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Judgment
Subhash B. Adi
Petitioner - workman has called in question the award dated 4.9.2010 in Reference No. 139/2000 produced at Annexure-P and also an order on fairness of enquiry dated 20.8.2005 produced at Annexure-N. Facts, which are not in dispute, are that, an article of charges dated 29.11.1993 was served on the petitioner alleging that the petitioner has misappropriated an amount to the tune of Rs. 56,965.25 paise interalia alleging that, the petitioner being a Clerk-cum-Cashier was engaged in collection of the amount from various sources. On 3rd and 4th September 1993, he had collected an amount of Rs. 1,66,472.50 paise. Though he was required to deposit the said amount on the next day of collection, however, he did not deposit the said amount till 10th September 1993 and when he deposited the said amount, he deposited only Rs. 1,09,500/- short of Rs. 56,965.25 paise. Petitioner - workman gave a reply to the said charge interalia admitting that, he had collected an amount of Rs. 1,66,472.50 paise and has also admitted that, he had only deposited Rs. 1,09,500/-. However, his explanation is that, one B. Nagaraju, Unit in-charge took Rs. 37,100/- on 6.9.1993 for purchase of spirit. Further, Rs. 5,000/- was spent towards coffee, breakfast and lunch and Rs. 6,650/- spent towards lorry hire charges, as such, the entire money is accounted.
Before the Enquiry Officer, though the petitioner appeared and he did cross-examine MW-1, however, he did not choose to lead any evidence or did not choose to participate in the enquiry thereafter.
It is not the case of the petitioner that, he was not given an opportunity by the Enquiry Officer, but petitioner did not avail the opportunity before the Enquiry Officer, he kept himself away from the enquiry. The Enquiry Officer on completion of the enquiry submitted his report to the Disciplinary Authority holding that the charges are proved. The Disciplinary Authority issued second show cause notice on the basis of the enquiry report and held that the charges are proved and the charge alleged against the petitioner is one of misappropriation of the Company amount and it touches the integrity of the petitioner himself, accordingly, passed an order of punishment of dismissal from service. It is against the order of dismissal, petitioner sought for reference of the dispute. On reference, Labour Court held that the enquiry conducted by the Enquiry Officer is fair and proper.
On the question of victimization, the Management relied on the evidence of MW-1 - Nagaraju against whom petitioner has alleged that, he had collected Rs. 37,100/-, however, said Nagaraju has denied of having received any amount from the petitioner. Petitioner has not disputed that, he had collected Rs. 1,66,472.50 paise by way of collection on 3rd and 4th September 1993. It is also not disputed by the petitioner that, what was deposited was only Rs. 1,09,500/-, however, the explanation of the petitioner was that, he had given Rs. 37,100/- to Nagaraju- MW-1 and he also spent Rs. 5,000/- towards coffee, breakfast and lunch and Rs. 6,650/- towards lorry hire charges.
It is not in dispute that, for spending this amount, petitioner had no authority. It is also not in dispute that, the petitioner would not have paid amount to Nagaraju without any acknowledgement, receipt or any document. To prove that, Nagaraju has accepted Rs. 37,100/-, there is no evidence at all. Even as regard to other items also, no receipt, bill or anything of any kind is produced. One is that, he had no authority to spend money. Even for exigency if he had spent such amount, he should have kept some documents to show that this amount was spent or paid to so and so. When Nagaraju, who has been examined by the Management as MW-1, has denied it, when there is no other contrary document to prove that Rs. 56,965.25 paise was short of the amount collected by the petitioner, when there is no document or evidence for spending such amount, just because there is ledger entry, which might have been shown by the petitioner, that does not prove that, this amount is validly spent by the petitioner, unless petitioner had taken some vouchers or acknowledgement from the persons to whom he has given.
As far as proportionality of the punishment is concerned, Learned Counsel for the petitioner submits that, the Management has not produced the audited accounts, though an application was filed before the Enquiry Officer as well as before the Labour Court for production of the original documents, no documents were produced before the Labour Court. Even otherwise also, in an identical case, two employees of the same respondent - Company were punished with minor punishment, but petitioner has been victimized.
It is very well settled law that, in case of pilferage or misappropriation of the amount is concerned, it touches the integrity of the person to work in the establishment and when the Management suspects the integrity of an employee, it is not justifiable to allow such employee to continue in the same establishment. The Apex Court has repeatedly held that, in case of pilferage or misappropriation, the workman does not deserve sympathy and sympathy cannot be used for protecting such employees. Having regard to these circumstances and the gravity of the charge, I find that the action of the Disciplinary Authority and also the Labour Court on the question of proportionality of punishment does not call for interference.
Hence, the petition fails and same is dismissed.