IN THE HIGH COURT OF JUDICATURE AT MADRAS DATE:08-09-2008 CORAM THE HONOURABLE MR.JUSTICE M.JAICHANDREN Writ Petition No.3636 of 2001 1.K.B.Loknathlama 2.Meena Kumari @ Manarupa Goutham .. Petitioners. (P2-impleaded as L.Rs of the deceased petitioner as per Court order, dated 23.6.2005 in W.P.M.P.No.21643 of 2005 in W.P.No.3636 of 2001) Versus 1.The Management Ponds India Limited, Block `B' 113/1, G.S.T.Road, Panchalam, Tindivanam-604 307. 2.The Presiding Officer, Labour Court, Cuddalore. .. Respondents. Prayer: This petition has been filed seeking for a writ of Certiorarified Mandamus, calling for the records and quash the award, dated 16.10.2000, in I.D.No.134 of 1995, passed by the II respondent and consequently direct the 1st respondent to re-instate the petitioner as watchman, with continuity of service, backwages and all other attendent benefits. For Petitioners : Ms.D.Nagasaila for M/s.Sudha Ramalingam For Respondents : Mr.Ravindran (R1) for M/s.T.S.Gopalan and Co. O R D E R This writ petition has been filed by the petitioner to quash the award, dated 16.10.2000, made in I.D.No.134 of 1995, passed by the second respondent labour Court and for a consequential direction to the first respondent to reinstate the petitioner as watchman, with continuity of service, backwages and all other attendant benefits. https://hcservices.ecourts.gov.in/hcservices/ 2. The petitioner has stated that he was appointed as a watchman in the first respondent company, on 6.5.81. The petitioner has been in service for nearly 14 years without any blemish. It has also been stated that the first respondent factory is situated in 14 acres of land. Only two watchmen were posted at a time, per shift, to guard the entire area. The watchmen are posted in three shifts. The first shift was from 6 a.m to 2 p.m. The second shift was from 2 p.m to 10 p.m and the third shift was from 10 p.m to 6 a.m. Since there were two watchmen per shift, normally, one of them waited near the main gate while the other went around the factory. Since the area to be guarded was huge, lights had been installed at various places in the premises. Only the front portion of the premises had a compound wall and the other portions had only a fence made up of bushes. The watchmen were provided with torch lights to enable them to go around the factory premises. There were tell-tale clocks in six places to enable the watchmen to punch in the time when they pass the clock, so that the movements of the watchmen making the rounds could be constantly monitored. 3. It has been further stated that, on 29.9.94, there was a bandh called by the Pattali Makkal Katchi, due to which all services were disrupted in the area in and around the first respondent factory. For at least five days before 29.9.94, there was a total power cut due to which the entire area including the factory premises was in darkness. The torch lights provided to the watchmen were not bright and they were not functioning properly. Since a major portion of the fencing was made of bushes, it was broken by some miscreants and there were several gaps in the fence. In the area near the gaps in the fence, bathrooms were located. Since there was water seepage from the pipes and the entire area was slushy, it was not possible for any watchman to walk through that area. Moreover, there were several broken window panes and many of the windows were without latches. Even though such defects were brought to the knowledge of the first respondent management, no action had been taken to rectify the same. 4. It has been further stated that on the morning on 30.9.94, the management of the first respondent company had complained that 26 leather bundles worth Rs.2,14,974/- were missing. Therefore, a first information report had been registered. Apart from the first information report, no other document was produced by the first respondent management to show that there was actually any material loss due to the reported theft. Though the audit reports and the balance sheets of the first respondent company were asked for by the petitioner to find out if the alleged incident of theft had been noted and accounted for, the said documents and books were not produced by the management. Therefore, it could have been a stage managed affair to cover up certain losses which might have happened due to the fault of some other persons. Such a suspicion is strengthened due to the fact that the dogs which were roaming around the premises, freely, had not barked during the night shift when the https://hcservices.ecourts.gov.in/hcservices/ petitioner was on duty. 5. Due to the alleged theft charge memos had been issued to both the watchmen, who were on duty at the time of the alleged incident, with the charges of a) Sleeping while on duty and b) Neglect or carelessness resulting in damage to Company's property or equipment. An enquiry had been conducted and the petitioner had been dismissed from service. Aggrieved by the order of dismissal, the petitioner had raised an industrial dispute, which was taken on file by the second respondent Labour Court, as I.D.No.134 of 1995. By an award, dated 16.10.2000, the Labour Court had confirmed the order of dismissal passed by the first respondent management, dismissing the petitioner from service. 6. The petitioner has stated that the Enquiry Officer, in his enquiry report, had given a clear finding that there were no materials to show that the petitioner was sleeping on duty. However, the Enquiry Officer had come to the conclusion that such a charge against the petitioner could be sustained on mere surmises. Such a reasoning is totally irrational and illogical. The Labour Court had also upheld the order of termination issued by the first respondent management, without properly considering the evidence on record and without applying its mind to the issues involved. 