C.W.P.No.4606 of 2009 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P.No.4606 of 2009 Date of Decision:- 29.04.2010 The Beerh Rau Ke Cooperative Agricultural Services Society Ltd. and anr. ....Petitioner(s) vs. The Presiding Officer and others ....Respondent(s) *** CORAM:- HON'BLE MR.JUSTICE AUGUSTINE GEORGE MASIH *** Present:- Mr.J.S.Chahal, Advocate, for the petitioners. Mr.Harinder Sharma, Advocate, for respondent No.2. Mr.Satnam Singh, Advocate, for respondent No.3. *** AUGUSTINE GEORGE MASIH, J. Challenge in the present writ petition is to the Award passed by the Industrial Tribunal, Bathinda dated 4.2.2009 (Annexure P-8) vide which the reference preferred by respondent No.2-workman stands allowed holding him entitled to reinstatement in service with continuity thereof and 40% back-wages from the date of demand notice i.e. 19.11.1999. Counsel for the petitioners submits that respondent No.2- Kulwant Singh was appointed as Salesman Fertilizer on 27.2.1983 by the petitioner-Society in the year 1983. While working with the petitioner- Society, respondent No.2-workman embezzled a sum of Rs.1,27,316/- for which a show cause notice dated 16.6.1999 (Annexure P-1) was served C.W.P.No.4606 of 2009 -2- upon him. No reply was filed to the show cause notice and respondent No.2 was, therefore, placed under suspension on 3.7.1999. A charge-sheet dated 12.8.1999 (Annexure P-2) was duly served upon the petitioner and the charges were entered into proceedings book which was signed by respondent No.2-workman. He admitted that he had used the amount of the Society for his personal purpose and undertook to return the same within a period of 15 days. A resolution to this effect was passed by the petitioner- Society which has been placed on record as Exhibit M-3 which has been duly signed by the respondent-workman. Thereafter, a regular departmental enquiry was held against him. The respondent-workman deposited the embezzled amount with the Society. A show cause notice was issued to the respondent-workman to which he preferred not to file any reply. As no reply was filed by the respondent-workman, the petitioner-Society proceeded to terminate his services vide resolution dated 9.11.1999 (Exhibit M-4). Counsel for the petitioner contends that all documents with regard to the holding of the enquiry, the admission of the workman, bearing his signatures and which fact has been admitted by him before the Labour Court during his cross-examination and, therefore, it cannot be said that the enquiry held against the respondent-workman was not in accordance with law or in violation of the principles of natural justice. He, on this basis, contends that the findings recorded by the Labour court with regard to the enquiry being not proper and in violation of the principles of natural justice, cannot be sustained. Once the respondent-workman had himself admitted the factum of embezzlement of amount of Rs.1, 27,316/- and thereafter he having deposited the same, nothing more is required to be proved against C.W.P.No.4606 of 2009 -3- the respondent-workman. The Management was required to justify the order of termination before the Labour Court which the petitioner-Society has duly proved before the Labour Court that the principles of natural justice were fully complied with. He refers to the statement of the workman Kulwant Singh who appeared before the Labour Court as WW-1 (Annexure P-7) wherein he admitted his signatures on the documents containing charge-sheet, letter containing admission made by him regarding using the amount for his personal purpose, resolution passed in this regard and thereafter the order of termination etc. Accordingly, counsel prays that the writ petition be allowed and the impugned Award be set aside. On the other hand, counsel for the respondent-workman submits that the Management had proceeded to terminate the services of the petitioner merely because he had deposited the amount with the Management. As a matter of fact, the fertilizer was given to the members of the Society on credit basis. He collected the cheques from them and deposited the same with the Society and thus, it cannot be said to be a case of embezzlement on the part of the respondent-workman. As regards the admission of the respondent-workman in Exhibit M-7 which is in the hands of the respondent-workman wherein he has stated that he had utilized this money for his personal use, counsel submits that the said letter was given by the respondent-workman to the Society to save the Society members from being penalized. He could not rebut the contention of the counsel for the petitioners that the documents (Exhibits M-1 to M-3 and M-5 to M-7) bear the signatures of the respondent-workman, which documents form part