Mangt.,Bharat Heavy Electricals Ltd. vs M.Mani

Management of Bharat Heavy Electricals Ltd. ….Appellant(s)

VERSUS

M. Mani .…Respondent(s)

WITH

CIVIL APPEAL No.10767 OF 2013

Management of Bharat Heavy Electricals Ltd. ….Appellant(s)

VERSUS

T.A. Mathivanan(D) Thr. L.Rs. .…Respondent(s)

JUDGMENT

Abhay Manohar Sapre, J.

1. These appeals are filed against the common

final judgment and order dated 16.04.2007 passed Signature Not Verified Digitally signed by SWETA DHYANI Date: 2017.11.09 16:14:23 IST Reason:

by the High Court of Judicature at Madras in Writ

1 Appeal Nos.3789 of 2003 and 3790 of 2003 whereby

the High Court allowed the appeals filed by the

respondents and directed the appellant to reinstate

the respondents with continuity of service and other

attendant benefits but without payment of back

wages.

2. In order to appreciate the issues involved in

these two appeals, it is necessary to set out the

facts in detail.

3. The appellant in both the appeals is a Public

Sector undertaking known as-Bharat Heavy

Electricals Ltd.(BHEL). It has a plant at Ranipet in

District Vellore, Tamil Nadu. M. Mani-Respondent

in Civil Appeal No.10766/2013 and T.A.

Mathivanan(since dead) and represented by his legal

representatives-respondent in connected Civil

Appeal No.10767/2013 were the employees of BHEL

at all relevant time and were working as Driver

Grade II in the plant.

2

4. On 17.02.1991, both the respondents were on

duty in the night shift in the Plant. They were

supposed to remain present all the time in the

Transport Department of the Plant so that on

receiving the call they would attend the place of call

with their respective vehicles.

5. It was, however, noticed by the officials

concerned on duty that both the respondents were

not found present on their respective seats and

instead were found driving one forklift FLV in

another shop floor. It was also noticed that they

both had unauthorizedly removed one heavy

machine called-"Face Milling Cutter of 500

diameter” from one shop floor and kept it on forklift

and loaded in company's ambulance, which was

being driven by T.A. Mathivanan. Both of them

then managed to take the said machine in

ambulance outside factory premises through South

gate.

3

6. The officials, who witnessed the incident,

reported the incident to the appellant

(Management). The appellant took up the matter

with seriousness and issued charge-sheet to both

the respondents. They were asked to submit their

explanation. Both denied the charges. The

appellant, therefore, appointed Enquiry Officer for

holding regular departmental enquiry. Both the

respondents participated in the enquiry

proceedings. The Enquiry Officer recorded the

evidence of the witnesses and submitted his report.

The Enquiry Officer, on evaluation of the evidence,

held the charges as proved against both the

respondents. He held that both the respondents

were involved in committing theft of "Face Milling

cutter" and were caught in the factory premises

while on duty. The appellant accepted the report

and dismissed the respondents from service on

31.08.1991. Against their dismissal order, the

respondents filed departmental appeals. The

4 appeals were dismissed.

7. This event gave rise to filing of two cases. One

was by the State in the Court of Magistrate seeking

prosecution of the respondents under Section 379 of

the Indian Penal Code, 1860 (in short “IPC”) and the

other was by the respondents against the appellant

(employer) in Labour Court challenging legality of

their dismissal orders (ID Nos. 801 and 839 of

1993). So far as the criminal case was concerned,

the Magistrate, by his order dated 24.11.1992,

acquitted the respondents from the charge.

8. As regards the cases before the Labour Court

out of which these two appeals arise, the Labour

Court framed three issues, first, whether the

enquiry conducted by the Enquiry Officer was legal

and proper; second, whether the findings of the

Enquiry Officer holding the charge as proved

against the respondents are correct; and third,

whether these two employees are entitled to claim

the relief of reinstatement with back wages?

