Abheraj Jaswal v. M/S Godrej Boyce Manufacturing & Ors.

10. Before we advert to the issue of compliance of the principles of natural justice, we think it appropriate to refer to the principles that have been laid down in certain authorities as regards the compliance of the principles of natural justice in cases of domestic enquiry.

11. In Phulbari Tea Estate (supra), their Lordships, after referring to the decision in Union of India v. T.R. Varma, AIR 1957 SC 882, opined that the rules of natural justice require that a party should have the opportunity of adducing all relevant evidence on which he relies; and that the evidence of the opponent should be taken in his presence; and that he should be given the opportunity of cross-examining the witnesses examined by that party; and that no materials should be relied on against him without affording him an opportunity of explaining them. In the said case, the witnesses in the domestic enquiry who were present at the enquiry were not examined in the presence of the employee, copies of the statements made by the witnesses were not supplied to him before he was asked to question them and the statements which had been recorded were not read over to the employee at the enquiry before he was asked to question the witnesses. Their Lordships took note of the fact that the statements which were recorded were produced on behalf of the company before the tribunal, but the witnesses were not produced so that they might be cross-examined even at that stage on behalf of the employee and in that factual backdrop opined that the conclusion arrived at by the industrial tribunal that the dismissal of the employee was not justified.

12. In the case of Ramanand (supra), the Bench, placing reliance on the decision in State of Madhya Pradesh v. Chintaman, AIR 1961 SC 1623 wherein it was held that the enquiry officer may have acted bonafide but that does not mean that the report passed by him is final and conclusive, held that the test is affording of reasonable opportunity and it is the duty of the court to see whether the reasonable opportunity was extended or not.

13. In Sur Enamel and Stamping Works (P) Ltd. (supra), it has been held that if an industrial employee's services are terminated after a proper domestic enquiry held in accordance with the rules of natural justice and the conclusions reached at the enquiry are not perverse the industrial tribunal is not entitled to consider the propriety or the correctness of the said conclusions. Their Lordships have further expressed that an enquiry cannot be said to have been properly held unless, (i) the employee proceeded against has been informed clearly of the charges levelled against him, (ii) the witnesses are examined - ordinarily in the presence of the employee - in respect of the charges, (iii) the employee is given a fair opportunity to crossexamine witnesses, (iv) he is given a fair opportunity to examine witnesses including himself in his defence if he so wishes on any relevant matter, and

(v) the enquiry officer records his findings with reasons for the same in his report.

14. In K.L. Tripathi v. State Bank of India & Ors., AIR 1984 SC 273 while dealing with the concept of natural justice in the backdrop of departmental proceeding, their Lordships have opined thus – “It is true that all actions against a party which involve penal or adverse consequences must be in accordance with the principles of natural justice but whether any particular principle of natural justice would be applicable to a particular situation or the question whether there has been any infraction of the application of that principle, has to be judged, in the light of facts and circumstances of each particular case. The basic requirement is that there must be fair play in action and the decision must be arrived at in a just and objective manner with regard to the relevance of the materials and reasons. We must reiterate again that the rules of natural justice are flexible and cannot be put on any rigid formula. In order to sustain a complaint of violation of principles of natural justice on the ground of absence of opportunity of crossexamination, it has to be established that prejudice has been caused to the appellant by the procedure followed.”

15. In G. Thirugnanasambandam (supra), their Lordships placed reliance on the decision in Maharashtra State Board of Secondary and Higher Secondary Education v. K.S. Gandhi and Others, (1991) 2 SCC 716, wherein it was laid down that strict rules of the Evidence Act, and the standard of proof envisaged therein do not apply to departmental proceedings or domestic tribunal. It is open to the authorities to receive and place on record all the necessary, relevant, cogent and acceptable material facts though not proved strictly in conformity with the Evidence Act. The material must be germane and relevant to the facts in issue. In grave cases like forgery, fraud, conspiracy, misappropriation, etc. seldom direct evidence would be available. Only the circumstantial evidence would furnish the proof, but inference from the evidence and circumstances must be carefully distinguished from conjectures or speculation. There must be evidence direct or circumstantial to deduce necessary inferences in proof of the facts in issue. There can be no inferences unless there are objective facts, direct or circumstantial from which to infer the other fact which it is sought to establish. It had been further stated that the standard of proof is not proof beyond reasonable doubt but the preponderance of probabilities tending to draw an inference that the fact must be more probable. Thereafter, their Lordships expressed as follows:

16. From the aforesaid decisions, it is quite vivid that in a domestic enquiry, the principles of natural justice are to be observed on certain parameters and the enquiry is to be fairly and properly conducted. That apart, the proof in a domestic enquiry stands on a different platform that is required in a court of law.

