JUDGMENT
M.Y. Eqbal, J.
1. In this writ application the petitioner has prayed for quashing the order dated 10.3.1995 passed by the Presiding Officer, Labour Court, Jamshedpur in BSE Case No. 7/89 under the provisions of Section 26 of the Shops and Establishment Act directing for reinstatement of the employee in service with half back wages and continuity of service.
2. Respondent No. 2 complainant is in the service of the petitioner as Town Planning Assistant. Subsequently he was promoted as Assistant Zonal Engineer in the Town Engineering Department of the petitioner-company. On 11.6.1988 the complainant was put under suspension on the allegation of conspiracy in the matter of approval of contract of a contractor. The
complainant submitted his explanation called for by the petitioner denying that he has committed any misconduct. The Director Town Services of the petitioner-company appointed an Enquiry Committee to enquire into the allegation and one Sri R.P. Singh, Intelligence Officer was appointed as Management Representative. On the basis of inquiry the Director, Town Services discharged the services of the complainant in terms of the order dated 6.1.1989. The complainant challenged the said order of his discharge before the Labour Court under Section 26 of the Bihar Shops and Establishment Act, 1953.
3. The petitioner company on being noticed appeared before the Labour Court and filed their show cause. The case of the petitioner-company is that the Assistant Zonal Engineer, the complainant was to supervise and inspect the work of the contractor working in the Town Engineering Department. While he was working in such capacity, a complaint was received from M/s. Ramdhari Prasad Verma through B.B. Sharan, one of the contractors that he demanded Rs. 1000/- as illegal gratification from the contractor. On receiving the said complaint, Sri Sanjay Singh, on 10.6.1988 decided to catch the complainant red handed and for that purpose the contractor provided seven notes of one hundred rupees to Sri. Sanjay Singh who after signing and taking down the numbers of the notes, returned the same. On the relevant date Sri. B.K. Lahiri was also instructed to go to Ramdas Bhatta where the complainant was to take the bribe. At about 5.45 p.m. money was handed over to the complainant by the contractor which he kept in his pocket. When the complainant came in his office, he was caught by the Security Officer and other security personnel and Rs. 700/- recovered from the pocket of the complainant which bear the signature of Sri Sanjay Singh. Further case of the petitioner company is that immediately thereafter the complainant gave his voluntary statement in writing admitting the above mentioned facts. Subsequently charge sheet was issued with respect to the
charge of demanding and taking the bribe/ illegal gratification and he was discharged from service.
4. Before the Labour Court the complainant examined himself only while the petitioner company examined seven persons as witnesses on the point of enquiry as well as merit of the case. The Labour Court after considering the facts of the case and the evidence led by the parties, passed the impugned order and set aside the order of discharge and directed for reinstatement of the complainant with half back wages and other benefits including continuity of service.
5. Mr. G.M. Mishra, learned counsel appearing on behalf of the petitioner-company assailed the impugned order as being illegal and perverse in law and against the materials on record. Learned counsel submitted that the Labour Court has committed serious error of law in so far as it held that the Director, Town Services is not the competent authority to dispense with the services of the complainant. In this connection, learned counsel drew my attention to Annexure-5 to the writ application which is a copy of the show cause filed by the petitioner before the Labour Court stating very clearly that the complainant was appointed by letter dated 4.6.1982 issued under the signature of the then Deputy Director, Town Services who signed the letter for the Director of Town Services. Learned counsel also drew my attention to Annexure-9 to the supplementary affidavit which is an employment notification dated 4.6.1982 which shows that the complainant was appointed by the Director, Town Services. I find much force in the submission of the learned counsel. The petitioner-company has been defined in the Standing Order which means Tata Iron and Steel Co. Ltd.. Admittedly the company has its Directors for looking after different branches of the Company as the head of the concerned branches.
6. On the other hand, Mr. S.K. Ughal, learned counsel appearing on behalf of the respondent-complainant has drawn my attention to paragraph 29 of the impugned
order passed by the Labour Court where the Labour Court has taken the view that the petitioner-company failed to establish that the Director is the appointing authority.
7. Admittedly the petitioner was appointed by the Director, Town Services and, therefore, the Director, Town Services is the appointing authority of the complainant. In my opinion, therefore, initiating the disciplinary proceeding and finally passing the order of punishment by the Director. Town Services can not be said to be without jurisdiction. The Labour Court has not correctly appreciated the law and the Standing Order in this regard.
8. Mr. Mishra, learned counsel for the petitioner then submitted that when the charge of misconduct was proved against the complainant regarding receiving illegal gratification then the proper order that would have been passed by the Labour Court was to maintain the order of discharge of the complainant. Learned counsel further submitted that in any view of the matter money compensation would have been the adequate relief.
9. The Labour Court while deciding the issue as to whether the charge of misconduct levelled against the complainant has been proved, has found that the charge-sheet against the petitioner consists of two parts. The first part of the charge is that the complainant demanded Rs. 1,000/- from one Sri B.B. Sharan, Contractor, as illegal gratification. The second part of charge is that on 10.6.1988 at about 6 p.m. Sri B.B. Sharan gave the complainant Rs. 700/- (one hundred note each) in his office and immediately after acceptance of the amount the security personnels arrived there and recovered 700/- currency notes from the pocket of the complainant. The Labour Court further held that so far first part of charge is concerned, there is absolutely no evidence on record. The most important witness in this case is Sri B.B. Sharan, who is alleged to have given money to the complainant as illegal gratification but the said Contractor, Sri B.B. Sharan was not examined. There is no evidence to show that the complainant demanded Rs. 1000/- from the contractor for certifying his pending bills. I do not find any illegality or perversity in the finding recorded by the Labour Court on the first part of the charge.
