D.P. Kundu, J.
1. In this writ application, the writ petitioner has. Inter alia, prayed for a writ of mandamus and/or writ tn the nature thereof, commending the respondent No. 1 and/or each one of them to forthwith cancel, set aside, withdraw and rescind the impugned order dated 27.2.96, (annexure 'J' of the writ petition) passed by the 3rd industrial Tribunal, West Bengal. The petitioner also prayed for a writ and/or a writ in the nature of certiorari.
2. Admittedly, Shri Mani Gopal De, respondent No. 3, was a workman of the writ petitioner, By virtue of a charge-sheet dated 21.4.84 certain charge were levelled against the workman. The relevant portions from the charge-sheet are quoted hereinbelow.
"You are hereby directed to submit your application for the following charge(s) "within 48 hrs" of the receipt of this Charge Sheet and to show cause why disciplinary action should not be taken against you for the following Major/Misdemeanour.
DESCRIPTION OF CHARGES.
It has been reported against you as under:
i) That on 10th April, 1984 you were on duty in 'A' shift from 8.00 a.m. to 5.06 p.m. In Fitting Jetty Canteen.
ii) That on the aforesaid day at about 9.05. a.m. you were going out of Fitting out Jetty through the small gate. Security Guard on duty took you inside the Security Office and your bag was searched there in presence of other security Staff.
iii) That during the checking, Tea (dust) about 875 grms. approx. wrapped in a white cloth was found in your bag. On being enquires into neither you could produce any valid Gate Pass nor could you give any satisfactory reply to the Security Staff on duty."
3. Your above acts, if proved, constitutes Major Misdemeanour and you are hereby charged under Clauses 5 and 11 of the Certified Standing Orders, applicable to you, i.e.,
i) Theft within the factory or fraud or a dishonesty in connection with the company's property.
ii) Commission of any act subversive of good behaviour or of the discipline of the Company.
4. Consequent upon the said charge-sheet, the workman submitted an explanation which was dated 24.4.84. The relevant portions from the said explanation are quoted hereinbelow:
"I am informing you, when I was going out of the gate office, at that lime the security called me from near the door and asked to see my bag. Then I looked into my shopping bag myself, on looking into it, a bundle tied up in cloth was found. Then I told the security, someone has dropped this into my bag, out of enmity. I do not know anything. Then Sir, I further inform you that on 10/4/84 last I had Sunday Off. But, as there was important work, Malaker Saheb had told me not to take Sunday Off. At about 9.15 a.m. In the morning I went down with the shopping bag, (after) keeping the bag on the table in the big dinnlng-room I took my food and was eating in the small dinning room. After I finished eating, I went to the bath-room. After coming out of bath-room, I took the bag and for going to the market quickly. I came near the gate. Then the security called me from near the door, and wanted to see my bag. Then I looked into my bag with my own hands. On looking, a bundle tied in cloth, was found. Then I told the security, someone has put it inside my bag, out of enmity. I have immediately deposited (it) by myself, at the security office."
5. It is apparent from the explanation given by the workmen that on 10th April. 1984 while the workman was going out from the Company premises, during the checking conducted by the Security Officer, Tea (dust) wrapped in a white cloth was found in his bag. Thereafter an enquiry was held and after conclusion of the enquiry the disciplinary authority dismissed the workman. The relevant portions from the order of dismissal dated 13th May, 1985 are quoted hereinbelow:
"Further to the Charge Sheet No. FOJ/3/84 dated 21.4.84 issued to you, a domestic enquiry was held to enquire into the charge levelled against you. We find from the Proceedings of (he Enquiry that all opportunities were given to you for conducting your defence in the Enquiry by examining your witnesses) and also cross-examining the Prosecution wilness(s) and that you also fully participated in the Enquiry.
We have carefully gone through the Proceeding of the Enquiry and the Findings of the Enquiry Officer including all the materials on record and concur with the findings of the Enquiry Officer that the charges levelled against you vide Charge Sheet No. FOJ/3/84 dated 21.4.84 have been established beyond reasonable doubt.
The charges levelled against you being "Major Misdemeanours" under the Certified Standing orders of the Company applicable to you, the punishment warranted is that of dismissal. We have looked into your past record and have not found any extenuating circumstances.
In the circumstances, it has been decided to dismiss you from the services of the Company. Accordingly, you are hereby dismissed from the Company's services wllh immediate effect. You are advised to contract A.C.A. (S) for collection of P.P. as per Rules and C.T.K. either legal dues in full and final settlement."
In connection with the dismissal of workman from the Company an industrial dispute was raised and subsequently the said industrial dispute was referred to the 3rd industrial Tribunal, West Bengal. Calcutta for adjudication of the following issues:
"Is the dismissal of the workman, Shri Nani Gopal Dey. T. No. CV-144, Steward of FOJ Canteen justified? To what relief. If any, is be entitled?
6. The 3rd industrial Tribunal, West Bengal. Calcutta passed an award on the 27th February, 1996. In the said award, the 3rd industrial Tribunal, West Bengal, Calcutta held as follows:
Having considered the entire evidence on record and in view of the fact that there was general infirmity in the case of the company as no seizure list was prepared and the value of the alleged stolen lea-dust was not mentioned and disclosed in the charge-sheet and as there is no sufficient evidence on the side of the company in support of the case that the tea-dust packet was really found inside a bag which the workman was carrying and furthermore when nothing on record suggests that he had some bad antecedents in his career, I hold that even if the charge is accepted to have been proved then also I cannot be in agreement with the management of the company who had inflicted such extreme punishment on the concerned workman by dismissing him from service as that punishment in my view appears to be aggressive and as such it is held to be unjustified. The issue is therefore, answered in the negative. That being so, the workman is entitled to be reinstated with full back wages and other consequential benefits like bonus etc.
