Bhim Sain vs The Presiding Officer, Industrial Tribunal and Others

Rameshwar Singh Malik, J.—This order will decide three writ petitions together, filed by the same petitioner bearing CWP Nos. 20485 of 2013, 20511 of 2013 and 20504 of 2013. Whereas two writ petitions bearing CWP No. 20511 of 2013 and 20504 of 2013 have been filed against the order passed by the learned Labour Court u/s 33C(2) of the Industrial Disputes Act, 1947 (T.D. Act'' for short), claiming different amounts of money on account of different claims, the 3rd writ petition bearing CWP No. 20458 of 2013 has been filed against the award deciding the reference against the petitioner-workman upholding his termination of service, having him found guilty of embezzlement of huge amount of the respondent-cooperative society. However, for the facility of reference, the facts are being culled out from CWP No. 20485 of 2013. The brief facts of the case, as recorded by the learned Labour Court in paras 2 and 3 of the impugned award, are that the petitioner-workman was working as Secretary of the respondent-Cooperative Agricultural Society from 1.10.1978 to 23.5.2000. His services were terminated on 24.5.2000. It was alleged, by the petitioner that no notice or charge sheet was issued nor any enquiry was conducted. His services were illegally terminated in violation of the principles of natural justice. On these allegations, he raised the industrial dispute. Conciliation proceedings failed and the industrial dispute was referred to the learned Labour Court for its adjudication. Parties led their respective evidence.

After hearing both the parties and going through the evidence brought on record, the learned Labour Court came to the conclusion that the petitioner was guilty of embezzlement of huge amount of the respondent-cooperative society. The embezzlement of the amount was admitted by him during his cross-examination in the court. The order of punishment was passed after conducting the enquiry and complying with the principles of natural justice. Thus, the impugned award dated 26.3.2013 (Annexure P-6) was passed deciding the reference against the petitioner-workman.

In CWP No. 20511 of 2013, petitioner moved an application u/s 33C(2) of the I.D. Act, claiming an amount of Rs. 1,60,170/- from the respondent-cooperative society as arrears of his salary from 1.9.1997 to 16.10.1998. After going through the evidence brought on record, the learned Labour Court came to the conclusion that the petitioner was not entitled for the amount claimed, because he was not having any pre-existing right to claim wages for the period, when he had not performed any duty with the respondent-cooperative society, coupled with the fact that his services were terminated vide a specific order directing that he shall not be paid any wages for the absence period. His application u/s 33C(2) of the I.D. Act was dismissed, vide impugned order dated 26.3.2013 (Annexure P-6).

In the 3rd case i.e. CWP No. 20504 of 2013, petitioner moved an application u/s 33C(2) of the I.D. Act, claiming Rs. 1,59,900/- as arrears of salary from 17.10.1998 to 26.5.2000. In this case also, the application of the petitioner was dismissed for the similar reasons that he was not having pre-existing right to claim wages for the period, when he did not perform the duty. A specific order was passed by the respondent-cooperative society that he shall not be paid any wages for the absence period.

Learned counsel for the petitioner submits that on account of the alleged misappropriation of amount of the respondent-cooperative society, FIR No. 39 dated 1.6.1999 was registered against the petitioner under Sections 408, 409, 467, 468, 420 IPC at Police Station Ghagga. He faced the criminal trial, but he was finally acquitted by the learned trial court, vide judgment of acquittal dated 18.9.2007. State of Punjab filed Criminal Appeal, which was also dismissed by the learned Additional Sessions Judge, vide judgment dated 1.9.2011 (Annexure P-2). Similarly, another FIR No. 105 dated 24.8.1999 was registered against the petitioner under Sections 408, 409, 467, 468, 420 IPC at Police Station Ghagga, on the alleged charge of misappropriation of money of the respondent-cooperative society. In this case also, he was acquitted by the learned trial court, vide judgment dated 18.12.2007. Appeal filed by the State was also dismissed by the learned Additional Sessions Judge, vide judgment dated 15.9.2011 (Annexure P-3). He next contended that once the petitioner stood acquitted, the charge of embezzlement would no more be available against him and termination of his services on the basis of that charge would be illegal. Since the learned Labour Court failed to appreciate this material aspect of the matter in the right perspective, the impugned award was not sustainable in law. He next contended that once the termination of the services of the petitioner would be set aside, he would be entitled for the arrears of salary also and the impugned orders passed by the learned Labour Court u/s 33C(2) of the I.D. Act would also be liable to be set aside. Finally, he prays for setting aside the impugned award and also the orders passed by the learned Labour Court u/s 33C(2) of the I.D. Act, by allowing all these three writ petitions.

