Jharkhand High Court
Management Of Telco (Tata Engineering ... vs K.C.Bandhopadhyay on 9 August, 2017
Author: D.N.Patel
Bench: Ratnaker Bhengra, D.N.Patel
1
IN THE HIGH COURT OF JHARKHAND, RANCHI
L.P.A. No. 454 of 2010
The Management of Telco (Tata Engineering & Locomotive
Company Ltd.). Now Tata Motors Ltd. through its duly constituted
Attorney Shri Pravin Kumar Sinha, son of Late B.P. Sinha, resident
of Telco Colony, PO & PS Telco, Town Jamshedpur, District East
Singhbhum, Jamshedpur and currently posted as Senior General
Manager (Manufacturing), M/s. Tata Motors Ltd.
...Appellant
Versus
K.C. Bandhopadhyay, residing at 24, Sanjay Road, Sakchi, PO &
PS Sakchi, Town Jamshedpur, District-East Singhbhum.
...Respondent
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CORAM :- HON'BLE THE ACTING CHIEF JUSTICE
HON'BLE MR. JUSTICE RATNAKER BHENGRA
---
For the Appellant : Mr. V.P. Singh, Sr. Advocate;
Mr. A.K. Das, Advocate;
Mrs. Rashmi Kumar, Advocate;
Ms. Pooja Kumari, Advocate;
Mrs. Swati Shalini, Advocate.
For the Respondent : Mr. Indrajit Sinha, Advocate.
----
05/ Dated 9.8.2017:
(Oral Order)
Per D.N.Patel, A.C.J.
1. This Letters Patent Appeal has been preferred by the original
petitioner, who preferred W.P.(L) No. 2185 of 2010. The said writ
petition was preferred, challenging the award passed by the Labour
Court, Jamshedpur in Reference Case No. 23 of 1997 dated
19.12.2009. The Labour Court, Jamshedpur, while passing the award, had set aside the order of dismissal, passed by the disciplinary authority and the workman was ordered to be reinstated with 50% back wages and continuity in service. This award was challenged in the writ petition, which having been dismissed, the original petitioner has preferred the present Letters Patent Appeal.
2. FACTUAL MATRIX • Respondent was working as a Pharmacist in the hospital owned, managed, controlled and run by this appellant. • On 15.05.1992, when the general shift duty of the respondent 2 was completed and he was going out of the gate of this appellant, as a routine checking, the scooter of the respondent-workman was checked and it was found that he was carrying unauthorizedly 30 tablets of Voveran, 80 tablets of Norflox and 1200 gm Bleaching Powder.
• On the basis of the aforesaid allegations, charge-sheet was issued to this respondent-delinquent on 01.06.1992 by the Senior Consultant. Post of Senior Consultant is much higher post than the post of Pharmacist. Charge-sheet is at Annexure-1 to the memo of this Letters Patent Appeal.
• Committee of inquiry officer was appointed consisting of two members. Several witnesses were examined. Several documentary evidences were also placed during the course of departmental inquiry. Medicines and bleaching powder, which were found during course of search of scooter of this respondent, were also produced. Adequate opportunity of being heard was also given to the respondent-delinquent.
• On the basis of the evidence before the inquiry officer, report was given on 03.05.1993 (Annexure-2 to the memo of this Letters Patent Appeal) and the charges levelled against the respondent- delinquent were held as proved.
• Industrial dispute was raised under Section 10 of the Industrial Disputes Act,1947 by the respondent-workman and ultimately, reference was made by the appropriate Government being Reference Case No. 23 of 1997 before the Labour Court, Jamshedpur.
• During course of hearing before the Labour Court, Jamshedpur, preliminary objection was raised by the workman about legality and validity of the domestic inquiry. • Separate order was passed by the Labour Court, Jamshedpur, which is at Annexure-5 to the memo of this Letters Patent Appeal, wherein, it was held that the departmental inquiry was legal and valid. This order is dated 23.06.2004. • When the Labour Court, Jamshedpur decided the Reference Case No. 23 of 1997, it came to the conclusion that the findings of 3 the inquiry officer requires to be altered. Labour Court, Jamshedpur held that on the basis of the evidences on record, it cannot be said that the charges are proved. By re-appreciation of the evidences on record, it was concluded by the Labour Court, Jamshedpur that finding of the inquiry officer requires alteration and the order of reinstatement with 50% back wages was passed on 19.12.2009 (Award is at Annexure-6 to the memo of this Letters Patent Appeal). • Being aggrieved and feeling dissatisfied by the award, passed by the Labour Court, Jamshedpur, appellant-management preferred writ petition being W.P.(L) No. 2185 of 2010, which was dismissed by the learned Single Judge vide judgment and order dated 23.06.2010 and being aggrieved and feeling dissatisfied by the aforesaid judgment and order, present Letters Patent Appeal has been preferred by the original petitioner.
