The loss of confidence of the employer in the employee is the primary factor in cases of theft, and the quantum of theft is not important.

JUDGMENT

(Prayer: Writ petition filed under Article 226 of the Constitution of India for issuance of a Writ of Certiorarified Mandamus, to call for the entire records connected with the proceedings of the 2nd respondent in I.D.No.277/2007 dated 30.06.2011 and quash the same consequently direct the 1st respondent to reinstate the petitioner with continuity of service, back wages and all other attendant benefits.)

1. This writ petition is filed challenging the order of the labour Court confirming the order of dismissal passed by the first respondent on the premise that the petitioner had committed theft of diesel and thereby found guilty of misconduct in terms of the company certified standing orders.

2. The petitioner joined the respondent management as a Mazdoor in April 1994 and was promoted as a tractor operator in January 1997. On 04.05.2005, the applicant was working in the second shift from 02.00 p.m. to 10.00 p.m. by operating a Front End Loader equipment. Around 06.40 p.m. the petitioner handed over the Walkie-talkie to the other driver one Mr.Elangovan and returned around 07.10. p.m. after taking food. When the petitioner got back he found that there was certain enquiries being made with regard to theft of diesel from another Front End Loader parked in the Bagasse Yard. The petitioner was informed by Elangovan, that he had seen two Security Officers enquiring a contract employee by name Suresh with regard to the theft of diesel. The petitioner received back the walkie-talkie from Elangovan and continued to operate the Front End Loader. Around 09.20 p.m the petitioner left for control room to enter the log book. As it was raining the petitioner waited in the tool room and reached the main gate to punch the card at 10.10 p.m. Then the Assistant Security Officer Mr.Shanmugam informed the petitioner that he was called by the Senior Manager Mr.S.M.Ramesh. After, a brief enquiry the petitioner left home around 11.30p.m. The petitioner continued to attend the night shifts on 05.05.2005 and 06.05.2005.

3. Whileso, a show cause notice was served on the petitioner to the effect as to why action should not be taken against the petitioner while informing the petitioner that he was placed under suspension for misconduct in terms of Section 21(b)(iv) of the Company Certified Standing Orders. The petitioner submitted his explanation. Not satisfied with the petitioner's explanation, the respondent management initiated the domestic enquiry. The petitioner was denied permission to engage an advocate to assist him in the enquiry and was informed that he can possibly take the assistance of his co- workers. The petitioner took the assistance of Mr.Adhinarayan. On the basis of the domestic enquiry report, the management issued a second show cause notice dated 01.12.2005 which was responded by the petitioner vide reply dated 12.12.2005. The management not convinced with the reply/explanation given by the petitioner ordered the dismissal of the petitioner vide order dated 20.06.2006. The petitioner preferred an appeal against the said order of dismissal before the Industrial Tribunal, as conciliation failed. The labour Court framed the following question.

Whether the petitioner is entitled for reinstatement with continuity of service, back wages and other attendant benefits as prayed for in this petition?

4. The labour Court found that the Security Shift In-charge D.Shanmugam and the Security Assistant K.Ramanathan while on rounds near the bagasse yard found that a hose was connected to diesel tank of No.2 Front End Loader parked in that place and diesel was being drained into the can. Both personnel suspecting some foul play kept a watch, at that time, the petitioner reached the spot driving the No.1 Front End Loader removed the hose, closed the lid of the plastic can and handed over the can filled with diesel to the said Suresh and moved away with his vehicle from the spot. The Security Officers apprehended Suresh and enquired him about the d