Gujarat High Court
Divisional Controller vs Labour Court on 22 March, 2018
Author: K.M.Thaker
Bench: K.M.Thaker
C/SCA/2339/2015 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 2339 of 2015
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE K.M.THAKER Sd/-
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1 Whether Reporters of Local Papers may be allowed to YES
see the judgment ?
2 To be referred to the Reporter or not ? YES
3 Whether their Lordships wish to see the fair copy of the NO
judgment ?
4 Whether this case involves a substantial question of law NO
as to the interpretation of the Constitution of India or any
order made thereunder ?
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DIVISIONAL CONTROLLER
Versus
LABOUR COURT
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Appearance:
MR GM JOSHI(370) for the PETITIONER(s) No. 1
MR PARITOSH CALLA(2972) for the RESPONDENT(s) No. 1
MS HARSHAL N PANDYA(3141) for the RESPONDENT(s) No. 2
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CORAM: HONOURABLE MR.JUSTICE K.M.THAKER
Date : 22/03/2018
ORAL JUDGMENT
1. Learned advocates for the petitioner and the respondent are not present.
2. The petition is listed in the Cause List for 1 C/SCA/2339/2015 JUDGMENT Final Hearing, which is special list (for Thursday) the matters are listed specially for Final Hearing. According to the note / instructions in the Roster, special instructions are also issued in respect of the matters listed for final hearing in special cause list on Thursday. Therefore, this Court is not inclined to adjourn the hearing.
3. In this petition, the petitioner has prayed, inter alia, that:
"7(A) This Hon'ble Court be pleased to issue a writ of certiorari or any other appropriate writ, order or direction in the form of certiorari or any other appropriate writ, order or direction calling for the records and proceedings of Reference (LCS) No.13 of 2010 and after perusing the same be pleased to quash and set aside the award of the tribunal dated 30/6/2014."
4. So far as the factual background is concerned, it has emerged from the record that the respondent herein raised industrial dispute against the order of penalty dated 20.2.2002. Appropriate government referred the dispute for adjudication to the learned Labour Court at Surat. The learned Labour Court registered the 2 C/SCA/2339/2015 JUDGMENT reference as Reference (LCS) No.13 of 2010. 4.1 In his statement of claim, the respondent (claimant / workman) alleged that he worked with the corporation as Conductor since 1979. The workman further alleged that with concocted allegation, the corporation served a chargesheet dated 5.8.2001 and in pursuance of the said chargesheet, the corporation conducted domestic enquiry. The claimant further alleged that the Enquiry Officer did not grant sufficient opportunity of hearing and defence and arbitrarily closed the proceedings by depriving him from the opportunity to lead evidence. He further alleged that without support of any evidence, the Enquiry Officer held that the allegations are proved and on the basis of such incorrect and unjust conclusion by the Enquiry Officer, the Disciplinary Authority arbitrarily terminated his service vide order dated 22.2.2002. With the allegation that though the charge of misconduct is not proved, the employer 3 C/SCA/2339/2015 JUDGMENT illegally terminated his service, the claimant demanded that he should be reinstated in service with backwages and other benefits.
4.2 The opponent corporation opposed the reference and the demand by the claimant. In its reply, the opponent corporation claimed that the claimant was assigned duty on 5.8.2001 on Bus No.1805 which was enroute to Panchol from Vyara and that the said bus was checked by the Checking Squad. The Checking Squad found that the claimant committed irregularity in issuing the tickets to four passengers and also committed irregularity in preparing way bill. The Checking Squad also noticed that the claimant had not issued tickets to the passengers according to serial number of the tickets in the block but had randomly issued tickets. According to the corporation, the conduct of the claimant and the method and manner in which he issued tickets resulted into loss of fare to the corporation and also resulted in misappropriation of the fare. The Checking Squad 4 C/SCA/2339/2015 JUDGMENT reported the said misconduct ot he corporation. Thereupon, the corporation issued chargesheet and conducted domestic enquiry in accordance with the applicable Rules. Upon conclusion of the domestic enquiry, the Enquiry Officer submitted the report with the findings and conclusion that the charge and allegations against the workman are proved. The corporation further claimed in the reply that in view of the proved misconduct, the competent authority considered appropriate to terminate the service of the claimant and therefore, the authority passed order dated 22.2.2002 and terminated service of the claimant. According to the corporation, there is no illegality or error or arbitrariness in the order The corporation also claimed that the reference should be rejected.
