- (1.) 1.The petitioner has filed the above writ petition to issue a writ of certiorari to quash the Award dated 25.6.1985 passed by the second respondent in I.D.No.41 of 1984 on his file.
(2.) THE petitioner is a company registered as Air-Lanka Ltd., and is an International Carrier of the Government of Sri Lanka. It operates in India as a result of agreement between the Government of Sri Lanka and the Government of India through International Airports'of Madras, Bombay, Trivandrum and Tiruchi in India. It has an office in the City of Madras. THE first respondent was employed as an Office Helper in the Madras Office with effect from 15.10.1979. On 16.10.1984, the first respondent was found removing an Air Travel Bag from the Manager's Office without any permission. When this was noticed, the first respondent attempted to hide the Air Travel Bag and when questioned about the same, the first respondent admitted his guilt and submitted that he would not commit such offence again and hence he wanted to be excused. It appeared that on prior occasions there were several instances of lapses and misbehaviour in the discharge of duties on the part of the first respondent. He was censured by way of warning for his past misconduct. THE Madras Office sent a telex message on 16.10.1981 to the Colombo Headquarters Office requesting permission to terminate the services of the first respondent as he was found removing Air Travel Bag from the office and also intimated the previous misbehaviour and warnings and also recommended that the first respondent was not to be trusted and should not be kept any longer. THEn again by telex message dated 17.10.1981 the Madras Office informed the Headquarters Office of Colombo that due to compassionate ground there could be a punishment to the effect that one year increment would be withheld and warning could be issued that if there is any occurrence of this nature in future his services would be terminated forthwith. Colombo Headquarters Office, by telex message dated 20.10.1981 addressed to the Madras Office stated that when the offence committed is so grave, it warrants dismissal and disciplinary action should be taken and also intimated to withhold further action and wait for Head Office instructions. THE Headquarters Office, Colombo sent a telex dated 27.10.1981 addressed to the Madras Office stating that the first respondent should be given an opportunity on or before a specified date and in case the staff refused to submit the same he should be dismissed immediately. THEreafter, the Manager of the local office by Notice NAA 6-A/467/10/81, dated 31.10.1981 addressed to the first respondent herein stated that he was found removing air travel bag from the stock held in the office for his own use without the permission of the Manager and when that was noticed the first respondent tried to hide the same and when it was questioned the first respondent admitted his guilt and, as this act of the first respondent amounts to theft of company's property, called upon the first respondent to explain as to why his services should not be terminated with immediate effect and also informed that his reply should reach the office within 24 hours from the date of the said letter. THE first respondent by his letter dated 1.11.1981 submitted his explanation, wherein he had stated that he knew that he behaved very stupidly and that he should have taken the permission of the manager before trying to take the bag from the office and further stated that he did not take back the bag but left the bag. He had further stated that he would never do such a thing in future and that he would not take anything from the Air-Lanka Office in future and that was the first time that he had committed such an offence and that he had never committed this act before and also made an assurance that he would never do in future and hence requested to take sympathetic view in this behalf. On consideration of the materials on record, Manager of the local office by his communication NAA-6A/269/11/81, dated 18.11.1981 informed the first respondent that he had been instructed by the Personnel Manager, Air-Lanka, Colombo to terminate his services with immediate effect. Thereafter, the first respondent raised an industrial dispute and on reference the second respondent has taken it on file and numbered as I.D.No.41 of 1984. Before the Labour Court, the counsel for the first respondent made an endorsement to the effect that he was confining his arguments only to the quantum of punishment and sought for an adjudication on that question under Sec.11-A of the Industrial Disputes Act, hereinafter referred to as the Act. Accordingly the matter was heard on the aforesaid question. No oral evidence was adduced on his behalf. Exs.W-1 to W-7 and M-1 to M-1S were marked by consent of both sides. On behalf of the petitioner, the Airline Manager was examined as M.W.1. The Labour Court by its Award dated 25.6.1985 set aside the order of termination and directed reinstatement of the first respondent herein with backwages, continuity of service and other attendant benefits and imposed a punishment of stoppage of his annual increment for three years with effect from the date of his reinstatement, but without affecting his continuity of service. The Labour Court while passing the