Judgment:
Somasundaram, J.
1. These writ appeals arise out of the Order of Venkataswami, J. made in W.P. No. 7344 of 1982. W.A. No. 202 of 1989 has been filed by the Management, 2nd respondent in W.P. No. 7344 of 1982 against the order of the learned single Judge, allowing the Writ Petition and setting aside the order of dismissal passed against the workman, the petitioner in W.P. No. 7344 of 1982. W.A. No. 662 of 1989 has been filed by the workman, the petitioner in W.P. No. 7344 of 1982, against the portion of order in W.P. No. 7344 of 1982, imposing the punishment of withholding of 2 annual increments with cumulative effect. For the sake of convenience, the parties are referred to in this judgment as per their nomenclature in W.P. No. 7344 of 1982.
2. The petitioner while working as Kalasi in the second respondent Corporation (hereinafter called 'the Corporation'), was charge sheeted for certain misconduct. The charge-sheet served on the petitioner reads as follows :
'On October 25, 1975 you were assisting Shri V. Radhakrishnan, Tank Truck Driver, who was entrusted with 16 K.L. of ATF in our Corporation tank truck No. TMY 89 to be delivered to Meenambakkam AFS vide Challan No. 42272, dated October 25, 1975.
At Meenambakkam after decanting 8 K.L. of ATF from compartment No. F1 & M2., the balance quantity of 8 KL in compartments No. M3 and M4 was despatched to Tambaram AFS at about 11 a.m. vide their stock transfer challan No. 34929 with 8 KL of ATF and all the four valves and manifold caps were duly sealed before the truck was released from Meenambakkam, AFS.
At about 12.00 p.m. of the same day the above truck was found parked near Pallavaram Municipal office by Station Manager of Meenambakkan AFS Shri N.N. Chopra and Shri Balakrishnan, Shift Superintendent. On examination of the truck it was discovered that the seals of the decanting valves of compartments M3 and M4 and the manifold caps were broken and that the manifold cap was loose and product was dripping from the manifold. A funnel which was apparently used for removing the product was also found in the chassis of the truck. On checking the dips it was found that the dip of the compartment No. 3 was approximately 6 mm. short. It was later ascertained by physical measurement that the loss of product from this compartment was approximately 40 litres.
Under the above circumstances, it is evident that you have with the connivance of the tank truck driver Shri V. Radhakrishnan removed unauthorisedly about 40 litres of ATF and disposed of the said quantity clandestinely.
In view of the above facts you have allegedly committed the following acts of misconduct.
1. Negligence or neglect of duty, and
2. Theft, dishonesty and misappropriation in connection with Corporation's property.
You are hereby required to submit your written explanation within seven days of the receipt of this charge-sheet. Any representation that you may make in your written explanation in this connection will be taken into consideration by the competent authority before it decides to hold an enquiry. In case the competent authority decides to hold an enquiry against you, the enquiry committee, date, time of enquiry etc., will be intimated to you later.
In case your written explanation is found satisfactory and acceptable to us, the enquiry against you in the matter shall not be held and you shall be informed accordingly. Otherwise the enquiry committee shall hold the enquiry against you in the matter as stated above.
Please acknowledge receipt on the duplicate copy.'
On the same facts, one V. Radhakrishnan, tank truck driver, was also charge-sheeted and the acts of misconduct alleged against the said driver Radhakrishnan read as follows :
'1. Negligence or neglect of duty.
2. Theft, dishonesty and misappropriation in connection with the Corporation's property; and
3. Act subversive of discipline.'
With regard to the charges framed against the petitioner and the driver Radhakrishnan, a common domestic enquiry was conducted and after examining the witnesses and after perusing the documents filed during the course of enquiry, the enquiry committee came to the conclusion that there was no collusion or connivance between the petitioner and the driver Radhakrishnan to commit theft and steal and dispose, of 2nd respondent-Corporation's property that the enquiry committee also found that the truck driver Radhakrishnan was guilty of negligence only and not guilty of any act of theft, dishonesty or misappropriation in connection with the Corporation's property and consequently it found him guilty of the act subversive of discipline. The enquiry committee found that the petitioner is guilty of theft, dishonesty and misappropriation in connection with the Corporation's property. The disciplinary authority of the Corporation accepted the findings of the enquiry committee and dismissed the petitioner from service and so far as the truck driver Radhakrishnan was concerned, the disciplinary authority withheld three annual increments with cumulative effect. Aggrieved by the order of dismissal, the petitioner raised an industrial dispute and the same was referred under Sec. 10(1)(c) of the Industrial Disputes Act to the Labour Court. The Labour Court, by its award dated December 17, 1981, held that the non-employment of the petitioner was justified and that he was not entitled to any relief. As against the award of the Labour Court dated December 17, 1981, the petitioner filed W.P. No. 7344 of 1982 to issue a writ of certiorari to quash the award of the Labour Court dated December 17, 1981.
