ORDER
M.N. Raina, J.
1. This is a petition under Article 226 of the Constitution of India.
2. Abdul Rehman, non-petitioner No. 1, was at the material time an employee of the Central India Machinery . (CIMCO). Petitioner No. 2 was at the material time working as a fitter in the petitioner's factory; petitioner No. 1 is the factory manager.
3. The case of the petitioners is that on 7-9-1962 at about 8 P.M. Abdul Rehman was caught red-handed while committing theft of brass piece weighing about 5 lbs. of the value of Rs. 35 from the petitioner's factory. He was handed over to the police station. He was prosecuted for theft, but was acquitted by the trial Magistrate, vide Annexure R-1. As Abdul Rehman absented himself from duty and avoided to remain present till 28th September, 1962 without obtaining any leave or even applying for leave, the management treated him as having abandoned his job and his services were terminated with effect from 29-9-1962 and his name was also struck off the rolls.
4. Abdul Rehman filed an application in the Labour Court under Section 31(3) of the M.P. Industrial Relations Act on 3-1-1963 after giving an approach notice to the petitioner praying for his reinstatement, vide Annexure A-3. The application was made on the ground that he was falsely prosecuted on the charge of theft and that he could not file any application for leave as he was ill and under treatment. The petitioners opposed the application on several grounds, vide Annexure A-4. They wanted to adduce evidence of the misconduct of Abdul Rehman relating to the theft of the brass piece in order to justify their action against him. But the Labour Court disallowed them from adducing evidence in this connection. The Court held that the termination was not proper inasmuch as the non-applicant No. 1 could not obtain leave being ill and under treatment.
5. The petitioners were, therefore, directed to reinstate him with full back wages, vide order of the Labour Court dated 31-3-1967 (Annexure A-13). Against the said order the petitioners filed a revision petition before the Industrial Court which was dismissed (Annexure A-1). The Court while upholding the order of the Labour Court observed that the order of termination of the services of Abdul Rehman, non-petitioner No. 1 was liable to be set aside on the additional ground that it was in contravention of the provisions of Section 73 of the Employees' State Insurance Act. Being aggrieved by this order the petitioners have filed this petition for a writ quashing the order of the Labour Court and the Industrial Court and for other incidental reliefs.
6. Abdul Rehman, non-petitioner No. 1, has filed a return in which he has supported the orders of the Courts below. The non-petitioner No. 2 is the member of the Industrial Court who passed the impugned order and is as such a pro forma party to these proceedings.
7. The learned Counsel for the petitioners in the first place contended that the order of termination of the services of non-petitioner No. 1 was justified because he could be deemed to have abandoned his job having remained absent from duty without leave. In support of his contention he relied on the decision of this Court in Burhanpur Tapti Mills Ltd. v. State Industrial Court 1959 M.P.L.J. 1009. That case is however distinguishable on the ground that there was a standing order which provided that an employee not reporting for duty within 15 days of the expiry of the sanctioned leave shall be treated as having left the service from the date he was due to return to work.
8. In the present case there is no such standing order providing for automatic termination of services. From paragraph 6 of the order of the Labour Court dated 31-3-1967 (Annexure A-13) it would appear that under the standing order applicable to the petitioner's factory over-staying sanctioned leave without sufficient ground or proper or satisfactory explanation amounted to misconduct for which it was open to the management to take action against the employee. From paragraph 7 of the order of the Labour Court it is clear that the Court found that the non-petitioner No. 1 had duly proved that he had sufficient and proper grounds for absence because he was under treatment. This is a finding of fact based on appreciation of evidence and there can be no question of going behind it in this petition. It is, therefore, clear that the petitioners cannot succeed on the ground that there was either automatic termination of service or that the order terminating the services of the non-petitioner No. 1 was justified on the ground of misconduct of absence without leave.
9. The next contention of the petitioners, however, is that they are entitled to justify the order of termination on the ground that non-petitioner No. 1 was guilty of a grave misconduct inasmuch as he had committed theft of the property belonging to the factory. In support of this contention the petitioners wanted to adduce evidence before the Labour Court to establish the aforesaid misconduct. But the Labour Court disallowed them from adducing any evidence in this connection on the ground that non-petitioner No. 1 had already been acquitted of the charge of theft by a criminal Court (vide order of the Labour Court dated 31-1-1967, Annexure A-11). The petitioners had made a grievance of this order in their revision petition before the Industrial Court. But it was not at all considered by the Court in its order dated 28-4-67 (vide Annexure A1) apparently on the ground that the matter was concluded by Section 73 of the Employees' State Insurance Act. Section 73 of the Employees' State Insurance Act debars an employer from dismissing, discharging or otherwise punishing an employee during the period he is in receipt of sickness benefit, maternity benefit, disablement benefit or is under medical treatment for sickness etc.
