CWP No. 17173 of 2000 1 IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH CWP No. 17173 of 2000 Date of decision November 9, 2009 Balbir Singh ....... Petitioner Versus The Presiding Officer, Labour Court, Patiala and another ........ Respondents CORAM: HON'BLE MR. JUSTICE K. KANNAN Present:- Mr. Mohinder Singh Bedi, Advocate for the petitioner. Mr. Gurcharan Singh, Advocate for respondent No.2. **** K. Kannan, J . 1. Aggrieved against the award of the Labour court rejecting the reference sought at his instance, the workman has filed the present writ petition. The termination of service was of the Secretary in Ambala Cooperative Society on a resolution purported to have been passed by the Society that there had been embezzlement of funds to the tune of Rs.1,09,471.08. Admittedly, there had been no domestic enquiry and no charge sheet had also been filed. The ground of attack before the Labour Court by the workman was therefore that the dismissal from service effected without any enquiry or charge sheet was violative of principles of natural justice. The Labour Court found the charges to have been established with reference to a fact that several awards had been passed by the Registrar Cooperative Societies Act for several sums totalling Rs.1,09,471.08 and therefore, found that it was not a fit case even to exercise of power under Section 11-A of the Industrial Disputes Act,1947 to (hereinafter referred to as the 'Act') reduce the punishment and CWP No. 17173 of 2000 2 answered the reference against the workman. While passing the award the Labour Court had also adverted to an alleged admission of the workman that he had received Rs.5745/- under Ex. M-1 from persons at S.No.1,4,7,9 and 13 and since he had not proved that he had deposited the amounts collected from the members fund, it found an additional reason to hold that in view of the admission of the workman himself of having received moneys but which were not deposited, there had been definitely a case of embezzlement. 2. The petitioner contends that there had been no such admission in his evidence relating to the so called collection of amount from members of the Society and the various awards that were said to have been passed were passed in his absence and that would not prove embezzlement. His further contention was that even if the awards were to be taken as amounts due by him to the Society they will not themselves prove a case of embezzlement any more than a subsistence of liability of the amounts by the petitioner to the Society. If it was an admitted fact that there was no charge sheet or enquiry prior to the finding of misconduct and dismissal, according to the learned counsel appearing for the workman, the act of termination of service by the Management again was clearly untenable and violative of principles of natural justice. 3. Learned counsel appearing for the Management would respond to the arguments by contending that the workman had participated in all the enquiries before awards were passed and all the awards had been passed only in the presence of the workman himself. Referring to the awards exhibited as evidence before the Labour Court, learned counsel appearing for the respondent would state that he had appeared through an authorized representative and he knew that all the awards represented moneys availed from the Society or moneys collected from members which had not been deposited with the Society. CWP No. 17173 of 2000 3 4. Learned counsel appearing for the respondent refers also to several decisions to support his contention that even the reference which was sought by the workman was grossly belated. The services had been admittedly terminated on 14.10.1987 and the reference itself was sought only in March, 1995. According to him, the petitioner's resort to an adjudication before the Labour Court was deliberatly belated without any excuse and hence the reference was bound to be rejected also on the ground of delay and laches. 5. Learned counsel for the respondent refers to a decision of this Hon'ble Court in General Manager, Punjab Roadways, Nawan Shehar Vs. Sarsander Kumar 1997 (2) SCT 530 where a learned Judge of this Hon'ble Court held that delay of more than five years in raising demand about illegal termination of services would amount to abandonment of the claim and that the employer was not expected to keep the post vacant for all times to come. On the same issue of delay was a ruling of this Hon'ble Court in Karnal Central Coop. Societies Bank Ltd. Vs. State of Haryana 1995 (1) PLR 102 1994 when the Court rejected the claim for back wages in the case where the demand notice had been given after a long delay of more than three years. Punjab State Electricity Board Vs. State of Punjab 1993 (1) SCT 103 was a case that dealt with issue of delay of a challenge at the instance of the workman whose claim through a reference beyond a period of three years had constituted severe handicap to the Management and the Court held that the delayed claim was liable to be rejected. The Court held that even technical violation of Section 25-F of the Act would not be in all cases entitle the workman to the relief of reinstatement unless a finding was given that retrenchment was not justified. 6. In Ajaib Singh Vs. The Sirhind Co-op. Marketing-cum-Processing Service Society Ltd. Reported in 1999 (6) CWP No. 17173 of 2000 4 SCC 82 the Hon'ble Supreme Court held that there was no limitation prescribed for reference of admission to workman and mere delay would not enable a Court to apply the law of limitation. The Court could only mould the relief in such cases by applying a reasonable cut on back wages. Hon'ble Supreme Court also cautioned that the High Court shall not substitue its own opinion to deprive of the workman from the benefit under the I.D. Act, since the fight between the workman and the management is not a fight between equals. Provisions of I.D.Act are for the protection of workmen and the Court shall not apply rules of limitation to their detriment. The last judgment of the Supreme Court, therefore, would clearly show that the point of limitation itself cannot be a ground to deny to the workmen any benefits. The issue has to be still seen in the context of whether the workman had forfeited his claim by his conduct and had created any particular handicap for the management to bring before the Labour Court any evidence which it could have otherwise done if the case had been filed in time. The contention of the learned counsel for the respondent that since the claim was belated it could not be entertained will have to be tested only in the context of the particular prejudice caused at the time of trial. The fundamental position whether there had been proof of misconduct cannot be pushed under carpet by the only fact that there was delay. 