D.N.Patel, J. - (1.) This Letters Patent Appeal has been preferred by the original petitioner, who preferred W.P.(L) No. 2185 of 2010. The said writ petition was preferred, challenging the award passed by the Labour Court, Jamshedpur in Reference Case No. 23 of 1997 dated 19.12.2009. The Labour Court, Jamshedpur, while passing the award, had set aside the order of dismissal, passed by the disciplinary authority and the workman was ordered to be reinstated with 50% back wages and continuity in service. This award was challenged in the writ petition, which having been dismissed, the original petitioner has preferred the present Letters Patent Appeal.
(2.) F A C T U A L M A T R I X Respondent was working as a Pharmacist in the hospital owned, managed, controlled and run by this appellant. On 15.05.1992, when the general shift duty of the respondent was completed and he was going out of the gate of this appellant, as a routine checking, the scooter of the respondent-workman was checked and it was found that he was carrying unauthorizedly 30 tablets of Voveran, 80 tablets of Norflox and 1200 gm Bleaching Powder. On the basis of the aforesaid allegations, charge-sheet was issued to this respondent-delinquent on 01.06.1992 by the Senior Consultant. Post of Senior Consultant is much higher post than the post of Pharmacist. Charge-sheet is at Annexure-1 to the memo of this Letters Patent Appeal. Committee of inquiry officer was appointed consisting of two members. Several witnesses were examined. Several documentary evidences were also placed during the course of departmental inquiry. Medicines and bleaching powder, which were found during course of search of scooter of this respondent, were also produced. Adequate opportunity of being heard was also given to the respondent-delinquent. On the basis of the evidence before the inquiry officer, report was given on 03.05.1993 (Annexure-2 to the memo of this Letters Patent Appeal) and the charges levelled against the respondentdelinquent were held as proved. Industrial dispute was raised under Section 10 of the Industrial Disputes Act,1947 by the respondent-workman and ultimately, reference was made by the appropriate Government being Reference Case No. 23 of 1997 before the Labour Court, Jamshedpur. During course of hearing before the Labour Court, Jamshedpur, preliminary objection was raised by the workman about legality and validity of the domestic inquiry. Separate order was passed by the Labour Court, Jamshedpur, which is at Annexure-5 to the memo of this Letters Patent Appeal, wherein, it was held that the departmental inquiry was legal and valid. This order is dated 23.06.2004. When the Labour Court, Jamshedpur decided the Reference Case No. 23 of 1997, it came to the conclusion that the findings of the inquiry officer requires to be altered. Labour Court, Jamshedpur held that on the basis of the evidences on record, it cannot be said that the charges are proved. By re-appreciation of the evidences on record, it was concluded by the Labour Court, Jamshedpur that finding of the inquiry officer requires alteration and the order of reinstatement with 50% back wages was passed on 19.12.2009 (Award is at Annexure-6 to the memo of this Letters Patent Appeal). Being aggrieved and feeling dissatisfied by the award, passed by the Labour Court, Jamshedpur, appellant-management preferred writ petition being W.P.(L) No. 2185 of 2010, which was dismissed by the learned Single Judge vide judgment and order dated 23.06.2010 and being aggrieved and feeling dissatisfied by the aforesaid judgment and order, present Letters Patent Appeal has been preferred by the original petitioner.
(3.) Arguments canvassed by the counsel for the appellant: Counsel for the appellant has submitted that once departmental inquiry is held as legal and valid by the Labour Court, Jamshedpur and adequate opportunity of being heard was also being given during the domestic inquiry and when evidences were led during domestic inquiry and when there was no perversity in finding of the departmental inquiry, no power, jurisdiction and authority are vested with the Labour Court under Section 11-A of the Industrial Disputes Act, 1947 to interfere with the findings of the inquiry officer. Counsel for the appellant has further submitted that the Labour Court, Jamshedpur was not supposed to sit in appeal against the findings of departmental inquiry officer. Re-appreciation of the evidence could not have been done by the Labour Court, Jamshedpur. Counsel for the appellant has further submitted that there were serious charges of theft and thereby, the conduct of the respondent-delinquent was of defeating his post of Pharmacist. As many as 30 tablets of Voveran, 80 tablets of Norflox and 1200 gm of Bleaching Power were found from the dickey of the scooter of the respondent, when he was going out of the gate of the appellant after completion of his general shift duty, which is from 8:00 a.m. to 5:00 p.m., from the hospital of this appellant. It is further submitted by the counsel for the appellant that at internal page Nos.9 & 10 of the inquiry report, under the heading for Finding, it has been mentioned in detail, as under: "FINDINGS: From the perusal of the evidence adduced and the documents exhibited during the course of enquiry the following facts are revealed. The medicines/materials recovered from the person and scooter No. BHX 6100 of Mr. K.C. Bandyopadhyaya are : i) 'Voveran' tablets 50 mg. - 30 Nos. ii) One 'glo' cleansing powder packet, containing eight strips of 'Norflox' 400 mg. each strip containing 10 tablets thus 80 tablets in total, of batch No. K102/6, MFD JUL '91, Exp. '94: iii)One 'Digene' tablet tin filled with bleaching powder, weighing about 1.200 kg. I. Mr. K.C. Bandyopadhyaya stated that 30 Nos. of ' Voveran' 50 mg. tablets had been collected by him from Counter No. 3 of the Dispensing Room on the prescription slip issued by Dr. H.S. Rout. The statement of Mr. Bandyopadhyaya was found to be correct when the physical checking of the prescription slips or Counter No. 3 was conducted by Mr. J.N. Jaiswal the Investigating Officer. II. About the 'Norflox' tablets, the following facts transpired during the enquiry : 1. 80 tablets of ' Norflox' (eight strips each containing 10 tablets) were recovered from the dicky of the scooter of Mr. Bandyopadhyayas. 2. Mr. Bandyopadhyaya was not having any authority letter to take these medicines out of Telco Hospital. 