Madras High Court
The Management Of Tamil Nadu Cements ... vs The Presiding Officer, Principal ... on 18 November, 2004
Equivalent citations: (2005)ILLJ1159MAD
Author: Prabha Sridevan
Bench: Prabha Sridevan
ORDER Prabha Sridevan, J.
1. The employer has filed this writ petition against the award of the Labour Court ordering reinstatement with continuity of service, backwages and other benefits.
2. The second respondent joined the petitioner as a security guard in 1979. He had put in about 22 years of service when he was issued with the charge sheet for theft of the respondents' property of three blades of 48" ceiling fan, 2 blades of pedestal fan and one exhaust fan. The domestic enquiry was conducted and simultaneously criminal proceedings were also initiated at the instance of the petitioner against the second respondent. The criminal proceedings ended in acquittal. The domestic enquiry ended in termination. The second respondent raised an industrial dispute. The Labour Court found that the charges have not been proved and therefore, allowed the claim of the second respondent.
3. The learned counsel for the petitioner/management would submit that the award is vitiated. The petitioner sought for permission to examine witnesses before the Labour Court and M.W.1 was the witness who caught the second respondent red-handed. The evidence of this witness was rejected only on the ground he had not been examined either before the Criminal Court or in the domestic enquiry. The learned counsel would submit that the Labour Court misunderstood the scope of its enquiry. The proceedings before a Labour Court is not in the nature of criminal proceedings where the evidence has to be proved beyond reasonable doubt. What the Labour Court has to see is the preponderance of probabilities. Further it was submitted that the criminal proceedings is relevant only if the facts before the Enquiry Officer and the facts before the criminal court are identical and not at variance. In this case, M.W.1 was not examined before the Criminal Court and therefore, what the materials before the Labour Court were not before the Criminal Court and nothing prevented the Labour Court from appreciating the evidence properly.
4. The learned counsel also submitted that the manner in which the Labour Court had examined the evidence before it would clearly show that the Labour Court had not considered the evidence properly but perversely. Therefore, the petitioner is justified in invoking the jurisdiction under Article 226 of the Constitution of India. The learned counsel also submitted that the doubts raised by the Labour Court regarding the non-examination of the driver and the boy with whom the second respondent was seen, were unjustified. If the charges are proved on the sole evidence of M.W.1 then the Labour Court ought to have accepted the evidence.
5. The learned counsel also submitted that this was not the first time the second respondent had committed the lapse. Twice or thrice, earlier, he had continuously committed misconduct and therefore, the petitioner had lost its trust in the second respondent and viewed from this angle also the order of reinstatement was not proper. Several decisions were cited by the learned counsel for the petitioner.
6. The learned counsel for the respondent would submit that the powers of the Labour Court under Section 11A of the Industrial Dispute Act are quite wide. When the Labour Court is asked to examine the evidence which is produced before it and not the enquiry report and the findings rendered thereunder, the Labour Court which discharges managerial functions which functions would be discharged by the Enquiry Officer otherwise. The learned counsel submitted that it is not as if the Labour Court had accepted the petitioner's claim merely because M.W.1 was not examined. The Labour Court had gone into factual issues and held in favour of the second respondent and therefore, these findings were not open to judicial review. The learned counsel for the respondent also cited several decisions.
7. The case of the petitioner is that on 15-05-1991, during the night shift of M.W.1, the sergeant of the Local Library Authority in whose building the petitioner's office is situate, M.W.1 apprehended the second respondent when along with a boy was found stealthily removing in a small bag one exhaust fan, three blades of ceiling fans and two blades of pedestal fan which were kept in the storeroom. M.W.1 informed the F4 Thousand Lights Police Station. On 16-05-1991, M.W.1 repeated to the District Librarian about the incident that happened. A complaint was lodged. Thereafter the domestic enquiry was conducted and he was found guilty and taking into consideration of his past record, he was dismissed. M.W.1 was examined before the Labour Court. M.W.1 is a sergeant of the Local Library Authority. According to him, on 15-05-1991, at about 8 o' clock he saw the second respondent going out of the office with a young boy. He was having a small polythene bag. When the second respondent saw M.W.1, he ran away. Then M.W.1 enquired the young boy, who told him that the second respondent who is in the second floor of the building gave those articles to him. He opened the bag and saw the blade and other articles and then R2 ran to the M.W.1 and asked him to excuse him on this one occasion and that he would never repeat it. But M.W.1 did not accede to his request.
