The Labour Court must establish substantial proof of charges against a workman before upholding dismissal, considering both the evidence and proportionality of penalties.

ORDER :

Anant Ramanath Hegde, J.

This petition is by the workman. The petitioner is assailing the award rejecting the Reference No.56/2011, under Section 10 (1)(C) and (D) of the Industrial Disputes Act, 1947 (for short 'Act of 1947') upholding the penalty of dismissal imposed by the respondent - employer/ Company.

2. The facts borne out from the records would reveal that on 13.05.1997, the petitioner joined the respondent - Company as a Medical Representative. Alleging certain misconducts on the part of the petitioner, respondent - Company on 24.12.2002, issued charge sheet to the petitioner. On 02.01.2003, petitioner replied to the charge sheet denying the charges. On 30.01.2003, respondent - Company initiated domestic enquiry.

3. During the pendency of enquiry, one more charge sheet dated 22.04.2003 was issued. Later, in terms of the order dated 22.06.2004, the enquiry officer found that all the charges against the petitioner are proved. The petitioner responded to 2^nd show cause notice and disputed the findings of the enquiry officer. The respondent - Company terminated the services of the petitioner with effect from 21.07.2004.

4. The Labour Court in Bengaluru upheld the fairness of domestic enquiry and parties were given opportunity to lead evidence on the alleged plea of victimization. Thereafter, the Labour Court rejected the Reference on the premise that the charges are proved and the penalty of dismissal is justified.

5. Learned counsel appearing for the petitioner would submit that the domestic enquiry was conducted in Mumbai. The petitioner was employed in Gulbarga. The travelling allowance and dearness allowance were not paid as such the petitioner could not participate in the domestic enquiry on all hearing dates. Though he participated initially, later for want of financial difficulty and not paying the allowance, he could not defend himself by leading evidence before the Enquiry Officer in Mumbai. Thus, he would urge that entire domestic enquiry vitiated.

6. In addition, it is also urged that the charges levelled against the petitioner are vague and the necessary particulars are not spelt out and for this reason, the petitioner could not effectively defend the vague charges. Thus, it is urged that the domestic enquiry is vitiated.

7. It is further urged that the documents to substantiate the vague charges levelled against the petitioner are also not furnished by the respondent - Company and assuming that the charges are specific and understood by the petitioner, then also there are no materials on record to hold that the charges are proved.

8. In the alternative, it is submitted that the misconducts alleged to have been proved do not warrant penalty of dismissal and the penalty is shockingly disproportionate and the Labour Court ought to have exercised the jurisdiction under Section 11A of the Act of 1947.

9. Learned counsel for the respondent- Company on the other hand would submit that the domestic enquiry was held to be proper by the Labour Court and the said order is not called in question by the petitioner and the petitioner did not lead evidence before the enquiry officer to substantiate his claim and there is no provision which mandates payment of travelling allowance and dearness allowance to the delinquent employee to enable him to participate in the disciplinary proceeding and even on victimization, no evidence is led to show that the Company has victimized the petitioner and the penalty of dismissal which is imposed is proportionate to the misco