Gujarat High Court
Baroda District Co-Operative Milk ... vs Rameshbhai Shankarbhai Prajapati on 16 January, 2025
NEUTRAL CITATION
C/SCA/13524/2024 JUDGMENT DATED: 16/01/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 13524 of 2024
FOR APPROVAL AND SIGNATURE:
HONOURABLE MRS. JUSTICE M. K. THAKKER
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Approved for Reporting Yes No
Yes
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BARODA DISTRICT CO-OPERATIVE MILK PRODUCERS UNION LTD
Versus
RAMESHBHAI SHANKARBHAI PRAJAPATI
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Appearance:
SENIOR ADVOCATE MR.MANISH BHATT assisted by MUNJAAL M
BHATT(8283) with MS.SHAILEE JOSHI for the Petitioner(s) No. 1
IG JOSHI(8726) for the Respondent(s) No. 1
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CORAM:HONOURABLE MRS. JUSTICE M. K. THAKKER
Date : 16/01/2025
ORAL JUDGMENT
1. Rule returnable forthwith. Learned advocate Mr.I.G.Joshi waives service of notice of Rule on behalf of respondent.
2. With the consent of the parties matter was heard finally.
3. Being aggrieved by the award passed by learned Labour Court, Vadodara in reference (L.C.V.) No. 19 of 2018 dated 17.05.2024, present petition is filed under Article Page 1 of 18 Uploaded by MRS. ARCHANA SAJEEVKUMAR PILLAI(HC01899) on Mon Jan 20 2025 Downloaded on : Mon Jan 20 21:32:48 IST 2025 NEUTRAL CITATION C/SCA/13524/2024 JUDGMENT DATED: 16/01/2025 undefined 227 of the Constitution of India.
4. The facts needed to be considered for the disposal of the present case is as under:
4.1. Respondent was working in the production department of the dairy of the petitioner and was entrusted the duty to look after the day-to-day affairs of the petitioner-dairy, pertaining to production of various milk products. On 13.03.2017, one Mr.K.A.Patel, being a night supervisor, working in the petitioner-dairy along with other security personnel during routine night patrolling, while passing through the locker room utilized by the respondent-workmen, observed that there were certain cashew nuts lying on the floor beneath the lockers. Sensing something unusual, the security supervisor was called and locker nos.73, 74 and 75 were sealed with immediate effect at around 8.30 p.m. On the next day i.e on 14.03.2017, the sealed locker were opened in the presence of five witnesses at 11 AM to verify the contents in the same. It came into the knowledge of the management that the said locker was regularly used by the respondent and apart from the other personal items, two bag, full of cashew nuts, was Page 2 of 18 Uploaded by MRS. ARCHANA SAJEEVKUMAR PILLAI(HC01899) on Mon Jan 20 2025 Downloaded on : Mon Jan 20 21:32:48 IST 2025 NEUTRAL CITATION C/SCA/13524/2024 JUDGMENT DATED: 16/01/2025 undefined also discovered from the said locker, which weighed 1.159 kgs. Upon having found such a huge quantity of cashew nuts, the Manager of production department called the respondent to inform about the same and explanation was sought. He gave his written explanation admitting the guilt on 14.03.2017. The petitioner issued a show cause notice on 15.03.2017, referring admission to have stolen the cashew nuts from production department of the petitioner dairy for his personal consumption /use. Again reply was given admitting the guilt by respondent employee. On the basis of above conduct and subsequent confession, an opinion was sought from one Mr.J.N.Shah (Manager-Production), which was forwarded to the General Manager opining that the act of the respondent has caused breach of trust and therefore, departmental action is required to be initiated. The petitioner has passed an order dismissing the respondent from service on 27.03.2017. The respondent did not protest but made an application on 13.06.2017 praying for clearance of statutory dues.
Accordingly, the cheques of the due amount, towards the gratuity and leave encashment, was issued and the Page 3 of 18 Uploaded by MRS. ARCHANA SAJEEVKUMAR PILLAI(HC01899) on Mon Jan 20 2025 Downloaded on : Mon Jan 20 21:32:48 IST 2025 NEUTRAL CITATION C/SCA/13524/2024 JUDGMENT DATED: 16/01/2025 undefined respondent has also issued receipt in that regard. Thereafter, dispute was raised and was referred to the learned Labour Court to decide that whether respondent is required to be reinstated in the service or not? Learned Labour Court after considering the statement of claim, written statement and evidence produced by both the parties, held the termination illegal and directed to reinstate the respondent to his original post with 20% back wages and with all consequential benefits. The same is subject matter of challenge before this Court.
