1. The Petitioner has filed the present writpetition, seeking to challenge an Award passed by the first Respondent Principal Labour Court, Chennai in I.D. No. 415 of 2007 dated 20.04.2009. By the impugned Award, the first Respondent Labour Court dismissed the Industrial Dispute raised by the Petitioner and held thatthe Petitioner was not entitled for any relief including reinstatement.
2. In the writ petition, notice of motion was ordered on 18.08.2009. Subsequently, on 16.06.2010, the writ petition was admitted and the Petitioner''s claim forinterim stay was rejected.
3. Heard the arguments of Ms. G. Thilakavathi, learnedcounsel for the Petitioner and Mr. R. Parthiban, learned counsel appearing for the second Respondent College.
4. It is the case of the Petitioner that he was working as an Electrician in the second Respondent college from 1998 and his last drawn salary was Rs. 526/�per month. He went on leave for two days viz., on 21.03.2007 and 22.03.2007, to attend the funeral function of his uncle, which was duly sanctioned by the second Respondent. On 23.03.2007, when he joined duty, he found that out of 9 coils, 8 coils of wire were found missing which he had kept in the electrical room be fore proceeding on leave and the empty box was found in acorner. Therefore, he reported the matter to an official of the second Respondent College by name Anbalagan. The Petitioner was informed by the said Anbalagan that he will look into the matter and was asked to attend the work. On 26.03.2007, the said Anbalagan called him and asked him to give a written complaint to the Managing Trustee of the Respondent. Accordingly, he gave a written complaint addressed to the Managing Trustee. On 27.03.2007, Anbalagan called him to his room and forced him to sign a letter without disclosing the contents of the letter. But orally he was informed that he should paya sum of Rs. 16,200/-being the cost of the missing coils. When the Petitioner asked him how he was held liable, he had merely stated that he was personally responsible for the loss. No enquiry was conducted and no efforts were taken to trace the missing coils which had happened when he was on leave. Therefore, the Petitioner was forced to make a complaint to the Police on 27.03.2007 about the theft of the coils. He also brought the matter to the notice of the Trade Union. The Trade Union also wrote aletter to the second Respondent Management on 03.04.2007.
5. In the meanwhile, the Petitioner was placed under suspension on 30.04.2007 and a domestic enquiry was conducted by an Advocate from outside. The Petitioner was prevented from having the assistance of a person of his choice to help him in the enquiry. The Enquiry Officer instead of acting as a neutral person gave afinding to satisfy the wishes of the College Management. Based upon the said report of the Enquiry Officer, the Petitioner was dismissed from service by an order dated 29.08.2007.
6. Aggrieved by the dismissal, being a non-teaching staff of a private college and as the provisions of the Industrial Disputes Act, 1947 (for short I.D. Act) are applicable to him, he raised an industrial dispute before the Assistant Commissioner of Labour II, Chennai. The conciliati on proceedings initiated by the said officer had ended in failure and a failure report dated 23.10.2007 was given to him. It was on the strength of the failure report, he filed the claim statement before the first Respondent Labour Court on 28.11.2007.
7. The said dispute raised u/s 2-A(2) of the I.D. Act was taken on file as I.D. No. 415 of 2007. The second Respondent was given a notice through Court and a counter statement dated 16.04.2008 was filed by the second Respondent.
8. Before the Labour court, on behalf of the Petitioner, 13 documents were filed and marked as Exs.W1to W13. On the side of the second Respondent Management, 15 documents were filed and marked as Exs. M1 to M15. Nooral evidence was let in by either side. Many of the documents filed by both sides were repetitive and related to the domestic enquiry conducted against the Petitioner.
