AI Structured Summary
Not yet generated for this judgment
Judgment
Rakesh Tiwari, J.—Heard Km. Mahima Maurya, counsel far the petitioner, Sri Sachindra Mohan, Advocate and learned standing Counsel for the respondents Perused the record.
The workman, K.N. Thanppakam, was in the employment at the Regional Sales Office of Telco at Allahabad. Insured motor vehicles from Tata Engineering and Locomotive Company Ltd., Centre No. 26, Floorworld Trade Centre, Coffee Parade, Bombay, (2) Senior Sales Officer, Telco, 8/18, Stanely Road, Allahabad were received by the Regional Sales Office for Sale at Allahabad. These vehicles were received by the workman and it was his duty to get them inspected and issue O.K. Certificate to the Driver/Contractors for payment of transportation. If any technical or other fault was detected by the workman or the cars required some job work, the same was to be got done by him before issuing the O.K. Certificate to the Transporters/Drivers. The workman was charged for the following misconducts vide charge sheet dated 7th September, 1991. The relevant extract of the charge sheet is quoted as under:
CHARGE SHEET CUM SHOW CAUSE NOTICE
Mr. K.N. Thankappam,
T.N. 00461
You have been working as a Typist-Cum-Clerk at out Regional Sales Office (RSO) at Allahabad since 1970.
You are responsible for preparing, signing and appropriately forwarding the stock Despatch Memo/Vehicle Delivery Note (SDM) in respect of the vehicles received/despatched at RSO Allahabad. As a part of this responsibility you are required to indicate in the said SDMs the correct date of receipt of the vehicle at RSO Allahabad as well as any damages/accidents on the vehicles which are reported by the Driver-Cum-Mechanic in his vehicle Inspection Sheet.
It is alleged that you have been deliberately indicating false dates of receipt of the Vehicles at RSO Allahabad and or falsely certifying the vehicle as treceived with no damages or accidents in the SDMs prepared by you. Details of 12 such cases are given in the Annexure to this Charge-Sheet-cum-show cause notice. Such acts on your part have resulted in full payment by the Company to the transporters without any deduction for delayed delivery of vehicles or penalty for damages accidents. It is alleged that in return for the false statements made by you to facilitate full payment to transporters without the mandatory decutions, you have been receiving illegal gratifications from the said transporters.
The events described in para 3 above indicate that you have committed the misconducts of dishonesty with the employers'' property or business, taking bribes or any illegal gratification and gross or habitual negligence.
You are hereby charged with having committed the misconduct of:
(i) "theft, fraud or dishonesty in connection with employers'' business or property."
(ii) "Taking bribes or any illegal gratification", &
(iii) gross or habitual negligence.''
Under Clauses 22(d), (e) and (m) of the Model Standing orders contained in Schedule 18 of the Industrial Employment (Standing Order) Act, 1966 which is applicable to you.
(6) You are required to give your explanation in writing in respect of the above charges within three days of the receipt of this charge sheet-Cum-show cause notice. If you fail to give your explanation, we shall presume you have none and take appropriate action.
A.K. Kaul, Regional Manager
After domestic enquiry held into the charges, the workman was dismissed from service.
It appears that in the domestic enquiry, the workman concerned was given opportunity to give his statement before the Enquiry Officer and that he also did not cross-examine the employer witness M.V.S. Prasad. He also had confessed in writing about his misconduct which was also exhibited as Exhibit No. before the labour Court. Enquiry report was submitted that in view of documentary proof in the enquiry it was established that it was just not a procedural lapse on the part of the workman but there was a malafide intention in committing the misconduct by him for monitory consideration for which he had been charged.
The labour Court framed a preliminary issue as to "whether, the domestic enquiry held by the employer is fair and proper and not violative of principles of natural justice? If so, its effect." The tribunal by order dated 2.6.1998 recorded finding that the domestic enquiry conducted in the case was in accordance with rules and principles of natural justice. However on an application moved by the workman representative even on the objection of the employer that the Tribunal had no power to review, the labour Court in the interest of justice afforded another opportunity to the petitioner workman to show that the preliminary issue was not correctly decided.
After hearing the parties again, the labour Court vide its order dated 12.11.1998 on the question of fairness of the domestic enquiry, confined its finding recorded in its order dated 2.6.1998 do not call for any modification of the order. The only question which therefore now survives was regarding the quantum of punishment, it was then considered by the tribunal in detail.
Having regard to the documentary and oral evidence produced by the parties, the Court held that record of the enquiry proceedings show that Mr. K.N. Thankappam beyond doubt benefited the Transporters/Drivers with early payments by using O.K. Certificates to enable them to get away with any number of technical and job work damages which occurred to the vehicle during their transportation without paying for it and without suffering delayed payments till they were repaired. The Court also came to a finding that from the fact that the workman had given different endorsement on two different copies of the same Stock Despatch Memo (SDM) is ample evidence in support of the employers allegations and the payments which ought to have been recovered from the Transporters concerned, could not be recovered from it.
