D.Y. Chandrachud, J.
1. An order of dismissal has been sustained by the Labour Court in a reference to adjudication under section 10 of the Industrial Disputes Act, 1947. The Labour Court has held that the misconduct stood proved. This conclusion was arrived at on the basis of evidence which was adduced before the Labour Court on behalf of the employer, the first respondent to these proceedings. The Labour Court had initially come to the conclusion that the enquiry which had been held by the employer into the charge of misconduct was not fair and proper. Consequently in view of the well settled position in law an opportunity was given to the employer to sustain the charge of misconduct by leading evidence before the Labour Court. On the basis of the evidence, the Labour Court concluded that the charge was established and that the penalty of dismissal was not disproportionate to the nature of the misconduct.
2. The petitioner before the Court was employed as a store-keeper with the first respondent. On 10th July, 1984 a charge-sheet came to be issued in relation to an incident which had taken place on 17th May, 1984 when the petitioner was in the General Shift between 8.30 a.m. and 5.00 p.m. As a storekeeper, the duties of the petitioner included receiving deliveries of petrol and High Speed Diesel from suppliers and maintaining the stock of these supplies which were received in bulk and stored in the underground tanks of the first respondent. It was alleged that on 17th May, 1984 at 2.15 p.m. an oil tanker containing 12000 litres of High Speed Diesel dispatched by Hindustan Petroleum Corporation arrived at the premises of the first respondent. The petitioner as a storekeeper received the tanker but directed the driver of the tanker to discharge the contents of only two of the three compartments of the said tanker, each of which contained 4000 litres of HSD. The allegation of the Management was that the driver was instructed not to discharge the contents of the third compartment in the tanker, but to drive the tanker away to Saki Naka where a person, who would identify the tanker would be waiting to discharge the contents of the third compartment. A sealed envelope was allegedly stated to have been given to the driver of the tanker. The tanker is thereafter said to have come to gate No. 5 in the premises of the first respondent at about 3.30 p.m. for departure. At that stage, the watchman on duty checked all the three compartments and found that the middle compartment of the tanker was fully loaded and had not been discharged. Upon questioning the driver produced the invoice which showed that a quantity of 12000 litres of HSD was to be received by the first respondent from the tanker. The driver is alleged to have informed the watchman that the petitioner workman had instructed the driver to deliver 4000 litres of the product contain in the middle compartment to a third party at Saki Naka. The watchman thereafter informed the Assistant Security Inspector, who demanded a gate pass from the driver for taking away 4000 litres of diesel. It is alleged that while the driver was being interrogated by the Assistant Security Inspector, the petitioner arrived at Gate No. 5. The Assistant Security Inspector insisted that a gate pass would be required to permit 4000 litres of diesel to be taken out of the company's premises. The petitioner is then stated to have taken the position that he would speak to the Supervisor of the Assistant Security Inspector and sort out the matter. The petitioner thereupon took the tanker back to the dispatch station. Since the tanker did not come back to Gate No. 5, the Assistant Security Inspector contacted the Security Inspector. After the Security Inspector alongwith his two assistants went to the Transport Department, they found that the tanker was positioned there and the remaining diesel therefrom was being discharged. In the circumstances, the petitioner was charged with the misconduct of fraudulently attempting to 'sneak out' 4000 litres of High Speed Diesel through the tanker by instructing the tanker driver not to discharge the diesel from the middle compartment at the premises of the company but to divert it to Saki Naka. Accordingly, the petitioner was charged under Standing Order 28(4) of 'fraud or dishonesty in connection with the business or property of the employer' and under Standing Order No. 28(12) of the 'Commission of any act subversive of good behaviour within the establishment or of the discipline of the establishment'.
3. A Departmental Enquiry thereafter came to be convened and held by the first respondent into the allegations of misconduct. The enquiry was concluded and the Enquiry Officer came to the conclusion that the charge of misconduct was proved. The petitioner came to be dismissed from service by an order dated 27th December, 1986. In a reference to adjudication, being Reference IDA 467 of 1987 the Industrial Court by its Part-I Award dated 31st January, 1994 came to the conclusion that the enquiry which had been held was not fair and proper. Thereupon, the employer was permitted to lead evidence in support of the charge of misconduct. Before the Labour Court evidence was led on behalf of the employer of:
1. Subhash Tharwal, Assistant Security Inspector;
2. Kantilal Bhanushali, Assistant Security Inspector;
3. A.G. Shah, Civil Supervisor;
4. Shri M. Subramaniam, Supervisor; and
5. Shri Narayan Pawar, the Watchman.
The petitioner examined himself in defence to the charge. The Labour Court by its impugned award has come to the conclusion that the aforesaid charge of misconduct (under which the petitioner was charged with a attempt to take out 4000 litres of HSD outside the premises of the employer unauthorisedly) had been established with reference to the evidence before it. In passing it may be noted that there were two charges which formed the subject matter of the enquiry, the first of which has already been adverted to earlier. The second charge formed the subject matter of the proceedings before the Labour Court was in regard to an alleged misappropriation of 11453 litres of High Speed Diesel by the petitioner out of the premises of the first respondent during the period 1st October, 1983 and 17th May, 1984. The Labour Court has come to the conclusion that the second charge had not been established on the basis of the evidence on record. However, the Court was of the view that the first charge which had been established was serious enough to warrant the imposition of a penalty of dismissal.
