Decided on February 01,1974

Punalur Paper Mills Employees Union Appellant
General Manager Punalur Paper Mills Respondents


K.SADASIVAN,J. - (1.) THIS appeal arises from the decision of Isaac,J .,in O.P.3607/70.Union was the petitioner in the O.P.Some phosphor bronze wire cloth costing about Rs.700 was found missing from the company store room.The Administrative Officer of the company lodged a complaint before the local police about the missing of the article,and the police after investi­gation charge sheeted 5 of the workmen for theft in the Sub Magistrate's Court,Punalur.At the same time a domestic enquiry was also conducted against the workmen on the same charge.They were found guilty in the domestic enquiry and all of them were dismissed from service.The finding entered in the domestic enquiry was based mainly on the evidence of two witnesses,who later on turned hostile before the Magistrate.The learned Magistrate acquitted the accused on the ground that there was no evidence to connect the accused with the crime.The dismissal of the workmen gave rise to an industrial dispute which was referred for adjudication to the Labour Court,Punalur.By Ext.P -2 award the Labour Court found that the dismissal was proper and there was no ground for interference.It is for quashing the award of the Labour Court that the O.P.was filed.
(2.) CONTENTIONS were raised before the learned Single Judge to the effect that the domestic enquiry was violative of the principles of natural justice and that the witnesses on whose evidence the workmen were found guilty in the domestic enquiry having been disbelieved by the Magistrate it was not proper on the part of the Labour Court to have accepted their evidence.The dismissal of the workmen,it was further contended,was an act of victimization by the management.These contentions did not find favour with the learned Single Judge and he has dismissed the O.P.upholding the award passed by the Labour Court. We must observe at the very outset that the matter has not been looked at in the proper perspective.We feel that the domestic enquiry was violative of natural justice and that the learned Tribunal in passing the award has grossly misread and misappreciated the evidence.The domestic enquiry was conducted by Sri Lobo,who was then the Assistant Manager of the company(Punalur Paper Mills ).It was he who had preferred the complaint to the police about the theft.In other words,he was virtually the prosecutor in the case before the learned Magistrate and at the same time the Presiding Officer at the domestic enquiry.Putting it differently he was himself the prosecutor and the Judge at one and the same time.Learned counsel for the company tried to explain away the circumstance by saying that before the Magistrate he was,only a formal witness and when he gave information to the police he had not men­tioned anybody by name as the person responsible for the crime and as such it would be incorrect to say that he was disqualified to hold the enquiry.We regret we cannot agree.It cannot be gainsaid that when he lodged the complaint to the police it was his desire that the thiefs should be booked and suitably punished.He had thus identified himself with the company in such a way that it was in his interest also that these workmen who were not pulling well with the company should be sent away.This was a serious matter and the workmen had protested against Sri Lobo conducting the domestic enquiry.In all fairness the domestic enquiry should have been held up during the pendency of the criminal trial.No such course was adopted by the company and in the circumstances we see force in the contention of the learned counsel that the domestic enquiry was vitiated.
(3.) THERE is gross misreading of evidence.The two witnesses who are cited to connect the accused with the act of theft are,Madhavan Pillai Narayana Pillai of Tholikkottu Vilayil veedu,Punalur and Madhavan Pillai,Gharuvila Puthen Veedu,near Power House Road,Punalur.The Tribunal in appreciating the evidence of these witnesses has stated that both these persons gave evidence at the enquiry to the effect that they saw Arjunan Asari,Oosman Kunju and Madhavan Pillai carrying the wire cloth to the boundary of the mill compound and throwing it to the road where the other two accused D.George and V.Abdul Rahiman were standing.These two accused then carried the wire cloth from there.But on a reading of the evidence it is seen that only the first -mentioned witness,Narayana Pillai had stated that throwing of the wire cloth over the fence by Madhavan Pillai,Arjunan Asari and Oosman Kunju was seen by him.The other witness,on the other hand,was not able to mention the names of the three persons.All that he was able to say was that he saw three persons throwing the bundle over the fence.Neither of them has stated that they saw the wire cloth being thrown.They were able to say only that a bundle of something was thrown.Both the enquiry officer and the learned Tribunal have proceeded on the assumption that the throwing of the wire by the three accused was seen by both the witnesses.Whether the roll thrown over the fence was wire cloth,the witnesses were not able to say.Thus misreading has vitiated the finding of both the Tribunal and the enquiry officer and as such their decisions cannot be accepted for any purpose.Both these witnesses are persons residing 4 or 5 miles away from the place and how they happened to be present there at that particular time has not been explained by them.All that they say is that they saw the incident while passing along the road and according to Narayana Pillai he was going home after paying a visit to a friend;but the other witness Madhavan Pillai does not state any particular reason for going that way.We have no doubt that both of them are casual witnesses who have been brought up for the occasion.In the case of both of them it is interesting to note that statements have been elicited from them through the medium of leading or suggestive questions.It is also interesting that when they were examined before the Magis­trate they resiled and stated that nothing was seen by them.They even denied having been examined before the domestic Tribunal.It is impossible to place any reliance on such witnesses who would swear to anything as suggested to them.Coupled with these is the further circumstance that the person from whose shop the stolen article was recovered has not been examined.He could have given valuable infor­mation as to how he happened to come into possession of the wire cloth and the person or persons who had taken it to him.We are tempted to think in the circumstances that an important link in the chain of evidence which could have connected the accused with the crime has been suppressed.For all these reasons we think that the decision of the domestic tribunal and the Labour Court must be vacated.;

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