IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) THURSDAY, THE THIRTIETH DAY OF APRIL TWO THOUSAND AND NINE PRESENT THE HON'BLE MR JUSTICE V.ESWARAIAH & THE HON'BLE MR JUSTICE SANJAY KUMAR WRIT APPEAL No.198 of 2001 (Writ Appeal under Clause 15 of the Letters Patent against the Order dated 08/08/2000 in WP No.903 OF 1994 on the file of the High Court.) Between: The General Manager Singereni Colleries Comany Ltd.Ramagundam Area -1 Godavarikhani , Karimnagar Dist ..... APPELLANT AND 1 Industrial Tribunal-I Chandra Vihar , M.J.Road Hyderabad. 2 Edla Chinna Mallaiah R/o. 1457 , Tilak Nagar, Ex- Shotfirer Godavarikhani , karimnagar Dist. .....RESPONDENTS Counsel for the Appellant: MR.K.SRINIVASA MURTHY Counsel for the Respondent No.2: GP FOR LABOUR The Court made the following: Form-NIC-OGS/WA {LOBIS} THE HON'BLE MR JUSTICE V.ESWARAIAH & THE HON'BLE MR JUSTICE SANJAY KUMAR WRIT APPEAL No.198 of 2001 JUDGMENT: (per Hon’ble Sri Justice V.Eswaraiah) The unsuccessful writ petitioner, namely Singareni Collieries Company Limited filed this writ appeal against the order of a learned Single Judge dated 08.08.2000 in dismissing the W.P.903/1994 which confirmed the award of the Industrial Tribunal, Hyderabad (hereinafter referred to as “the Tribunal”) in I.D.No.62/1988, dated 19.07.1993. 2. The deceased-2nd respondent was the workman who filed the said Industrial Dispute on the file of the Tribunal questioning the action of the appellant-Management in dismissing him from service as illegal and ultra vires and for reinstatement with back wages and other attendant benefits. The Tribunal passed award in favour of the workman by Award dated 19.07.1993. Aggrieved by the same, the appellant-Management filed W.P.903/1994. A learned single Judge of this Court on re-appreciation of oral and documentary evidence and the material available on record dismissed the said writ petition by order dated 08.08.2000, confirming the award of the Tribunal. Against which, the present writ appeal is filed. 3. The parties herein are referred to as ‘Workman’ and ‘Management’ for the sake of convenience. 4. The Workman-Edla Chinna Mallaiah was born on 18.01.1929 and appointed as Shot-firer on 17.04.1981 and his services were regularized with effect from 23.03.1982 after completion of the probation period. While so, the Management dismissed Workman from service w.e.f.05.02.1985. The Workman raised an industrial dispute and the said dispute was referred by the Government of India, Ministry of Labour, vide its Order dated 10.06.1988 under Sec.10(1)(d) (2-A) of the Industrial Disputes Act, 1947 between the parties to the Tribunal for adjudication as to– “whether the action of the Management of M/s.Singareni Collieries Company Limited, Area-I, Ramagundam Division, PO Godavarikhani, District Karimnagar (A.P) in dismissing Workman-Edla Chinna Mallaiah, shot-firer, GDK-2A Incline from service w.e.f.05.02.1985 is justified? If not, to what relief the workman is entitled?” 5. It was the contention of the workman that on 09.01.1984 he could not attend the duty due to some unavoidable domestic work. On the said date at about 6.40 p.m. while he was on his way to his residence from a shop, he was taken to the police station by Mr.P.Kanakaiah and Ramaswamy who were also the employees of the Company. After that, he was made to face trial in a Criminal Court and the Company vide its proceedings dated 30.01.1984 served a charge sheet alleging that the workman, on 09.01.1984, during the II shift without booking his ‘In’ time at the manway went to the main Magazine at 3.20 p.m. and took 40 detonators under account M.No.3 at GDK-2A Incline. He neither turned up for duty at the Mine after taking detonators nor returned those detonators at the Magazine. At 6.45 p.m. on the same day he was caught by Mr.P.Kanakaiah, General Mazdoor and Ramaswamy, another worker of the Building Department on the road between the Mazagine and GDK-3 Incline and at that time the workman was not in possession of the detonators and he did not give any proper information about the detonators when questioned by the Colliery Manager. The above acts of the workman amounts to misconduct under the Companies Standing Orders. 6. For the said charge, the Workman submitted his explanation dated 03.02.1984 denying the allegations. But the Company ordered departmental enquiry and while the enquiry was going on, the Judicial Magistrate of First Class, Sultanabad acquitted him on merits in CC.300/1984, dated 15.10.1984 for the charge leveled against him. But the said judgment of the Criminal Court was not taken into consideration in the departmental enquiry and an adverse report was submitted, erroneously finding that the charge leveled against the workman was proved. Based on the said enquiry report, the Management removed the petitioner from service w.e.f.05.02.1985. 7. It is the case of the Management that the workman came to the Mine and went to Magazine Clerk and has drawn 100 cartridges and 40 detonators, and to get over the charge of theft, the workman has chosen to make an allegation that he had not at all attended the duty on 09.01.1984. It is stated that the workman has gone Magazine without putting his in-muster at Manway. It is stated that though 359 detonators were required for seven machines, the officials came to know that extra detonators were drawn by the workman, and he was caught red handed between the Magazine and GDK-3 Incline by Mr.P.Kanakaiah, General Mazdoor and Ramaswamy of Building Department. The contention of the workman that he was not on duty on 09.01.1984 and that while he was on the way to his house from a shop he was taken to the police station by the said P.Kanakaiah and Ramaswamy was not accepted. It is stated that the police booked a case against the workman in CC.300/1984 on the file of the Judicial Magistrate of First Class, Sultanabad and there are no illegalities and irregularities in the enquiry report. The allegation that the domestic enquiry and criminal enquiry were done in parallel was denied stating that the domestic enquiry is different from a criminal enquiry. It is stated that the detonators are the licenced items and no normal citizen would possess without licence. The workman being shot-firer is competent to hold detonators within the Mine premises but not the outside. The workman collected detonators from the Magazine Clerk without booking his in-muster. Thus, the Management contended that the dismissal of the workman from service is justified. It is stated that the scope of the trial in a criminal case i.e. in CC.300/1984 is different from that of the domestic enquiry. 