GAJENDRAGADKAR, J. - (1.) THE appellant C. A. Rodrick was appointed by the respondent Karam Chand Thapar & Bros. (Private), Ltd., as a store-keeper. On 7 December, 1956 Mr. Sen Gupta took account of the stock which was in charge of the appellant and discovered that the stock was deficient in respect of many item. On 3 January, 1957, the appellant was served with a chargesheet and on the same date, he was suspended from service. Therefore, an enquiry was held and as a result of the enquiry, he was dismissed from service on 19 February, 1957. On 10 March, 1957, he made the present application to the industrial tribunal under S.33A of the Industrial Disputes Act. He alleged that his dismissal had contravened S.33 of the Act and that he was entitled to reinstatement.
(2.) THE respondent disputed the appellant's status as a workman and pleaded that S. 33 was inapplicable and so the respondent's case was that since S. 33 had not been contravened the appellant's application under S. 33A was incompetent. The tribunal has upheld the appellant's case that he was a workman employed by the respondent; it has also accepted his argument that he was a workman concerned in an industrial dispute which was then pending adjudication and so, S. 33 was applicable and had been contravened by the respondent. That is why the tribunal rejected the preliminary objection of the respondent that the application made by the appellant under S. 33A was not competent. Having reached this conclusion the tribunal proceeded to examine (sic) between the parties on its merits. It is well settled that if an application is made by an employee under S. 33A and it is shown that the impugned dismissal of the employee has contravened S. 33, it is open to the employer to justify the dismissal on the merits by adducing satisfactory evidence before the tribunal. The respondent has adopted that course in the present proceedings.On the merits, the tribunal has believed the evidence led by the respondent and held that the appellant was guilty of misappropriation. In the result, the application made by the appellant under S. 33A has been dismissed, and it has been held that the dismissal of the appellant was fully justified. It is against this award that Mr. Gopalakrishnan has come to this Court by special leave on behalf of the appellant.
(3.) MR . Gopalakrishnan does not dispute the fact that when Mr. Sen Gupta checked the stores, he found that many items of the stores were mission. He however argues that the management of the stores was such a difficult job that it is impossible to hold that just because some goods were missing, the appellant alone could be fixed with the criminal responsibility in that behalf. Mr. Gopalakrishnan further contends that the appellant used to give the keys every evening to his superior officer and he relies on the fact that in a criminal case started against the appellant, he was been discharged. There may be some force in the argument that some others besides the appellant may have been responsible for the loss of the goods; but in any case, in respect of some items, the appellant has clearly admitted that he is guilty. After inspection of the godown was made, the appellant was called to give his explanation and in his explanation on 27 December, 1956, he admitted that two Primus stoves belonging to tents supply were lying in the godown and required repairs. He added that he took both the stoves to a repair shop and got one stove repaired and left the other with the repairer and that the repaired stove he took to his house and was using it. This clearly is an admission that the appellant took one of the two stoves belonging to the respondent, got one repaired and was using it.Similarly, the appellant admitted that ten liquid soap metal dispenser and 33 brass nozzles were missing, but he added that he could not say who had taken them away. Then he seemed to suggest that his assistant Mr. Bose may be responsible. But on second thought he withdrew that allegation and stated that Mr. Bose was an honest man. Mr. Gopalakrishnan no doubt relief on a complaint made by the appellant against the coolie Basan Kahar, but as the tribunal has pointed out, it is easy for the appellant to suggest that some others may have a hand in removing some of the goods; but if the appellant was appointed as store-keeper, it was his primary responsibility to look after the stores and see that no pilfering took place. Admittedly, some stores are missing and admittedly there is no other evidence to show that anybody else could have taken them away. Besides, the items we have already indicated are shown to have been taken by the appellant. Under these circumstances, if the tribunal came to the conclusion that the charges framed against the appellant by the respondent were fully established before it, we do not see how the appellant could successfully challenge the correctness or the propriety of that conclusion. It is a question of fact which the tribunal had to consider and decide and ordinarily this Court does not interfere with questions of fact.;