Gujarat High Court
Baroda District Co-Operative Milk … vs Rameshbhai Shankarbhai Prajapati on 16 January, 2025
NEUTRAL CITATION
C/SCA/13524/2024 JUDGMENT DATED: 16/01/2025
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 13524 of 2024
FOR APPROVAL AND SIGNATURE:
HONOURABLE MRS. JUSTICE M. K. THAKKER
==========================================================
Approved for Reporting Yes No
Yes
==========================================================
BARODA DISTRICT CO-OPERATIVE MILK PRODUCERS UNION LTD
Versus
RAMESHBHAI SHANKARBHAI PRAJAPATI
==========================================================
Appearance:
SENIOR ADVOCATE MR.MANISH BHATT assisted by MUNJAAL M
BHATT(8283) with MS.SHAILEE JOSHI for the Petitioner(s) No. 1
IG JOSHI(8726) for the Respondent(s) No. 1
==========================================================
CORAM:HONOURABLE MRS. JUSTICE M. K. THAKKER
Date : 16/01/2025
ORAL JUDGMENT
1. Rule returnable forthwith. Learned advocate
Mr.I.G.Joshi waives service of notice of Rule on behalf of
respondent.
2. With the consent of the parties matter was heard finally.
3. Being aggrieved by the award passed by learned Labour
Court, Vadodara in reference (L.C.V.) No. 19 of 2018
dated 17.05.2024, present petition is filed under Article
Page 1 of 18
Uploaded by MRS. ARCHANA SAJEEVKUMAR PILLAI(HC01899) on Mon Jan 20 2025 Downloaded on : Mon Jan 20 21:32:48 IST 2025
NEUTRAL CITATION
C/SCA/13524/2024 JUDGMENT DATED: 16/01/2025
undefined
227 of the Constitution of India.
4. The facts needed to be considered for the disposal of the
present case is as under:
4.1. Respondent was working in the production
department of the dairy of the petitioner and was
entrusted the duty to look after the day-to-day affairs of
the petitioner-dairy, pertaining to production of various
milk products. On 13.03.2017, one Mr.K.A.Patel, being a
night supervisor, working in the petitioner-dairy along
with other security personnel during routine night
patrolling, while passing through the locker room
utilized by the respondent-workmen, observed that there
were certain cashew nuts lying on the floor beneath the
lockers. Sensing something unusual, the security
supervisor was called and locker nos.73, 74 and 75 were
sealed with immediate effect at around 8.30 p.m. On the
next day i.e on 14.03.2017, the sealed locker were
opened in the presence of five witnesses at 11 AM to
verify the contents in the same. It came into the
knowledge of the management that the said locker was
regularly used by the respondent and apart from the
other personal items, two bag, full of cashew nuts, was
Page 2 of 18
Uploaded by MRS. ARCHANA SAJEEVKUMAR PILLAI(HC01899) on Mon Jan 20 2025 Downloaded on : Mon Jan 20 21:32:48 IST 2025
NEUTRAL CITATIONC/SCA/13524/2024 JUDGMENT DATED: 16/01/2025
undefined
also discovered from the said locker, which weighed
1.159 kgs. Upon having found such a huge quantity of
cashew nuts, the Manager of production department
called the respondent to inform about the same and
explanation was sought. He gave his written explanation
admitting the guilt on 14.03.2017. The petitioner issued
a show cause notice on 15.03.2017, referring admission
to have stolen the cashew nuts from production
department of the petitioner dairy for his personal
consumption /use. Again reply was given admitting the
guilt by respondent employee. On the basis of above
conduct and subsequent confession, an opinion was
sought from one Mr.J.N.Shah (Manager-Production),
which was forwarded to the General Manager opining
that the act of the respondent has caused breach of trust
and therefore, departmental action is required to be
initiated. The petitioner has passed an order dismissing
the respondent from service on 27.03.2017. The
respondent did not protest but made an application on
13.06.2017 praying for clearance of statutory dues.