4. Before considering the submissions which have been urged on behalf of the petitioner by the learned Counsel it would be worthwhile to summarise in brief the nature of the evidence which was adduced before the Labour Court. This evidence would have to be considered having due regard to the restrictions or limitations inherent on the exercise of the writ jurisdiction of this Court, in relation to a challenge to an Award of the Labour Court arising out of a disciplinary proceeding on a charge of misconduct. The first witness on behalf of the employer, Shri Narayan Pawar was a watchman, who had been in employment since 1976. He was on duty on the date of the incident together with two other Assistant Security Inspectors. Pawar deposed to the fact that at about 2.15 p.m. the tanker had come to the gate where he was stationed. At about 3.30 p.m. the tanker came back to the gate and was about to make its exit. At that stage, the witness inspected the tanker and found that while the lids of two of the compartments were open, the lid to the middle compartment was closed. The driver upon enquiry is stated to inform this witness that the contents of the tanker belonged to a third party in the Saki Naka area. The witness deposed to the fact that at that stage the petitioner, who was the store-in-charge came to gate No. 5 and sought to inform the Assistant Security Inspector Subhash Tharwal that as the diesel tanks of the company were full there was not further room for unloading any more diesel. The Assistant Security Inspector having refused to release the diesel without a gate pass, the petitioner stated that he would bring gate pass subsequently and asked the driver to take the vehicle back to the Transport Department. The witness deposed to the fact that after ten minutes the Assistant Security Inspector contacted Shri Bhanushali and that they thereafter went to the Transport Department to see why the gate pass was not produced. The second witness for the Management, Mr. Subhash Tharwal was also an Assistant Security Inspector. The witness was present at the point of time when the tanker returned to gate No. 5 at 3.30 p.m. when upon scrutiny, it was found to contain 4000 litres of High Speed Diesel. According to this witness, the tanker driver told him that he had been instructed by the petitioner after unloading 8000 litres of diesel to deliver the remaining quantity to a third party. This witness also deposed to the fact that at that stage the petitioner came on the scene and sought to justify the removal of the contents of one compartment of the tanker outside the premises. The witness has stated in the course of his evidence that the tanker was thereafter taken away from the exit gate within the premises for the purpose of obtaining a gate pass. Since the tanker did not return, the witness together with Mr. Bhanushali another Assistant Security Inspector went towards the Transport Department of the Company and saw there that the tanker was discharging the diesel from the compartment. The evidence of the Assistant Security Inspector Mr. Subhash Tharwal was substantially corroborated in material particulars by Shri Kantilal Bhanushali, who was also working as Assistant Security Inspector. In this evidence he stated that upon receiving a telephone call from Tharwal he had proceeded to Gate No. 5 and thereafter to the storage area where he found that the tanker was being discharged. Shri Bhanushali was the officer of the company, who interrogated the driver and recorded his statement, Exh-C/20 in Hindi.
5. During the course of the evidence the company also examined Shri S.C. Shah, a Civil Supervisor in the employment of the company, who had witnessed the signed statement of the driver of the tanker at Exh-C/20. He had in turn submitted a report to the Chief Security Officer of the Company, a copy of which was at Exh-C/23. The company also examined one Shri M. Subramaniam, who deposed to the fact that the petitioner was responsible as a storekeeper for the collection or procurement of material such as diesel and petrol and for the receipt of material which was sent to the premises of the company. The witness deposed to the fact that when material was received in tankers it was the duty of the storekeeper to verify that the compartments of the tanker were duly sealed and that the seal numbers are written on the challan issued by the supplier. He deposed to the fact that the storekeeper would open the compartments after verification of the seals and measure the quantity of diesel in each compartment. After the diesel was unloaded, the storekeeper would sign the challan acknowledging the receipt of the diesel. The original challan was taken away by the tanker driver and a copy retained for the record of the company. I have also been taken through relevant extracts of the evidence in defence.
6. The Labour Court on a review of the evidence which was adduced before it, came to the conclusion that the charge of misconduct was established. The Labour Court was of the view that there was sufficient material to indicate that the petitioner as storekeeper was responsible for the receipt of the material and that he had, in fact, received the tanker which contained 12000 litres of High Speed Diesel. The Labour Court has found that the petitioner attempted to remove unauthorisedly 4000 litres of High Speed Diesel from out of the premises of the company, and that he was foiled in doing so by the security personnel at the gate. On the basis that this charge of misconduct had been proved, the Labour Court sustained the order of dismissal.
