CIVIL WRIT PETITION NO.14977 OF 2010 :{ 1 }: IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH DATE OF DECISION: AUGUST 23, 2010 Suraj Bhan .....Petitioner VERSUS The Shahbad Co-operative Sugar Mill Ltd., Shahbad Markanda and another ....Respondents CORAM:- HON'BLE MR.JUSTICE RANJIT SINGH 1. Whether Reporters of local papers may be allowed to see the judgement? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? PRESENT: Mr. R. C. Chaudhary, Advocate, for the petitioner. **** RANJIT SINGH, J. Services of Suraj Bhan, Assistant Cashier, working in Cooperative Sugar Mill, Shahbad Markanda, District Kurukshetra, were terminated on 16.5.1996 on account of allegation of embezzlement. Pleading that the termination was illegal, arbitrary and in violation of principles of natural justice, the petitioner has filed a writ petition, seeking quashing of the award passed by Labour Court, Ambala on 29.10.2004, besides seeking setting-aside the order of his termination. The petitioner was appointed as a Cane Clerk with the CIVIL WRIT PETITION NO.14977 OF 2010 :{ 2 }: respondent-Sugar Mill on 18.12.1984. He was promoted as Assistant Cashier on 12.6.1990. On 14.2.1996, the respondent-Mill had written a letter, giving list of 57 cheques of different dates amounting to Rs.88,65,200/-, asking the petitioner as to how this amount was outstanding from the Dealers. In response, the petitioner stated that the parties had deposited a sum of Rs.47,70,595/- and the balance amount of Rs.40,84,605/- was outstanding. On 24.2.1996, a charge sheet was served to the petitioner, alleging that he had taken cheques of Rs.40,84,605/- from Sugar Selling Agents and Sugar Trading but had not deposited the same in the accounts of the respondent-Mill. Second charge was that the petitioner had cheated the Mill fraudulently and put the mill to the financial losses. The petitioner submitted his reply to the charge sheet on 25.2.1996. As per the petitioner, whole matter was in the knowledge of Chief Account Officer and the outstanding amount, which was shown as Rs.88,65,200/- was here shown as Rs.40,84,605/-, which would also be adjusted and request was made that the parties should be given time so that they may deposit their whole amounts. The Mill, however, appointed an Enquiry Officer, who initiated the proceedings against the petitioner. The petitioner complains that the Enquiry Officer held the exparte proceedings without giving any opportunity of hearing and held the charge proved against the petitioner, finding him guilty for not depositing a sum of Rs.18,94,100/-. The Managing Director of the respondent-Mill found the charges proved against the petitioner as the petitioner did not deposit the cheques received by him. The petitioner was also found to have prepared false documents to cause a gain to himself and CIVIL WRIT PETITION NO.14977 OF 2010 :{ 3 }: resultant loss to the Mill. The Managing Director accordingly held that it would not be in the interest of the Mill to retain the petitioner in service and passed an order on 15.6.1996 to direct recovery of the amount of Rs.18,94,100/- alongwith interest from the petitioner. The petitioner filed an appeal against the same on 23.11.1996. The same, however, was dismissed. It appears that the petitioner had filed a demand notice against his termination and the Government referred the dispute to the Labour Court on 4.2.2004. The petitioner, however, filed an application before the Labour Court that he did not wish to press the reference and that he wanted to withdraw the same. As per the petitioner, still the Labour Court did not consider his request and passed an award dated 29.10.2004. The petitioner was proceeded exparte but still it is mentioned that he was represented by Sh.S.P.Sharma. Reference is then made to a civil suit filed by the respondent-Mill for recovery of the amount from the Sugar Agents. The petitioner would point out that no mention was made in regard to the recovery of an amount of Rs.18,94,100/-, directed against him to plead his innocence. Though, the Labour Court had given this award, against which the petitioner did not take any appropriate action in accordance with law till now, but he appears to have filed a revision petition before the Financial Commissioner against the orders dated 16.5.1996 and 23.11.1996. This revision was filed only on 30.4.2008. The Financial Commissioner considered the fact that the petitioner was dismissed on account of fraud of Rs.18,94,100/- whereas the respondent Sugar Mill had filed a civil suit against the dealers and CIVIL WRIT PETITION NO.14977 OF 2010 :{ 4 }: agents. The Financial Commissioner accordingly viewed that if the petitioner was guilty of embezzlement, then the Sugar Mill was not supposed to file civil suit for recovery of the amount from the dealers/agents. The Financial Commissioner also noticed that the Sales Manager