ORDER
R.J. Kochar, J.
1. The petitioner is a public limited company and is also a Government owned Undertaking under the Defence Ministry of Government of India. Its factory and offices are at Dockyard Road, Mumbai 400 010.
2. The petitioner has impugned in the present petition an Award of 6th Labour Court, Mumbai in Reference No. 410 of 1986 referred to it for adjudication of the Industrial Dispute raised by the respondent workman Shri Bhaskar Damu Khare to challenge the propriety and legality of his dismissal order dated 27-9-1984 from employment. By the impugned Award the learned Judge of the Labour Court has directed the petitioner to pay a sum of Rs. 80,000/- towards compensation in lieu of reinstatement. The respondent workman has also filed the Counter petition to claim reinstatement with full back wages with continuity of service and has also challenged the Award of the Labour Court refusing him to grant reinstatement with full back wages and in continuity of service. In short both the parties have challenged the impugned Award of the Labour Court dated 17-7-1996.
3. To appreciate the submissions of both the learned Counsel the following few facts are required to be stated.
4. The workman joined on and from 10-5-1974 as a temporary Mazdoor and was absorbed as permanent Mazdoor on 14-5-1980. It appears from the record that soon after his confirmation after period of two years a charge-sheet was issued to him on 1-5-1983 alleging an act of theft of 500 meters welding cable. There was no written explanation submitted by him to the said charge-sheet. During the pendency of the enquiry in the said charge sheet another charge-sheet was issued to him on 7-3-1984 for theft of 100 meters welding cable. It appears from the record that he had submitted a letter dated 9-6-1984 purported to be a reply to the chargesheet dated 7-3-
1984 generally denying the charge of theft as false and that injustice was being done to him. The petitioner held a domestic enquiry in the second chargesheet. In the enquiry the petitioner had examined three witnesses in support of the charges. These witnesses were cross examined on behalf of the workman. The statement of the workman was also recorded in the domestic enquiry. On the basis of the said material on record the enquiry officer recorded his finding of guilt as against the workman. He submitted his report of the enquiry on 10-8-1984. On the basis of the said enquiry report the workman was dismissed from employment on 27-9-1984.
5. As referred above the workman raised an Industrial Dispute against his dismissal order and got a reference to the Labour Court for adjudication of the same. Before the Labour Court both the parties filed their respective statement of claim/written statement and documents. The Labour Court framed preliminary issues of the fairness and propriety of the domestic enquiry and recorded a finding in favour of the petitioner that the enquiry held by it was fair and proper, by his Part-I award dated 7-7-1993. It may be recorded here that the Part-I Award was not challenged at any time and is therefore conclusive. However, the Labour Court held that the conclusions and findings of the Enquiry Officer were baseless and perverse, and struck down the whole enquiry as not fair and proper on that basis only. In this view of the matter, the Labour Court directed the petitioner to adduce evidence before it to justify the action of dismissal of the workman before the Court. Pursuant to the said direction of the Labour Court the petitioner examined two witnesses before the Labour Court in support of the charges while the workman examined himself in the Court. On the basis of the evidence recorded before the Labour Court Part II Award came to be passed which is impugned before this Court. The Labour Court on the basis of the evidence recorded before it has concluded in the following words :
“Having considered the entire material on record, I am inclined to hold that the charges of theft/dishonesty of the employer’s business and commission of any act subversive of good behaviour within the establishment or discipline of the establishment are not proved by leading adequate and cogent evidence.”
