IN THE COURT OF THE PRESIDING OFFICER

I ADDITIONAL LABOUR COURT, BANGALORE

DATED THIS THE 15TH DAY OF MAY 2006

PRESENT

Sri. P.V. Singri, B.Sc., LL.B., (Spl)

Presiding Officer,

II Additional Labour Court,

Bangalore

I.D. No. 63/2005 (101/1995)

FIRST PARTY: A. S. Nagesh Kumar,

H. No. 86,

Munnekottalu Village,

Maratha Halli Post,

Bangalore – 5560 037.

(By. Sri. M.G. Kumar, Adv.)

(VS)

SECOND PARTY: The Management of

M/s. Titan Industries Limited,

Golden Enclave, Tower “A”,

Airport Road,

Bangalore – 5560 017.

(By Sri. K.S. Anand, Adv.)

AWARD

The first party workman has raised this dispute U/Sec. 10(4-A) of the Industrial Disputes Act, 1947 challenging the order of his dismissal dated 12.09.1995.

The brief averments made in the claim petition are as under:-

That the first party joined the services of the second party as a driver

in the year 1990 and was discharging his duties to the satisfaction of

superiors. That on 09.01.1995 the II party issued a show cause notice to the first party alleging that on 31.12.1994 at around 8.45 p.m. the first party took the keys of the Contessa car bearing No. KA.04-M-4454 from the security supervisor Joseph Mariadas unauthorizedly and filled up fifty liters of petrol in the petrol bunk of D.M. & Sons and returned the car on 1st January 1995. That on verification on 2.01.1995 it was found that only two liters of petrol was left in the said car and the said car had run only for about 100 kms. That the first party submitted his reply dated 10.1.1995 denying the allegations made therein and stating that on 31.12.1994 he was on duty from 9 a.m. to 4.30 p.m. Sri. Kamalapathi, the Transport Supervisor asked him through phone to take the said contessa car to the petrol bunk and fill up 50 liters of petrol and thereafter he took the said car to the petrol bunk and fill up 50 liters of petrol and thereafter he took the said car to the petrol bunk and filled up the petrol and left the car in the place of its usual parking and handed over the key of the said car to the security officer and went home at 6.15 p.m. That the II party being not satisfied with his explanation initiated a domestic enquiry by appointing Sri. S.V. Shasthri as enquiry officer.

That the said enquiry officer conducted the enquiry in violation of the principles of natural justice without affording reasonable opportunity to the first party to defend himself effectively and submitted his findings holding the first party guilty of the charges alleged. That the II party without properly appreciating the materials placed on record in objective manner accepted the perverse findings of the enquiry officer and dismissed the first party from service by Order dated 12.09.1995. That the punishment of dismissal imposed against the first party is severe and arbitrary and disproportionate to the gravity of the misconduct. That the II party management did not take into consideration the unblemished service of the first party while imposing the said punishment. Therefore, the first party workman prays for an award directing the II party management to reinstate him into his original post together with full back-wages, continuity of service and other consequential benefits by setting aside the impugned Order of the dismissal dated 12.9.1995.

The II party management in response to the notice issued appeared through their advocate and filed their counter statement contending in brief as under:-

That the first party was working as a driver in the II party’s corporate office and he was issued with a charge sheet cum Suspension memo dated 9.1.1995 for not accounting for 40 liters of petrol out of 50 liters unauthorisedly requisitioned by him from D.M. & Sons. That the first party submitted his explanation dated 10.1.1995 and since the said explanation was not satisfactory, an enquiry was instituted into the misconduct alleged against the first party by appointing Sri. S.V. Shastry, Advocate as enquiry officer. That after due notice to both the parties, the enquiry officer conducted the enquiry in accordance with the principles of natural justice and the standing orders of the company by affording sufficient opportunity to the first party to defend himself effectively and submitted his findings on 22.7.1995 holding the first party guilty of the charges alleged against him in the charge sheet. That the first party was furnished with a copy of the enquiry report together with a letter dated 28-1-1995 and was called upon to submit his representation against the same. That the first party submitted his representations dated 5.6.1995 and after considering the same, the first party was dismissed from service by letter dated 12.9.1995. That the punishment imposed is proportionate to the gravity of the misconduct committed by the first party. That the Order of dismissal passed by the first party is legal, just and proper in the given circumstances of the case. For the aforesaid reasons the II party management prays for rejection of the dispute raised by the first party workman.