5. Heard learned senior advocate Mr.Manish Bhatt assisted by learned advocate Mr.Munjal Bhatt with learned advocate Ms.Shailee Joshi for the petitioner and learned advocate Mr.I.G.Joshi for respondent. 5.1. Learned senior advocate Mr.Manish Bhatt for the petitioner has submitted that respondent had not challenged the correctness, legality or validity of the inquiry conducted. In absence of any challenge it was not open to the learned labour court to go into the findings recorded by the inquiry officer regarding the misconduct committed by the respondent. The punishment of removal is an appropriate punishment for Page 4 of 18 Uploaded by MRS. ARCHANA SAJEEVKUMAR PILLAI(HC01899) on Mon Jan 20 2025 Downloaded on : Mon Jan 20 21:32:48 IST 2025 NEUTRAL CITATION C/SCA/13524/2024 JUDGMENT DATED: 16/01/2025 undefined an employee found guilty of misconduct and the court should be reluctant to reduce the punishment. Learned senior advocate Mr.Manish Bhatt submitted that the respondent did not deny the charges leveled against him, on the contrary he admitted his misconduct regarding finding of cashew nuts from the locker used by the present respondent. Learned senior advocate Mr.Manish Bhatt submits that along with the cashew nuts the belongings of the respondent were also found from the locker owned by the respondent and in absence of any contrary evidence learned labour court has committed error in setting aside punishment by misreading the report submitted by Mr.J.N.Shah for coming to the conclusion that there is no allegation of theft against the respondent.
5.2. Learned senior advocate Mr.Manish Bhatt further submits that learned labour court has discarded the kabulatnama dated 14.03.2017 given by the respondent which was produced below Exh.21 and the reply to the show cause notice dated 17.03.2017 wherein, it is specifically admitted to having stolen cashew nuts from the production department of the petitioner dairy for the Page 5 of 18 Uploaded by MRS. ARCHANA SAJEEVKUMAR PILLAI(HC01899) on Mon Jan 20 2025 Downloaded on : Mon Jan 20 21:32:48 IST 2025 NEUTRAL CITATION C/SCA/13524/2024 JUDGMENT DATED: 16/01/2025 undefined personal consumption. In addition to the above admission during the cross-examination also respondent has admitted the misconduct however, by overlooking the above material evidence learned labour court has set aside the dismissal order passed by the petitioner employer.
5.3. Learned senior advocate Mr.Manish Bhatt submits that loss of confidence is a primary factor and not the amount of money misappropriated and the sympathy or generosity cannot be factor in the case where the petitioner dairy losing confidence or faith in such an employee. The respondent employee did not offer any explanation for having carried out the cashew nuts therefore, the misconduct was grievous in nature and therefore, instead of holding that the respondent was not fit to be retained as an employee of the petitioner dairy learned labour court has directed to reinstate the respondent employee with 20% back wages. Learned senior advocate Mr.Manish Bhatt submits that it is not material that the charge is for lesser amount or the higher amount. The act of pilferage is required to be seen and harsh action is required to be taken into Page 6 of 18 Uploaded by MRS. ARCHANA SAJEEVKUMAR PILLAI(HC01899) on Mon Jan 20 2025 Downloaded on : Mon Jan 20 21:32:48 IST 2025 NEUTRAL CITATION C/SCA/13524/2024 JUDGMENT DATED: 16/01/2025 undefined consideration.
5.4. Learned senior advocate Mr.Manish Bhatt submits that as per the settled principle of law the power which learned labour court needs to consider whether inquiry was proper or not. If the inquiry was not proper, the employer and the employee had to be given opportunity to examine their witness. Learned senior advocate Mr.Manish Bhatt further submits that petitioner employer seeks permission to examine the witness to prove the charge before the learned labour court. After providing the opportunity to prove his case in proceedings before the learned court, the evidence of the witness was not taken into consideration at the time of passing the final order. The panch witness which was examined in whose presence the panchnama of the locker was drawn from where the cashew nuts were found was discarded by the learned labour court while passing the award in favour of the respondent. Learned senior advocate Mr.Manish Bhatt submits that allegation against the respondent are with regard to the theft of cashew nuts. During the departmental proceedings, the respondent has admitted to the guilt and explained that Page 7 of 18 Uploaded by MRS. ARCHANA SAJEEVKUMAR PILLAI(HC01899) on Mon Jan 20 2025 Downloaded on : Mon Jan 20 21:32:48 IST 2025 NEUTRAL CITATION C/SCA/13524/2024 JUDGMENT DATED: 16/01/2025 undefined same was kept for personal consumption. The quantity of 1.159 kgs of cashew nuts was discovered from the locker of the respondent suggests that it cannot be for the personal consumption, be that as it may, but same was taken unauthorizedly. Learned labour court has not consider the material evidence which is in the nature of admission of the respondent and concluded that there is no loss of confidence or trust found against the respondent.