was dismissed from the service on 22.5.1997 but was taken back in service on 15.5.1998. Sh.S.P.Sharma, Chief Accounts Officer was also charge sheeted and his services terminated but was taken back in service subsequently. Finding that the Labour Court had no jurisdiction in respect of a dispute of Society, the Financial Commissioner remanded the case back to the Managing Director to hear the same on merits. Copy of the order is annexed with the petition as Annexure P-5. The Managing Director had, thus, remanded the case to the respondent Mill on 1.7.2009. The respondent-Mill thereafter filed Civil Writ Petition No.11965 of 2009 before this Court. The writ was allowed and it is held that the award by the Labour Court, which was published in the Gazette could not in any way be modified by any other authority except if a fresh employment is offered on a fresh terms by an employer. It is also observed that the employer is now sought to be compelled by the Registrar of the Cooperative Society to reinstate the petitioner by purported exercise of his power to set-aside the order of dismissal, which was made on 16.5.1996. This Court observed that order dated 16.5.1996 has obtained imprimatur from a Labour Court and, thus, it is not assailable by any other authority, unless the award had been subjected to challenge in any appropriate proceedings before this Court. The plea by the petitioner, that writ petition could not have CIVIL WRIT PETITION NO.14977 OF 2010 :{ 5 }: been filed by him against the award and the remedy was only by way of revision, is held not tenable since an interference, which was sought, was on the ground of complete lack of jurisdiction and it was well marked exception to an alternative efficacious remedy that the Court will interfere under Article 226 of the Constitution, if there is an exercise of power by an authority, which It did not have and had exercised jurisdiction that did not vest in the authority. The Court accordingly held that after dismissal of the case by the Labour Court, there could not have been any resort to the proceedings before a Registrar of the Cooperative Society and the order passed was one without jurisdiction. The relevant finding given by this Court in Civil Writ Petition No.11965 of 2009 is as under:- “The case has to be dealt with from a fundamental aspect that when there was an award passed by the labour Court and it was also published in the gazette, the award cannot be in any way modified by any other authority, except when a fresh employment is offered on fresh terms by the employer. It is not the case of the employer that he has given to him employment on new terms but the employer is now sought to be compelled by a direction from the Registrar of Cooperative Societies to reinstate him in purported exercise of his power to set aside an order of dismissal which was made on 16.5.1996. The order dated 16.5.1996 has obtained an imprimatur from the Labour Court and it is not assailable by any other authority unless the award had been a subject of challenge in appropriate proceedings before CIVIL WRIT PETITION NO.14977 OF 2010 :{ 6 }: this Court. Even an objection by the 1st respondent that the writ petition could not have been filed and the remedy was only by way of revision, is not tenable since an interference which is sought is on the ground of a complete lack of jurisdiction and it is a well marked exception to an alternative efficacious remedy that the Court will interfere under Article 226, if there is an exercise of power which he did not have or the authority was exercising a jurisdiction that did not vest in him. I have held that after the dismissal of the case by the Labour Court, there could not have been any resort to a proceeding before the Registrar of Cooperative Societies and the order passed was one without jurisdiction.” The abovesaid order was passed by this Court after affording due opportunity of hearing to the present petitioner, who was impleaded as 2nd respondent in the said petition. The petitioner's plea that he was absolutely innocent and should have an opportunity to challenge the award, was also not accepted on the ground that the Labour Court award had become final and so the contention by the petitioner that he was innocent, was not possibly acceptable as the finality of the award would conclude the issue even on merits. The plea of the petitioner that the Labour Court had passed the award despite application filed by the petitioner to withdraw the reference, was also obliquely dealt with by observing that it was incomprehensible as to how an application for withdrawal could have been made without the knowledge of the counsel or if he had known, how he had prosecuted the case before the Labour Court after CIVIL WRIT PETITION NO.14977 OF 2010 :{ 7 }: application for withdrawal. This Court further went on to observe that this