On the rival contentions of both the parties, the following issues have been raised:-

ISSUES

Whether the DE held against the first party is fair and proper?

Whether the II party management is justified in dismissing the first party from service?

To what relief the first party is entitled to?

Issue No. 1 was treated as preliminary issue and the parties were called upon to lead their evidence of the same. Accordingly the II party management secured and examined the enquiry officer as MW-1 and placed reliance on documents pertaining to the domestic enquiry.

The first party in support of this case examined himself as WW1 and closed his side. After bearing the learned advocates appearing for both the parties issue No. 1 was answered in affirmative by order dated 8.5.2005 holding that the DE held against the first party as fair and proper. Thereafter the first party was called upon to lead his evidence on victimization / disproportionality of punishment. Accordingly, he examined himself as WW1 and closed his side. Perused the written arguments submitted on behalf of the II party management and heard the oral arguments submitted on behalf of the first party.

My answer to the above issues are as under:

Issue No. 2: Is negative

Issue No. 3: As per final order for the following:

REASONS

9. Issue No. 2 and 3:- As already stated above, issue No. 1 was answered in “affirmative” by order dated 8.6.2005 holding that the DE held against the first party as fair and proper. Now it has to be seen as to whether the findings of the enquiry officer are perverse as contended by the first party workman and whether the II party management was correct in accepting the findings of the enquiry officer. The management has produced the relevant documents pertaining to the domestic enquiry and the same has been marked as Ex.M.1 to Ex. M.7. The first party workman has participated throughout the enquiry. On 9.1.1999 the first party was issued with a show cause notice as under:

“You have been working as a Driver in our Corporate Office. On the 31st of December 1994 at around 8.45 p.m. you came to the Corporate Office collected the key from the Security Supervisor, Mr. Joseph Mariadas, for Car No. K.A. 04 M.4454 falsely stating that you were detailed for duty on that day though no duty slip was issued to you. You have taken out the car from the premises and returned the car only on January 1, 1995, after utilizing the car for the whole night on the 31.12.1994. It is further alleged that you have drawn 50 liters of petrol by yourself signing the requisition unauthorisedly from D.M. & Sons and filled up the tank of the above said car. After your returning the car, when the car was taken out for being utilized for the concerned Executive on Monday, the 2nd January it was noticed that the car had only about 2 liters of petrol left in the tank and the car had run only for about 100 kms., from the time you took the car on the night of 31st December. 40 liters of petrol could not have been consumed for 100 kms run. You have taken out the car No. KA.04 M4454 without any authority on the night of 31st December by falsely stating that you were detailed for duty, unauthorizedly drew 50 liters of petrol from the petrol bunk by signing the petrol bill without any authority and used the car on the night of 31st without any authority and did not account for approximately 40 liters of petrol. The above allegations if proved would constitute gross misconduct on your part, namely:-

Fraud or dishonestly in prosecution with the Company’s

Business or property.

Unauthorized use of Company’s vehicle.

Act Sub-versive of discipline.

Act prejudicial to the interest of the Company.

You are required to show cause why disciplinary action should not be taken against you for the above acts of misconduct, within three days of receipt of this letter, failing which it will be presumed that you have no explanation to offer and the matter will be proceeded with on the basis.

Pending further orders you are suspended with immediate effect from duty. You are required to intimate the Company any change in your residential address.”