7. In the counter affidavit filed on behalf of the first respondent company, the allegations made by the petitioner have been denied. It has been stated that the first respondent company was having a factory at Panchalam near Tindivanam, wherein leather goods were being manufactured. The petitioner and one B.Dilliprasad Sharma were working as security guards, along with four other security guards. The petitioner and B.Dilliprasad Sharma, were in charge of the security of the factory premises from 10 p.m, on 29.9.94, to 6 a.m, on 30.9.94. They were expected to go around the factory premises, continuously, by turns, to ensure that no material is stolen from the factory premises. 8. On 30.9.94, at about 7.30 a.m, S.Sreenivasan, a Supervisor of Cutting Section reported to the Production Manager, Mohan Kumar, that 26 pieces of leather bundles were missing. Thereafter, Srinivasan and Mohan Kumar had inspected the Cutting Section and found that the glass window near the preparation table was broken. From the window, the damaged fencing could be seen. It was assessed that for stealing 26 big pieces of leather, it could have taken atleast 45 minutes to 60 minutes. The value of the stolen materials was assessed to be at Rs.2.14 lakhs. In such circumstances, both the watchmen on duty, at the time when the theft was alleged to have taken place, were issued with charge sheets, dated 30.9.94, and they were suspended from service pending enquiry. The petitioner had submitted his explanation stating that he could not be held responsible for the theft of leather pieces and there was no negligence on his part during his https://hcservices.ecourts.gov.in/hcservices/ duty hours. As the said explanation of the petitioner was not satisfactory, a domestic enquiry was held based on the charges levelled against the petitioner. 9. The petitioner had fully participated in the domestic enquiry. Mohan Kumar, the production manager and Jayaram Sharma of the security department were examined on behalf of the management. The petitioner had examined himself as a witness and he had reiterated that he was alert during the hours when he was on duty. He had also examined another security guard, Sem Prasad Sharma. After the enquiry was completed, the Enquiry Officer had submitted his findings holding that there was no direct evidence to prove that the petitioner was sleeping during the duty hours. However, he had come to the conclusion that it could be inferred due to the fact that the theft had taken place. The Enquiry Officer had also found that the charge of neglect and carelessness on the part of the petitioner stood adequately proved. Since the charges against the petitioner had been proved, the first respondent had issued a show cause notice to the petitioner, on 6.1.95, proposing the punishment of dismissal from service. On 12.1.95, the petitioner had submitted his explanation. As the explanation submitted by the petitioner was not satisfactory and in view of the gravity of the misconduct committed by the petitioner, he was dismissed from service by an order, dated 30.2.95. Challenging the said order, dated 30.2.95, the petitioner had raised an industrial dispute before the second respondent Labour Court in I.D.No.134 of 1995. On behalf of the management of the first respondent company, Exhibits M-1 to M-14 were marked by consent. The petitioner had filed Ex.W.1, the conciliation failure report. No oral evidence was let in on behalf of the petitioner, as well as the first respondent management. By an award, dated 16.10.2000, the second respondent Labour Court had held that the petitioner had not denied that the windows of the factory were broken and that valuable materials had been stolen from the factory premises. It was the primary duty of the petitioner to guard the factory and that the theft of materials, between 10 p.m on 29.9.94 and 6 a.m on 30.9.94, had been adequately proved. Since the petitioner had failed to be careful and vigilant to protect the valuable materials in the factory, the punishment of dismissal awarded to him was justified and valid and therefore, the petitioner was not entitled to any relief, as prayed for by him. 10. The learned counsel for the petitioner had submitted that the award of the Labour Court is contrary to the weight of evidence and the facts of the case. The Labour Court had failed to appreciate that it is a case of no evidence and there was no material available to prove the charges against the petitioner. The Labour Court ought to have seen that even the Enquiry Officer had given a clear finding that there is no material to substantiate the allegation that the petitioner was sleeping while on duty. The findings of the Enquiry Officer and the Labour Court are totally perverse. The trial Court https://hcservices.ecourts.gov.in/hcservices/ had failed to appreciate that in the first information report given by the management of the first respondent company, there is nothing to show that there was a loss of property from the company. It had also failed to appreciate that there was absolutely no material to prove the second charge alleging that the petitioner was negligent and careless, thereby, causing a loss to the company. 11. In fact it should have been seen that the management was guilty of negligence by not paying heed to the complaints of the watchmen that 75% of the windows had no latches and as nothing was done by them to repair the same. There was no adequate lighting near the place where the alleged theft had taken place and the torch light was not sufficient to help the watchmen to go round the premises. In spite of various complaints given by the watchmen, both oral and in writing the management of the first respondent company had not taken necessary steps to provide the facilities that were required for ensuring the security and the safety of the premises of the first respondent company. 