Civil Writ Petition No.1261 of 1989 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH **** Civil Writ Petition No.1261 of 1989 Date of Decision:15.12.2008 Santokh Singh .....Petitioner Vs. The Presiding Officer, Labour Court, Jalandhar and another .....Respondents CORAM:- HON'BLE MR. JUSTICE HARBANS LAL Present:- Mr. J.C. Verma, Senior Advocate with Ms. Meenakshi Verma, Advocate for the petitioner. None for the respondents. **** JUDGMENT HARBANS LAL, J. This petition has been moved by Santokh Singh under Articles 226/227 of the Constitution of India for quashing the impugned award dated 26.10.1987 Annexure P.9. The facts giving rise to this petition are that the petitioner was working as a Secretary of the respondent- Society, when he was dismissed from service illegally and arbitrarily on the basis of an audit report, without holding any inquiry or issuing him any charge-sheet and giving him proper opportunity to defend himself. He was dismissed from service by passing only a resolution which was neither passed by the competent authority, nor it was signed by the authority empowered to sign it. He had put in more than 10 years of service. The Cashier was responsible for handling cash etc., whereas the duties of the petitioner as Secretary were to maintain the Civil Writ Petition No.1261 of 1989 -2- record, make entries in the register and to do all clerical work, including calling of the meetings etc. The special audit is said to have been held on 30.6.1980, wherein some irregularities were found by the audit party and on the basis of audit report, a resolution was passed by the respondent- Society, whereby without giving any opportunity to the petitioner, he was dismissed from service. Mohan Singh, an employee of the Society, who had written Annexure P.2 was dismissed from service on the ground of some misconduct. Because of groupism in the Society, he was still functioning in the Society. Mohan Singh, himself was Cashier at that time and the so- called irregularities found by the audit party had occurred during the tenure of Mohan Singh. Vide a separate order passed by one K.K. Sharma, it was ordered that both Mohan Singh and the petitioner, should share the loss. Mohan Singh had been playing havoc with the accounts. On industrial dispute being raised by the petitioner, the matter was referred to the Labour Court for adjudication. The learned Presiding Officer, Labour Court, Jalandhar vide the impugned award Annexure P.9 held that the termination of the services of the workman is fully justified as the same was grounded by the loss of confidence. This award is liable to be quashed in view of the reasons embodied in this petition. None came forward to argue on behalf of the respondent- Society. I have heard the learned counsel for the petitioner, besides perusing the findings returned by the learned Presiding Officer with due care and circumspection. Mr. J.C. Verma, learned Senior Advocate agitated at the bar that the Society in the reply Annexure P.5 filed by it before the learned Civil Writ Petition No.1261 of 1989 -3- Presiding Officer, Labour Court, Jalandhar came up with the plea that Santokh Singh (petitioner) was not a workman as defined under Section 2(s) of the Industrial Disputes Act, 1947 (hereinafter to be referred as `the Act') inasmuch as he was employed in a supervisory capacity and was drawing more than Rs.500/- per month as salary. This plea is unsustainable in view of the observations rendered in re: Makhan Singh v. Narainpura Cooperative Agricultural Service Society Limited and another, AIR 1987 Supreme Court 1892. I have well considered these submissions. In Makhan Singh's case (supra), the appellant- Makhan Singh was working as a Secretary of Narainpura Cooperative Agricultural Service Society Limited, Narainpura District Ferozepur. In that case, the matter was referred to the Labour Court. As transpires from the observations rendered in re: Makhan Singh (supra), the appellant was also treated as a workman under the provisions of the Act. On the same parity of reasoning, there can be no escape from the finding that the petitioner being a Secretary was a workman as defined under Section 2(s) of the Act. It is in the statement of Avtar Singh MW2/1 Ex.Vice President of the respondent- Society (Annexure P.8) that the Audit Inspector had made report against the workman vide Ex.MW2/2 regarding misappropriation and on the basis of the same, the resolution was passed. Before this, show cause notice with its copy Ex.MW2/3 was issued. It is in the statement of Mohan Singh Ex-Cashier of the respondent- Society Annexure P.7 that “I remained Cashier with the respondent- Society from 1979 to 1981. The workman was Secretary. In 1980-1981, the audit of the accounts was conducted by the auditors. Amounts were found due in the name of Shri Santokh Singh, which he admitted in a writing. The writing is Civil Writ Petition No.1261 of 1989 -4- Ex.MW1/1. I have brought the photostat copies of MW1/2 to 10, which are correct copies of the original brought by me.” It is abundantly clear from this evidence that only photostat copy of the above-mentioned documents were produced. The original audit report which became the basis for termination of the services of the petitioner was never produced. Annexure P.1, the copy of resolution reads as under:- “Resolved that Santokh Singh, Secretary, has embezzled an amount of about Rs.17848/- according to the special report, dated 30.6.88, after receiving the same from other members, i.e. Manjit Singh w/o Sadhu Ram and three other members and he has not deposited the same so far. Besides, this, he received amounts from many other members and embezzled the same. Four members showed their passbooks on the spot wherein the signatures of Santokh Singh exist. But this amount has also not been deposited. Therefore, he is dismissed from service. Till the appointment of a new Secretary, Sardar Gulzar Singh, will work as Honorary Secretary.” It follows from this resolution that the petitioner was dismissed from service without holding any domestic inquiry or serving any notice upon him. In re: Makhan Singh (supra), the Labour Court had returned a finding that the employee has embezzled the amounts but without going into the question as to whether the photostat