8. In cross-examination he has stated that though he did not see the second respondent removing the articles he saw him bringing them out of the building. He has admitted in the cross-examination that he was not examined during the domestic enquiry or in the criminal proceedings. Ex-M17 is the list of office equipments kept in the store. The inventory as on 08-05-1991 and on 16-05-1991 shows that three items are missing, which are the exhaust fans, ceiling fans with three blades and pedestal fan blades.
9. Ex-M12 is the xerox copy of the letter sent to the respondent by the petitioner's Personnel Officer. In this, it is stated that the Personnel officer was informed by one Ganapathi that the second respondent who was in the night shift did not hand over the office keys to him and that he brought the office keys from Thousand Lights Police Station wherein the second respondent had been remanded and on verification, he came to understand that the second respondent had stolen the materials. The Labour Court had considered the materials on record and came to the conclusion that the charges were not proved.
10. A perusal of the award shows the following reasons for the said conclusion. The Labour Court has dealt in detail with the illegality of the domestic enquiry. These findings can be ignored since the petitioner has produced evidence before the Labour Court which alone were the materials for the Labour Court to consider. In fact the petitioner alone has examined witnesses and marked exhibits(Exs-M1 to M25). The second respondent has not adduced any evidence either oral or documentary. Therefore, these observations of the Labour Court regarding the legal enquiry can be ignored. The following observations are crucial:
"A careful reading of the cross-examination of M.W.1 would clearly go to show that he had not given evidence either in the domestic enquiry or in the criminal case. If really he was present during the occurrence he would have examined both in the domestic enquiry and in the criminal case has he happened to be the informant with regard to the theft to the Police. ... ... This will throw a doubt in the case of the respondent.
... Further M.W.1 has stated that he did not know the name of the boy who was handed over to the Police along with the petitioner.
...Further the materials alleged to have been stolen have been kept in a small polythene bag. As rightly contended by the learned counsel appearing for the petitioner the description of the articles stolen cannot be kept in a small polythene bag. ...
It should be noted that M.W.2 has admitted that the Articles alleged to have been removed by the petitioner were kept in the store-room and there is a separate store-keeper for the said store room. It should be noted that the store-keeper has not been examined in this case. No explanation is offered as to why the said store-keeper has not been examined to prove the alleged theft committed by the petitioner. ...
... though this Court is not bound to take cognisance acquittal of the criminal Court. But from the facts as above mentioned, the acquition by the criminal court has to be considered along with other material placed before this Court to decide as to whether the charges levelled against the Petitioner were proved or not."
For the above reasons, the Labour Court concluded that the second respondent is not likely to have committed the theft or atleast the petitioner has not shown to the satisfaction of the Labour Court that the charges could be believed.
11. The Labour Court was not persuaded to believe the petitioner's case. The Labour Court was not satisfied regarding the veracity of M.W.1's evidence. Similarly, the Labour Court had also taken note of the fact that the articles which are said to be missing, which are one exhaust fan, blades of a 'khaitan' fan and pedestal fan blades could not have been kept in a small polythene bag. As regards the reference to the acquittal by the Criminal Court, the Labour Court was conscious that it was not bound to take cognizance of the Criminal Court but when these doubts were raised in the mind of the Labour Court the acquittal was also another persuasive factor for arriving at the conclusion for the charges were not proved.
12. Judicial review is really not concerned with the decision but with the decision-making process. If no fault can be found with that and yet, the Court interferes, it may be guilty of usurping power. In Amin v. Entry Clearance Officer (1983 1 All ER 509) Lord Fraser observed that:
"Judicial review is concerned not with the merits of a decision but with the manner in which the decision was made. ... Judicial review is entirely different from an ordinary appeal. It is made effective by the court quashing the administrative decision without substituting its own decision, and is to be contrasted with an appeal where the appellate tribunal substitutes its own decision, and is to be contrasted with an appeal where the appellate tribunal substitutes its own decision on the merits for that of the administrative officer."
And can we say that the decision is such that no authority properly directing itself reasonably urged it? This in fact is the test of what is called the Wednesbury principle.
13. In Krishnakali Tea Estate v. Akhil Bharatiya Mazdoor Sangh (2004 107 FJR 330), the Supreme Court held that the Labour Court had in fact perused the order of the Judicial Magistrate and the exhibits produced therein and came to the independent conclusion that the order of the criminal court had no bearing on the proceedings before it which findings of the Labour Court has been justified. In that case, the workmen were honourably acquitted by the Criminal Court. But the Labour Court, came to a different conclusion. In Hardwari Lal v. State of U.P. , the Supreme Court held that there was no proper enquiry and ordered reinstatement.