12. Both the Enquiry Officer and the Labour Court had failed to appreciate that two watchmen were not adequate to guard the entire premises. Further, there was no evidence to show that the value of loss alleged to have been incurred by the first respondent company is Rs.2.14 lakhs. Adverse inference ought to have been made when the management of the first respondent company had failed to produce the necessary accounts statements and other documents showing the loss of 26 bundles of leather, valued at Rs.2.14 lakhs. The respondent labour Court ought to have held that the punishment of dismissal from service imposed on the petitioner is grossly disproportionate to the alleged misconduct. It should have exercised its powers under Section 11 A of the Industrial Disputes Act, 1947, to reduce the punishment imposed on the petitioner. The long years of blemishless service put in by the petitioner ought to have been taken into consideration by the Labour Court before it had come to the conclusion that the punishment of dismissal from service imposed on the petitioner was valid. 13. The learned counsel appearing for the petitioner had also submitted that the initial burden that the theft had indeed taken place at the time when the petitioner was in charge, had not been discharged by the first respondent management. There is absolutely no evidence to show that the petitioner was negligent or careless or that he was sleeping while on duty. The entire case has been built on conjectures and surmises and therefore, the charges levelled against the petitioner cannot be sustained in the eye of law. The Labour Court ought to have taken into consideration the other extraneous factors like inadequate lighting, seepage of water near the area where the theft is supposed to have taken place, insufficient number of guards, refusal by the management to provide more powerful torch lights etc, before fixing the liability on the petitioner for the https://hcservices.ecourts.gov.in/hcservices/ alleged theft which is said to have taken place, during the duty hours of the petitioner, on 29.9.94 and 30.9.94. 14. From the evidence available it is clear that the first respondent management had not shown any material to prove that the alleged theft had taken place at the time when the petitioner was on duty and that it had taken place only due to the negligence and carelessness of the petitioner. The management had done nothing to rectify the defects pointed out by the watchmen, including the necessity for repairing the broken windows. From the evidence available on record, there is nothing to show that the offence had taken place only during the duty hours of the petitioner. The exact time, when the alleged offence had taken place had not been fixed. 15. The Labour Court ought to have seen that the petitioner had made many representations to the management to take necessary measures to rectify the defects and to strengthen the security system. Such crucial aspects had not been dealt with either by the Enquiry Officer or by the Labour Court. Though an interlocutory application has been filed by the petitioner before the second respondent Labour Court for the production of the necessary documents by the management of the first respondent, to prove the loss alleged to have been incurred, such documents like the audit reports, balance sheets etc had not been filed by the first respondent management. In such a situation, the Labour Court ought to have gathered adverse inference against the first respondent management. With regard to the allegations made against the petitioner, there is no document to show that the value of the goods alleged to have been stolen is Rs.2.14 lakhs. When the petitioner had denied the charges, it is for the first respondent management to prove the same with necessary evidence, both oral and documentary. Since the first respondent management had failed to do so, it cannot be held that the petitioner is liable for the theft that is alleged to have taken place and for the consequential loss said to have been incurred by the first respondent company. Since the past record of service of the petitioner is blemishless, the Labour Court ought to have considered the same to exercise its discretion under Section 11 A of the Industrial Disputes Act, 1947, to reduce the punishment of dismissal from service imposed on the petitioner. 16. For the above said reasons, the award of the Labour Court is arbitrary, contrary to the facts and circumstances of the case, invalid in the eye of law and therefore, liable to be set aside. 17. The learned counsel appearing on behalf of the first respondent company had submitted that the impugned award of the second respondent Labour Court, dated 16.10.2000, is valid in law, as no valid ground has been made out by the petitioner in the writ petition for this Court to interfere with the said award. Since there is a clear admission by the petitioner that the theft had taken place https://hcservices.ecourts.gov.in/hcservices/ during his duty hours, he cannot be permitted to plead that it is for the management to prove the same. Since the award of the second respondent Labour Court is based on the appreciation of the available evidence, both oral and documentary, it cannot be said that it is a case of no evidence. Further, the claim of the petitioner that the findings of the Labour Court is perverse is unsustainable. The Labour Court had given its findings by giving logical reasons. Sufficient evidence was available before the Enquiry Officer as well as the Labour Court to prove that the petitioner was negligent and careless during his duty hours resulting in the loss of Rs.2.14 lakhs to the first respondent company due to the theft that had taken place when the petitioner was in charge of the security of the first respondent premises. There was sufficient direct and circumstantial evidence to prove the charges levelled against the petitioner. While the petitioner had not disputed the value of the stolen property, at any time earlier, it is not open to him to say at this stage, that there was no proof shown by the first respondent management to establish that the value of the stolen property is Rs.2.14 lakhs. It is not the case of the petitioner that the theft had not taken place as alleged in the charge sheet, dated 30.9.94. Therefore, it is not open to the petitioner to contend that the first respondent company had not suffered any loss due to the theft of materials. The petitioner had not placed any material both before the Enquiry Officer, as well as the Labour Court to substantiate his contention that he had made several representations to the management of the first respondent complaining about the lack of facilities for effectively guarding the premises. 