7. The evidence on the record would make it abundantly clear that; (i) The petitioner was on duty on 17th May, 1984 and in fact, his Assistant Mr. Gomes was on leave on that day. The presence of the petitioner at the scene was, therefore, natural; (ii) A tanker dispatched by Hindustan Petroleum Corporation Limited which contained 12000 litres of High Speed Diesel in three compartments arrived within the premises of the first respondent and the petitioner had accepted the receipt thereof by signing the relevant vouchers; (iii) The entire quantity contained in the tanker was to be received in the premises of the first respondent company; (iv) The petitioner as storekeeper was responsible for the receipt of the supply of High Speed Diesel received from the tanker and he had in fact received the tanker on arrival; (v) The tanker was found while leaving the premises of the first respondent to contain 4000 litres of diesel in one closed compartment; (vi) The tanker did not have any gate pass while it was about to leave the premises for taking out the quantity which was being taken out; (vii) The fact that the tanker had come to the exit gate of the company with one compartment full was proved by three witnesses, who deposed on behalf of the first respondent in the proceedings before the Labour Court; (viii) At the stage when the tanker was at the exit gate, an effort was made by the petitioner to justify the removal of 4000 litres of diesel on the ground that the existing tanks of the first respondent were completely full; and (ix) The tanker thereafter was taken back to the discharge station on the pretext of obtaining a gate pass where under the control of the petitioner the remaining 4000 litres of diesel came to be discharged.
8. In these circumstances, even if the statement of the driver of the tanker is excluded from consideration there was in my view sufficient material on the record to sustain the charge of misconduct. The statement of the driver was recorded by Shri Bhanushali, the Assistant Security Inspector and was witnessed by Shri Shah, a Civil Supervisor in the employment of the company. It is true that the driver did not depose in evidence before the Labour Court. That, however, is not a factor which would be destructive of the case of the first respondent. The driver was a third party over who was not in the service of the first respondent and the first respondent was unable to secure the presence of the driver for deposing in evidence. But, de hors the statement of the driver there was, in my view sufficient material to sustain the charge of misconduct.
9. The learned Counsel appearing on behalf of the petitioner sought to submit that there were contradictions in the evidence which were recorded before the Labour Court. The learned Counsel stressed various circumstances including: (i) the fact that the driver was unknown to the petitioner; (ii) that it was consequently unlikely that the petitioner would confide in the driver of the tanker to divert as much as 4000 litres of diesel outside the premises of the company; (iii) that the driver himself was not produced in evidence; (iv) that the company had not lodged a police complaint and no panchanama was prepared at the time when the tanker was noticed to have been discharging 4000 litres of diesel; and (v) that the Supervisor of the petitioner one Shri Vachani had an animus towards the petitioner. There is absolutely no substance in any of the aforesaid submissions. The Labour Court has having due regard to all these submissions, found that the testimony of the witnesses on behalf of the Management, who were cross-examined was unshaken. In my view, the minor contradictions which have been pointed out on behalf of the petitioner are not sufficient to displace the findings of the Labour Court, particularly in view of the direct evidence on the record of the case. This Court cannot reappraise the evidence in the exercise of its jurisdiction under Article 226. There was sufficient evidence on the record to sustain the finding arrived at by the Labour Court. This is not a case of perversity or of no evidence. The learned Counsel laid a considerable degree of emphasis on the alleged animus which Vachani bore towards the petitioner. This submission has been duly considered in the Award of the Labour Court. The Labour Court has noted that admittedly Vachani had joined the Department only a few weeks before the date of the incident. The petitioner had not raised any contention in regard to the alleged animus of Vachani in his reply to the charge-sheet. Moreover, no suggestion was made to any of the material witnesses of the first respondent to the fact that they were deposing falsely at the behest of Vachani or that there was any conspiracy against the petitioner. These reasons of the Industrial Court for rejecting the submission of the petitioner are sound and do not call for any interference in the exercise of the writ jurisdiction. In dealing with the point that the driver of the tanker was not examined, the Industrial Court has noted that the driver was an outsider who was not in the employment of the first respondent. The Labour Court was of the view it is not bound by strict Rules of evidence and that the evidence of the driver which was recorded in a statement, Exh-C/2- which was duly proved could be accepted at least as a piece of corroborative evidence. The Labour Court is justified in taking this view since, the Labour Court was not bound by the strict Rules of evidence. However, as already noted earlier, there was sufficient evidence even apart from the statement of the driver to sustain the charge of misconduct against the petitioner. There is similarly no substance in the contention that a panchanama ought to have been taken at the point of time when the material was being discharged since it has come on the record that by the time the Officers of the Company reached the place when the material was being discharged the process of discharging the material had almost been completed.
10. In these circumstances, there is no reason or material on the basis of which the award of the Labour Court can be impugned. The Labour has considered the evidence in detail and has recorded findings which are abundantly borne out by the material on the record. The charge against the petitioner is a serious one involving an attempt to divert unauthorisedly or spirit away the property belonging to the company. Having regard to the gravity of the charge, I am of the view that the penalty of dismissal from service was justified in the circumstances of the case. Having, therefore, given my anxious consideration in the submissions which have been ably and objectively placed on behalf of the petitioner by Ms. Shobha Gopal for the consideration of the Court, I do not find that there is merit in the petition. The writ petition is accordingly dismissed. There shall, be no order as to costs.