Award has taken the view that the order does not disclose that the past record of service of the petitioner had been taken into account while awarding punishment of dismissal, that the past events of misconduct and the punishment of warnings etc., imposed on the first respondent did not indicate any serious misconduct committed by the first respondent and that the first respondent had been guilty of having committed theft of a complimentary air bag valued at Rs.100 for which he had given an unqualified apology and begged to be excused and as such the punishment of dismissal for such trivial act of misconduct was grossly disproportionate to the gravity of the misconduct committed by him, that the petitioner was only a helper, that he was not holding any responsible post of confidence to entail any security risk and in the said circumstances the plea'that the Management had lost confidence in the petitioner and that he should not be reinstated in service had to be rejected and consequently set aside the order of dismissal and directed reinstatement with backwages, continuity of service and other attendant benefits and imposed punishment of stoppage of his annual increment for three years with effect from the date of his reinstatement, but without affecting his continuity of service. It is this award that is sought to be challenged in this writ petition. The petitioner has stated that the first respondent was a habitual late-comer and was warned several times for it and that when the first respondent was asked to deposit the money in the Bank he did not return within the normal period and on 25.5.1980 when one of the Officers went to the Bank at about 11.15 A.M. to check whether the first respondent who had already left with the cash was held up at the Bank, but to his surprise it was found that the first respondent was not seen and when an explanation was called for, the first respondent tendered an apology. The petitioner has further stated that the first respondent was found to have taken the attendance register unauthorisedly and when an explanation was called for, the first respondent tendered an apology and on 16.10.1981 the first respondent was found removing an air travel bag from the Manager's Office without the permission and thereby committed an offence of theft, which resulted in termination of his service. It is also stated that the act of theft has to be viewed with considerable seriousness, especially when the petitioner is a National Carrier of Air-Lanka. Furthermore, the employee in his capacity as Office Helper had free access to the commercial office of the petitioner and also to the International Air Port Terminal at Madras whenever he had to collect mail or carry out duties at Airports and in view of the disturbance in Sri Lanka, the Commercial Office in the City of Madras could very well be the target of attack. It is also stated that from the point of view of the safety of the passengers baggages and tickets, it is not advisable to have a person like the first respondent in service. It is stated that the passengers were in the habit of leaving their baggage in the City Office and touring the city or attending to other work and return later to collect the baggage and there is a vast scope for persons like the first respondent in indulging in acts detrimental to passengers themselves and the Airlines as well. It is in these circumstances that the dismissal of the first respondent was justified even if it is a theft of an air bag.
(3.) THE petitioner has also stated that the nature of business of the employer would be one of the factors that should be taken note of while deciding the question whether punishment was disproportionate or not. It is also stated that it would be impossible for the Management to retain a person in whom it has no confidence particularly when it is known that the employee had committed theft and that the Management would be justified in expecting total integrity from its employees particularly given the state of terrorism prevailing in which the first target of attack invariably is a Foreign Airline Office or its Aircraft, that there is ethnic unrest prevailing in Sri Lanka with several groups having grievances against the Sri Lanka Government and that the Airline Office could become a target of attack, that the petitioner was dealing with an employee, viz., the first respondent, who not only committed theft but had also pilferred confidential telex message and that this by itself would show that the employee was not one who was likely to reform. It is also stated that the Airline Office was far different from any of the commercial organisation and if at all that the employee ought to have been given some benefit he could have kept in mind a benefit of compensation. THE petitioner has also raised issues, which are as follows: (a) Whether the Labour Court while exercising discretion under Sec.11-A of the Industrial Disputes Act could direct reinstatement of an employee who has been found guilty of theft even by the Labour Court without considering the nature of work performed by the petitioner an International Airline and International Carrier of the Government of Sri Lanka particularly in the light of present state of affairs regarding security, safety of passengers and such like when absolute