3. Arguments canvassed by the counsel for the appellant:
• Counsel for the appellant has submitted that once departmental inquiry is held as legal and valid by the Labour Court, Jamshedpur and adequate opportunity of being heard was also being given during the domestic inquiry and when evidences were led during domestic inquiry and when there was no perversity in finding of the departmental inquiry, no power, jurisdiction and authority are vested with the Labour Court under Section 11-A of the Industrial Disputes Act, 1947 to interfere with the findings of the inquiry officer.
• Counsel for the appellant has further submitted that the Labour Court, Jamshedpur was not supposed to sit in appeal against the findings of departmental inquiry officer. Re-appreciation of the evidence could not have been done by the Labour Court, Jamshedpur.
• Counsel for the appellant has further submitted that there were serious charges of theft and thereby, the conduct of the respondent-delinquent was of defeating his post of Pharmacist. As many as 30 tablets of Voveran, 80 tablets of Norflox and 1200 gm of Bleaching Power were found from the dickey of the scooter of the respondent, when he was going out of the gate of the appellant after completion of his general shift duty, which is from 8:00 a.m. to 4 5:00 p.m., from the hospital of this appellant. • It is further submitted by the counsel for the appellant that at internal page Nos.9 & 10 of the inquiry report, under the heading for Finding, it has been mentioned in detail, as under:
"FINDINGS:
From the perusal of the evidence adduced and the documents exhibited during the course of enquiry the following facts are revealed.
The medicines/materials recovered from the person and scooter No. BHX 6100 of Mr. K.C. Bandyopadhyaya are :
i) 'Voveran' tablets - 50 mg. - 30 Nos.
ii) One 'glo' cleansing powder packet, containing eight strips of 'Norflox' - 400 mg. each strip containing 10 tablets thus 80 tablets in total, of batch No. K102/6, MFD
- JUL '91, Exp. '94:
iii)One 'Digene' tablet tin filled with bleaching powder, weighing about 1.200 kg.
I. Mr. K.C. Bandyopadhyaya stated that 30 Nos. of ' Voveran' 50 mg. tablets had been collected by him from Counter No. 3 of the Dispensing Room on the prescription slip issued by Dr. H.S. Rout. The statement of Mr. Bandyopadhyaya was found to be correct when the physical checking of the prescription slips or Counter No. 3 was conducted by Mr. J.N. Jaiswal the Investigating Officer.
II. About the 'Norflox' tablets, the following facts transpired during the enquiry :
1. 80 tablets of ' Norflox' (eight strips each containing 10 tablets) were recovered from the dicky of the scooter of Mr. Bandyopadhyayas.
2. Mr. Bandyopadhyaya was not having any authority letter to take these medicines out of Telco Hospital.
3. The medicines were stamped ' Telco not for sale'.
4. Mr. Bandyopadhyaya in his statement as well as during cross-examination of all the Management witnesses tried to prove that the lock of dicky was tampered and he had no knowledge of presence of these medicines in the dicky. But, on being cross-
examined by him all the Mgt. witnesses confirmed that while he was stopped and asked to open the dicky of his scooter he opened it himself with the key available with him and the lock was perfectly in condition.
5.Mr. Bandyopadhyaya in his statement given in the enquiry said that the 'Norflox' recovered from his scooter was manufactured by the Cipla Co. whereas the 'Norflox' tablets which was being distributed from the Dispensing Room from the day he replaced Mr. Biswas, Pharmacist, Telco Hospital, till the date he was caught 5 with the medicine, Norflox tablet manufactured by the Lyka Co. were being distributed from the Dispensing Room. This was verified from the bin card of the Dispensing Room and found to be correct.
6.The stock of the 'Norflox' tablet at the Dispensing Room as well as of the Hospital Sub-Store were not checked by the Investigating Officer, which would have further substantiated the case.
In view of the above, we come to the conclusion that Mr. K.C. Bandyopadhyaya was caught red handed with the 80 tablets of 'Norfflox'- 400 mg., kept in the dicky of his scooter while he was seeking exit from Telco Hospital Gate. He was not having any authority letter for taking out these medicines and the medicine was stamped "Telco not for sale", therefore, theft of 'Norflox' tablets under question by Mr. K.C. Bandyopadhaya is established however, it could not established as to from where the medicine was procured as the stock position tallied and there was no discrepancy found out in the stock position of Norflox' tablet of the Dispensing room."
