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Judgment
Ujjal Bhuyan, J—Heard Mr. S. Chakraborty, learned counsel for the petitioner and Mr. S. Khound, learned counsel for the respondent No. 1/Management.
By filing this petition under Article 226 of the Constitution of India, petitioner has challenged the legality and validity of the award dated 17.05.2006, passed by the learned Labour Court, Assam, Guwahati in Ref. Case No. 18/2001, upholding dismissal from service of the workman by the Management.
Petitioner is the workman and respondent No. 1 is the Management.
Petitioner was serving as Store Clerk in the Bettybari Tea Estate. On 22.06.2000 three drums containing agro-chemical called, "Agrodar-96" were found along with empty containers meant for sale at the main store of the Tea Estate. One sealed drum contained 30 liters of the agro-chemical and the other two drums contained 23 liters of the agro-chemical. Allegation made against the petitioner was that these 53 liters of agro-chemical were kept separately with the empty containers and that the petitioner had indulged in misappropriation of agro-chemicals, thereby he committed fraud and dishonesty as well as attempted theft in the discharge of his duty. A domestic inquiry was held against the petitioner. On the basis of the report submitted by the Inquiry Officer, petitioner was dismissed from service. On the dismissal of the petitioner, an industrial dispute was raised. Though conciliation was attempted, it failed and, ultimately, the dispute had to be referred to the learned Labour Court by the appropriate Govt. for decision on the following issues:--
"A. Whether the Management of Bettybari Tea Estate Mazbatt, Darrang, is justified in dismissing the service of Sri Romesh Chandra Hazarika-Store Clerk or not?
B. If not, is he entitled to re-instatement with full back wages and benefits or any other relief in lieu thereof?"
On receipt of the reference, Ref. Case No. 18/2001 was registered and notices were issued to the parties. Both Management and the workman filed their respective written statements. The Management examined four witnesses, Sri Hirendra Kr. Deuri, Sr. Manager of the Tea Estate, Sri Ashok Saikia, the then Deputy Manager of the Tea Estate, Sri Ananta Goswami, Advocate, the Inquiry Officer and Sri Surojit Goswami, an employee of the Tea Estate. On the other hand, the workman presented himself as the sole witness. Management exhibited 10 documents, whereas the workman exhibited two documents.
After hearing both the sides and on perusal of the evidence on record, including the record of the domestic inquiry, the learned Labour Court agreed with the finding of the domestic enquiry that the workman attempted to misappropriate the property of the Tea Estate and, thus, committed misconduct. It was held that since the Management had lost faith in the workman, the penalty imposed was justified and no interference was called for.
Aggrieved by the award, the present writ petition has been filed.
Mr. Chakraborty, learned counsel for the petitioner submits that the charges against the petitioner could not said to have been proved. Finding of the Inquiry Officer was based on presumption and on the basis of such presumption, the misconduct alleged could not have been proved. He submits that the charges leveled against the petitioner are contradictory. If it is a case of attempted theft, the theft has to be established to prove misappropriation. Both theft and misappropriation will have to be proved to establish the charge of fraud which is a misconduct of higher order. None of the charges were proved and, therefore, the penalty of dismissal from service was unjustified. Learned Labour Court failed to appreciate this aspect of the matter and erroneously concurred with the view of the Inquiry Officer. Reliance placed by the learned Labour Court on the decision of the Apex Court in Divisional Controller, KSRTC (NWKRTC) Vs. A.T. Mane, (2004) 8 JT 103 : (2004) 3 LLJ 1074 : (2004) 8 SCALE 308 : (2005) 3 SCC 254 : (2005) SCC(L&S) 407 : (2005) 1 SLJ 227 was misplaced inasmuch as in that case, the Apex Court held that when an employee is found guilty of misappropriating funds, there is nothing wrong in the employer losing confidence or faith in such employee and imposing punishment of dismissal. In the present case, the charge of misappropriation was not proved. Therefore, award passed by the learned Labour Court is untenable and appropriate interference is called for.