9. It was accepted by the second Respondent Management before the Labour Court that the Petitioner had taken leave for two days. But when he reported for work, he should have noticed that some of the coils wee missing. But only after 3 days, i.e. On 26.03.2007, he gave a report to the Trustees about the missing of the coils. The matter was enquired and since the entrustment of the materials to the Petitioner was not in dispute, by a memo dated 27.03.2007, he was asked to make good the loss of Rs. 16,200/-being the value of the missing coils. After the receipt of the memo, the Petitioner made a false complaint to the police station at Korattur complaining about the missing of coils. Instead of remitting the amount, he pursued the complaint with the Police without reference to the Management and it was highly reprehensible and high handed. He had no authority to make such a complaint to the Police. The Trade Union to which the Petitioner was a member also made irresponsible allegations about the Management. In their letter, it was stated that the letter given by the Petitioner was obtained by force and therefore, they sought for return of the letter. On receipt of the complaint, a Sub-Inspector and a Constable from the Korattur Police Station came to the College and made enquiries about the missing coils. During the enquiry, the Petitioner had stated that he suspected the hand of the Management. The investigation by the Police created a sensation in the college. The Petitioner alone was responsible for the missing of coils and hence, after due show cause notice and enquiry, the Petitioner was dismissed form service. It was stated that the possibility of the Petitioner himself taking away the materials cannot be ruled out and therefore, they have lost confidence in the Petitioner. It was further stated that the domestic enquiry conducted by them was fair and proper.
10. The Labour Court upon the materials placed before it did not frame any separate issue regarding the validity of the domestic enquiry. But on the contrary, it came to the conclusion since entrustment of the coils to the Petitioner was not in doubt and was admitted by the Petitioner, it is for him to account for the missing coils. It also stated that since the Petitioner was notable to explain the loss of materials from his official custody, the requisite inference has to be drawn having regard to the attendant circumstances. The twin requirements of dishonest intention and moving out of the possession of the lawful owner without his consent could be inferred from the circumstances. The conduct of the Petitioner in preferring a police complaint on his own without the knowledge of the Management when he was called upon to make good the loss of the value of the missing materials assumes significance. It appears to bead pre-emptive strike by the Petitioner to prepare the ground for a future defense in the event of initiation of either a departmental enquiry or a police case or both.
11. Though the Labor Court noted that anybody can set the criminal law in motion but the haste and hurry in which the police complaint was preferred behind the back of the Management would only smack of a doubt that an attempt has been made to wriggle out of the consequences of the loss of materials and to prepare a pretext and such conduct made the Labor Court to have an impression that all was not well with him and in the absence of any explanation from him regarding the missing materials, the irresistible inference to be drawn was that it was a case of theft by the Petitioner. Therefore, the Labor Court held that the domestic enquiry officer has come to conclusion properly. Thereafter, the Labor Court went into the question of quantum of punishment and held that the dismissal of the Petitioner cannot be said to be unwarranted or irregular and in that view of the matter, the Labor Court denied the relief to the Petitioner byte impugned Award.
12. Since in the present case, the Labor Court didn''t set aside the domestic enquiry and proceeded to upheld the report submitted by the Enquiry Officer, one has to see whether the Petitioner was given proper opportunity to defend himself and if so, as to the charges which are to be faced by the workman and the findings recorded by the Enquiry Officer was legal and proper.
13. In the present case, by a memo dated 27.03.2007, the second Respondent informed the Petitioner that 8 numbers of coils were found missing. Since it was under his custody, he alone was responsible, in order to make good the loss suffered by the Management, he should remit sum of Rest. 16,200/-immediately to the Trust account. In the first order passed by the second Respondent, the second Respondent had merely attempted to recover the amounts from the Petitioner holding him vicariously liable for the loss. There was no allegation of any misconduct or ulterior motive on his part on the missing of materials. It is only when the Petitioner went before the Police and sent a letter through his trade Union, show Cause Notice was given to him on 30.04.2007. In the show cause notice, once again the College Management after holding him responsible for the loss of the coils took exception to the Petitioner giving a statement tithe Police and also causing a notice issued through his Union. His conduct in spreading false news about the Management and giving a false complaint to the Police and to his Union was reprehensible and for that reason, hews asked to explain within 48 hours as to why disciplinary action should not be taken against him. Hews also placed under suspension by the said order.