Having recorded so the Labour Court has further found from the totality of the circumstances that the workman was involved in the incident of theft. It appears from the whole evidence that there was no clinching evidence against the workman as is required before the criminal trial. However, in view of the strong circumstantial evidence the Labour Court in paragraph 18 has held that it was sufficiently proved that the welding cables belonging to the employer were tried to be stolen by the two drivers of the Afcon Company with the help of some other person from the employer company, who was suspected to be the workman. The Labour Court has also relied on a fact that the workman was also caught, detained and got interrogated by the security personnel at the relevant time and that the presence of the workman at or near the spot of the incident once was not disputed. The Labour Court has also relied on two statements of the two drivers which were recorded by Shri Kute, who was examined in the enquiry as well as before the Labour Court. If these two statements of the drivers are seriously considered then there is no manner of doubt that the workman was involved in the incident of theft
though the evidence in the enquiry as well as before the Labour Court may not stand the strict scrutiny of the Criminal Court. It is also recorded by the Labour Court that the statements of the drivers were admitted before the Labour Court. Considering the totality of the circumstantial evidence the Labour Court has found that reinstatement was not desirable and no reinstatement should be granted. In lieu of the relief of reinstatement with full back wages and continuity of service the Labour Court has awarded a total sum of Rs. 80,000/- in full and final settlement of the claim of the workman for reinstatement with full back wages and continuity of service. The Labour Court has computed this amount of Rs. 80,000/- on the basis of the formula applied by the Supreme Court in the case before it which is known as O.P. BHANDARIS CASE. I am afraid whether the said formula which was in the case of a simpliciter discharge and golden handshake with a top Administrative Office would apply in case of an order of dismissal proceeded by a domestic enquiry. Nonetheless the Labour Court having awarded the aforesaid sum of Rs. 80,000/-, I am rather hesitant to interfere with such an Award under Article 226 of the Constitution of India. The petitioner ought to have been more careful in adducing in the enquiry as well as before the Labour Court. They have number of loopholes in the evidence which are left in the enquiry. The petitioner has not examined the crucial witnesses who had allegedly caught the workman red handed. The entire case is on the circumstantial evidence and according to me, even circumstantially strong evidence is enough to come to a proper conclusion and there need not be evidence to the hilt to prove the misconduct. When the enquiry has been held to be fair and proper according to me the evidence and material on the record of the enquiry cannot be totally ignored shutout but can be referred to. It is only the findings recorded by the Enquiry Office are held to be baseless and perverse. The enquiry being fair and proper and being compliance with the principles of natural justice, there is no anathema or bar to consider the material in such an enquiry. We cannot totally lose sight of the contemporaneous statements given by the two drivers who have taken the name of the workman in the incident of theft. In the circumstances I do not wish to interfere with the award passed by the Labour Court offer the sum of Rs. 80,000/- to the workman in lieu of reinstatement and in denying the whole relief to the workman. Both must suffer for their weak cases.
6. After I have dictated this order Shri Gehani, the learned advocate for the workman submits under the instructions from his client, who is present in the Court, that he would not press his petition for reinstatement with full back wages and continuity of service. His additional request was to award a sum of Rs. 10,000/-as he had not withdrawn the said amount of Rs. 80,000/
– from the Court for want of security. In view of this he had only demanded an amount of Rs. 10,000/- as additional compensation. I must mention here in fairness to the petitioner and its learned Counsel Shri Palshikar for having immediately agreed to increase the amount of compensation from Rs. 80,000/
– to Rs. 90,000/-. Shri Palshikar has made this statement under instructions from his client, through the Officer who is present in the Court. I therefore, modify the award by consent of both the learned advocates and direct the petitioner to pay a sum of Rs. 90,000/- to the workman in lieu of rein-
statement with full back wages and continuity of service. In view of this the petition filed by the workman being Writ Petition No. 363 of 1997 does not survive and the same is disposed of as not pressed by the workman.
7. Pursuant to the order dated 18-6-1997 passed by this Court (Shri R.M. Lodha, J.) at the time of admission he had directed the petitioner to deposit the amount of compensation as awarded in the impugned Award with the Labour Court and accordingly the petitioner has deposited a sum of Rs. 80,000/- with the 6th Labour Court. The workman was given liberty to withdraw the said amount on furnishing solvent surety to the satisfaction of the concerned Labour Court. It appears that the workman could not withdraw the said amount for want of solvent surety and, therefore, the amount is lying with the Labour Court. In view of my aforesaid order the petitioner shall pay a sum of Rs. 90,000/- to the workman immediately after the petitioners receiving the amount of Rs. 80,000/- from the office of the Labour Court. The Labour Court is directed to refund the amount of Rs. 80,000/- forthwith to the petitioner on its making required application to the Labour Court for refund. The petitioner shall immediately make such an application to the Labour Court within a week herefrom.
8. It is clarified that the workman would be entitled to get his Provident Fund and also the amount of Gratuity for the period of his employment and also other legal dues such as earned wages, etc. if not paid, shall also be paid to the workman along with the aforesaid amount of Rs. 90,000/-. In view of this both the petitions stand disposed of.
9. The petitioner as well as the Labour Court both shall act on an ordinary copy of this order duly certified as true copy by the Associate of this Court.
10. Order accordingly.