5

9. By Award dated 06.08.2001 (Annexure-P-9),

the Labour Court answered the reference in favour

of the employees by recording the following findings:

"Hence it can not be said that there has been denial of reasonable opportunity during the enquiry."

and then in Para 7, it was held that,

"it can not be considered that the departmental enquiry has not been held properly."

and then in Para 8 it was held that,

"till the disposal of the criminal case, the Management ought to have stayed the departmental enquiry and they should have passed the order only after the conclusion of the criminal proceedings."

and, in the same Para 8, it was held that,

"Therefore, the object of this provision is that till proceedings of criminal court, the departmental enquiry should not be initiated. Therefore, the respondent ought not to have appointed enquiry officer to conduct the enquiry in respect of same charge which has been pending before the Criminal Court. Such an enquiry held is contrary to principles of natural justice. On this ground, I hold that departmental enquiry is held not in accordance with principle of natural justice"

and in last line of Para 8, it was held that,

“it is for this reason the removal of the employee from service is not justified."

6 The Labour Court then lastly in para 9 held that,

“Having held that the departmental enquiry has not been conducted according to principle of natural justice, it has to be decided whether the finding of the Enquiry Officer that the charge against the petitioner is correct. When the criminal case has been pending the finding of the Enquiry Officer that the petitioner is guilty of the charge is not correct. Further the petitioner has been acquired by the criminal court. Hence when in the criminal proceedings, the petitioner has been found not guilty, I hold that the findings of the Enquiry Officer that the charge against the petitioner had been proved, is not correct.”

10. To sum up, the Labour Court held that, firstly,

the departmental enquiry was properly held;

secondly, the employer instead of holding an

enquiry should have stayed it awaiting the outcome

of the criminal case; thirdly, since the criminal case

resulted in the acquittal of the respondents, the

departmental enquiry stood vitiated as violating the

principle of natural justice; fourthly, since the

employer did not lead any evidence in support of the

charge, the charge remained unproved; and lastly,

the dismissal orders are bad in law in the light of

the four grounds and, therefore, the respondents be

7 reinstated in service with payment of full back

wages by the appellant.

11. The appellant, felt aggrieved, filed writ

petitions in the High Court. The Single Judge, by

order dated 31.07.2003(Annexure-P-11), allowed the

writ petitions, set aside the award of the Labour

Court and remanded the case to the Labour Court

for deciding both the matters afresh. The Single

Judge held that when the Labour Court held the

departmental enquiry to be legal and proper then

the only question that remained for the Labour

Court to decide was as to whether the punishment

imposed on two employees, i.e., “dismissal” was

just, legal and proper or it required any interference

in its quantum and, if so, to what extent. Having

observed this, the writ Court remanded the cases to

Labour Court to decide the cases afresh on merits.

This is what the learned Single Judge in concluding

para held,

“10. Keeping in view of all these aspects, I

8 think interest of justice would be served by quashing the awards in both the cases and directing both the matters are to be considered afresh by the Labour Court. It goes without saying that both the matters should be taken up for hearing together and shall be disposed of. Since the matter is pretty old, the Industrial Disputes are to be decided as expeditiously as possible, preferably within a period of six months from the date of receipt of a copy of this order.”

12. Felt aggrieved, the respondents filed intra

court appeals in the High Court before the Division

Bench. By impugned judgment, the Division Bench

allowed the appeals, set aside the order of writ

Court and directed reinstatement of the

respondents by restoring the order of the Labour

Court to this extent but declined to award to them

any back wages except continuity of service and

other attendant benefits to the respondents.

13. Felt aggrieved by the judgment of the Division

Bench, the appellant(employer) has filed these

appeals by way of special leave before this Court.

14. Heard Mr. P.S. Patwalia, learned senior

counsel for the appellant and Mr. M.A. Chinnasamy

9 and Mr. M.K. Perwez, learned counsel for the

respondents.

15. Having heard learned counsel for the parties

and on perusal of the record of the case, we are

constrained to allow the appeals, set aside the

impugned judgment and uphold the dismissal order

of the respondents as legal and proper.