Accordingly, the cheques of the due amount, towards the
gratuity and leave encashment, was issued and the
Page 3 of 18
Uploaded by MRS. ARCHANA SAJEEVKUMAR PILLAI(HC01899) on Mon Jan 20 2025 Downloaded on : Mon Jan 20 21:32:48 IST 2025
NEUTRAL CITATION
C/SCA/13524/2024 JUDGMENT DATED: 16/01/2025
undefined
respondent has also issued receipt in that regard.
Thereafter, dispute was raised and was referred to the
learned Labour Court to decide that whether respondent
is required to be reinstated in the service or not?
Learned Labour Court after considering the statement of
claim, written statement and evidence produced by both
the parties, held the termination illegal and directed to
reinstate the respondent to his original post with 20%
back wages and with all consequential benefits. The
same is subject matter of challenge before this Court.
5. Heard learned senior advocate Mr.Manish Bhatt assisted
by learned advocate Mr.Munjal Bhatt with learned
advocate Ms.Shailee Joshi for the petitioner and learned
advocate Mr.I.G.Joshi for respondent.
5.1. Learned senior advocate Mr.Manish Bhatt for the
petitioner has submitted that respondent had not
challenged the correctness, legality or validity of the
inquiry conducted. In absence of any challenge it was
not open to the learned labour court to go into the
findings recorded by the inquiry officer regarding the
misconduct committed by the respondent. The
punishment of removal is an appropriate punishment for
Page 4 of 18
Uploaded by MRS. ARCHANA SAJEEVKUMAR PILLAI(HC01899) on Mon Jan 20 2025 Downloaded on : Mon Jan 20 21:32:48 IST 2025
NEUTRAL CITATION
C/SCA/13524/2024 JUDGMENT DATED: 16/01/2025
undefined
an employee found guilty of misconduct and the court
should be reluctant to reduce the punishment. Learned
senior advocate Mr.Manish Bhatt submitted that the
respondent did not deny the charges leveled against
him, on the contrary he admitted his misconduct
regarding finding of cashew nuts from the locker used
by the present respondent. Learned senior advocate
Mr.Manish Bhatt submits that along with the cashew
nuts the belongings of the respondent were also found
from the locker owned by the respondent and in absence
of any contrary evidence learned labour court has
committed error in setting aside punishment by
misreading the report submitted by Mr.J.N.Shah for
coming to the conclusion that there is no allegation of
theft against the respondent.
5.2. Learned senior advocate Mr.Manish Bhatt further
submits that learned labour court has discarded the
kabulatnama dated 14.03.2017 given by the respondent
which was produced below Exh.21 and the reply to the
show cause notice dated 17.03.2017 wherein, it is
specifically admitted to having stolen cashew nuts from
the production department of the petitioner dairy for the
Page 5 of 18
Uploaded by MRS. ARCHANA SAJEEVKUMAR PILLAI(HC01899) on Mon Jan 20 2025 Downloaded on : Mon Jan 20 21:32:48 IST 2025
NEUTRAL CITATION
C/SCA/13524/2024 JUDGMENT DATED: 16/01/2025
undefined
personal consumption. In addition to the above
admission during the cross-examination also respondent
has admitted the misconduct however, by overlooking
the above material evidence learned labour court has set
aside the dismissal order passed by the petitioner
employer.
5.3. Learned senior advocate Mr.Manish Bhatt submits
that loss of confidence is a primary factor and not the
amount of money misappropriated and the sympathy or
generosity cannot be factor in the case where the
petitioner dairy losing confidence or faith in such an
employee. The respondent employee did not offer any
explanation for having carried out the cashew nuts
therefore, the misconduct was grievous in nature and
therefore, instead of holding that the respondent was
not fit to be retained as an employee of the petitioner
dairy learned labour court has directed to reinstate the
respondent employee with 20% back wages. Learned
senior advocate Mr.Manish Bhatt submits that it is not
material that the charge is for lesser amount or the
higher amount. The act of pilferage is required to be
seen and harsh action is required to be taken into
Page 6 of 18
Uploaded by MRS. ARCHANA SAJEEVKUMAR PILLAI(HC01899) on Mon Jan 20 2025 Downloaded on : Mon Jan 20 21:32:48 IST 2025
NEUTRAL CITATION
C/SCA/13524/2024 JUDGMENT DATED: 16/01/2025
undefined
consideration.