14. Subsequently, the Management had appointed an Advocate to conduct the enquiry. The Petitioner had stated that since the Enquiry was to be conducted by an Advocate and the Petitioner was unaware of legal nuances, he may be allowed to be represented by a representative from the Trade Union or an Advocate since other co employees will be afraid to appear for him. His request was brushed aside and the Enquiry Officer conducted the enquiry. In that enquiry, the Accounts Manager was examined and the correspondence between the parties we remarked through him. There is nothing on record to show that the Petitioner was given an opportunity to crossexaminer the said Manager. The Enquiry Officer himself hadn''t recorded that such an opportunity was given and the Petitioner had refused to examine him. After recording the statement of the witness of the second Respondent, the Enquiry Officer recorded the statement of the Petitioner and marked certain documents.
15. Thereafter, on the basis of the statements recorded, the Enquiry Officer framed the following four issues:
I)Whether the nine coil wires were entrusted to the Petitioner and whether he is responsible for the loss, if any?
ii)Whether by the letter of the Union, the Management has been defamed? iii) Whether the appearance of the police had caused any problem to the Management?
iv) Whether the Petitioner was being victimised because of his affiliation in the Trade Union ?
16. On the four issues, the Domestic Enquiry Officer found that there was no necessity for the Petitioner Togo to the Police Station for giving a complaint. He could have claimed relief from the Management, if he is aggrieved about the demand for recovery of the amount. Hence, his act of going to the Police Station was reprehensible. It was also found that the theft in the College is entirely a domestic affair and the Petitioner complaining this to the police was an action crossing his limits. The police visiting to the campus had created sensation. When the Police came to the Campus, the Petitioner gave a statement that he was suspecting the Management and that was again a condemnable action and its beyond crossing the limits. The letter sent by the Trade Union must have been written at the instance of the Petitioner and it contains all false statements and if such statement was obtained by the Management, there was no necessity for the Management to issue a memo dated 27.03.2007 to the Petitioner, marked as Ex. M5 in the enquiry. The Petitioner himself was responsible for the letter written by the Trade Union. It was done only to shift the blame on the Management. Merely because the Petitioner was a member of the Union, no allegations was made. Once he was accused of theft and the charges were proved, it is immaterial as to which Union he belongs.
17. In the Enquiry report dated 02.08.2007, marked as Ex. M12 before the Labour Court, the Enquiry Officer ans wired the four issues as follows:
The Enquiry officer had stated that since the 8 coil wires which were lost was entrusted to the Petitioner, heal one was responsible. Since there was entrustment and accountability on the part of the Petitioner, he cannot shirk his responsibility. The Petitioner gave a letter only on 26.03.2007 and thereafter, went to the Police Station and that act was beyond his limits. The allegation that he was suspecting the Management was an irresponsible Act and the Police coming to the campus had created a sensation and that he was not being victimized because of his affiliation in the Union. Therefore, the allegations of the Management against the Petitioner were proved.
18. First of all, in the present case, there was only show cause notice issued by the Management dated 30.04.2007 against the workmen marked as Ex .M7 before the domestic enquiry. In that show cause notice, there was no allegation that the Petitioner has stolen the coil wires said to be missing from the campus. More emphasis was made on his complaint to the police, which unnecessarily brought sensation in the campus and that his statement that he was suspecting the Management ands ending a letter to the Management was unwarranted. When these were the basis of the show cause notice which lento the enquiry, the Enquiry Officer nowhere found the Petitioner guilty of theft of the coils, it is shocking to note that the first Respondent Labor Court should goof on a tangent and making him responsible for the alleged theft and thereafter, going by the stand of the Management that there was loss of confidence and hence, he was ineligible for any relief. This clearly shows that the first Respondent Labor Court did not even refer tithe findings of the Enquiry Officer and went on the basis of the submissions made by the learned Counsel for the second Respondent Management.
19. When asked the learned Counsel for the second Respondent Management as to what was the charge against the Petitioner, Mr. R. Parthiban, learned Counsel who had appeared before the Labor Court also appeared before this Court for the Management contended that whatever contained in the show cause notice has been understood byte worker and he had given a reply and there is no need to frame any specific charge sheet. When confronted, that nowhere the Management had accused the Petitioner stealing the coils, he had stated that, that was the substance of the allegation and the Labor Court had found the allegation proved.