Per contra, Mr. S Khound, learned counsel for respondent No. 1/Management raises a preliminary objection that since the petitioner was serving as a Store Clerk in the Tea Estate, he is not a workman as defined under the Industrial Disputes Act, 1947. He was employed in supervisory capacity drawing wages in excess of Rs. 1600.00 per month. According to the petitioner himself, he was drawing monthly wages of Rs. 8066.00. Therefore, petitioner would not come within the ambit of the definition of workman. Hence, petitioner cannot avail the benefit of Industrial Disputes Act, 1947 and, therefore, no relief can be granted to the petitioner. Referring to the Standing Orders for tea estate in Assam, Mr. Khound submits that under Standing Order 10, theft, fraud or dishonesty in connection with the company''s business or property shall constitute gross misconduct. The circumstances, in which the agro-chemicals were recovered in the store, clearly indicated involvement of the petitioner as Store Keeper in misappropriating the property of the company for unlawful gain. No other view is possible, he submits. A domestic enquiry was ordered where all reasonable opportunities were afforded to the petitioner to defend his case. At the end of the inquiry, the Inquiry Officer submitted his report holding the petitioner guilty, and after due consideration of the report, Management accepted the report and dismissed the petitioner from service. The procedure adopted by the Management was fair and just, which has been acknowledged by the learned Labour Court. There is neither any violation of the principles of natural justice, nor any error apparent on the face of the record to warrant interference with the award of the Labour Court as well as the decision of the disciplinary authority. Writ petition should therefore be dismissed, he contends.
I have heard the learned counsel for the parties and also perused the materials on record, including the case record of Ref. Case No. 18/2001.
Since preliminary objection has been raised by Mr. Khound, the same may be addressed at the outset. The objection is that since the petitioner was a Store Keeper in the Tea Estate, rendering duties of supervisory nature and drawing wages in excess of Rs. 1600.00 per month, he was not a workman as defined under the Industrial Disputes Act, 1947 and, therefore, not entitled to the protections under the said Act.
Section 2(s) defines workman in the following terms:--
"(s) "workman" means any person (including an apprentice) employed in any industry to do any manual, unskilled, skilled, technical, operational, clerical or supervisory work for hire or reward, whether the terms of employment be express or implied, and for the purpose of any proceeding under this Act in relation to an industrial dispute, includes any such person who has been dismissed, discharged or retrenched in connection with, or as a consequence of, that dispute, or whose dismissal, discharge or retrenchment has led to that dispute, but does not include any such person -
(i) who is subject to the Air Force Act, 1950 (45 of 1950), or the Army Act, 1950 (46 of 1950), or the Navy Act, 1957 (62 of 1957); or
(ii) who is employed in the police service or as an officer or other employee of a prison, or
(iii) who is employed mainly in a managerial or administrative capacity, or
(iv) who, being employed in a supervisory capacity, draws wages exceeding one thousand six hundred rupees per mensem or exercises, either by the nature of the duties attached to the office or by reason of the powers vested in him, functions mainly of a managerial nature."
A reading of the aforesaid definition would indicate that a workman means any person including an apprentice employed in any industry to do any manual, unskilled, skilled, technical, operational, clerical or supervisory work for hire or reward and would include a dismissed, discharged or retrenched workman. However, any person who is employed in a supervisory capacity drawing wages exceeding Rs. 1600/- per month or exercises functions mainly of a managerial nature would not be included within the definition of workman. Therefore, in the context of the present objection, a person to be excluded from the definition of workman shall have to be employed in a supervisory capacity drawing wages exceeding Rs. 1600/- per month or exercises functions mainly of a managerial nature. Petitioner was a Store Clerk. There is nothing on record to show that the nature of duties discharged by him were mainly of a managerial nature. While his wages per month was Rs. 8066/- as per his own calculation, again there is nothing on record to show that he was employed in a supervisory capacity. Being a Store Clerk, the nature of work of the petitioner was clerical and the Management could not bring on record anything to show that the work of Store Clerk was of supervisory nature. This was also not an issue, which was referred to the learned Labour Court for adjudication. Consequently, the learned Labour Court did not examine this aspect of the matter. That being the position, this issue does not arise out of the reference and therefore cannot be gone into in the writ petition. Notwithstanding the above, the Management has failed to place anything on record even in the present proceeding to show that the petitioner was employed in a supervisory capacity. Preliminary objection is, therefore, overruled.
Coming back to the merit of the case, the following were the charges against the petitioner:--
"1. That on 22.06.2000, 3 sealed drums of Agrodar-96 was found along with the empty containers meant for sale at the main store.
That in your letter dated 25th June 2000 you have admitted that along with the containers meant for sale, one sealed drum containing 30 Ltrs of Agrodar-96 and 2 loose drums containing about 23 Ltrs of Agrodar-96 were found.
That although you have claimed that 53 Ltrs of Agrodar-96 was found with the containers meant for sale was excess stock, the same does not tally with your store records.
