WP(C) 3141/2007 BEFORE HON’BLE MR. JUSTICE AMITAVA ROY JUDGMENT & ORDER (ORAL) The award dated 13.3.2006 made by the Labour Court, Guwahati in Reference Case No. 20/2003 sustaining the dismissal of the writ petitioner herei n as a disciplinary measure and also the recovery of an amount of Rs. 10,304/- f rom the subsistence allowance due to him is in assailment in the instant petitio n. 2. I have heard Ms MD Choudhury, learned counsel for the petitioner and Mr SK Borkataki, learned counsel for the respondent Nos. 3 and 4. Mr BJ Gho sh, learned State counsel has also been heard. 3. M/s Assam Samabai Resham Pratisthan (for short, hereinafter refe rred to as ’the Society) is admittedly a registered Cooperative Society under th e administrative control of the Department of Handloom & Textile, Govt. of Assam . The petitioner who, at the relevant point of time, was the Manager-in-Charge o f the Society was initially placed under suspension with effect from 10.10.83 vi de a letter to that effect issued by the Secretary thereof and was eventually di smissed from service with effect from 1.7.84 by the letter dated 30.5.89. This w as on a charge of misappropriation of an amount of Rs. 10,304.15 by the petition er in the aforementioned capacity from the funds of the Society. Parallelly a pr osecution was also launched against him with the same imputation and on the comp letion of the investigation in connection therewith, he was chargesheeted under Section 408/477(A) of the Indian Penal Code (for short, hereinafter referred to as ’the Code’). In the corresponding G.R. Case No. 3450/83 the learned Trial Cou rt by its judgment and order dated 30.12.91 acquitted the petitioner on benefit of doubt. The State preferred Govt. Criminal Appeal No. 3/92 against such acquit tal. By order dated 30.9.97, this Court dismissed the appeal. It was thereafter that the petitioner approached this Court with an application under Article 226 of the Constitution of India which was registered as Civil Rule No. 1404/98 with the grievance that inspite of his acquittal from the criminal charge of misappr opriation the Society had not taken any decision for his re-instatement in servi ce. 4. This Court on 26.6.98 disposed of the aforementioned writ petiti on directing the respondents therein to do the needful and to pass appropriate o rders in accordance with law. An enquiry was thereafter initiated by the Society in which notice was issued to the petitioner to attend and participate in the s ame. On receipt of the notice from the one-man Enquiry Committee, the petitioner presented himself on 15.6.99 and prayed for some time for his response. On the next date fixed i.e. 22.6.99, the petitioner sought to lay some documents in the enquiry and on being queried by the Enquiry Officer he made his intention clear of not participating therein in any other manner. The documents which were offe red by him and appended to the application dated 22.6.99 submitted before the En quiry Officer are as follows:- i) copy of the order dated 30.12.91 passed by the learned Judicial Magistra te, Hajo in G.R. No. 3450/83; ii) copy of the order dated 30.9.97 passed by this Court in Govt. Crl. Appea l No. 3/92; iii) copy of the order dated 26.6.98 of this Court in Civil Rule No. 1404/98; iv) copy of the decision taken by the Society to re-instate him in service. 5. Admittedly, the petitioner thereafter did not take part in the e nquiry which ended with a report dated 14.7.99 holding the charge of misappropri ation levelled against him to be proved. A perusal of the enquiry report disclos es in addition to the facts bearing on the aspect of the participation of the pe titioner in the enquiry, the steps taken by the Enquiry Officer in conducting th e probe and the reasons in support of his ultimate conclusion. It appears theref rom further that the documents offered by the petitioner on 22.6.99 had not been accepted as the same were included in the records already submitted by the Soci ety in connection with the enquiry. This report was thereafter discussed in the meeting of the Managing Committee held on 18.7.99 following which the order of d ismissal dated 19.7.99 was passed. 6. This decision came to be challenged before this Court by the pet itioner in WP(C) 4215/99 which was dismissed on 30.7.2001 on the ground that the same was not maintainable. This decision was sustained in appeal i.e. W.A. No. 394/2001 vide the judgment and order dated 26.11.2001 rendered therein. It was t hereafter that an industrial dispute was perceived in the context of the dismiss al of the writ petitioner and the same was referred to the learned Labour Court, Assam for adjudication. In Reference Case No. 20/2003 that was registered, the following were the terms of reference:- i) Whether the Management of M/s. Assam Samabay Resham Pratisthan Ltd. is j ustified in issuing dismissal notice against the workman from hi service for the second time in addition to the first dismissal notice issued previously even af ter the direction of the Hon’ble Gauhati High Court vide writ petition No. 1404/ 98 dated 26.6.98 to pass appropriate order relating to the service matter of the workman ? ii) If not, whether the workman is entitled to re-instatement in service wit h all backwages or whether he is entitled for any other relief thereof ? 