5.4. Learned senior advocate Mr.Manish Bhatt submits
that as per the settled principle of law the power which
learned labour court needs to consider whether inquiry
was proper or not. If the inquiry was not proper, the
employer and the employee had to be given opportunity
to examine their witness. Learned senior advocate
Mr.Manish Bhatt further submits that petitioner
employer seeks permission to examine the witness to
prove the charge before the learned labour court. After
providing the opportunity to prove his case in
proceedings before the learned court, the evidence of
the witness was not taken into consideration at the time
of passing the final order. The panch witness which was
examined in whose presence the panchnama of the
locker was drawn from where the cashew nuts were
found was discarded by the learned labour court while
passing the award in favour of the respondent. Learned
senior advocate Mr.Manish Bhatt submits that allegation
against the respondent are with regard to the theft of
cashew nuts. During the departmental proceedings, the
respondent has admitted to the guilt and explained that
Page 7 of 18
Uploaded by MRS. ARCHANA SAJEEVKUMAR PILLAI(HC01899) on Mon Jan 20 2025 Downloaded on : Mon Jan 20 21:32:48 IST 2025
NEUTRAL CITATION
C/SCA/13524/2024 JUDGMENT DATED: 16/01/2025
undefined
same was kept for personal consumption. The quantity
of 1.159 kgs of cashew nuts was discovered from the
locker of the respondent suggests that it cannot be for
the personal consumption, be that as it may, but same
was taken unauthorizedly. Learned labour court has not
consider the material evidence which is in the nature of
admission of the respondent and concluded that there is
no loss of confidence or trust found against the
respondent.
5.5. Learned senior advocate Mr.Manish Bhatt submits
that learned labour court also concluded the reference
in favour of the respondent on the ground that there is
no antecedents. Learned senior advocate Mr.Manish
Bhatt submits that antecedents would always not be
subject matter of setting aside the order of dismissal
which was passed after considering the evidence
adduced by the respondent when misconduct alleged is
so serious and grave so as to create the lack of
confidence in the respondent by the petitioner. Learned
senior advocate Mr.Manish Bhatt has relied on the
following decisions and submitted that learned labour
court has committed grave error in directing the
Page 8 of 18
Uploaded by MRS. ARCHANA SAJEEVKUMAR PILLAI(HC01899) on Mon Jan 20 2025 Downloaded on : Mon Jan 20 21:32:48 IST 2025
NEUTRAL CITATION
C/SCA/13524/2024 JUDGMENT DATED: 16/01/2025
undefined
petitioner to reinstate the respondent to his original post
with 20% back wages.
1. SCA No.20331 of 2018 decision dated
11.04.2022 in the case of Lupin Limited through
General Manager Vs. Mensingh Bhagwansingh
Parmar.
2. SCA No.11540 of 2015 with SCA No.56 of
2017, decision dated 13.09.2024 in the case of
Divisional Controller v. Mohanbhai Lakhabhai
Makwana and Ors.
3. 2005 (2) SCC 481 decision dated 25.01.2005 in
the case of Bharat Heavy Elecricals Ltd. Vs.
M.Chandrashekhar Reddy and Ors.
5.6. Learned advocate Mr.I.G.Joshi has relied on the
decision rendered by this Court in the case of
Panchmahal Steel Limited Vs Ranjitsinh Udaysinh
Parmar (deceased) & Ors. Special Civil Application
No.20879 of 2018 and submitted that the learned
Labour Court has power under section 11A to enter into
the findings of the Inquiry Report and to interfere when
the findings of the Inquiry Officers is found perverse or
punishment is disproportionate to the misconduct,
Page 9 of 18
Uploaded by MRS. ARCHANA SAJEEVKUMAR PILLAI(HC01899) on Mon Jan 20 2025 Downloaded on : Mon Jan 20 21:32:48 IST 2025
NEUTRAL CITATION
C/SCA/13524/2024 JUDGMENT DATED: 16/01/2025
undefined
learned Labour Court can certainly set aside the
punishment imposed. At the end, it is submitted that
learned Labour Court had exercised its power within the
scope of section 11A of the Act and therefore, no
interference is required and award deserves to be
confirmed by this Court.