• It is further submitted by the counsel for the appellant that there was no plausible explanation, at all, with the respondent- delinquent about possessing of 80 tablets of Norflox. There was no prescription at all with this respondent nor there was any bill to the effect that he had purchased the same from any medical store etc. • It is further submitted by the counsel for the appellant that respondent was working as Pharmacist in the hospital run by this appellant. He was on duty from 8:00 a.m to 5:00 p.m. and when he was leaving the gate of this appellant, routine check up was being done by the security personnel and from the dickey of the scooter of the respondent-delinquent, aforesaid items were found out. No question of his purchase of medicines from any other medical stores whatsoever arises. All these evidences were led before the inquiry committee consisting of two members and at length, evidences were discussed by the inquiry officer, who had arrived at a conclusion that charges levelled against the respondent- delinquent have been proved.
• Counsel for the appellant has further submitted that Labour Court, Jamshedpur is not supposed to sit in appeal against the inquiry officer's report. The factum of proof of the allegations depends upon the subjective satisfaction of the inquiry committee.
6"Proved", "Not Proved" or "Unproved" all depends upon the evidences before the inquiry officer and the subjective satisfaction of the inquiry officer. Looking to the evidences on record, both oral as well as documentary, once the inquiry committee is subjectively satisfied that evidences on record were sufficient enough for proof of the charges, such subjective satisfaction of the inquiry committee could not have been altered by the Labour Court, Jamshedpur on a fanciful idea about the fact that no theft of Norflox was registered by the appellant.
• Counsel for the appellant has further submitted that by no stretch of imagination, it can be said that the conclusion arrived at by the inquiry committee is based upon no evidence. On the contrary, there were enough evidences on record during domestic inquiry and the conclusion arrived at by the inquiry committee is absolutely based upon the evidences on record. If such type of approach of the Labour Court is permitted in violation of Section 11- A of the Industrial Disputes Act, 1947, all the references under Section 10 of the Industrial Disputes Act, 1947 will be treated as first appeal, which is not permissible in the eyes of law. • Counsel for the appellant has taken this Court to various annexures and has submitted that on the basis of the decision of the Hon'ble Supreme Court, reported in AIR 1974 SC 696 = (1974) 3 SCC 712 and also on the basis of the decision of the Hon'ble Supreme Court, reported in (2008) 1 SCC 115, finding of the Labour Court, Jamshedpur is perverse. Labour Court in fact has usurped the power of appeal against the order passed by the inquiry officer. Though inquiry officer's report is based upon the detailed discussion of the evidences on record, finding of the inquiry officer has wrongly been upset by the Labour Court, Jamshedpur by advancing another type of logic that there was no complaint of theft filed by the appellant for 80 tablets of Norflox. Even if, there was no complaint of theft, it was the duty of the respondent-delinquent to explain how he got the possession of 80 tablets of Norflox, especially, when those tablets were stamped "Telco Not for Sale". This fact has been recorded by the inquiry officer on internal page Nos. 9 & 10 of the inquiry report, which has been reproduced hereinabove. Labour 7 Court, Jamshedpur has thus exceeded its jurisdiction under Section 11-A of the Industrial Disputes Act, 1947 and hence, award passed by the Labour Court in Reference Case No. 23 of 1997 dated 19.12.2009 deserves to be quashed and set aside. Similarly, order passed by the learned Single Judge in W.P.(L) No. 2185 of 2010 dated 23.06.2010 also deserves to be quashed and set aside because the learned Single Judge has failed to appreciate the power, jurisdiction and authority of the Labour Court, Jamshedpur under Section 11-A of the Act, 1947.
• Counsel for the appellant has further submitted that whatsoever small theft may be, but, the management has lost confidence and faith of the employee forthwith, which has resulted into the dismissal of the respondent vide order dated 03.05.1993 (Annexure-2 to the memo of this Letters Patent Appeal) passed by the disciplinary authority-Sr. General Manager of the appellant.
4. Arguments canvassed by the counsel for the respondent:
• Counsel appearing for the respondent has submitted that findings arrived at by the inquiry officer on 03.05.1993 (Annexure-2 to the memo of this Letters Patent Appeal) was not based upon the evidence on record. As per evidence on record, during domestic inquiry, there is alleged theft of 30 tablets of Voveran , 80 tablets of Norflox and 1200 gm of Bleaching Powder.