16. To begin with, when we examine the legality

and the correctness of the Awards of the Labour

Court, we are of the considered opinion that the

Labour Court, having held and indeed rightly that

the departmental enquiry conducted by the

appellant was legal and proper committed an error

in holding that the departmental enquiry got

vitiated due to criminal court's order which had

acquitted the respondents from the charge of theft.

In our opinion, there was no occasion for the

Labour Court to examine this issue once the

departmental enquiry was held legal and proper.

The Labour Court, in our opinion, committed yet

10 another error in holding that since the appellant

failed to lead any evidence to prove the charge in

Labour Court, therefore, the dismissal orders of

respondents are liable to be set aside. This finding,

in our opinion, was again not legally sustainable.

17. In our opinion, once the Labour Court upheld

the departmental enquiry as being legal and proper

then the only question that survived for

consideration before the Labour Court was whether

the punishment of “dismissal” imposed by the

appellant to the respondents was legal and proper

or it requires any interference in its quantum.

18. In other words, the Labour Court should have

then confined its enquiry to examine only one

limited question as to whether the punishment

given to the respondents was, in any way,

disproportionate to the gravity of the charge leveled

against them and this, the Labour Court should

have examined by taking recourse to the provisions

of Section 11-A of the Industrial Dispute Act, 1947

11 (in short “the Act”) and the law laid down by this

Court in the case of The Workmen of M/s

Firestone Tyre & Rubber Co. of India (Pvt.) Ltd.

vs. The Management & Ors., (1973) 1 SCC 813. It

was, however, not done thereby rendering the order

of Labour Court legally unsustainable.

19. Similarly, in our considered view, the Labour

Court failed to see that the criminal proceedings

and departmental proceedings are two separate

proceedings in law. One is initiated by the State

against the delinquent employees in criminal Court

and other, i.e., departmental enquiry which is

initiated by the employer under the Labour/Service

Laws/Rules, against the delinquent employees.

20. The Labour Court should have seen that the

dismissal order of the respondents was not based

on the criminal Court's judgment and it could not

be so for the reason that it was a case of acquittal.

It was, however, based on domestic enquiry, which

the employer had every right to conduct

12 independently of the criminal case.

21. This Court has consistently held that in a case

where the enquiry has been held independently of

the criminal proceedings, acquittal in criminal

Court is of no avail. It is held that even if a person

stood acquitted by the criminal Court, domestic

enquiry can still be held - the reason being that the

standard of proof required in a domestic enquiry

and that in criminal case are altogether different. In

a criminal case, standard of proof required is

beyond reasonable doubt while in a domestic

enquiry, it is the preponderance of probabilities.

(See Divisional Controller, Karnataka State Road

Transport Corporation vs. M.G. Vittal Rao-(2012)

1 SCC 442)

22. In the light of this settled legal position, the

Labour Court was not right in holding that the

departmental enquiry should have been stayed by

the appellant awaiting the decision of the criminal

Court and that it is rendered illegal consequent

13 upon passing of the acquittal order by the criminal

Court. This finding of the Labour Court is,

therefore, also not legally sustainable.

23. Now coming to the order of writ Court (Single

Judge) though, in our opinion, the Single Judge

rightly held the departmental enquiry as being legal

and proper but committed an error in remanding

the case to the Labour Court without precisely

saying as to what the Labour Court has to decide

after remand and why writ Court cannot decide

such issues in the writ petition. We find that the

Single Judge, in concluded para of the order,

remanded the whole case afresh for its decision on

merits.

24. In our considered view, the Single Judge (Writ

Court) having held the enquiry to be legal and

proper instead of remanding the case to the Labour

Court should have himself examined the short

question which had survived for consideration in

the writ petition, namely, whether the punishment

14 of dismissal was commensurate with the charges or

it required any interference by the Court under

Section 11-A of the Act.