4.3 After the parties completed pleadings and closed respective evidence, the learned Labour Court heard rival submissions from the contesting parties. Upon conclusion of the proceedings, the 5 C/SCA/2339/2015 JUDGMENT learned Labour Court passed impugned award whereby the learned Labour Court set aside the penalty order passed by the Disciplinary Authority and directed the corporation to reinstate the claimant with continuity of service, however, without backwages. 4.4 Feeling aggrieved by the said direction and the award dated 30.6.2014, the corporation filed present petition.
5. This Court admitted the petition vide order dated 10.2.2015 and stayed the implementation and operation of the impugned award.
6. At this stage, Mr.G.M. Joshi, learned advocate for the petitioner and Ms.Niyati Vaishnav, learned advocate for Ms.Harshal Pandya, learned advocate for the respondent have appeared.
7. Mr.Joshi, learned advocate submitted that the learned Labour Court exercised jurisdiction arbitrarily and with material irregularity. The 6 C/SCA/2339/2015 JUDGMENT learned Labour Court has not taken into account the decision by Hon'ble Apex Court in case of State of Haryana vs. Rattan Singh [(1977) 2 SCC 491] and the decision in case of U.P. State Road Transport Corporation vs. Suresh Chand Sharma [(2010) 6 SCC 555] and only on the ground that the passengers were not examined, the learned Labour Court set aside the order of penalty passed by the competent authority. According to the petitioner corporation, the premise on which the learned Labour Court quashed the penalty order passed by corporation, is contrary to the decisions by Hon'ble Apex Court and the legal position explained by Hon'ble Apex Court and that, therefore, the award deserves to be set aside.
7.1 Ms.Niyati Vaishnav, learned advocate for the respondent / claimant submitted that the learned Labour Court has not committed any error and the award is just and proper. She submitted that the corporation imposed penalty of termination from 7 C/SCA/2339/2015 JUDGMENT service and without examining the passengers reached to the conclusion that the claimant had not issued tickets and to certain other passengers the corporation the claimant issued tickets randomly and did not issue tickets as per the serial number in the block of tickets issued to him. Learned advocate for the respondent workman also submitted that only on the ground that the excess amount was found in the hands of the claimant, the corporation jumped to the conclusion that the claimant had misappropriated the amounts. Since there was no evidence to support such conclusion, the learned Labour Court held that the conclusions recorded by the Enquiry Officer are erroneous. According to learned advocate for the claimant, the learned Labour Court has not committed any error in recording the finding or in the final decision. Learned advocate for the respondent would submit that the petition deserves to be dismissed.
