IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CWP No. 6707 of 1994 Date of decision: 16.04.2009 Bhim Singh Naib Subedar (Retired) Durga Colony, Near Adult Education Office, Rohtak .....PETITIONER VERSUS Chairman, Golden Lion, P.H. & H.P. Area Canteen, Managing Committee, Head Quarter, P.H. & H.P. Area Shimla (HP) and others ..... RESPONDENTS CORAM: HON'BLE MR. JUSTICE AUGUSTINE GEORGE MASIH Present: Mr. Ramesh Hooda, Advocate, for the petitioner. Mr. Anil Malhotra, Advocate, for respondents No. 1 to 3. *** AUGUSTINE GEORGE MASIH, J. (ORAL) In the present writ petition, the challenge is to the award dated 14.06.1993 passed by the Industrial Tribunal-cum-Labour Court, Rohtak (Annexure P-6), vide which the reference has been answered against the workman. Counsel for the petitioner contends that the services of the workman were terminated without holding an enquiry or complying with the CWP No. 6707 of 1994 -2- provisions of the Industrial Disputes Act (hereinafter referred to as 'the Act'). Since no enquiry was held and the provisions of the Section 25-F of the Act having not been complied with, the termination of the workman is bad in law. It is further his submission that even if the reasons given by the terminating authority are taken into consideration, no evidence has been produced by the Management before the Labour Court justifying its order of termination. He contends that without any evidence on record that the workman had embezzled the amount, which is alleged to have been committed by him, the termination order cannot be sustained. On the other hand, counsel for respondents No. 1 to 3- Management contends that the workman was the overall Incharge of the goods, which he was assigned to bring from CSD Depot, Ambala Cantt to Golden Lion Canteen at Rohtak. The workman has tried to shift his mis- conduct to Mr. Birender Singh, Helper, who had accompanied him. As the facts would reveal, two trucks were loaded from CSD Depot, Ambala Cantt for taking the groceries and liquor to Golden Lion Canteen at Rohtak. In one of the truck, Mr. Birender Singh, Helper, was sitting which contained the groceries and in the other truck, the petitioner-Bhim Singh was sitting, which contained liquor. It is the contention of the petitioner-workman that his truck broke down because of which, the other truck reached earlier at Rohtak and Sh. Birender Singh paid the octroi from his pocket at Rohtak. The octroi was to the amount of Rs. 167.80 paise. This receipt, according to the petitioner, was tempered with by Sh. Birender Singh and the amount, so entered, was Rs. 767.80 paise. This receipt was handed over by Sh. Birender Singh to the petitioner, who presented the same before the Accountant for settlement of the accounts as advance was given to the petitioner for on road expenses. He, on this basis, contends that since the CWP No. 6707 of 1994 -3- receipt was presented by the petitioner to the Accountant for settlement of the accounts, connivance of the petitioner with Sh. Birender Singh, even if the contention as raised by the petitioner is accepted that the amount was tempered with by Sh. Birender Singh, cannot be ruled out. He further admits that no regular enquiry was held. However, he submits that a show cause notice dated 22.12.1987 (Annexure P-2) was given to the workman- petitioner, to which he filed a reply dated 02.01.1988 (Annexure P-3). In this reply, he has admitted the factum that the receipt was presented by the workman to the Accountant for its payment after it was handed over by Sh. Birender Singh to the petitioner. He, on this basis, submits that it is apparent that the petitioner-workman was aware of the amount, which was being sought to be settled. He further contends that the procedure, which was adopted to take action against the petitioner in the present case, is as per the Golden Lion PH & HP Area Canteens Standing Orders. He further contends that as per the appointment letter dated 03.01.1987 (Annexure P- 5), the appointment of the workman was on purely temporary basis and it was for a fixed period of two years from the date of joining, which could be extended further by one year. He further submits that assuming the services of the workman were not terminated in accordance with law, still no reinstatement can be ordered in view of the fixed term appointment of the workman. On this basis, he submits that the award passed by the Labour Court deserves to be upheld and it does not call for interference by this Court. I have heard the counsel for the parties and have gone through the records of the case. The appointment letter, which was issued to the workman, is dated 03.01.1987. As per clause-2, the appointment of the workman was CWP No. 6707 of 1994 -4- purely temporary and for a fixed period of two years from the date of joining if otherwise extended. Clause-3 of the appointment letter stated that if during the tenure of service the workman entered into any plot or conspiracy against the employer or misappropriated the funds and assets of the establishment or committed a breach of any of the stipulated terms or appointment or rule of conduct or misconducted himself, it shall be lawful for the employer to dismiss the workman