17. Presently, we shall advert to the facts of the present case whether there has been real violation of the principles of natural justice. For the said purpose, we have perused the findings of the enquiry officer. On a scrutiny of Para 11 of the enquiry report, it is absolutely vivid that the management submitted a list of documents along with the photocopies of the same on 14.04.1997 and, on a request being made by the delinquent employee, submitted the names of three witnesses and additional documents on 25.04.1997. On the other hand, the workman, on being asked for list of witnesses and documents, paved the path of various subterfuge on many an occasion. It has been recorded by the enquiry officer that the workman was provided with ample opportunities for demanding documents from the management and that the same were duly complied with.

18. On a bare reading of the report, it is graphically clear that the witnesses were duly examined and cross-examined. The enquiry officer has addressed himself to the exchange of communications and various exhibits in a detailed manner. It is worth nothing that the workman, vide letter dated 26th November 1977, requested the Enquiry Officer to call for Mr. Manoj Sadavarte, Assistant Manager, Mr. Rajesh Kumar (Puliyani), Service Officer and Mr. Laxman Singh, Warehouse Keeper as defence witnesses. The said request was forwarded to the Management Representative to be put up before the Branch Manager of the Company. It was informed by Mr.Jaswal that the three witnesses are willing to appear as defence witness once they were permitted by the Branch Manager. However, in the enquiry held on 27th November 1997, the Management Representative informed that one of the 3 witnesses, Mr.Puliyani, had already appeared as Management Witness and cross-examined and, therefore, was not allowed to appear as defence witness. The other two witnesses, though permitted to appear, did not finally appear, pleading their inability. The management submitted its written arguments on 18.2.1998. On 26.2.1998, the workman requested for the arrangement of the presence of Shri B.N. Srivastava who is a handwriting and finger print expert who accordingly appeared on 9.3.1998 and was cross-examined by the workman.

19. Be it noted, after the evidence of the management was over, the workman, who was asked to lead his evidence, produced some documents along with oral evidence.

20. From the aforesaid scrutiny of the factual matrix, there can be no iota of doubt that the employee was afforded adequate opportunity to defend himself and there has been no violation of the principles of natural justice.

21. The second limb that is required to be adverted to is whether the labour court has failed to exercise the power under Section 11A of the Act. As is perceptible from the charges levelled against him, it was a case of dishonesty, which has been proven. We have already held that the finding returned by the labour court, which has been concurred with by the learned Single Judge, that the principles of natural justice have been appositely followed and there has been no violation of the same is absolutely correct. The question that emerges is whether the appellant should have been imposed a lesser punishment by the labour court in exercise of power conferred on him under Section 11A of the Act.

22. In the case of U.P. State Road Transport Corporation v. Vinod Kumar, (2008) 1 SCC 115, a two-Judge Bench of the Apex Court has held thus: - “This Court in a number of judgments has held that the punishment of removal/dismissal is the appropriate punishment for an employee found guilty of misappropriation of funds; and the courts should be reluctant to reduce the punishment on misplaced sympathy for a workman. That, there is nothing wrong in the employer losing confidence or faith in such an employee and awarding punishment of dismissal. That, in such cases, there is no place for generosity or misplaced sympathy on the part of the judicial forums and interfering with the quantum of punishment.”

23. In Divisional Controller, NEKRTC v. H. Amaresh, (2006) 6 SCC 187, it has been ruled as follows: - “In the instant case, the misappropriation of the funds by the delinquent employee was only Rs.360.95. This Court has considered the punishment that may be awarded to the delinquent employees who misappropriated the funds of the Corporation and the facts to be considered. This Court in a catena of judgments held that the loss of confidence is the primary factor and not the amount of money misappropriated and that the sympathy or generosity cannot be a factor which is impermissible in law. When an employee is found guilty of pilferage or of misappropriating the Corporation‟s funds, there is nothing wrong in the Corporation losing confidence or faith in such an employee and awarding punishment of dismissal. In such cases, there is no place for generosity or misplaced sympathy on the part of the judicial forums and interfering therefore with the quantum of punishment.” Recently, same principle has been reiterated in the case of Suresh Chand Sharma (supra).

24. In the case at hand, the employee had diverted the customers of the company to the third party as a consequence of which the company had sustained loss. It is a dishonest act. A employer is bound to loose faith in such an employee. Regard being had to the gravity of the misconduct, we are of the considered opinion that a lesser punishment could not have been imposed by the labour court in exercise of jurisdiction under Section 11A of the Act.

25. Resultantly, we do not perceive any merit in this appeal and, accordingly, the same stands dismissed without any order as to costs.

CHIEF JUSTICE SANJIV KHANNA, J AUGUST 8, 2011 dk