6. Having considered the arguments made by the learned
advocates for the respective parties and perusing the
record produced along with memo of petition and the
affidavit in reply, “the moot questions arising for
consideration is that when the allegations in the charge-
sheet is admitted, whether learned Labour Court was
justified in interfering with the dismissal order?”
7. To decide the above question, following facts are
required to be considered:
7.1. Indisputably, on 13.03.2017 security person observed
that there was certain cashew nuts lying on the floor and
therefore, locker no.73, 74 and 75 were sealed with
immediate effect. On 14.03.2017 the lockers were
opened in presence of panch witnesses wherein, a bag of
cashew nuts, weighing 1.159 kgs were discovered along
with belonging of respondent from the locker of
Page 10 of 18
Uploaded by MRS. ARCHANA SAJEEVKUMAR PILLAI(HC01899) on Mon Jan 20 2025 Downloaded on : Mon Jan 20 21:32:48 IST 2025
NEUTRAL CITATIONC/SCA/13524/2024 JUDGMENT DATED: 16/01/2025
undefined
respondent who was serving in the production
department of the petitioner dairy. On the same day,
confession letter was given by the respondent admitting
that same was taken by him unauthorisedly for personal
consumption.
7.2. On 15.03.2017 a show cause notice cum charge-sheet
came to be issued to the respondent employee stating
that on noticing the cashew nuts which were lying on
the floor near the locker no.73, 74 and 75 on
13.03.2017, the said lockers were sealed at 9:30 and it
was opened on 14.03.2017 at 11-o-clock in the presence
of five witnesses and the panchnama was drawn and
from the locker no.73 and 75 no objectionable things
were discovered however, from the locker no.74, which
was used by the respondent, two bags having cashew
nuts of 1.159 kgs with income tax return verification
form for the years 2013-14, 2015-16 and 2016-17 along
with photographs were found from the locker of the
respondent. The respondent was called upon and
question that, why disciplinary action be not taken
against him for the misconduct which was committed
and for the loss of confidence, which was put by the
Page 11 of 18
Uploaded by MRS. ARCHANA SAJEEVKUMAR PILLAI(HC01899) on Mon Jan 20 2025 Downloaded on : Mon Jan 20 21:32:48 IST 2025
NEUTRAL CITATIONC/SCA/13524/2024 JUDGMENT DATED: 16/01/2025
undefined
petitioner dairy.
7.3. On 17.03.2017 the respondent has replied to the show
cause notice cum charge sheet stating that the cashew
nuts were unauthorizedly taken for the purpose of
personal consumption and he requested that no harsh
punishment be imposed.
7.4. On 20.03.2017 report submitted by the superior
officer of the respondent employee namely Mr.J.N.Shah
opining that as per the admission made before him by
the respondent employee, the cashew nuts were kept by
respondent employee unauthorizedly which cannot be
tolerated and the explanation offered for keeping above
cashew nuts for personal consumption cannot be
believed in view of the huge quantity on 1.159 kgs
therefore, it was opined that his conduct suggest that it
would be for the purpose of theft or for bringing to his
home. Therefore, strict actions are required to be taken
against him under the disciplinary proceedings.
7.5. On 27.03.2017 considering his admission, the
department has thought it fit to not initiate detailed
inquiry and the order of dismissal from the service came
to be passed by the Managing Director of the petitioner
Page 12 of 18
Uploaded by MRS. ARCHANA SAJEEVKUMAR PILLAI(HC01899) on Mon Jan 20 2025 Downloaded on : Mon Jan 20 21:32:48 IST 2025
NEUTRAL CITATIONC/SCA/13524/2024 JUDGMENT DATED: 16/01/2025
undefined
dairy.
