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Delhi Cloth and General Mills Co. Ltd. Vs. Dil Bahadur and anr. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtDelhi High Court
Decided On
Case NumberCivil Writ Appeal No. 869 of 1972
Reported inILR1981Delhi478; 1981LabIC1481
ActsIndustrial Disputes Act, 1947 - Sections 15
AppellantDelhi Cloth and General Mills Co. Ltd.
RespondentDil Bahadur and anr.
Advocates: R. Dayal,; A.B. Dayal and; D.K. Aggarwal, Advs
Cases ReferredSur Enamel and Stamping Works Ltd. v. Their
industrial disputes act, 1947 - sections 15 & 33(2)(b)--industrial tribunal is not a court of appeal sitting in judgment over the finding of an enquiry--competent to consider whether a proper domestic enquiry was held--standing order 27(c) & (j).; the first respondent who was employed with the petitioner as a watchman was dismissed from service after a domestic enquiry, on the charge, that on the night of 19/20-4-1971, while he was on duty from 10-30 a.m. to 6.30 p.m. at the mill gate d.c.m. retail store, goods worth rs. 20,000 were stolen showing thereby that either he was absent from his post of duty or connived with the thieves in the theft. since an industrial dispute was pending adjudication between the petitioner and its workmen the petitioner in accordance with section.....s. ranganathan, j.(1) the first respondent dil bahadur was in the service of the petitioner delhi cloth & general mills co. ltd. (dcm for short) as a watchman. after an enquiry he was dismissed from service by an order dated 24th march, 1972. at that time an industrial dispute was pending adjudication between the dcm and its workman including the respondent. the company thereforee moved the industrial tribunal (second respondent here) seeking approval of the action taken in dismissing the first respondent as required under section 33(2)(b) of the industrial disputes act, 1947. the second respondent however, by an order dated 12th july, 1972 dismissed the application of the company and refused to accord approval to its action in dismissing the first respondent. the company has thereupon.....

S. Ranganathan, J.

(1) The first respondent Dil Bahadur was in the service of the petitioner Delhi Cloth & General Mills Co. Ltd. (DCM for short) as a watchman. After an enquiry he was dismissed from service by an order dated 24th March, 1972. At that time an industrial dispute was pending adjudication between the Dcm and its workman including the respondent. The company thereforee moved the Industrial Tribunal (Second respondent here) seeking approval of the action taken in dismissing the first respondent as required under Section 33(2)(b) of the Industrial Disputes Act, 1947. The second respondent however, by an order dated 12th July, 1972 dismissed the application of the company and refused to accord approval to its action in dismissing the first respondent. The company has thereupon preferred this writ petition challenging the order passed by the second respondent as without jurisdiction and as involving an error apparent from the record and praying that this court should issue a writ of certiorari or other appropriate writ quashing the order of the second respondent dated 12th July, 1972. The facts relating to the dismissal may now be stated.

(2) The company employs a number of watchmen to look after its property and each of these watchmen is assigned to a beat on which he has to take rounds during stipulated hours. One of such beats starts from the middle of Dcm Road (a little behind the workers' gate of the Mills). This is called residential line 'A'. The beat passes through Dcm Retail Stores which is situated at the corner of the intersection of the Rani Jhansi Road and the Dcm Road and which is popularly called the Mill Gate Stores. The beat extends beyond the Mill Gate Stores up to the point where the Dcm property ends on Rani Jhansi Road which is popularly known as 'D' line. In other words this beat extends from the 'A' line to 'D' line and includes as part of it the Mill Gate Stores of the petitioner company. The whole length of beat was about 400 yards. It is common ground that the door of the Mill Gate Stores was visible from any point on the beat and that the sentry should be passing the shop once in every few minutes in the' course of his heat.

(3) On the night of. 19/20th April, 1971 the respondent had night duty on this beat starting from 10.30 P.M. on 19th April, 1971 and ending at 6.30 AM. on 20th April, 1971. He took charge of his duty at 10.30 P.M. on 19th- April, 1971 from one Virender Singh, another' watchman employed by the company. He finished his duty at 6.30 A.M. and went home. According to him at about 6.15 in the morning he had checked all the locks on the beat and found them intact. . .

(4) At about 8.15 A.M. on 20th April, 1971 Kosh Raj, another employee of the company posted at Mill Gate Stores happened to notice that the locks of the Mill Gate Stores were broken. He gave a report to the Security Officer. The first respondent was also called at about 8.45 A.M According to the company the shop had been broken into and goods of the value of about Rs. 20,000) roughly had been stolen. An F.I.R. to the above effect was lodged by the company with the Sadar Bazar Police Station, Delhi on 20th April, 1971.

(5) The petitioner company issued a chargesheet to the first respondent on 24th April, 1971. The material part of the chargesheet sheet runs as follows :

'YOU are charged with the following .'misconduct under Clause 27(c) and (j) of the Standing Orders of the Mills. On 19/20-4-71, you were on duty from 10.30 in the night to 6.30 in the morning at the Mill Gate Dcm Retail Store, Bara Hindu Rao. On that day. a theft of textile goods worth Rs. 20.000 were stolen during your duty hours from the said shop. It shows that either you were absent from your post of duty or you connived with the thieves in this theft.'

