PICHUMANI MANI E Vs. MAZGAON DOCKS LTD

JUDGEMENT

(1.) THE petitioner has entered the services of the 1st respondent company as a storeman in the year 1968 and thereafter he was promoted as senior storekeeper from March 1, 1985. On August 5, 1986 the clearance contractor's lorry was sent to offshore yard of the company for loading the rubbish for clearance. It seems that at that time the petitioner alongwith another security man were asked to supervise the loading operation in order to ensure that only rubbish and nothing else was loaded in the truck. A surprise check was carried out at the gate and it was found that M. S. scrap weighing about 1600 kgs (1. 6 metric tonne) approximately costing at Rs. 7761/- was hidden in the lorry. The petitioner was found responsible for the same and was charge-sheeted on August 6, 1986. A domestic enquiry was conducted against the petitioner under Standing Order 22 (4) and (12) and upon perusal of the report of the enquiry officer who found the petitioner guilty on both counts of misconducts, the company dismissed the petitioner from services vide its order dated December 11, 1986.

(2.) THE petitioner raised on Industrial Dispute for reinstatement in service with backwages which came to be referred to the 2nd Labour Court, Mumbai. The Labour Court vide Award Part I dated January 31, 1989 held that the enquiry was fair and proper. By Award Part II dated April 12, 1994 the Labour Court held that the petitioner is not entitled for reinstatement or backwages. The legality and validity of these two awards is impugned in this petition.

(3.) MR. Pillai, the learned counsel for the petitioner made mainly three submissions. In the first place Mr. Pillai submitted that the enquiry officer's report was not served upon the petitioner and this amounts to violation of the principles of natural justice. Mr. Pillai submitted that under the Standing Orders, the Company ought to have issued 2nd show cause notice to the petitioner before awarding the punishment of dismissal and in the absence of such a show cause notice and the failure by the company to serve the enquiry officer's report to the petitioner has vitiated the entire enquiry proceedings. Mr. Pillai submitted that the preliminary enquiry report ought to have been served on the petitioner either alongwith the charge-sheet or before the enquiry was commenced and failure to do so has also rendered the enquiry proceedings illegal. In support of his submission Mr. Pillai relied upon the decision of the Madras High Court reported in The Management of Eswaran and Sons Engineers (P) Ltd. v. Ill Additional Labour Court, Madras and Anr. (1997-I-LLJ-698 ). The second submission of Mr. Pillai is based upon the decision of the Supreme Court reported in The Workmen of Firestone Tyre and Rubber Co. v. The Management and Ors. (1973-I-LLJ-278) Mr. Pillai submitted that in Firestone's case the Supreme Court has laid down that under Section 11-A the Tribunal is empowered to consider not only whether the finding of misconduct recorded by an employer is correct, but also to differ from the said finding, if a proper case is made out. Mr. Pillai urged that the Labour Court merely concurred with the conclusions drawn by the enquiry officer without even ascertaining whether the alleged misconduct in the charge-sheet itself was established by evidence against the petitioner. Mr. Pillai submitted that the Labour Court ought to have independently appraised the evidence produced before the enquiry officer and come to his own conclusion. Lastly Mr. Pillai submitted that there is no direct evidence that the petitioner has either singly or with the help of his colleagues committed theft, fraud or dishonesty. At the highest the petitioner can be said to be guilty of negligence. Therefore according to the learned counsel the findings of the enquiry officer that the charge of dishonesty and theft etc. was proved, is totally perverse.