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Gopalaswamy (M.) Vs. Madras Dock Labour Board - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtChennai High Court
Decided On
Judge
Reported in(1967)ILLJ540Mad
AppellantGopalaswamy (M.)
RespondentMadras Dock Labour Board
Cases ReferredMahalakshmi Textile Mills v. Labour Court
Excerpt:
.....found during the inspection, like impression paper, unruled paper, ruled paper, white envelopes, writer pen, ball point pen, etc. the evidence of the officers themselves disproves any question of misappropriation of the ball point pen and the writer pen though in the evidence the officer was questioned about the ball point pens and writer pens the charges as well as the finding is that only one ball point pen and one writer pen were missing. the president, while acting on his personal checking, failed to give any opportunity to the petitioner to correct any mistaken impression which the president might have carried with him. it was stated on behalf of the respondent that it is the duty of the petitioner to explain as to how he consumed the paper and as he has failed to do so, he must..........the madras dock labour board. he was promoted as a stenographer and was employed as such under the labour officer of the board till his dismissal on 26 november 1964. the annual inspection of the stationery of the labour office for the period 1 january 1963 to december 1963, was conducted by the executive officer in december 1963 and a report was submitted. on 17 february 1964, a physical verification of the stationery items supplied to the labour officer was made by the administrative officer. the administrative officer prepared a report which listed 37 items as found in the office. subsequently, on 28 march 1964, the president of the administrative body issued a notice to the petitioner calling upon him to submit an explanation regarding the discrepancy about certain stationery items.....
Judgment:

P.S. Kailasam, J.

1. This writ petition is filed for the issue of a writ of certiorari quashing the order of the Chairman, Madras Dock Labour Board, in EO/30/664, dated 18 January 1965.

2. The petitioner was appointed as a lower division clerk on 1 May 1958, in the Madras Dock Labour Board. He was promoted as a stenographer and was employed as such under the labour officer of the Board till his dismissal on 26 November 1964. The annual inspection of the stationery of the labour office for the period 1 January 1963 to December 1963, was conducted by the executive officer in December 1963 and a report was submitted. On 17 February 1964, a physical verification of the stationery items supplied to the labour officer was made by the administrative officer. The administrative officer prepared a report which listed 37 items as found in the office. Subsequently, on 28 March 1964, the president of the administrative body issued a notice to the petitioner calling upon him to submit an explanation regarding the discrepancy about certain stationery items that were not found during the inspection, like impression paper, unruled paper, ruled paper, white envelopes, writer pen, ball point pen, etc. The petitioner replied on 30 March 1964, requesting that he might be informed as to where the discrepancy had arisen and how it had arisen. He also explained that the ball point pen reported missing was used by him for writing copies of notices to the workers, while the writer pen was used by the labour officer for giving it to the workers for putting their signatures in the deposition, etc. A copy of the verification report was furnished to the petitioner on 16 May 1964.

3. On 16 June 1964, a show-cause notice was issued by the president of the administrative body to the petitioner framing the following charges:

That you, M. Gopalaswamy, stenographer, administrative body, Madras Dock Labour Board, have misappropriated the office stationery, such as impression paper, ball point pen, writer pen, white envelopes and key rings indented for the use of the labour officer, Madras Dock Labour Board, from the period 1 January 1963 to 17 February 1964.

4. The petitioner demanded an oral enquiry and wanted to examine several persons as witnesses. The persons were called and were examined by the president, administrative body. Sri Ramdas, the executive officer, who conducted the enquiry in December 1963, Shanmughasundaram, the administrative officer, who carried out the inspection on 17 February 1964, the labour officer under whom the petitioner was working and others were examined. The petitioner examined himself and gave an explanation regarding the items. After the enquiry, the president, administrative body, Labour Board, provisionally concluded that the petitioner be dismissed from service of the administrative body for the misconduct of misappropriating the stationery items. The petitioner was asked to show cause why he should not be dismissed. The petitioner submitted an explanation. The president of the administrative body passed the final order on 26 November 1964, dismissing the petitioner from service. The appeal by the petitioner to the Chairman, Madras Dock Labour Board, was also dismissed.

5. Sri Ramachandran, learned Counsel for the petitioner, submitted that the enquiry was vitiated as the executive officer was prejudiced against him and had a bias. He contended that there is no evidence on record to show that the petitioner misappropriated the papers or the ball point pen or the writer pen or the key rings. He further submitted that the order of the president of the administrative body is vitiated in that he conducted the verification himself and imported his knowledge in the report without giving an opportunity to the petitioner to rebut the impression which the president had about the stock.

6. The petitioner is found guilty of having misappropriated certain quantity of paper, a ball point pen, a writer pen, and key rings. So far as the ball point pen, writer pen and the key rings are concerned, they may be dealt with first. The inspection was conducted by Sri Shanmughaaundaram. He was questioned whether he asked that the ball point pen and the writer pen should be produced. The answer was:

It is your responsibility to produce.

When questioned as to how ho had shown the ball point pens and the writer pens as missing, he answered,

The materials shown to me were taken into account.