The first respondent gave a reply denying the charge that he was absent from the post of duty or had connived with the thieves. He also denied that his duty was at the Mill Gate Dcm Retail Store and pointed out that he had been posted on the main road duty which he had performed properly. This Explanationn was not considered satisfactory by the petitioner company which appointed Shri M. L. Chaudhry as an Enquiry Officer to conduct an enquiry into the charges. The enquiry followed in due course. The company examined certain witnesses and the first respondent also examined certain witnesses. In the course of the enquiry the Manager, Shri Sora Lal as well as the salesman, Shri Jai Bhagwan, who were the witnesses of the company deposed that the company had received a letter from the Inspector of Police (Special Staff), Parliament Street Police Station which was marked as Ext. M3. By this letter dated 21-5-1971. the above Inspector informed the manager of the Retail Stare as follows :

'ONE Shiv Kumar accused arrested in case Fir No. 773 dated 17-5-71 in Police Station Parliament Street, New Delhi has disclosed that he along with his 3 co-accused had committed Burglary in your Retail Store at about 2.30 A.M. on the night between 19/20-4-71 and had taken away the stolen cloth in a car. Cloth worth about Rs. 2,000 have been recovered on the instance of the accused. You are requested to send somebody to identify the cloth, today.'

The two witnesses stated that in reply to above communicatory certain employees of the company were deputed to the police station and they informed the; witnesses On their return that the cloth which had been recovered belonged to their Dcm Retail Store. Prem Chand, one of the employees so deputed confirmed this in his deposition.

(6) The Enquiry Officer came to the conclusion that the theft had taken place in the Dcm Retail Store daring the duty hours of the first respondent and that if the first respondent had performed his duties properly and honestly and if at the time of duty he had checked locks of the shop, be would have detected the theft and would have re- ported about the broken locks on the morning of 20th April, 1971,. He was of opinion that the evidence led by the employee to show that he was on his rounds all through was contradictory and unacceptable. A possibility had been suggested by the first respondent that the theft could have taken place after the duty hours but this was rejected by the Enquiry Officer as the first respondent himself had ad mitted in the course of cross-examination the,t it was day light after 5.00 A.M. and a huge crowd of workers passed through the pavement in front of the Retail Store thereafter. The Enquiry Officer also pointed out that the distance of. the patrolling area was very short and that the sepoy on duty should have passed the Retail Store every few minutes. He referred to the evidence that normally such a theft would have taken about two hours and pointed out that if the first respondent had been vigilant, there was no possibility of his not confronting, during his patrolling, the thieves when they were bringing out the goods from the retail shop. He also referred in the course of his enquiry report to Ext. M 3 coupled with the fact that the goods recovered by the said police officer had been proved to be the cloth belonging to the Mill Gate Stores. He concluded that it was proved that Dil Bahadur had been grossly negligent in the performance of his duties due to which the commission of theft became very easy. He, however, found nothing on record to show that Dil Bahadur had connived with the thieves which was the second charge that had been leveled against him.,In the result, he found the first respondent 'guilty of the charge of negligence under clause 27(j)of the Standing Orders.'

(7) On 24th March, 1972 the company wrote to the first respondent referring to the enquiry conducted against him. It was stated that the manager (who signed the letter on behalf of the company) was satisfied that the charge of negligence of duty leveled ' against the First Respondent had been 'fully established and that he was accepting the findings of the Enquiry Officer. The charge in his opinion was serious enough to justify dismissal of the respondent from service. He, thereforee, informed the first respondent that he was dismissed from the service of the Mills with immediate effect on the charge proved against him which fall under the Standing Orders after taking into account all the relevant circumstances including the past record of the service of the employee. The latter further informed the first respondent that as required by Industrial Disputes Act the company was submitting an application to die Industrial Tribunal for approval of the action taken against him.

(8) On 24th March, 1972 the company filed an application before the Tribunal seeking the grant of approval to the dismissal of the first respondent from service. In this application it was stated that the first respondent had been posted at the retail shop on the main road beat on 19/20th April, 1971 and was on duty from 10.30 P.M. to 6.30 A.M. It was stated that due to his gross negligence in remaining absent from his post the above said shop was burgled and cloth valued at about Rs. 20,000 was stolen during the night. After referring to the enquiry and the report of the officer who conducted the enquiry it was stated that the manager had come to the conclusion that the first respondent was guilty of the charge of negligence and that an order was passed dismissing from service.