That you have allegedly indulged in misappropriation of agro chemicals as otherwise there should not have been any excess (in such large quantity) of the above mentioned agro chemical.
That, if proved the above constitutes fraud and dishonesty in connection with the company''s business and property as well as attempted theft which would constitute serious offences.
You are hereby directed to submit your written explanation to the undersigned by 13.07.2000, as to why disciplinary proceedings should not be instituted against you. In case you fail to submit your written explanation, it will be presumed that you have no explanation to offer and that you have accepted the charges levelled against you.
As the offence committed by you is of a serious nature you are hereby placed under suspension with immediate effect pending disciplinary proceedings and further orders of the management."
A careful perusal of the charges would show that 3 containers, one sealed and the other 2 not sealed, containing 53 liters of Agrodar-96 were found with empty containers meant for sale in the main store. Though the petitioner explained that it was excess stock, according to the Management, the same did not tally with the store records. It was, therefore, alleged that petitioner had indulged in misappropriation of agro-chemicals and if proved, the same would constitute fraud and dishonesty in connection with the company''s business and property as well as attempted theft.
Petitioner submitted his reply stating that existence of three drums containing Agrodar-96 in the store could not in any circumstances be attributed to any ill motive on the part of the petitioner. Those were excess stock kept with the empty containers which were meant for sale. Petitioner had reported about the excess stock to the Field Assistant Manager on 22.01.2001 and to the Deputy Manager on 22.06.2001. The excess Agrodar-96 were kept separately inside the main godown. Petitioner was not personally present when the excess Agrodar-96 were found. He stated that the excess quantities of the store items were unutilized and left over as the excess items. Therefore, the excess quantity was not reflected in the store records as per standing practice of the tea garden. The details of excess items were kept separately on kutcha records and were later on issued as per works requirement. He, therefore, denied the allegation of misappropriation and other charges levelled against him.
Explanation furnished by the petitioner was not accepted by the Management and accordingly, it was decided to hold a domestic enquiry.
PW 3 was the Inquiry Officer, who conducted the inquiry against the petitioner. Relevant portion of the findings of the Inquiry Officer is as follows:--
"As a store clerk the workman is obliged and duty bound to explain the position of each item of stores whether the items found in hand tallies with the record kept and maintained or in excess. In the instant case the workman pleaded that 53 Ltrs of excess "Agrodar-96" were kept separately inside the main godown and were not kept with the empty containers meant for sale. If that be so the workman was required to show the record of the godown during proceeding in support of his claim. This was not complied with by the workman. Moreover, the dates shown in the kutcha slips and statement of excess chemicals found - including Agrodar-96 did not match the date of detection i.e. 22.06.2000. After giving a rational thinking into the whole episode, the question that arises is: why then at all the 3 drums were kept and mixed with the empty drums instead of keeping them visible to honour the kutcha slips of the managerial personnel from time to time. After all the stores clerk-workman is the custodian of the Company''s properties lying in the stores.
During proceedings I did not find that the management tried to bring a manufactured story against the stores clerk Sri Ramesh Hazarika. I found the evidence of the management''s witnesses and documents exhibited in this behalf in support of its case to be trustworthy and satisfactory.
"Misconduct is not established by proving even culpable negligence. It is something opposed to accident or negligence and is doing of something which the doer knows to be wrong or which, he does recklessly not caring what the result will be."
The management wanted to high light the Criminal Case pending against the workman. But that being beyond the scope and ambit of the charge sheet, I found no reason to discuss the same in my report. The police case will take its own course.
I found that the workman committed fraud and dishonesty in connection with the company''s business and property as well as attempted theft which attract the clause Misconduct under the standing orders in force on Bettybari Tea Estate.
I hold the workman Sri Ramesh Hazarika guilty of misconduct."
From a reading of the above, it is quite clear that the Inquiry Officer believed the case of the Management to be trust-worthy and satisfactory. He, therefore, found that the workman had committed fraud and dishonesty in connection with the business and property of the company as well as attempted theft which attracts the clause of misconduct under the Standing Orders.
In the proceeding before the learned Labour Court, it was held as under:--
"14. The evidence on record reveals that purchasers brought out the materials purchased on auction from the Godown which reflects that the Store Clerk was prima-facie not responsible for supply of containers with agro-chemicals to the purchasers unless he had intention to misappropriate the same. The agro-chemicals were found along with empty containers and the person responsible for keeping those containers was none other than the workman himself. The intention of a person cannot be sorted out unless he voluntarily made statement to that effect.