10. So far the second part of the charge is concerned, the Labour Court recorded the following findings in his order :–
“So far recovery of the said money from the pocket of the complainant is concerned, it has been proved. The opposite party witnesses have stated that seven hundred rupees (seven currency notes of one hundred) was recovered from the pocket of the complainant. It has also come in the evidence that serial number of all the notes were tallied with the numbers of the raiding party carrying with them. These notes were signed by Sri Sanjay Singh, OPW/5. These notes are produced before this Court which is material Ext. 1. The complainant in his written statement, after the occurrence, admitted the recovery of the above amount. The written statement of the complainant is Ext. A. When this statement was shown to the complainant during the cross- examination he admitted that it was written and signed by him. He has also stated that this statement was not written by him out of his own will. It was written at the dictation of Shri B.C. Kumar and other officers. But the complainant did not give any petition before any officer that he had written the said statement under threat. According to his document, Ext. A, these seven currency notes of hundred rupees were found in left side pocket of the complainant. From the statements of the opposite party witnesses as well as from this document, Ext. A it is clear that seven currency notes of hundred rupees were found in the pocket of the complainant. Now the onus lies on the complainant to show as to how this money came in his pocket. But the complainant did not give any satisfactory reply.
It was submitted by the learned lawyer for the complainant that in course of his duties the complainant
had submitted several reports against the said contractor regarding his work as a result of which the said contractor conspired and planted some notes in the pocket of the complainant with intention to get him trapped. He drew my attention towards Ext. 1 series. Exts. 1 to 1/d are five reports written by the complainant against the said contractor with regard to his work which go to show that the work of the said contractor was not found satisfactory. Ext. 1 is dated 22.4.1988 Ext. 1/a is dated 28.5.1988 and Ext. 1/b to 1/d are dated 8.6.1988. This occurrence is said to have taken place on 10.6.1988. There is no evidence that the complainant had demanded Rs. 1000/- from the said contractor as illegal gratification for certifying his bills. There is no evidence to show that any bill of the said contractor was pending for certification at that time. The place where the complainant is alleged to have received money has not been established. The complainant made several reports against the said contractor with regard to his work prior to the date of this occurrence. From all these circumstances, I find much force in the argument of the learned lawyer of the complainant that the contractor, Sri B.B. Sharan was annoyed with the complainant and he might have conspired and planted some notes in the pocket of the complainant with a view to harass him.
Considering the facts, circumstances and evidence discussed above, I have come to the conclusion that the opposite party has not been able to prove that the complainant had demanded money from the contractor as illegal gratification for certifying his bill. The place has also not been established beyond doubt where the complainant is alleged to have received money from the said contractor. It was also not proved that any bill of the said contractor was pending for certification at that time. Only the recovery of seven currency notes of hundred rupees from the pocket of the
complainant which bear the signature of Sri Sanjay Singh, has been proved. Thus the charge levelled against the complainant has been partly proved. This is decided accordingly.”
11. It is, therefore, clear that the Labour Court, so far first part of the charge regarding demand of rupees one thousand is concerned, held that the same has not been proved but so far second part of the charge regarding receiving rupees seven hundred currency notes and recovery of the same from the pocket of the complainant is concerned, the Labour Court held that the same has been proved. In such circumstance, I am of the opinion that the impugned order of the Labour Court for reinstatement of the complainant-respondent in service is unjustified,
12. It appears that because of the gravity of the charges the respondent was discharged from service which shows that he had clearly forfeited the confidence of the employer. Learned counsel for the petitioner-company has submitted that in the facts and circumstances of the case money compensation would have been adequate relief for the employee. Learned counsel very fairly contended that the petitioner is ready to pay the compensation in lieu of reinstatement.
13. At this stage it would be worth to mention the provisions of Sub-section (5) of Section 26 of the Bihar Shops and Establishment Act which reads as under :–
“5 (a) The prescribed authority shall cause a notice to be served on the employer relating to the said complaint, record briefly the evidence adduced by the parties, hear them and after making such enquiry as it may consider necessary, pass orders giving reasons therefor.
(b) In passing such orders the prescribed authority shall have power to give relief to the employee by way of reinstatement or money compensation or both.”
14. In the case Workmen v. Bharat Fritz Werner (P) Ltd., 1990 (3) SCC 565, their lordships observed :
“Reinstatement has not been considered as either desirable or expedient in certain cases where there had been strained relations between the employer and the employee, when the post held by the aggrieved employee had been one of trust and confidence, or when though dismissal or discharge was unsustainable owing to some infirmity in the impugned order, the employee was found to have been guilty of an activity subversive or prejudicial to the interests of the industry (Hindustan Steel Ltd. v. A.K. Roy) In cases where it is felt that it will not be desirable or expedient to direct reinstatement the workman is compensated monetarily by awarding compensation in lieu of reinstatement for loss of future employment.”
15. As noticed above, in the instant
case the act of misconduct involved is subversive of discipline and confidence on the
part of the workman. Taking into consideration the facts and circumstances of
the case particularly the fact that the
charge of taking bribe which is grave in
nature has been proved which is prejudicial
to the interest of the petitioner-company, it
must be held that it is not desirable and
expedient to direct reinstatement of the
respondent. Therefore, the direction of the
Labour Court with regard to reinstatement
cannot be sustained in law and the same is
set aside. It is held that in lieu of reinstatement the respondent shall be paid
compensation for the loss of future employment. Accordingly the respondent shall be
paid compensation on the basis of last
wages drawn by him from the date of discharge till date.