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Bombay High CourtIndian Cases

Warna Sahakari Dudh Utpadak Prakriya … vs B.K. Kirloskar And Ors. on 11 September 1987

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Bombay High Court
Warna Sahakari Dudh Utpadak Prakriya … vs B.K. Kirloskar And Ors. on 11 September, 1987
Equivalent citations: (1993)IIILLJ336BOM
Author: P.B. Sawant
Bench: P.B. Sawant

V.V. Vaze, J.

1. Warna Sahakari Dudh Utpadak Prakriya Sangh Limited, as the name suggests, is a co-operative society engaged in the procurement and distribution of milk. K.P. Hirve was appointed in the society as a coolie on Rs. 130/- per month on 10th August 1975. On 6th April 1978, four labourers came to the dairy in a truck for carrying the milk to Warna Vidyalaya. When they were loading the milk in the truck Hirve was found loitering outside the refrigerator room in suspicious circumstances and Patil, the watchman, found Hirve carrying a can containing about 15/20 litres of milk with the intention of stealing it. Hirve was caught red-handed and suspended from service with a view to holding of an enquiry against him. He was served with charge-sheet on 19th June 1978 and the Managing Director came to the finding that the charges against Hirve were proved. The Managing Director referred to an earlier incident of 10th January 1978 where Hirve was also charged and concluded that even though the dismissal is a proper punishment, the Management is considering the case of Hirve sympathetically and giving him discharge with one month’s notice pay. A reference was made to the Presiding Officer, Labour Court at Kolhapur in IDA Ref. No. 132 of 1979. Surprisingly, even though the Labour Court came to the conclusion that the enquiry was fair and that Hirve did not deserve any sympathy because he had tried to prove alibi in which attempt he failed, the Management had committed an error by discharging the employee instead of dismissing him. In this view of the matter the Labour Court set aside the order of discharge and directed reinstatement of the employee with back wages giving rise to this writ petition at the instance of the employer,

2. The reasoning in the award of the Labour Court which punishes the employer for having given a lesser punishment makes a strange reading. It appears that Labour Court found that termination of service without payment of retrenchment compensation under Section 25F being illegal and void the entire order of discharge is illegal.

3. Mr. Dharap, learned counsel for Hirve does not support this reasoning but says 3 that the Labour Court erred in not proceeding under Section 11A to determine the validity of the enquiry proceedings first before going into the merits of the case. Mr. Dharap urged that in view of this infirmity the matter may be remanded to the Labour Court for proceeding in accordance with law.

4. Though a perusal of the award does show that the Labour Court has failed to frame a preliminary issue about the fairness of the enquiry we find that this infirmity has not caused any prejudice to the workman. The Labour Court has gone through the details of the evidence, now the other labourers Bhosle, Patil and Pawar were present at the loading operations and how the watchmen, Patil and Bhosle, actually witnessed Hirve carrying the can containing the milk. The Labour Court thereafter went through the plea of Hirve that on the relevant date he was on sick leave and that he was admitted to hospital of Dr. Yadav of Bambavade from 5.4.1978 to 11.4.1978.

5. Examining the evidence, the Court concluded that the plea of alibi is not proved because Dr. Yadav himself admitted in the enquiry that Hirve was not in his hospital during the relevant period but was under his treatment (obviously as an outdoor patient) from 5.11.1978 to 10.4.1978. In this view of the matter we do not see that the infirmity of not framing the preliminary issue vitiates the award.

6. Lastly Mr. Dharap submitted that this being a single incident of theft of some 15 litres of milk the misconduct may be viewed leniently and that the workman should be reinstated though in view of the circumstances his back wages may be withheld.

7. As the society is run on a cooperative basis the management was right in informing the workman its conclusion that they have lost confidence in him on account of theft and an earlier incident. The benevolent attitude adopted by the Management in discharging the workman instead of dismissing him cannot weigh the scales in his favour. As the employer is a co-operative society procuring milk from the various farmers in the neighbourhood and distributing the same amongst the members on mutual benefit principle we cannot find fault with the reasoning of the Managing Director when he says that the society has lost confidence in the workman.

8. In the premises the petition succeeds and the award of the Labour Court is set aside and the order of discharge of Hirve from service is held to be proper. Rule made absolute in above terms. No order as to costs.