• It is submitted by the counsel for the respondent-delinquent that so far as Voveran tablets were concerned, same were prescribed by Doctor for his own wife. So far as Norflox is concerned, no complaint of theft was ever registered by the appellant. So far as Bleaching Powder is concerned, management was giving the same free of charges. All the three defences have been accepted by the Labour Court and no error was committed by the Labour Court, Jamshedpur in re-appreciating the evidence and upsetting the findings of the inquiry officer and hence, no error has been committed by the Labour Court in awarding reinstatement with 50% back wages. These aspects of the matter have also been properly appreciated by the learned Single Judge while dismissing the writ petition preferred by this appellant and hence, this Letters Patent Appeal may not be entertained by this Court.8
• Counsel for the respondent has relied upon the decision rendered by Hon'ble Supreme Court, in the case of "Mavji C. Lakum versus Central Bank of India", reported in (2008) 12 Supreme Court Cases 726 and also the decision rendered by Hon'ble Supreme Court, reported in (2009) 12 SCC 78. • On the basis of the aforesaid decisions, it is submitted by the counsel for the respondent-delinquent that Labour Court, Jamshedpur has all power, jurisdiction and authority to re- appreciate the evidences on record as well as the quantum of punishment and hence, it cannot be said that the Labour Court, Jamshedpur has exceeded its jurisdiction. • It is further submitted by the counsel for the respondent- delinquent that the finding of the inquiry officer was perverse and hence, Labour Court, Jamshedpur has all jurisdiction and power to interfere with the report given by the inquiry officer.
REASONS
5. Having heard counsel for both the sides and looking to the facts and circumstances of the case, we, hereby, quash and set aside the judgment and order passed by the learned Single Judge in W.P.(L) No. 2185 of 2010 dated 23.06.2010 as well as the award passed by the Labour Court, Jamshedpur in Reference Case No. 23 of 1997 dated 19.12.2009, mainly for the following facts, reasons and judicial pronouncements:
(i) Respondent-delinquent was working as a Pharmacist in the hospital owned, managed, controlled and run by this appellant. He was in a general shift duty from 8:00 a.m. to 5:00 p.m. on 15.05.1992.
(ii) After completion of duty, he was going out of the main gate of the Company where there was a routine checking of the employees. During this routine checking, it was found by the security officers of the appellant-management that this respondent- delinquent was carrying 30 tablets of Voveran, 80 tablets of Norflox and 1200 gm of Bleaching Powder with him in the dickey of his scooter. Medicines were stamped as "Telco Not for Sale". It has also been observed that there was no explanation with the respondent that how he was in possession of the medicines nor 9 there was any prescription found out from his possession. These facts have been stated in the internal page Nos. 9 & 10 of the inquiry report, which has been reproduced hereinabove.
(iii) It appears that whenever any theft is found out, clever persons have several defences. Respondent has no exception to that. After issuance of charge-sheet dated 01.06.1992 (Annexure-1 to the memo of this Letters Patent Appeal), defences were adjusted by the respondent that 30 tablets of Voveran were prescribed by the Doctor for his own wife. To that effect, nothing has been brought on record during course of domestic inquiry by the respondent- delinquent. No prescription was ever found out during his search in the name of his wife. This defence is nothing, but, an afterthought. Similarly, there is also a defence about 80 tablets of Norflox. Second defence is that appellant has not filed any complaint of theft of 80 tablets of Norflox. No such complaint of theft is required to be filed by the management. Even in absence of complaint of theft by the management, it was a duty of the respondent to explain that how he was in custody of 80 tablets of Norflox. However, defences have been accepted unnecessarily by the Labour Court as well as by the learned Single Judge while dismissing the writ petition preferred by this appellant. This is an apparent error on the face of the record. This is misuse of jurisdiction on the part of the Labour Court, Jamshedpur especially under Section 11-A of the Industrial Disputes Act, 1947.
(iv) When the respondent-delinquent was in possession of stolen articles, he was having a knowledge how those stolen articles were came in his possession. It was the duty of the respondent to explain the custody of the stolen articles instead of giving explanation with the documentary evidence, it is stated that why the appellant- management has not filed a complaint of theft; such defence has been accepted by the Labour Court also. This is a perversity in the findings of the Labour Court, Jamshedpur.
(v) Looking to the inquiry officers' report, it cannot be said that the said report is based upon "no evidence". On the contrary, inquiry officers' report is absolutely based upon the evidences on record, both oral as well as documentary. Every absurd defence of the 10 respondent ought not to have been appreciated by the Labour Court. In fact, Labour Court, Jamshedpur is not supposed to sit in appeal against the report of the inquiry officer.
(vi) Preliminary objection was already raised by the respondent before the Labour Court in Reference Case No. 23 of 1997 that inquiry is not legal and is not valid. On this application, finding has also been given by the Labour Court, Jamshedpur vide order dated 23.06.2004 (Annexure-5 to the memo of this Letters Patent Appeal) that domestic inquiry is legal, valid and proper.
(vii) Thus, once domestic inquiry is held as legal, valid and proper, thereafter, Labour Court, Jamshedpur ought not to have entered into the re-appreciation of the evidence of each and every management witnesses like first appeal.