8. I have heard rival submissions and considered 8 C/SCA/2339/2015 JUDGMENT the material available on record.
9. At the outset, it is relevant and appropriate to take into account the observations by Hon'ble Apex Court in case of State of Haryana vs. Rattan Singh (AIR 1977 SC 1512), wherein Hon'ble Apex Court observed that:
"4. It is well settled that in a domestic enquiry the strict and sophisticated rules of evidence under the Indian Evidence Act may not apply. All materials which are logically probative for a prudent mind are permissible. There is no allergy to hearsay evidence provided it has reasonable nexus and credibility. It is true that departmental authorities and administrative tribunals must be careful in evaluating such material and should not glibly swallow what is strictly speaking not relevant under the Indian Evidence Act. For this proposition it is not necessary to cite decisions nor text books, although we have been taken through case law and other authorities by counsel on both sides. The essence of a judicial approach is objectivity, exclusion of extraneous materials or considerations and observance of rules of natural justice. Of course, fairplay is the basis and if perversity or arbitrariness, bias or surrender or independence of judgment vitiate the conclusions reached, such finding, even though of a domestic tribunals cannot be held good. However, the courts below misdirected themselves, perhaps in insisting that passengers who had come in and gone out should be chased and brought before the tribunal before a valid finding could be recorded. The 'residuum' rule to which counsel for the respondent referred, based upon certain passages from American Jurisprudence does not go to that extent nor does the passage from Halbsbury insist on such rigid requirement. The simple point is, was there some evidence or was there no evidence not in the sense of the technical rules governing regular court proceedings but in a fair commonsense way as men of understanding and worldly wisdom will accept. Viewed in this way, sufficiency of evidence in proof of the finding by a domestic tribunal is beyond scrutiny. Absence of any evidence in support of a finding is certainly available for the court to look into because it amounts to an error of law apparent on the record. We find, in this case, that the evidence of Chamenlal, Inspector of the flying squad, is some evidence which has relevance to the charge levelled against the respondent. Therefore, we are unable to hold that the order in invalid on that ground.9
C/SCA/2339/2015 JUDGMENT
5. Reliance was placed, as earlier stated, on the non compliance with the departmental instruction that statements of passengers should be recorded by inspectors. These are instructions of prudence, not rules that bind or vitiate in the violation. In this case, the Inspector tried to get the statements but the passengers declined, the psychology of the latter in such circumstances being understandable, although may not be approved. We cannot hold that merely because statements of passengers were not recorded the order that followed was invalid. Likewise, the reevaluation of the evidence on the strength of coconductor's testimony is a matter not for the court but for the administrative tribunal. In conclusion, we do not think the courts below were right in overturning the finding of the domestic tribunal.
6. No actual punishment in the sense of dismissal or removal was inflicted and counsel for the State read out the order finally passed. The order merely states that the services were terminated and the State's Counsel agrees that there was no dismissal or removal or punitive punishment as seen from the order. All that we guess is, taking the words used in the order, the authorities probably had regard to the overall circumstances including the long years of service (10 years) and the comparatively young age of the delinquent at the time of termination of service (26) and relented in the matter of final termination by simply telling him off from service without inflicting any of the punishments. This lies within the power of the employers and it is not for us to say that the State should have punished him in a particular manner. Therefore, while confirming the order passed by the State and setting aside the decree of the courts below we hold that the consequences of a simple termination must follow. We, therefore, direct, while allowing the appeal, that the State shall pay the respondent all that is due to him under the industrial law as an employee when his services are terminated without penal consequences apart from the salary for the period he has worked after the recent reinstatement. Counsel for the appellants has agreed that this direction will be carried out as the State is bound to. With these observations, we allow the appeal but the parties will bear their costs throughout."
From above quoted observations, it becomes clear that (a) merely because passengers' statements are not recorded the Labour Court cannot be, on that ground, discard or invalidate the domestic enquiry or the findings by Enquiry 10 C/SCA/2339/2015 JUDGMENT Officer so long as they are based on evidence available on record; and (b) the quantum of penalty, in the matter of proved misconduct, is in the realm of employer.
9.1 In this context, it is also appropriate to take into consideration observations by Apex Court in case of J.D. Jain vs. The Management of State Bank of India and another [AIR 1982 SC 673], wherein Hon'ble Apex Court explained the concept of hearsay evidence and observed that:
"7. In an application for a Writ of Certiorari under Art. 226 of the Constitution for quashing an award of an Industrial Tribunal, the jurisdiction of the High Court is limited. It can quash the award, inter alia, when the Tribunal has committed an error of law apparent on the face of the record or when the finding of facts of the Tribunal is perverse. In the case before us, according to the Tribunal as Kansal was not examined, the evidence before it was hearsay and as such on the basis thereof the appellant could not be legally found guilty.
8. Before the Enquiry Officer, the respondent examined the following witnesses : Gupta (Witness 1), Vadhera, the Ledgerkeeper (Witness
2), Mahesh Chander who was in charge of Savings Bank Account on 821971 (Witness 3), M. Ramzan, Agent of the Bank (Witness 4), Sarkar (Witness 5) and Bhardwaj (Witness 6).
