1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR O R D E R S.B. CIVIL WRIT PETITION NO.3278/2005 (Aftab Ahmed Kadri Vs. U.O.I. & Ors.) Date of order : May 26th, 2008 P R E S E N T HON'BLE MR. JUSTICE GOPAL KRISHAN VYAS Mr. M.R. Singhvi, for the petitioner. Mr. V.K. Mathur, for U.O.I. In this writ petition, the petitioner is seeking directions to the respondents to reinstate him in service as if his services were never terminated and prayed for all consequential benefits including the monetary benefits along with interest @ 18% per annum. Brief facts of the case are that the petitioner was employed as casual labour in the month of August, 1984 and he worked upto October, 1986. Thereafter, the petitioner was employed on the post of 2 full time casual labour vide order dated 24.12.1990 passed by the respondents. In that order, the break period from 1.1.1988 to 30.11.1989 was condoned. The case of the petitioner is that he was continuously discharging his duties on the post of casual labour without any break under the respondents and all of a sudden, third respondents vide order dated 28.2.1992 passed an order to withdraw the previous order dated 24.12.1990 and it resulted into the termination of the services of the petitioner. In the said order, no reason was assigned for such termination. As per the petitioner, no notice, no compensation was paid prior to issuance of retrenchment order, so also, no seniority list was published as required under the Industrial Disputes Act, 1947 (hereinafter the “Act of 1947” only) prior to passing of retrenchment order. As per the knowledge of the petitioner, a number of persons junior to him were allowed to continue in service in telecom department. As per the petitioner, he has worked with the respondents for more than eight years and he was employed on regular post and the post on which he was working was regular in nature but his services were terminated. The petitioner filed an Original Application being O.A. No.119/92 before the Central Administrative Tribunal Jodhpur Bench, Jodhpur and the same was disposed of vide judgment dated 18.8.1992. Learned Tribunal has passed the following Tribunal : 3 “Heard counsel for the parties. Applicant submits that from Annexure A/2, it is clear that he had served the respondents for more than 240 days Calendar year. The respondents have stated in the reply that Annexure A/2 is forged documents and FIR has been lodged with the police in regard to this forgery. The applicant has filed a rejoinder in which he has only stated that he had not fabricated any documents. He has not specifically stated that the documents is a genuine one. In the circumstances of the case, we would not like to make any observations at this stage about the genuineness of the documents Annexure A/2. We would only observe that if as a result of investigation, enquiry or trial it is found that the documents Annexure A/2 is correct and genuine, the termination of the applicant's services would be rendered illegal for want of compliance with the provisions of Section 25 (F) of the Industrial Disputes Act. However, if the documents is found to be incorrect or forged, the applicant would be entitled to no relief. The OA is disposed of with these observations.” While pointing out the fact with regard to above decision, it is submitted by the learned counsel for the petitioner that a criminal case was registered against the petitioner with regard to genuineness of the documents filed by the petitioner for his regularization. The learned Tribunal observed in the 4 order above that if as a result of investigation, enquiry or trial it is found that the documents Annexure A/2 is correct and genuine, the termination of the applicant's services would be rendered illegal for want of compliance with the provisions of Section 25 (F) of the Industrial Disputes Act. However, if the documents is found to be incorrect or forged, the applicant would be entitled to no relief. Meaning thereby, the OA was disposed of on the ground that though termination was in violation of Section 25-F of the Act of 1947 but FIR was filed with the allegations of filing of forged documents by the petitioner for the purpose of regularization and in that FIR, challan was filed and the petitioner after full-fledged trial acquitted from the charges levelled against him vide order dated 3.3.2003. Therefore, as per the petitioner when the petitioner was acquitted by the trial Court, therefore, in pursuance of the judgment passed by Central Administrative Tribunal on 18.8.1992, the petitioner was to be taken back on duty because it is specifically held by Tribunal that if as a result of investigation, enquiry or trial it is found that the documents Annexure A/2 is correct and genuine, the termination of the applicant's services would be rendered illegal for want of compliance of the provisions of Section 25 (F) of the Industrial Disputes Act. Obviously, it is not proved by the prosecution before the criminal Court in the trial that the documents filed by the petitioner was forged. 5 Therefore, after acquittal from the charges levelled against the petitioner, he was to be taken back in service by the respondents but after acquittal, he was not taken back on duty. However, the Central Administrative Tribunal has no jurisdiction in the matters relating to employees of Bharat Sanchar Nigam Limited as after judgment dated 18.8.1992, the B.S.N.L. was formed by the Union of India and all the employees who were working in the Telecom Department were placed under the control of B.S.N.L. and for the employees of B.S.N.L., no remedy is provided before the Central Administrative Tribunal because B.S.N.L. is not notified in the Central Administrative Tribunal Act, 1986. Therefore, the petitioner has directly approached this writ petition by way of filing present writ petition for seeking directions to the respondents that as per the judgment dated 18.8.1992 passed by Central Administrative Tribunal, Jodhpur Bench, Jodhpur, in the event of acquittal from the competent criminal Court in the criminal case filed against the petitioner, the petitioner is entitled to be reinstated in service because in the said judgment dated 18.8.1992, it was specifically held that if as a result of investigation, enquiry or trial it is found that the documents Annexure A/2 is correct and genuine, the termination of the applicant's services would be rendered illegal for want of compliance with the provisions of Section 25 (F) of the Industrial Disputes Act. In this case, as per the petitioner, 6 the respondents have failed to prove that the documents filed by the petitioner for the purpose