8. On behalf of the workman, the depositions made and the judgment copy in the criminal case were marked as Exs.XW-1 to XW- 7. On behalf of the Management, one H.V.N.Sastry was examined as MW 1 and the proceedings of the domestic enquiry such as charge sheet, explanation, enquiry proceedings, dismissal order, attendance register, Daily Explosives Issue Consumption and Return Register, pay sheets of GDK-2A Incline for the relevant period were marked as Ex.M1 to M10. 9. The Tribunal, after considering the rival contentions, oral and documentary evidence adduced on behalf of both the parties, held that the workman did not attend the duty on 09.01.1984 and he had not taken 40 detonators from the Magazine and therefore, the question of issuing 40 detonators by the concerned clerk of Magazine without following the Rules and Regulations does not arise. It is the duty of the Clerk of the Magazine to see whether the shot-firer has put “In” muster and then the detonators be issued to him. Without following any Rules and Regulations, the Clerk who issued the detonators cannot blame the workman or make him a scape goat. Accordingly, the Tribunal held that on 09.01.1984 at about 6.40 p.m. the workman had been to the village Sundilla and the two persons viz., P.Kanakaiah, General mazdoor and Ramaswamy of Building Department, who are said to have caught hold of the workman are no way connected with the workman and they are not authorized to catch hold of the workman and their action goes to show that there was a pre-plan to somehow involve the poor workman in a theft case. The Tribunal disbelieved the version of the Management that the workman taken away 40 detonators, and admittedly the workman was not found with the said detonators in his possession. The judgment in CC.300/1984 on the file of the Judicial Magistrate of First Class, Sultanabad was filed before the Tribunal under which the workman found not guilty and acquitted for the charges leveled against him. The Tribunal also held that the charges framed against the workman are not proved and he was found not guilty of the charge framed against him, and accordingly the Management was directed to reinstate the workman in service with back wages and other attendant benefits. The said award was also confirmed by a learned single Judge of this Court. 10. The learned counsel appearing for the Management submits that the order of the learned Single Judge in confirming the award of the Tribunal is illegal and unsustainable and the parallel proceedings i.e. Departmental enquiry and the criminal proceedings are not prohibited and placing reliance on the judgment of the Criminal Court by the Tribunal is illegal and erroneous. The workman was at fault having signed the Attendance Register, collected the detonators and the cartridges, which are misused, and therefore, the acquittal of the workman has no bearing on the departmental enquiry. It is stated that the Tribunal has not given any specific finding that the workman had any enemies in order to build up a case against him and therefore, the award of the Tribunal as confirmed by the learned Single Judge is liable to be set aside. It is further stated that the Tribunal as well as the learned single Judge of this Court have practically got influenced by the acquittal of the workman in a criminal case and therefore, the said finding of the Tribunal based on the judgment of the Criminal Court holding that the charges were not proved is illegal and unsustainable. 11. During pendency of the writ appeal the workman died on 30.06.2004 and his legal representative was brought on record on an application filed by the Management. 12. It was the specific case of the workman before the Enquiry Officer, as is evident from the explanation filed by the workman that he did not attend the duty on 09.01.1984 and hence the question of taking 40 detonators at 3.20 p.m. from the Magazine does not arise and the said allegation was completely false and without any basis. It was stated that it was completely a pre-plan to involve the workman in order to cover up the latches and the offence committed by some others. It was further stated that in fact on 09.01.1984 at about 6.40 p.m. the workman had been to Sundilla village after consuming some liquor and while he was on his way to his house, the said Kanakaiah and Ramaswamy taken him in a Jeep to the police station without assigning any reasons and the said two persons are unknown to him. The criminal case registered against him was a false one and without any basis. The charges framed in departmental enquiry are far from truth and admittedly even according to the charge sheet no detonators were found in his possession. In reply to the allegation that the Magazine Clerk has delivered the detonators to the workman, it was stated that the concerned Magazine Clerk in order to hide and escape from his guilt, might have thrown the blame on him in collaboration with some workers. It was stated that the signature in the so-called in- muster which was put initials by somebody do not belong to him. The signature in-muster was in Telugu, but he always put his initial in English in the short form in the Explosives Issue Consumption & Return Register and he never signed in