitioner-workman and in favour of the respondent-management, holding therein that “the dismissal of the workman by the management is not harsh and strikingly disproportionate, and thus, the dismissal order is justified and the concerned workman Mr. Patnayak is not entitled to get any benefits”. Assailing the impugned Award, the petitioner-workman has knocked door of this Court. 5. Mr. Patnayak is not entitled to get any benefits”. Assailing the impugned Award, the petitioner-workman has knocked door of this Court. 5. Mr. Manish Kumar, learned counsel appearing for the petitioner-workman submits that the Award dated 03.08.2012, passed by learned Tribunal is perverse as the same is not based on evidence available on record inasmuch as learned Tribunal has failed to appreciate the explanation submitted by the petitioner regarding possession of materials belonging to the respondent-management. Learned counsel further argues that the learned Tribunal has passed the impugned Award by upholding the punishment of termination from service in a mechanical manner. The punishment of termination from service is disproportionate to the allegation levelled against the petitioner. Learned counsel further submits that the learned Tribunal has failed to appreciate that the alleged theft was of a very meager value and the petitioner could not have derived any profit from such theft article. Learned counsel further argues that the learned Tribunal has also failed to appreciate the fact that petitioner has rendered 25 years of long unblemished service before the incident for which charge-sheet was issued against him. Learned counsel further argues that the respondent-management in its eagerness to reduce work force took advantage of mistake committed inadvertently by the petitioner and terminated him from service. 6. To buttress his arguments, learned counsel places heavy reliance on the following judgments: (I) Asstt. General Manager, SBI Vs. Thomas Jose & Anr. [ (2000) 10 SCC 280 ] (II) Management of Essorpe Miles Pvt. Ltd., Coimbatore Vs. Presiding Officer, Labour, Coimbatore and Anr. [ (1998) 2 LLJ 1204 ] (III) Cochin Shipyard Ltd. Vs. Industrial Tribunal [(2005) 2 ILR (Ker) 535] 7. On the other hand, Mr. V.P. Singh, learned senior counsel justifying the impugned Award submits that petitioner was caught red handed with the materials of the company and for the said misconduct a departmental proceeding was initiated against him in which he was found guilty of the charges. Thereafter, upon receipt of the report from Enquiry Officer, 2nd show-cause notice was issued to the petitioner-workman and in reply, the petitioner submitted his representation dated 07.02.2000 and considering all the facts, the respondent-management had discharged the concerned workman from the services of the company. Thereafter, the management had dismissed the concerned workman from the services of the Company, which is in accordance with law. Thereafter, the management had dismissed the concerned workman from the services of the Company, which is in accordance with law. Thereafter, the order of dismissal was challenged before the learned Court below wherein learned Court answered the Award in favour of the management and against the workman. As such, there is no infirmity in the award and the writ petition is liable to be dismissed outrightly. To strengthen his arguments, learned senior counsel places heavy reliance on the following judgments: (I) (1973) SC 1227, para-22 & 29 (II) AIR 1974 SC 696 (III) Management of Telco Vs. Anita Sharma & Ors. [W.P.(L) No. 6555 of 2010 disposed of on 24.06.2020] (IV) Mihir Kumar Hazara Choudhary Vs. Life Insurance Corp. & Anr. [ (2017) 9 SCC 404 ], para 21 to 24 and 30 8. Be that as it may, having heard the rival submissions of the parties and upon perusal of records, this Court is of the considered view that it would be appropriate to examine the relevant provisions i.e. power of the Labour Court under Section 11-A of the Industrial Disputes Act (for short “I.D. Act”), before coming to a finding. “11-A. Powers of Labour Courts, Tribunals and National Tribunals to give appropriate relief in case of discharge or dismissal of workmen.-Where an Industrial dispute relating to the discharge or dismissal of a workman has been referred to a Labour Court, Tribunal or National Tribunal for adjudication and, in the course of the adjudication proceedings, the Labour Court, Tribunal or National Tribunal, as the case may be, is satisfied that the order of discharge or dismissal was not justified, it may, by its award, set aside the order of discharge or dismissal and direct reinstatement of the workman on such terms and conditions, if any, as it thinks fit, or give such other relief to the workman including the award of any lesser punishment in lieu of discharge or dismissal as the circumstances of the case may require: Provided that in any proceeding under this section the Labour Court, Tribunal or National Tribunal, as the case may be, shall rely only on the materials on record and shall not take any fresh evidence in relation to the matter.” 9. In the light of the aforesaid provisions and considering the rival submissions of the parties and the judgments referred by both the sides, this Court is of the view that admittedly, on the meticulous analysis of the evidences on record, the disciplinary authority and the Tribunal have held that the charges levelled against the petitioner had been proved. Once such a finding has been derived, there is very little scope of any generosity or the sympathy to be shown or to bring into existence minor punishments for such derelictions. Perhaps taking this view, Mr. V.P. Singh, learned senior counsel justifies the order of the Tribunal as well as the findings of the domestic enquiry and submits that the order of the Tribunal deciding the preliminary issue regarding domestic enquiry as fair and proper, is in accordance with the principle of natural justice. The Hon’ble Apex Court in case of Scooters India Ltd. Vs. Labour Court, 1989 (1) Supplement 1 SCC 31, has held as under: “The High Court has considered at length the nature of the powers conferred on the Labour Court by Section 6(2-A) of the Act for