The first party submitted his reply to the said show cause notice by his letter dated 10.1.1995 in which he states that on 31.12.1994 he was on emergency duty from 9 a.m. and at about 1 p.m. he went for lunch and returned at 1.45 p.m. and he did not receive any emergency call between 9 a.m. to 4.30 p.m. on that day. He further states in his reply that at about 4.30 p.m. he received a telephone all from Sri. Kamalapathi asking him to collect the car bearing No. KA.04.M.4454 and filled it up with petrol and accordingly he took the car and through indent filled the car with petrol and took it back to office and parked in its usual place and at about 6.10 p.m. handed over the key to the security and went to his house. The first party asserted that on that day, i.e., on 31.12.1994 he has not taken out any car after 6.15 p.m. and as his duty was over by 6.15 p.m. he went to his house. In his reply the first party admits of having taken the said Contessa Car bearing No. KA.04.M.4454 at about 4.45 p.m. only for the purpose of filling it with fuel and accordingly he took the car to the petrol bunk and filled it up with the petrol and then brought it back to the office premises and left the car in its parking place around 6.10 p.m. and handed over the keys of the car to the security and went back to house. The management has produced the receipt issued by the dealers of the Bharat Petroleum, D.M. & Sons, according to which 50 litres of petrol worth Rs.991.50 ps has been filled in the said car on 31.12.1994. Now let us find out as to whether the management has placed enough material on record to establish that first party unauthorizedly collected the above said car at about 8.45 p.m. on 31.12.1994 from Joseph Mariadas and after having filled up the car with 50 litres of petrol used the same throughout the night of 31st December 1995 and first January 1996, and bought it back only in the morning on 1st January 1996. The basis for issuing the above said show cause notice to the first party is the letter dated 2.1.1995 written by the Transport Officer, Mr. P.M. Kamalapathi to the Manager, Administration. The said letter is marked as Ex.M.8 during the course of the enquiry. In the said letter, Mr. P.M. Kamalapathy states that the first party has unauthorizedly taken the car No. KA.04.M.4454 on 31.12.1994 at about 8.45 p.m. telling Mr. Joseph Mariadas that he has been detailed for work and collected the keys from him. During the course of his evidence, Mr. Kamalapathy reiterates the allegation made in his letter and states that the first party collected the said Contessa car from Joseph Mariadas the security supervisor at about 8.45 p.m. on 31.12.1994. However, the said Mr. Joseph Mariadas, security supervisor who was examined as one of the management witnesses states that he was on duty on 31.12.1994 from 7 a.m. to 7.p.m. in the evening and since 31.12.1994 was a Saturday he worked upto 10 p.m. on that day. He further states that the first party came to him at about 8.45 in the morning and collected the keys of Maruti Car stating that he has been detailed for duty and he did not return the car till he was on duty on that day.

There are serious contradictions in the evidence of Mr. Kamalapathy and Mr. Joseph Mariadas as to the car involved in the incident and also the time at which it was collected by the first party. Mr. Joseph Mariadas states that he was on duty on that day for 12 hours from 7 a.m. to 7 p.m. in the evening. However, he further adds that on that day he continued upto 10 p.m. The relevant duty roaster dated 31.12.1994 is produced and according to which, Joseph Mariadas has reported for duty in the 3rd shift which begins at 22 hours on 31.12.1994 and ends at 7 a.m. in the morning on 1st January 1995. The duty roaster bears the signature of the said Mr. Joseph Mariadas for having reported for duties in the 3rd shift. This daily duty roaster dated 31.12.1994 falsifies the evidence of Joseph Mariadas that he was on duty from 7 in the morning till 10 p.m. in the evening. According to Mr. Kamalapathy, the first party collected the key of Contessa car from Mr. Joseph Mariadas. However, Mr. Joseph Mariadas states that the first party collected the key of Maruthi Car from him. Mr. Joseph Mariadas states that the first party collected the keys of Maruthi at about 8.45 in the morning, whereas Mr. Kamalapathy states that the first party collected the key of Contessa car at 8.45 p.m. in the evening. It is serious contradiction in the evidence of both material witnessses for the management regarding make of the car and the time at which it was collected creates a serous doubt as to the genuineness of the allegations made against the first party. According to the daily duty roaster, Mr. Joseph Mariadas reported for duty only in the 3rd shift, which begins at 22 hours on 31.12.1994. If at all he has reported for duty in the 3rd shift, the question of the first party collecting the key of the car from Mr.Joseph Mariadas either at 8.45 in the morning or at 8.45 in the evening does not arise at all. From the evidence of these two watchmen it appears that either one of them is lying only with an intention to involve the first party in a false case.