3. Before the learned single Judge it was inter alia contended on behalf of the petitioner that the whole enquiry was vitiated by reason of the violation of principles of natural justice inasmuch as a pre-planned differential treatment was meted out to the driver Radhakrishnan on the one hand and the petitioner on the other, though the charges and the statement of facts and the evidence let in before the enquiry committee are common to both the petitioner and the driver Radhakrishnan. It was further contended before the learned single Judge that the failure to refer the past conduct of the petitioner in the show-cause notice and at the same time placing reliance on the past conduct without affording an opportunity to the petitioner will vitiate the entire proceedings. It was also urged before the learned single Judge that the punishment awarded to the petitioner was disproportionate to the gravity of the charge and contrary to the spirit of Sec. 11-A of the Industrial Disputes Act. On the basis of the materials available on record, the learned single Judge came to the conclusion that on the same set of facts and circumstances, the petitioner alone was chosen for discriminatory treatment by awarding the punishment of dismissal, whereas the driver was given the benefit of doubt and awarded lesser punishment and therefore, the order of the disciplinary authority as confirmed by the Labour Court dismissing the petitioner from service suffers from the vice of arbitrariness and is violative of Art. 14 of the Constitution of India. The learned Single Judge further found that the charge framed against the petitioner relating to theft, dishonesty and misappropriation of the Corporation property has not been proved and that the findings rendered by the enquiry committee and the Labour Court with regard to the said charge of theft, dishonesty and misappropriation are not based on acceptable legal evidence. Consequently, the learned single Judge allowed the writ petition and set aside the order of the disciplinary authority as confirmed by the Labour Court, dismissing the petitioner from service. However, the learned single Judge confirmed the findings given by the enquiry committee and the Labour Court on the charge regarding negligence or neglect of duty and directed that the petitioner could be awarded the punishment of withholding of two annual increments with cumulative effect. Aggrieved by the order of the learned single Judge the second respondent Corporation has filed W.A. No. 202 of 1989.. Not satisfied with the order of the learned single Judge imposing the punishment of withholding of two annual increments with cumulative effect, the petitioner has filed W.A. No. 662 of 1989.
4. Mr. M.R. Narayaswamy, the learned Senior Counsel appearing for the appellant in W.A. No. 202 of 1989 contended in the first place that there is no discrimination in this case in the matter of awarding punishment against the petitioner on the one hand and the driver Radhakrishnan on the other hand. The learned Counsel further contended that on the facts and circumstances of the case and on the basis of the evidence available on record the disciplinary authority and the Labour Court rightly awarded different punishments to the petitioner and to the driver Radhakrishnan. In support of his contention, the learned counsel for the second respondent Corporation, the appellant in W.A. No. 202 of 1989, relied on the decisions in Workmen of the Motor Industries Company Ltd. v. Management of Motor Industries Company Ltd. and another, : (1969)IILLJ673SC Bimbadhar v. Orissa State, : 1956CriLJ831 : Brathi v. State of Punjab, : 1991CriLJ402
On the other hand, Mr. A. L. Somayaji, the learned counsel for the petitioner would submit that the driver Radhakrishnan was entrusted with not only the vehicle, but also the contents namely 16 KL of ATF for delivery at Meenambakkan AFS and the petitioner was directed to assist the said Radhakrishnan in the process of delivering the said 16 KL of ATF in the manner directed by the management; that the petitioner was visited with two charges whereas the driver Radhakrishnan was visited with identical charges with an additional one; that though the evidence let in by the management against the petitioner and the driver is common, the disciplinary authority imposed punishment of dismissal on the petitioner whereas the lesser punishment of stoppage of increments for three years with cumulative effect was imposed on the driver and the above facts and circumstances go to show that the petitioner was singled out of discriminatory treatment.
