The Labour Court's findings of misconduct and justification for dismissal were upheld, emphasizing the standard of proof in disciplinary proceedings as preponderance of probabilities.

Order :

(D. BHARATHA CHAKRAVARTHY, J.)

A.Case of the Workmen :

2. The Workman who was originally the petitioner in W.P.No.8660 of 2005 viz., N.Radhakrishnan had since died pending the Writ Petition, his legal heirs are substituted as petitioners 2 to 4. The said Radhakrishnan was working as Sub-Accountant in the 2 respondent Management viz., the Madras Purasawalkam nd Hindu Janopakara Saswatha Nidhi Ltd.

2.1. Similarly, the petitioner in W.P.No.12173 of 2005 viz., Devaraj was working as Shroff in the same Management. While so, charges were levelled against the Workman – R.Devaraj , Shroff, M.Viswamoorthy , Senior Assistant /Cashier, N.Radhakrishnan , Sub-Accountant and V.Kumar , Office Boy.

2.2. It is alleged that all four of them were involved in certain omissions and commissions by which they caused wrongful loss to the Society and also colluded and indulged in misappropriation of the funds of the Society. Ultimately, all four of them were dismissed from service. The present two Workmen raised a dispute and the conciliation failed. The claims filed by N. Radhakrishnan was taken on file as I.D.No.302 of 1994. Similarly, the claim filed by the said Devaraj was taken on file as I.D.No.658 of 1994.

B. Proceedings before the Labour Court:

3. The claims were resisted by the Management by filing counter statements. The Labour Court proceeded with the enquiry. The Workman – Radhakrishnan examined himself as W.W.1 and Exs.W.1 to W.19 were marked. While there was no evidence on behalf of the Management, Exs.M.1 to M.163 were marked. 3.1. In I.D.No.658 of 1994, the Workman examined himself as W.W.1 and Exs.W.1 to W.3 were marked. While there was no oral evidence on behalf of the Management, Exs.M.1 to M.71 were marked.

C. Findings of the Labour Court:

4. Since a detailed domestic enquiry was conducted, procedural fairness was not imputed and therefore, the only question before the Labour Court was to consider the issue in the exercise of its power under Section 11 A of the Industrial Disputes Act,1947, that is, whether the non-employment of these Workman is justified or not. The Labour Court independently considered the evidence in respect of each of the Workmen and concluded that there is enough and sufficient evidence available against the Workmen regarding the misappropriation of funds of the Society. Further, it is considered that the charge is serious. There was also a loss to the Society. Hence, separate awards were passed in each of the cases, rejecting the claim of the Workmen and holding that the non-employment of the Workmen had been justified and that the Workmen were not entitled to any relief.

D. The Submissions:

5. Heard, Mr. K.M. Ramesh, learned counsel appearing on behalf of the Workmen and Mr. P. Raghunathan , learned counsel appearing on behalf of the Management.

5.1. Mr. K.M. Ramesh , the learned counsel would take this Court through the cross-examination of the Management witness by the Workman – Radhakrishnan , would submit that the entire evidence of the Management witness was evasive. Initially, no specific duties were allotted in respect of the Workman – Radhakrishnan , who is only a Sub-Accountant. Admittedly, it is the Visakamoorthy , who misappropriated the amount. As far as the duties of Radhakrishnan are concerned, he performed the same with an unblemished record and there was no commission or omission on his part. Without any specific finding or evidence, the domestic enquiry officer merely beat around the bush and held that the workman was found guilty mainly on the ground that had he been more vigilant while reconciling the accounts, he would have unearthed the fraud committed by the Chief Cashier – Visakamoorthy . Therefore, when there is no evidence of any financial benefit received in respect of misappropriation, and when the Society failed to provide concrete evidence to prove that it was only Radhakrishnan who authorized the representation of the dishonoured cheques, and it is not even the case of the Society t