TMI Blog2014 (2) TMI 585X X X X Extracts X X X X X X X X Extracts X X X X ..... evidence at all, as far as the charge of chocolates found with the petitioner being stolen ones is concerned. It was for the management to prove that the chocolates in possession of the petitioner were stolen chocolates and not for her to show that they were not stolen and the management cannot be said to have discharged its burden even on the basis of preponderance of probabilities - there was actually no complaint of theft of chocolate – since the misconduct of the petitioner cannot be said to have been established by the respondent-management, the petition deserves is allowed – thus, the petitioner is ordered to be reinstated in service since by declining the relief of reinstatement to her this Court would be in fact punishing her even after she stands exonerated of the charge of theft – Decided in favour of Petitioner. - W.P.(C) NO. 4433 OF 2007 - - - Dated:- 5-3-2012 - P. K. BHASIN, J JUDGMENT This writ petition has been filed under Article 226 of the Constitution of India by the petitioner for issuance of a writ of certiorari quashing the order dated 18.07.2006 and final award dated 19.12.2006 passed by the Labour Court in a case relating to the industrial dispu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d during the enquiry. 5. The Labour Court had framed the following issues for trial: (i) Whether the enquiry conducted against the workman/claimant was not fair or proper? (ii) Whether the dismissal of Smt. Suresh Yadav is illegal or unjustified? (iii)Relief. 6. Issue no. 1 was treated as a preliminary issue and vide order dated 18.07.2006 it was held by the Labour Court that a fair and proper enquiry was conducted and in that enquiry the charge against the petitioner had been duly proved. However, the Labour Court while passing the final Award came to the conclusion that the punishment of dismissal from service given to the petitioner was shockingly disproportionate to the charge levelled against her and passed the following order:- "..........................................I am of the view that it will be appropriate to give direction to the management to reconsider the penalty imposed. I am accordingly directing the management to reconsider the penalty imposed in this case and give her any other punishment to the workman proportionate to the misconduct committed which may not necessarily mean taking the workman back on duty and communicate the same to the workman wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arned counsel for the petitioner that the only thing established during the enquiry was that the petitioner was found in possession of some chocolates at the time when her bag was checked by the security guard Mr. Vinay Kumar and that mere possession of chocolates by the petitioner did not mean that those chocolates were stolen by her. In fact, during the enquiry the security guard Mr. Vinay Kumar Sharma(MW-3) himself had stated in his evidence that when he had asked the petitioner to show him her bag she had told him that she was having chocolates in her bag and before the enquiry also when he had informed his Chief Security Officer about the recovery of chocolates from the petitioner vide his complaint dated 19.7.2000(marked as Ex.M-7 in the enquiry) it had been stated by him that when he had asked the petitioner to get her bag checked she had told him that there were chocolates in her bag. Therefore, it was rightly submitted by the counsel for the petitioner that when the petitioner herself had told the security guard before checking that she was having chocolates in her bag then it became all the more necessary for the management to have led further evidence by examining someon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uld not be concluded on the basis of evidence of the checking officials only that the petitioner had stolen the recovered things, which, in fact, even the Labour Court had accepted in the final Award to be meant to be thrown in the garbage which had led it to conclude that the punishment awarded to the petitioner for stealing garbage items was shockingly excessive. 13. When during the course of hearing of the writ petition it was asked from the learned counsel for the respondent-management as to why no evidence was adduced to show that there was a short-fall in the stock of chocolates on the day of the checking of the petitioner he had simply submitted that the management had adduced the best evidence it had and now it could not be explained as to why evidence of the store keeper or any one else was not adduced to show that there was theft of chocolates and perhaps it was not adduced since actually there was no complaint of theft lodged by anyone from the side of the management of British Airways. However, it was also submitted that normally when an employee comes to duty he/she discloses her personal belongings at that time and in the evening when duty is finished and upon check ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dismissal is passed, which would expose the enquiry to the criticism that it was undertaken as an empty formality.........................." 14. Therefore, the Labour Court was obliged to see if there was some evidence adduced in the enquiry to establish the real charge levelled against the petitioner, which was that she had stolen chocolates, and it could not wash off its hands, like the way it has done, by simply observing that it was not sitting in appeal over the findings of the enquiry officer. 15. Upon examining the evidence adduced in the enquiry, this Court has found that this is not a case where there was some evidence before the enquiry officer on the basis of which the petitioner could be held guilty of having committed theft and, in fact, this is a case of no evidence at all, as far as the charge of chocolates found with the petitioner being stolen ones is concerned. There also is no force in the submission of the learned counsel for the respondent that once recovery of chocolates from the petitioner was established the burden shifted to the petitioner to show that those chocolates were not stolen ones. It was for the management to prove that the chocolates in poss ..... X X X X Extracts X X X X X X X X Extracts X X X X
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