(viii) It ought to be kept in mind that for establishing any fact there are three words- "Proved", " Not Proved and "Unproved". To arrive at the conclusion of "Proved", " Not Proved and "Unproved", subjective satisfaction has to be arrived at by the inquiry officer based upon the evidences on record. How much degree of satisfaction is required for treating the fact as "Proved" that all depend upon the subjective satisfaction of the concerned officer whether he is a judicial officer or inquiry officer in a domestic inquiry. There is no red light or green light for "Proved", "Not Proved" and "Unproved". It all depends upon the subjective satisfaction of Judge or subjective satisfaction of officer, who is holding the inquiry. The standard of subjective satisfaction varies from head to head. Only fact, which has to be seen by the Labour Court, is, whether the subjective satisfaction of the inquiry officer is based upon "no evidence". In fact, the Labour Court, Jamshedpur has gone into the question of sufficiency of the evidence before the inquiry officer. This is not permissible in the eyes of law. Sufficiency of the evidence depends upon the subjective satisfaction of the inquiry officer. If on the basis of the evidences on record, the inquiry officer is subjectively satisfied that fact is proved, it cannot be altered by the Labour Court, Jamshedpur on the ground that there is still need of further evidence, there could have been something more to prove these facts and on the ground that had there been 11 more evidence, the charge could have been proved more effectively. Such type of interference by the Labour Court, Jamshedpur is known as perversity in the finding, while passing the award. Such type of intervention by the Labour Court, Jamshedpur is in violation of Section 11-A of the Industrial Disputes Act, 1947. Such type of intervention is known as "siting in appeal"
against the evidences on record. This is also not permissible by the Labour Court and hence, it is known as usage of "excess of jurisdiction" by the Labour Court under Section 11-A of the Industrial Disputes Act, 1947 and hence, the award passed by the Labour Court, Jamshedpur in Reference Case No. 23 of 1997 dated 19.12.2009 (Annexure-6 to the memo of this Letters Patent Appeal) deserves to be quashed and set aside. These aspects of the matter have also not been properly appreciated by the learned Single Judge while deciding W.P.(L) No. 2185 of 2010 vide judgment and order dated 23.06.2010 and hence, the same also deserves to be quashed and set aside.
(xi) It has been held by Hon'ble Supreme Court in the case of "The East India Hotels Vs. Their Workmen and Others", reported in AIR 1974 Supreme Court 696=(1974) 3 Supreme Court Cases 712, as under:
"5.This appeal is by special leave against the award of the tribunal. It is not denied that the Tribunal was in error in applying S. 11A of the Act to this case, because the complaint, the enquiry, the report and the reference were all prior to the coming into operation of this Section on December 15, 1971. This Court held in Work men of M/s. Firestone Tyre & Rubber Co. of India (Pvt.). Ltd. v The Management (1973) 1 Lab LJ 278= (AIR 1973 SC 1227) that Section 11A has no retrospective operation as it not only deals with procedural matters, but also has the effect of altering the law laid down by this Court in this respect by abridging the rights of the employer inasmuch as it gives power to the Tribunal for the first time to differ both on a finding of misconduct arrived at by an employer as well as with the punishment imposed by it. In the undoubted exercise of the right of the employer to take disciplinary action, and to decide upon the quantum of punishment, both of which are part of the managerial functioned, what has to be seen is whether the employer before imposing the punishment had conducted a proper enquiry in accordance with the provisions of the Standing Orders, if applicable, and principles of natural justice.12
When a proper enquiry has been held by an employer and the finding of misconduct has support from the evidence adduced at the said enquiry, the Tribunal has no jurisdiction to sit in judgment over the decision of the employer as an appellate body. The interference with the decision of the employer will be justified when the enquiry is unfair or the findings arrived at in the enquiry are perverse or have no basis in evidence or the management is guilty of victimization, unfair labour practice or mala fide or the punishment is harsh and oppressive. The Tribunal cannot, therefore, re-appraise the evidence and arrive at a conclusion different from that arrived at by the domestic Tribunal. Even if no enquiry has been held by an employer or if the enquiry held by him is found to be defective, the Tribunal in order to satisfy itself about the legality and validity of the order, has to give an opportunity to the employer and employee to adduce evidence before it. It is open to the employer to adduce evidence for the first time justifying his action; and it is open to the employee to adduce evidence contra. Once misconduct is proved, either in the enquiry conducted by the employer or by the evidence placed before the Tribunal for the first time, the punishment imposed cannot be interfered with by the Tribunal except in cases where the punishment is harsh and oppressive. This is not a case where no enquiry has been held, nor is it a case where either side had not adduced evidence before the tribunal. What the Tribunal had to see is whether the enquiry is vitiated by any of the grounds referred to by us. Admittedly, no such grounds exist in this case. Nothing was stated as to in what respects the enquiry was defective. On the other hand, the Tribunal proceeded on the basis that the enquiry was not vitiated, but it had power under Section 11A to arrive at a different conclusion and award a different punishment. That apart, even the evidence justified the conclusion arrived at by the enquiry Officer."