Bhardwaj was a leader of the employees' union of the respondent. He did not support the case of the respondent. The other witnesses supported the case of the respondent. Witnesses Nos. 1, 2, 4 and 5 depose that a verbal complaint was made by Kansal in their presence to the effect that he had authorised the appellant to withdraw Rs. 500.00 which sum was paid to him, but the entries showed that Kansal had withdrawn Rs. 1500.00. Witnesses Vadhera, Ramzan and Sarkar also deposed that the appellant had confessed before them that he had made the alterations in the figure and in words of the sum. The Tribunal after having made detailed references to the 11 C/SCA/2339/2015 JUDGMENT evidence of the above witnesses in fact found. "All that this evidence thus, proves is that a complaint was made by Shri Kansal and that the workman confessed that he had altered the debit authority'. (emphasis added). Curiously, however it held, "This evidence, by no means proved that the workman altered the debit authority to defraud or that he actually defrauded or that he misappropriated the amount of Rs. 1,000.00 after paying Rs. 50000 only to Mr. Kansal from the amount of Rupees 1,500.00 withdrawn from the bank by him as it was not direct evidence but was in the nature of hearsay evidence since it was learnt through the medium of a third person and that person was not available." It further held, "There can be no hesitation, therefore, that the Enquiry Officer relied on hearsay evidence in arriving at his findings and it vitiated the enquiry." It went on "All this could be enough for raising a suspicion only. In order to be called 'proved' it needed evidence which was not there." It further observed, "But the question was whether it was done without the consent or knowledge of Mr. Kansal. There was no evidence on the record to prove it. The only person who could speak about it was Mr. Kansal. He did not appear before the inquiry officer, therefore, there was no direct evidence that the change that was admittedly made by the workman in the debit authority was without Mr. Kansal's consent or knowledge or that it was designed to defraud." (emphasis added). The positive findings of the Tribunal are:
(i) Kansal made the complaint as alleged by the management,
(ii) The appellant confessed that he had made the alterations charged with, as alleged by the management,
(iii) By implication it has also found that Rs. 1,000.00 in excess of the original amount of Rs. 500.00 was received by the appellant as a result of the alterations.
But it has held that as Kansal was not examined fraud and misappropriation on the part of the appellant cannot be held to be proved, as the evidence was 'hearsay'.
9. The learned Tribunal, it appears, was oblivious of the fact that it was examining the evidence in a domestic enquiry, and not the evidence in a criminal prosecution entailing conviction and sentence.
In a case like the one before us, three kinds of proceedings against the delinquent are possible :
(i) departmental proceedings and action,
(ii) criminal prosecution for forgery and misappropriation,
(iii) civil proceedings for recovery of the amount alleged to be misappropriated.
The respondent herein adopted course (i) and instituted the domestic enquiry in which the principle applied by the Tribunal is not applicable; in such an enquiry guilt need not be established beyond reasonable doubt; proof of misconduct may be sufficient.
The learned Tribunal has committed another error in holding that the finding of the domestic enquiry was based on "hearsay" evidence. The law is wellsettled that the strict rules of evidence are not applicable in a domestic enquiry.
This Court in the case of State of Haryana v. Rattan 12 C/SCA/2339/2015 JUDGMENT Singh reported in AIR 1977 SC 1512 held (at p. 1513) : "It is wellsettled that in a domestic enquiry the strict and sophisticated rules of evidence under the Indian Evidence Act may not apply. All materials which are logically probative for a prudent mind are permissible. There is no allergy to hearsay evidence provided it has reasonable nexus and credibility.
10. The next question is, is the evidence in the domestic enquiry really hearsay, as held by the Tribunal? The word 'hearsay' is used in various senses. Sometimes it means whatever a person is heard to say; sometimes it means whatever a person declares on information given by someone else. (See Stephen on Law of Evidence). The Privy Council in the case of Subramaniam v. Public Prosecutor, (1956) 1 WLR 965 observed : "Evidence of a statement made to a witness who is not himself called as a witness may or may not be hearsay. It is hearsay and inadmissible when the object of the evidence is to establish the truth of what is contained in the statement. It is not hearsay and is admissible when it is proposed to establish by the evidence, not the truth of the statement but the fact that it was made. The fact that it was made quite apart from its truth, is frequently relevant in considering the mental state and conduct thereafter of the witness or some other persons in whose presence these statements are made."
