The Managing Director, Bharath Gold Mines Limited, Kolar Gold Field Vs. Sundareshan and Others - Court Judgment

Excerpt:
- indian evidence act,1872[c.a.no.1/1872] section 83: [v.jagannathan, j] encroachment of property - survey - surveyors report - held, it is, clear from a careful reading of the section 83 of indian evidence act, 1872, that if any map or plan is made for the purpose of any cause, the said map or plan will have to be proved to be accurate. the onus of proving such map as accurate lies on the party who wants to rely on the said map or plan. it has to be proved that the said map or plan or survey report, is accurate by examining the person who actually prepared it. it is not in dispute that in the case, the surveyor, who gave the report was not examined. since the survey report is prepared for the purpose of the suit filed by the plaintiff and, in the absence of there being any evidence placed to show that the said survey report was prepared for a public purpose, it was incumbent on the part of the plaintiff to have proved the report by examining the surveyor in order to show that survey report is accurate report. it is not uncommon to come across instances where apart from playing fraud, there is a tendency to exaggerate, while preparing maps or survey reports and the said infirmity or defect can be overcome only by offering the maker of the survey report come before the court and testify with regard to the accuracy of the report, no such opportunity was available for the appellant to cross-examine the surveyor, as the plaintiff did not examine the surveyor to prove the accuracy of reports. the lower appellate court has failed to properly appreciate the material evidence on record, the provisions of section 83 of the indian evidence act were not properly considered. the judgment of the lower appellate court cannot be sustained on facts and in law as there is not only misreading of the evidence on record but erroneous application of law. the trial court had rightly dismissed the suit of the plaintiff for want of accuracy in the survey report produced by the plaintiff and it also took note of section 83 of the indian evidence act in arriving at this conclusion. - 18134 of 1994. the petitioner in the said writ petition has filed the present appeals challenging the order of the learned single judge and as well the order of the central industrial tribunal-cum-labour court. it is only on the question of punishment, a lenient view is taken by the tribunal and as well by the learned single judge.acts/rules/orders:industrial disputes act, 1947 - section 11-a;constitution of india - articles 226 and 227cases referred:uttar pradesh state road transport corporation v. basudeo chaudhary and another, (1997) 11 scc 370;bhagat ram v. state of himachal pradesh, (1938) 2 scc 442, 1983 scc (l and s) 342;gulzar singh v. state of punjab, 1986 (supp.) scc 738judgement k. sreedhar rao, j.1. intra court appeals are filed against the order passed by the learned single judge in w.p. no. 18134 of 1994. the petitioner in the said writ petition has filed the present appeals challenging the order of the learned single judge and as well the order of the central industrial tribunal-cum-labour court.2. the respondents herein, employed in bharath gold mines limited, k.g.f., were dismissed from service after conducting a departmental inquiry on the charge of theft and fraud. it is alleged that, on 3-2-1985 at about 4-45 p.m. the 7 workmen, who are respondents herein, were found supplying mining sponge gold to one kunimhan alias kundu mohiddeen at his house at andersonpet, k.g.f., which amounted to misconduct as per the standing order no. 15(b)(23) and 15(b)(34). in the domestic enquiry, the respondents were found guilty and they were dismissed.3. a dispute was raised before the industrial tribunal. the tribunal found that the charge of theft, fraud and illegal possession of mining sponge gold has been proved, however, taking a lenient view by invoking the powers under section 11-a of the industrial disputes act, ordered reinstatement without back wages. the management, being aggrieved, preferred w.p. no. 18134 of 1994.4. the learned single judge after hearing the parties, passed the impugned order directing the management to pay the compensation of rs. 1,50,000/- to each of the respondents-workmen in lieu of the reinstatement. insofar as the 6th respondent is concerned, since he was dead, the amount was directed to be payable to the legal representatives of the 6th respondent.5. heard the learned counsels for the appellant and the respondents.6. a grave charge of theft of the property by the respondents belonging to the management is made out and the same is proved. it is only on the question of punishment, a lenient view is taken by the tribunal and as well by the learned single judge. however, the law laid down by the supreme court in uttar pradesh state road transport corporation v basudeo chaudhary and another, reads thus:'having regard to the findings that have been recorded by the labour court, it is evident that this is a case where the petitioner had tried to fabricate the record regarding recovery of fare to show that the passengers had travelled for a lesser distance from khalilabad to gorakhpur although they had actually travelled from basti to gorakhpur. the misconduct that was found established was thus serious in nature and the labour court has rightly upheld the punishment of removal from service that was imposed on the petitioner. the high court was in error in interfering with the award of the labour court and in substituting the penalty of censure for removal from service on the view that there was only an attempt to cause loss of rs. 65 to the corporation and the action of the corporation terminating the services of the petitioner was justified'.'the learned counsel for the petitioner has invited our attention to the decisions of this court in bhagat ram v state of himachal pradesh , and gulzar singh v state of punjab and has submitted that in the facts of this case the high court was right in taking the view that the penalty of termination of services was disproportionate to the misconduct found established. we are unable to agree. the facts in the cases aforementioned were very different and they can have no application to the present case. having regard to the misconduct that has been found established against the petitioner, it is not possible to say that the corporation, in removing the petitioner from service, has imposed a punishment which is disproportionate to the misconduct. we are, therefore, unable to uphold the judgment of the high court'.in the instant case, the allegation made against the respondent is, committing theft of the property of the management which is a very heinous act. under the circumstances, taking any lenient view in the matter would cause damage to the discipline in the industry. any lenient view in the matter and showing sympathy to the delinquent workmen who are found to be guilty of theft and fraud would amount to misplacing the sympathies. in view of the law laid down by the supreme court, a stringent view has to be taken against the delinquent workmen and any leniency in the matter of punishment is not warranted.under the circumstances, the order passed by the learned single judge and the industrial tribunal are set aside.the appeals are allowed accordingly.