of the enquiry proceedings, as also the resolutions which had been passed by the Society duly informing the respondent- C.W.P.No.4606 of 2009 -4- workman about the proceedings and its various stages. I have heard counsel for the parties and gone through the records of the case. A salesman is a person who has to deal with money on day to day basis and therefore, is a person on which the Management has to repose full faith. It is not in dispute that the respondent-workman was appointed as a Salesman (Fertilizer) by the petitioner-Society and he was performing the said duties. The allegations were with regard to embezzlement of an amount of Rs.1,27,316/- which were serious in nature and for this he was put under suspension on 03.07.1999, a charge-sheet dated 12.08.1999 was issued to him but he failed to respond thereto. Thereafter, the respondent- workman submitted a written admission wherein he stated that he had utilized the said amount for his personal use and he undertook to return the same within a period 15 days. This fact finds mention in letter Exhibit M-7 besides the resolution Exhibit M-3. An enquiry was held against him wherein he was fully associated. On conclusion of the enquiry, a show cause notice was issued to the respondent-workman as is apparent from the Award wherein it has been mentioned that Gurcharan Singh MW-2 had deposed that show cause notice was issued to the workman to which he did not file any reply. The petitioner-Management on consideration of the enquiry report and the admission made by the workman vide Exhibit M-7 proceeded to terminate the services of the respondent-workman on 9.11.1999 vide resolution Exhibit M-4. All these documents were duly signed by respondent No.2-workman which fact stands admitted by him in his cross- examination before the Labour Court, meaning thereby that the principles C.W.P.No.4606 of 2009 -5- of natural justice were duly complied with by the petitioner-Management from the stage of initiation of the departmental proceedings against him i.e. from the date of issuance of charge-sheet till the termination. The findings, therefore, recorded by the Labour Court that the enquiry was not held in a proper manner under the Rules nor the Rule of natural justice were complied with, cannot be sustained. When an employee, who is charge-sheeted for misappropriation of an amount, as in this case Rs.1,27,316/- and in response thereto, he makes an admission with regard to the said embezzlement/misappropriation, an enquiry into the misconduct may not be required to be held. However, in the present case, the Management proceeded with the holding of regular enquiry and at all stages, respondent- workman was fully associated with it and given full opportunity to defend himself and put-forth his submissions. In such like situation, the choice is of the employee himself to take whatever pleas to defend himself. The evidence on record suggests that the respondent-workman chose not to file a formal reply to the charge-sheet and show cause notice duly served upon him. If the employee does not respond to the opportunity granted to him by the employer, it cannot be said that the principles of natural justice have not been complied with or have been violated. This principle requires an opportunity of being heard after the employee is informed of, firstly the charges against him and thereafter the findings against him, which has been duly done in the present case and, thus, it cannot be said that the enquiry was held in violation of principles of natural justice. A salesman is a person who has to deal with the case at every stage and thus, works on the post of responsibility with faith of the C.W.P.No.4606 of 2009 -6- Management, honesty and sincerity is mandated with it. An employee who falters on these basic requirements, which are expected of him and embezzles an amount of which he is the custodian, and that too for his personal use, he cannot be allowed to continue in service. When the Management loses its faith in the employee, retention of such a person in service is not conducive to the Society where he is employed. Thus, the order of termination passed by the petitioner-Society where the charges of embezzlement have been duly proved against the respondent-workman, cannot be said to be excessive or disproportionate to the misconduct proved against the workman. The order of termination is, therefore, held to be in accordance with law and fully justified. In view of the above, the present writ petition is allowed; the impugned Award dated 4.2.2009 (Annexure P-8) passed by the Industrial Tribunal, Bathinda is hereby set aside and the reference is answered against respondent No.2-workman. April 29, 2010 ( AUGUSTINE GEORGE MASIH ) poonam JUDGE