11. In the instant case, the alleged misconduct of the appellant was that he forged documents, withdrew Rs. 1,500.00 Rs. 1,000.00 in excess of the amount he was authorised to do and misappropriated the excess amount of Rs. 1,000,00. With regard to the fact whether the appellant manipulated the documents withdrew excess amount and misappropriated it, there is, of course, no direct evidence of any eyewitness except the appellant's 'confession' referred to above. The evidence on which reliance has been taken by the respondent is the confession and circumstantial evidence, namely, the authority letter containing the admitted interpolations by the appellant in his own handwriting in different ink, and the addition of the digit "1" before 500. The evidence of Kansal would have been primary and material, if the fact in issue were whether Kansal authorised the appellant to make the alterations in the authority letter. But Kansal's complaint was to the contrary. For the purpose of a departmental enquiry complaint, certainly not frivolous, but substantiated by circumstantial evidence, is enough. What the respondent sought to establish in the domestic enquiry was that Kansal had made a verbal complaint with regard to the withdrawal of excess money by the appellant in presence of the four witnesses, namely, Wadhera, Gupta, Ramzan and Sarkar, aforesaid against his advice. On the complaint of Kansal, the evidence of these four witnesses is direct as the complaint is said to have been made by Kansal in their presence and hearing; it is, therefore, not hearsay. As the respondent has succeeded in proving that a complaint was made by Kansal on the evidence of the abovenamed four witnesses, the respondent has succeeded. No rule of law enjoins that a complaint has to be in writing as insisted by the Tribunal.
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C/SCA/2339/2015 JUDGMENT
12. The learned Tribunal has committed yet another grievous error, in failing to appreciate the confessions made by the appellant "in the presence of witnesses and to the higher officer who appeared as witness" (as found by itself) namely, Wadhera, Ramzan, Gupta and Sarkar, aforesaid. The confessions of the appellant before the said witnesses were to the effect that he had altered the amount in figure and words in his own hand. The award of the Tribunal, therefore, has been vitiated by misconception of the law involved in the case."
10. A profitable reference can also be made to the observations by Hon'ble Apex Court in case of U.P. State Road Transport Corporation (supra), wherein Hon'ble Apex Court, in paras 12 to 20, observed that:
"12. The Labour Court recorded the findings of facts as under:
"As far as the question of conclusions drawn by the Enquiry officer is concerned, in the enquiry conducted in respect of first charge sheet dated 7.7.1988 Ext.E/2, statement of Shri Atar Singh, Traffic Inspector has been recorded wherein he has proved the report Ext.E/1 of Shri Atar Singh, Traffic Inspector. Shri Atar Singh had checked the vehicle and 13 without ticket passengers have been found travelling from whom the petitionerworkman had already taken Rs..43/ as fare. Shri Atar Singh has accordingly made a remark on the way bill and obtained the signatures of petitionerworkman also. The petitioner workman did not ask any question in cross examination to this witness. The petitioner workman has also not asked any question in cross examination with the other witness Shri Kailash Chandra, Traffic Inspector." (Ephasis added)
13. The Labour Court recorded a finding of fact that in respect of both the misconducts the passengers were found travelling without tickets and they had already paid fare to the employee/Conductor. Thus, it is not a case where the said employee could not issue the ticket and recover the fare from the travelling passengers, rather the finding has been recorded that after recovering the fare from the passengers, he did not issue tickets to them. Thus, there was an intention to mis appropriate the fare recovered from the passengers who were found travelling without tickets at both the times.
