SECRETARY COCHIN DOCK LABOUR BOARD CO-OP. STORES LTD Vs. P.V. ANTONY

JUDGEMENT

(1.) Both these petitions impugn the same award passed by the Industrial Tribunal, Calicut, and marked in both cases as Ext. P-1. By that award the said Industrial Tribunal, held that the dismissal of the petitioner in O.P. 3052 of 1976 (he is the 1st respondent in the other O.P.) by the petitioner in O.P. 2843 of 1976 was not justified, and ordered the latter to pay to the former one year's salary as back wages and two months' wages for each completed year of service as compensation for non employment without justification. The employer seeks to have Ext. P-1 award quashed, and the employee prays for an order of reinstatement.

(2.) P. V. Antony, the employee, was the Sales Manager of the Cochin Dock Labour Board Employees' Consumers' Cooperative Stores Ltd., who through its Secretary has filed O.P. No. 2843 of 1976. On June 1, 1972 the management appears to have detected some deficiency in the stock on stock verification, whereupon the management called for the explanation of Antony, the Sales Manager and two others, V. V. Thomas and K. A. Pareed, weighingmen. By Ext. P-3 (in O.P. 2843 of 1976) joint statement dated 7th June 1972 they admitted that there is a deficiency of stock worth Rs. 5417.28 and explained the shortage as caused by reason of and at the time of retail sales to customers. They therein stated that they are responsible for the stock and agreed to have the loss recovered from their pay after deducting 1 1/4 per cent as done in previous years. By order dated 26th July 1972 marked Ext. M-5 in the proceedings before the tribunal, after deducting allowable shortage, the management apportioned the liability of the three employees. Antony was held liable to pay Rs. 805.40. This, as submitted at the bar, was on the basis that after deducting the allowable shortage the loss was to the extent of Rs. 4,944.82. There was another stock verification on 1st July 1972 for the year ending 30th June 1972 and the same shortage was found then also. At this stock verification, according to the management, a test check was conducted on the transactions and the stock thereon of some selected countable items such as Horlicks, Dalda, Cutticura Powder, etc., for the months of January, March and April 1972. Specific shortage in countable items were detected. Stating these facts and detailing the shortage in countable items the management issued Ext. P2 (in O.P. 2843 of 1976) notice to the three employees levelling charges of the misconduct of: (1) 'Dishonesty in carrying out the work entrusted to' each of them and (2) 'Misappropriation of articles from' the stores of the employer, and requiring them to show cause as to why disciplinary action as contemplated by the bye laws should not be taken against them. They were also directed to appear on 25th September 1972 before the Sub Committee constituted under the bye laws for domestic enquiry. This Committee, as seen from their Ext. P5 (in O.P. 2843 of 1976) report met on 26th September 1972, 28th September 1972, 9th October 1972, 10th October 1972 and 11th October 1972. Antony did not participate in the proceedings before the Sub Committee. He however sent Ext.W-3 explanation (mentioned in Ext. P1 award) dated 22nd September 1972 denying the charges and asking whether the proposed enquiry is a domestic enquiry and whether he should produce his own witnesses. It appears that no reply was given to this. However as seen from Ext. P5 report, further memos were sent to him asking him to participate in the enquiry proceedings on 27th September 1972 and 3rd October 1972, enclosing with the 2nd mentioned memo a true copy of the proceedings in full till then conducted by the Committee. The sub committee found that all the three employees are guilty on both counts, and dismissed them from service.

(3.) The dispute regarding dismissal of Antony was referred by the Government for adjudication to the Industrial Tribunal, Calicut, who is the 2nd respondent in O.P. 2843 of 1976 and the 3rd respondent in the other as per an order dated 27th June 1973. By Ext. P-1 award dated 3rd February 1976 the Tribunal held as already indicated, that the finding in Ext. P-5 that the worker was guilty of misconduct was not justified 'on the facts available'. The facts relied on by the Tribunal appear to be:- (i) even prior to the framing of charges and levelling them against the employee as per Ext. P-2 notice, the management constituted a sub committee for domestic enquiry, and without waiting for any reply to Ext. P2 show cause notice, by that notice itself, the employee was directed to appear before that enquiry committee; (ii) in view of the above fact, according to the Tribunal, the workman justifiably apprehended that the domestic enquiry would be biased and that therefore, his non participation in the domestic enquiry proceedings also was justified; (iii) no material other than the Secretary's oral testimony is available in support of the test checking; (iv) the charges have been levelled against all the three employees conjointly without any precise and specific allegation against any one of them; (v) the questions put by the enquiry officers would suggest that they imported their personal knowledge into the enquiry and sought clarification from the Secretary; and (vi) the subsequent domestic enquiry, after an order apportioning the liability of the three employees would to a certain extent be biased. For these reasons the Tribunal found that the domestic enquiry was not proper.