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Judgment
C.S. Karnan, J.—The prayer in the writ petition is for issuance of Writ of Certiorari to quash the order dated 03.04.2002 in I.D. No. 609 of 1997, passed by the second respondent. The short facts of the case are as follows:-
The petitioner/Transport Corporation submits that the first respondent S. Krishnamurthy was appointed as a Material Handler in the erstwhile Pallavan Transport Corporation Ltd., on 10.07.1978 and he was attached to K.K. Nagar Depot. On 06.08.1989, while the first respondent was working at K.K. Nagar Depot Stores Section, at about 03.15 a.m., Fleet No. GE 455 was operated as a lift bus for crew from K.K. Nagar Depot to Government Bus Service i.e., Metropolitan Transport Corporation Head Office. At the time of shed out, the vehicle was checked by the security staff of the petitioner corporation at the gate and it was found that 13 numbers of bearings were wrapped by a gunny bag and kept under the ladies six seater in that bus. Due to this grave misconduct, he was charge sheeted vide Memo dated 29.09.1989 with the following charges:
i. That he had attempted to steal the 13 Nos. of bearings belongs to the Corporation wrapped in a gunny bag and kept it under ladies six seater of the Fleet No. GE 455, which was operated as lift for crew on 06.08.1989 at about 03.15 a.m., and during the shed out while checking it was found by security. His attempt for stealing the 13 Nos. of bearings belongs to stores which amounts to grave misconduct u/s 25(iv) of Certified Standing Order.
ii. That he was fully responsible for outgoing of those 13 Nos. bearing without permission which amounts to misconduct u/s 25(xliii) of Certified Standing Order.
iii. That he was negligent in his duty which amounts to misconduct u/s 25(xliii) of Certified Standing Order.
The first respondent had submitted his explanation on 03.05.1990. In order to find out whether the petitioner was guilty of the charges levelled against him, the petitioner Management ordered for a domestic enquiry and the enquiry was conducted in a fair and proper manner following the principles of natural justice. The enquiry officer had submitted his findings dated 05.05.1992, wherein the charges levelled against him were held proved. Based on the findings of the enquiry officer, the first respondent was issued a second show cause memo dated 09.01.1993 calling for his explanation as to why he should not be removed from service along with the copy of enquiry findings. He had submitted his explanation. After careful consideration of the explanation of the first respondent and his past records, the management had issued a final order dated 10.07.1995 removing the first respondent from service. The first respondent preferred an appeal to the petitioner Management and the same was rejected on
30.06.1996.
The first respondent had raised an I.D. No. 609 of 1997, before the Labour Court and the Labour Court had ordered for his reinstatement with continuity of service and back wages and other attendant benefits. The petitioner Corporation had filed a detailed counter statement in the above said I.D. No. 609 of 1997, disputing the averments made by the first respondent in his petition. In the counter statement it was contended that the first respondent was originally appointed as Material Handler on 10.07.1978 at K.K. Nagar Depot. While he was working at K.K. Nagar Depot in Stores on 06.08.1989 he had committed certain act of misconduct. It is pertinent to note that nothing should not go out without knowledge of the store staff. Hence, the charge memo was issued containing three charges.
The first respondent submitted his explanation on 03.05.1990. The petitioner management not satisfied with the explanation, an enquiry was conducted after giving an opportunity to the first respondent and also following the principles of natural justice. The enquiry officer had submitted his findings on 05.05.1992 informing that the charges levelled against him were held proved. Based on the enquiry officer's findings, a second show cause memo dated 09.01.1993 issued to the first respondent calling for his explanation. He had submitted his explanation, which was not satisfactory. Hence, the petitioner Corporation issued a final order dated 10.07.1995 removing him from service.
The Labour Court erred before passing the award without considering the findings of the enquiry officer in his report he clearly exhibited both delinquent employee Krishnamoorthy and his evidence Rajamanickam in-charge of Stores on that day on night duty, who is also one of the delinquent who existed in the store in between 01.30 to 02.45 a.m., as these contentions were acceded in their evidences and cross-examination.
Apart from this, the management witness Annamalai, security staff, evidenced that such Fleet No. GE455 was stationed inside the Depot on that day/night in between 01.30 to 02.45 a.m. Such situation favouring them had planned to steal the bearings and thereby already cleaned 13 Nos. of bearings wrapped by gunny bags kept under the ladies seat of the lift bus which would have been ready to be shed out at about 03.15 a.m.
Nobody was allowed in the stores. The above store staff only could do it and in order to collect the bearings Krishnamoorthy, stayed away from the work spot at 03.00 a.m., in an another lift bus without getting permission from the Assistant Branch Manager (Technical), who was on duty on that day. In this aspect, it reveals that he had played dual role by staying away from the incident spot and to unload the bearings from the bus outside the Depot, and escaping himself from the charges. His preplan has been proved by evidence and circumstances. But, the Labour Court has not taken it into account for consideration before passing the Award.
The Labour Court, without considering the gravity of the charges committed by the first respondent, findings of the enquiry report, explanation and past record of the first respondent and material evidences on record, passed the impugned Award dated 03.04.2002 and the second respondent set aside the order of dismissal of the first respondent and directed the petitioner Corporation to reinstate the first respondent with continuity of service with back wages and other attendant benefits. Aggrieved by the said order, the above writ petition has been filed.
