IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 16.11.2010 CORAM: THE HONOURABLE MS. JUSTICE K.B.K.VASUKI W.P.No.111 of 2009 The Management of Global Calcium Pvt Ltd., (formerly known as Calcium (India) Pvt Ltd.,) S125 SIPCOT Industrial Complex Hosur Post, Dharmapuri District. .. Petitioner Vs. 1.The Presiding Officer, Labour Court, Vellore. 2.G.Chandran .. Respondents Writ petition is filed under Article 226 of the Constitution of India praying for issuance of Writ of Certiorari to call for the records of the first respondent in ID.No.1045/93 and to quash the award dated 07.08.2008. For Petitioner : M/s.T.S.Gopalan & company. For Respondent : M/s.J.Narayanamurthy for R2. O R D E R The writ petition is filed against the award dated 07.08.2008 made in I.D.No.1045 of 1993 on the file of 1st respondent and to quash the same. 2. The petitioner is engaged in manufacturing bulk drugs and the 2nd respondent was during the relevant point of time working as C-Grade workmen in the petitioner factory. During February 1991, the head of maintenance department had during the course of routine visit found copper bars and electric motors missing from the department. He ordered for the search but the material could not be located and the same compelled him to lodge police complaint against two persons by names Martin who resigned from the job during 01.01.1991 and Chinnasamy. However the police has in the course of investigation implicated two more persons one among whom is the 2nd respondent herein who was employed as C-Grade workmen in the same department and the investigating officer had in the course of his investigation arrested all the four person and had also remanded them to judicial custody. 3. In the meanwhile, the suspected employees were placed under suspension and charge memo was also issued to them for the following acts of theft, fraud, dishonesty in connection with the company business or theft of any employees property with the establishment, commission of any act, conduct subversive of the https://hcservices.ecourts.gov.in/hcservices/ discipline of the establishment" and they are called upon to submit their explanation and the delinquent employees submitted their explanation and not satisfying with the same departmental enquiry was initiated against them and the departmental enquiry was conducted in the course of which witness are examined and the enquiry officer submitted his report finding all the four employees to have connection in the act and are hence guilty of the charges levelled against the employees. The disciplinary authority has on receipt of the enquiry officers report issued the 2nd show cause notice to the delinquents calling upon them to show cause as to why they should not be dismissed from service and the delinquents have also submitted their explanation. However the disciplinary authority has on 29.09.1992 passed the final order thereby dismissing the petitioner from service with immediate effect for the proven charges. 4. As against the order of dismissal, the employee raised an Industrial Dispute and the reference was taken up as I.D.1045 of 1993 before the 1st respondent/Tribunal. The I.D. was originally disposed of against the employee and the employee challenged the award by filing W.P.No.10849 of 1997 and our High Court in by order dated 24.08.2008 pleased to set aside the award and remanded the matter for fresh disposal by providing due opportunity to both parties to establish their rival contention with regard to the validity of the domestic enquiry and to dispose of the I.D. within the specified time and after remand the respondent management is permitted to produced additional documentary evidence. 5. However, the workman has after remand not pressed his defence against the validity of the domestic enquiry and the endorsement was made by the learned counsel for the petitioner workmen on 16.06.2008 to the effect that the petitioner workmen has not questioned the validity of the domestic enquiry and restricted his defence only against the correctness and legality of the findings of the enquiry officer. The I.D. was, after enquiry, disposed of by order dated 07.08.2008 in favour of the petitioner/workman on the ground that the evidence of the co- delinquent proved non-involvement of the petitioner in the act of theft from the factory and the finding of the enquiry officer against the workman with regard to the charge of theft is not fair and proper and the petitioner is hence directed to be reinstated with continuity of service without backwages and other benefits. Aggrieved against the same the petitioner company has preferred the present writ petition. 