5. Let us first examine the position of law on this aspect before going to the factual details. It is settled position of law that when the evidence with regard to the misconduct of a number of workmen is identical, the employer must give rational or reasonable explanation for awarding different punishments to the different workmen on the same evidence. In other words, if different workmen are similarly placed with regard to the nature of evidence let in against them by the management in the domestic enquiry and if the workmen are covered by the same set of facts and circumstances, the employer cannot single out a particular workman for discriminatory treatment while awarding punishment. If some of the workers are arbitrarily weeded out for discriminatory and more severe treatment than those who were similarly situated, the Courts will not hesitate to frown upon such discriminatory treatment. In Sengara Singh and others v. State of Punjab and others : (1984)ILLJ161SC , the State of Punjab initiated disciplinary action and dismissed about 1,100 members of Police force for participation in police agitation. Criminal prosecution was launched against large members of agitators. Subsequently, the Government reinstated 1,000 dismissed members of the police force in their original post and withdrew the criminal case. There was no allegation in that case that the police constables who are not reinstated were leaders or indulged in more violent activities. The aggrieved police constables who were dismissed, but not reinstated to their original post filed writ petitions before the Punjab High Court. The Punjab High Court dismissed the writ petitions. Thereafter, the aggrieved police constables filed appeal before the Supreme Court. The Supreme Court while allowing the appeal of the dismissed police constables held that there is no iota of evidence which would distinguish the case of the appellants from those who were originally dismissed, but subsequently reinstated in their original post. The Supreme Court further pointed out that the appellants have been arbitrarily weeded out for the discriminatory and more severe treatment than those who were similarly situated. In the above decision, the Supreme Court has further held as follows :
'What then should be done The appellants have been accused of participating in a procession taken out by the members of the police force for ventilating their grievances about their service conditions. May be that still having not reached the state of tolerance for formation of associations amongst police personnel, the demonstrators may be looked upon with disfavour. But approaching the matter from this angle, all the 1,100 dismissed members of the police force were guilty of same extent and degree as the present appellants. Now if the indiscipline of a large number of personnel amongst dismissed personnel could be condoned or overlooked and after withdrawing the criminal cases against them, they could be reinstated, we see no justification in treating the present appellants differently without pointing out how they were guilty of more serious misconduct or the degree of indiscipline in their case was higher than compared to those who were reinstated. Respondents failed to explain to the court the distinguishing features and, therefore, we are satisfied in putting all of them in same bracket. On that conclusion the treatment meted to the present appellants suffers from the vice of arbitrariness and Art. 14 forbids any arbitrary action which would tantamount to denial of equality as guaranteed by Art. 14 of the Constitution. The court must accordingly interpose and quash the discriminatory action'.
6. Coming to the facts of the present case, it is not in dispute that the driver Radhakrishnan was in charge of the vehicle and its contents. The entrustment of particular quantity viz., 16 KL of ATF to the driver is also admitted. The petitioner was only a helper, who was to assist the driver in several ways, in discharge of his duty. In the domestic enquiry conducted by the enquiry committee, the evidence let in by the management is common against both the driver and the petitioner. The evidence of P.W. 1 Shri C. Kallappa is that when he questioned the driver Radhakrishnan, he told him that he heard a sound on the rear and stopped the vehicle and found the rear wheel punctured and the driver instructed the helper to jack up the wheel and remove the punctured wheel and went for tea. The driver also told P.W. 1 that when he came back he found that the seals of compartment No. M-3 and B4 and the manifold seals were broken. Shri Balakrishnan and Shri V. N. Chopra who were examined as witnesses on behalf of the management also gave evidence to the same effect. On the basis of the evidence on record, the enquiry committee recorded the following finding :
'It has been demonstrated before us very clearly that there was no puncture at all and the starter was alright. This alibi was taken by the driver and the helper only to justify their action of stopping the vehicle on the road. It may be mentioned that stopping the vehicle on the road is not authorised by ICC.'
The records show that the enquiry committee conducted enquiry on the charges framed against the petitioner and the driver Radhakrishnan on March 25, 1976, March 26, 1976, April 17, 1976, April 19, 1976 and May 7, 1976. The materials available on record shows that after all the witnesses on the side of the management were examined, the driver Radhakrishnan gave a further reply to the charge sheet on May 7, 1976 and the relevant of the further reply dated May 7, 1976 reads thus :
'On October 25, 1975 after delivering 8 KL of ATF at Meenambakkam AFS, I carried the balance 8 KL to Tambaram AFS in my TT TMY 89. When I was driving towards Tambaram, I was feeeling giddy and hence I stopped the vehicle near Pallavaram Municipal Office for taking some tea and rest.
After some time, after taking tea, when I came to the TT, I was surprised to see the seals of the valves were broken and oil was leaking. There was a funnel on the chassis which made me feel worried, because I did not carry any funnel in the T. T. When I questioned the helper, he was very rash to me and meanwhile the S.M., and the Shift Superintendent of Meenambakkam AFS also came. They questioned both of us about the broken seal, oil leak and presence of a funnel.