18. From the evidence available, the Labour Court had rightly come to the conclusion that the petitioner as well as the other security guard in charge of the security of the first respondent premises, between 10 p.m on 29.9.94 and 6.00 a.m on 30.9.94, are liable for the theft that had taken place during their duty hours and for the consequent loss incurred by the first respondent company. Since it had been clearly established that the theft had taken place, during the duty hours of the petitioner, due to his negligence and carelessness, the Labour Court had upheld the order of dismissal from service passed by the first respondent management. Since the primary duty of the petitioner as a watchman is to provide sufficient security to the premises and the property of the first respondent company, he had miserably failed to discharge his duties in the manner expected of him. Since the charges levelled against the petitioner were proved, he was found guilty of serious misconduct leading to his dismissal from service. The punishment of dismissal from service, imposed on the petitioner, is not disproportionate since the charge against him had been proved for having committed dereliction of duty. The Labour Court had rightly exercised its power, under Section 11 A of the Industrial Disputes Act, 1947, by refusing to grant any relief in favour of the petitioner. Further, the factory where the petitioner had been employed was under a https://hcservices.ecourts.gov.in/hcservices/ lockout from 8.2.2006 and it was closed on 1.10.2006. Further, the petitioner had died, on 8.7.2004. In such circumstances, there is no scope for granting the reliefs prayed for by the petitioner. Since the present writ petition is devoid of merits, it deserves to be dismissed. 19. The learned counsel appearing on behalf of the petitioner had relied on the following decisions in support of her contentions: 19.1.In New marine Coal Co. (Bengal) Private Ltd., Vs. The Union of India (AIR 1964 SC 152), the Supreme Court had opined that there could be some force in the contention that negligence in popular language and in common sense means failure to exercise that care and diligence which the circumstances require. Naturally what amounts to negligence would always depend upon the circumstances and facts in any particular case. The nature of the contract, the circumstances in which the performance of the contract by one party or the other was expected, the degree of diligence, care and attention which, in ordinary course, was expected to be shown by the parties to the contract, the circumstances under which and the reason for which failure to show due diligence occurred are all facts which would be relevant before a judicial finding can be made on the plea of negligence. 19.2. In Bakshish Singh V. The State of Punjab (AIR 1971 SC 2016), the Supreme Court had held that in a case resting on circumstantial evidence, the chain of evidence must be such as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probabilities, the act must have been done by the accused. The circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. 19.3. In Delhi Cloth and General Mills Co., V. Ludh Budh Singh (AIR 1972 SC 1031), the Supreme had held that the finding of the Enquiry Officer dealing with disciplinary proceedings can be interfered with where the findings are not based on legal evidence are such as no reasonable person could have arrived at on the basis of the materials before the Tribunal. When the allegations of misconduct are levelled against the person, it is the primary duty of the person making those allegations to establish the same and it is not for the accused to adduce negative evidence to the effect that he is not guilty. 19.4. In Bhagat Ram Vs. State of Himachal Pradesh and others (AIR 1983 SC 454), the Supreme Court had held that in a petition under Article 226 of the Constitution of India, the High Court does not function as a Court of appeal over the findings of the disciplinary authority. But where the finding is utterly perverse, the Court can always interfere with the same. While coming to such a conclusion, https://hcservices.ecourts.gov.in/hcservices/ the Supreme Court had referred to its decision reported in Union of India Vs. H.C.Goel (AIR 1964 SC 364), wherein, the Supreme Court concurred with the view that if a conclusion arrived at by an authority or a person is based on no evidence whatsoever, such a conclusion which is perverse, suffers from such an obvious and patent error on the face of the record, the High Court would be justified in quashing it. 19.5. In Rajinder Kumar Kindra V. Delhi Administration through Secretary (Labour) and others (AIR 1984 SC 1805), it was held that it is well-settled that where findings of misconduct are based on no legal evidence and the conclusion is one to which no reasonable man would come, such findings can be rejected as perverse. It is equally well settled that where a quasi judicial Tribunal or arbitrator records findings based on no legal evidence and the findings are either ipse dixit or based on conjectures and surmises, the enquiry suffers from the additional infirmity of non-application of mind and stands vitiated. 19.6. In Colour Chem Ltd. Vs.