Judgment:
Acts/Rules/Orders:

Industrial Disputes Act, 1947 - Section 11-A;Constitution of India - Articles 226 and 227

Cases Referred:

Uttar Pradesh State Road Transport Corporation v. Basudeo Chaudhary and Another, (1997) 11 SCC 370;Bhagat Ram v. State of Himachal Pradesh, (1938) 2 SCC 442, 1983 SCC (L and S) 342;Gulzar Singh v. State of Punjab, 1986 (Supp.) SCC 738

JUDGEMENT

K. Sreedhar Rao, J.

1. Intra Court Appeals are filed against the order passed by the learned Single Judge in W.P. No. 18134 of 1994. The petitioner in the said writ petition has filed the present appeals challenging the order of the learned Single Judge and as well the order of the Central Industrial Tribunal-cum-Labour Court.

2. The respondents herein, employed in Bharath Gold Mines Limited, K.G.F., were dismissed from service after conducting a Departmental Inquiry on the charge of theft and fraud. It is alleged that, on 3-2-1985 at about 4-45 p.m. the 7 workmen, who are respondents herein, were found supplying mining sponge gold to one Kunimhan alias Kundu Mohiddeen at his house at Andersonpet, K.G.F., which amounted to misconduct as per the Standing Order No. 15(b)(23) and 15(b)(34). In the Domestic Enquiry, the respondents were found guilty and they were dismissed.

3. A dispute was raised before the Industrial Tribunal. The Tribunal found that the charge of theft, fraud and illegal possession of mining sponge gold has been proved, however, taking a lenient view by invoking the powers under Section 11-A of the Industrial Disputes Act, ordered reinstatement without back wages. The Management, being aggrieved, preferred W.P. No. 18134 of 1994.

4. The learned Single Judge after hearing the parties, passed the impugned order directing the Management to pay the compensation of Rs. 1,50,000/- to each of the respondents-workmen in lieu of the reinstatement. Insofar as the 6th respondent is concerned, since he was dead, the amount was directed to be payable to the legal representatives of the 6th respondent.

5. Heard the learned Counsels for the appellant and the respondents.

6. A grave charge of theft of the property by the respondents belonging to the Management is made out and the same is proved. It is only on the question of punishment, a lenient view is taken by the Tribunal and as well by the learned Single Judge. However, the law laid down by the Supreme Court in Uttar Pradesh State Road Transport Corporation v Basudeo Chaudhary and Another, reads thus:

'Having regard to the findings that have been recorded by the Labour Court, it is evident that this is a case where the petitioner had tried to fabricate the record regarding recovery of fare to show that the passengers had travelled for a lesser distance from Khalilabad to Gorakhpur although they had actually travelled from Basti to Gorakhpur. The misconduct that was found established was thus serious in nature and the Labour Court has rightly upheld the punishment of removal from service that was imposed on the petitioner. The High Court was in error in interfering with the award of the Labour Court and in substituting the penalty of censure for removal from service on the view that there was only an attempt to cause loss of Rs. 65 to the Corporation and the action of the Corporation terminating the services of the petitioner was justified'.

'The learned Counsel for the petitioner has invited our attention to the decisions of this Court in Bhagat Ram v State of Himachal Pradesh , and Gulzar Singh v State of Punjab and has submitted that in the facts of this case the High Court was right in taking the view that the penalty of termination of services was disproportionate to the misconduct found established. We are unable to agree. The facts in the cases aforementioned were very different and they can have no application to the present case. Having regard to the misconduct that has been found established against the petitioner, it is not possible to say that the Corporation, in removing the petitioner from service, has imposed a punishment which is disproportionate to the misconduct. We are, therefore, unable to uphold the judgment of the High Court'.

In the instant case, the allegation made against the respondent is, committing theft of the property of the Management which is a very heinous act. Under the circumstances, taking any lenient view in the matter would cause damage to the discipline in the Industry. Any lenient view in the matter and showing sympathy to the delinquent workmen who are found to be guilty of theft and fraud would amount to misplacing the sympathies. In view of the law laid down by the Supreme Court, a stringent view has to be taken against the delinquent workmen and any leniency in the matter of punishment is not warranted.

Under the circumstances, the order passed by the learned Single Judge and the Industrial Tribunal are set aside.

The appeals are allowed accordingly.