- (1.) SHOHHA Dikshit J. This writ petition is directed against the Award dated 21-9-1994 passed by the Industrial Tribunal No. 2, Lucknow upholding the order of dismissal of the petitioner, passed by the employers M/s. Voltas Limited as legal and valid.
(2.) PETITIONER was offered the post of Stenographer on regular basis by opposite party No. 2 vide its letter dated 1-3-1972. He was subsequently confirmed vide or ders dated 22-9-1972. According to the petitioner, he continued to work with sin cerity and loyalty and discharged the duties assigned to him to the entire satis faction of the management. However, the problem arose when the petitioner got himself enrolled as an active member of Voltas and Volkart Employees' Union, U. P. and because of his active participation in the legal trade union activities, the management got annoyed and his rela tions with the management became strained. This led to issuance of charge-sheets to the petitioner on allegations of insubordination from the year 1985 on wards. A charge-sheet was accordingly is sued on 6-2-1986 and Sri R. C. Srivastava was appointed the Enquiry Officer who was the Legal Advisor of the employers. The petitioner apprehending that such an enquiry would not be fair and impartial, filed a writ petition No. 4480 of 1986 before this Court with the prayer that the Enquiry Officer be changed. This writ petition was disposed of at the preliminary stage itself vide orders dated 11-9-1989 with the observation that it is expected from the employers that they will change the Enquiry Officer against whom the petitioner had made allegations. Accord ing to the petitioner, this enquiry simply dragged on and while it was pending, another charge-sheet dated 6-1-1989 was issued to him, a true copy of which is an nexed as Annexure-7 to the writ petition. Two charges were levelled against the petitioner amounting to grave miscon duct. The first charge was that he failed to deposit with the Accounts Departments of the Company a cheque dated 3-11-1989 issued by one of the dealers for Rs. 22,291 and because of this lapse, another cheque had to be obtained from the said dealer which lowered the reputation of the employer Company. The second charge related to the denial by the petitioner to receive the memos issued to him in the office as well as at his residence in this connection which was an act of insubor dination disobedience. PETITIONER submitted a reply denying the same vide his letter dated 10/12-2-1986. The employers again appointed Sri R. C. Srivastava as Enquiry Officer to hold the enquiry in spite of petitioner's objection. The said Enquiry Officer proceeded with the en quiry exparte and submitted the enquiry report, on the basis of which, the employers dismissed the petitioner from service vide orders dated 26-12-1989 on the ground that the petitioner is guilty of misconduct as alleged in the charge-sheet and also because of his unsatisfactory past conduct where by warnings were issued to him on several occasion. A copy of the impugned order has been annexed as An-nexure-16 to the writ petition. Aggrieved by the same, petitioner approached the Conciliation Officer who referred the matter to the State Government along with his recommendations for refer ring the industrial dispute for adjudica tion. The State Government accordingly referred the dispute for adjudication under Section 4- K" of the U. P. Industrial Disputes Act (here after referred to as the Act) to the Industrial Tribunal at Lucknow. Both parties filed their written state ments. The stand of the petitioner was that the order of dismissal has been passed simply to victimise him and the domestic enquiry was a sham and partisan expane enquiry, hence the order of dismissal passed on the basis of such an enquiry is illegal and unconstitutional. The stance of the management on the other hand was that the work and conduct of the petitioner was not at all upto the mark and he was warned and cautioned in past on several occasions for acts of indisipline and insubordinate. The enquiry was said to have been conducted in accordance with the principles of natural justice giving full opportunity to the workman to place his defence but since he avoided to par ticipate in the enquiry, the same had to proceed exparte. On the pleadings of the parties, a preliminary issue was framed by the Industrial Tribunal as to whether the domestic enquiry conducted by the management is not fair and proper and if so, its effect. PETITIONER had opposed the framing of the preliminary issue but his objection was rejected. The said prelimi nary issue was decided by the learned Tribunal vide orders dated 21-11-1994 in favour of the workman and it was found that the enquiry conducted by the Enquiry Officer Sri. R. C. Srivastava was unfair, illegal and unconstitutional. The learned Tribunal after holding the enquiry illegal gave an opportunity to the parties to lead evidence to establish their respective cases. The management led the evidence but the petitioner did not adduce any fresh evidence. The Tribunal after appreciating the evidence and the pleadings of the par ties gave the impugned Award upholding the order of dismissal. Aggrieved by the said Award, petitioner has approached this Court under Article 226 of the Con stitution of India by filing the instant writ petition. Petitioner appeared in person and argued his case himself. The management was represented through its counsel. I have heard both of them. Petitioner has challenged the im pugned Award primarily on three grounds. Firstly. that the Tribunal misread the evidence led before its, hence, the find ings recorded by it upholding the order of dismissal is erroneous and illegal. Second ly, the learned Tribunal failed to record any finding whether the alleged acts of commission and omission by the petitioner constituted misconduct or not and if so, under which provisions of law, the certified standing orders as claimed by the employers or under U. P. Shops and Commercial Establishment Act, 1962 is asserted by the workman and lastly, even if the alleged misconduct was found the have been established under the law applicable to the petitioner, then whether the ex treme punishment of dismissal from ser vice is appropriate proportionate or not in the facts and circumstances of this case.
(3.) IN support of the first contention, petitioner referred to the Award in ques tion. He submitted that the learned Tribunal has discussed in great detail the evidence led by the employers and has come to the conclusion that the cheque in question was factually received by the petitioner and it is he who prepared the invoice but when the same did not reach in the Accounts Section for 5-6 days, then the dealer was called upon to issue another cheque which in the opinion of the Tribunal also had lowered the reputation of the Company. The Tribunal has also come to the conclusion that the petitioner did refuse to accept the office memo on 22-9-1988 and, 2-12-1988 which are acts of insubordination and indiscipline. Though the learned Tribunal has noticed the evidence of the petitioner that the im pugned action was initiated against him because he had brought the acts of favouritism and financial irregularity com mitted by the Branch Manager Sri S. K. Mehrotra in collusion with one, Sri Gurudata in light, therefore, he is being victimised but no finding in this regard has been recorded by the learned Tribunal. The petitioner laid great emphasis on the fact that it was never the case of the employers that it was one of the duties assigned to the petitioner to receive che ques or that he embezzled or mis- ap propriate the amounts. Even if the charge is accepted as such, the maximum which one could infer was that it was a lapse or an act of carelessness on his part. According to the petitioner, in this respect, the learned Tribunal completely ignored to appreciate the deposition made by the petitioner himself that on several oc casions in pat, cheques had been misplaced in the branch office by several other employees and one such employee being Anup Tandon but the management had taken no action against them or Anup Tandon but when the cheque was misplaced by the petitioner for once, it certainly did not attract the extreme penal ty of dismissal from service, Petitioner, therefore, contended that it is a clear case of vindictiveness and he has been awarded the extreme punishment with a view to throw him out. Therefore, the finding holding the petitioner guilty is wholly per verse and is either based on no material or misappropriation of the evidence on record.;