14. The High Court dealt with the matter in a most cryptic manner. Relevant/main part of the judgment of the High Court reads as under:
"5.....The Inspector in the crossexamination has also 14 C/SCA/2339/2015 JUDGMENT stated on oath that the cash was not checked. The learned counsel for the petitioner further submitted that when the bus was checked, ten passengers were boarded on the bus and they were drunk and they were also denying taking the tickets. The learned Tribunal has not considered this fact at all. I find force in the contention of the learned counsel for the petitioner. The learned Tribunal ought to have considered this fact that neither the passengers were examined, nor the cash was checked. Therefore, the order of the learned Tribunal cannot be sustained in the eye of law." (Emphasis added)
15. The High Court has decided the Writ Petition only on the ground that the passengers found without tickets, had not been examined and the cash with the employee was not checked. No other reasoning has been given whatsoever by the Court.
16. In State of Haryana & Anr. Vs. Rattan Singh AIR 1977 SC 1512, this Court has categorically held that in a domestic enquiry, complicated principles and procedure laid down in the Code of Civil Procedure, 1908 and the Indian Evidence Act, 1872 do not apply. The only right of a delinquent employee is that he must be informed as to what are the charges against him and he must be given full opportunity to defend himself on the said charges. However, the Court rejected the contention that enquiry report stood vitiated for not recording the statement of the passengers who were found travelling without ticket. The Court held as under:
"We cannot hold that merely because statements of passengers were not recorded the order that followed was invalid. Likewise, the reevaluation of the evidence on the strength of coconductor's testimony is a matter not for the court but for the administrative tribunal. In conclusion, we do not think courts below were right in overturning the finding of the domestic tribunal."
17. In view of the above, the reasoning so given by the High Court cannot be sustained in the eye of law. More so, the High Court is under an obligation to give not only the reasons but cogent reasons while reversing the findings of fact recorded by a domestic tribunal. In case the judgment and order of the High Court is found not duly supported by reasons, the judgment itself stands vitiated. (Vide State of Maharashtra Vs. Vithal Rao Pritirao Chawan, AIR 1982 SC 1215; State of U.P. Vs. Battan & Ors. (2001) 10 SCC 607); Raj Kishore Jha Vs. State of Bihar & Ors. AIR 2003 SC 4664; and State of Orissa Vs. Dhaniram Luhar AIR 2004 SC 1794.
18. In State of West Bengal Vs. Atul Krishna Shaw & Anr. AIR 1990 SC 2205, this Court observed that "giving of reasons is an essential element of administration of justice. A right to reason is, therefore, an indispensable part of sound system of judicial review."
19. In State of Uttaranchal & Anr. Vs. Sunil Kumar Singh Negi AIR 2008 SC 2026, this Court held as under:
"Right to reason is an indispensable part of a sound judicial system; reasons at least sufficient to indicate an application of mind to the matter before Court. Another rationale is that the affected party can know why the decision has gone against him. One of the salutary requirements of natural justice is spelling out reasons 15 C/SCA/2339/2015 JUDGMENT for the order made".
17. In Raj Kishore Jha (supra), this Court observed as under:
"Before we part with the case, we feel it necessary to indicate that nonreasoned conclusions by appellate Courts are not appropriate, more so, when views of the lower Court are differed from. In case of concurrence, the need to again repeat reasons may not be there. It is not so in case of reversal. Reason is the heartbeat of every conclusion. Without the same, it becomes lifeless".
18. In fact, "reasons are the links between the material, the foundation for these erection and the actual conclusions. They would also administer how the mind of the maker was activated and actuated and their rational nexus and synthesis with the facts considered and the conclusion reached". (vide: Krishna Swami Vs. Union of India & Ors. AIR 1993 SC 1407)
20. Therefore, the law on the issue can be summarized to the effect that, while deciding the case, court is under an obligation to record reasons, however, brief, the same may be as it is a requirement of principles of natural justice. Nonobservance of the said principle would vitiate the judicial order. Thus, in view of the above, the judgment and order of the High Court impugned herein is liable to be set aside."
11. From above quoted observations, it becomes clear that only on the ground that the passengers were not examined by the corporation during domestic enquiry, the findings by the Enquiry Officer and/or order of penalty by the competent authority cannot be interfered with and cannot be faulted.
