JUDGMENT
R. Jayasimha Babu, J.
1. Two workmen-Stephen and Nallusami were issued with chargesheets on December 15, 1980 wherein it was alleged that the Manager had received information that they had stolen 100 litres of gramoxine weedicide chemical belonging to the estate from the store room during the period between November 29, 1980 and December 2, 1980. The two employees replied to that notice stating that they had not committed any misconduct as alleged in the notice. Thereafter, an enquiry was held in which they participated till the evidence of M.Ws. 1 and 2 was recorded. They have also cross-examined those two witnesses.
2. After cross-examination of M.W.2, Stephen, after stating that he would be found guilty anyway and that, he had no confidence in that enquiry, walked out of enquiry. Thereafter, Nallusami made a statement in which, he stated that on December 6, 1980 while he was doing work in the estate, workmen were all asked to meet the Manager and at that time, “one lady identified me that I committed the theft.” He added that he was following the instructions of somebody else, and that he had pleaded with the police that he had not committed theft. Thereafter, he stated that the police beat him and again he was identified by that lady and thereafter he was asked as to who were all with him for the crime. He then stated that “then I answered that supervisor Stephen was with me.”
3. M.W. 1 was one Easwaradas who reported the fact that 100 litres of gramoxine weedicide chemical was missing from the store room. He had, in his evidence, stated that on December 4, 1980 morning, he was instructed by the Manager to spray gramoxine in the field. He went to the store room, but when he opened the store room, he found the chemical missing and thereafter complained to the Manager. He then narrated what happened subsequently and said that after the complaint was given, the police came to the estate at 4.00 P.M. and started investigation, that nothing was searched out, that next day, they were asked to come to the police station and at that time one Leela came there and reported that one Ramasamy, a worker was attempting to sell four cans of gramoxine in Kokkalmala estate and if he is enquired, truth would come out. He also said:
“thereafter, the said Ramasamy was summoned and that police, after investigation, had seized 8 cases of
chemicals from Ramasamy. On the next day morning, when M. W. 1 was doing work, the police people came in a jeep and enquired Nallusami and Nallusami admitted that he along with Stephen had stolen chemicals. Again the police investigated with Stephen. He has also admitted that he only opened the store room with another key and taken the gramoxine chemical. He also admitted that the said key was in his house and Stephen went to his house and took the key and he showed how he opened and locked the lock of the store room in front of the police people and others. Thereafter, the police went away with the key.”
4. This M.W.1 was cross-examined by both Stephen and Nallusami, neither of whom questioned the correctness of the statement of M.W. 1 that they had confessed to the police to the theft in his presence and that one of them (Stephen) had brought the duplicate key from his house and opened the lock of the store room. This statement of M.W.1 thus stands uncontroverted.
5. M.W.2 Seetharaman in his deposition, confirmed what had been said by M.W. 1. He had stated that he was present when the police came back to the estate for investigation along with Stephen and Nallusami. He spoke to the fact that Stephen went to his house and brought the key to open the lock of the store room and that he demonstrated how he used the key for opening and locking the same. He stated:
“he demonstrated it in front of the police and others including me and one Sri Lakshmanan. The false key used by Sri Stephen, the number was 11. Then the police asked for the original key. Its number was 555. I handed over a pair of original key to the police. Thereafter the police have taken away the lock, its original pair of key and also false key used by Stephen and took Nallusami and Stephen along with them.”
M.W.2 added that:
“then later on I came to know from the police that the delinquents namely Sri Stephen and Sri Nallusami had destroyed 60 litres of gramoxine chemicals and they have shown the place of destruction also to the police.”
This witness was also not cross-examined with reference to his statement that Stephen had brought the false key and had demonstrated how he had opened the lock and relocked the same.
6. Seetharaman, in his cross-examination, stated that:
“when the police brought you and Nallusami to the estate, there you both only admitted the guilt that you have stolen the weedicide chemicals. Not only that by using the false key, you only showed how to open the lock of the store room in front of the police and others. ”
7. After these two witnesses gave evidence and had been cross-examined, two delinquents did not take part in the enquiry. Thereafter, three other witnesses were examined, one of whom was Mary. She stated that on November 30, 1980 morning Nallusami had brought three cans of gramoxine chemical and had kept it in her house and that, she did not know Nallusami’s name, but could identify him and after a week police came to her house and enquired and she told the police the fact that Nallusami had come to her house and kept gramoxine and thereafter she was taken to the estate in which Stephen and Nallusami worked, that there was an identification parade and she was asked to identify as to who came to her house and thereafter she identified Nallusami.
8. The enquiry officer at the conclusion of the enquiry held as proved the fact that it was these two delinquents who had committed the theft. Thereafter, the employees were dismissed from service by an order, dated March 28, 1981.
