Point of Law: Misconduct - Suspension - The manner of conduct of departmental enquiry was in accordance with law and the award of the Labour Court is unassailable as it is based on proper appreciation of evidence.

JUDGMENT

Sanjay Kishan Kaul, J. - The respondent was employed as a workman with the appellant (earlier known as M/s. Alstom Projects Limited) in 1998 when an incident took place on 15th July, 1998 which resulted in a charge sheet-cum-Suspension Order dated 15th July, 1998 charging the respondent with theft and dishonesty in connection with the company's property and act subversive of discipline.

2. The respondent apparently took a hospital gate pass at 10.05 a.m. but went out of the gate at 10.30. a.m. not handing over the gate pass but on the pretext he would go to the pan shop nearby, the ramification of this was the respondent was not checked personally. He actually went to the pan shop and was standing there for about two-three minutes but then started moving towards I.B. road. This movement was seen by the security head guard who asked one of the security guard to call the respondent back. Suffice to say that some reluctance was shown by the respondent and he stopped on the way back to ease himself without actually easing himself and in the process he is allged to have thrown a copper wire weighing 1.4 kgs. which was tied to his waist in cloth at that site from where the items was recovered. Some altercation took place over the issue but on the arrival of the security guards the matter was brought under control.

3. Departmental enquiry was held in pursuance to the aforesaid charges framed and on all the factual aspects it was found that the case of theft had been proved and the respondent was held guilty of the charges enumerated in the charge-sheet. As a consequence of the enquiry report, an order of dismissal from service was passed on 25th January, 1999 post an opportunity to the respondent to give his explanation.

4. The respondent thereafter assailed the enquiry proceedings before the Labour Court, Gulbarga and award was made and published on 7th March, 2005. The Labour Court analysed the facts in detail and found that the enquiry had been held in accordance with the procedure established as per law, the evidence has been scrutinised and no material evidence was ignored nor was there any perversity. The respondent was found to have thrown copper wire wrapped in a cloth under the guise of easing himself. The application filed by the respondent challenging the orders of the appellant was thus rejected.

5. The respondent thereafter challenged the order of the Labour Court before the Karnataka High Court in W.P. No.9619/2006 which was allowed by the learned Single Judge in terms of order dated 13th February, 2008. The reversal order was based on the facts that the management was required to lead proper evidence to prove case of theft, theft had not occurred inside the factory, no witnesses have been produced nor corroborative evidence lead. It was on the suspicion arising from the fact that the respondent moved away from the pan shop that he was intercepted. Records also show apparently the management had earlier also found some material missing and suspected the respondent as the same had occured on the days when respondent had applied for a hospital pass. However the learned Single Judge did not allow any benefits of backwages on account of absence of evidence of not having worked.

6. The appellant-management filed an appeal and so did the respondent-workman (latter on account of denial of back wages). The Division Bench of the Karnataka High Court in Writ Appeal No.461/2008 and 646/2008 considered the matter and dismissed the appeal of the appellant while partly allowed the appeal of the respondent by granting 25% of the back wages.

7. The appellant-management thus came in appeal before this Court and while issuing notice, operation of the impugned judgment was stayed by an order dated 16th January, 2009. Subsequently, leave was granted in the matter.

8. We have heard learned counsel for the parties and perused the impugned orders.

9. The substratum of the case of the appellant is that the departmental enquiry which wa