C.W.P.No.5446 of 2008 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P.No.5446 of 2008 Date of Decision:- 26.03.2009 Arjun Singh ....Petitioner(s) vs. State of Punjab and others ....Respondent(s) *** CORAM:- HON'BLE MR.JUSTICE AUGUSTINE GEORGE MASIH *** Present:- Mr.Madan Mohan, Advocate for the petitioner. Mr.Akshay Bhan, Advocate for the respondents. *** AUGUSTINE GEORGE MASIH, J. (Oral) In the present writ petition, challenge is to the award dated 30.7.2007 (Annexure P-17) passed by the Industrial Tribunal-cum-Labour Court, Punjab, Chandigarh vide which the reference has been answered against the workman. Learned counsel for the petitioner contends that as per Standing Order No.37, the procedure for holding an enquiry and punishment for major misconduct has been provided thereunder. It is an admitted position as far as the Management is concerned, that no enquiry was held before terminating the services of the workman. Counsel contends that on the very day of the incident i.e. 21.5.2003, the services of the workman were terminated. He contends that the Labour Court has not taken into consideration the allegations which have been made in the order C.W.P.No.5446 of 2008 -2- of termination wherein it has been specifically mentioned that one Shri Surinder Singh was armed with Kirpan whereas in the statement before the Labour Court wherein one R.B.Singh who had sustained grievous injuries on his head and other parts of the body had only stated that the workman- Arjun Singh was armed with a Lathi. He further contends that there is no consistency between the statement made by R.B.Singh in the criminal case (where an F.I.R.was registered against the workmen including the petitioner) and the statement given by him before the Labour Court. He further contends that the Labour Court could not have relied upon the statement of R.B.Singh. Counsel further contends that as the award would itself indicate that the Management has already entered into a settlement with Surinder Singh son of Ajmer Singh, Joginder Singh and Surinder Singh son of Niranjan Singh. He, on this basis, contends that petitioner- workman is also a similarly placed employee and, therefore, the Management having not entered into a settlement with him, would amount to discrimination and he, therefore, contends that on this basis as well, the award passed by the Labour Court cannot be sustained. He submits that in the light of Standing Order No.37, the order of dismissal qua the petitioner cannot be sustained as no enquiry was held against him before terminating his services. He relies upon a Full Bench judgment of the Bombay High Court in the case of Saindranath Jawanjal vs. Pratibha Shikshan Sanstha and another, 2008(1) RSJ 336 to contend that where no enquiry is held by the Management before termination of the services, the services of the workman cannot be dispensed with. He further contends that where earlier no enquiry has been held, no evidence can be led before the Labour Court to justify the termination order for the first time before the Labour C.W.P.No.5446 of 2008 -3- Court. He contends that there is no application on behalf of the Management for exercising its rights for justifying the orders in case it is held to be not in consonance with the Standing Order. He further contends that the basis for terminating the services of the workman is the registration of a criminal case against the workman in which proceedings are still going on before the Criminal Court and, therefore, the termination of the services of the workman before the conclusion of the criminal proceedings would be pre-empting the guilt of the workman and no order of termination could have been passed before completion of the criminal proceedings except in case they could have held the departmental enquiry and then found him guilty. Counsel relies upon a judgment of the Hon'ble Supreme Court in the case of Padam Singh vs. State of U.P., 2000 (1) R.C.R. (Criminal) 138. On the other hand, learned counsel for the respondent contends that the incident dated 21.5.2003, as has been reported to the police and find mention in the order of dismissal, is not in dispute. Non-holding of an enquiry is also not disputed by the Management. He, however, contends that while responding to the claim of the workman before the Labour Court, the Management had specifically in their reply kept its right of justifying its action of passing dismissal order open before the Labour Court by leading evidence. The Management had stated that it shall prove the charges of misconduct, as pointed out in their reply, before the Tribunal by leading appropriate evidence and the right to do so was reserved. He further contends that it is the discretiion of the Management to enter into a settlement with its employees. These are the individual decisions with regard to individual employees which the Management makes while C.W.P.No.5446 of 2008 -4- considering the facts and circumstances of each individual employee's case. No employee after having indulged in misconduct could claim a right of settlement on the ground that a similar settlement has been entered into with some other employee. With regard to the contention that during the pendency of the criminal case, no action can be taken against the workman by the Management, counsel contends that this would go against the basic principles of industrial law because criminal proceedings and disciplinary proceedings are two different fields with different consequences and results, which cannot be inter-linked and are independent of each other. Counsel for the respondent contends that it is always open to the Management