(9) The Industrial Tribunal after hearing both the parties refused to accede to the request of the company for approval of the dismissal order. He accepted the argument addressed on behalf of the respondent that the report of the Enquiry Officer was not based on legal evidence and was perverse. He pointed out that there was no direct evidence that the first respondent was found sleeping or absent from his place of patrolling. On the other hand there was some evidence to show that the Assistant Security Officer and the duty zamadar had met him at various hours during the light and found him on duty. He pointed out that the conclusion of the Enquiry Officer that the theft had been committed before 6.30 A.M. during the duty hours of the first resoondent bad been based on the letter Ext. M3. Hs accepted the contention on behalf of the workman that this type of evidence was not legal evidence and that the conclusion of the Enquiry Officer based on that evidence was perverse, it was pointed out that neither the Inspector of Police who wrote the letter nor Shiv Kumar who was alleged to have made the statement had been examined and the first respondent had no opportunity to cross-examine either of them. In these circumstances the conclusion based on the document which had not been duly proved and which had not been tested by cross-examination could not be admitted in evidence or relied upon to arrive at any conclusion. According to the learned Industrial Tribunal if M3 is excluded from consideration . there was no .other evidence before the Enquiry Officer for holding that the theft was committed during the duty hours of the first respondent. The Industrial Tribunal did not also accept an argument put forward on behalf of the management that the theft could not have been committed after 6.30 A.M. as it was broad daylight and a number of workers were passing in front of shop from 5 A.M. He observed that there was no presumption under the law that the theft could not be committed during the daylight. Before a workman or an accused could be held guilty of offence even in a domestic enquiry, there must be positive or circumstantial evidence to show that the theft had been committed during the duty hours of the first respondent. For these reasons he came to the conclusion that the finding of the Enquiry Officer was perverse and was, thereforee, not sustainable and that the order of dismissal could not be approved.

(10) The company thereupon has preferred this writ petition challenging the conclusion of the Industrial Tribunal and praying that the order of the Tribunal dated 12th July, 1972 should be quashed. On behalf of the company it is .argued that the Tribunal has exceeded its jurisdiction under Section 33(2)(b) of the Industrial Disputes Act. It was not within the province of the Tribunal to reappraise the evidence ana come to his own conclusion as to whether the first respondent was guilty of the charge leveled against him or not. All that he had to address itself was as to whether the Enquiry Officer had conducted the enquiry properly and fairly and whether he had arrived at his conclusion bonafide on a consideration the evidence before him.

(11) On the broad principle contended for by the petitioner company there is really no dispute before me. The position is now very well settled that the Industrial Tribunal (exercising its powers under S. 15 or S. 33 of Industrial Disputes Act) is not a court of appeal sitting in judgment over the findings of an enquiry conducted by a management. All that it has to consider is whether a proper enquiry has been held and whether it is possible on the evidence let in to arrive at the conclusion arrived at by the disciplinary authority and not whether that was the only conclusion possible to be arrived at on the basis of the evidence (see Martin Burn Ltd. v. R. B. Banerjee, : (1958)ILLJ247SC ) (1). The tribunal can interfere in such matters only if one of four circumstances exists :

1.When there is A want of good faith; 2. When there is victimisation or unfair labour practice ; 3. When the management has been guilty of a basic error or violation of a principle of natural justice ; and 4. When on the materials the finding is completely baseless or perverse.

(Vide Indian Iron and Steel Co. v. Their Workmen, : (1958)ILLJ260SC . The last of the above conditions has been further elaborated in The Lord Krishna Textile Mills v. Its Workmen : (1961)ILLJ211SC (3) as follows :

'IT is well-known that the question about the adequacy of evidence or its sufficiency or satisfactory character can be raised in a court of facts and may fall to be considered by an appellate court which is entitled to consider facts; but these considerations are irrelevant where the jurisdiction of the court is limited as under s. 33(2)(b). It is conceivable that even in. holding an enquiry under s. 33(2)(b) if the authority is satisfied that the finding recorded at the domestic enquiry is perverse in the sense that it is not justified by any legal evidence whatever, only in 'such a case it may be entitled to consider whether approval should be accorded to the employer or not; but it is essential to bear In mind the difference between a finding which is not supported by any legal evidence and a finding which may appear to be not supported by sufficient or adequate or satisfactory evidence.'

These observations have also been quoted with approval in Delhi Cloth and General Mills Co. Ltd. v. Ludh Sudh Singh : (1972)ILLJ180SC In Lalla Ram v. D.C.M. Chemicals Works Ltd. : (1978)ILLJ507SC (5), the Supreme Court reiterated the above principles and also pointed out that it is not for the Tribunal to consider the adequacy or propriety of the punishment except where an inference of malafide is possible to be drawn from the unduly harsh, severe, unconscious able or shockingly disproportionate nature of punishment.