9. At the instance of the workmen the dispute was referred for adjudication to the Labour Court, Coimbatore. The preliminary point that was raised in that dispute was with regard to the validity of the enquiry and the Labour Court, by a detailed order, dated December 31, 1984, held that on consideration of the materials before it, domestic enquiry was found to have been conducted on proper lines keeping in view all the principles of natural justice and answered the point regarding validity of the enquiry against the workmen.
10. The final award in the matter was made on August 6, 1985. In that award, the Labour Court held that the evidence that was considered by the enquiry officer was not such as to support the ultimate finding. The Labour Court held that there was indirect evidence to show that the petitioners had committed theft. It then held that the employer had not produced stock register, that the employer had not shown as to how many times the store room had been opened prior to December 4, 1980; that the persons who were present at the time he opened the door on December 4, 1980 had not been examined; that the evidence of Mary was unbelievable as she had no acquaintance with Nallusami earlier, that the enquiry was defective, inasmuch as Ramasamy and Badro Gowder had not been enquired into by the police or by the management; that there was no evidence of seizure of gramoxine from the house of delinquents; that the alleged confession statement of the delinquents had not been exhibited; and that the false key had not been produced in the enquiry proceedings.
11. In Para. 14 of his order it was observed that the delinquents had denied that they had ever given any confession statement even though they had not made any suggestion to M. Ws. 1 and 2 when they were cross-examined by them.
12. The Labour Court finally concluded that the evidence has not been properly appreciated by the enquiry officer, that the findings are not at all based on evidence and that the finding of guilt is based on the most slender, tenuous and unsatisfactory evidence adduced before him.
13. That award having been challenged by the employer, the learned single Judge of this Court held that the Labour Court had failed to take note of the direct evidence, the learned Judge having regarded the evidence of M.Ws. 1 and 2 as direct evidence and held that the appreciation of evidence by Labour Court was
perverse and further that the Labour Court’s interference with the order of termination was insupportable in law.
14. Before us, it was vehemently urged by the learned counsel for the appellants that the learned single Judge has erred in regarding the evidence of M. Ws. 1 and 2 as direct evidence; and in ignoring the fact that under Section 11-A, Industrial Disputes Act, the Labour Court has the power to reappraise the evidence. It was further submitted that the appreciation of evidence by the Labour Court was only in the nature of reappraisal which was within its’ power and therefore, its award was not one with which this Court could have interfered while exercising its jurisdiction under Article 226 of the Constitution of India.
15. Counsel in support of his submission referred us to several rulings of the Supreme Court and of this Court commencing from the case of Workmen of Firestone Tyre and Rubber Company of India (Private), Ltd. v. Firestone Tyre and Rubber Company of India (Private) Ltd. and later decision in Sadhu Ram v. Delhi Transport Corporation , Indian Overseas Bank v. Indian Overseas Bank Staff Canteen Workers Union , as also the decision of this Court in T. Muthusamy v. Presiding Officer, Labour Court, Coimbatore 1991-II-LLJ-405 and G. Jayaraman v. Chief General Manager, SBI 2002-IV-LLJ (Suppl)-1441 (NOC) : 2001 (2) LLN 460.
16. That the power of the Labour Court under Industrial Disputes Act has expanded vastly after the introduction of Section 11-A into the Act was emphasized in no uncertain terms in the case of Workmen of Firestone Tyre and Rubber Company of India (Private) Ltd. v. Firestone Tyre and Rubber Company of India (Private) Ltd, (supra), which was decided by a two-Judge Bench of the Apex Court. That the wide power of the Labour Court extended to considering evidence which had been considered by the Tribunal, and it could on such a consideration, arrive at a conclusion different from the one arrived at by the domestic tribunal was also pointed out. That law is now well settled. It has been reiterated recently in the case of State Bank of India v. Tarun Kumar Banerjee .
17. The assessment of evidence in a domestic enquiry is not required to be made by applying the same yard stick as a civil Court would do when a lis is brought before it. The Evidence Act is not an Act which is applicable to the proceedings in a domestic enquiry, and it is now also well settled that strict rules of evidence do not apply where domestic enquiries are concerned though principle of fairness does apply. The Supreme Court in the case of J. D. Jain v. State Bank of India , held that in a domestic enquiry guilt need not be established beyond reasonable doubt, that proof of misconduct would be sufficient and further that, “the law is well settled that the strict rules of evidence are not applicable in a domestic enquiry.” The Court also approved what had been said earlier by that Court in the case of State of Haryana v. Rattan Singh :
“4. …….. in a domestic enquiry ail materials which are logically probative for a prudent mind are permissible. There is no allergy to hearsay evidence provided it has reasonable nexus and credibility…….”