still was not an issue before it and observed that the petitioner would be at liberty to assail the award in a manner which is permissible in law. The impugned proceedings challenged in the said writ petition were quashed and the writ petition was allowed. The petitioner has now filed this writ petition to challenge the award passed by the Labour Court dated 29.10.2004. The ground urged by the counsel for the petitioner to challenge the Labour Court award is that the same is illegal and bad in law and, thus, liable to be set-aside. The primary reliance in this regard is the order passed in the revision petition filed by the petitioner before the Financial Commissioner, leading to remand of the case back to the Managing Director leading to reinstatement of the petitioner. These orders have been set-aside, when the writ petition filed by the respondent-Mill was allowed by this Court. Thus, the challenge of the petitioner to the award passed by the Labour Court is required to be analyzed in the background that the petitioner would not be entitled to rely upon the order passed by the Financial Commissioner or on the order of his reinstatement. A perusal of the impugned award passed by the Labour Court would show that the petitioner had made bogus and false entries in the cash book regarding mode of receipt of payment. All these irregularities were detected at the time of checking. The explanation of the petitioner was sought and in response, the petitioner confessed his guilt and sought some time to deposit the amount. The petitioner was placed under suspension and served a charge sheet. The petitioner gave reply to the charge sheeted and CIVIL WRIT PETITION NO.14977 OF 2010 :{ 8 }: admitted the charges. He sought time to deposit the embezzled amount. Enquiry proceedings were ordered against the petitioner, in which he did not participate. Numerous letters were written to the petitioner, but he still did not join enquiry proceedings. A notice was also published in a newspapers, namely, `Punjab Kesri'. The Enquiry Officer, thus, conducted an exparte enquiry and gave his report, finding the petitioner guilty of the charges levelled against him. Accepting the finding of the Enquiry Officer, show cause notice was served on the petitioner. He still did not submit any reply. The petitioner was given opportunity to appear in person before the Punishing Authority, which he did not avail. The Disciplinary Authority then terminated the services of the petitioner on 16.5.1996. A criminal case was also registered against the petitioner, which was pending, when the reference was decided by the Labour Court. Before the Labour Court, the petitioner had not appeared and was proceeded exparte. The documents whereby the petitioner had confessed his guilt and had sought time to deposit the amount, were produced before the Labour Court by the Management witnesses. The Labour Court, thus, returned a finding that services of the petitioner were terminated after following due and proper procedure and was in accordance with law. The submission made by learned counsel for the petitioner that reference was not maintainable before the Labour Court can not be considered at this stage in the background that he himself had sought this reference and thereafter did not take any proceedings against the award passed by the Labour Court for almost six years. As observed by this Court, while allowing Civil Writ CIVIL WRIT PETITION NO.14977 OF 2010 :{ 9 }: Petition No.11965 of 2009, the award passed by the Labour Court was allowed to be published and was not put to any challenge before any Court. Even if the award was without jurisdiction, the same was required to be challenged. Rather, this issue apparently was concluded by this Court, when the Court has held that after dismissal of the case by the Labour Court, there could not have been any resort to the proceedings before the Registrar, Cooperative Society and this order passed was held to be without jurisdiction. The exercise of the jurisdiction by the Registrar, Cooperative Society, which is pressed as a ground to say that the Labour Court was not having jurisdiction, may not be now available to the petitioner. The petitioner has not impugned the order, Annexure P-7, passed in Civil Writ Petition No.11965 of 2009, decided on 8.4.2010. The delay on the part of the petitioner to challenge the award passed by the Labour Court also is not explained in any manner. The petitioner, thus, has kept silent and has allowed the order passed by the Labour Court to acquire finality. The doctrine of `Acceptance Sub Silentio' would apply in this case. The petitioner has allowed this situation to prevail and, thus, can be held bound by the doctrine of `Acceptance Sub Silentio'. There is, thus, no merit in the writ petition and the same is accordingly dismissed. August 23, 2010 ( RANJIT SINGH ) khurmi JUDGE