to exercise its right as in the present case, the Management has reserved its right to prove the allegations against the workman before the Labour Court for the first time. He relies upon a judgment of the Hon'ble Supreme Court in the case of Kamal Kishore Lakshman vs. Management of M/s.Pan American World Airways Incorporation and others, AIR 1987 Supreme Court 229. I have heard counsel for the parties and have gone through the records of the case and as well as the impugned award. The contentions as raised by the counsel for the petitioner are not sustainable and, therefore, cannot be accepted. The first contention raised by the counsel for the petitioner with regard to termination of the services of the workman without holding an enquiry, being illegal for the reason that the provisions as contained in Standing Order No.37 having not been complied with, is not acceptable for the reason that the said Standing Order does not impose an embargo that the termination of the services of the workman cannot be made without complying with the procedure of enquiry as provided under C.W.P.No.5446 of 2008 -5- Standing Order No.37. What is provided under Standing Order No.37 is the procedure in case the Management decides to proceed with an enquiry and then to proceed to punish for a major misconduct. This, however, does not give a licence to the Management to terminate the services of the workman at will. However, if the Management has good justifiable reasons for not holding the enquiry, it can proceed to terminate the services of the workman without resorting to Standing Order No.37. The Full Bench judgment relied upon by the counsel for the petitioner in Saindranath Jawanjal's case (supra) was a case where the Rules governing the service specifically provided and stated that the enquiry had to be held before punishment could be resorted to. In those given circumstances, it was observed that the Management would not have a right to justify its order before the Labour Court for the first time as the mandate of the Rules was holding of an enquiry, without which, no action could have been taken. Therefore, this judgment would not be applicable in the present case as Standing Order No.37 does not mandate or require that without holding such an enquiry, the services of the workman could not be dispensed with. The reply which filed by the Management before the Labour Court, a reference whereof has been made by the Labour Court in its award, clearly shows that the respondent-Management had reserved its right to lead appropriate evidence by way of written statement before the Tribunal to prove the charges of misconduct so levelled against the workman. It is not the case of the workman that when the Management proceeded to prove its charges against the workman, he had so objected as there was no specific permission sought by the Management. The Labour Court has also come to the conclusion that there was justifiable reasons for not holding the enquiry before proceeding C.W.P.No.5446 of 2008 -6- to terminate the services of the workman. In any case, the evidence led by the Management being based upon the oral as well as documentary evidence produced before the Labour Court clearly show the happening of the incident dated 21.5.2003. Statement of Shri R.B.Singh further shows and proves the misconduct and the act attributed to the workman. The Medico Legal Report and the F.I.R.was also produced before the Labour Court and it is not in dispute that indeed criminal proceedings on the basis of the said F.I.R. are still continuing as has been admitted by the counsel for the petitioner and in fact, is being projected as a ground for not proceeding with the termination of the workman. In this view of the matter, the misconduct of the petitioner- workman having been fully proved before the Labour Court, the contention of the counsel for the petitioner with regard to the statement of Shri R.B.Singh being not consistent, has no ground to stand for the reason that as regards the workman is concerned, there is no inconsistency in the said statement. Petitioner has been attributed to be armed with a Lathi. The blow attributed to him is on the forehead of R.B.Singh. Registration of the F.I.R. is a matter of fact, so is the criminal proceedings pending against him. In this situation, the conclusions as drawn by the Labour Court cannot be said to be based on no evidence which would call for interference by this Court. The next contention raised by the counsel for the petitioner that the presumption of innocence is attached during the pendency of the criminal proceedings and, therefore, the termination of the services of the workman would not be sustainable merely on the basis of an act attributed to him which may amount to misconduct, also cannot be accepted for the C.W.P.No.5446 of 2008 -7- reason that the departmental and the criminal proceedings are two different areas. The requirement of the standard of proof and the evidence is also different. The results of these two proceedings are also different and, therefore, the same cannot be by any stretch of imagination equated as has been stated above. The Management has been able to prove the misconduct attributed to the workman before the Labour Court and, therefore, the order of termination passed against the workman is fully justified. In view of the above, no illegality has been committed by the Labour Court while passing the impugned award and, therefore, calls for no any interference by this Court. The writ petition, therefore, stands dismissed. March 26, 2009 ( AUGUSTINE GEORGE MASIH ) poonam JUDGE Whether referred to Reporters ________ Yes/No