of regularization was forged, therefore, obviously, the documents filed by the petitioner whereby he was declared full time casual labour vide order dated 20.12.1990 cannot be termed as illegal, therefore, the petitioner has prayed for directions to the respondents to reinstate him because the termination of the services of the petitioner was found to be illegal and in violation of the provisions of Act of 1947 by the Tribuanl vide order dated 18.8.1992 but only embargo was made by the Tribunal that if the documents filed by the petitioner is found to be incorrect or forged, the application would be entitled to no relief. But here in this case, in the criminal trial, the petitioner has been acquitted and it has not been proved by the respondents that the documents filed by the petitioner for declaring him full time casual labour was forged. Therefore, obviously, the documents are required to be treated as genuine documents and the petitioner is entitled for reinstatement in service in view of the order made by the Central Administrative Tribunal in OA No.119/92 dated 18.8.1992. Per contra, in reply filed by the respondents, it is stated that the criminal case No. 331/2002 was decided in favour of the petitioner vide order dated 3.3.2000 on the ground that the 7 prosecution has failed to produce any witness in favour of the prosecution to prove the guilt of the petitioner. Therefore, on technical ground and for want of evidence he was acquitted from the charges but on the said reasons, it cannot be presumed that the documents filed by the petitioner for the purpose of declaring him as full time casual labour were genuine. Therefore, the petitioner is not entitled to any relief, so also, the petitioner cannot pray for reinstatement in service because there is no finding with regard to correctness of the documents by the criminal Court. As per the respondents, the petitioner got engaged himself on a forged certificate, therefore, he himself is responsible for filing forged documents and since the petitioner is acquitted from the charges levelled against him on technical grounds, he cannot claim reinstatement, so also, nothing has been said by the criminal Court with regard to genuineness of the certificate produced by the petitioner, therefore, the acquittal is only on technical ground and the judgment does not acquit the petitioner on merit. Therefore, the petitioner cannot say that the documents produced by him were genuine, therefore, the action of the respondents is perfectly within the ambit of legality. Hence no interference is required and the petitioner cannot claim reinstatement on the ground that he is acquitted from the criminal Court. The services of the petitioner have been terminated on the ground that he has filed 8 forged documents, therefore, there is no violation of Articles 14 and 16 of the Constitution of India, so also the no question of violation of provisions of Section 25 F of the Act of 1947. After considering the entire pleadings of the case and after hearing the arguments of the parties, in this case it is required to be seen whether after acquittal from the criminal Court in the case registered against the petitioner filed by the respondents, the petitioner is entitled for reinstatement or not. For the said purpose, there is no dispute in this case that earlier an OA was filed by the petitioner against his termination of service and said OA was registered as OA No.119/92 before the Central Administrative Tribunal, Jodhpur Bench, Jodhpur. In the judgment rendered by Tribunal in that OA, a clear finding was given by Tribunal that if as a result of investigation, enquiry or trial it is found that the documents Annexure A/2 is correct and genuine, the termination of the applicant's services would be rendered illegal for want of compliance with the provisions of Section 25 (F) of the Industrial Disputes Act. Meaning thereby, the services of the petitioner were admittedly dispensed with without compliance of Section 25 F of the Act of 1947 but the genuineness of the documents was suspected by the respondents and for which FIR was filed and after investigation police filed challan against the 9 petitioner. Meaning thereby, the Department was under obligation to prove before the criminal Court that the documents filed by the petitioner are forged and for that purpose Department was under obligation to adduce the cogent evidence before the criminal court with regard to genuineness of the documents. It is settled law that if any criminal charge is levelled against an employee by the employer, then, prosecution/employer is required to prove the said criminal charge but in this case, the charge of forgery levelled by the prosecution/department is not proved by the respondents, therefore, if the charges levelled against the petitioner is not proved by the respondents with regard to alleged forged documents then obviously it will be presumed that the documents upon which the petitioner was declared full time casual labour were genuine and validity of that documents cannot be questioned because the opportunity was available with the respondent department to prove before the criminal court that the documents produced by the petitioner is forged but it has not been proved before the criminal Court by way of leading evidence on that documents upon which the petitioner was declared full time casual labour was forged. Therefore, in absence of any finding of forgery which is required to be given by the respondents or by the criminal Court, the petitioner is entitled for reinstatement in service in view of the fact that the Tribunal while deciding OA vide judgment dated 10 18.8.1992 has held that the termination of the services of the petitioner will be rendered illegal for want of compliance with the provisions of Section 25 – F of the Act of 1947. In this view of the matter, I am of the opinion that there is no finding by the criminal Court as well as by the respondents that the documents filed by the petitioner for the purpose of declaring him full time casual labour were forged documents. Therefore, the petitioner is entitled for reinstatement in service. It is also very important fact that no departmental enquiry is conducted by the respondent department for the allegation of filing forged documents. In view of above discussions, the writ petition filed by the petitioner is allowed. The order dated 28.2.1992 is hereby quashed and the order dated 24.12.1990 passed by the respondents for grant of status of full time casual labour is restored. As a result, the petitioner will be entitled for all consequential benefits. (GOPAL KRISHAN VYAS), J. arun