5.5. Learned senior advocate Mr.Manish Bhatt submits that learned labour court also concluded the reference in favour of the respondent on the ground that there is no antecedents. Learned senior advocate Mr.Manish Bhatt submits that antecedents would always not be subject matter of setting aside the order of dismissal which was passed after considering the evidence adduced by the respondent when misconduct alleged is so serious and grave so as to create the lack of confidence in the respondent by the petitioner. Learned senior advocate Mr.Manish Bhatt has relied on the following decisions and submitted that learned labour court has committed grave error in directing the Page 8 of 18 Uploaded by MRS. ARCHANA SAJEEVKUMAR PILLAI(HC01899) on Mon Jan 20 2025 Downloaded on : Mon Jan 20 21:32:48 IST 2025 NEUTRAL CITATION C/SCA/13524/2024 JUDGMENT DATED: 16/01/2025 undefined petitioner to reinstate the respondent to his original post with 20% back wages.
1. SCA No.20331 of 2018 decision dated 11.04.2022 in the case of Lupin Limited through General Manager Vs. Mensingh Bhagwansingh Parmar.
2. SCA No.11540 of 2015 with SCA No.56 of 2017, decision dated 13.09.2024 in the case of Divisional Controller v. Mohanbhai Lakhabhai Makwana and Ors.
3. 2005 (2) SCC 481 decision dated 25.01.2005 in the case of Bharat Heavy Elecricals Ltd. Vs. M.Chandrashekhar Reddy and Ors.
5.6. Learned advocate Mr.I.G.Joshi has relied on the decision rendered by this Court in the case of Panchmahal Steel Limited Vs Ranjitsinh Udaysinh Parmar (deceased) & Ors. Special Civil Application No.20879 of 2018 and submitted that the learned Labour Court has power under section 11A to enter into the findings of the Inquiry Report and to interfere when the findings of the Inquiry Officers is found perverse or punishment is disproportionate to the misconduct, Page 9 of 18 Uploaded by MRS. ARCHANA SAJEEVKUMAR PILLAI(HC01899) on Mon Jan 20 2025 Downloaded on : Mon Jan 20 21:32:48 IST 2025 NEUTRAL CITATION C/SCA/13524/2024 JUDGMENT DATED: 16/01/2025 undefined learned Labour Court can certainly set aside the punishment imposed. At the end, it is submitted that learned Labour Court had exercised its power within the scope of section 11A of the Act and therefore, no interference is required and award deserves to be confirmed by this Court.
6. Having considered the arguments made by the learned advocates for the respective parties and perusing the record produced along with memo of petition and the affidavit in reply, "the moot questions arising for consideration is that when the allegations in the charge- sheet is admitted, whether learned Labour Court was justified in interfering with the dismissal order?"
7. To decide the above question, following facts are required to be considered:
7.1. Indisputably, on 13.03.2017 security person observed that there was certain cashew nuts lying on the floor and therefore, locker no.73, 74 and 75 were sealed with immediate effect. On 14.03.2017 the lockers were opened in presence of panch witnesses wherein, a bag of cashew nuts, weighing 1.159 kgs were discovered along with belonging of respondent from the locker of Page 10 of 18 Uploaded by MRS. ARCHANA SAJEEVKUMAR PILLAI(HC01899) on Mon Jan 20 2025 Downloaded on : Mon Jan 20 21:32:48 IST 2025 NEUTRAL CITATION C/SCA/13524/2024 JUDGMENT DATED: 16/01/2025 undefined respondent who was serving in the production department of the petitioner dairy. On the same day, confession letter was given by the respondent admitting that same was taken by him unauthorisedly for personal consumption.
7.2. On 15.03.2017 a show cause notice cum charge-sheet came to be issued to the respondent employee stating that on noticing the cashew nuts which were lying on the floor near the locker no.73, 74 and 75 on 13.03.2017, the said lockers were sealed at 9:30 and it was opened on 14.03.2017 at 11-o-clock in the presence of five witnesses and the panchnama was drawn and from the locker no.73 and 75 no objectionable things were discovered however, from the locker no.74, which was used by the respondent, two bags having cashew nuts of 1.159 kgs with income tax return verification form for the years 2013-14, 2015-16 and 2016-17 along with photographs were found from the locker of the respondent. The respondent was called upon and question that, why disciplinary action be not taken against him for the misconduct which was committed and for the loss of confidence, which was put by the Page 11 of 18 Uploaded by MRS. ARCHANA SAJEEVKUMAR PILLAI(HC01899) on Mon Jan 20 2025 Downloaded on : Mon Jan 20 21:32:48 IST 2025 NEUTRAL CITATION C/SCA/13524/2024 JUDGMENT DATED: 16/01/2025 undefined petitioner dairy.