7. As I have already pointed out, the Labour Court had itself adverted to the fact that no charge sheet had been levied against the workman for the alleged misconduct. Consequently there was not even any enquiry to ascertain the alleged misconduct. Before the Labour Court the Management had put in evidence of Sh. Jaswinder Singh, Cashier who spoke about the alleged embezzlement of funds of Rs. 1,09,471.08. The details of embezzlement were reproted to have been contained in Ex.M-1. The document merely referred to several entries of alleged embezzlement CWP No. 17173 of 2000 5 but gave no intrinsic proof of embezzlement since it reproduced the details several awards said to have been passed. For determining the liability of the sums due by the petitioner to the Society. MW-2 Charanpreet Singh had produced the originals of M2 to M-11 which were allegedly recoveries from members which the workman was supposed to have made but not deposited with the Bank. The workmen himself had explained the alleged receipts from several persons and the so called non-deposit of the amounts into the Society. He referred to the fact that he had received cheques on various denominations and the said cheques were all deposited by him into the Society again. It was also averred by him in his evidence that the amounts had been withdrawn by the Society from the drawee Bank at Fatehgarh, Kamano. He also gave statement in Court that he had not collected any amount from any person relating to M2 to M11 and that he had not made any enteries in his hand. He referred to the fact that it was the duty of the Cashier to make entries in the Cash book and he had not made any such entries. 8. The Labour Court had found that only an amount of Rs. 5745/- as amounts collected from the members of the Soceity and they had not been deposited. Apart from this, Labour Court treated all amounts which were the subject of the awards as amounts misappropriated by the workman. On both the counts, I am of the view that the Labour Court had committed a serious error in appreciation of evidence. It must be noticed that the Management itself had not instituted any enquiry before awarding the punishment and it was sought to be proved only before the Labour Court. The Labour Court was therefore bound to see whether the Management had proved the misconduct attributed to the workman. The copies of awards which the Society had obtained against the workman could prove the liability of the workman to pay the amounts but it would be wrong to assume that the entire amounts CWP No. 17173 of 2000 6 were the result of any misappropriation. Such an evidence must have been tendered before the Labour Court at least and mere production of copies of awards cannot prove the same. Even as regards the so called admission of guilt for a misappropriation of Rs.5745/- I have examined the evidence of the workman from the original file. He has merely stated as follows:- “Recovery has been made only from those persons shown at S.Nos. 1,4,7,9,12,13 at page 3 and 4 of Ex.M-1. The total amount comes to Rs.5745/- of which I received the cheque. I cannot produce today any proof about the cheques having been deposited in the Bank (volunteered to get produced subsequently). “ It subsequently bears out in evidence that the workman produced proof of such deposits and an application for additional evidence was made by the workman on 25.5.1999. The application had been allowed and the documents were received and the workman had been allowed on 17.8.1999 to tender evidence on payment of some costs. It must be noticed that even in the application for reception of evidence, the workman had given the details of cheques for Rs.5745/- it was not the contention of the Management that the cheques had not been deposited. The error in reasoning of the Labour Court consisted in assuming that all the amouints were received in cash from members of the Society and misappropriated by the workman himself. On the other hand, they were cheques drawn in the names of the Society by members and those cheques were also shown to have been deposited in the Banks and the Society had also withdrawn the same. Consequently, there was absolutely no proof of any misappropriation of any kind of any amount. The amounts for which awards had been passed cannot be assumed to the amounts misappropriated. If there was misappropriation there ought to have been CWP No. 17173 of 2000 7 proof of how the amounts were misappropriated. Even while saying so, it shall not be taken as suggestive of the fact that liabilities do not exist. It shall be certainly possible for the Management to recover the amounts covered under the awards in the manner known to law if they have become final and if there is no bar of limitation. 9. The finding of guilt by the workman was clearly unjustified. The termination from service had been made in the year 1989 and as I had already pointed out that the workman had contributed to the delay by approaching the Court for a reference after considerable delay of more than 7 years. The appropriate relief in my view, would therefore be to compensate the workman by appropriate amount, having due regard to the number of years that the litigation has persisted and the stigma that he had to shoulder for terminating him on the ground of embezzlement. The workman had admittedly worked for five years as a Secretary and in my view, the appropriate amount shall be 2.5 lacs in lieu of relief of reinstatement. This amount shall be paid within a period of six weeks from the date of receipt of copy of the order failing which the amount shall be paid with interest at 9% per annum from the date of this order. 10. The award of the Labour Court, under the circumstances, set aside and the writ petition is allowed to provide for relief of compensation as mentioned above. The petitioner shall also be entiteld to costs of Rs.5,000/-. (K. KANNAN) JUDGE November 9, 2009 archana