20. In the dismissal order, dated 29.08.2007, marked as Ex., the Management had agreed with the findings of the Enquiry Officer. In that order, they have nowhere stated that the Petitioner had stolen the coils. On the contrary, they had only took exception to the Petitioner moving the Police and not informing the Management in advance and also sending false notice to the Union. On the basis of the proved charges by the Enquiry Officer, he was dismissed from service. If the Management agreed with the Enquiry Report and did not hold the Petitioner guilty of theft but on being entrusted and accountable for the material he was responsible for making good the loss, it is not clear as to how the Labor Court can find the Petitioner guilty of theft. On the other hand, the Labour Court did not even refer to any of the documents marked before it and relied upon the submissions made during the proceedings before it. Therefore, the submission of the learned Counsel for the second Respondent, that it is unnecessary to frame any specific charge sheet, cannot be accepted. There is no gain saying that whatever the Management want to accuse him of, the worker had understood and therefore, the Court cannot take exception for not framing a charge sheet.
21. On the other hand, it has been held by the Supreme Court in many cases that a person who is accused of a misconduct must clearly know the charges leveled against him. It is only when a person is made known to the charges, he will be able to submit his explanation and upon the said explanation, if it is not satisfactory, the Management can hold an enquiry. On the other hand, right from the beginning of the proceedings, the allegation of the Management against the Petitioner was that he was responsible for the loss and that he should make good the loss. A charge of theft is a serious misconduct and it goes into the character of an employee and it cannot be lightly alleged. It is one thing to say that if there was entrustment of a property and there was loss of the same, then in respect of such loss of the property, an employee must make good the loss, that is somewhat a civil liability. But when an allegation of criminal liability is fixed, then there must be a charge to that effect and only when that charge is made, the question of Enquiry Officer going into the charges will arise. Neither in the show cause notice marked as Ex. nor in the dismissal order marked as Ex. as well as in the Enquiry Report marked as Ex .M12, there is any finding that the Petitioner had stolen the coils which was entrusted to him. On the other hand, the Management seems to have been agitated about the Petitioner going to the Police Station with the complaint.
22. The Labor Court itself had stated in paragraph
7 of the impugned Award as follows:
7... The Petitioner having preferred E.G. complaint to the management as diligent and prudent man ought to have waited for action being taken by the Management, for after all the missing materials belong not to the Petitioner button the Management. No doubt, anybody can set the criminal law in motion not necessarily the person directly aggrieved. But still, the haste and hurry with which the police complaint has been preferred byte Petitioner behind the back of the management would only smack of a doubt that an attempt has been made to wriggle out of the consequences of the loss of the materials and to prepare a pretext and such course of conduct on the part of the Petitioner would only leave me with an impression that all was not well with him and in the absence of any explanation forth coming from him as to the missing materials, the irresistible inference tube drawn is that it is a case of theft byte Petitioner."
".... In the domestic enquiry a conclusion has been reached and a finding rendered holding the Petitioner responsible for the loss of the material or in other words holding the Petitioner guilty of theft of the materials, for after all the missing of the materials could not be explained inane other manner other than the manner in which the management has explained, the version of the management finding acceptance at the hands of the Enquiry officer on an appreciation of the materials. I am impelled to think that such a view that the Petitioner irresponsible for the disappearance of the materials is quite possible and it wouldn''t be for this Court to substitute another inference and an inference that haste be inevitably drawn has been drawn. Obviously a logical as also quite reasonable conclusion has been reached holding the Petitioner responsible. The finding of the Enquiry Officer in the domestic enquiry does not call for any interference for the reason that the enquiry has been conducted fairly and properly and conclusion just and reasonable in the circumstances has been reached.
23. While the findings of the Labor Court in the first portion viz., that any person can set the criminal law in motion, the findings thereafter rendered by the Labor Court was not only unwarranted and was not borne out of the materials on records with which it has to render findings in terms of proviso to Section 11-A of the I.D. Act.
24. The Supreme Court vide its decision in
Where the charges framed against the delinquent officer are vague and it is difficult to meet the vague charges, the termination is bad.
