IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No.2206 of 2002 Date of decision:14.10.2009 The Central Cooperative Consumers' Store Limited ...Petitioner versus The Presiding Officer, Labour Court, UT, Chandigarh ...Respondents. and others. CORAM: HON’BLE MR. JUSTICE K. KANNAN ---- Present: Mr. K.K.Gupta, Advocate, for the petitioner. None for the respondents. ---- 1. Whether reporters of local papers may be allowed to see the judgment ? Yes. 2. To be referred to the reporters or not ? Yes. 3. Whether the judgment should be reported in the digest ? Yes. ---- K.Kannan, J. (Oral) 1. The award under challenge is a direction for reinstatement and back wages, allowed to a workman. The workman was alleged to have been terminated from service for alleged misconduct on proven charges. The charges, which had been levelled against the workman, were as under:- “i) He has brought disrepute to the organization in the eyes of general public and undermined the business image of the Super Bazar by conspiring/organizing an ugly scene of nuisance in Head Office premises. ii) He was instrumental in causing loss of thousands of rupees on account of halting the office work of the entire management as a result of nuisance created by outside ladies with his connivance in Super Bazar H.O. Premises. iii) He by instigating Smt. Usha Rani, Clerk (now U/s) and by organizing an ugly scene of nuisance, committed a grave offence which tantamount to breach of trust, doubtful integrity and mischief. Civil Writ Petition No.2206 of 2002 - 2 - iv) His habit of misbehaviour, irregular attendance, unauthorized absence from duty has become detrimental to the business interest of Super Bazar which in turn lowered the sales of Super Bazar. v) By his habit of committing shortages in stock several times the stock of goods under his charge have become insecure for apprehension of mis-appropriation. vi) His habit of not performing his duty well, has become detrimental to the business image of Super Bazar as well as to the discipline among staff, non-observance of warnings issued by punishing authority tantamount to breach of trust, doubtful integrity and dishonest. vii) His habitual tendency to keep the sale low hit hard the sale of counters where he was posted from time to time which tantamount to inefficiency, negligence, non- performance of duties properly and low annual turnover of Super Bazar. Viii) His failure to reconcile the liability account for the month of June and July, 1989 in time, tantamount to non- observance of office instruction contained in office order No.CCS/Acctt-II/87/1048 dated 25.05.87, breach of trust and inconvenience to Management in finalization of account. ix) His unauthorized absence from duty by not opening the branch tantamount to indiscipline, non-observance of shop timings, loss of sale and inconvenience to the public and the management. x) He, by declaring saleable goods as dumped and damaged goods, in his capacity as Salesman tried to cause loss to the Super Bazar. This action tantamount to deceit and negligence of duty on his part. ” The management sought to prove the misconduct by ordering the domestic enquiry that resulted in finding of guilt. The workman was reported to have filed an appeal under the relevant Cooperative Societies Rules where also the order of the disciplinary authority was affirmed. The workman challenged the order of dismissal before the Labour Court by seeking a reference when the objection by the management was that the workman had no right to seek for a reference when the misconduct was established and when the workman had exhausted the remedy available before the Registrar of the Cooperative Societies. The finding Civil Writ Petition No.2206 of 2002 - 3 - of guilt and the upholding of punishment by the Registrar according to the respondent, constituted res judicata and the Labour Court was barred from entertaining the plea of the workman . Before the Labour Court, no evidence was produced by the management and the difficulty expressed by the management was that at the time when the case was pending before the Labour Court, the Society itself had been wound up and all the workman had been terminated from service. The Labour Court observed that a management witness gave a statement that all the workmen had left the services and even a request for affording to the Society an opportunity to prove the misconduct before it was meaningless, since the management had no control over any persons in the employment previously and that no purpose would be served by affording to the management an opportunity to prove the misconduct before the Labour Court. 2. The learned counsel appearing for the Society which is in the process of winding up represented through liquidator contends with reference to a decision in The Kapurthala Central Cooperative Bank Ltd. Kapurthala through its Manager Versus State of Punjab through the Secretary to Government, Department of Labour, Punjab, Chandigarh-1991(1) PLR 624, that once a workman had elected his remedy in filing an appeal under the Punjab Cooperative Societies Act and if he had failed, he shall be barred by res judicata from raising the same dispute before the Labour Court. The learned counsel also refers to a decision of the Hon'ble Supreme Court in R.C. Tiwari Versus M.P.State Cooperative Marketing Federation Limited and others-AIR Civil Writ Petition No.2206 of 2002 - 4 - 1997 Supreme Court 2652, to the effect that the finding recorded by the Deputy Registrar upholding misconduct constituted res judicata before the proceedings of the Labour Court. In my view, both these decisions do not apply. The Division Bench ruling referred to in The Kapurthala Central Cooperative Bank's case(supra) was further considered before a Full Bench of this Court in The Ambala Central Co-operative Bank Limited, Ambala Versus The State of Haryana and