THE HON’BLE SRI JUSTICE NOOTY RAMAMOHANA RAO Writ Petition No.26395 of 1996 ORDER: This writ petition is directed against the award passed by the Labour Court, Guntur in I.D.No.108 of 1992 raised by the writ petitioner. The writ petitioner joined service of the 2nd respondent as an Accountant on 16.03.1978. Alleging certain misconduct, the writ petitioner has been subjected to disciplinary proceedings, by framing charges against him on 21.01.1980, after noticing certain discrepancies in the cash book maintained by him. The said disciplinary proceedings have ultimately ended with an order passed on 30.06.1980 imposing the punishment of dismissal of the petitioner from service. However, for the very same reasons and facts, the 2nd respondent has also lodged a complaint with the III Town Police Station at Vijayawada. Two individuals have been prosecuted. One of them is the writ petitioner and the other is R.Venkateswara Rao, an L.D.Clerk. In C.C.No.231/82 on the file of the learned II Additional Metropolitan Magistrate, Vijayawada, accused No.1-Sri Venkateswara Rao could not be apprehended by the police and hence, the criminal case was split and it was proceeded against the writ petitioner. Ultimately, the Criminal Court by its judgment dated 19.04.1991 found that the writ petitioner was not guilty of the allegations levelled against him and consequently acquitted him. Thus, after coming out successfully from the prosecution in the criminal case launched against him, the writ petitioner submitted a representation on 10.10.1991 seeking the 2nd respondent to reinstate him into service, by appropriately reviewing the punishment imposed on him. That request was declined. Hence, the Industrial Dispute in question has been raised. It will be noteworthy that the Enquiry Officer has noticed that Venkateswara Rao, accused No.1 in the criminal case was attending to the duty of going to the bank and withdrawing money from the Bank. The cheque book in question was also in the custody of the said Venkateswarara Rao, whereas the writ petitioner was working as an Accountant only. Since the Criminal Court has taken all these factors into consideration and account and found the writ petitioner not guilty, he sought for reconsideration of the entire case. Before the Domestic Enquiry Officer, the Manager (Accounts) was examined as the solitary witness, on behalf of the management. Since the management has fixed accountability on the writ petitioner for a sum of Rs.2,600.27 ps., he has paid the said sum, in principle, without admitting any responsibility therefor. The writ petitioner was all through pleading that it is Sri Venkateswara Rao, the other employee, in whose custody the cheque book was lying, and who was attending to the work of depositing/withdrawing money from the Bank was responsible for the entire action and therefore, a sum of Rs.11,000/- which has been found misappropriated, being the subject matter of three cheques, should be fixed on him but not on the petitioner. In fact, the petitioner has also brought to the notice of the Labour Court the fact that the Criminal Court has acquitted him on merits of the charge. The Labour Court has not considered it appropriate to get guided by the findings recorded by the Criminal Court for the reasons such as; (1) the petitioner was removed from service on 30.06.1980, while he has been acquitted by the Criminal Court long years thereafter on 19.04.1991; (2) certified copy of the judgment rendered by the Criminal Court was not filed, but only a typed copy was filed; and (3) further, the petitioner himself has paid an amount of Rs.2,600.27 ps., in principle to the Company in view of the responsibility fixed on him. Therefore, according to the Labour Court, the findings of the Criminal Court need not be looked into. While it is true that the findings recorded by the Criminal Court would not have, normally, binding nature on the civil proceedings, but at the same time, if a person has been proceeded against as a measure of discipline substantially for the very same reasons and factors, which formed part of the criminal prosecution, acquittal on merits accorded by the competent Criminal Court should not be ignored, lest, while considering the very same material, two divergent opinions could have been expressed one by the Criminal Court and another by the domestic Tribunal. The principles in this regard have been set out by the Supreme Court in Sulekh Chand and Salek Chand vs. Commisioner of Police and others[1] and G.M.Tank vs. State of Gujarat and others[2] and also by a Division Bench of this Court in Union of India and others vs. Sardar Begum[3]. I therefore consider it appropriate to proceed to find out as to whether the learned II Additional Metropolitan Magistrate, Vijayawada has acquitted the writ petitioner of the criminal charge in C.C.No.231 of 1982 on his file on merits or not. In the course of judgment, this is what the learned Magistrate has found: In order to prove an offence U/s.477-A IPC, prosecution has to establish that A-2 has willfully and intentionally altered the accounts. With regard to Exs.P.2 to P.4 cheques no entry in the cash book was marked. In fact the evidence discloses that there were no relevant entries pertaining to Exs.P.2 to P.4 in the cash book. The entry is marked as Exs.P.6 to P.13 in the cash book relate to the sum of Rs.2,600-27 ps., which was considered to be wrongly shown in the accounts by A-2. Further there is no evidence on record to show that the Pencil writing in Exs.P.6 to Ex.P.13 are in hand- writing of A-2. The cash book was also not produced along with Ex.P.1 or during investigation. It was filed into the