Again, he was questioned as to how he could say the writer pens and ball point pens were missing, his explanation was that they were not produced before him during verification. When questioned whether he asked the labour officer about these articles, his reply was that he did not and that, if the labour officer had it, he should have explained it to him. The labour officer stated in his evidence that the administrative officer did not ask about pens in his presence, and when questioned whether writer pens and ball point pens were missing, the labour officer stated that they were all in use and the executive officer did not ask anything in his presence. The explanation of the petitioner in reply to the notice dated 28 March 1964 was that the ball point pen was used by him and the writer pen by the labour officer. The administrative officer, Shanmughasundaram would not state that he asked for these articles to be produced. His answers to the questions put by the officer are most unsatisfactory and unhelpful. The evidence of the officers themselves disproves any question of misappropriation of the ball point pen and the writer pen though in the evidence the officer was questioned about the ball point pens and writer pens the charges as well as the finding is that only one ball point pen and one writer pen were missing. The position of the key rings is very much the same. The explanation of the petitioner is that he was having it with him and that he did not produce the key rings as he was not asked to produce them. On the record there is no material whatsoever for proving that the petitioner misappropriated the ball point pen, writer pen and the key rings and the finding of the president of the administrative body has to be quashed regarding these items due to total lack of evidence on this matter.

7. The next item of the charge is that certain quantity of paper was missing and that the petitioner did not give any explanation. The inspection of the stationery was done by the executive officer in December 1963. The subsequent inspection was on 17 February 1964, It is admitted by the administrative officer, who conducted the inspection, that at the time he did not call for the explanation about the use of paper. The petitioner's case is that no accounts are kept about the stationery and the papers given to him were used. He also gave an explanation as to how the quantity of paper was consumed. That no accounts were kept regarding the stationery is clear from the evidence of the accounts officer, who stated that there was no question of accounting of the stationery spent. The stenographer in the accounts department also stated that there were no accounts for stationery supplied to him. Another witness, Percy Williams, also stated that he was not maintaining a separate account for the stationery. Shanmughasundaram, who conducted the inspection was questioned about the inspection regarding the papers. He was questioned as to how he was able to say that there was shortage of paper. The answer was:

The records speak out.

Again, when he was questioned whether the ten reams were taken by the petitioner, the answer was:

The records will prove.

There are no accounts relating to the supply of paper to the petitioner but the petitioner does not deny that he was given ten reams of paper. The witness was further questioned about the use of paper, and his answers are not at all helpful. When he was asked about the consumption of paper for issuing a show-cause notice, his answer was that the petitioner could explain about this when he was examined. When questioned whether he accounted for the wastage, the answer was that the petitioner should know the wastage and that it was left to the officer concerned and to the stenographer to prove the wastage. When the witness was asked whether he knew about the number of copies sent to the workers and about the copies stencilled, there was no reply except that the allegation was about the unsatisfactory accounting. The witness was further asked that for the draft and the usual number of copies, in some cases it would be one sheet and in other cases three or four sheets. The witness did not give any answer but stated that the petitioner could explain it to the presiding officer when ha was examined. Again, the witness was specifically questioned about the statement for cargo casuality, about preparing notes, about the stock found on inspection, about the waste, etc. The witness would not again answer but would only say that the petitioner could explain the position to the presiding officer. The evidence of this witness is extracted in some detail to show that in his evidence there is nothing to show that any quantity of paper had not been accounted for or that the petitioner had misappropriated the same. The witness had either no knowledge about the use of the paper in the office or was reluctant to answer the questions put to him by the petitioner. In any event, the evidence of the witness is not helpful in proving the case for the Board that any quantity of paper was missing.

8. The labour officer, who was examined, stated that he did not apprehend any misappropriation of the office stationery. He also gave particulars about the wastage of paper. He admitted that in the case of draft and retyping there would be some wastage. He also admitted that they were Bending copies for all offices and for the respective companies, and that some other copies were also despatched. Ho agreed that paper was used for issuing show-cause notices and for making financial assistance forms and for giving enquiry advice for workers and employers. He admitted that there were three different types of forms specially used for 120 houses, four copies each in three items. He frankly confessed that there was nothing to his knowledge to make him apprehend misappropriation of office stationery before the petitioner was suspended. He further stated that there is no office order regarding maintaining of accounts for use of the stationery by the clerks and the clerks were using it as and when occasion arose. The petitioner stated in his evidence that at the time of inspection two reams of paper were found as stock. He explained that his office would use 1336 papers for copies issued to the workers. According to the petitioner, for show-cause notices, about 1/2 to 3/4 ream will be used and for preparing enquiry advice to companies, about 2 reams will be used. Regarding housing, he stated that three new forms were introduced, that there were 120 houses and that four cases per house were prepared with three copies which would consume about 3 to 4 reams. Besides that he explained that there would be some wastage. That about 1336 papers would be used for copies issued to the workers is admitted by Shanmughaaundaram in his note dated 25 April 1964.

