Civil Writ Petition No.3379 of 1987 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH **** Civil Writ Petition No.3379 of 1987 Date of Decision:02.12.2008 The Bareh Cooperative Agricultural Co-operative Society Ltd. Bareh, Tehsil Mansa, District Bathinda .....Petitioner Vs. State of Punjab and others .....Respondents CORAM:- HON'BLE MR. JUSTICE HARBANS LAL Present:- Ms. Jagdeep Bains, Advocate for the petitioner. Mr. L.S. Sidhu, Advocate for respondent No.4. **** JUDGMENT HARBANS LAL, J. This petition has been moved by the Bareh Cooperative Agricultural Co-operative Society Limited Bareh under Articles 226/227 of the Constitution of India for quashing the award dated 6.4.1987 Annexure P.6. The brief facts giving rise to this petition are that Gurtej Singh- respondent (hereinafter to be referred as `the workman') was working as a salesman under the petitioner. He misappropriated fertiliser worth Rs.42,742.75 during his service. The Society raised the arbitration dispute claiming the aforesaid amount against him. The arbitrator gave an award on 11.10.1982 against him for the above-mentioned amount. The workman filed an appeal which was dismissed by the Assistant Registrar Cooperative Societies, Mansa. The services of the workman were terminated on 15.6.1981. He along with two other terminated employees raised an Civil Writ Petition No.3379 of 1987 -2- industrial dispute. That the impugned award is liable to be set aside in view of the reasons as embodied in this petition. The Presiding Officer, Labour Court, Bathinda framed the following issues:- 1. Whether the reference is not maintainable as alleged in the preliminary objections of the written statement? 2. Whether the order of termination of service of the workman is justifiable at law and in order? 3. Relief. After hearing the respective representatives of the parties and examining the record, the learned Presiding Officer, Labour Court, Bathinda held that the respondent-workman (referring to Gurtej Singh) in the present petition, Jagroop Singh, Salesman and Sudershan Lal, Cashier are entitled to reinstatement with continuity of service, but without back-wages. Feeling aggrieved with this award, the petitioner has filed this petition. I have heard the learned counsel for the parties, besides perusing the findings returned by the learned Presiding Officer, Labour Court, Bathinda with due care and circumspection. Ms. Jagdeep Bains, Advocate representing the petitioner urged with a good deal of force that as emanates from Annexure P.5, the copy of the statement of Gurmel Singh, Secretary of the petitioner- Society, MW1, the workman Gurtej Singh had not given charge of this society and the same was got through police and as per the decision of the arbitrator, he was held liable to pay Rs.46725.25, which he had embezzled. It is further argued that as regards Jagroop Singh, Salesman, he did not join service as he had got government job, whereas Sudershan Lal had deposited the embezzled Civil Writ Petition No.3379 of 1987 -3- amount. In these premises, the Presiding Officer, Labour Court was not justified in holding that the workman is entitled to be reinstated with continuity of service. To overcome these submissions, Mr. L.S. Sidhu, Advocate appearing on behalf of the respondent- workman urged with great eloquence that as would be apparent from the resolution dated 26.5.1998 passed by the petitioner- Society, Sudershan Lal, Secretary was reinstated and he was going to retire on 31.5.1998 and the offer was also given by the petitioner- Society to Jagroop Singh, Salesman to resume his duty with the petitioner, but as regards Gurtej Singh, workman- respondent, he was not reinstated in compliance with the award dated 6.4.1987 and thus on applying the rule of parity, this composite award cannot be quashed on any ground. He further pressed into service that similar allegations of embezzlement were there against Jagroop Singh as well as Sudarshan Lal. He further pointed out that Jagroop Singh got the job of Veterinary Pharmacist and that being so, he did not join with the petitioner- Society and as regards Sudarshan Lal, he was reinstated but Gurtej Singh- workman was not allowed to join. He further argued that four years' service is still standing due to the credit of Gurtej Singh, respondent- workman as he has not reached the age of superannuation. I have well considered the rival contentions. Learned counsel for the petitioner has not denied the passing of the resolution dated 26.5.1998. As is borne out from the impugned award Ex.P.6, the industrial dispute in respect of Gurtej Singh, the respondent in the present petition, Jagroop Singh, Salesman and Sudarshan Lal, Cashier was disposed of by the impugned award. As per the above referred Civil Writ Petition No.3379 of 1987 -4- resolution, the photostat copy of which has been produced, Sudarshan Lal, Secretary was going to retire on 31.5.1998 and in his place, Surinder Kumar, Salesman was deputed to discharge the functions as Secretary on the retirement of Sudarshan Lal. This fact has also not been denied by the learned counsel for the petitioner. It imports that Sudershan Lal was reinstated. Mr. L.S. Sidhu, Advocate has pointed out that Sudershan Lal was reinstated shortly after passing of the impugned award. Jagroop Singh, Salesman was also given the offer to be reinstated, but by such time, he had got the job of Veterinary Pharmacist and due to that reason, he refused to join. As per Annexure P.5, Gurtej Singh, Jagroop Singh and Sudershan Lal had gone on strike in 1981. Sudarshan Lal had embezzled a sum of Rs.7892.98. Jagroop Singh had embezzled a sum of Rs.3966/-. Gurtej Singh, the workman had embezzled a sum of Rs.46725.25. Thus obviously, the services of all these three workmen were terminated on the same ground. If Sudarshan Lal could be reinstated why Gurtej Singh workman was not