IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition (M/S) No. 379 of 2004 Kumaon Mandal Vikas Nigam Limited through its Managing Director, Nainital. … Petitioner. Versus 1. Presiding Officer, Labour Court Haldwani, District Nainital. 2. Sri Manoj Chandra Tripathi, Watchman Jari Buti Pariyojana, Kathgodam, District Nainital. … Respondents. Mr. Sandeep Kothari, Advocate holding brief of Mr. Shobhit Saharia, Advocate, learned counsel for the petitioner. Mr. K.N.Joshi Advocate, learned counsel for the respondent no.2-workman. Date April 22, 2011. Hon’ble B.S.Verma, J. (Restoration Application No. 195 of 2011) (Delay Condonation Application No. 2429 of 2011) This writ petition was dismissed for want of prosecution vide order dated 10-11-2010 passed by this Court. Heard learned counsel for the petitioner on the restoration application, which has been moved to recall the dismissal order dated 10-11-2010. The petitioner has also filed delay condonation application to condone the delay in filing the restoration application, which is duly supported by an affidavit. The applications are not opposed from other side. Grounds are sufficient to condone the delay in moving the restoration application. Accordingly delay is condoned. Delay condonation application is allowed. The order dated 10-11-2010 is hereby recalled. The writ petition is restored to its original number. The restoration application is allowed accordingly. By means of this writ petition, the petitioner has sought a writ for setting aside the impugned Award dated 4-9-2003 passed by the respondent no. 1 (Annexure No. 4 to the writ petition), whereby the punishment awarded against the respondent no.2 Manoj Chandra Tripathi vide order dated 17-1-1992 was held 2 to be illegal and was set aside. The workman was held entitled to get back the financial loss on account of the punishment. The stern warning and adverse entry in the character roll were also expunged by the award. Brief facts giving rise to the present writ petition are that the respondent no.2-workman was appointed as Machine Man Assistant in the establishment of the employer since 1979 and on 22nd June 1981, the workman was engaged in Machine at Parbat Wire Unit. It appears that the workman suffered injuries during the course of his employment and he was given treatment by the employer. But the workman could not fully recovered. On the basis of opinion of the Chief Medical Officer, the workman was removed from technical work and was appointed on the post of Chaukidar. It appears that in the night of 10/11-9-1989, theft of the cash chest of Jari Buti Yojana was committed. Consequently, the workman was chargesheeted. The workman submitted his reply. The employer had reinstated the workman in service but awarded different punishment against him. An industrial dispute was raised by the workman and the State Government referred the dispute for adjudication to the respondent no.1 under Section 4K of the U.P. Industrial Disputes Act, which reads as under:- “Whether the punishment awarded against the workman Manoj Chandra Tripathi by the employers vide order dated 17-1-1992 is illegal and improper? If yes, to what relief is the workman entitled and the details thereof?” Learned Labour Court issued notices to both the parties to file their written statement. Both the parties filed their written statement and replica as well as documents. The workman examined himself as D.W.1 and from the side of the employer Khimanand Lousali Assistant Accountant, was examined as E.W.1, G.C.Tiwari, Workshop Manager as E.W.2, Gopal Singh Rawat as E.W.3 and Tara Singh Bora, Workshop Manager as D.W.4. The workman in his written statement has stated that on the date of alleged theft, it was a holiday on account of Sunday 3 (10-9-1989). The workman was on his duty in the night of preceding Saturday 9-9-1989. It was alleged that although the workman was not in the duty of Chaukidar, still he was held responsible for the alleged theft. First Information Report was lodged in the police station and the investigation was conducted in the matter but the workman was not interrogated and no charge was levelled against him in criminal offence. On the other hand, according to the employer, the workman was doing the duty of Chaukidar in the night of 10/11-9- 1989 and there was a theft of cash amount of Rs. 10142-71, for which the workman was responsible. In the preliminary inquiry, it came to the notice that the workman was absent from his duty on the date and time of theft. The workman was placed under suspension by order dated 30-9-1989. The departmental enquiry was entrusted to Mess Manager Man Singh. The workman was charge-sheeted. The workman submitted his explanation, denied the charge and alleged that due to weekly off, he was not on duty in the night in question. After completing the departmental enquiry, the enquiry report was submitted to the Managing Director/Punishing Authority, who awarded the punishment to the workman, which gave rise to the industrial dispute before the Labour Court. The workman submitted replica to the written submission of the employer and denied the averment made in the written statement by the employer. The workman emphasized that at the time of theft, he was availing weekly off and was not required to be present on duty. It was also stated that the enquiring officer had violated the principles of natural justice. From the side of employer, rejoinder has been filed and it has been reiterated that the explanation furnished by the workman was not satisfactory, which gave rise to the departmental enquiry against the workman. All the charges stood proved and the punishment order is fully justified. The workman was afforded full opportunity to defend himself. 