The labour Court also held that when the workman himself admitted the charge of misconduct against him before the Enquiry Officer in writing, it would not be for the workman to argue the quantum of punishment that the main witness complaint was not examined and that the employers evidence clearly established that by issue of false and Incorrect certificate, the workman benefited the Transporters. In this light of the things, the labour Court rejected the arguments of the workman that even assuming and accepting the fact that the workman had committed some technical and procedural faults in handling of the transactions, the order of termination from service is wholly and completely unjustified and, therefore, requires to be set aside. The Court on this question held that the act of the workman in conniving with the Contractor''s/Driver when vehicles by the Transporter from the manufacturers to the employers i.e. the dealer at Allahabad facilitated early payment for the transport charges to the contractor by not making correct report about the State of vehicles was intentional hence the punishment impose on the delinquent employee therefore cannot be said to shock the conscience of the Court because of his gross indiscipline activity.
In conclusion the labour Court held that the workman had failed to show any illegality or irregularity in the domestic enquiry or even prove before the Tribunal that the action taken by the employers was disproportionate to the charges. Relevant extract of finding are quoted as under:
...the statement of Mr. A.N. Thankappan before the Tribunal, he had not stated that it was on account of the annoyance of Sri A.K. Kaul that he has been dismissed from the service and it is a case of unfair labour practice. It has not been shown that the confession of the workman was recorded tender any threat, inducement or promise which may tender the confession not admissible against the workman. The learned representative for the workman also cited F.L.R. 1997 75Allahabad between Lipton India Ltd. And State of U.P. and Ors., where the learned Single Judge have; observed that the Industrial Courts after insertion of Section 11h in the Act can re-appreciate the findings and sit in appeal over the findings of the enquiry Officer. The learned representative for the workman have not been able to place from the enquiry report and the record of the domestic enquiry any such material which may be said that the findings recorded in the enquiry report may be called to be perverse or un-acceptable.
The contention of the counsel for the petitioner before this Court is that though there is no illegality in the award yet when charge No. 1 was found to be not proved in the domestic enquiry, the workman was entitled for lessor punishment. It is stressed that presumption has been made against the workman that he had committed the misconduct intentionally and deliberately which is not correct. It is submitted that it was wholly and only on human consideration the Drivers/Contractors may not be detained in telling heavy expenses at Allahabad for their stay is payment would be made to them after vehicles are repaired and O.K. Certificate had been issued to them by the petitioner. Sri Sachindra Mohan, counsel for the respondent''s Company submits that the evidence of Sri M.V. Prasad, the Management witness, remained un-rebutted in the domestic enquiry. The labour Court also has not only from the enquiry proceedings but also from the pleadings evidence on records of the parties before it came to the conclusion that the charges against the workman stood proved. He submits that in so far as the charge No. is concerned, employer has proved the misconduct of the workman before the labour Court and its action also. After giving anxious considerations to the record on the writ petition, I am of the opinion that admittedly the workman had not cross-examined the employer witness M.V.S. Prasad but had also given a written confession in respect of his misconduct which was accepted by him and exhibited as Exhibit No. 1 before the tribunal. The tribunal has in fact held that the domestic enquiry held by the employer was fair and proper. Not only the tribunal had gone out way to help the workman concerned to assail the fairness of the enquiry a second time also even though it had no power to review its earlier findings in the preliminary issue yet in spite of it the tribunal again came to the conclusion that its earlier order dated 2.6.1998 did not require any modification and confirmed the findings therein by order dated 12.11.1998.
Though the counsel for the petitioner has very fairly stated that so far as the finding recorded in the award are concerned, there is no illegality yet the Court has gone through the award and record submitted along with the writ petition in the interest of justice but has come to the conclusion that the finding of the labour Court do not suffers from any illegality and as such is liable to up held. A workman who is dishonest and works beyond his duty or limitations of his service even assuming to be on humanitarian ground would not be entitled to any benefit of such human approach which is beyond the permissible limits of the duties cannot remain in service by committing serious acts of misconduct and taking defence behind philanthrop and humanitarian approach for committing such misconduct. A clear line has to be drawn between the acts of misconduct in service and humanitarian or philanthroph activities in life. If the Workman wanted to help the truck drivers/contract transporter he might have got the matter expedited strictly in accordance with the procedure but certainly not by breaking the rules and procedure which are meant as check-valve in any system. If the check-valve is disturbed, the whole safety procedure may suffer causing irreparable damage to the Organization. In view of the concrete findings recorded by the tribunal that the workman had not been able to place any material from the enquiry proceedings or establish report that the findings recorded in the enquiry report are perverse and further that in the circumstance of the case it was not one or two instances that serious misconduct was committed by the workman for monitory gain, the tribunal has rightly come to the conclusion that he does not deserves to be retained In the service of the establishment. For the reasons stated above, the writ petition is dismissed. No order as to costs.