7.3. On 17.03.2017 the respondent has replied to the show cause notice cum charge sheet stating that the cashew nuts were unauthorizedly taken for the purpose of personal consumption and he requested that no harsh punishment be imposed.
7.4. On 20.03.2017 report submitted by the superior officer of the respondent employee namely Mr.J.N.Shah opining that as per the admission made before him by the respondent employee, the cashew nuts were kept by respondent employee unauthorizedly which cannot be tolerated and the explanation offered for keeping above cashew nuts for personal consumption cannot be believed in view of the huge quantity on 1.159 kgs therefore, it was opined that his conduct suggest that it would be for the purpose of theft or for bringing to his home. Therefore, strict actions are required to be taken against him under the disciplinary proceedings. 7.5. On 27.03.2017 considering his admission, the department has thought it fit to not initiate detailed inquiry and the order of dismissal from the service came to be passed by the Managing Director of the petitioner Page 12 of 18 Uploaded by MRS. ARCHANA SAJEEVKUMAR PILLAI(HC01899) on Mon Jan 20 2025 Downloaded on : Mon Jan 20 21:32:48 IST 2025 NEUTRAL CITATION C/SCA/13524/2024 JUDGMENT DATED: 16/01/2025 undefined dairy.
7.6. On 13.06.2017 request was made by the respondent to pay the terminal dues referring the dismissal order which was paid on 14.07.2017 and the receipt accepting the dues were issued by the respondent. It is required to be noted here that the respondent herein has not raised any grievance with regard to the departmental inquiry or punishment which was imposed by the employer.
Thereafter, dispute came to be raised and the same was registered as reference reference (L.C.V.) No. 19 of 2018 by the respondent employee before the Assistant Labour Commissioner which was referred to the learned labour court on 16.12.2017 to decide that whether the respondent is required to be reinstated in the service with all consequential benefits or not. 7.7. The application below Exh.7 which was filed seeking production of evidence to prove the charge was also allowed. The Petitioner has also examined the witness, namely Mehul Kumar Pravinbhai Patel below Exh.17 panch witness of panchnama which was drawn when the cashew nuts were discovered from the respondent's locker, however, learned Labour Court, at the time of Page 13 of 18 Uploaded by MRS. ARCHANA SAJEEVKUMAR PILLAI(HC01899) on Mon Jan 20 2025 Downloaded on : Mon Jan 20 21:32:48 IST 2025 NEUTRAL CITATION C/SCA/13524/2024 JUDGMENT DATED: 16/01/2025 undefined passing the final order, has absolutely discarded the said evidence and come to the conclusion that punishment imposed is disproportionate to the charges. Learned Labour Court, while setting aside the termination, has relied on the report of Mr.J.N.Shah and came to the conclusion that there is no allegation of theft, financial loss and loss of confidence is alleged. 7.8. As discussed earlier, in the charge-sheet itself allegations are made that by keeping the huge quantity of cashew nuts in the locker intention of the respondent is to steal the cashew nuts which are used in the production department where the respondent was working. This court is of the view that the respondent has no legal right to continue in the corporation when he was found guilty of theft and there is nothing wrong in the petitioner dairy losing confidence and faith in such an employee and awarding punishment of removal. In such case, there is no place of generosity or sympathy on the part of judicial forum and interfering with the quantum of punishment.
