Dismissed

G.Bharadwaj, v. Hindustan Shipyard Ltd.

Telangana HC16 Sept 2013WA/354/2006

Case brief

AI extract

What is this about?

The High Court dismissed the writ appeal, confirming the Tribunal and Single Judge's orders. The bench held that the domestic enquiry was valid, the dismissal was justified due to the gravity of dishonest charges, and Section 11-A powers were not abused as the punishment was not arbitrary.

What did the court decide?

The Writ Appeal is dismissed confirming the demotion and termination of the appellant.

G.Bharadwaj, Vs Hindustan Shipyard Ltd. — Pension and Retirement Benefits | Telangana HC (2013)

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HON’BLE SRI JUSTICE ASHUTOSH MOHUNTA AND HON’BLE SRI JUSTICE A.RAJASHEKER REDDY

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W.A. No.354 OF 2006

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Date: 16-09-2013

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Between:

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G.Bharadwaj. ..Appellant

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And

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Hindustan Shipyard Ltd., Rep. by its Chairman and Managing Director, Gandhigram, Visakhapatnam and another. … Respondents

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HON’BLE SRI JUSTICE ASHUTOSH MOHUNTA AND HON’BLE SRI JUSTICE A.RAJASHEKER REDDY

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W.A. No.354 OF 2006

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JUDGMENT: (Per Hon’ble Sri Justice A.Rajasheker Reddy)

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This Writ Appeal is directed against orders dated 16.02.2006 in W.P.No.13488 of 1997 wherein the learned Single Judge dismissed the writ petition by confirming the Award of the Tribunal dated 27.08.1996 in I.D.No.17 of 1990.

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2. Brief facts which are necessary for disposal of the Writ Appeal are as follows:

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The Appellant was appointed in the Hindustan Shipyard Limited in the year 1972. In May, 1985, he took charge of the seat dealing with public tenders and while he was working in the said capacity in the purchase department, he was issued charge-sheet on 15.07.1986, wherein three charges were framed and he was suspended from service.

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3. The charges levelled against the appellant is that on 30.06.1986 he sold five demand drafts, submitted by various parties in favour of Hindustan Shipyard Limited, to one Pankaj Mehta, proprietor of M/s.Jyothi Corporation, Madras, to enable him to purchase tender documents from the purchase department of M/s. Hindustan Shipyard Limited. It was alleged that the Appellant had stolen these demand drafts when they were kept under the lock and key of Sri P.James, Purchase Officer and to have submitted them, with a covering letter dated 12.06.1986, to the cash section with the forged initials of Sri P.James.

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4. The Appellant submitted his explanation denying the charges. The respondent-Management appointed Sri R.V.Krishna Rao, Personal Officer, as the Enquiry Officer to conduct an enquiry into the charges levelled against the appellant. After conducting an enquiry, the Enquiry Officer found that the charges levelled against the Appellant have been proved. Based on the report of the Enquiry Officer dated 24.02.1988, the General Manager (Designs and Material) of the respondent-Management, dismissed the Appellant from service. Aggrieved thereby, the Appellant approached the Industrial Tribunal-cum-Labour Court, Visakhapatnam by filing an application under Section 2-A(2) of the Industrial Disputes Act, 1947 (for brevity ‘the Act’) in I.D.No.17 of 1990. The Tribunal, by order dated 10.08.1994, upheld the validity of the domestic enquiry in dismissing the Appellant from service and held that the Appellant was not entitled to any relief in this regard. Aggrieved by the same, he filed Writ Petition No.13488 of 1997 and the same was dismissed by the learned Single Judge by orders dated 16.02.2006, against the same, the present Writ Appeal is filed.

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5. Learned Counsel appearing on behalf of the appellant contends that the order of the Tribunal upholding the validity of the domestic enquiry was not valid. He further contends that the punishment imposed on the appellant by an incompetent authority and the said enquiry was conducted in violation of principles of natural justice and that the appellant was denied the opportunity of cross-examining the material witness. He further contends that the Tribunal failed to properly exercise the powers conferred on it under Section 11-A of the Act. He further contends that since the value of the amount involved is negligible the punishment, of dismissal, imposed on the appellant was grossly disproportionate to the charges held established.