(Emphasis supplied) It has further been held by Hon'ble Supreme Court in the case of "U.P State Road Transport Corporation Vs. Vinod Kumar", reported in (2008) 1 Supreme Court Cases 115, as under:
"10.As stated in the preceding paragraphs, the respondent had confined his case only to the conclusions reached by the enquiry officer as well as the quantum of punishment. Therefore, since the respondent had not challenged the correctness, legality or validity of the enquiry conducted, it was not open to the labour Court to go into the findings recorded by the enquiry officer regarding the misconduct committed by the respondent. This Court in a number of judgments has held that the punishment of removal/dismissal is the appropriate 13 punishment for an employee found guilty of misappropriation of funds; and the courts should be reluctant to reduce the punishment on misplaced sympathy for a workman. That, there is nothing wrong in the employer losing confidence or faith in such an employee and awarding punishment of dismissal. That , in such cases, there is no place for generosity or misplaced sympathy on the part of the judicial forums and interfering with the quantum of punishment. Without burdening the judgment with all the judgments of this court on this point, we may only refer to a recent judgment in Divisional Controller, N.E.K.R.T.C. v. H. Amaresh wherein this Court, after taking into account the earlier decisions, held in para 18 as under: ( SCC p.193) "18. In the instant case, the misappropriation of the funds by the delinquent employee was only Rs. 360.95. this Court has considered the punishment that may be awarded to the delinquent employees who misappropriated the funds of the Corporation and the factors to be considered. This Court in a catena of judgments held that the loss of confidence is the primary factor and not the amount of money misappropriated and that the sympathy or generosity cannot be a factor which is impermissible in law. When an employee is found guilty of pilferage or of misappropriating the Corporation's funds, there is nothing wrong in the Corporation losing confidence or faith in such an employee and awarding punishment of dismissal. In such cases, there is no no place for generosity or misplaced sympathy on the part of the judicial forums and interfering therefore with the quantum of punishment. The judgment in Karnataka SRTC v. B.S. Hullikatti was also relied on in this judgment among others. Examination of the passengers of the vehicle from whom the said sum was collected was also not essential. In our view, possession of the said excess sum of money on the part of the respondent , a fact proved, is itself a misconduct and hence the labour Court and the learned Judges of the High Court misdirected themselves in insisting on the evidence of the passengers which is wholly not essential. This apart, the respondent did not have any explanation for having carried the said excess amount. This omission was sufficient to hold him guilty. This act was so grossly negligent that the respondent was not fit to be retained as a conductor because such action or inaction of his was bound to result in financial loss to the appellant irrespective of the quantum."
(Emphasis Supplied)
(xii) In view of the aforesaid decisions, Labour Court, Jamshedpur, ought not to have gone into the dissection of the evidence before 14 the domestic inquiry committee. On the contrary, there was enough evidences on record suggestive of the fact that nothing else, but, theft was committed by the respondent-delinquent. He was in possession of the tablets. No prescription in the name of his own wife was found out during search of the dickey of his scooter on 15.5.1992 when he was leaving the factory premises of this appellant and absolutely ridiculous is the defence, so far as 80 tablets of Norflox is concerned, that management has not filed any complaint of theft. Non-filing of the complaint of theft by the management is not innocence of the respondent-delinquent, especially, when he could not explain the custody of 80 tablets of Norflox, which were stamped as "Telco Not for Sale".
(xiii) counsel for the respondent has referred to and relied upon the two decisions of the Hon'ble Supreme Court, as stated hereinabove, and none of the decisions are helpful to the respondent-delinquent mainly for the reason that-
(a) when the respondent was leaving the factory premises and was searched at the gate on 15.05.1992, aforesaid 30 tablets of Voveran and 80 tablets of Norflox were found out from the dickey of the scooter of the respondent-delinquent;
(b) no prescription in the name of his wife was found out during course of search by the security personnels;
(c) absolutely, there was no evidence with the respondent- delinquent as to how he was in possession of 30 tablets of Voveran and 80 tablets of Norflox;
(d) not a solitary evidence has been given by the respondent- delinquent about 30 tablets of Voveran and 80 tablets of Norflox, which remotely even proved the legal custody of the respondent; neither any prescription nor any purchase bill of 80 tablets of Norflox has been produced by the respondent during domestic inquiry. This fact is sufficient to prove the charge of theft, as per inquiry officer's report;
(e) it ought to be kept in mind that where any employee, especially when the respondent, who is a Pharmacist of the Hospital and the theft once is proved, management is losing the confidence of faith in his employee and the loss of faith or 15 confidence results into the termination of services;
(f) once departmental inquiry is held as legal, valid and proper by separate order based on preliminary objection raised by the respondent vide order dated 23.06.2004 (Annexure-5 to the memo of this Letters Patent Appeal), there was no reason for the Labour Court, Jamshedpur to upset the findings of the inquiry officer;
(g) moreover, the order of the Labour Court, Jamshedpur dated 23.06.2004 (Annexure-5 to the memo of this Letters Patent Appeal) has never been challenged by the respondent-delinquent;
(h) once the inquiry is held as valid, legal and proper, the only question is left out to decide the quantum of punishment. Looking to the post of the respondent as Pharmacist, the theft of 80 tablets of Norflox was sufficient to fetch punishment of dismissal, which was passed by the Sr. General Manager on 03.05.1993. The quantum of punishment cannot be labelled as shockingly disproportionate to the charges nor it can be labelled as unreasonable and excessive punishment. These aspects of the matter have not been properly appreciated by the Labour Court, Jamshedpur while passing the order dated 19.12.2009 in Reference Case No. 23 of 1997 nor by the learned Single Judge while deciding W.P.(L) No. 2185 of 2010 vide judgment and order dated 23.06.2010; hence, both the orders deserve to be quashed and set aside.