4 The learned Tribunal after hearing the parties and perusing the evidence led by the parties has come to the conclusion that the workman was not doing any duty on account of weekly off. The Enquiry Officer has not appeared as a witness before the learned Tribunal. No finding was recorded on the point whether the workman was availing weekly off on the night of theft or not. It was held that the preliminary enquiry was not conducted in accordance with principles of natural justice and the law. It was also held that the copy of the enquiry report was not delivered to the workman, hence the award of punishment was held to be illegal and liable to be set aside. Consequently, the impugned award dated 4-9-2003 was passed by the Presiding Officer, Industrial Tribunal. The main ground of challenge raised in this writ petition is that the workman who had been assigned the duty of Chaukidar had left his place of duty without there being a reliever to relieve the workman. On behalf of the respondent no.2-workman counter affidavit has been filed. The positive stand by the respondent no.2 in paragraph no.4 of the counter affidavit is that on the fateful night, the workman was not required to be on duty. The following averments have been made in paragraph no.4 of the counter affidavit:- “That the contents of para-4 of the writ petition as stated are denied. The deponent/respondent was not on duty on the date of incident as on that day of incident the deponent was on weekly rest. The Chemist Jadi Booti Karyalaya Kathgodam vide his order dated 09.2.1989 directed to the deponent that he will be on weekly holiday on Sunday and Shri Nain Singh Chaukidar will perform the night duty on Sunday in place of the deponent. True copy of the order dated 09.2.1989 is being filed herewith and marked as Annexure No.-CA-1 to this affidavit.” On behalf of the petitioner, rejoinder affidavit has been filed. In the rejoinder affidavit, the petitioner could not dare deny that the Chemist concerned had not directed the workman to avail 5 weekly off on Sunday and that Shri Nain Singh another Chaukidar was deputed to do night duty on Sunday in place of the workman. Learned counsel for the petitioner has vehemently submitted that since the respondent no.2 was employed as Chaukidar, therefore, it was incumbent upon him to have left the place of his duty only when his reliever had reported to duty. In reply, learned counsel for the respondent no.2 has pointed out that it has come in the evidence before the Labour Court that the key of the room where the cash chest was kept was with Gopal Singh Rawat and this witness Gopal Singh Rawat could not say that on the date of incident the respondent no.2 was on duty. Learned counsel for the respondent no. 2 further submitted that another witness Naveen Chandra Pandey Chemist, Jadi Booti Karyalaya stated that he had passed the order that the workman- respondent no.2 would avail weekly off on Sunday. Learned counsel for the respondent no. 2 has pointed out that the incident took place in the night of Sunday i.e. 10/11-9-1989. I have heard learned counsel for the parties and perused the entire material placed before this court including the memo of writ petition, the counter version and the rejoinder affidavit along with its annexures. At the outset, it may be mentioned that the scope of writ court is very limited. This court cannot sit like a court of appeal and cannot reevaluate the evidence to arrive at a different conclusion. Only the perversity of the impugned order can be examined. A perusal of the impugned award reveals that the learned Tribunal has recorded its findings, which are based on appraisal of evidence led by the parties. In paragraph no. 4 of the counter affidavit, it has been stated that under the written orders of the Chemist of Jadi Booti Karyalaya, the respondent no.2-workman was to avail weekly off on Sunday and in his place another Chaukidar Nain Singh was deputed to work as night Chaukidar in place of respondent no.2. The averment made to that effect has remained uncontroverted in rejoinder affidavit. It has not been 6 disputed that the alleged theft took place in the night of Sunday. Moreover, when the key of the room where the cash-chest was installed, was not found in the custody of the workman-respondent no.2, the respondent no. 2 could not have been held responsible in any manner. It also appears that after lodging of F.I.R. with the police, investigation took place but the respondent no. 2 was not found to be involved in any criminal offence of theft. The learned Tribunal has also recorded a finding of fact that the workman was not supplied a copy of the final enquiry report. The enquiry officer was not examined as a witness before the learned Tribunal who could be the best person to say that copy of the enquiry report was delivered to the workman before passing the punishment order against him. As such, the learned Tribunal has held that the principles of natural justice have been violated. I also find that the learned Tribunal has elaborately dealt with all the aspect of the matter and has rightly set aside the punishment order passed against the workman by the employer. The impugned award of the learned Tribunal does not suffer from any manifest error of law or perversity. The writ petition being devoid of merit is liable to be dismissed outright. The writ petition is dismissed with no order as to costs. The interim order dated 22-5-2004 is vacated. (B.S.Verma, J.) RCP