14. In L.Michael v. Johnson Pumps Ltd., , the Supreme Court held as follows:
"The Tribunal has the power and indeed, the duty to X-ray the order and discover its true nature, if the object and effect, if the attendant circumstances and the ulterior purpose be to dismiss the employee because he is an evil to be eliminated. But if the management to cover up the inability to establish by an enquiry, illegitimately but ingeniously passes an innocent-looking order of termination simpliciter, such action is bad and is liable to be set aside. Loss of confidence is no new armour for the management; otherwise security of tenure, ensured by the new industrial jurisprudence and authenticated by a catena of cases of the Supreme Court, can be subverted by this neo-formula."
15. In Management of Singareni Colleries Ltd. v. Industrial Tribunal (C) Hyderabad and Ors. (1989 (2) LLJ 608), the "The Judgement of the Criminal Court has to be taken into account by the disciplinary authority and given its due weight. It is not open to the management to ignore the criminal court's judgment - vide (1970-I-LLJ-481) and (1975-I-LLJ 304)"
16. In A.G.M., T.I Cycles of India v. Presiding Officer, Labour Court (2003 II LLJ 214) it was held, "In this case what is material is the position held by the workman, whether it was a position of trust and confidence and whether the employer acted bona fide honestly and objectively and had some basis of doing so. The fact that the employee workman is a watchman by itself would show that he is occupying a position of trust and confidence. The suspicion regarding the employee's conduct and integrity cannot be said to be merely whimsical or fanciful as the employer had before it the report from a responsible police officer of the rank of Superintendent of Police wherein he had stated the result of the enquiry which showed the association of the workman with a receiver of stolen goods and his complicity in committing theft of the property from the factory of the employer."
17. In Capt. M. Paul Anthony v. Bharat Gold Mines Ltd & Anr. (1999 I LLJ 1094), it was held as follows:
"The Supreme Court referred to the basic principle that proceedings in a criminal case and the departmental proceedings could proceed simultaneously. One exception to this rule, the Supreme Court, observed, was where the departmental proceedings and the criminal case were based on same set of facts and the evidence in both the proceedings was common without there being a variance."
18. In Senior Supdt. of Post Offices, Pathanamthitta & Ors. v. A. Gopalan I (1999 I LLJ 1313), the Supreme Court held:
"This is so because in a criminal case the charge has to be proved by the standard of proof beyond reasonable doubt while in departmental proceedings the standard of proof for proving the charge is preponderance of probabilities. The Tribunal was, therefore, in error in holding that in view of the acquittal of the respondent by the criminal Court on the charge relating to withdrawal of Rs. 8,000/- the finding on the first charge in the departmental proceedings cannot be upheld and must be set aside.
... ...
Having regard to the fact that the second charge related to misappropriation of funds for which the punishment of compulsory retirement could be imposed the Tribunal, in exercise of its jurisdiction, could not direct the appellate authority to review the penalty imposed on the respondent."
19. In Chairman & Managing Director, United Commercial Bank v. P.C. Kakkar (2003 IV SCC 366) "A bank officer is required to exercise higher standards of honestly and integrity. Every Officer/employee of the bank is required to take all possible steps to protect the interests of the bank and to discharge his duties with utmost integrity, honesty, devotion and diligence and to do nothing which is unbecoming of a bank officer. Good conduct and discipline are inseparable from the functioning of every officer/employee of the bank. It is no defence to say that no loss or profit had resulted when the officer/employee acted without authority. Acting beyond one's authority is by itself a breach of discipline and is a misconduct. This charge against the respondent were not casual in nature and were serious.
...
Acquittal in the criminal case is not determinative of the commission of misconduct or otherwise, and it is open to the authorities to proceed with the disciplinary proceedings, notwithstanding acquittal in the criminal case. It per se would not entitle the employee to claim immunity from the proceedings. At the most the factum of acquittal may be a circumstance to be considered while awarding punishment. It would depend upon the facts of each case and even that cannot have universal application."
20. In Workmen of F.T. & R. Co. v. The Management the Supreme Court held that, "That is why, according to us, section 11A now gives full power to the Tribunal to go into the evidence and satisfy itself on both these points. Now the jurisdiction of the Tribunal to reappraise the evidence and come to its conclusion ensures to it when it has to adjudicate upon the dispute referred to it in which an employer relies on the findings recorded by him in a domestic enquiry. Such a power to appreciate the evidence and come to its own conclusion about the guilt or otherwise was always recognised in a Tribunal when it was deciding a dispute on the basis of evidence adduced before it for the first time. Both categories are now put on a par by Section 11A."