Having heard the learned counsel for the petitioner at considerable length, after careful perusal of record of the case and giving thoughtful consideration to the contentions raised, this court is of the considered opinion that no interference is warranted at the hands of this court in either of these three writ petitions and the same are liable to be dismissed. To say so, reasons are more than one, which are being recorded hereinafter.

It has come on record that while working as Secretary of the respondent-cooperative society, petitioner absented from duty with effect from 1.12.1997 onwards. Petitioner was found guilty of embezzlement of huge amount to the extent of Rs. 35,85,000/-. Resolution Ex. M/1 was passed regarding his absence and misappropriation of huge amount of the society. Petitioner failed to submit his reply to the charge sheet. Two criminal cases were registered against the petitioner. He was placed under suspension. Enquiry officer was appointed, who was changed at the instance of the petitioner appointing another enquiry officer. 12 charges were levelled against the petitioner.

Petitioner did not appear before the enquiry officer, despite being fully aware about the pendency of enquiry proceedings. Voluminous record was produced before the learned Labour Court. After due appreciation of the evidence, the learned Labour Court recorded positive finding against the petitioner. Having said that, this court feels no hesitation to conclude that the learned Labour Court committed no error of law, while passing the impugned award and the same deserves to be upheld.

While appearing in the witness box before the learned Labour Court, petitioner was subjected to cross-examination. He admitted it to be correct that he was placed under suspension by the competent authority. Charge sheet was issued against him. He further admitted that in the charge sheet, allegations of embezzlement were levelled against him. Although he claimed that he filed his reply to the charge sheet, but he failed to substantiate this plea. Petitioner once agreed to pay the embezzled amount as per his statements Ex. M/16 and Ex. M/17, which were signed by him at point ''A'' and ''B'', respectively, however, he failed to pay the embezzled amount.

Arbitration awards Ex. M-14/1 to Ex. M-14/100 were passed against the petitioner-workman. He was found to have committed the embezzlement on a large scale. Petitioner was found to have embezzled different amounts at different times adopting different methods. The learned Labour Court has recorded detailed, definite and cogent findings in this regard in paras 16 to 21 of the impugned award. In view of the overwhelming, convincing and clinching evidence having been brought on record against the petitioner, the learned Labour Court rightly appreciated the same, while passing the impugned award, which deserves to be upheld.

It is also a matter of record that the petitioner faced two criminal trials. While appearing before the learned Labour Court, he admitted it to be correct that he remained in jail for two months in the cases of embezzlement. The petitioner also undertook to deposit the embezzled amount. While appearing before the court, he admitted to have embezzled the amount. Once it is so, mere acquittal of the petitioner in criminal case will not entitle him for reinstatement in service. The reason is that standard of proof in the criminal trial and the departmental enquiry are different. Thus, the learned Labour Court proceeded on a factually correct and legally justified approach, while passing the impugned award and the same deserves to be upheld.

During the course of hearing, learned counsel for the petitioner failed to point out any jurisdictional error or patent illegality apparent on the record in the impugned award passed by the learned Labour Court. He also failed to put into service any substantive argument, so as to convince this court to take a different view than the one taken by the learned Labour Court.

Further, the services of the petitioner were terminated after holding an enquiry and complying with the principles of natural justice. The punishment of dismissal, in the given fact situation of the present case, cannot be said to be disproportionate to the charges proved. In view of the above, the impugned award passed by the learned Labour Court has not been found to be suffering from any illegality and the same deserves to be upheld.

Once the order of termination of services of the petitioner has been found to be justified in law, his twin claims by way of separate applications moved u/s 33C(2) of the I.D. Act were rightly declined by the learned Labour Court. It is not the case of the petitioner that after he started absenting from duty with effect from 1.12.1997, he never performed his duty with the respondent-cooperative society. Once he has not performed the duty, he was not entitled for the salary of that period. Present one is the appropriate case, wherein the principle of no work no pay would be attracted. In view of the peculiar fact situation of the case, no prejudice of any kind has been shown to have been caused to the petitioner, while passing the impugned orders by the learned Labour Court, dismissing his application u/s 33C(2) of the I.D. Act.

No other argument was raised.

Considering the peculiar facts and circumstances of the present case noted above, coupled with the reasons aforementioned, this court is of the considered view that these writ petitions are misconceived, bereft of merit and without any substance. Thus, all these three writ petitions are liable to be dismissed. No case for interference has been made out. Resultantly, the three writ petitions aforementioned stand dismissed, however, with no order as to costs.