others-1993(1) PLR 424 and it was held in para 7 of the said judgment that the decision does not lay down the law correctly. The decision was rendered in the context of the Haryana Cooperative Societies Act, 1984 while considering Sections 102 and 108 of the said Act. Sections 102 and 103 are in pari materia to the relevant provisions in Sections 55 and 56 of Punjab Cooperative Societies Act. The dispute that Section 55 contemplates a dispute touching upon the constitution, establishment, management or the business of the Cooperative Society. An industrial dispute does not fall within the ambit of category of disputes, contemplates under Section 55 of the Act. This point of parallel adjudication was squarely an issue and the effect of a decision of a disciplinary authority under the relevant Cooperative Societies Rules was considered in Ambala Central Co-operative Bank case. Even the reference to Hon'ble Supreme Court's judgment in AIR 1997 Supreme Court 2652 can have no application to this case for, it dealt with the provisions of Section 55 of the M.P. Cooperative Societies Act which is not in pari materia to provisions under the Punjab Cooperative Societies Act. A specific mechanism available for resolving industrial dispute was Civil Writ Petition No.2206 of 2002 - 5 - contemplated under Industrial Disputes Act and there was specific exclusion of jurisdiction of other forums. The learned counsel would however urge that the decision of the Division Bench in The Kapurthala Central Cooperative Bank (supra) was affirmed by the Hon'ble Supreme Court. The learned counsel however is not in a position to clarify better whether the Hon'ble Supreme Court had expressly overruled the judgment of the Full Bench of this Court. A mere affirmation in the SLP by a dismissal in limine cannot constitute a binding precedent as held in Kunhayammed Versus State of Kerala-(2000) 6 SCC 359. I am bound on the other hand, by an express ruling of the Full Bench of this Court and the contention of the petitioner that the decision of the competent authority under the Cooperative Societies Act will constitute a res judicata is liable to be rejected. 3. Even as regards the want of opportunity to the management to prove the misconduct before the Labour Court, the Labour Court rejected it not on its own but was acting on a statement of the witness brought before the Labour Court on the side of the management, who expressed difficulty to secure the attendance of the witness who all been terminated from service in view of the winding up of the Society and the closure of the Super Bazar. Even otherwise I have gone through the charges and no specific instances of misconduct are given. The charges are general in nature such as, the conduct of the workman which is bringing disrepute to the organization, conduct causing a loss of thousands of rupees, instigating a fellow workman to create an ugly scene, habit of misbehaviour, irregular attendance, committing shortages Civil Writ Petition No.2206 of 2002 - 6 - in stock several times, habit of not performing duty well, habitual tendency to keep the sale low, failure to reconcile accounts in time, unauthorized absence from duty on many occasions and declaring saleable goods as dumped or damaged goods. None of these charges is specific in nature of any specific misconducts. The charge is more in the nature of an inference of what could happen specific charges had been proved. A charge-sheet is invariably a basic document which shall contain all the details of misconduct, so that the workman shall be in a position to answer the acts of misconduct. A charge like “acting in a way to bring disrepute” or that “he was habitually late in attendance” are not charges in the eye of law at all. It is obligatory on the employer to specify and if necessary, define it within precision and accuracy so that any ex post facto interpretation of some incident may not be camouflaged as misconduct (Please see A.L.Kalra Versus Project and Equipment Corporation-(1984) 3 SCC316. No purpose will be served in allowing the management the luxury of a fresh trial on such vague charges that have been issued in the year, 1989. Again no purpose will be served in a case where the Super Bazar had been closed and the Society itself had been wound up. 4. I am informed that the proceedings are still pending in the winding up process of the Society and even all the workmen had not been paid their benefits after the termination so far. The only modification that the award of the Labour Court shall be subjected to is take note of the subsequent events from the time when the termination had been terminated from service. In view of the fact that the Super Civil Writ Petition No.2206 of 2002 - 7 - Bazar where the workman had been employed had been closed and the Society has been wound up on 10.10.2000, the workman shall not be entitled to reinstatement as ordered by the Labour Court. Instead he shall be deemed to have been in service till 10.10.2000 and he shall be entitled to make a claim with reference to his back wages upto to the date of winding up and shall also be entitled to seek for computation of the terminal benefits that are payable. Needless to state that the distribution of the benefits accrued to the workman shall take place in accordance with law and particularly with reference to Standing Orders 71.12 of the Consolidated circular of the Cooperative Department following the line of priorities that include liquidation expenses and the Government dues as obtaining priority over the claims of the employees towards wages, provident fund, etc. Reserving to the workman the liberty to approaching the liquidator for claiming the monetary benefits as would accrue to him if he had been in service till the date of the order of winding up of the Society, the writ petition is disposed of. (K.KANNAN) 14.10.2009 JUDGE sanjeev