This is my award. Let the award be sent to the Government for publication.
7. It appears from the said award that a preliminary issue as to whether the departmental enquiry held by the employer was fair and proper was framed by the Tribunal and the Tribunal in connection with the said preliminary issue held that the domestic enquiry conducted by the employer against the workman was fair and proper and there was no violation of principle of natural justice in the following enquiry proceedings.
8. In the case of Wimco Shramik Union, v. 7th Industrial Tribunal, reported . In 1987 Lab IC 77, a Division Bench of this High Court held as follows:
"......when fn the instant case, the employee concerned was really guilty of stealing Company's property his act of action can certainly be deemed to be an act of misconduct and while on this point we agree with Dr. Pal's submissions that unless such an employee of the present nature, who was found guilty of such misconduct of stealing as mentioned above. Is allowed to proceed with or such admitted finding of the guilty conduct is allowed to be exonerated by a lesser punishment under section 11A of the said Act, it would be very difficult for the employer to maintain discipline in the organisation. Such being the fact and when on the basis of the findings of the Respondent-Tribunal it is abundantly clear that the Respondent Company, in the instant case took necessary steps in terms of their certified standing orders, there was no violation of any natural justice or lack of any opportunity to the employees concerned and over and above that there was concession made by the learned lawyer appearing for and on behalf of the employee concerned on the point as indicated hereinbefore, the Respondent Tribunal was Justified in the making the impugned order. We observe so and we are also of the view, that although section 11A of the said Act gives some discretionary powers to the authorities as mentioned therein, to interfere with the punishment as imposed in some cases, but such discretionary power is not absolute and the same must be used and exercised sparingly and in a proper case or in such case where the employee concerned has not been found to be guilty of offence charged under the certified standing orders and there has been no violation of any principles of natural Justice and fundamentals of fair play'.
"...... In this case, of course, the act as complained of against the employee concerned was a misconduct under the certified standing orders of the Company and more particularly under clauses 52(d) and 52(p). The offence as alleged against ihe employee concerned. In our view, would expose him to penal consequences under the Standing Orders of the Respondent Company and considering the gravity of the offence, we also feel that the order of dismissal as was passed, was not justified. We further feel that the offence of theft as in this case, which was committed by the employee concerned, showed that he was dishonest and his stability and reliability to continue in service may be affected by that reason and would have a bearing on his contract of service and as such, in terms of the observations in J.K. Cotton and Spinning & Weaving Co. Ltd. v. Its Workmen (1965-2LLJ 153) (SC) supra the said offence would be a good ground for dismissing the employee concerned from the service. While on the point of theft, we also feel that in inflicting the punishment for the misconduct of theft, the nature of theft will have an important bearing and in this case on the basis of the offence as committed, the punishment as imposed was neither harsh nor improper or unwarranted. Such being the position, the submission of Mr. Dutt that the Respondent Tribunal, while making the impugned Award, should have considered the long period of unblemished service rendered by the employee concerned to his employer, had no merit in terms of the determination in Rustoms Hornsby (P) Ltd. v. T.B. Kadam (1975) Lab. IC. 1455 (SC) (supra) even an attempt to steal the employer's property on the part of the workman was serious charge and deserve nothing short of dismissal".
9. In Rustom and Hornsby (P) Ltd. v. T.B. Kadam, reported in (1975)--II-LLJ 352 Supreme Court observed as follows:
"We, therefore, come to the conclusion that there was no failure on the part of the enquiry officer to give a reasonable opportunity to the respondent workmen, that the enquiry was fair and the labour court had, therefore no right to examine the witness on behalf of the workman and based on that evidence to upset the finding arrived at the domestic enquiry. We also hold that the punishment imposed in the circumstances is one which the labour court can not interfere. The result is that the appeal will have to be allowed and the award of the Labour Court set aside".
10. In J.K. Cotton and Spinning & Weaving Co. v. Workmen reported in (1965) 2-LLJ 153 Supreme Court observed as follows:
"Where the industrial Tribunal finds that there was nothing improper or unfair in an enquiry conducted by the domestic tribunal and where the action taken against workmen was not actuated by any ulterior motive and where the principles of natural justice have not been infringed, it is beyond the powers of an industrial Tribunal to set at naught the action taken by the management which lay within its competence under the standing orders".
11. In the instant case it has already been noted that the Tribunal while dealing with the preliminary issue held that the enquiry conducted against the workmen was fair and there was no violation of natural justice. There is nothing on record to that the disciplinary proceeding against the workmen was initiated with an ulterior motive.
12. It is also useful to refer to the observation of the Supreme Court in Govinda Menon v. Union of India, reported in 1960-II-LLJ 249. In Govinda Menon case (supra) Supreme Court observed as follows:
"if a servant conducts himself in a way inconsistent with the faithful discharge of his duty in the service, it is misconduct which Justified immediate dismissal. That misconduct, according to my view need not be misconduct in the carrying on of the service or the business. It is sufficient if it is conduct which is pre-judlclal or is likely to be prejudicial to the interests or to the reputation of the master and the master will be justified, not only if he discovered it at the time, but also if he discovers it afterwards, in dismissing that servant".
13. On the materials and evidence on record, if correct approach had been applied, the Tribunal would have bound to come to the conclusion on the record that a reasonable man would come to the conclusion that the workman concerned was guilty of theft and that the management has acted bonafide.
14. In view of the discussions made hereinabove the challenge is quashed and set aside. Accordingly the writ application is allowed. There will be no order as to costs.
15. Petition allowed