Court, when P.W.2 was examined on oath. The late production of cash book also throws out on the case of the prosecution. More-over, there is no charge regarding the alteration of accounts pertaining to the sum of Rs.2,600.27 Ps., In fact a reading of Exs.P.1 and P.5 clearly shows that they considered that as a mistake in totalling and negligence on the part of A.2. In the charge-sheet also there was no mention that A.2 misappropriated the cash of Rs.2,600-27 Ps., Therefore, I am of the view that a charge under Section 477-A IPC is not made-out. The next charge framed against A.2 is one U/s.471 IPC. The evidence of P.Ws.1 and 2 clearly shows that Ex.P.2 to P.4 were forged by A.1 and they were presented by A.1 in the State Bank of India, Labbipet Branch, Vijayawada. Therefore, it cannot be said that A-2 forged Exs.P.2 to P.4 or that A.2 used that Exs.P.2 to P.4 knowing them that they were forged. Therefore, the prosecution failed to prove this charge also as against A.2. The last charge framed against A.2 is one U/s.408 r/w.109 IPC. According to the prosecution, A-1 misappropriated the amount covered by Exs.P.2 to P.4. In fact in this case trial was conducted only against A.2. Therefore, it has to be seen, whether A-2 abetted the offence of misappropriation that has been committed by A.1. The evidence on record did not show that A-2 abatted A-1 to commit misappropriation. No cogent circumstances were brought on record to show that A.1 and A.2 acted and in glove in forging the cheques or in encashing the cheques. The link between A.1 and A.2 was not established. No acceptable evidence is placed on record to show that A-2 abatted A-1. Therefore, I am of the view that the charge U/s.408 r/w.109 I.P.C. was also not proved. In fact, there is no charge against A.2 for misappropriation of an amount of Rs.2,600-27 ps. covered by Exs.P.6 to P.13. entries in the cash book. But, P.W.2 to some extent deposed that accused made wrong entries in the cash book and used that amount. In the absence of a charge against A-2 for the misappropriation of amount of Rs.2,600-27 Ps. it cannot be said that he is guilty of that offence. Even otherwise a perused of Exs.P.1 and P.5, which are the earliest documents in this case clearly shows that A-2 did not misappropriated the amount of Rs.2,600-27 Ps., but it was only a mistake in totaling. From a perusal of the above findings recorded by the Criminal Court, it emerges that the writ petitioner is not guilty of the acts of misdemeanor alleged against him. In such circumstances, the matter requires fresh examination by the 2nd respondent. However, Ms. Uma, learned counsel appearing for the 2nd respondent would submit that the 2nd respondent-unit has become defunct and was now taken over by the Singareni Collieries for utilizing the machinery available thereat, for manufacture of some of the equipment. The 2nd respondent is not in fact available to enable any further proceedings to be carried out, if the matter were to be remitted back. This apart, learned counsel for the 2nd respondent would submit that the total length of service rendered by the writ petitioner to the 2nd respondent was hardly of two years duration and thereafter, he has been removed from service and he has subsequently faced the prosecution by the police as well. In these set of circumstances, after lapse of so many years, it is not a fit case for ordering for reinstatement or for regulating his future employment. Learned counsel for the writ petitioner has also filed a memo into the Court today pointing out that the petitioner has already attained the age of 69 years and that his left leg has been amputated because of his involvement in an accident and consequently he is not in a physically fit position to carry on the litigation any further. In the peculiar fact situation prevailing on record in this case, where the 2nd respondent has become defunct, excepting that it’s machinery is being used by the Singareni Collieries Company, which entity has not been brought on record, I consider it appropriate to order for payment of reasonable amount of compensation to the writ petitioner instead of reinstatement into service pursuant to the judgment rendered by the Criminal Court. It is no doubt true that the learned counsel for the writ petitioner in the memo filed today suggested that an amount of Rs.1,75,000/- may be awarded in lieu of reinstatement, whereas Ms. Uma would submit that an amount of Rs.1,00,000/- would be fair and reasonable amount of compensation and not Rs.1,75,000/- as claimed. In the given facts and circumstances, particularly when the Criminal Court has acquitted the writ petitioner of the charges laid against him, it would be appropriate for the 2nd respondent to have re-considered the entire issue. Since the writ petitioner is also not in a position to carry on the litigation further, it would only be appropriate to order for payment of a sum representing Rs.1,44,000/- as a fair and reasonable amount of compensation in lieu of reinstatement. taking into account and consideration the fact that the writ petitioner worked as an Accountant with the 2nd respondent prior to termination of his services. Therefore, the writ petition is allowed modifying the award passed by the Labour Court, Guntur in I.D.No.108 of 1992, by ordering for payment of a sum of Rs.1,44,000/- (Rupees One Lakh Forty Four Thousand Only) on or before 31.05.2010 to the address furnished by the writ petitioner by registered post. No costs. ____________________________ (NOOTY RAMAMOHANA RAO, J) Date: 01.04.2010 JSU [1] 1994 Supp (3) Supreme Court Cases 674 [2] (2006)5 Supreme Court Cases 446 [3] 2008(6) ALD 385 (DB)