copies of entries in the account book could be accepted as evidence in the absence of originals. The Apex Court held that this finding is not sustainable and that the termination of services without domestic inquiry is not bonafide and hence unjustified. The same was set aside and reinstatement of the workman was ordered with Civil Writ Petition No.1261 of 1989 -5- consequential benefits subject to adjustment of salary earned by the employee during period of absence. If the matter is viewed in the light of these observations, the above referred photostat copies could not be relied upon and furthermore, the dismissal of the petitioner- workman from the service without holding domestic inquiry is not bonafide. Consequently, Annexure P.1 is liable to be set aside. As transpires from Annexure P.1, the petitioner was dismissed from service merely on the basis of audit report, which in itself was not sufficient for dismissal of the petitioner from service. The doctrine of `Audi Alteram Partem' contemplates that no one should be condemned unheard. Here in this case, the petitioner having been dismissed from service merely on the basis of alleged audit report can be deemed to have been condemned without affording an opportunity of being heard. Thus, the authorities acted in contravention of the cardinal canons of natural justice. The learned Presiding Officer, Labour Court has observed that the workman had embezzled huge amounts of respondent- Society and that this embezzlement was reflected by a special audit report. The award is absolutely silent as to whether such report or the material supportive of it was gone into by the Labour Court before holding that the termination of the services of the workman is fully justified. Vide Annexure P.2, the petitioner was informed by above- mentioned Mohan Singh that according to resolution No.2 dated 22.12.1981 of the Society, he has been dismissed from service. It is also mentioned in this Annexure dated 25.12.1981 that “the reason for dismissal is that you (referring to the petitioner) had embezzled the amount according to the special report and did not deposit the money after receiving the same from some members.” As is borne out from Ex.P.7, Mohan Singh (sic.) was Civil Writ Petition No.1261 of 1989 -6- merely a Cashier of the respondent- Society and that being so, by no stretch of speculation, he was competent to serve Annexure P.2 upon the petitioner. There is nothing on the record to show that he was authorised by the Society to serve Annexure P.2 upon the petitioner. As follows from Annexure P.7, Mohan Singh (sic.) himself had suffered imprisonment for not having returned the loan of the Society in the year 1967 and he was also dismissed from service. Thus, he could not have been authorised to serve Annexure P.2 upon the petitioner. In view of the above discussion, the impugned award is quashed. At this juncture, it has been brought to the notice that the petitioner might have been superannuated by now. In re: Rajasthan Lalit Kala Academy v. Radhey Shyam, 2008(4) Service Cases Today 841, the workman was appointed on 7.6.1980 on a monthly salary of Rs.300/- to do the work of a junior Clerk. On 4.4.1981, his services were terminated. On an industrial dispute being raised, the Industrial Tribunal, Jaipur by an award dated 24.9.1983, set aside the order of termination and directed reinstatement of the respondent with effect from 24.9.1983 with 50% back-wages. The Apex Court held as under:- “It appears to us that in the present case there has not been due application of mind either by the Labour Court or the High Court on the question of reinstatement and payment of 25% back-wages. The only ground on which reinstatement and continuity of service has been ordered is because the order of termination has been held to be unlawful. Similarly, 25% back- wages have been awarded for the reason that the services of the Civil Writ Petition No.1261 of 1989 -7- petitioner were terminated with immediate effect but no specific reason as such has been assigned for the award of the said back-wages. In our opinion, though, illegality of the order of termination is one of the prime considerations for determining the question and quantum of back-wages, but it cannot be the sole criterion therefor. A host of other factors, a few enumerated above, are required to be taken into consideration before issuing directions in that behalf. Therefore, the award of the Labour Court to that extent cannot be sustained. However, we feel that at this distant time, it would not be fair to the respondent- workman to remit the matter back to the Labour Court or the High Court for fresh consideration of the issue. In the light of the observations referred to supra and having regard to the nature and the period of services rendered by the respondent and the fact that his services were terminated initially on 4th April, 1981 and then on 31st January, 1985 and the vicissitudes of long-drawn litigation, the respondent has undergone for over 27 years, interest of justice would be met if instead and in place of direction for reinstatement and back-wages – a sum of Rs.3 lakhs is directed to be paid to the respondent by way of compensation. We direct accordingly. The payment shall be made within eight weeks from today, failing which it shall carry interest @ 9% per annum from the date of this judgment till the date of actual payment.” Adverting to the facts of the instant case, the petitioner had put Civil Writ Petition No.1261 of 1989 -8- in 10 years of service before his dismissal from the service on 22.12.1981. He was drawing more than Rs.500/- per month as a salary. Thus, in my view, the facts of the instant case are identical with Rahdey Shyam's case (supra). Sequelly, it is held that the interest of justice would be met if instead and in place of direction for reinstatement and back-wages, a sum of Rs.3 lacs is directed to be paid by respondent No.2 to the petitioner - workman by way of compensation. I direct accordingly. The payment shall be made within eight weeks from today, failing which, it shall carry interest at the rate of 9% per annum from today till the date of actual payment. Disposed of accordingly. December 15, 2008 ( HARBANS LAL ) renu JUDGE Whether to be referred to the Reporter? Yes.