(12) Shri D. K. Aggarwal, learned counsel appearing on behalf of the workman, however, tries to bring his case within the fourth exception mentioned above, namely, a case of no evidence. He submits that the conclusion of the enquiry officer that a theft had been committed in the Mill Gate Store during the hours of -duty of the respondent was based on two circumstances, one a positive one and the other a negative one. The positive circumstances was provided by the letter marked Ext. M3, namely, the letter received from the Parliament Street Police Station alleging that some thief had confessed to have broken in to the shop of the petitioner company at 2.30 A.M. on 20-4-1971. Learned counsel submits that this was pure hearsay evidence which the respondent had no opportunity to contradict by cross- examining either the police officer and/or the person who was said to have made the confession. It was, thereforee, not admissible in evidence against the respondent. The second circumstance relied upon by the enquiry officer was that though the theft had been discovered only at 8.15 A.M. the theft must have taken place before 6.30 A.M. because by the time the respondent completed his duty hours because it was broad daylight and because practically after 5.00 A.M., huge crowds of workers were passing on the pavement in front of the retail shop. Learned counsel submits that this was a purely negative circumstance and could not form the basis of inference being drawn against him. It is not unknown that thefts occur even in broad daylight and there can be no presumption that the theft must have occurred during the night when the respondent was on duty. Shri Aggarwal argues that if these two circumstances are eliminated there is nothing on the basis of which a finding of negligence could be recorded against the respondent.

(13) In regard to the first contention about the admissibility of Ext. M3 learned counsel relied upon the decision of the Supreme Court in Central Bank of India v. Prakash Chand Jain : (1969)IILLJ377SC and in particular to the following observations at page 382 :

'IT is true that, in numerous cases, it has been held that domestic tribunals, like an enquiry officer, are not bound by the technical rules about evidence contained in the Indian Evidence Act; but it has nowhere been laid down that even substantive rules, which would form part of principles of natural justice, also can be ignored by the domestic tribunals. The principle that a fact sought to be proved must be supported by statements made in the presence of the person against whom the enquiry is held and that statements made behind the back of the person charged are not. to be treated as substantive evidence, is one of the basic principles which cannot be ignored on the mere ground that domestic tribunals are not bound by the technical rules of procedure contained in the Evidence Act. In fact, learned counsel for the appellant-bank was unable to point out any case at all where it may have been held by this Court or by any other Court that a domestic tribunal will be justified in recording its findings on the basis of hearsay evidence without having any direct or circumstantial evidence in support of those findings.'

In that case one of the elements of the charge against workman was that he had received a sum of Rs. 30,400 from one Nand Kishore on 14-1-1960 and that he had then left for Muzaffarnagar the same day in the company of certain persons in order to retire certain bills. These facts were sought to be proved before the enquiry officer by the evidence of the internal auditor Vazifdar. But the latter could not give direct evidence as he was not present at the time when money was paid to the workman or when the workman left for Muzaffarriagar. He purported to prove these elements of charge by deposing that a statement had been made to him by Nand Kishore to the effect that Nand Kishore had paid Rs. 30,400 to the workman and that thereafter the workman left for Muzaffarnagar in the company of two persons. The enquiry officer accepted this evidence of Vazifdai-which was only hearsay evidence. Nand Kishore: himself had also been examined as a witness and in his deposition he. neither made the statement that he paid Rs. 30,400 to the workman nor that the workman left for Muzaffarnagar in the company of certain persons to retire certain bills. On the other hand he denied that he had made any statement to Vazifdar as had been stated by Vazifdar. The Supreme Court held that the evidence of Vazifdar would not constitute legal evidence or substantial evidence to prove the correctness of the elements referred to above which formed part of the charge against the workman.

(14) On the other hand the petitioner's counsel relies very strongly on the recent decision of the Supreme Court in State of Haryana and another v. Rattan Singh : (1982)ILLJ46SC (7). In this case the respondent was a conductor of a bus belonging to the Haryana Roadways. He was on duty on the bus on its trip from Palwal to Khodulpat. During the journey a flying squad which was in operation for the purpose of checking the proper collection of fares by conductors stopped the bus. On mating enquiries the Inspector of the squad discovered that four passengers had alighted earlier without tickets and that 11 passengers traveling in the bus did not have tickets though they claimed to have paid the fares. A report followed, a chargesheet ensued, a domestic enquiry was held, the guilt of the respondent was established and a simple termination of services effected. A suit for declaration that the order of termination was a nullity was accepted by the trial court, the appellate court and by the High Court on second appeal. The principal ground on which the courts had declared the termination to be bad was that none of the 11 passengers had been examined at the domestic enquiry. Disapproving of this ground Krishna Iyer J. speaking for the court observed '.