9. The president of the administrative body, in his show-cause notice dated 18 September 1964, referring to the shortage of paper stated that he personally checked the number of impression papers used by Gopalaswamy for the period between 1 January 1963 and 17 February 1964. According to the president, for stencilling labour officer's orders he has used 412 foolscap sheets. As already stated, according to Shanmughasundaram in his report dated 23 April 1964, it would be about 1336 papers. For house allotment the president has stated that the petitioner had used 3/4 ream, according to the petitioner's own statement. Obviously, the president is referring to the evidence given by the petitioner in the enquiry. In the enquiry, the petitioner explained that it would require about 1,440 sheets of paper, that is, about 3 to 4 reams, taking into account the wastage and not 3/4 of a ream. In the show-cause notice, the president has also not taken into account the two reams of paper that were found in stock. The president, while acting on his personal checking, failed to give any opportunity to the petitioner to correct any mistaken impression which the president might have carried with him. In the final order, the president has, no doubt, taken into account the two reams of paper that were found in stock. In the final order, the president also relied on the so-called admission of the petitioner that he used 3/4 ream for house allotment applications, while the actual statement of the petitioner was that 3 to 4 reams were used.

10. The evidence in this case has been dealt with at some length as even if the entire evidence is accepted there is nothing to show that any quantity of paper was missing and that it was not accounted for. On the other hand, the evidence of the officers themselves is that there was no order regarding keeping of accounts relating to consumption of paper in any of the departments including that in which the petitioner was working. As already stated, the evidence of Shanmughasundaram, who conducted the inspection, is far from helpful in proving that any quantity of paper was left unaccounted for. The evidence of the labour officer, Anantanarayanan, supports the explanation of the petitioner about the wastage of paper. The evidence of Ramdas, the executive officer, does not advance the case any further. Even if the entire evidence is accepted, the charge against the petitioner does not stand proved. It was stated on behalf of the respondent that it is the duty of the petitioner to explain as to how he consumed the paper and as he has failed to do so, he must be held guilty of the charge. Regarding the witnesses, the plea of the respondent was that they were called by the petitioner himself. This submission of the respondent cannot be accepted, for it is for the authorities to prove that the petitioner has misappropriated or failed to account for the paper. The explanation that the witnesses were called by the petitioner himself would not make any difference because they are all officers of the respondent itself. On this ground alone, the finding of the Labour Board has to be quashed.

11. The show-cause notice as well as the final order inflicting the punishment are vitiated by the president relying on personal knowledge without giving an opportunity to the petitioner to correct any mistaken impression which the president might have had. The president also made a mistake in reading the statement of the petitioner as a quantity of ream being used instead of 3 to 4 reams for the purpose of issuing notices regarding the housing. The misreading of the statement of the petitioner has vitiated the show-cause notice and the final order inflicting the punishment. The order of the president is liable to be set aside on the ground of total lack of evidence and on the ground of misreading of the statement given by the petitioner. In this view it is unnecessary to consider the allegation about bias made by the petitioner against the executive officer and the president of the administrative body.

12. It was contended on behalf of the respondent that the petitioner is a ' workman ' under the Industrial Disputes Act and the petitioner ought to have raised this question as an industrial dispute and ought not to have sought his remedy by way of a writ petition to this Court. The decision of the Supreme Court in Basant Kumar Sarkar v. Eagle Rolling Mills, Ltd. : (1964)IILLJ105SC , was relied on in support of the proposition that if a remedy is available by raising the matter under the Industrial Disputes Act a writ would not issue. The High Court in that case refused to interfere under Article 226 of the Constitution of India holding that the proper remedy was by way of raising an industrial dispute and the Supreme Court agreed with it holding that though the powers conferred on the High Court were very wide, it could not take within its sweep industrial disputes of the kind which was sought to be raised in that case. The contention raised before the Supreme Court was that the respondents in those appeals were not entitled to curtail the benefits provided to the appellants by them and that the said benefits were not similar either qualitatively or quantitatively to the benefits under the scheme which had been brought into force under the Act. The dispute in that case was one which could have been only decided satisfactorily as an industrial dispute. In the present case, the objection that the petitioner ought to have raised an industrial dispute was not even raised in the counter-affidavit filed in the writ petition. Though the High Court will not usually interfere in cases in which an alternative remedy is available, it is not as if the jurisdiction of the High Court is taken away. This is a fit case in which the powers of the High Court should be exercised as neither the procedure followed nor the evidence adduced could ever sustain the charge against the petitioner.

13. Relying on a decision in Mahalakshmi Textile Mills v. Labour Court, Madurai and Ors. : (1963)IILLJ58Mad , it was next contended that even though this charge may be quashed, the respondent would be at liberty to pursue the charge by conducting a fresh enquiry after notice to the workman. Dealing with the facts in that case, the High Court, while dismissing the writ appeal, left the matter open for the management to pursue the charge further. That course was adopted in the peculiar circumstances of the case and it does not necessarily follow that it should be adopted in every case. In this writ petition apart from quashing the order of the president of the administrative body, I am not called upon to express any opinion as to whether the administrative body may institute afresh enquiry or not.

14. In the result, the writ petition is allowed with costs and the order of the Chairman, Madras Dock Labour Board, in EO/30/664 dated 18 January 1965, is quashed. Advocate's fee Rs. 200.


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