It is pertinent to note here that according to the “pass out” marked at Ex.M.13 during the course of enquiry, the said Contessa car was collected by Mr. Kamalapathy and Mr. Palini with the help of driver, Babu at 12 noon. This means that the said Contessa car was not at all available in the office premises at about 8.45 a.m. in the morning what it was alleged by Mr. Joseph Mariadas that the first party collected the key of the said car from him. Though Mr. Joseph Mariadas states that the first party did not turn up till 10 p.m. on 31.12.1994, there is no any evidence on behalf of the management as to what time the first party brought the car back on 1st of January 1995 and to whom he handed over the key. The evidence of Mr. P.M. Kamalapathy and Mr.Joseph Mariadas contradicts each other and they themselves are not sure as to what time the first party collected the car and which car he collected from Mr. Joseph Mariadas.

It is significant to note here that the management did not produce the log book at the said Contessa car to ascertain as to what was the opening kms when it was collected by the first party and what was the closing kms when it was brought back by the first party. It is only from the logbook one can ascertain the opening as well as closing kms of the car as well as the total distance it has run and approximate quantity of fuel consumed. For the reasons best known to them, the management did not produce the log book before the enquiry officer to establish the case that the first party has utilized the car for particular period and has run the car for particular kilometres. Generally the log book also contain the timings at which the car was collected by the driver and timings at which the car was collected by the driver and timings at which it was handed over to the security personnel. If at all really the first party had committed the misconduct alleged against him the log book would have been a clinching evidence to establish his misconduct. However, the management did not bother to produce the log book of the said car. Mr. Kamalapathy either in his letter or during the course of his evidence is able to give the opening kilometres and the closing kilometres. In the show cause notice it is stated that only around 2 litres of petrol was left in the car. Whereas during the course of the evidence Mr. Kamalapathy stated that around 5 to 6 litres of petrol was left in the car. Sri. Kamalapathy himself was not sure as to how much fuel was consumed and how much fuel was left out in the car.

The first party states that he was detailed for duties on 31.12.1994 and he returned for duties at 9 a.m. and left the premises only at 6.15 p.m. The management denies that he was detailed on duty on that day. At one point of time it was asserted by the management that the first party did not possess duty slip to establish that he was detailed for duty on that day. However, during the course of his cross-examination, Mr. Kamalapathy states that duty slip are not given to any driver who works during the duty hours including on holidays. He further states that duty slips are issued to drivers only when they are on guest duty. It was further alleged that the first party did not sign the attendance register for having attended the duties officially on 31.12.1994. It is the case of the first party & since beginning that the daily duty roaster attendance register was not available on the table in the office therefore he could not put his signature. He further states that it is the practice in the company that whenever they attend they duty on holidays, they put the signature on the duty roasters / attendance register on the next day. The fact remains that on that day the first party was on duty and he has filled up 50 litres of petrol to the above said car. It at all the first party were to be not on duty the security personnel would not have given him the key of the car without satisfying themselves that he has detailed for duty on that day. As already pointed out, Mr. Joseph Mariadas was not at all on duty as could be seen from the daily duty roaster dated 31.12.1994 from 9 a.m. to 6.15 p.m. during which time the first party was on duty.