7.6. On 13.06.2017 request was made by the respondent
to pay the terminal dues referring the dismissal order
which was paid on 14.07.2017 and the receipt accepting
the dues were issued by the respondent. It is required to
be noted here that the respondent herein has not raised
any grievance with regard to the departmental inquiry
or punishment which was imposed by the employer.
Thereafter, dispute came to be raised and the same was
registered as reference reference (L.C.V.) No. 19 of
2018 by the respondent employee before the Assistant
Labour Commissioner which was referred to the learned
labour court on 16.12.2017 to decide that whether the
respondent is required to be reinstated in the service
with all consequential benefits or not.
7.7. The application below Exh.7 which was filed seeking
production of evidence to prove the charge was also
allowed. The Petitioner has also examined the witness,
namely Mehul Kumar Pravinbhai Patel below Exh.17
panch witness of panchnama which was drawn when the
cashew nuts were discovered from the respondent’s
locker, however, learned Labour Court, at the time of
Page 13 of 18
Uploaded by MRS. ARCHANA SAJEEVKUMAR PILLAI(HC01899) on Mon Jan 20 2025 Downloaded on : Mon Jan 20 21:32:48 IST 2025
NEUTRAL CITATION
C/SCA/13524/2024 JUDGMENT DATED: 16/01/2025
undefined
passing the final order, has absolutely discarded the said
evidence and come to the conclusion that punishment
imposed is disproportionate to the charges. Learned
Labour Court, while setting aside the termination, has
relied on the report of Mr.J.N.Shah and came to the
conclusion that there is no allegation of theft, financial
loss and loss of confidence is alleged.
7.8. As discussed earlier, in the charge-sheet itself
allegations are made that by keeping the huge quantity
of cashew nuts in the locker intention of the respondent
is to steal the cashew nuts which are used in the
production department where the respondent was
working. This court is of the view that the respondent
has no legal right to continue in the corporation when he
was found guilty of theft and there is nothing wrong in
the petitioner dairy losing confidence and faith in such
an employee and awarding punishment of removal. In
such case, there is no place of generosity or sympathy
on the part of judicial forum and interfering with the
quantum of punishment.
7.9. One more ground on which the impugned order
deserves to be set aside is that learned court has
Page 14 of 18
Uploaded by MRS. ARCHANA SAJEEVKUMAR PILLAI(HC01899) on Mon Jan 20 2025 Downloaded on : Mon Jan 20 21:32:48 IST 2025
NEUTRAL CITATION
C/SCA/13524/2024 JUDGMENT DATED: 16/01/2025
undefined
observed that as this being a first offence dismissal
order is disproportionate. Referring the decision relied
by the learned advocate for the petitioner wherein, it is
held that past conduct of the delinquent employee
cannot be ground for taking lenient view. Once an act of
misappropriation is proved, may be for a small or large
amount, there is no question of showing uncalled for
sympathy and reinstating the employee in the service. In
addition to that learned labour court has also not
discussed the evidence of panch witness namely Mehul
Kumar Pravinbhai Patel who was examined by the
employer to establish the charge against the respondent
employee. It appears that in a very casual manner the
findings and the punishment was set aside which was
imposed during the departmental proceedings. As the
respondent employee himself has admitted the charge
the initiation of departmental inquiry would be a futile
exercise and therefore, this Court is of the opinion that it
will neither be proper nor fair on the part of the Court to
substitute the findings and punishment of departmental
proceeding by allowing the reinstatement.
7.10. At this stage, this Court has referred the decision
Page 15 of 18
Uploaded by MRS. ARCHANA SAJEEVKUMAR PILLAI(HC01899) on Mon Jan 20 2025 Downloaded on : Mon Jan 20 21:32:48 IST 2025
NEUTRAL CITATION
C/SCA/13524/2024 JUDGMENT DATED: 16/01/2025
undefined
rendered by the Apex Court in the case of A.P. SRTC v.