summarily from his employment without assigning any reason or notice whatsoever or any other compensation. Accepting these terms, the workman joined the service of the Management as Salesman. The petitioner-workman along with Sh. Birender Singh, who was a Helper, were deputed to collect groceries and liquor from CSD Depot, Ambala Cantt on 09.09.1987. Two trucks were loaded from CSD Depot, Ambala Cantt, one with groceries, which was handed over to Birender Singh, Helper and the other contained liquor, where Bhim Singh-petitioner took charge of. It so happened that on the way, the truck, in which the petitioner was going, broke down. The other truck, in which Birender Singh was taking the groceries, reached earlier at Rohtak and he paid the octroi from his own pocket at Rohtak. The octroi charges were Rs. 167.80 paise. When the petitioner came with his truck, the said receipt was handed over by Birender Singh to him, who along with Birender Singh went to the Accountant for settlement of the accounts. There the petitioner submitted the octroi receipt for payment to the Accountant. On it being pointed out by the Accountant that there was tempering with the amount mentioned in the receipt i.e. Rs. 167.80 paise was changed to Rs. 767.80 paise, the petitioner asked Birender Singh to initial the same also fill in the actual octroi amount, which has been deposited by him, which Birender Singh stated was Rs. 167.80 paise and CWP No. 6707 of 1994 -5- put his signatures on the said receipt to that effect. On the basis of this tempering with the receipt, a show cause notice was issued to the petitioner as well as three others namely NK Ranbir Singh (Retd.), Store Keeper, NK Ved Parkash (Retd.), Salesman and Sh. Biredner Singh, Helper. All the four filed their response to the show cause notice. The same was considered by the competent authority and having not been satisfied with the explanations put forth by them, services of all four of them stood terminated. The evidence, which has been produced by the parties before the Labour Court, go to show that the cutting, if any, was done by Sh. Birender Singh as it is apparent that on the receipt, where the octroi amount was mentioned, the same was initialled by Birender Singh himself stating that he has, as a matter of fact, deposited Rs. 167.80 paise as octroi. That being the position, the allegation, which has been levelled against the workman for terminating his services, cannot be sustained. It goes without saying that as per the award, on earlier three occasions as well, Birender Singh, Helper has been found to have tempered with the amounts on the original receipts. There is nothing on record to suggest that earlier also, Bhim Singh-petitioner has ever misappropriated or tempered with the receipts. The termination of the services of the workman, thus, cannot be said to be justified on the basis of the evidence produced by the parties. That being so, the findings, as recorded by the Labour Court, cannot be sustained. The Labour Court has misread the evidence led by the parties and after mentioning that Birender Singh had earlier also made cuttings in many cases and specially three occasions has attributed these temperings to the petitioner, which is totally contrary to the record. The onus to justify the order of termination was on the Management, which has not been discharged by the Management. CWP No. 6707 of 1994 -6- That being so, the question, therefore, now arises is 'can the workman be reinstated in service as his termination is not in accordance with law?' The answer to this question is found in the appointment letter dated 03.01.1987 issued to the workman itself, according to which, as per Clause-2, the appointment was purely temporary and for a fixed period of two years from the date of joining, if otherwise extended. As per paragraph-5 of the Golden Lion PH & HP Area Canteens Standing Orders, Ex-servicemen or other civilian staff will not be engaged on regular employment and it would be for a periodic contract basis, which would be initially for two years extendable by one year at a time. These standing orders have not been disputed by the petitioner as he has himself given an undertaking that he would abide by the conditions, as stipulated in the appointment letter. Further, the standing orders are applicable to all employees of the Golden Lion Canteens organizations. Since the termination of the services of the workman has been held to be not in accordance with law and since the appointment of the workman was purely on temporary basis for a fixed term of two years, the workman cannot be reinstated. However, he would be entitled to the wages for the unexpired period of his contract. This would come to 11 months. In this view of the matter, the present writ petition is allowed to the limited extent that the workman would be entitled to compensation by way of 11 months wages of his unexpired term of contract. This amount of compensation is directed to be paid to the petitioner-workman within a period of two months from the date of receipt of copy of this order by the respondents. ( AUGUSTINE GEORGE MASIH ) JUDGE April 16, 2009 pj Whether referred to Reporters.........................Yes/No.