7. In the reference proceedings both the writ petitioner and the So ciety participated. In addition to their pleadings they also adduced evidence in support of their respective pleas. By the impugned award, however, the referenc e was answered against the writ petitioner. He has, thus, approached this Court for redress. 8. Whereas the petitioner has contended that the charge levelled ag ainst him is baseless and that in the face of the judgment and order dated 26.6. 98 passed by this Court in Civil Rule No. 1404/98 following his acquittal in the criminal case, the impugned award is per se unsustainable in law and on facts, the respondent Society has maintained that the petitioner having himself admitte d the imputation and offered to refund the money involved, his acquittal in the criminal case is of no significance vis-à-vis the disciplinary action taken agai nst him. The respondent Society has further asserted that as by the judgment and order dated 26.6.98 passed by this Court in Civil Rule No. 1404/98 neither the dismissal of the petitioner had been interfered with nor he had been directed to be re-instated in service, the initiation of further investigation in continuat ion of the first enquiry is valid and that the award being based on the material s on record, no interference therewith in the exercise of this Court’s power of judicial review under Article 226 of the Constitution of India is warranted. The respondent Society in its affidavit-in-opposition in the instant proceeding has also maintained the same stand. 9. The learned counsel for the parties have essentially argued in t he same lines, however, referring to in course thereof, the documents having a b earing thereon. 10. The pleadings on record and the statements made have been duly t aken note of. I have perused as well the original records of the reference conta ining inter alia the copies of the documents including the resolution dated 23.9 .83 of the Society as well as the statement of the same date of the petitioner s igned by him with the endorsement that the contents thereof were true. The lette r dated 25.9.83 addressed by him to the Secretary of the Society has also been t aken note of. Whereas the resolution dated 23.9.83 reveals a finding of the Mana ging Committee of the Society on the basis of the relevant audit report that an amount of Rs. 10.304.15 had been misappropriated by the petitioner, his statemen t dated 23.9.83 though discloses shortage of the said amount, contains a denial by him of the charge. He, however, thereby had accepted his responsibility for t he shortfall in the amount he being at the relevant point of time the Manager-in -Charge of the Society at the branch involved. The petitioner’s letter dated 25. 9.83 contains a clear undertaking on his part to refund the amount of Rs. 10,000 /- detected to be short in the Society’s funds. The resolution dated 23.9.83 fur ther reveals that before concluding on the guilt of the petitioner he was allowe d to participate in the proceedings of the Managing Committee in course whereof his statement was also recorded. According to the respondent Society, as inspite of his undertaking to refund the amount of Rs. 10,000/- he failed to do so, he was placed under suspension on 10.10.83 and eventually dismissed with effect fro m 1.7.84. 11. The order of acquittal in the criminal case registered against h im, in the opinion of this Court, per se does not debar the initiation of a disc iplinary proceeding against the petitioner. Noticeably, this Court in its judgme nt and order dated 26.6.98 in Civil Rule No. 1404/98 did neither interfere with his dismissal nor it debarred the respondent Society from making further investi gation administratively. It was, therefore, open for the respondent Society, in the estimate of this Court, to initiate a fresh enquiry or make further scrutiny on the charge against the petitioner for taking appropriate disciplinary action , if so advised. Though the petitioner has seriously questioned this move of the respondent Society on the ground of undue delay, in view of the background of t he litigation centering around his dismissal which culminated only on 26.6.98, i n absence of any legal bar therefor, this plea appears to be unconvincing. As th e records reveal, the petitioner unsuccessfully challenged his order of dismissa l dated 19.7.99 before this Court prior to the controversy being taken up for ad judication under the Industrial Disputes Act, 1947. 12. A perusal of the award reveals that the learned Labour Court, am ongst others, had duly examined the aspect of fairness or otherwise of the enqui ry that was launched after the judgment and order dated 26.6.98 in Civil Rule No . 