IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH CWP No.12879 of 2000 Date of decision : 10.8.2009 Raghbir Singh … Petitioner Versus State of Haryana and others …Respondents CORAM : HON’BLE MR.JUSTICE K. KANNAN Present: Mr.S.S.Dalal, Advocate for the petitioner. Mr.D.S.Nalwa, DAG, Haryana Mr.R.N.Lohan, Advocate for respondent No.3. 1. Whether reporters of local papers may be allowed to see the judgment? 2. To be referred to the reporters or not? 3. Whether the judgment should be reported in the digest? K. Kannan, J. (Oral) 1. The award of the Labour Court declining the reference, and holding that termination of services of the workman is legal and justified, is subject of challenge in the writ petition. 2. The misconduct attributed to the workman, which had been alleged to have been proved here; (1) the workman had sold five quintal of Patri (scrap) in the month of February, 1976 without permission of District Manager, Kaithal, and kept the sale price of Rs.500/- with him without any authority which was deposited on 10.5.1976 after a period of three months; (2) he remained absent on 13.9.1976, 14.9.1976, 16.9.1976 and from 26.9.1976 to 30.9.1976; (3) workman had failed to submit his fortnightly diaries for the month of August and September, 1976 and from 1.10.1976 upto 17.10.1976. 3. Originally the order of termination was passed without any enquiry. On challenge being made before the Labour Court, the Labour Court upheld the order of termination which was impugned before this Hon’ble CWP No.12879 of 2000 Court in CWP No.7486 of 1992. The writ petition was disposed of with the direction that Labour Court shall permit the parties to lead evidence on the misconduct attributed to the workman and directed the Labour Court to consider the case afresh. On evidence being led by the respective parties, Labour Court again confirmed its earlier decision finding that misconduct attributed to the petitioner has been established after leading evidence before him. 4. In the writ petition, the learned counsel appearing for the petitioner admits the event of the sale of scrap in the manner referred to in the first charge, and explained it by saying that sale was done only as per the express instructions of the Manager but the moment he realized that the Manager was not prepared to support him, he deposited that amount even before the issuance of charge-sheet. The learned counsel further submits that there was no criminal intent and the Labour Court ought to have accepted his statement that he did the act only with the knowledge of the Manager and that was why he had even deposited the amount even before any charge had been framed against him. 5. As regards the charge that the petitioner had been absent from the specified dates, as found in the charge-sheet, the workman’s explanation was that he had gone on official tours on those days and the details of the tour during the said period has also been written in the fortnightly diaries. According to him, all those records had been with the management itself and the charge that he had failed to submit his fortnightly diaries, was also not true. It could be noticed that charge Nos.2 and 3 arise out of the same transaction and in view of the fact that diaries were not available, his explanation that he had not remained absent but only on official duties in field work could not be proved. It shall not be possible to reverse the finding of the Labour Court that the workman had not proved his contention that there was authorized absence. If the workman could not prove that he as on duty, the 2 CWP No.12879 of 2000 inference has to necessarily follow, that his absence was unauthorized. The finding of the Labour Court that the charges have been established, cannot therefore, be assailed. 6. Labour Court has perfectly justified in finding that the charges leveled against the workman had been proved. Labour Court was bound to examine whether the punishment of dismissal from service has justified. Section 11A of the Industrial Dispute Act casts the duty on the Labour Court or the Industrial Tribunal to consider the issue of punishment in relation to the gravity of the misconduct attributed to the workman. Admittedly, the workman had no previous history of misconduct and the so called temporarily misappropriation of Rs.500/- by delay in depositing, ought to have been seen in context of his defence that the Manger himself had specifically asked him to do so. The difficulty of examination of the higher officer could be easily visualized. The absence on various dates, though were proved to be unauthoirsed, but they were not for any long period. It all happened during the same month of September, 1976 and he had sought to explain the same by stating that all the entries were in the diaries submitted to the employer. By the very nature of things, the diaries could not be in the custody of the workman and he was bound to have submitted to the management. If the management itself did not produce and made the non-production as one of the charges, then the issue of drawing even an adverse inference against the management did not arise. More than stating that the charge against the workman had been established, it has only to be stated that it was a case where the innocence of the workman could not be proved. None of the charges are grave to visit the workman with punishment of dismissal from service. 7. Learned counsel for the workman produced before me the Haryana State and Market Cooperative Rules, 1988, which stipulates major penalties that include reduction to lower grade category, removal from 3 CWP No.12879 of 2000 service, dismissal from service etc. among other punishments. The dismissal from service which had been ordered, is alone modified to one of removal from service, so the workman shall be entitled to such terminal benefits as admissible by modification of the punishment from one of the dismissal to removal from service. The finding of the Labour Court in all other respects are confirmed. 8. The writ petition is disposed of in the above terms. [ K.Kannan ] Judge 10.08.2009 sd 4