D.A.DESAI, J.B.MEHTA, J.B.MEHTA - (1.) This petition by a helper employed by the Ahmedabad Co-operative Department Stores Limited (employer for short) questioned the correctness and validity of an order made by the Manager of the employer on December 19 1973 dismissing the petitioner from the service of the employer and the order made by the Labour Court Ahmedabad in Reference I. C. No. 217 of 1974 converting the order of dismissal into one of discharge.
(2.) The backdrop of the case which will illuminate the issues that have been canvassed at the hearing of this petition may be briefly stated. By November 17 1973 the petitioner was serving as a helper employed by the employer for two and half sears and was assigned the work of preparing bills and weighing commodities sold to the customers in the premises of the employer. On the relevant date that is on November 17 1973 he was in receipt of a consolidated monthly wages of Rs. 145.00. On November 17 1973 somewhere in the evening one customer came to purchase wheat. It is alleged that he purchased 10 Kg. of wheat and a bill to that effect was prepared by the petitioner and when he started weighing the quantity of wheat in the scales one Mr. Thakarda who was in charge of the foodgrains section and one Antiben which appears to be the name by which witness Bhanuben Vakil was addressed found that the quantity of wheat in the scale appeared to be more than what the customer had purchased and they stopped the petitioner from putting the wheat in the cotton cloth handbag which the customer had brought and 5 Kg. of wheat were taken out and put back in the jute bag from which the wheat was taken. Mr. Thakarda in charge of the foodgrains section immediately submitted a report dated November 17 1973 soon after the occurrence addressed to the Assistant Manager in which after setting out the aforementioned facts it was stated that the petitioner by mistake was likely to give 5 Kg. wheat more than the quantity purchased to the customer and that such act of neglect was likely to cause loss to the employer and therefore the petitioner is required to be seriously reprimanded. He also requested for transfer of the petitioner from his section to some other section. Acting on this complaint of Mr. Thakarda the Deputy Man- ager issued a show cause notice accompanied by the preliminary suspension order dated November 18 1973 calling upon the petitioner to attend an inquiry which was intended to be held on November 23 1973 at 1.00 P. M. before the Deputy Manager. It may be mentioned that the show cause notice is in the nature of a charge-sheet and the allegation in it relevant to the alleged misconduct is worth noticing in entirety. It reads as under:- You are working as a helper in the foodgrains section and you remained very negligent in your work. On November 17 1973 you prepared Bill No. 47536 showing sale of 10 Kg. of wheat but you weighed 15 Kg. of wheat. However in view of the strict observation made by Shri Thakarda and Shri Antiben you were stopped at the time before putting the wheat from the scale into the cotton cloth handbag of the customer and after reweighing 5 Kg. of wheat were returned to the jute bag. Then proceeds the allegation that this constitutes serious negligence which was likely to cause financial loss to the employer and therefore it was not possible to continue the petitioner any more in service and the peti- tioner is suspended from November 20 1973 and the inquiry would be held on November 23 1973 On November 23 1973 the inquiry was held by the Deputy Manager. Statements of one Udesing Javerbhai Sabdaji Rathuji Thakarda man in charge of the foodgrains section and one who filed the initial complaint Bhanuben Vakil (referred to as Antiben in the charge) and petitioner were recorded. The Deputy Manager submitted his report dated December 18 1973 He summed up by saying that if withness Udesing had not kept a watch petitioner was likely to pass 5 Kg. of wheat more than the quantity purchased and that this constitutes serious misconduct which cannot be tolerated and there- fore the petitioner deserves to be dismissed. Presumably accepting this report of the Deputy Manager the Manager dismissed the petitioner from service.
(3.) When the order dismissing the petitioner from service was taken before the Labour Court in a Reference made under the Industrial Dis- putes Act the petitioner examined himself before the Labour Court. Papers of inquiry were produced on behalf of the employer but no evidence was led on behalf of the employer before the Labour Court. The presiding officer of the Labour Court after a narration of facts held that no induce. ment appears to have been given by the employer to the petitioner at the time of making the inquiry to make the statement in the manner and in the way in which he had made it. It was further observed that even if the statement of the petitioner is excluded there was unchallenged evidence of three witnesses. He then observed that there is no contention that the order of the inquiry officer is perverse or mala fide. Then comes the pertinent observation which may be re-produced to show how perfunctorily the whole case has been disposed of by the Labour Court. Observed the Labour Court :- On misconduct being proved it was in interest of company not to continue the workman in service. It is also held that there was a full-fledged inquiry in conso- nance with principles of natural justice Having held that the misconduct is proved the presiding officer of the Labour Court proceeded presumably to decide whether the penalty was out of all proportion to the gravity of the charge. In this connection he observed that there was no evidence to establish that the customer concerned was known to the workman and he tendered apology and that workman has a clean record and the value of 5 kg. of wheat would be Rs. 8. 50 and the punishment of dismissal to a workman with clean record was too severe. He then observed that having considered the evidence led at the inquiry and other circumstances the order of dismissal should be converted into one of discharge and proceeded to pass the final order ;