The management has produced the credit bill dated 31.12.1994 issued by the petrol bunk owners by name D.M. & Sons, which is marked as Ex.M.7 during the course of enquiry. The management has also produced a letter said to have been written by the cashier of the above said petrol bunk. The said letter of the cashier by name Mr. R. Narayan is produced during the course of enquiry and has been marked as Ex.M.15 in the enquiry. In the said letter the said Mr. R. Narayan states that the first party came over to the petrol bunk on 31.12.1994 and got filled up the car with 50 liters of petrol at about 9.30 p.m. It could be seen from the said letter that the said Mr. Narayan has struck out ‘morning’ and in its place he mentions, initially, as 9.30 hours and later adds “P.M.” to the same. It is not clear from the said letter as to whether the petrol was filled up at 9.30 in the morning or 9.30 in the evening. The management also did not examine the said R. Narayan to get clarification as to the correction made in his letter and also as to the correct timing. From the letter of the said Mr. Narayan one cannot say of the certainty as to whether the petrol was filled up at 9.30 in the morning or 9.30 in the evening. From the word “09.30 hrs p.m.” one can infer that the said Mr. R. Narayan himself is not sure as to whether the first party came in the morning or in the evening at 9.30. The enquiry officer has failed to take notice of the serious contradictions in the evidence of Mr. Kamalapathy as well as Sri. Joseph Mariadas regarding the make of the car collected by the first party and the actual timings when the car was collected. The enquiry officer has also not taken into consideration the duty hours of Mr. Joseph Mariadas and comes to the conclusion that he was on duty since from the morning on that day though the duty roaster discloses that Mr. Joseph Mariadas reported for duty only in the 3rd shift which started at 22 hours on 31.12.1994. The management has utterly failed to establish that the first party unauthorizedly collected the keys of the above said Contessa car on 31.12.1994 at about 8.45 p.m. and got it filled up with 50 litres of petrol and misused it and brought it back only on the morning of 1st January 1995. During the course of the cross-examination of the first party the management representative made two suggestions to the first party at question no.25 and 26 which are contradictory to each other. While putting question no. 25, the management representative suggests that according to the report of Mr. Joseph Mariadas submitted to the management, the first party collected the key of the car at 8.45 p.m. stating that he was on duty and did not return till 10 p.m. on that day. While putting questions no. 26 the management representative suggests that during the course of his evidence, Mr. Joseph Mariadas has stated that the first party came at 8.45 in the morning and collected the keys and did not return upto 10 p.m. on that date. From these two suggestions one can very well make out that the management itself is not sure as to when actually the first party came to the security and at what time he collected the keys from Mr. Joseph Mariadas. As already pointed out above, the management is also not sure about the make of the car which actually was collected by the first party since Mr. Kamalapathy states that first party took Contessa car whereas Mr. Joseph Mariadas states that first party took the key of Maruthi car. Despite these serious contradictions appearing in the evidence of the management witnesses and despite serious discrepancy in the letter submitted by Mr. R. Narayan, the cashier of the petrol bunk the enquiry officer was totally incorrect in coming to the conclusion that the first party has committed the misconduct alleged against him. As rightly pointed out by the learned advocate for the first party, the enquiry officer without properly going through the oral as well as documentary evidence placed on record by the parties has come to a wrong conclusion holding the first party guilty of the misconduct alleged. Therefore, I am of the opinion that the findings of the enquiry officer is perverse and therefore is liable to be set aside.

The II party management without properly appreciating the material placed on record before the enquiry office has blindly accepted his findings despite the first party pointing out the serious contradictions in the evidence of management witnesses. The management was totally incorrect in accepting the perverse findings of the enquiry officer and acting upon the same the II party management is certainly not justified in dismissing the first party from service for the misconduct which is not at all committed. Therefore, I am of the opinion that the impugned order of dismissal passed against the first party workman is liable to be set aside and the II party / management has to be directed to reinstate the first party into his original post together with continuity of service and other consequential benefits. There is no any material on record to believe that the first party was / is gainfully employed subsequent to his dismissal by the II party management. No material has also has been placed by the II party management establishing the alleged gainful employment of the first party subsequent to his dismissal. Therefore, I am of the opinion that the first party is entitled to full back-wages from the date of dismissal till the date of his reinstatement together with continuity of service and other consequential benefits. The period of suspension shall be treated as leave available at the credit of the first party.

In the result, I proceed to pass the following:-

ORDER

The dispute raised by the first party workman U/sec.10 (4-A) of the ID Act, 1947, is allowed and the impugned order dated 12.09.1995 passed by the II party dismissing the first party from service is set aside. Further, the II party management is hereby directed to reinstate the first party in his original post forthwith together with continuity of service, consequential benefits together with full back-wages from the date of dismissal till the date of actual reinstatement and cost of this proceedings quantified at Rs.1,500/-.

(Dictated to the judgment writer, transcript corrected and then signed by me)

(P.V. SINGRI)

Presiding Officer
II. Addl. Labour Court,
Bangalore