Telugu. The workman has specifically denied the alleged initials said to have been signed by him on 09.01.1984 and stated that the said signature belongs to somebody, but do not belong to him. The Enquiry Officer did not find favour with the said explanation and also did not accept the contention of the workman about his absence on 09.01.1984 in II shift. Admittedly, no detonators were found in his possession even according to the charge framed in the Departmental Enquiry as well as the charge sheet filed in the criminal case. But it is stated that though the initials in the previous dates were put in English, but the initial on the alleged date of offence i.e. on 09.01.1984 was put in Telugu. The Enquiry Officer has assumed and presumed that the workman signed in Telugu in the Explosives Issue Consumption and Return Register contrary to the earlier signatures which were put in English in order to mislead the enquiry proceedings that his signature on 09.01.1984 in the Explosives Issue Consumption and Return Register was a forged one. The Enquiry Officer has drawn an inference that the workman went to Magazine and collected the detonators as usual and misused the same. The contention that some other person had drawn the detonators on the forged signature of the workman was disagreed. 13. The charge in the departmental enquiry was that the workman has collected 40 detonators but he did not return the same at the Magazine, and at about 6.40 p.m. on the same day P.Kanakaiah and Ramaswamy caught hold of him, but at that time the detonators were not found in his possession. 14. The charge in the criminal case was also similar to the effect that on 09.01.1984 the workman shot-firer dishonestly collected 40 detonators from Magazine in the II shift without making any account and did not hand over the same and utilized the said detonators for his own purpose and absconded subsequently. 15. In CC.300/1984, the learned Magistrate examined the prosecution witnesses i.e. PW 1 H.V.M.Sastry, who was also examined by the Tribunal as a witness on behalf of the Management and other witnesses, but the so-called Kanakaiah and Ramaswamy were not at all examined either by the Enquiry Officer or by the Criminal Court. The learned Magistrate noticed the several lapses committed by the prosecution observing that according to the police the property was recovered from the possession of the accused, but according to the charge sheet, no property was recovered from the accused, and with regard to the attendance of the accused on that day, it was stated that the said Register was not at all recovered. It was stated that the case booked against the workman was concocted one and a fabricated case against the workman and by reason of the registration of the said false criminal case, the workman lost his job. It was further held that the Investigating Officer alone is responsible for registering a false case, which led for the loss of the job of an innocent workman. It was held that the prosecution failed to prove the guilt of the accused beyond all reasonable doubt. 16. The Tribunal not only considered the judgment in the criminal case but also independently considered the entire evidence that was available before the Enquiry Officer as well as before the Tribunal and recorded a finding that the charge against the workman was not proved and therefore, the dismissal of the workman from service is not justified. 17. We are of the opinion that the Management was not able to prove the charge leveled against the workman as admittedly the so- called detonators were not found in possession of the workman and the persons viz.P.Kanakaiah and Ramaswamy who have taken the workman to the police station were not at all examined either in the Departmental Enquiry or in the criminal case. There are lapses in the charge sheet before the Criminal Court and the enquiry proceedings before the Enquiry Officer with regard to the said allegation. The so- called persons are neither colleagues nor co-workers of the workman. It was not known who instructed them to catch hold of the workman and to take him to the police station. It was also not known why the Management has not given any complaint to the police. It is also not known why the Management has not taken any action against the concerned Magazine Clerk or against the persons connected for the latches on their part. It was also not known how a person will be able to take the detonators from the premises of the company, which has surrounded by a compound wall with full security. The departmental action has been initiated solely based on a registration of a criminal case. The Management has utterly failed to substantiate its contention about the alleged charge in the criminal case through the prosecution as well as in the departmental enquiry. Therefore, we are of the opinion that the Enquiry Officer erroneously held that the charge was proved which was rightly set aside by the Labour Court. On a perusal of the enquiry proceedings, award of the Tribunal and the judgment of the criminal case, we are of the opinion that the Tribunal as well as the learned Single Judge rightly held that the workman was an innocent person and he was not concerned with the alleged offence. We do not see any infirmity legal or otherwise to interfere with the said findings. As the workman was superannuated on attaining the age of 60 years by 17.01.1989 and the Management has taken the risk of questioning the award by filing the writ petition in 1994 and also the writ appeal, the legal heir of the workman is entitled for all the consequential benefits as per the Award of the Tribunal. The Writ Appeal is accordingly dismissed. No order as to costs. _____________________ V.ESWARAIAH,J ____________________________ SANJAY KUMAR,J Dated: 30.04.2009 Dsr .... REGISTRAR // TRUE COPY // SECTION OFFICER To 1 Industrial Tribunal-I Chandra Vihar , M.J.Road Hyderabad. 2 2. 2CCs to 3. 2CD copies