The evidence on record further reveals that a few days earlier from the date on which containers were put into auction, there was allegation of theft of agro-chemicals from the Godown of the Tea Estate and for that reason, the Workman had to face interrogation of Police. This fact in itself proves that sometimes there was shortage of articles in the Store. The very fact that containers found with Agrodar-96 clearly speak that the shortage of agro-chemicals was quite within the knowledge of the Workman. This being the position, I find reason to agree with the finding of the domestic enquiry that the workman attempted to misappropriate the property of the Tea Estate which comes within the ambit of definition of misconduct."
Therefore, the learned Labour Court agreed with the finding of the domestic inquiry that the workman attempted to misappropriate the property of the Tea Estate and thus committed misconduct.
The findings of the domestic inquiry and the findings of the learned Labour Court have been noticed above. In the domestic inquiry, the Inquiry Officer found that the workman had committed fraud and dishonesty as well as attempted theft, which attracts misconduct within the meaning of the Standing Orders. On the other hand, the learned Labour Court agreed with the finding of the domestic enquiry that the workman attempted to misappropriate the property of the Tea Estate. Therefore, the finding of the Inquiry Officer is that petitioner had attempted theft whereas, finding of the learned Labour Court is that petitioner had attempted misappropriation.
At this stage, the charges framed against the petitioner may once again be adverted to.
As per charge No. 4, petitioner was alleged to have indulged in misappropriation of agro-chemicals as otherwise, there would not have been excess quantity of agro-chemicals in the store. As per charge No. 5, if the allegation of misappropriation is proved, then, it would constitute fraud and dishonesty on the part of the petitioner in discharge of his duty. Findings of both the Inquiry Officer and of the learned Labour Court were that there was attempted theft or attempted misappropriation. The finding is not that theft or misappropriation has been proved or established. Only if theft or misappropriation was established, it would be a case of fraud and dishonesty.
Both the Inquiry Officer and the learned Labour Court had completely misdirected themselves while examining the charges against the petitioner. In the process, they have arrived at totally untenable findings. Neither theft nor misappropriation was proved. Therefore, commission of fraud and dishonesty by the petitioner in the discharge of duty did not arise at all.
While it is acknowledged that the standard of proof in a domestic inquiry is much lower than in a criminal proceeding or even in a civil proceeding, but nonetheless even in the case of a domestic inquiry, the charges framed will have to be proved on the basis of evidence adduced. There must be a finding to that effect. Based on such finding, question of imposition of penalty will arise.
In Nand Kishore Prasad Vs. State of Bihar and Others, AIR 1978 SC 1277 : (1978) 2 LLJ 84 : (1978) 3 SCC 366 : (1978) 3 SCR 708 : (1978) 1 SLJ 591 : (1978) 10 UJ 395 , the Apex Court held that in a domestic enquiry suspicion cannot be allowed to take the place of proof. Even in a domestic inquiry, no charge can be said to have been proved on the basis of presumption. This position has been reiterated in subsequent decisions, including in Narinder Mohan Arya Vs. United India Insurance Co. Ltd. and Others, AIR 2006 SC 1748 : (2006) 109 FLR 705 : (2006) 4 JT 404 : (2006) 2 LLJ 806 : (2006) 4 SCALE 181 : (2006) 4 SCC 713 : (2006) SCC(L&S) 840 : (2006) 3 SLJ 211 : (2006) 1 UJ 541 : (2006) AIRSCW 1969 : (2006) 3 Supreme 459 . It has been held that the enquiry officer cannot base his findings on mere hypothesis. Mere ipse dixit on his part cannot be a substitute of evidence.
That being the position, the impugned award dated 17.05.2006 cannot be sustained on the basis of the materials available on record and is therefore set aside. Certainly Management of Bettybari Tea Estate was not justified in dismissing the petitioner from his service as Store Clerk. It is held accordingly.
Coming back to the question of back wages and other entitlements, it is seen from the affidavit sworn and filed in support of the writ petition that as on 18th June, 2007, petitioner had disclosed his age as 57 years. By now petitioner would be about 65 years of age. Learned counsel for the petitioner submits that in the normal course, petitioner would have superannuated from service in the year 2008. In such circumstances, question of directing payment of back wages would not arise. However, petitioner shall be deemed to be in service till his date of superannuation and he would be entitled to all other service benefits, including pensionary benefits.
Writ petition is accordingly allowed. No costs.
Send down the case record immediately.