M.M.DAS, J. O.J.C. NO.9641 OF 1998 (Decided on 08.10.2010) CHAKRADHAR PADHIARY ……….. Petitioner. .Vrs. P. O., INDUSTRIAL TRIBUNAL, & ANR. ……….. Opp.Parties. CONSTITUTION OF INDIA, 1950 – ART.311 (2). For Petitioner - M/s. G.C.Mohapatra, M.K.Panda (A) & H.K.Sahu. For Opp.Parties- M/s.Shyamananda Mohapatra, G.Mohanty, P.C.Das, J.C.Mishra, P.C.Biswal, B.Rout, P.K.Panda, S.K.Mishra, S.Sahoo, B.P.Nayak. M. M. DAS, J. The petitioner, who is the workman of the management-opposite party no.2 - M/s. Charge Chrome Plant, Ferro Alloys Corporation Limited, has called in question the award dated 20.09.1997 (Annexure-12) passed by the learned Presiding Officer, Industrial Tribunal, Bhubaneswar in I.D. Case No.10 of 1987. 2. The petitioner was appointed as a Trainee (C) under the opposite party no.2 and on 15.10.1982 he was absorbed as a Security Guard. A theft occurred in the factory premises of the Management and it was alleged that on 10.11.1985 there was seizure of stolen articles from the house of the petitioner by the Bhadrak (Rural) Police. By an order dated 10.11.1985, the petitioner was placed under suspension pending inquiry into the charges. A proceeding was drawn up against the petitioner for the alleged theft of some company materials, namely, some electric bulbs and some wires. The petitioner submitted his show cause on 02.12.1985 and thereafter, on the appointment of an Enquiring Officer, the inquiry proceeded. During the inquiry, three witnesses were examined on behalf of the Management and one from the side of the delinquent. The Enquiring Officer submitted his report to the opposite party no.2 holding the petitioner guilty. Copy of the inquiry report is alleged to have not been supplied to the petitioner. 3. By order dated 12.02.1986, the opposite party no.2 dismissed the petitioner from service, upon which the petitioner raised an industrial dispute. A reference was made to the Industrial Tribunal by the Labour Department of the Government under the Industrial Disputes Act, 1947. The reference was as follows:- “Whether the action of the management of Charge Chrome Plant, FACOR, Randia, Bhadrak in dismissing Sri Chakradhar Padhiary, Ex-Junior Helper from services from 12.2.86 vide their order No.41/86 dt.12.2.86 is legal and/or justified ? If not, to what relief Sri Padhiary is entitled” ? 4. The learned Presiding Officer upon receipt of the said reference registered the same as I.D. Case No.10 of 1987 and issued notice to the workman and the Management to file their respective statement of claim and written statement. On appearance, the parties filed the same. The Presiding Officer, Industrial Tribunal framed the following issues: i) Whether the reference is maintainable? ii) Whether the domestic enquiry conducted against the workman is fair and proper ? iii) Whether the action of the management of Charge Chrome Plant, FACOR, Randia, Bhadrak in dismissing Sri Chakradhar Padhiary, Ex-Jr.Helper from Services from 12.2.86 vide their order No.41/86 dt.12.2.86 is legal and/or justified ? If not, to what relief Sri Padhiary is entitled ? 5. Upon framing the issues the Presiding Officer took up issue No.(ii) first, as the preliminary issue and by order dated 10.02.1992 held that the domestic inquiry conducted by the Management was not fair and proper. The Management challenged the said order in O.J.C. No.3919 of 1992 before this Court. A Division Bench of this Court by order dated 12.12.1992 declining to interfere with the matter dismissed the writ petition observing that the Tribunal may proceed with the matter and it would be open for the employer to establish through evidence with regard to the propriety of the order in question. Thereafter, the management upon filing an application, the matter was taken up giving opportunity to the management to prove its case on merit against the petitioner and the workman to rebut the same. 6. With regard to issue No.(i) as to whether the reference is maintainable or not, the learned Tribunal has come to the conclusion that the reference is maintainable, which is conclusive. With regard to issue No. (ii), which was found that as the Tribunal has earlier held that the domestic inquiry was not properly conducted which was confirmed by this Court, the said issue has lost its significance. The only issue that remains to be adjudicated by the Tribunal was issue No.