21. In S. Antonisamy v. Presiding Officer, Labour Court, Pondicherry (2003 (4) L.L.N. 922), the learned Judge also considered the judgment of the Supreme Court in Capt. M. Paul Anthony v. Bharat Gold Mines Ltd.,(2003 (4) LLN 922) and yet, came to the following conclusion:
"As regards the failure of the Labour Court is not having taken into account the issue under S 11A of the Industrial Disputes Act, it is true that even if the issue is not raised by the delinquent, it is the duty of the Labour Court to consider proportionality of the punishment. It cannot also be disputed that even otherwise this Court can go into the issue and find out whether the punishment is appropriate. In this case, the nature of the misconduct is serious namely theft of materials belonging to the mills/employer. It is a serious misconduct from the point the view of the employer. Therefore, it is not a case in which the extreme penalty of dismissal could be said to be disproportionate. I do not find any reason to interfere with the order of the Labour Court."
22. Therefore, if it is a genuine case of loss of confidence then the same has to be taken note of while ordering reinstatement. But merely by saying that the employee cannot be trusted, the employer cannot avoid the natural consequences of wrongful termination which is reinstatement. The Labour Court has a wide discretion under Section 11(A) of the Industrial Disputes Act to consider the materials on record for satisfying itself whether the decision is correct and even whether the punishment is shockingly disproportionate and deserves to be varied or modified.
23. In the present case, we have already seen that the conclusion arrived at by the Labour Court cannot said to be unreasonable. It has taken note of the materials on record to arrive at its decision. When the findings are factual findings which cannot be interfered with and if for such reasons, the Labour Court is unable to accept the evidence of M.W.1 who is the only witness to prove the charge laid by the petitioner against the respondent then we cannot assail the conclusion of the respondent. As seen from the above paragraphs, the findings of the Labour Court are based on facts. This appreciation of evidence cannot be interfered with in writ petition as if this Court is sitting as a court of appeal over the award of the Labour Court unless the findings are shown to be perverse and contrary to the evidence available on record. That is not so in the instant case. The conclusion of the Labour Court that a small polythene bag cannot hold the articles alleged to have been stolen cannot be said to be unreasonable or perverse. The doubt voiced by the Labour Court regarding non-examination of M.W.1, both before the Criminal Court and in the departmental enquiry, when the petitioner claims that M.W.1 was the first person to have seen the second respondent immediately after the alleged theft cannot be termed as an unreasonable doubt either.
24. The other factors that persuaded the Labour Court to come to the conclusion that it is not probable that the second respondent would have committed the theft also seem to be acceptable. It is possible that on the same set of facts a different conclusion may be drawn, but the conclusion of the Labour Court from the given set of facts in this instant case appears to be a reasonable one and not perverse. It is difficult to interfere with that. The fact that the Labour Court has repeated more than once that the domestic enquiry is illegal, cannot vitiate the entire award. It is not correct to state that the Labour Court has disbelieved the petitioner's case merely because M.W.1 was not examined before the Criminal Court and in the domestic enquiry. The position adopted by the Labour Court with regard to the acquittal in the criminal court cannot also be said to be wrong. The Labour Court has not based its decision merely on the acquittal of the second respondent. The Labour Court had concluded that when in addition to the other facts which cast a doubt on the petitioner's case, the Criminal Court has also acquitted the second respondent and some weight has to be given to the acquittal. This approach cannot also be labelled as perverse or contrary to law. Therefore, the finding of the Labour Court that the petitioner has not proved the charges levelled against the second respondent must be confirmed.
25. The second line of submission that the learned counsel for the petitioner made was the question of loss of trust. We have seen in the decision (cited supra)that loss of confidence cannot be a device adopted to subvert the security of tenure that a workman is entitled to. It appears that pending the writ petition the second respondent has been reinstated by the petitioner not in the old post, namely that of a 'watchman' but as an 'office assistant'. There appears to have been no complaint against the second respondent during these years. The learned counsel for the second respondent submitted that the second respondent has no objection to continue as an 'office assistant', if the petitioner does not want to reinstate him as a 'watchman'. This statement is recorded.
26. The writ petition is dismissed. It is open to the petitioner to decide whether to reinstate the second respondent as a 'watchman' or to allow him to continue in his present post as 'office assistant'. However, there will be no order as to costs.