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6. The learned counsel appearing for the respondents contends that since clause 11 of the delegation of powers merely enables the Chairman and Managing Director to review the procedure and take a decision on its continuance, the mere fact that the said procedure was not reviewed, did not mean that the revised procedure, prescribed in the delegation of powers dated 01.07.1983, ceased to remain in force. In support of his contention he refer to paragraph 7 of the award of the Tribunal, wherein it is held thus:

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It is elicited in the cross-examination of M.W.1 that there is no revised subsequent instructional order in this respect to his knowledge. But in view of the provision made in clause 11 for reviewing the procedure after 6 months, the same is to be taken as reviewed and accepted even after the expiry of the period mentioned therein by the management by its behaviour on following this procedure even after the said period of six months. In view of the statement of MW1 that Ex.M1 is being followed in all the cases of disciplinary action, it is to be implied that the Chairman and Managing Director reviewed and continued the same procedure and this position is implied unless and until Ex.M1 is revoked by him by an express and specific order. Thus, I come to the conclusion that Ex.M1 governs the disciplinary action taken against the petitioner herein. In this Ex.M1, the disciplinary authority is stated to be general manager, who is the head of the Group division and where punishment of dismissal is considered ‘appropriate’, he shall consult the general manager (P&A) before imposing the punishment. Even as per the regulation 2(c ) under Ex.W1, the Managing Director of the company is empowered to authorize any person to act on his behalf. It is stated in the reply written arguments filed by the management that the Hindustan

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Shipyard Ltd is having its Chairman and Managing Director who heads the organization and who functions through several divisional departments and heads in order to have effective control of the working of the organization and powers are delegated to them, and Ex.M1 is one such delegation of powers relating to service matters. It is stated in the written arguments filed by the management that as per Ex.M1 the disciplinary authority is general manager (heads of division) and when the charge sheet was given to the workman in 1986, the divisional head of the purchase department where he was working is general manager (technical) and when the dismissal orders were issued in 1988 the divisional head is general manager (designs and materials). Thus, it is evident that concerned general managers at the relevant time issued charge sheet and dismissal orders respectively and thus, both are competent to issue the same. Further they have not stated to be below the rank of the chief personnel officer of the management company, who issued the appointment order under Ex.M2. Thus, viewed from any point, there is no force in the contention of the petitioner that the authorities, who issued charge sheet and who passed dismissal order against him are not competent to do so.”

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The contention of the counsel for the appellant that the General Manager was not competent to impose punishment was also negatived by the Labour Court after discussing the issue in paragraph 7 of the Award, which was upheld by the learned Single Judge. We have also gone through the Award of the Industrial Tribunal and the findings of the learned Single Judge regarding this aspect and we do not find any error in the view taken by the Industrial Tribunal as well as the learned Single Judge. It is well settled that the certiorari jurisdiction of this Court, against orders of Tribunals, is supervisory and not appellate. As such, the findings of the Tribunal in this issue, as confirmed by the learned Single Judge, cannot be interfered with under writ appellate jurisdiction.

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7. In the present case, the Labour Court after discussing the entire material on record, held that the domestic enquiry is valid and also held that the General Manager is competent authority for issuing dismissal order of the Appellant.

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8. Another aspect canvassed by the learned counsel for the appellant that Sri Pankaj Mehta, whose letter was relied upon by the enquiry officer to come to the conclusion that the appellant was guilty of misconduct. The said question has been considered by the learned Single Judge and held that the Enquiry Officer cannot compel the attendance of the witnesses by issuing summons like the Court and also found that nothing prevented the appellant from producing Sri Pankaj Mehta as a witness. It is also held that mere fact that Sri Pankaj Mehta was not examined as a witness cannot automatically lead to the conclusion that the enquiry proceedings are vitiated. It is also found that unlike in criminal proceedings, the degree of proof required in domestic enquiries is preponderance of probabilities and not proof beyond reasonable doubt. The learned Single Judge has also relied on several judgments and held that nonexamination of none of the witnesses will not vitiate the enquiry.

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9. The learned Single Judge has appreciated the evidence of P.Ws.3 and 4 and came to the conclusion that there is ample evidence on record to prove the charges of misconduct levelled against the appellant and failure to examine M.W.5, Sri Pankaj Mehta is of no consequence.