(iii), which is same as the reference. In the charge-sheet, which was framed against the petitioner and has been made as Anneuxre-2 to the writ petition, it appears that the following charges were framed. “CHARGESHEET” Further to our letter of suspension reference No.CCP/PNL/820/85 dated 10th November, 1985, you are charged with the following acts of misconduct: It has been reported that you were having in your possession in your House in the Village Chengagadia properties which were stolen from the Company’s premises and for which the Company had lodged complaint with the police in sometime past. On 10th November, 1985, Police personnel of Bhadrak (Rural) Police Station, recovered the following properties, which belongs to Company and which were stolen from Company’s premises, as mentioned above. LIST OF PROPOERTIES i) Helogen fitting with Bulb 1000 Wt 2 (Phillips Mak .. Three Nos. ii) Sodium Vapour Lamp Ballast Choke 250 Wt .. Two Nos. iii) Mercury Vapour Lamp Ballast Choke 250 Wt .. One No. iv) 500 Wt. Bulb Screw Type .. Three Nos. v) 500 Wt. Holder .. Four Nos. vi) P V C Wire .. 100 Mtrs. Further, in some of the above properties seized by the Police from your House in the village Chengagadia and taken to their custody bear “FACOR” mark on them. Hence from the above it shows that either you yourself have stolen the properties from the Company’s premises or you have received the same from someone who had stolen with your knowledge. The above acts of yours constitute serious misconduct in employment. Looking to the serious nature of the misconduct alleged against you, you have been suspended effected from 10th November, 1985, pending enquiry. You are, however, required to show cause in writing within 48 hours of receipt of this Charge-sheet as to why severe disciplinary action should not be taken against you, failing which the matter will be decided ex parte.” 7. It, therefore, transpires that the crux of the allegation of the management was theft of articles, which were found in possession of the workman in his house in village Chengagadia and were seized by the police from his house. It would be pertinent to state here that on the allegation of theft, G. R Case No.1128/85 was registered, investigated and charge-sheet was filed against the petitioner and another accused. The two seizure witnesses while being examined by the criminal court, namely, Rabindra Kumar Naik and Kailash Chandra Sahani, stated that police has not seized anything in their presence from anybody. The criminal case ultimately ended in acquittal of the petitioner by judgment dated 29.09.1992. The statements of the seizure witnesses given before the learned Magistrate were marked as Exts. B and B/1 and similarly, the seizure lists were marked as Exts. A and C and the judgment of acquittal passed in G.R. Case was marked as Ext. D. The witnesses examined before the Presiding Officer of the Industrial Tribunal with regard to the seizure, from the side of the management, have given prevaricating statements. For example, one Shri Bhagirathi Prasad Das, the Chief Security Officer of the opposite party no.2 stated before the Tribunal that he was present, when the police seized the articles and Ext.6, which is the seizure list, was proved by him. Though he stated to have put his signature in the seizure list, but on being confronted, it was found that he was not the signatory to the same. He also 3 stated that he is unable to say if the articles were physically seized from the house of the two persons and further stated that the articles were seized at the police station. None of the other witnesses examined by the management have proved the seizure of the stolen articles from the house of the petitioner. The Tribunal, however, basing on surmises, in Paragraph-8 of the award, recorded the following findings:- “8. Learned Advocate for the second party – workman contended that R.K. Nayak and Kailash Chandra Sahani,k the named persons of the seizure list, Ext. 6 have not been examined in this Tribunal, further, their testimonies marked Exts. B and C are available on record in which they have disowned to be the witnesses of the seizure of the seized materials from the house of Chakradhar Padhiary and on these materials on record, the dismissal of the second party – workman is not sustainable. On the other hand, M.W. No. 2, the informant has said that he is not a witness to the recovery of materials from the house of Chakradhar Padhiary, but has said that he was told by the police as well as by M.W. No.3 that the stolen articles of FACOR has been recovered from the house of Chakradhar Padhiary, he came to the Police Station with Srikant Bisoi (M.W. No.4) and saw the recovered materials at the Police Station. M.W. No.3, the lone eye witness to the factum of recovery, has said that he had seen that the police surrounded the house of Chakradhar Padhiary and recovered electrical equipments, wires etc. and brought the same underneath the ‘Pinda’ of Chakradhar Padhiary’s house, prepared the seizure list and took away the seized materials in the vehicle. M.W. Nos. 2 and 4 though are not eye witnesses, but their testimonies that they found the seized materials belonging to the ‘FACOR’ at the Police Station cannot be said to have suffered in any way. In fact, the second party – workman and Bankanidhi Sendha, M.W. No. 3 belong to the same village of Chengagadia. It