Raghuda Siva Sankar Prasad, (2007) 1 SCC 222
referred by this Court in SCA No.20331 of 2018,
where it is held that the past conduct of delinquent
employee cannot be grounded for taking lenient view as
the loss of confidence occupies the primary factor and
not the amount of money and that sympathy and
generosity cannot be factor which is permissible in law
in such matters.
7.11. This court has also referred the decision by the Apex
Court in the case of U.P. SRTC reported in (2000) 9
SCC 521 wherein, it is held that once an act of
misappropriation is proved, maybe for a small or large
amount, there is no question of showing uncalled for
sympathy and reinstating the employees in service.
7.12. The Apex Court in the case of Chairman &
Managing Director, V.S.P. & Ors. Vs Goparaju Sri
Prabhakara Hari Babu reported in (2008) 5 SCC
569 held as under:
“20.The jurisdiction of the High Court in this regard is rather
limited. Its power to interfere with disciplinary matters is
circumscribed by well-known factors. It cannot set aside a
well-reasoned order only on sympathy or sentiments. (SeePage 16 of 18
Uploaded by MRS. ARCHANA SAJEEVKUMAR PILLAI(HC01899) on Mon Jan 20 2025 Downloaded on : Mon Jan 20 21:32:48 IST 2025
NEUTRAL CITATIONC/SCA/13524/2024 JUDGMENT DATED: 16/01/2025
undefined
Maruti Udyog Ltd. v. Ram Lal; State of Bihar v. Amrendra
Kumar Mishra, SBI v. Mahatma Mishra, State of Karnataka v.
Ameerbis; State of M.P. v. Sanjay Kumar Pathak and Uttar
Haryana Bijli Vitran Nigam Ltd. v. Surji Devi.)
21.Once it is found that all the procedural requirements have
been complied with, the courts would not ordinarily interfere
with the quantum of punishment imposed upon a delinquent
employee. The superior courts only in some cases may invoke
the doctrine of proportionality. If the decision of an employer
is found to be within the legal parameters, the jurisdiction
would ordinarily not be invoked when the misconduct stands
proved. (See Sangfroid Remedies Ltd. v. Union of India.)”
7.13. The decision which was relied by the learned
advocate Mr.I.G.Joshi for the respondent in the case of
Panchmahal Steel Limited Vs Ranjitsinh Udaysinh
Parmar (deceased) & Ors. in SCA No.20879 of 2018
was on different facts where there was no admission of
guilt of the respondent, therefore, that would not come
to the rescue of the respondent.
8. On perusing the reasons assigned by the learned labour
court, this Court finds that learned Court has converted
itself into the Court of appeal as an appellate Authority
and has exceeded its jurisdiction while appreciating the
findings recorded in the course of domestic inquiry and
in interfering with the finding recorded during the
Page 17 of 18
Uploaded by MRS. ARCHANA SAJEEVKUMAR PILLAI(HC01899) on Mon Jan 20 2025 Downloaded on : Mon Jan 20 21:32:48 IST 2025
NEUTRAL CITATION
C/SCA/13524/2024 JUDGMENT DATED: 16/01/2025
undefined
course of Inquiry, in furtherance of which, the
respondent was dismissed from service and therefore,
the award passed by learned Labour Court, Vadodara in
reference (L.C.V.) No. 19 of 2018 dated 17.05.2024
directing to reinstate the respondent employee with 20%
back wages deserves to be set aside and termination
order is required to be upheld.
9. In view of the above, the award passed by learned
Labour Court, Vadodara in reference (L.C.V.) No. 19 of
2018 dated 17.05.2024, is hereby set aside.
10. Resultantly, this petition is allowed. Rule made absolute.
(M. K. THAKKER,J)
ARCHANA S. PILLAI
Page 18 of 18
Uploaded by MRS. ARCHANA SAJEEVKUMAR PILLAI(HC01899) on Mon Jan 20 2025 Downloaded on : Mon Jan 20 21:32:48 IST 2025
[ad_1]
Source link