The first respondent has filed a counter statement and resisted the writ petition. He has submitted that he was working under the writ petitioner management as Store Assistant and his last drawn wages were Rs. 3,407.50 per month. He worked sincerely and diligently with entire satisfaction of all superiors. While so, the writ petitioner management issued a charge memo dated 29.09.1989 framing three charges against him. He denied all the charges framed against him under his explanation dated 03.05.1990. Not satisfied with his reply, the management conducted a domestic enquiry.
In the said enquiry, he examined himself as one of the workers and also examined Store Keeper namely M.K. Rajamanickam as a witness and reiterated his stand that he was in no way connected with stealing the 13 Nos. of bearings belonging to the Corporation. The Store Keeper Rajamanickam also deposed that there was no stock of bearings on that particular day. But, unfortunately the enquiry officer found him guilty of charges and based on that findings he was removed from service by the order dated 10.07.1995.
Against the order of dismissal, he raised an Industrial Dispute before the I-Additional Labour Court, Chennai in I.D. No. 609 of 1997. The Labour Court, after elaborate enquiry passed an award dated 03.04.2002 directing the management to reinstate him in service with continuity of service, back wages and all other attendant benefits. The Labour Court has given convincing reason for his conclusion. Against the award of the Labour Court, the management has filed above writ petition.
The learned counsel appearing for the appellant has argued that at the time of the incident, the first respondent was working at Avadi Depot.
While the first respondent was working at K.K. Nagar Depot, on 06.08.1989, at about 03.15 a.m., bus No. GE455 from K.K. Nagar depot operated as G.P.S. lift bus. At that time, the bus was checked by the security staff, who found 16 Nos. bearings were wrapped by a gunny bag kept under the ladies six seater in that bus. The same was communicated to the Assistant Engineer on duty. Therefore, the charge memo was issued to the first respondent herein.
After conducting a domestic enquiry, he was removed from service that too after a second memo was issued regarding quantum of punishment.
On the side of the management, one witness was examined and 12 documents were marked. The first respondent had stolen 13 numbers of bearings covered by a gunny bag and taken out from the Depot. the same was found by the security staff while it was kept under the ladies seat of the bus. The bearings were identified that they belonged to the Depot. Therefore, all the three charges were proved against the first respondent beyond doubt.
The learned counsel appearing for the first respondent has argued that the respondent was working under the petitioner Corporation from 10.07.1978 without any blemished record. The allegation against the first respondent that a gunny bag containing 13 bearings which were kept under the ladies seat in the bus and the same was found by the security staff at the entrance of the depot gate. There is no eye witness or circumstantial evidence that the first respondent had stolen the 13 bearings and put them in a gunny bag and loaded it into the bus, which was kept under the ladies seat. In the absence of eye witness, the findings of the management is an erroneous one and also dismissing him from service, which is a larger punishment. Regarding the 13 bearings, no documentary evidence i.e., store records stating that 13 bearings are missing. In the absence of such evidence, the findings of the management is not sustainable under law.
The management corporation is a State owned Transport Corporation. Therefore, necessary records are being maintained as accessories for bus vehicles, which is a substantiate document in this case. Therefore, all the three charges have been levelled against the first respondent is based on an hypothetical theory and with no material evidence. Hence, the Transport Corporation's dismissal order is against the principles of natural justice and punishment to a poor employee, who served in the depot of the corporation for 17 years with an unblemished service. Further, the second respondent's order is a well considered one and there is no shortenings in the said verdict. Before the second respondent a detailed trial was conducted, in which both sides'' evidence was examined and on the side of the employee 11 documents were marked as exhibits and on the side of the management 12 documents were marked as exhibits.
After considering all the oral evidence and documentary evidence, the learned Presiding Officer of the Labour Court has passed the impugned order without any lacuna.
After the above discussion, this Court is of the view that on the side of the Management no eye witness was examined or not shown any circumstantial evidence stating that the first respondent had stolen 13 bearings from the depot and put into a gunny bag, which was kept under the ladies seat of the bus. Further, there was no store keeper's record produced before the domestic enquiry or before the Labour Court regarding the missing of 13 bearings belonging to the said Corporation.
Further, the store keeper never made any departmental complaint that 13 bearings of the transport corporation were misplaced from the store.
Hence, there is no substantial evidence for the dismissal of the employee from the corporation.
On verifying the facts and circumstances of the case and on hearing the arguments of the learned counsels on either side and on perusing the impugned order of the second respondent, this Court does not find any shortcomings in the conclusion arrived at to set aside the Labour Court's
order. As such the above writ petition has no compelling force to allow it furthermore.
Where the bearings 13 in numbers were found is not of importance in this case. Where and how the bearings were missing and that too from the material stores, is the pertinent question, which was not proved through material evidence. Further, the bus is operating for the public and the public is also travelling by the said bus, as such the employee is not in control in the occupation of the entire inner portion of the bus, since it is earmarked for public usage, but the bus is not only used by public but also assigned some times for bus crews. In the result, the above writ petition is dismissed and the Award in I.D. No. 609 of 1997, dated 03.04.2002, passed by the second respondent is confirmed. Consequently, connected miscellaneous petitions are closed. No costs.