'IT is well settled that in a domestic enquiry the strict and sophisticated rules of evidence under - the Indian Evidence Act may not apply. All materials which are logically probative for a prudent mind are permissible. There is no allergy to hearsay evidence provided it has reasonable nexus and credibility. It is true that departmental authorities and administrative tribunals must be careful in evaluating such material and should not glibly swallow what is strictly speaking not relevant under tile Indian Evidence Act. For this proposition it is not necessary to cite decisions for textbooks, although we have been taken through case law and other authorities by counsel on both sides. The essence of a judicial approach is objectivity, exclusion of extraneous materials or considerations. and observance of rules of natural justice. Of course, fairplay is the basis and if perversity or arbitrarinous, bias or surrender of independence of judgment vitiate the conclusions reached, such finding, even though of a domestic tribunal, cannot be held good. However, the courts below misdirected themselves, perhaps, in insisting that passengers who had come in and gone out should be chased and brought before the tribunal before a valid finding could be recorded. The 'residous' rule to which counsel for the respondent referred, based upon certain passages from American Jurisprudence does not go to that extent nor does the passage from Halsbury insist on such rigid requirement. The simple point is, was there some evidence or was there no evidence -not in the senses of the technical rules governing regular court proceedings but in a fair commonsense way as man of understanding and worldly wisdom will accept. Viewed in this way, sufficiency of evidence in proof of the finding by a domestic tribunal is beyond scrutiny. Absence of any evidence in support of a finding is certainly available for the court to look into because it amounts to an error of law apparent on die record. We find, in this case, that the evidence of Chamanlal, Inspector of the flying squad, is some evidence, which has relevance to the charge leveled against the respondent. thereforee we are unable to hold that the order is invalid on that ground.'

(15) The above decision was referred to and applied by a Division Bench of this court in State Bank of India v. J. D. Jain and another 1979 Lab. I. C. 1041. Tn that case he charge against the respondent who was an employee of the bank as cashier was that on 8-2-1971 a debit authority or Rs. 500 was given to him by one Kansal, a bank account holder, and that this was fraudulently altered by the respondent to reads Rs. 1,500, that on the basis of the above forged authority the respondent withdrew a sum of Rs. 1.500 from the account and passed on only a sum of Rs. 500 to Kansal. On 25-6-1971 he was said to have deposited Rs. 250 in the savings bank account of Kansal in part liquidation of the excess amount of Rs. 1,000 drawn. from the account,, after Kansal had discovered the excess debit, to his account on 21-6-71 Mr. Gupta, an officer of the bank, deposed as to.the events that happened on 21-6-1971 when Kansal came to the bank, discovered the over-debit to his account and told the ledger keeper about the mistake. He thereafter proceeded to say that both Mr. Wadhera and Mr. Kansal came to see him and that Kansal told him that the withdrawal had been made through Jain and that Jain had written out the letter of authority. All this was direct evidence. He then proceeded to say that Kansal in the presence of Wadhera end Jain himself had repeated the same thing to Mohd. Ramzan. Wadhera and Mohd. Ramzan also testified to the same effect. In other words, all these witnesses had deposed as to what they had themselves seen and heard from Kansal and Jain. The court pointed out that the Tribunal was in error in thinking that the testimony of Gupta. Wadhera and others constituted hearsay evidence. Merely because Kansal was not produced, it did not mean that what these witnesses themselves saw, heard and observed would become hearsay evidence. The confession of Jain was made in the presence of witnesses and to the higher officers who had appeared as witnesses. That was sufficient legal evidence on which the enquiry officer would have based his findings. Having come to this conclusion and 'apart from (the) above finding' the Bench proceeded to refer to the principle laid down in the observations of the Supreme Court (which have been extracted earlier) and observed :

'APPLYING the above principle we find that the Tribunal fell into grave error of law. The evidence as led, and we have been taken through the proceedings of the Enquiry Officer, has what Krishna Iyer, J. calls 'reasonable nexus and credibility'. This was legal evidence and the 'Enquiry Officer could act upon it. The finding to the. contrary must be held to be contrary to the law of the land. The admissions by Jain before the witnesses who appeared before the Enquiry Officer was some evidence on which the Enquiry Officer could rely. Similally, the alterations made in the letter of authority are visible to the naked eye and even we have seen it. It seems the Tribunal was swayed by the argument that Kansal had to come and depose as to his complaint and unless that complaint was first established, no further aspect could be proved. This was a wholly incorrect approach.'