setting aside an order of discharge or dismissal of a workman and substituting it with an order of lesser punishment and as such it cannot be said that the High Court has failed to consider the facts in their entirety, As regards the third contention, we may only state that the Labour Court was not unaware of the nature of the charges framed against the respondent or the findings rendered by the Inquiry Officer and the acceptance of those findings by the Disciplinary Authority. The Labour Court has observed as follows:-- The workman has unfortunately to blame himself for much of the bad blood which has developed between him and the management and therefore, his conduct, motivated by ideals which are not relevant has been far from satisfactory, insofar as it was rough, bordering on rudeness and with highly exaggerated sense of his duties. In these circumstances, it will meet the ends of justice if back wages to the extent of 75 per cent are allowed to the workman. I would make my award accordingly, but there shall be no order as to costs. In these circumstances, it will meet the ends of justice if back wages to the extent of 75 per cent are allowed to the workman. I would make my award accordingly, but there shall be no order as to costs. It cannot therefore, be said that the Labour Court had exercised its powers under Section 6(2-A) of the Act in an arbitrary manner and not in a judicial manner. The Labour Court has taken the view that justice must be tempered with mercy and that the erring workman should be given an opportunity to reform himself and prove to be a loyal and disciplined employee of the petitioner company. It cannot therefore, be said that merely because the Labour Court had found the enquiry to be fair and lawful and the findings not to be vitiated in any manner, it ought not to have interfered with the order of termination of service passed against the respondent in exercise of its powers under Section 6(2-A) of the Act.” Further in case of Assistant General Manager, SBI Vs. Thomas Jose, reported in 2000 (10) SCC, the Hon’ble Apex Court declined to interfere with an order of reinstatement of the Industrial Tribunal in favour of a workman, under Section 11-A, found guilty of misappropriation of money, though the Apex Court slightly enhanced the punishment. The relevant portion of the Judgment is reproduced herein below: "In the aforestated case, in more or less similar circumstances, this Court declined to interfere with the view taken by the Labour Court that an errant workman should be given an opportunity to reform himself and prove to be a loyal and disciplined employee of Scooters India Ltd. There is, in our view, a vital difference between an undertaking such as Scooters India Ltd. and the Bank. A Bank deals with public moneys. Misappropriation by an employee of a bank is misappropriation of public moneys and must be treated Very differently. Misconduct such as this cannot be treated as lightly as it has been done. We think that the appropriate order should at least have been of reinstatement without back wages plus a direction that the first respondent would not be entitled to any increments for a substantial period with all the cumulative consequences of such an order. That is the order that we propose to pass." 10. We think that the appropriate order should at least have been of reinstatement without back wages plus a direction that the first respondent would not be entitled to any increments for a substantial period with all the cumulative consequences of such an order. That is the order that we propose to pass." 10. Going through both the decisions, it is crystal clear that the Tribunal in appropriate cases, interfere with the punishment of dismissal, even if the proven offence relates to dishonest conduct of the employee. There cannot be any hard and fast Rule that once the misconduct of theft is proved, the dismissal will be automatic. Several decisions cited by learned Senior Counsel did not lay-down any binding principle that the moment, the misconduct of theft is proved, the employee has to be dismissed from service. If the interpretation of the learned Senior Counsel is accepted, it would amount to amending the provisions of Section 11-A of the I.D. Act, which is within the realm of the legislature. This Court can interfere with the decision of the Industrial Tribunal under Section 11-A of the I.D. Act only on limited grounds. It cannot substitute its decision for that of the Tribunal. It can interfere with the punishment, if it is found that that the decision of the Tribunal is perverse or one, which no man in his senses will take. Normally, under Article 226 of the Constitution, if the Court finds that the reasoning of the Tribunal is not proper, while imposing the punishment, it should quash the decision and remit it to the Industrial Tribunal/ Labour Court to take a fresh decision on the point of quantum of punishment. The allegations levelled against the petitioner is not serious in nature that warrant dismissal from service ignoring the fact that the petitioner has rendered 25 years of long and unblemished service career. Further the reliance of the learned Senior Counsel to the judgment passed by the Hon’ble Apex Court in case of Mihir Kumar Hazara Choudhary Vs. Life Insurance Corp. The allegations levelled against the petitioner is not serious in nature that warrant dismissal from service ignoring the fact that the petitioner has rendered 25 years of long and unblemished service career. Further the reliance of the learned Senior Counsel to the judgment passed by the Hon’ble Apex Court in case of Mihir Kumar Hazara Choudhary Vs. Life Insurance Corp. & Anr., reported in (2017) 9 SCC 404 , is of no help to him, since in that case the view of the Hon’ble Apex Court regarding non-interference in dismissal order was due to fraud committed for wrongful personal gain, which is not applicable in the instant case, as by theft of washer, no financial or wrongful gain could have been made. 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 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. 12. With the aforesaid observations and directions, the writ petition stands disposed of.