6. According to the learned counsel for the petitioner, the first respondent/Labour Court has reversed the findings of the enquiry officer contrary to and on mis-appreciation of the evidence available in this regard, and ordered reinstatement by overlooking the fact that the act of the 2nd respondent is such and the company who lost the confidence and trust upon him cannot be compelled to keep him in service. It is further argued by the learned counsel for the petitioner by relying upon the judgments of Supreme Court reported in (i) 2008 (3) SCC 729 in West Bokaro Colliery (TISCO LTD) V. Ram Pravesh Singh (ii) AIR 1971 SC 2414 Ms.Francis Klien and Co. Pvt., Ltd. V. The Workmen and another; (iii) 2003 2 LLJ 215 https://hcservices.ecourts.gov.in/hcservices/ in Assistant General Manger, TI Cycles of India Ltd., V. Presiding Officer, Labour Court and another; (iv) 2006 (6) SCC 187 in Divisional Controller, NEKRTC V. H.Amaresh and (v) 2007 (3) LLN 128 in Management of Coimbatore District Central Co-operative Bank V. Secretary, Coimbatore District Central Co-operative Bank Employees' Association and another that the relief granted by the 1st respondent is against the well laid down legal principles to the effect that standard of proof in domestic enquiry is only preponderance of probabilities and not proof beyond reasonable doubt and when there is sufficient evidence to prove the act of dishonesty on the part of the employee such findings of the enquiry officer cannot be interfered with either by Labour Court as if it were an appellate body and either Labour Court or High Court shall be slow in interfering with the findings arrived at domestic enquiry unless it is perverse and the petitioner being C-Grade workman dealing with such of those materials found to be missing was in the position of trust and confidence when the same is lost by the act as above discussed he cannot be allowed to continue in service and the courts should not direct to reinstatement him in service and the dropping of criminal investigation against him will not automatically absolve him from the domestic charges. 7. Per contra, the learned counsel for the 2nd respondent has contended that the dropping of the criminal proceedings would automatically render the departmental enquiry unjust and unfair and the findings of he enquiry officer on misconduct based on no evidence can be interfered with by the labour court for good and sufficient reason and when it finds management guilty of victimising the workmen the Labour Court can under Section 11(A) of the Industrial Disputes Act (herein after referred to as I.D.Act) sit over the findings of the domestic office and re-appreciate the evidence and the power of the High Court to interfere with by the labour court findings is limited. The learned counsel for the 2nd respondent has in support of such contention cited the authorities reported in (i) 2006 SCC (L&S) 1121 in G.M.Tank V. State of Gujarat and others; (ii) AIR 1988 SC 434 in Bhagwathi Prasad Dubey V. Food Corporation of India; (iii)1998 2 LLJ 1204 in Management of Essorpe Mills (P) Ltd., V. Presiding Officer, Labour Court, Coimabtore and another; (iv) 1998 (3) LLN 549 in Rajasthan State Road Transport Corporation V. Gopal Singh and another; (v) 2004 (3) LLJ 447 Division Bench of our High Court in Ravichandran.G V. Presiding Officer, Labour Court, Coimbatore and another; (vi) 2005 (3) LLN 705 Division Bench of out High Court in Tamil Nadu State Transport Corporation V. Presiding Officer, Labour Court, Tirunelveli and (vii) 2007 (3) LLN 128 in Management of Coimbatore District Central Co-operative Bank V. Secretary, Coimbatore District Central Co- operative Bank Employees' Association and another. 8. It is further contended by the learned counsel for the 2nd respondent, that as the petitioner is being paid wages under Sec.17(b) of I.D. Act on the ground that he is not gainfully employed anywhere after the dismissal as such his reinstatement ought to have been ordered with backwages and other benefits and the denial of the backwages and other benefits to the petitioner by the labour court is not based on any legal and sound reasonings. https://hcservices.ecourts.gov.in/hcservices/ 9. I have heard the rival submissions made on both sides and perused the records. 10. The perusal of the records reveal that the findings of the enquiry officer to the effect, that the petitioner had connection with the act of theft committed by the other co- delinquent Martin is based on the evidence of co-cum-main delinquent Martin. The Assistant Manager who is the de-facto complainant in the police case and the co-delinquent by name Martin are examined as witnesses on the side of the management before the enquiry officer and the findings of the enquiry officer is solely based upon the evidence of the co-delinquent, as if the actual persons involved in the act of theft are MW2, Martin and Sathyanarayanan and the 2nd respondent/Chandran knew about the theft and the sale of the plate by other two persons on the same day and he saw him while taking the plate and he was assured by Martin to pay his share of money and accordingly paid him two hundred rupees. Representing Rs.100/- borrowed from him and Rs.100/- extra money and he accepted the same. While re-appreciating the evidence available on record the Labour Court has come to conclusion that the co-delinquent did not prove the participation of the 2nd respondent workman in the actual act of theft and reversed the findigs of the enquiry officer. 