25. Further in
9. Insofar as the vagueness of the charges is concerned we find that it deserves acceptance. It is asserted bistro Vaidyanathan, learned Counsel for the Respondent that except the memo of charges dated 4-6-1989, no other particulars of charges or supporting particulars were supplied. This assertion could not be denied by the learned Counsel for the Appellant. A reading of charges would show that they are not specific and clear. They don not point out clearly the precise charge against the Respondent, which hews expected to meet. One can understand the charges being accompanied by statement of particulars or other statement furnishing the particulars of the aforesaid charges but that was not done. The charges are general in nature tithe effect that the Respondent along wit height other officials indulged in misappropriation by falsification of accounts. What part did the Respondent play, which account did he falsify or help falsify, which amount did he individually or together with other named persons misappropriate, are not particularized. The charge is a general one. It insignificant to notice that Respondent has-been objecting to the charges on the ground of vagueness from the earliest stage and yet he was not furnished with the particulars. It is brought to our notice that Respondent''s name was not included in the schedule appended to GO Ms 928 dated 25-4-1988 mentioning the names of officials responsible for falsification of accounts and misappropriation and that he is also not made an accused in the criminal proceedings initiated in that behalf.
10. We are, therefore, of the opinion that the judgment of the Tribunal is right insofar as it holds that the charges communicated to the Respondent are vague. In the ordinary course we would have directed the disciplinary authority or the authority which framed the charges to particularise the charges and then to proceed with the enquiry but it appears that the Respondent has hardly about seven or eight months to go for retirement. Having regard to the facts and circumstances of the case, we are of the opinion that the matter should end here.
Therefore, the leaned counsel for the Management was not correct in stating that it was not necessary to frame a specific charge regarding theft and that the Petitioner had understood the same.
26. First of all, there is no specific charge of theft against the Petitioner and consequently, the Enquiry Officer had not found the Petitioner guilty of theft of the coils. It was that enquiry report which was accepted by the Management which led to his dismissal.
But it was the Labor Court which rendered a finding of theft which was not even the case of parties before the Labor Court. The Labor Court had made a special pleading on the basis of the arguments advanced by the counsel for the Management. The provocation of the management as can be seen from the records is largely for his inviting the police due to his complaint made totem and also his opinion regarding the suspicion of Management''s role on the same and also the notice issued by the Trade Union.
27. The Labour Court itself found that any person can set the criminal law in motion and if a person who is entrusted with property of the employer and when he is made responsible for its loss, certainly if he suspects that the property has been stolen, then normal course open to him is to move the criminal law in motion and therefore, no exception can be taken. Secondly, merely because he has approached the trade union which had issued an notice on his behalf cannot be said to have caused any harm to the management and it is open to the management to ignore the representation or send a reply denying he allegation made by the Trade Union. After all, it is the duty of the Trade Union to defend and espouse the case of a member. The terminology or the language used in the trade union''s letter to the Management found to be unsavory or unpalatable condition and on that score, the workman cannot be found fault with. Because the language or the terminology used in such letter is the responsibility of the Trade Union Leader and not that of the person who went to seek the assistance of that union. If these two allegations namely going to the Police Station with the complaint or causing trade union to send notice cannot be taken to be a misconduct on the part of the workman and the only question remains is the loss of the coils entrusted to the Petitioner. The Management itself by its first notice dated 27.03.2007(Ex.) directed him to make good a sum of Rest. 16,200/�towards the loss caused due the missing coils.
28. u/s 7(2)(c) of the Payment of Wages Act, deductions from the wages of an employed person cane made for loss of goods expressly entrusted to unemployed person for custody or where such loss indirectly attributable to his neglect or default. But there is nothing wrong on the Management holding the Petitioner responsible for the loss but before making any deduction towards loss, the payment of Wages Act also provides procedure u/s 10(1)(a), wherein the employee must be given an opportunity of showing cause against the deduction or otherwise than in accordance with such procedure as may be prescribed for making such deduction.
29. The Supreme Court has held in ever so many cases that if any recovery from the pay has to be made as it results in civil consequences, the employee must be heard before any such recovery is made as part of the principle of natural justice. Hence, in the present case ordering of recovery without due enquiry is bad in law.