has not been brought out from the testimony of M.W. No.3 the reason for which M.W. No. 3 will speak lie against the second party – workman. It cannot be assumed that when the police has conducted raid to the house of a person at 6.45 A.M. there will be only two witnesses present in the vicinity. There is no unreasonableness in the testimony of M.W. No.3 to discredit his testimony. By Exts. 3/2 and 3/3 the security of the first party – management have been informed on 6.11.85 and 8.11.85 of the theft of Halogen Fittings with bulb and wires from the plant premises of the first party. In fact, there is no eye witness to the commission of theft. Ext. 3/1, F.I.R. of this case against the second party – workman was lodged on 9.11.85 which also stands confirmed vide Ext. D. The seizure list, Ext. 6 transpires that the Halogen Alight with the word ‘FACOR’ engraved on it, have been recovered from the house of Chakradhar Padhiary on 10.11.85. Legal presumption is always available against a person who is in possession of stolen articles that he has committed theft of those articles, unless the presumption is rebutted. In this case, the presumption has not at all been rebutted. The un-rebuttal presumption discussed above would suffice to hold that the stolen articles were recovered from the house of the second party – workman”. 8. Though a counter affidavit has been filed in this writ petition on behalf of the management, but none appeared, when the matter was taken up for hearing on their behalf and nothing substantial has been brought out in the counter affidavit,. Countenancing the statements made on behalf of Mr. Mohapatra, learned counsel for the petitioner. It further appears from the award that the Tribunal has recorded that non- examination of the two seizure witnesses has no material bearing in this case as they 4 have disowned to be witnesses to the factum of seizure and examining them would not have enhanced the case of the management any further. 9. In this factual backdrop coupled with the materials produced by the workman before the Tribunal that he has not been gainfully employed during the interregnum for which he has led material evidence, the only point, which remains to be determined in this case is as to whether this Court in a writ of certiorari should interfere with the award or not. It is settled position of law that while exercising jurisdiction under Article 226 of the Constitution; this Court does not act as an appellate authority. Its jurisdiction is circumscribed by limits of judicial review to correct errors of law or procedural errors leading to manifest injustice or violation of principles of natural justice. But, however, it is also settled that an order can be set aside, if it is based on extraneous grounds or there are no grounds at all for passing such order or the grounds are such that no one can reasonably arrive at the conclusion as has been arrived at. From the facts of the present case, as it is crystal clear that the charge was solely in respect of seizure of stolen articles from the house of the petitioner and the seizure has not been proved and the criminal case ended in acquittal of the petitioner inasmuch as before the Tribunal, no materials were produced nor any evidence was adduced on behalf of the management to prove such seizure of the stolen articles from the house of the petitioner, the entire conclusion of the Tribunal is found to be based on surmises and conjectures. The fact, as delineated therefore, clearly shows that no one can reasonably arrive at the conclusion as has been arrived at by the Tribunal on the evidence adduced before it. 10. This, according to me, is sufficient ground to set the award, inasmuch as, it is seen that the Tribunal has failed to apply its judicial mind to the facts of the case. The Tribunal has not gone into the question as to whether the petitioner was gainfully employed during the period when he is out of service, being dismissed in the proceeding. The materials produced before this Court clearly make out a case that the petitioner was not gainfully employed during the said period. 11. In view of the above conclusions, the impugned award dated 20.09.1997 passed in I.D. Case No.10 of 1987 is quashed and it is directed that the petitioner should be reinstated in service by the opposite party no.2 within a period of thirty days from the date of communication of this judgment. The period during which he was out of service shall be treated to be included in his period of service. With regard to back- wages, as the opposite party no.2 - management has not got any benefit from the petitioner, according to me, the petitioner should be paid 25% of the back-wages from the date of his dismissal till the date of reinstatement. 12. With the aforesaid observations and directions, the writ petition is allowed. No costs. Writ petition allowed. 5