12. Despite such legal position explained by Hon'ble Apex Court, the learned Labour Court, in present case, declared that the findings and report o the Enquiry are untenable on the ground 16 C/SCA/2339/2015 JUDGMENT that the corporation did not examine the passengers. The learned Labour Court has held that the finding by the Enquiry Officer cannot be sustained because the said finding and conclusion are recorded without examining the passengers.
13. The premise on which learned Labour Court proceeded and declared the finding of the Enquiry Officer are unsustainable, is misconceived and contrary to the decision by Hon'ble Apex Court.
14. It is also relevant to note that undisputedly, the cash on hand of the claimant was examined by the Checking Squad and excess amount of Rs.27.50 was found in hands of the claimant.
15. Despite the said undisputed fact, the learned Labour Court observed that merely because some excess amount is found in the hands of the claimant the corporation can not jump to the conclusion that the claimant misappropriated the said amount. The said observation by the learned 17 C/SCA/2339/2015 JUDGMENT Labour Court is also misconceived and unjustified. The learned Labour Court failed to appreciate that the excess amount found in the hands of the claimant was almost equivalent to the tickets which the claimant had not issued tickets. Besides this the claimant failed to offer any explanation with regard to said excess cash on his hands.
16. From the observations by the learned Labour Court in para 11, it emerges that the learned Labour Court has proceeded on erroneous and misconceived premise with regard to the conduct of the domestic enquiry as well as the material and evidence which would indicate and establish the misconduct.
17. So far as the claimant's allegation that the Enquiry Officer did not grant sufficient opportunity of hearing and defence is concerned, it is relevant to note that though the claimant raised such allegation and statement of claim, however, before the learned Labour Court, he 18 C/SCA/2339/2015 JUDGMENT filed a purshis and declared that he does not challenge legality and propriety of the enquiry.
18. Thus, it was established before the learned Labour Court that legal and fair enquiry was conducted.
19. In view of the observations and findings by the learned Labour Court that though the excess amount was found in the hands of the claimant, the Enquiry Officer could not have recorded conclusion that the claimant misappropriated the amount and also in view of the observations by the learned Labour Court that since the passengers were not examined, the Enquiry Officer could not have reached to the conclusion that the tickets were not issued and/or tickets were issued in random manner (i.e. were not issued in serial number) are unsustainable. The award based on such observation and conclusion cannot be sustained.
20. From foregoing discussion it has emerged that 19 C/SCA/2339/2015 JUDGMENT the award is not sustainable. However, the learned Labour Court examined the material not only from very limited perspective but from irrelevant and misconceived perspective viz. the passengers were not examined but the learned Labour Court did not examine the Enquiry Officer's findings from proper and relevant perspective. The learned Labour Court did not consider the extent of the material which was available on record before the Enquiry Officer and/or the material on the basis of which Enquiry Officer reached to the conclusion against the workman. It is pertinent that the claimant has challenged the finding of the Enquiry Officer and that, therefore, it was necessary for the Court to examine the findings of the Enquiry Officer in light of entire evidence available on record of the domestic enquiry and to ascertain as to whether the findings recorded by the Enquiry Officer are supported by appropriate evidence or not. However, in view of the fact that the material related to enquiry is not available on 20 C/SCA/2339/2015 JUDGMENT record of this petition, the matter deserves to be remanded to learned Labour Court for fresh consideration so that entire evidence of domestic enquiry can be considered and findings by the Enquiry Officer can be examined in right perspective and by keeping in focus observations by Apex Court.
21. Therefore, following order is passed.
22. The learned Labour Court shall pass fresh award after granting opportunity to the corporation and the claimant. After taking into account the evidence available on record, the learned Labour Court shall pass fresh award without being influenced by the impugned award, more particularly the observations by the learned Labour Court in paras 10, 11 and 12 of the impugned award.
With the aforesaid clarifications, observations and directions, the petition is partly allowed. Impugned award is set aside the 21 C/SCA/2339/2015 JUDGMENT case is remanded to the learned Labour Court, Surat to pass fresh award in light of the material available on record of Reference (LCS) No.13 of 2010. Rule is discharged.
Sd/ (K.M.THAKER, J) Bharat 22