11. In my considered view such an exercise embarked upon by the Labour Court is quite erroneous and contrary to well laid down legal principles. The Labour Court has failed to see that the scope of enquiry before the Labour Court is not equal to that of appellate court and the Labour Court cannot as an appellate court hold a roving enquiry and go to fully re-appreciate the evidence on merits and arrive at a different conclusion. Even otherwise, the evidence of co-delinquent Martin is sufficient enough to prove the connection of the 2nd respondent in the act of theft by accepting the share of the sale proceeds and in not bringing it to the notice of the officer concerned immediately after his coming to know about the same. 12. The fact remains undisputed are that the 2nd respondent workman and the main accused Martin were in charge of the materials in the same department as 'B' and 'C' Grade workman and were entrusted with the job of dealing with the materials found to be missing. The 2nd respondent has in his explanation dated 01.03.1991 marked as Ex.M4 clearly stated that Martin used to assist him while he was dealing with bar materials. He has also further admitted that he came to know about the act of theft by Martin and two others, but the 2nd respondent has not come out with the definite case as to how he come to know about the same. The 2nd respondent has at different stage put forth different theory, what is stated by him on one occasion is that he over heard the conversation of Martin and Chinnasamy inside rest house situated in CIPL and he immediately reported the same to union members and that Martin borrowed a sum of Rs.200/- from him and the same was repaid by Martin from and out of the sale proceeds of stolen materials. Here again the 2nd respondent has put forth different theory regarding the quantum borrowed by martin on one hand it is stated that it is Rs.200/- and then it is stated that he borrowed Rs.100/- and the 2nd https://hcservices.ecourts.gov.in/hcservices/ respondent asked for extra amount of Rs.100 for Sabarimalai trip and Martin paid Rs.200 to him out of sale proceeds. The admission made on the part of the 2nd respondent with regard to the knowledge of the theft and acceptance Rs.200/- from the sale proceeds is, if viewed in the light of different versions put forth by him and about the definite evidence of the co-delinquent Martin as if the 2nd respondent though did not participate in the act of theft saw him while removing the copper bar, and he knew about it on the same day and he assured him to pay his share and hence paid extra hundred rupees, out of sale proceeds of Rs.1000/- it would support the findings of the enquiry officer about the connection of the 2nd respondent in the act of theft. Had it been true that out of amount of Rs.200/- paid to him, Rs.100/- is asked for by him on his own the same should have been suggested to martin in the course of his cross examination but no such suggestion is put to him. It is also not stated by him at the first earliest possible instance. The defence raised by him was improved at every stage and the same compelled the enquiry officer to disbelieve it and to render an adverse finding on the basis of his own admission above referred to and as observed by the Supreme Court in the judgment reported in 1997 (2) LLN 585 in Vijayakumar Nigam (dead) through LRs V. State of Madhya Pradesh and others and our High Court in the judgment reported in Vol.49 FJR pg.371 in Associated Cement Co. Ltd. V. Labour Court, Coimbatore and another. 13. As rightly argued by the learned counsel for the petitioner the finding of the enquiry officer based on proper and sufficient evidence whereas the Labour Court has without properly adverting to the evidence on the side of the co-delinquent Martin simply reversed the same as if the same does not establish the connection of the 2nd respondent in the act of stealing. When the charges levelled against the delinquent employees are not only for theft, but also for fraud or dishonesty in connection with the company business or property and commission or conduct and subversive on the discipline of the establishment and though the 2nd respondent is not directly involved in the act of theft his conduct in sharing the sale proceeds amounts to an act of dis- honesty in connection with the company property and conduct subversive to the discipline of the establishment and he is hence rightly found to be guilt of the charges. 14. Though there is no quarrel over the legal principles laid down by the Supreme Court and our High Court in the judgments cited on the side of the 2nd respondent the same is not applicable to the present case. In my considered view the finding of the enquiry officer is based on sufficient evidence and there is no ground much less valid ground made out for the Labour Court to interfere with and to reverse the same and such findings of the Labour Court is totally against the evidence made available before the enquiry officer and is hence legally and factually unsustainable and the award of the Labour Court based on such finding cannot be allowed to stand and is liable to set aside. 15. In the result, the writ petition is allowed as prayed for. However any monetary benefit availed by the 2nd respondent https://hcservices.ecourts.gov.in/hcservices/ workman in pursuance of the award of the Labour Court is not liable to be recovered. No costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar tsh To 1.The Presiding Officer, Labour Court, Vellore. 1 cc To M/s.T.S.Gopalan & company., Advocate, SR.82059 W.P.No.111 of 2009 ksk(co) pmk.24.1.2011 https://hcservices.ecourts.gov.in/hcservices/