25. In other words, the remand to the Labour

Court in this case by the Single Judge was not

called for. It would have become necessary, if the

Single Judge had come to a conclusion that the

departmental enquiry is illegal. In such situation,

the question would have arisen as to whether the

employer should now be given an opportunity to

prove the charge before the Labour Court on merits

by adducing evidence provided such opportunity

had been asked for in any form by the employer

(See- Shankar Chakravarti vs. Britannia Biscuits

Co. Ltd. & Anr. - AIR 1979 SC 1652).

26. However, this occasion did not arise because,

as observed supra, the enquiry was held legal and

proper by the Labour Court and Single Judge.

27. Now coming to the legality of the impugned

judgment, in our considered opinion, there was

15 absolutely no justification on the part of the

Division Bench to have allowed the appeals of the

respondents and restored the order of the Labour

Court by setting aside the dismissal order. The

Division Bench, in our view, did not take note of

correct legal position, which we have discussed

above.

28. In our opinion, this is a clear case where the

departmental enquiry was held legal and proper. We

also, on going through the record of the case, hold

that the departmental enquiry was properly held

and was, therefore, legal and proper. So far as the

quantum of punishment imposed on the

respondents is concerned, having regard to the

nature of charge which stood proved in the enquiry,

in our view, the order of dismissal from service was

the appropriate punishment. It was commensurate

with the charge.

29. An act of theft committed by an employee while

on duty is a serious charge. This charge once

16 proved in enquiry, the employer is justified in

dismissing the employee from service.

30. We are not impressed by the submission urged

by the learned counsel for the respondents

(employees) when he urged that once the

respondents (employees) were acquitted from the

charge of theft by the criminal Court, the dismissal

orders deserve to be set aside entitling the

employees to seek reinstatement in service. Learned

counsel read the entire criminal Court's order to

show that it was an honorable acquittal of the

employees from the charge of theft.

31. The answer to the aforementioned submission

lies in the law laid down by this Court in the case of

Karnataka SRTC (supra). At the cost of repetition,

we may say that in the case on hand, the dismissal

orders had not been passed on the basis of

employees’ conviction by the criminal Court which

later stood set aside by the superior Court. Had it

17 been so, then the situation would have been

different because once the conviction order is set

aside by the superior Court, the dismissal order

which was solely based on passing of the conviction

order also stands set aside. Such was not the case

here.

32. In the case on hand, the appellant (employer)

had conducted the departmental enquiry in

accordance with law independently of the criminal

case wherein the Enquiry Officer, on the basis of the

appreciation of evidence brought on record in the

enquiry proceedings, came to a conclusion that a

charge of theft against the delinquent employees

was proved. This finding was based on

preponderance of probabilities and could be

recorded by the Enquiry Officer notwithstanding the

order of criminal Court acquitting the respondents.

33. In view of the foregoing discussion, the appeals

succeed and are allowed. Impugned judgment is set

18 aside. As a consequence thereof, the dismissal

orders of the respondents herein are held legal and

proper and accordingly upheld.

………...................................J. [R.K. AGRAWAL]

…..…...................................J. [ABHAY MANOHAR SAPRE] New Delhi;

November 09, 2017

19 ITEM NO.1501 COURT NO.8 SECTION XII (For judgment) S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS

Civil Appeal No(s). 10766/2013

MANAGEMENT OF BHARAT HEAVY ELECTRICALS LTD. Appellant(s)

VERSUS

M.MANI Respondent(s)

WITH C.A. No. 10767/2013 (XII)

Date : 09-11-2017 These appeals were called on for pronouncement of judgment today.

For Appellant(s) Mr. B. K. Satija, AOR

For Respondent(s) Mr. M. A. Chinnasamy, AOR Mr. C. Rubravathi, Adv. Mr. V. Senthil Kumar, Adv.

Dr. Kailash Chand, AOR

Hon'ble Mr. Justice Abhay Manohar Sapre

pronounced the judgment of the Bench comprising Hon'ble Mr. Justice R.K. Agrawal and His Lordship.

The appeals are allowed in terms of the signed reportable judgment.

(SWETA DHYANI) (SUMAN JAIN) SENIOR PERSONAL ASSISTANT BRANCH OFFICER

(Signed reportable judgment is placed on the file)

2