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10. The Tribunal also observed that the appellant wrote the letter, but had merely contended that it was obtained under threat and coercion. The Tribunal disbelieved the appellant’s version regarding coercion, since the inland letter bore a postal stamp and was sent by post to Pankaj Mehta at Madras. The learned Single Judge also observed that the conclusions of the Tribunal in this regard cannot be said to be perverse, nor can these findings be said to be based on no evidence, because there is ample evidence, which was discussed by the Tribunal as well as the learned Single Judge. As such, mere non-examination of M.W.5, Pankaj Mehta will not vitiate the case of the appellant and other evidence was found to be sufficient for coming to the conclusion that the appellant was guilty of the charges levelled against him.

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The Supreme Court held in State of Haryana v. Rattan Sing h^[1] held that strict rules of evidence are not applicable to the domestic enquiries.

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11. The learned counsel for the appellant further contended regarding proportionality of punishment that

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the value of the Demand Drafts was for a negligible amount and even if the charges levelled against the petitioner were held to be proved, it could not be said that the charges were so grave as to warrant imposition of the deterrent punishment of dismissal from service. The learned counsel would contend that the Tribunal, in exercise of its jurisdiction under Section 11-A of the Act, has the power not only to reappreciate the evidence on record, but also to modify the punishment imposed by the employer, and since the award of the Tribunal, on the quantum of punishment, suffers from patent illegality, the award is liable to be set aside.

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12. No doubt, the charges established against the appellant is that he had sold five DDs of Rs.300/-, Rs.300/-, Rs.200/-, Rs.300/- and Rs.200/- submitted by various other parties in favour of M/s.Hndustan Shipyard Limited to Sri Pankaj Mehta, Proprietor of M/s.Jyothi Corporation, Madras to enable them to purchase tender documents from the purchase department of Hindustan Shipyard Limited. The other charge relates to stealing of DDs from the drawer of Mr. P.James, Purchase Officer and to have submitted these five DDs with a covering letter on 12.06.1986 to the cash section with the forged initial of Sri P.James. While it is true that the value of all the five DDs put together is Rs.1300/-, the fact remains that the misconduct held proved against the appellant includes cheating the management, colluding with parties, illegally collecting money from them and in assisting them in illegal submission of tender documents. The appellant was also held guilty of forging the initials of an officer of the corporation and in stealing DDs from his drawer. It is also found that the three charges were grave in nature involving dishonesty on the part of the appellant and that in view of the gravity of the charges, the management could not be forced to impose any lesser punishment than that of dismissal from service. The Tribunal after considering above these aspects, held that it cannot interfere with the quantum of punishment imposed on the Appellant. The Tribunal has assigned valid reasons for its conclusion that the punishment of dismissal, imposed by the respondents on the appellant, is justified. This issue has also been considered by the learned Single Judge. We too agree with the view taken by the learned Single Judge in this aspect.

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13. We have also gone through the Award of the Tribunal as well as the findings of the learned Single Judge. Nothing is brought to our notice in this writ appeal to show that the Award passed by the Labour Court or the order of the learned Single Judge in any way is erroneous. The learned Single Judge has thoroughly discussed the Award of the Labour Court and also relied on several Judgments regarding scope of interference under Section 11-A of the Act and came to the conclusion that the punishment of dismissal from service imposed on the appellant is valid and no interference is called for in this case. 14. In view of the above discussion, we do not find any error in the view taken by the Tribunal as well as the learned Single Judge. Accordingly, we hereby confirm the same.

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Accordingly, the Writ Appeal is dismissed. There shall be no order as to costs. As a sequel thereto, miscellaneous petitions, if any, pending in this Writ Appeal, shall stand closed.

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ASHUTOSH MOHUNTA, J

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_______________________ A.RAJASHEKER REDDY, J

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September, 16, 2013. KVS

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HON’BLE SRI JUSTICE ASHUTOSH MOHUNTA AND HON’BLE SRI JUSTICE A.RAJASHEKER REDDY

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W.A. No.354 OF 2006

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Dated: 16-09-2013

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KVS

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[1] AIR 1977 SC 1512

G.Bharadwaj, v. Hindustan Shipyard Ltd.

Case brief

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What did the court decide?

G.Bharadwaj, v. Hindustan Shipyard Ltd.

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