6. It was held by Hon'ble Supreme court in the case of Divisional Controller, N.E.K.R.T.C. v. H. Amaresh, reported in (2006) 6 SCC 187, in paragraph no.18 as under:
"18. In the instant case, the misappropriation of the funds by the delinquent employee was only Rs 360.95. This Court has considered the punishment that may be awarded to the delinquent employees who misappropriated the funds of the Corporation and the factors to be considered. This Court in a catena of judgments held that the loss of confidence is the primary factor and not the amount of money misappropriated and that the sympathy or generosity cannot be a factor which is impermissible in law. When an employee is found guilty of pilferage or of misappropriating the Corporation's funds, there is nothing wrong in the Corporation losing confidence or faith in such an employee and awarding punishment of dismissal. In such cases, there is no place for generosity or misplaced sympathy on the part of the judicial forums and 16 interfering therefore with the quantum of punishment. The judgment in Karnataka SRTC v. B.S. Hullikatti was also relied on in this judgment among others. Examination of the passengers of the vehicle from whom the said sum was collected was also not essential. In our view, possession of the said excess sum of money on the part of the respondent, a fact proved, is itself a misconduct and hence the Labour Court and the learned Judges of the High Court misdirected themselves in insisting on the evidence of the passengers which is wholly not essential. This apart, the respondent did not have any explanation for having carried the said excess amount. This omission was sufficient to hold him guilty. This act was so grossly negligent that the respondent was not fit to be retained as a conductor because such action or inaction of his was bound to result in financial loss to the appellant irrespective of the quantum."
(emphasis supplied) It was further held by Hon'ble Supreme court in the case of U.P. SRTC v. Suresh Chand Sharma, reported in (2010) 6 SCC 555, in paragraph no. 23 as under:
"23. In NEKRTC v. H. Amaresh and U.P. SRTC v.
Vinod Kumar this Court held that the punishment should always be proportionate to the gravity of the misconduct. However, in a case of corruption/misappropriation, the only punishment is dismissal."
(emphasis supplied) It was further held by Hon'ble Supreme court in the case of Nirmala J. Jhala v. State of Gujarat, reported in (2013) 4 SCC 301, in paragraphs no. 25 and 26 as under:
"25. In Municipal Committee, Bahadurgarh v. Krishnan Behari this Court held as under: (SCC p. 715, para 4) "4. ... In a case of such nature--indeed, in cases involving corruption--there cannot be any other punishment than dismissal. Any sympathy shown in such cases is totally uncalled for and opposed to public interest. The amount misappropriated may be small or large; it is the act of misappropriation that is relevant."
26. In NEKRTC v. H. Amaresh this Court held that the punishment should always be proportionate to the gravity of the misconduct. However, in a case of corruption, the only punishment is dismissal. Similar view has been reiterated in U.P. SRTC v. Vinod Kumar and U.P. SRTC v. Suresh Chand Sharma."
(emphasis supplied) 17 It was further held by the Hon'ble Supreme court in the case of Rajasthan SRTC &Anr. v. Bajrang Lal, reported in (2014) 4 SCC 693, in paragraphs no.21 and 22 as under:
"21. As regards the question of disproportionate punishment is concerned, the issue is no more res integra. In U.P. SRTC v. Suresh Chand Sharma, it was held as under:
(SCC p. 561, para 22) "22. In Municipal Committee, Bahadurgarh v. Krishnan Behari this Court held as under: (SCC p. 715, para 4) '4. ... In a case of such nature--indeed, in cases involving corruption--there cannot be any other punishment than dismissal. Any sympathy shown in such cases is totally uncalled for and opposed to public interest. The amount misappropriated may be small or large; it is the act of misappropriation that is relevant.' Similar view has been reiterated by this Court in Ruston & Hornsby (I) Ltd. v. T.B. Kadam, U.P. SRTC v. Basudeo Chaudhary, Janatha Bazar (South Kanara Central Coop.