I 18. In the case of J. D. Jain v. State Bank of India (supra), also there was a confession which was by the delinquent and which had been spoken to by witnesses examined in the enquiry’, although there was no record of such confession. The Industrial Tribunal held that the employer was not justified in holding the delinquent employee guilty, as in the view of the Tribunal all the evidence that was considered was hearsay evidence. That award of the Tribunal had been quashed by the High Court whose decision was questioned by the delinquent employee before the Supreme Court. The Court while dealing with the facts of the case noticed that in 1982-I-LLJ-54 at p. 57:
“8. …….. Witnesses Wadhera, Ramzan and Sarkar also deposed that the appellant had confessed before them that he had made the alterations in the figure and in words of the sum……”
On that aspect, the Supreme Court noticed at p. 58:
“77. …… with regard to the fact whether the appellant manipulated the documents, withdrew excess amount and misappropriated it, there is, of course, no direct evidence of any eye witness except the appellant’s confession referred to above. The evidence on which reliance has been taken by the respondent is the confession and circumstantial evidence……”
It was ultimately held by the Court that that confessional evidence and circumstantial evidence despite the lack of any direct evidence was sufficient to hold the delinquents guilty of misconduct and to justify the order of termination that had been passed.
19. Regarding the confession, the Court had some further words to add in Para. 12 of the judgment. The Court observed, “the confession of the appellant before the said witnesses were to the effect that he had altered the amount in figure and words in his own hand. The award of the Tribunal, therefore, has been vitiated by misconception of law involved in the case…”
20. The position here is very similar to the facts that were considered by the Apex Court in the case of Jain (supra).
21. We have already set put what M. Ws. 1 and 2 had stated. The confession that was made by the two delinquents were in their presence as also in the presence of others. The witnesses had spoken to it. There was no cross-examination with regard thereto. The delinquents had not filed any statement even after the chargesheet was filed alleging that the confession had been extracted from them and they had been compelled to make such a statement by reason of any threat held out and even when they cross-examined the witnesses they did not even suggest that what had been said by the witnesses, was incorrect.
22. This evidence could not have been brushed aside by the Labour Court in the manner it did. The Labour Court has reasoned that it was for the employer to have produced the stock register, examined the persons who were present at the time the door of the store room was opened, that it should have produced duplicate key which Stephen brought from his house. All of such criticism was not really warranted, having regard to what had been stated by M. Ws. 1 and 2 as also by one of the delinquents Nallusami himself.
23. The confession was spoken to by persons who were present when it was made and who had heard it Bringing of duplicate key by Stephen was spoken to by persons who were present at the time the key was brought by him and who had witnessed the demonstration by the delinquent by opening and relocking the store-room. On this aspect also there was no cross-examination at all. The two workmen, even before the enquiry began had sought permission to have the assistance of two other workmen. The enquiry report shows that those two (sic) workmen were also present when the enquiry was held. The Labour Court Has found that the enquiry was held in a fair and proper way.
24. Although counsel’s criticism that the view of the learned single Judge that there was direct evidence, may be justified inasmuch as the witnesses did not see the delinquents actually removing the gramoxine from the store room, nevertheless the value that was required to be given to that evidence, as pointed out by the Supreme Court in the case of Jain (supra), had not been given by the Labour Court. In the light of the evidence, which was available on record, the approach of the Labour Court to that evidence has justifiably been termed by the learned single Judge as perverse.
25. A perusal of the order of the Labour Court also indicates that the Labour Court was not conscious of the fact that the standard of proof required in a domestic enquiry was not the same as that was required in a criminal Court. The observations of the Labour Court with regard to non-production of the register of confession and non-production of duplicate key
are indicative of an approach more relevant in a criminal trial than in a domestic enquiry.
26. The relative jurisdiction of the Labour Court and of the High Court in matters concerning domestic enquiry into misconduct of the workmen, has been dealt with in numerous decisions, by the Supreme Court as well as by this and other High Courts. It is unnecessary to go through the whole gamut of those rulings and it is sufficient (sic) to notice what the three-Judge Bench has observed in the case of Jain (supra), 1982-I-LLJ-54 at p. 56:
“7. In an application for a writ of certiorari under Article 226 of the Constitution for quashing an award of an Industrial Tribunal, the jurisdiction of the High Court is limited. It can quash the award, inter alia, when the Tribunal has committed an error of law apparent on the face of the record or when the finding of facts of the Tribunal is perverse….”
In that decision rejection of confession statements made before the witnesses who had deposed at the enquiry was termed by the Court as “misconception of law” on the part of the Tribunal.
27. We, therefore, do not find it possible to accept the submissions made by the learned counsel for the workmen. The appeal is dismissed.