(16) Shri D.K. Aggarwal, learned counsel for the respondent seeks to distinguish the above two decisions on the ground that in both the cases cited above there was some other evidence before the Enquiry Officer regarding the charge that was sought to be proved. In the case before the Supreme Court there was the evidence of the inspector of the flying squad and in the case before the Division Bench of this Court except for that portion of Gupta's evidence where he referred to a statement made by Kansal before Wadhera. the rest was the evidence of witnesses who had seen and heard the matters to which they testified. But it appears to me that the present case falls squarely within the principle laid down, by the Supreme Court and followed by the Division Bench. I have already extracted the relevant passage from the judgment of the Supreme Court. The portions underlined by me clearly show that the principle laid down by the Supreme Court is that in matters of domestic enquiry the emphasis should really be on the questions : (a) whether the Tribunal in question has acted with fairness and independence, (b) whether it has come to its conclusion on the basis of material having reasonable nexus and credibility and whether it is admissible evidence in' the strict technical sense of term or not, and as to whether the Tribunal ban understood the evidence in a fair, commonsense way as man of understanding and worldly wisdom will accept. The Division Beach also after having pointed oat that on the facts before them the evidence in question was not hearsay evidence properly so called proceeded in paragraph 23 to state that even otherwise the case would be governed by the principle laid down by the Supreme Court. Applying the principle laid down by these two decisions to the facts of this case I am unable to find any fault with the conclusion arrived at by the Enquiry Officer. The letter received from the police station, though in connection with some other case, had a nexus to the question at issue. It was also reinforced by the fact that officers of the petitioner company had visited the police station in pursuance of the letter and were able to identify the goods that had been seized from the person who had made the statement. It would be very unrealistic to insist in a domestic enquiry like this that the company should have produced either the police officer or Shiv Kumar who made the statement as a witness and that the respondent should have been given an opportunity to cross-examine him. To my mind Ext. M3 was properly admitted in evidence and was validly relied upon by the Enquiry Officer in coming to his conclusion. On behalf of the company it was indeed suggested that the Enquiry Officer had not relied upon Ext. M3 at all for arriving at his Conclusion but that he had merely incidentally referred to it But I do not think that his conclusion can be held to be perverse or based on no evidence even if he is taken to have referred to this as a relevant piece of evidence while discussing the issue in the light of the evidence before him.

(17) I am also unable to accept the plea put forward by Shri D. K. Aggarwal that it was incumbent on the part of the management to have shown by some positive evidence that the theft took place during the night and not after 6.30 A. M. after the respondent had completed his duty. To hold so would be to cast. on the management the burden of proving something which may well-nigh be impossible for them to prove. It is very difficult, if not impossible, in a case of- this type for the management to lead evidence that would show that the theft had taken place during the dark hours. Whether in the circumstances the theft must haw taken place during the night or whether it could have taken place as suggested-by the respondent after 6.30 A.M. was a question of fact on which the Enquiry Officer had to draw an inference. He has pointed out that even on the admission of the respondent it became quite bright by about 5.00 A.M. and that thereafter there was a continuous movement of people and workmen on the road. If from this set of facts he drew the inference that the theft could not have taken place after 6.30 A.M. and that it took place only during the night, such a conclusion cannot be said to be based on no evidence. As pointed out by Sri Dayal on the basis of certain observations in Moore v. R. Fox & Sons, 1956 All. E.R. 183, in a case of this type, where the facts normally justify the inference that the theft should have happened at night, it is not sufficient for the workman to seek to displace that inference by merely indicating that theoretically speaking, it Was possible for the theft to have occurred at some other time and saying that such a possibility could be consistent with absence of negligence on his part.

(18) I am, thereforee, unable to agree with the conclusion of the Industrial Tribunal that the finding of the Enquiry Officer were based on no legal evidence and that, thereforee, the order of dismissal could not be approved.

(19) At the time of arguments, however, one interesting aspect of the proceedings came up for consideration which posed a somewhat difficult question. It has been mentioned earlier that the charge against the respondent was that be had been negligent in the performance of his duties as a watchman on one particular night. In other words, the charge of misconduct was based on a single act of negligence. The charge, however, referred to the provisions of clauses (c) and (j) of Standing Order No. 27 which read as follows:

'27.The following are examples of acts or omissions which shall be treated as misconduct: - (c) Theft, fraud or dishonesty in connection with the Company's business or property. (j) Habitual negligence or neglect of work.....'

Of these, clause (c) is wholly irrelevant as the Enquiry Officer has hold that the charge under that provision had not been proved. So far as clause (j) is concerned, it is argued that the charge proceeds on a misapprehension that the word 'habitual' will govern only the word 'negligence' and that the alleged conduct of the respondent though solitary, would be an instance of 'neglect of work' falling under clause (j). Shri Aggarwal contends that this is a faulty interpretation in view of a direct decision of the Supreme Court in Management of Monghyr Factory of I. T. C. Ltd.. Monghyr v. Labour Court : (1978)IILLJ354SC to the effect that the word 'habitual' Qualifies both the words 'negligence' and 'neglect'. Shri Rameshwar Dial appearing for the company tries to distinguish the decision of the Supreme Court by pointing out that in the case before the Supreme Court there were two clauses in the relevant Standing Order : Standing Order 20 (i) defined 'laziness or neglect of work' as amounting to a 'fault'; and Standing Order 20 (ii) defined 'habitual negligence or neglect of work' as a 'misconduct'. It was in view of the fact that the expression 'neglect' appeared in both the clauses, he says, that the Supreme Court drew the inference that clause (ii) took in only 'habitual neglect'. But this distinction does not help counsel for the petitioner company for, in the present case also. Standing Order 26 includes 'negligence of duties' as one of the acts and omissions for which a workman could be fined in a particular manner, while Standing Order 27 gives examples of acts or omissions which could be treated as misconduct. That apart I think it is quite clear that what is punishable as misconduct within the meaning of clause (j) is only habitual neglect of work and habitual negligence. Neither on the basis of syntax nor on logic could the word 'habitual' be read as governing only the-word 'negligence* and not the word 'neglect of work'. It, thereforee, follows that the solitary instance of negligence or neglect of duty by the respondent on the night of 19/20-4-1971 cannot amount to misconduct within the meaning of Standing Order 27 (j). This being so, Shri Aggarwal contends that the order of dismissal was rightly disapproved by the Tribunal and that this writ petition should, thereforee, be dismissed.