Wholesale Stores Ltd.) v. Sahakari Noukarara Sangha, Karnataka SRTC v. B.S. Hullikatti and Rajasthan SRTC v. Ghanshyam Sharma."
22. In view of the above, the contention raised on behalf of the respondent employee, that the punishment of removal from service is disproportionate to the delinquency is not worth acceptance. The only punishment in case of the proved case of corruption is dismissal from service."
(emphasis supplied) It was further held by the Hon'ble Supreme court in the case of Diwan Singh v. LIC Ors., reported in (2015) 2 SCC 341, as under:
"8. As far as argument relating to quantum of punishment, as modified by the High Court, which results in consequential forfeiture of pensionary benefits in view of Rule 23, quoted above, is concerned, we do not find the punishment to be harsh or disproportionate to the guilt, in view of the nature of the charge of which the appellant is found guilty in the present case. Time and again, this Court has consistently held that in such matters no sympathy should be shown by the courts.
9. In NEKRTC v. H. Amaresh, this Court, in para 18 of the judgment has expressed the views on this point as under: (SCC p. 193) "18. In the instant case, the misappropriation of the funds by the delinquent employee was only Rs 360.95. This Court has considered the punishment that may be awarded to the delinquent employees who misappropriated the funds of the Corporation and the factors to be considered. This Court in a catena of judgments held that the loss of confidence is the primary 18 factor and not the amount of money misappropriated and that the sympathy or generosity cannot be a factor which is impermissible in law. When an employee is found guilty of pilferage or of misappropriating the Corporation's funds, there is nothing wrong in the Corporation losing confidence or faith in such an employee and awarding punishment of dismissal. In such cases, there is no place for generosity or misplaced sympathy on the part of the judicial forums and interfering therefore with the quantum of punishment."
10. In Karnataka SRTC v. A.T. Mane in which unaccounted amount was only Rs 93 this Court expressed its opinion in para 12 as under: (SCC p. 259) "12. Coming to the question of quantum of punishment, one should bear in mind the fact that it is not the amount of money misappropriated that becomes a primary factor for awarding punishment; on the contrary, it is the loss of confidence which is the primary factor to be taken into consideration. In our opinion, when a person is found guilty of misappropriating the corporation's funds, there is nothing wrong in the corporation losing confidence or faith in such a person and awarding a punishment of dismissal."
11. In Niranjan Hemchandra Sashittal v. State of Maharashtra, this Court has made following observations in para 25 of the judgment: (SCC p. 654) "25. ... In the present day scenario, corruption has been treated to have the potentiality of corroding the marrows of the economy. There are cases where the amount is small, and in certain cases, it is extremely high. The gravity of the offence in such a case, in our considered opinion, is not to be adjudged on the bedrock of the quantum of bribe. An attitude to abuse the official position to extend favour in lieu of benefit is a crime against the collective and an anathema to the basic tenets of democracy, for it erodes the faith of the people in the system. It creates an incurable concavity in the rule of law."
12. In Rajasthan SRTC v. Bajrang Lal, this Court, following Municipal Committee, Bahadurgarh v. Krishnan Behari, has opined that in cases involving corruption there cannot be any other punishment than dismissal. It has been further held that any sympathy shown in such cases is totally uncalled for and opposed to public interest. The amount misappropriated may be small or large; it is the act of misappropriation that is relevant. In the said case (Rajasthan SRTC), the respondent employee was awarded punishment of removal from service. In the present case it is compulsory retirement. The learned counsel for respondents submitted that on an earlier occasion, the appellant was awarded a minor punishment for his misconduct, regarding defalcation of stamps. And now he is found guilty for the second time."
197. In view of the aforesaid decisions, whenever any theft or misappropriation of the amount or unauthorizedly any employee is indulging into such type of activities, quantum of punishment of dismissal cannot be labelled as shocking and disproportionate punishment.
8. As a cumulative effect of the aforesaid facts, reasons and judicial pronouncements, we, hereby, quash and set aside the award, passed by the Labour Court, Jamshedpur dated 19.12.2009 in Reference Case No. 23 of 1997 and the judgment and order passed by the learned Single Judge in W.P.(L) No. 2185 of 2010 dated 23.06.2010, there being perversity in the finding of the Labour Court, as the Labour Court has usurped the power of appeal against the finding of the inquiry officer. This Letters Patent Appeal is thus allowed and disposed of and the order of dismissal dated 03.05.1993 passed by the Sr. General Manager of the appellant is, hereby, upheld.
(D.N. Patel, A.C.J.) (Ratnaker Bhengra,J.) AFR-SD/SB