7.9. One more ground on which the impugned order deserves to be set aside is that learned court has Page 14 of 18 Uploaded by MRS. ARCHANA SAJEEVKUMAR PILLAI(HC01899) on Mon Jan 20 2025 Downloaded on : Mon Jan 20 21:32:48 IST 2025 NEUTRAL CITATION C/SCA/13524/2024 JUDGMENT DATED: 16/01/2025 undefined observed that as this being a first offence dismissal order is disproportionate. Referring the decision relied by the learned advocate for the petitioner wherein, it is held that past conduct of the delinquent employee cannot be ground for taking lenient view. Once an act of misappropriation is proved, may be for a small or large amount, there is no question of showing uncalled for sympathy and reinstating the employee in the service. In addition to that learned labour court has also not discussed the evidence of panch witness namely Mehul Kumar Pravinbhai Patel who was examined by the employer to establish the charge against the respondent employee. It appears that in a very casual manner the findings and the punishment was set aside which was imposed during the departmental proceedings. As the respondent employee himself has admitted the charge the initiation of departmental inquiry would be a futile exercise and therefore, this Court is of the opinion that it will neither be proper nor fair on the part of the Court to substitute the findings and punishment of departmental proceeding by allowing the reinstatement. 7.10. At this stage, this Court has referred the decision Page 15 of 18 Uploaded by MRS. ARCHANA SAJEEVKUMAR PILLAI(HC01899) on Mon Jan 20 2025 Downloaded on : Mon Jan 20 21:32:48 IST 2025 NEUTRAL CITATION C/SCA/13524/2024 JUDGMENT DATED: 16/01/2025 undefined rendered by the Apex Court in the case of A.P. SRTC v. Raghuda Siva Sankar Prasad, (2007) 1 SCC 222 referred by this Court in SCA No.20331 of 2018, where it is held that the past conduct of delinquent employee cannot be grounded for taking lenient view as the loss of confidence occupies the primary factor and not the amount of money and that sympathy and generosity cannot be factor which is permissible in law in such matters.
7.11. This court has also referred the decision by the Apex Court in the case of U.P. SRTC reported in (2000) 9 SCC 521 wherein, it is held that once an act of misappropriation is proved, maybe for a small or large amount, there is no question of showing uncalled for sympathy and reinstating the employees in service. 7.12. The Apex Court in the case of Chairman & Managing Director, V.S.P. & Ors. Vs Goparaju Sri Prabhakara Hari Babu reported in (2008) 5 SCC 569 held as under:
"20.The jurisdiction of the High Court in this regard is rather limited. Its power to interfere with disciplinary matters is circumscribed by well-known factors. It cannot set aside a well-reasoned order only on sympathy or sentiments. (See Page 16 of 18 Uploaded by MRS. ARCHANA SAJEEVKUMAR PILLAI(HC01899) on Mon Jan 20 2025 Downloaded on : Mon Jan 20 21:32:48 IST 2025 NEUTRAL CITATION C/SCA/13524/2024 JUDGMENT DATED: 16/01/2025 undefined Maruti Udyog Ltd. v. Ram Lal; State of Bihar v. Amrendra Kumar Mishra, SBI v. Mahatma Mishra, State of Karnataka v. Ameerbis; State of M.P. v. Sanjay Kumar Pathak and Uttar Haryana Bijli Vitran Nigam Ltd. v. Surji Devi.)
21.Once it is found that all the procedural requirements have been complied with, the courts would not ordinarily interfere with the quantum of punishment imposed upon a delinquent employee. The superior courts only in some cases may invoke the doctrine of proportionality. If the decision of an employer is found to be within the legal parameters, the jurisdiction would ordinarily not be invoked when the misconduct stands proved. (See Sangfroid Remedies Ltd. v. Union of India.)"
7.13. The decision which was relied by the learned advocate Mr.I.G.Joshi for the respondent in the case of Panchmahal Steel Limited Vs Ranjitsinh Udaysinh Parmar (deceased) & Ors. in SCA No.20879 of 2018 was on different facts where there was no admission of guilt of the respondent, therefore, that would not come to the rescue of the respondent.
8. On perusing the reasons assigned by the learned labour court, this Court finds that learned Court has converted itself into the Court of appeal as an appellate Authority and has exceeded its jurisdiction while appreciating the findings recorded in the course of domestic inquiry and in interfering with the finding recorded during the Page 17 of 18 Uploaded by MRS. ARCHANA SAJEEVKUMAR PILLAI(HC01899) on Mon Jan 20 2025 Downloaded on : Mon Jan 20 21:32:48 IST 2025 NEUTRAL CITATION C/SCA/13524/2024 JUDGMENT DATED: 16/01/2025 undefined course of Inquiry, in furtherance of which, the respondent was dismissed from service and therefore, the award passed by learned Labour Court, Vadodara in reference (L.C.V.) No. 19 of 2018 dated 17.05.2024 directing to reinstate the respondent employee with 20% back wages deserves to be set aside and termination order is required to be upheld.
9. In view of the above, the award passed by learned Labour Court, Vadodara in reference (L.C.V.) No. 19 of 2018 dated 17.05.2024, is hereby set aside.
10. Resultantly, this petition is allowed. Rule made absolute.
(M. K. THAKKER,J) ARCHANA S. PILLAI Page 18 of 18 Uploaded by MRS. ARCHANA SAJEEVKUMAR PILLAI(HC01899) on Mon Jan 20 2025 Downloaded on : Mon Jan 20 21:32:48 IST 2025