I was very much scared. I feared to tell that I stopped the vehicle for taking tea and went to take tea. Hence I told them that the tyre was weak or punctured.
Actually there was no tyre punctured or selfstarter repair. The helper of truck was involved in a case previously. My fear was that I would be implicated in this case.'
The enquiry committee accepted the case of the driver set up by him in his further reply dated May 7, 1976 and found that the driver was not guilty on the charge of theft, dishonesty and misappropriation in connection with the Corporation property. The enquiry committee is not at all justified in accepting the case of the driver set up by him at a belated stage in his further reply dated May 7, 1976, as it runs counter to the evidence of the witnesses examined on behalf of the Management and his own earlier version. Therefore, we have no hesitation in holding that no reliance can be placed on the further reply submitted by the driver on May 7, 1976. If the statement of the driver dated May 7, 1976 is excluded, the evidence let in by the management with regard to the charges framed against the driver and the petitioner is common and identical. Therefore, the driver and the petitioner are similarly placed so far as the evidence let in by the management is concerned. If on the basis of the evidence let in by the management before the enquiry committee, the driver cannot be found guilty of the charge of theft, equally, on the same evidence the petitioner also cannot be found guilty on the charge of theft. Further, on the basis of the materials available on record, the Labour Court in para 36 of the award has found that it cannot totally agree with the finding of the enquiry committee that the driver was not in collusion with the helper in indulging in activity of dishonesty and misappropriation with regard to the Corporation property. The Labour Court, having disagreed with the finding of the enquiry committee on the question of collusion between the driver and the petitioner, is not justified in approving the benefit of doubt being given to the driver by the enquiry committee with regard to the charge of theft framed against him. We must also add that the enquiry committee and the Labour Court completely overlooked the fact that the vehicle and its contents were entrusted to the driver and that the driver was responsible for the safe custody of the vehicle and its contents. As rightly pointed out by the learned single Judge, the enquiry committee and the Labour Court have not given cogent reasons for accepting in toto the case of the driver even though he has given varying version at different stages. The Labour Court took the view that the past record of the service of the petitioner warrants the accord of a different treatment to the petitioner on the question of punishment. As rightly pointed out by the learned single Judge, the Labour Court has really misread the evidence available on record with regard to the past record of service of the petitioner. The materials on record go to show that the petitioner had been charged on an earlier occasion for gross neglect of duty and act subversive of discipline. In the said proceeding initiated against the petitioner on an earlier occasion, it was ultimately found that there was no loss of property, but he was found guilty only of an act subversive of discipline. As pointed out by the learned single Judge, a reading of the order of the Labour Court seems to suggest that it proceeded on the basis that on the earlier occasion the petitioner was found guilty of an offence relating to theft, dishonesty and misappropriation. Therefore, the conclusion reached by the Labour Court that there was no differential treatment to similarly situated persons is not correct, particularly when the Labour Court has not accepted the finding of the enquiry committee on the issue of collusion of the driver with the petitioner concerning the charge of theft, dishonesty and misappropriation. A perusal of the report of the enquiry committee shows that it has not given any reason in support of its finding that the driver was entitled to the benefit of doubt on the charge of theft. In the above circumstances, it has to be held that there is no valid reason as to why the driver was let off with a lighter punishment and the petitioner was dismissed from service. Therefore, the learned single Judge rightly found that on the same set of facts and circumstances, the petitioner alone was chosen for discriminatory treatment and the order dismissing the petitioner from service suffers from the vice of arbitrariness and is violative of Art. 14 of the Constitution of India. In these circumstances, we have no hesitation in rejecting the first contention of the learned counsel for the appellant that there is no discrimination in the matter of awarding punishment of dismissal from service against the petitioner and the lesser punishment of withholding the increments against the driver Radhakrishnan. The decisions relied on by the learned counsel for the appellant in W.A. No. 202 of 1989 are not helpful to the appellant because the above decisions are clearly distinguished on facts.