30. In the present case, this Court is of the view that no exception can be taken with reference to the Petitioner moving the Police station with a criminal complaint. For his causing notice issued through his trade union can never be said to be a misconduct. In soar as the loss of material is concerned, it can be only fixed by civil liability as there was no allegation of theft under any part of the proceedings. Since nonjury was held by giving a notice and on that score the finding rendered by the Labor Court in this regard are perverse and the impugned Award is liable to be seaside.
31. Though in the pleadings before the Labor Court, they had stated that they lost confidence in the Petitioner, the loss of confidence cannot be easily inferred in the matter of reinstatement. The Supreme Court had an occasion to consider such a plea made by the
19. The above study of the chain of rulings brings out the futility of thecontention that subsequent to Murugan Mills'' case 2 colourable exercise of power has lost validity and loss of confidence has gained ground. The law is simply this: The Tribunal has the power and, indeed, the duty to X-ray the order and discoveries 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 simplicities, such action is bad and is liable to be set aside. Loss of confidence is no new amour for the management; otherwise security of tenure, ensured by the new industrial jurisprudence and authenticated by catena of cases of this Court, can be subverted by this neo-formula. Loss of confidence in the law will be the consequence of the Loss of Confidence doctrine.20. In the light of what we have indicated, it is clear that loss of confidence soften a subjective feeling or individual reaction to an objective set of facts and motivations. The Court is concerned with the latter and not with the former, although circumstances may exist which justify a genuine exercise of the power of simple termination. In a reasonable case of a confidential or responsible post being misused or a sensitive or strategic position being abused, it may be a high-risk to keep the employee, once suspicion has started and a disciplinary enquiry cannot be forced on the master. There, termination simplicities may be bona fide, not colourable, and loss of confidence maybe evidentiary of good faith of theemployer.
32. The learned Counsel for the second Respondent Mr. Parthiban heavily relied upon the judgment of the Supreme Court in
20. It is no doubt true that after introduction of Section 11-A in the Industrial Disputes Act, certain amount of discretion is vested with the Labour Court Industrial Tribunal in interfering with the quantum of punishment awarded by the management where the workman concerned is found guilty of misconduct. The said area of discretion has been very well defined by the various judgments of this Court referred to hereinabove and it is certainly not unlimited as has been observed by the Division Bench of the High Court. The discretion which can be exercised u/s 11-A is available only on the existence of certain factors like punishment being disproportionate to the gravity of misconduct so as to disturb the conscience of the court, or the existence of any mitigating circumstances which require the reduction of the sentence, or the past conduct of the work man which may persuade the Labour Court to reduce the punishment. In the absence of any such factor existing, the Labour Court cannot by way of sympathy alone exercise the power u/s 11-A of the Act and reduce the punishment. Asnoticed hereinabove at least in two of the cases cited before us i.e. Orissa Cement Ltd.5 and New Shorrock Mills 6 this Courtheld: "Punishment of dismissal for using of abusive language cannot be held to be disproportionate." In this case all the forums below have held that the language used by the workman was filthy. We too are of the opinion that the language used by the workman is such that it cannot be tolerated by any civilised society. Use of such abusive language against a superior officer, that too not once but twice, in the presence of his subordinates cannot be termed to be an indiscipline calling for lesser punishment in the absence of any extenuating factor referred to hereinabove.
33. But that case was rendered in a situation where the charges were proved and the question of exercise of power to interfere with the penalty was considered and the Court pointed out the parameters of exercise of such power. But in the present case, since this Court has held that the findings of the Lbaour Court itself are perverse and charges were not proved, the question of going into any proportionality of punishment does no tarise.
34. In view of the above, the writ petition stands allowed; the impugned award is set aside. It is here by declared that the Petitioner is entitled forrein statement with back wages, continuity of service and other attendant benefits. However, it is open to the Management to proceed against the workman for recovery of loss of the coils entrusted to him after following due procedure established by law. This order will not stand in the way of the Management in proceeding against the recovery which is only a civil liability. However, there will be no order as to costs.