3. The medicines were stamped ' Telco not for sale'. 4. Mr. Bandyopadhyaya in his statement as well as during cross-examination of all the Management witnesses tried to prove that the lock of dicky was tampered and he had no knowledge of presence of these medicines in the dicky. But, on being crossexamined by him all the Mgt. witnesses confirmed that while he was stopped and asked to open the dicky of his scooter he opened it himself with the key available with him and the lock was perfectly in condition. 5. Mr. Bandyopadhyaya in his statement given in the enquiry said that the 'Norflox' recovered from his scooter was manufactured by the Cipla Co. whereas the 'Norflox' tablets which was being distributed from the Dispensing Room from the day he replaced Mr. Biswas, Pharmacist, Telco Hospital, till the date he was caught with the medicine, Norflox tablet manufactured by the Lyka Co. were being distributed from the Dispensing Room. This was verified from the bin card of the Dispensing Room and found to be correct. 6.The stock of the 'Norflox' tablet at the Dispensing Room as well as of the Hospital Sub-Store were not checked by the Investigating Officer, which would have further substantiated the case. In view of the above, we come to the conclusion that Mr. K.C. Bandyopadhyaya was caught red handed with the 80 tablets of 'Norfflox'- 400 mg., kept in the dicky of his scooter while he was seeking exit from Telco Hospital Gate. He was not having any authority letter for taking out these medicines and the medicine was stamped "Telco not for sale", therefore, theft of 'Norflox' tablets under question by Mr. K.C. Bandyopadhaya is established however, it could not established as to from where the medicine was procured as the stock position tallied and there was no discrepancy found out in the stock position of Norflox' tablet of the Dispensing room." It is further submitted by the counsel for the appellant that there was no plausible explanation, at all, with the respondentdelinquent about possessing of 80 tablets of Norflox. There was no prescription at all with this respondent nor there was any bill to the effect that he had purchased the same from any medical store etc. It is further submitted by the counsel for the appellant that respondent was working as Pharmacist in the hospital run by this appellant. He was on duty from 8:00 a.m to 5:00 p.m. and when he was leaving the gate of this appellant, routine check up was being done by the security personnel and from the dickey of the scooter of the respondent-delinquent, aforesaid items were found out. No question of his purchase of medicines from any other medical stores whatsoever arises. All these evidences were led before the inquiry committee consisting of two members and at length, evidences were discussed by the inquiry officer, who had arrived at a conclusion that charges levelled against the respondentdelinquent have been proved. Counsel for the appellant has further submitted that Labour Court, Jamshedpur is not supposed to sit in appeal against the inquiry officer's report. The factum of proof of the allegations depends upon the subjective satisfaction of the inquiry committee. "Proved", "Not Proved" or "Unproved" all depends upon the evidences before the inquiry officer and the subjective satisfaction of the inquiry officer. Looking to the evidences on record, both oral as well as documentary, once the inquiry committee is subjectively satisfied that evidences on record were sufficient enough for proof of the charges, such subjective satisfaction of the inquiry committee could not have been altered by the Labour Court, Jamshedpur on a fanciful idea about the fact that no theft of Norflox was registered by the appellant. Counsel for the appellant has further submitted that by no stretch of imagination, it can be said that the conclusion arrived at by the inquiry committee is based upon no evidence. On the contrary, there were enough evidences on record during domestic inquiry and the conclusion arrived at by the inquiry committee is absolutely based upon the evidences on record. If such type of approach of the Labour Court is permitted in violation of Section 11- A of the Industrial Disputes Act, 1947, all the references under Section 10 of the Industrial Disputes Act, 1947 will be treated as first appeal, which is not permissible in the eyes of law. Counsel for the appellant has taken this Court to various annexures and has submitted that on the basis of the decision of the Hon'ble Supreme Court, reported in AIR 1974 SC 696 = (1974) 3 SCC 712 and also on the basis of the decision of the Hon'ble Supreme Court, reported in (2008) 1 SCC 115, finding of the Labour Court, Jamshedpur is perverse. Labour Court in fact has usurped the power of appeal against the order passed by the inquiry officer. Though inquiry officer's report is based upon the detailed discussion of the evidences on record, finding of the inquiry officer has wrongly been upset by the Labour Court, Jamshedpur by advancing another type of logic that there was no complaint of theft filed by the appellant for 80 tablets of Norflox. Even if, there was no complaint of theft, it was the duty of the respondent-delinquent to explain how he got the possession of 80 tablets of Norflox, especially, when those tablets were stamped "Telco Not for Sale". This fact has been recorded by the inquiry officer on internal page Nos. 9 & 10 of the inquiry report, which has been reproduced hereinabove. Labour Court, Jamshedpur has thus exceeded its jurisdiction under Section 11-A of the Industrial Disputes Act, 1947 and hence, award passed by the Labour Court in Reference Case No. 23 of 1997 dated 19.12.2009 deserves to be quashed and set aside. Similarly, order passed by the learned Single Judge in W.P.(L) No. 2185 of 2010 dated 23.06.2010 also deserves to be quashed and set aside because the learned Single Judge has failed to appreciate the power, jurisdiction and authority of the Labour Court, Jamshedpur under Section 11-A of the Act, 1947. Counsel for the appellant has further submitted that whatsoever small theft may be, but, the management has lost confidence and faith of the employee forthwith, which has resulted into the dismissal of the respondent vide order dated 03.05.1993 (Annexure-2 to the memo of this Letters Patent Appeal) passed by the disciplinary authority-Sr. General Manager of the appellant.;