7. The second contention of the learned senior Counsel Mr. M. R. Narayanswamy is that the learned single Judge is not correct in coming to the conclusion that there was no acceptable legal evidence to support the finding of the enquiry committee and the Labour Court that the petitioner is guilty of theft, dishonesty and misappropriation in connection with the Corporation property. The learned counsel contended that the report of the enquiry committee shows that there is legal evidence against the petitioner. The learned counsel further submitted that even if the finding with regard to the charge of theft is set aside, the punishment of dismissal from service awarded to the petitioner can be sustained on the basis of the finding on the other charge viz., the charge of negligence or neglect of duty. In support of this contention, the learned counsel relied on the decision in Pyare Lal Sharma v. Managing Director, J. K. Industries Ltd., : (1990)ILLJ32SC . We are unable to accept the above contention of the learned counsel for the appellant. In Central Bank of India Ltd., New Delhi v. Prakash Chand Jain : (1969)IILLJ377SC , the Supreme Court has enumerated two circumstances under which the findings of the enquiry officer against the workman can be interfered with, in the following terms :
'Thus, there are two cases where the findings of a domestic tribunal like the enquiry officer dealing with disciplinary proceedings against a workman can be interfered with, and these two are cases in which the findings are not based on legal evidence or are such as no reasonable person could have arrived at on the basis of the material before the tribunal. In each of these cases, the findings are treated as perverse.'
In A. V. Krishnamoorthy v. Government of Tamil Nadu and others : (1985)ILLJ46Mad , a Division Bench of this Court while holding that any conclusion which may be reached by the domestic tribunal must be on the basis of acceptable evidence has observed as follows :
'It is well settled that disciplinary proceedingsbefore a Departmental Tribunal are quasijudicial in character and any conclusion to be reached by such tribunal must be on the basis of acceptable evidence. Such evidence must have some degree of definiteness. It is true that the enquiry held by the Departmental Tribunal is not governed by the strict and technical rules of evidence. But, if the departmental tribunal has rendered a finding based on no acceptable evidence, that could be regarded as an error of law to be corrected by a writ of certioriari. Suspicion, inference, assumption and presumption cannot take place of proof by means of acceptable evidence in disciplinary proceedings before a departmental tribunal.'
8. In the light of the above position of law, let us now examine whether the findings of the enquiry committee as confirmed by the Labour Court is supported by acceptable legal evidence in this case. There is evidence in this case that there is a shortage of 40 litres of AFT. The question is who is responsible for this shortage of 40 litres of AFT. The only evidence available in this case is that one of the witnesses of the management saw some persons suspiciously moving near the stationary lorry with tins and cans. Except this, no one was examined and there is absolutely no evidence to connect the petitioner with the charge of theft, dishonesty and misappropriation of the Corporation property. In these circumstances, the learned single Judge rightly held that the findings of the enquiry committee as confirmed by the Labour Court that the petitioner is guilty of theft, dishonesty and misappropriation of Corporation property, are not based on any acceptable evidence. Once it is held that the findings of the enquiry committee and the Labour Court that the petitioner is guilty of theft, dishonesty and misappropriation are not based on acceptable evidence, the order of the disciplinary authority as confirmed by the Labour Court dismissing the petitioner from service is liable to be set aside. We are unable to accept the other contention of the learned Senior Counsel Mr. M.R. Narayaswamy that the order of the disciplinary authority as confirmed by the Labour Court dismissing the petitioner from service can be sustained on the finding on the other charge, namely that the petitioner is guilty of negligence or neglect of duty, because the disciplinary authority imposed only the punishment of withholding of three annual increments with cumulative effect on the driver for an identical charge. Therefore, the learned single Judge rightly set aside the order of the disciplinary authority as confirmed by the Labour Court dismissing the petitioner from service. However, the learned single Judge confirmed the finding of the disciplinary authority and the Labour Court that the petitioner is guilty of other charge viz., negligence or neglect of duty and imposed the punishment of withholding of 2 annual increments with cumulative effect. In view of the above discussion of ours, we see no infirmity in the order of the learned single Judge warranting interference in W.A. No. 202 of 1989.
9. Now let us consider whether there is any merit in the other W.A. No. 662 of 1989 filed by the petitioner against the order of the learned single Judge so far as it is against him viz., the imposition of the punishment of withholding of 2 annual increments with cumulative effect. There is ample evidence in this case, both oral and documentary, which go to show that the petitioner is guilty of negligence and neglect of duty. The disciplinary authority, the Labour Court, and the learned single Judge on the basis of the evidence available on record rightly held that the petitioner is guilty of negligence and neglect of duty. On the basis of the above findings, the learned single Judge rightly imposed the punishment of withholding of two annual increments with cumulative effect. As a matter of fact, on the basis of the same evidence, the driver was also found guilty of negligence and neglect of duty and he was also awarded similar punishment of withholding of three annual increments with cumulative effect. Therefore, we do not see any merit in W.A. No. 662 of 1989 also.
10. In the result, both the writ appeals are liable to be dismissed and accordingly they are dismissed. No costs.