(20) Learned counsel for the petitioner company, however. urges that this result would not follow. He submits that the charge against the respondent was that he was guilty of misconduct in that he was absent from his post of duty on the night in question as otherwise the theft of goods from the Mill Gate Stores could not have gone unnoticed by him and this charge was found proved by the Enquiry ' Officer. He says that negligence of this magnitude amounts to misconduct for which the respondent could be punished. whether or not it fell within the terms of clause (i). Learned counsel submits that the mere fact that the letter of charge contains a reference to certain clauses of the Standing Order. which strictly speaking may be found to be inapplicable does not vitiate the charge or the finding of the Enquiry Officer that the respondent was guilty of misconduct. He tries to reinforce this argument on the basis of two analogies. One is a case where a statutory authority, having the power to do a certain act, purports to do it under, or gives his order the label of, a wrong, provision of law ; Such an act. he points out, would not be invalid but would have to be held as validly made under the appropriate provision of law which enables him to do it : vide the decisions in Hazari Mal v. L T. O. : [1961]41ITR12(SC) ; Hukam Chand Mills v. State : [1964]52ITR583(SC) ;and Roshan Lal v. State : [1965]1SCR841 ; Similarly, where an application is made to a court citing a wrong provision of law, it is open to the court to treat it as an application under the right provision and deal with it accordingly : see Palaniappa Sounder v. The State of Tamil Nadu and Others : 1977CriLJ992 . The second analogy given is that of a criminal trial. Even there, counsel says, all that is needed is that the acts or omissions amounting to the offence with which the accused is charged should be clearly, specified in the charge. But, where the charge contains a reference to the relevant section of the Indian Penal Code or other penal law any error or misdescription therein would not vitiate the trial unless there has been such an error in framing the charge as has caused prejudice to the accused. In this context, counsel refers to the decisions of the Supreme Court in Willie (Williem) Slaney v. State of Madhya Pradesh : 1956CriLJ291 (15), K.C. Mathew and others v. State of Travancore-Cochin : 1956CriLJ444 (16), Delhi Transport Undertaking v. Industrial Tribunal, Delhi and another : (1965)ILLJ458SC . He points out that Standing Orders 28 to 30 envisage action being taken against a workman for misconduct and the items listed in Standing Order 27 are only illustrations of misconduct. This being so, this Standing Order cannot be taken as exhaustive of all types of misconduct : vide Toshniwal Brothers v. Bir Singh (1973 1 Del. 319 ; Bank of Madura v. Bank of Madura Em- ployees' Union : (1965)IILLJ44Mad ; and Mahendra Singh Dhantwal v. Hindustan Motors Ltd. and Others : (1976)IILLJ259SC (20). Learned counsel points out that though in the present case there was only a solitary instance of negligence of the respondent that instance was so grave, having regard to the nature of the duties assigned to the respondent and to the incident of theft that occurred during his period of duty that it was a clear instance of misconduct. He cites in this connection various decisions where it has been held that even an isolated act or omission on the part of a workman of such a nature as in the present case could clearly amount to misconduct : Ford Motor Co. of India Ltd. v. S. K. K. Naik 1952 I LLJ 388 ; Royal Printing Works v. Industrial Tribunal, Madras and another : (1959)IILLJ619Mad ; Baster v. London and County Printing Works 1895 9 All. E.R. 437; and Jupiter General Insurance Co. Ltd. v. Ardeshir Bomanji Shroff 1937 3 All. E. R. 67. Learned counsel also raised a preliminary objection that it was not open to the respondent to raise this question at this stage when the inadequacy of the charge or its non-maintainability under the Standing Order cited therein had not been raised as an issue either before the Enquiry Officer or the Tribunal.

