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TMI Blog2014 (2) TMI 584X X X X Extracts X X X X X X X X Extracts X X X X ..... for two days viz., on 21.03.2007 and 22.03.2007, to attend the funeral function of his uncle, which was duly sanctioned by the second respondent. On 23.03.2007, when he joined duty, he found that out of 9 coils, 8 coils of wire were found missing which he had kept in the electrical room before proceeding on leave and the empty box was found in a corner. Therefore, he reported the matter to an official of the second respondent College by name Anbalagan. The petitioner was informed by the said Anbalagan that he will look into the matter and was asked to attend the work. On 26.03.2007, the said Anbalagan called him and asked him to give a written complaint to the Managing Trustee of the respondent. Accordingly, he gave a written complaint addressed to the Managing Trustee. On 27.03.2007, Anbalagan called him to his room and forced him to sign a letter without disclosing the contents of the letter. But orally he was informed that he should pay a sum of Rs.16,200/- being the cost of the missing coils. When the petitioner asked him how he was held liable, he had merely stated that he was personally responsible for the loss. No enquiry was conducted and no efforts were taken to trace the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n dispute, by a memo dated 27.03.2007, he was asked to make good the loss of Rs.16,200/- being the value of the missing coils. After the receipt of the memo, the petitioner made a false complaint to the police station at Korattur complaining about the missing of coils. Instead of remitting the amount, he pursued the complaint with the Police without reference to the Management and it was highly reprehensible and high handed. He had no authority to make such a complaint to the Police. The Trade Union to which the petitioner was a member also made irresponsible allegations about the Management. In their letter, it was stated that the letter given by the petitioner was obtained by force and therefore, they sought for return of the letter. On receipt of the complaint, a Sub-Inspector and a Constable from the Korattur Police Station came to the College and made enquiries about the missing coils. During the enquiry, the petitioner had stated that he suspected the hand of the Management. The investigation by the Police created a sensation in the college. The petitioner alone was responsible for the missing of coils and hence, after due show cause notice and enquiry, the petitioner was dis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t set aside the domestic enquiry and proceeded to upheld the report submitted by the Enquiry Officer, one has to see whether the petitioner was given proper opportunity to defend himself and if so, as to the charges which are to be faced by the workman and the findings recorded by the Enquiry Officer was legal and proper. 13. In the present case, by a memo dated 27.03.2007, the second respondent informed the petitioner that 8 numbers of coils were found missing. Since it was under his custody, he alone was responsible, in order to make good the loss suffered by the Management, he should remit a sum of Rs.16,200/- immediately to the Trust account. In the first order passed by the second respondent, the second respondent had merely attempted to recover the amounts from the petitioner holding him vicariously liable for the loss. There was no allegation of any misconduct or ulterior motive on his part on the missing of materials. It is only when the petitioner went before the Police and sent a letter through his trade Union, a Show Cause Notice was given to him on 30.04.2007. In the show cause notice, once again the College Management after holding him responsible for the loss of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... visiting to the campus had created a sensation. When the Police came to the Campus, the petitioner gave a statement that he was suspecting the Management and that was again a condemnable action and it is beyond crossing the limits. The letter sent by the Trade Union must have been written at the instance of the petitioner and it contains all false statements and if such statement was obtained by the Management, there was no necessity for the Management to issue a memo dated 27.03.2007 to the petitioner, marked as Ex.M5 in the enquiry. The petitioner himself was responsible for the letter written by the Trade Union. It was done only to shift the blame on the Management. Merely because the petitioner was a member of the Union, no allegations was made. Once he was accused of theft and the charges were proved, it is immaterial as to which Union he belongs. 17. In the Enquiry report dated 02.08.2007, marked as Ex.M12 before the Labour Court, the Enquiry Officer answered the four issues as follows:- The Enquiry officer had stated that since the 8 coil wires which were lost was entrusted to the petitioner, he alone was responsible. Since there was entrustment and accountability on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... indings of the Enquiry Officer. In that order, they have nowhere stated that the petitioner had stolen the coils. On the contrary, they had only took exception to the petitioner moving the Police and not informing the Management in advance and also sending false notice to the Union. On the basis of the proved charges by the Enquiry Officer, he was dismissed from service. If the Management agreed with the Enquiry Report and did not hold the petitioner guilty of theft but on being entrusted and accountable for the material he was responsible for making good the loss, it is not clear as to how the Labour Court can find the petitioner guilty of theft. On the other hand, the Labour Court did not even refer to any of the documents marked before it and relied upon the submissions made during the proceedings before it. Therefore, the submission of the learned counsel for the second respondent, that it is unnecessary to frame any specific charge sheet, cannot be accepted. There is no gainsaying that whatever the Management want to accuse him of, the worker had understood and therefore, the Court cannot take exception for not framing a chargesheet. 