IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. L.P.A. No.1301 of 2009(O&M) Date of decision: 25.11.2009 Bhushan Kumar. -----Appellant Vs. M/s Management, Indian Sugar and General Engg. Corporation & others. -----Respondents CORAM:- HON'BLE MR. JUSTICE ADARSH KUMAR GOEL HON'BLE MR. JUSTICE GURDEV SINGH Present:- Mr. Vineet Chaudhary, Advocate for the appellant. --- ORDER: 1. This appeal has been preferred against order of learned Single Judge, quashing order of reference of industrial dispute, mainly on the ground that the same was stale. 2. The appellant workman was employed as cashier with the respondents. After he had rendered about eight years service, there was an allegation of his having committed embezzlement of huge amount of Rs.6,37,308/- on 31.10.1992. This led to lodging of FIR dated 5.11.1992 and also initiation of departmental proceedings by chargesheet dated 29.9.1993. An Inquiry Officer was appointed to conduct departmental inquiry. The Inquiry Officer held the charge of misconduct to be proved against the LPA No.1301 of 2009 workman. After following due procedure, order dated 7.6.1994 was passed, dismissing the workman from service. In the criminal case, trial Court vide order dated 15.12.2003 convicted the workman but on appeal, vide order dated 5.10.2007, he was acquitted. Thereafter, on 19.1.2008, the workman raised industrial dispute by serving a Demand Notice, seeking reinstatement and continuity of service with full backwages, which was referred for adjudication by impugned order dated 7.7.2008. 3. The Management challenged the order of reference on the ground that the dispute was stale. Order of termination was dated 7.6.1994 while Demand Notice was dated 19.1.2008. The workman was absent from duty from the date of alleged embezzlement i.e. 31.10.1992 and did not participate in the departmental proceedings nor challenged the order of termination from service. Since order of termination was not based on findings in the criminal trial, mere acquittal did not furnish any cause of action to the workman. Moreover, acquittal in criminal case did not appeal finding of misconduct in disciplinary proceedings. 4. Learned Single Judge allowed the writ petition and quashed the impugned reference. Reliance was placed on judgments of the Hon’ble Supreme Court in Nedungadi Bank Limited v. K.P. Madhavankutty and others 2000(2) SCC 455, Sukhmander Singh v. State of Punjab and another 1999(9) SCC 55, Manager, Reserve Bank of India, Bangalore v. S. 2 LPA No.1301 of 2009 Mani and others 2005(5) SCC 100, Shalimar Works Limited v. Workmen AIR 1959 SC 1217, Western India Match Co. Ltd. v. Workers Union 1970(1) SCC 225, Krishnakali Tea Estate v. Akhil Bhartiya Chah Mazdoor Sangh 2004 (8) SCC 200, Cholan Roadways Ltd. v. G. Thirugnanasambandam (2005) 3 SCC 241, Rattan Chander Samanta v. Union of India 1993(4) Supp SCC 67. Judgments relied on behalf of workman in Jai Bhagwan v. Management of the Ambala Central Cooperative Bank Limited and Another AIR 1984 SC 286, Sapan Kumar Pandit v. U.P. State Electricity Board and others 2001(6) SCC 222 and Haryana Land Reclamation and Development Corporation Limited v. Nirmal Kumar (2008) 2 SCC 366 were held to be distinguishable. Conclusion reached by the learned Single Judge is as under:- “ xx xx xx xx xx In view of the above, I am of the considered view that there being no reasonable, justifiable and cogent explanation on the part of respondent No. 3- workman for submitting his delayed demand notice after a period of 14 long years from the date of his termination, this Court has no option but to hold that the claim made by the workman through his demand notice dated 19.01.2008 is stale and at the time when the reference was made, no industrial dispute existed or even could be said to be apprehended. The demand raised by the respondent No. 3- workman for raising an industrial dispute was ex facie bad and incompetent. The reference made by the Government of Haryana after a lapse of about 14 years of the passing of the order of dismissal of the respondent No. 3- workman when there being no industrial dispute existing or even apprehended, cannot be said to be justified.......” 5. We have heard learned counsel for the appellant. 3 LPA No.1301 of 2009 6. Learned counsel for the appellant submitted that mere delay was no bar to raising of an industrial dispute, as held in Nirmal Kumar (supra). 7. We are unable to accept the submission. Observation relied upon in the said judgment is only to the effect that no formula of universal application could be laid down when delay would be a bar to making of fresh notice. This does not mean that the delay was irrelevant in every case. Only explanation furnished by the workman for not raising any industrial dispute for 14 years, was that criminal trial was pending, which has been held to be not a sufficient ground by the learned Single Judge in the facts and circumstances of the case. We do not find any material to hold that the view taken by learned Single Judge is erroneous. Mere acquittal in criminal trial did not furnish any fresh cause of action to the workman when order of termination was not based on proceedings in the criminal case, but on the basis of departmental proceedings. Yardstick adopted for conviction in the criminal case is different from yardstick adopted by the disciplinary authority for holding misconduct to be proved. 8. We, thus, do not find any ground to interfere with the view taken by the learned Single Judge. 9. The appeal is dismissed. (ADARSH KUMAR GOEL) JUDGE November 25, 2009 ( GURDEV SINGH ) ashwani JUDGE 4