integrity of all employees to the satisfaction of the employer is a must. (b) Whether in the face of threats of international terrorism particularly directed against aircraft and offices of International Airlines of countries against which some group of ethnic grievances exist and it would be safe from the point of view of security and passengers'safety to direct reinstatement of an employee whose integrity is in question arising out of his committing theft from the Airline office itself more so when he holds a position which allows free entry and exit from the Airline office and Airport particularly in the case of the petitioner who has been already the target of a bomb blast in the Madras Airport relating to which one of its employees is an accused, reinstatement could be directed or whether it would be a fit case for grant of compensation. The first respondent in his counter has stated that the second respondent has rightly exercised the discretion under Sec.ll-A of the Act and awarded a lesser punishment restricting the punishment to stoppage of increment for three years, that since the introduction of Sec.11-A under the Industrial Disputes Act, award of punishment is not an exclusive managerial function but is subject to review and interference under Sec.11-A of the Act and that at the instance of the petitioner, the first respondent has given a letter on 1.11.1981, wherein the first respondent has stated -as follows:'Sir, I know that i have behaved very stupidly and I should have taken your permission before trying to take a bag from the office. Sir, I did not take the bag but I left it back as you are aware. Sir, I will never do such a thing in future. I will not take anything from the Air-Lanka Office in future. Sir, this is the first time that I have done such an offence. I have never committed this act before and I assure you, Sir, that I will never do this in future.'It is stated that on the basis of this letter, the petitioner has awarded the extreme punishment of termination of service. It is also stated that an International Airline is not a special category exempted from the provisions of the Act and without such an exemption it is wrong on the part of the management to plead that they should be treated differently and that the Labour Court should not exercise the discretion conferred upon under Sec.11-A of the Act and award reinstatement. It is stated that the allegations of international terrorism and extraordinary requirements of International Airlines are exaggerated to deny reinstatement to the first respondent. It is stated that the first respondent was given merit increment on 10.8.1981 and from this it would be clear that there was no grievance at all against the first respondent and that his past conduct was without any blemish. The first respondent has stated that he had taken the bag to give it to the Priest arid in case if he had done anything wrong they should acoept his apology and had denied the allegation that he had committed theft of company's property. It is also stated that it is clear from the telex message dated 17.10.1981 that the Manager of the local office was of the opinion that the first respondent's act should be viewed leniently and punishment of one increment cut and a final letter of warning would be adequate. It is also stated that the ethnic problem in Sri Lanka is not even remotely connected to the first respondent'sreinstatement in service. Mr.Sanjay Mohan, learned counsel for the petitioner, contended that the first respondent had committed theft of air bag from the Madras Office and when questioned he attempted to hide and thereafter when called for explanation, he accepted the guilt and tendered an apology. Learned counsel further contended that if the offence of theft is not disputed, in so far as the International Air Lines are concerned, dismissal is the only punishment. Theft has to be considered irrespective of the value of the articles and if so considered theft would never become trivial but is punishable under the Indian Penal Code. The Labour Court should keep in mind the nature of the duty performed by the employee viz., the first respondent herein and also the status of the petitioner where the security must be of the highest order. The Labour Court has not given any reason notwithstanding the fact that the act is trivial. Learned counsel for the petitioner further contended that when the petitioner lost confidence by reason of the fact of not only the past conduct of the first respondent but also from the fact that the first respondent has stealthily removed the original telex message received and marked the same before the Labour Court. Learned counsel further contended that the first respondent as a Helper will have an access to every department and susceptible to various outside agencies. It is in these circumstances, learned counsel for the petitioner contended that by reason of the fact that the petitioner had lost confidence in the first respondent, the labour Court ought to have confirmed the order of the petitioner, especially in the circumstances when the guilt is accepted and if the Labour Court felt that the punishment is extremely severe, the Labour Court ought not to have reinstated the first respondent into service but could have provided adequate compensation. ;