21. On the other hand, it has been held by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be drawn is that it is a case of theft by the petitioner." "....In the domestic enquiry a conclusion has been reached and a finding rendered holding the petitioner responsible for the loss of the material or in other words holding the petitioner guilty of theft of the materials, for after all the missing of the materials could not be explained in any other manner other than the manner in which the management has explained, the version of the management finding acceptance at the hands of the Enquiry officer on an appreciation of the materials. I am impelled to think that such a view that the petitioner is responsible for the disappearance of the materials is quite possible and it would not be for this Court to substitute any other inference and an inference that has to be inevitably drawn has been drawn. Obviously a logical as also quite a reasonable conclusion has been reached holding the petitioner responsible. The finding of the Enquiry Officer in the domestic enquiry does not call for any interference for the reason that the enquiry has been conducted fairly and properly and conclusion just and reasonable in the circumstances has been reached." 23. While the findings of the La ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tribunal is right insofar as it holds that the charges communicated to the respondent are vague. In the ordinary course we would have directed the disciplinary authority or the authority which framed the charges to particularise the charges and then to proceed with the enquiry but it appears that the respondent has hardly about seven or eight months to go for retirement. Having regard to the facts and circumstances of the case, we are of the opinion that the matter should end here Therefore, the leaned counsel for the Management was not correct in stating that it was not necessary to frame a specific charge regarding theft and that the petitioner had understood the same. 26. First of all, there is no specific charge of theft against the petitioner and consequently, the Enquiry Officer had not found the petitioner guilty of theft of the coils. It was that enquiry report which was accepted by the Management which led to his dismissal. But it was the Labour Court which rendered a finding of theft which was not even the case of parties before the Labour Court. The Labour Court had made a special pleading on the basis of the arguments advanced by the counsel for the Management. The pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as may be prescribed for making such deduction. 29. The Supreme Court has held in ever so many cases that if any recovery from the pay has to be made as it results in civil consequences, the employee must be heard before any such recovery is made as part of the principle of natural justice. Hence, in the present case ordering of recovery without due enquiry is bad in law. 30. In the present case, this Court is of the view that no exception can be taken with reference to the petitioner moving the Police station with a criminal complaint. For his causing notice issued through his trade union can never be said to be a misconduct. In so far as the loss of material is concerned, it can be only fixed by civil liability as there was no allegation of theft under any part of the proceedings. Since no enquriy was held by giving a notice and on that score the finding rendered by the Labour Court in this regard are perverse and the impugned Award is liable to be set aside. 31. Though in the pleadings before the Labour Court, they had stated that they lost confidence in the petitioner, the loss of confidence cannot be easily inferred in the matter of reinstatement. The Supreme Court had an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r Court/Industrial Tribunal in interfering with the quantum of punishment awarded by the management where the workman concerned is found guilty of misconduct. The said area of discretion has been very well defined by the various judgments of this Court referred to hereinabove and it is certainly not unlimited as has been observed by the Division Bench of the High Court. The discretion which can be exercised under Section 11-A is available only on the existence of certain factors like punishment being disproportionate to the gravity of misconduct so as to disturb the conscience of the court, or the existence of any mitigating circumstances which require the reduction of the sentence, or the past conduct of the workman which may persuade the Labour Court to reduce the punishment. In the absence of any such factor existing, the Labour Court cannot by way of sympathy alone exercise the power under Section 11-A of the Act and reduce the punishment. As noticed hereinabove at least in two of the cases cited before us i.e. Orissa Cement Ltd.5 and New Shorrock Mills6 this Court held: Punishment of dismissal for using of abusive language cannot be held to be disproportionate. In this case ..... X X X X Extracts X X X X X X X X Extracts X X X X
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