allowed to join the duty in compliance with the impugned award. Jagroop Singh was statedly offered to join the duty in consequence of the impugned award. It boils down that the allegations against all the three indeed were the same. If it was so, it has been left in the womb of mystery as to under what circumstances Gurtej Singh- workman was discriminated against and was not reinstated. To my mind, it is such a case, in which the rule of parity comes into play. The Presiding Officer, Labour Court has observed as under:- “The principal ground on which the services of the workmen have been terminated w.e.f. 15.6.81 is their unauthorised absence in May, 1981. As observed by their lordships of the Civil Writ Petition No.3379 of 1987 -5- Supreme Court in L. Robert `D' Souza v/s Xen Southern Railway 1982(1) LLJ 330 SC absence without leave constitutes misconduct and it is not open to the employer to terminate service without notice and enquiry or at any rate without complying with the minimum principles of natural justice- Other authorities on the point are Jai Shankar v/s The State of Rajasthan AIR 1966 SC 492, Shiv Shankar and another v/s Union of India, AIR 1986 SC 514 and Kalika Prasad Shrivastava v/s M.P. Laghu Udyog Nigam 1987 Lab. I.C. 307 (MP) The respondent in addition to the charge of unauthorised absence, alleged embezzlement against the workmen, which is a far mere grave charge. It is elementary that a workman cannot be removed from service on grounds of serious misconduct except after an enquiry in which he has been afforded a reasonable opportunity of being heard. The evidence led by the respondent is intended to show that the workman had proceeded on illegal strike and that one of them namely Sudershan Lal was guilty of embezzlement. Such evidence cannot be looked into, unless the respondent seeks an opportunity to prove the misconduct alleged against the workman in course of the adjudication of the reference. The respondent having sought no opportunity to substantiate the charge of misconduct against the workmen in the adjudication, no duty is cast upon this court to call upon the employer to do so suo moto (vide Shankar Chakravarti v/s Britannia Biscuit Co.) AIR 1979-SC 1652). In view of all, that I have discussed Civil Writ Petition No.3379 of 1987 -6- above, I hold that the termination of the services of the workman is illegal. The issue is decided against the respondent.” To my mind, no view contrary to the afore-extracted observations can be taken. In re: Rajasthan Lalit Kala Academy v. Radhey Shyam, 2008(4) Service Cases Today 841, the workman was appointed on 7.6.1980 on a monthly salary of Rs.300/- to do the work of a junior Clerk. On 4.4.1981, his services were terminated. On an industrial dispute being raised, the Industrial Tribunal, Jaipur by an award dated 24.9.1983, set aside the order of termination and directed reinstatement of the respondent with effect from 24.9.1983 with 50% back-wages. The Apex Court held as under:- “It appears to us that in the present case there has not been due application of mind either by the Labour Court or the High Court on the question of reinstatement and payment of 25% back-wages. The only ground on which reinstatement and continuity of service has been ordered is because the order of termination has been held to be unlawful. Similarly, 25% back- wages have been awarded for the reason that the services of the petitioner were terminated with immediate effect, but no specific reason, as such, has been assigned for the award of the said back-wages. In our opinion, though, illegality of the order of termination is one of the prime considerations for determining the question and quantum of back-wages, but it cannot be the sole criterion therefor. A host of other factors, a few enumerated above, are required to be taken into Civil Writ Petition No.3379 of 1987 -7- consideration before issuing directions in that behalf. Therefore, the award of the Labour Court to that extent cannot be sustained. However, we feel that at this distant time, it would not be fair to the respondent- workman to remit the matter back to the Labour Court or the High Court for fresh consideration of the issue. In the light of the observations referred to supra and having regard to the nature and the period of services rendered by the respondent and the fact that his services were terminated initially on 4th April, 1981 and then on 31st January, 1985 and the vicissitudes of long-drawn litigation, the respondent has undergone for over 27 years, interest of justice would be met if instead and in place of direction for reinstatement and back-wages – a sum of Rs.3 lakhs is directed to be paid to the respondent by way of compensation. We direct accordingly. The payment shall be made within eight weeks from today, failing which it shall carry interest @ 9% per annum from the date of this judgment till the date of actual payment.” Reverting back to the facts of the instant case, as has been reflected in the impugned award, the workman Gurtej Singh had put in more than one year service. He was drawing Rs.386.40 paise as his monthly salary. His service was terminated on 15.6.1981. Thus, to my mind, the facts of the case in hand bear semblance with Radhey Shyam's case (supra). Sequelly, it is held that the interest of justice would be met if instead and in place of direction for reinstatement and back-wages, a sum of Rs.3 lacs is directed to be paid to the respondent- workman by way of Civil Writ Petition No.3379 of 1987 -8- compensation. I direct accordingly. The payment shall be made within eight weeks from today, failing which it shall carry interest at the rate of 9% per annum from today till the date of actual payment. Accordingly, the impugned award is modified. Disposed of accordingly. December 02, 2008 ( HARBANS LAL ) renu JUDGE Whether to be referred to the Reporter? Yes