1404/98. As referred to hereinabove, on receipt of the notice thereof the peti tioner appeared and prayed for time which was allowed. On 22.6.97, the next date fixed, he submitted the aforementioned documents and expressed his disinclinati on to further participate in the enquiry. In the endorsement made by the Enquiry Officer in response to his said stand, it was made clear that in view thereof t he enquiry would proceed ex-parte. The learned Labour Court noticing the above d evelopment did not interfere or annul the enquiry on the ground that it was inva lid or unfair. It, however, held that the dismissal recorded against the petitio ner on 30.5.89 during the pendency of the criminal trial against him was non-est . 13. The learned Labour Court in addition to the enquiry report [exhi bited before it as Exhibit-10 (Exhibit-G)] also took note, amongst others, of th e statement dated 23.9.83 of the petitioner as above and his letter dated 25.9.8 3 (Exhibit-6 and 4 respectively). It also analyzed the evidence of the witnesses of the Management/ Society and the petitioner. To be absolutely sure about the authorship of the letter (Exhibit-4), the learned Labour Court along therewith s ent some other documents to the Forensic Science Laboratory, Assam for examinati on thereof, whereafter, on receipt of the report with regard thereto, the Senior Scientific Officer of the Forensic Science Laboratory was examined as a Court W itness who affirmed that the signature appearing on Exhiit-4 was that of the wri t petitioner. Referring to various clauses of the Rules and Regulations of the r espondent Society applicable (Exhibit-8) in the reference proceeding, the learne d Labour Court held that in view of the materials on record, more particularly, the statement of the writ petitioner as well as the contents of his letter dated 25.9.83, the disciplinary step of dismissal was sustainable in law. It, however , held that such dismissal was to be given effect to from 19.7.99 as the earlier decision to the same effect was invalid. Sustaining the decision as above, the learned Labour Court directed payment of subsistence allowance at the rate of 50 % to the writ petitioner from 10.10.93 to 18.7.99 less the amount of Rs. 10,304/ - to be recovered from him. 14. The scope of scrutiny of a determination made by an industrial C ourt under the Industrial Disputes Act, 1947 in a reference in the exercise of t his Court’s power of judicial review under Article 226 of the Constitution of In dia is constricted and interference therewith is called for if the same suffers from an apparent error of law or vitiation due to consideration of extraneous fa ctors or non-consideration of the relevant determinants. In the backdrop of the materials on record, the impugned award if tested on the above touchstone, in th e opinion of this Court, does not call for total effacement thereof. Though noti ceably the learned Labour Court had proceeded on the basis that the statement ma de by the petitioner before the Managing Committee of the respondent Society on 23.9.83 as well as the contents of his letter dated 25.9.83 amounted to his conf ession of guilt vis-à-vis the charge of misappropriation it is wholly not borne out by the records. To reiterate, the writ petitioner in his statement dated 23.9.83 admitted his responsibility as the Manager-in-Charge of the concerned B ranch of the respondent Society in the shortfall of an amount of Rs. 10,304.15. He, however, did not in categorical terms admit the charge of misappropriation b ut failed to refund the amount as undertaken by him. His acquittal at the crimin al trial per se, however, would not, in the opinion of this Court, absolve him at least of his failure to prudently discharge his responsibility as the Manager -in-Charge of the respondent Society resulting in its financial loss to the exte nt of Rs. 10,000/-. If in the opinion of the respondent Society such a lapse cal ls for a disciplinary action of his dismissal and the same is supported by the m aterials on record, the mere denial of the delinquent officer, in the opinion of this Court, would not be adequate enough to give him a clean chit. This is more so as public money is involved and that the writ petitioner at the relevant poi nt of time was holding an office of responsibility as the guardian thereof. The learned Labour Court while analyzing the evidence was mindful of this aspect as well. The finding on the charge against the writ petitioner can otherwise be sus tained on a cumulative consideration of the evidence adduced in the reference, h is denials notwithstanding. The ultimate conclusion of the learned Labour Court, thus, cannot be denounced as based on ’no evidence’. 15. However, while sustaining the award to the extent of upholding t he dismissal of the petitioner, it is considered appropriate in view of his deni al of the charge of misappropriation, the considerable time lag and the series o f litigations, to absolve him of his liability to refund the amount of Rs. 10,30 4.15. 16. The petition, therefore, is partly allowed. The dismissal of the writ petitioner is sustained. He, however, would be entitled to his subsistence allowance from 10.10.83 to 18.7.99 at the rate of 50% per month. The direction for recovery of the amount of Rs. 10,304/- from his said dues, as recorded in th e impugned award is set aside. The respondent Society is directed, as prayed for on his behalf, to release his dues as above within six weeks herefrom. No costs .