(21) I am of the opinion that the preliminary objection raised by the learned counsel cannot be uphold. The point which arises is a pure point of law which can be decided on the available facts. In the present case there is no controversy whatsoever that there is allegation of only one instance of negligence on the part of the respondent. The question whether it amounts to misconduct within the meaning of the Standing Orders is a question of law and in my opinion 'the respondent is entitled to raise this question even though it had not been raised at the earlier stages. But equally I should think it must be open to the petitioner company to contend in reply to this plea that the act or omission with which the respondent had been charged would amount to misconduct for which penal action can be taken against him even though it may not fall within the purview of clause (j) of Standing Order 27. This learned counsel for the respondent sought to make out that the case put forward by the petitioner's counsel, that even apart from the standing orders there had been misconduct (according to the general understanding of the expression) on the part of the respondent amounted to the making of a fresh charge. He says that it may be open to the company to initiate fresh proceedings against the respondent on such a charge with an opportunity to him to reply to the same as and when made but that this charge cannot be said to be covered by the enquiry and proceedings which have already taken place. I am, however, unable to accept this argument. This is not a case where the petitioner company is trying to make out a totally different charge against the respondent. He was charged with negligence of duty as a misconduct. Whether it was such negligence as amounted to misconduct within the meaning of the various items listed in Standing Order 27(j) or whether it amounted to misconduct even apart there from was only a matter for inference from the established set of facts. The charge sheet against the respondent specified without any ambiguity the omission for which he was being charged. No doubt certain statutory provisions were indicated but the sum and substance of the matter was that the respondent was charged with negligence on this particular occasion and this was alleged to amount to misconduct. The Enquiry Officer also addressed himself to the question as to whether the respondent was guilty of negligence or not. Though there is a reference to Standing Order No. 27(j) in the concluding portion of the report of the Enquiry Officer his finding is that the respondent had been grossly negligent in the performance of his duties due to which the commission of theft became very easy. In seeking to support this finding of the Enquiry Officer even apart from the provisions of the relevant standing order the learned counsel for the petitioner is not seeking to 'make out any fresh charge against the respondent. He does not desire to make any fresh allegations or adduce any additional facts but merely seeks to sustain the inference which he wishes to draw from the already proved facts. The petitioner' company charged the respondent with negligence of duties; there was no charge of habitual negligence though a reference to Standing Order 27(j) was indicated in the charge letter. The finding is that he has been negligent and on this finding his services have been terminated. The petitioner company was entitled to do so and is entitled to rely on the proved facts to sustain a conclusion that the respondent was guilty of misconduct as had been held by the Enquiry Officer.

(22) Learned counsel for the respondent relied on a decision of the Orissa Hight Court,inBraja Kishore Das v. The State of Orissa : (1965)ILLJ265Ori (25) as well as the decisions in Hendricks & Sons v. Industrial Tribunal and Others : (1959)ILLJ235AP ; Punjab National Bank Ltd. v. All India Punjab National Bank Employees' Federation and another : (1959)IILLJ666SC (27); Sur Enamel and Stamping Works Ltd. v. Their workmen : (1963)IILLJ367SC ; and Remington Rand of India Ltd.v. Tahir Ali Saifi and another : (1975)IILLJ376SC (29). These cases only lay down the principle that the action against an employee should be based on the charges contained in the original charge sheet and not on additional or further charges that may be thought of later on unless the charge sheet is modified, and an opportunity is given to the employee to reply to those charges. But the question here is not of any fresh facts or charges but as to the scope or content of the original charge framed against the respondent. In this regard, the principle applicable to a criminal trial are set out in Sections 211 to 217 of the Code of Criminal Procedure, 1973. Under these provisions, while it is necessary that the full particulars of the acts, emissions or transactions on the basis of which an accused is sought to be charged with an offence; and the penal provision against which the offence is said to have been committed should he dearly specified in the charge, an omission to state, or an error in stating, the above 'particulars will not be material and will not vitiate the trial unless in fact the accused has been misled and failure of justice has resulted. Even if those principles are applied here, no exception can be taken to the findings of the Enquiry Officer. The respondent was charged with negligence of his' duties on the night of 19/20-4-1971 and there is a finding based on facts that the respondent was guilty of negligence of his duties on that particular night. The only short question is whether such negligence can amount to misconduct though it is a solitary' instance that has occurred. On this point I am of the view that the cases cited by the learned counsel for the petitioner are very apposite. It is, thereforee, not possible to say that the finding arrived at by the Enquiry Office was in any manner vitiated. I have already held that the findings could not be said to be pa-verse or based on no evidence. In these circumstances I am unable to uphold the order of the Industrial Tribunal withholding the grant of approval to the 'action of the management in dismissing the employee-respondent.

(23) Before parting with the case, I would only like to mention-that during the course of the arguments I felt that this was eminently a case in which the petitioner and the respondent should arrive at some amicable settlement outside the court. There was some discussion on this matter between counsel as well as between the petitioner and: the respondent but these talks do not appear to have succeeded. I have thereforee been constrained to proceed to judgment in this case. I feel that it would have been more equitable if the management had either absorbed the respondent in some other department or given him a somewhat lighter punishment but if is not within the province of this court lo consider the question of harshness of the punishment so long as no mala fide is attributed to the management. I can. thereforee, only express a hope that the management will still be able to' send the respondent home a comparatively happy man by withdrawing the sting and stigma of a dismissal order and-by allowing .him to retire or resign from the date of; the termination of his services and thus voluntarily mitigate the rigour of :tbe dismissal order though, turn the reasons stated above, I have been constrained to uphold its validity.

(24) Forte reasons stated above I accept the writ petition. A writ quashing the order of. respondent No. 2 dated 12-7-1972 and directing the respondent to approve of the management's order of' dismissal will issue. The writ petition is allowed. But in the circumstances I make no order as to costs.

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