10. There is nothing to show that the non-petitioner No. 1 was in receipt of any of the benefits referred to above during the relevant period. The Labour Court, however, found that the non-petitioner No. 1 was sick and under treatment from 10-9-62 to 29-11-62. It, therefore, follows that under Section 73 of the Employees' State Insurance Act the non-petitioner No. 1 could not be discharged during this period. It is not disputed that the services of the non-petitioner No. 1 were terminated during the said period on 29-9-62. But in our view though an employer is precluded from discharging an employee during the period he is under medical treatment for sickness he is not precluded from taking action for misconduct antecedent to sickness after the expiry of the said period. Thus, in our view, it was open to the management to take action against the non-petitioner No. 1 for misconduct of theft after the expiry of the said period, in case it was open for them to do so in spite of the order of acquittal. We, therefore, proceed to consider whether it is open to the petitioners to adduce evidence of the misconduct of theft for a proper adjudication of this case.
11. On behalf of the non-petitioner No. 1 it has been urged that in view of the acquittal of Abdul Rehman the petitioners are not entitled to adduce evidence of the alleged theft because the finding of the Court is binding on the petitioners in these proceedings. It is almost settled that the findings of a criminal Court are not binding on a civil Court though the subject-matter may be identical. Even in cases relating to motor accidents, finding of acquittal of the driver of the charge of rash or negligent driving is not treated as conclusive in a petition for compensation before the Claims Tribunal. In Indian Gen. Insurance Society v. M.K. Naidu : AIR1967Mad54 , it was held by the Madras High Court that though the acquittal of the driver of the charge under Section 304A. IPC was not irrelevant, the judgment of acquittal had no direct bearing on the merits of civil action which ought to be decided exclusively on the facts on its record. A similar view was expressed by the Punjab High Court in Brij Mohan Sahni v. Mohni Kumar 1966 A.C.J. 83 Punj. and by the High Court of Mysore in Seethamma v. Benedict D'sa 1966 A.C.J. 178 : A.I.R. 1967 Mys. 11. This view was reaffirmed by the Punjab High Court in Municipal Committee, Jullunder City v. Romesh Saggi .
12. It is obvious that Section 403 of the Code of Criminal Procedure is not attracted in a case like this because that section merely bars a subsequent trial for an offence after the accused has been convicted or acquitted of the said offence in a previous trial. A second trial means a trial in a criminal Court on a criminal charge. A disciplinary action is thus not within the purview of the said section. Article 20(2) of the Constitution also is not attracted because it merely lays down that a person shall not be prosecuted and punished twice for the same offence. It is settled that the punishment contemplated by Article 20 is punishment for a criminal offence and not a departmental punishment, vide Maqbool Hussain v. State of Bombay : 1983ECR1598D(SC) and S.A. Venkataraman v. Union of India : 1954CriLJ993 . See also Constitutional Law by Seervai at pages 423-424. We need not dilate on this matter because it was conceded before us that neither of these provisions is attracted in this case.
13. Thus, there is no statutory provision which bars an employer from proving the misconduct of his employee in a Labour Court although he may have been acquitted by a criminal Court of such misconduct, and we have to consider whether any such bar can be , imposed under the general principles of law.
14. In Qamarali v. State : AIR1959MP46 , it was held that where a Government servant has been acquitted by a criminal Court on merits the Court holding that the prosecution was wholly incorrect, it is not open to the authorities to hold a departmental inquiry into a charge the substance of which was based on the assumption of the guilt in the criminal case. This was a case in which the Government servant concerned was honourably acquitted. We may here refer to certain later decisions of the Supreme Court bearing on this matter.
15. In State of Andhra Pradesh v. Rama Rao : (1964)IILLJ150SC , their Lordships observed as under in paragraph 8 at page 1727:--
The Enquiry Officer appears to have stated that the judgment of the Magistrate holding a criminal trial against a public servant could not always be regarded as binding in a departmental enquiry against that public servant. In so stating the Enquiry Officer did not commit any error.
16. In R.P. Kapur v. Union of India : (1966)IILLJ164SC , their Lordships made the following pertinent observations while dealing with a similar question at page 792 in paragraph 9:--
If the trial of the criminal charge results in conviction, disciplinary proceedings are bound to follow against the public servant so convicted, even in case of acquittal proceedings may follow where the acquittal is other than honourable.
From the aforesaid decisions of the Supreme Court it appears that it is not permissible to hold a departmental inquiry into the misconduct of a Government servant with a view to take departmental action against him where he has been honourably acquitted of such misconduct by a criminal Court. The principle underlying the aforesaid decisions which precludes a domestic Tribunal from coming to a different conclusion on the same facts appears to be based on the principle of res judicata. Even the principle of issue estoppel, which has been laid down by their Lordships of the Supreme Court in the context of criminal cases is based on the same principle. In Piara Singh v. State of Punjab : 1969CriLJ1435 , their Lordships explained the principle of issue estoppel in the following terms at page 964 :--
It should be stated that the principle of issue estoppel is different from the principle of double jeopardy or autrefois acquit as embodied in Section 403 of the Criminal Procedure Code. The principle of issue estoppel is a different principle, viz., where an issue of fact has been tried by a competent Court on a former occasion and a finding has been reached in favour of an accused, such a finding would constitute an estoppel or res judicata against the prosecution not as a bar to the trial and conviction of the accused for a different or distinct offence but as precluding the reception of evidence to disturb that finding of fact when the accused is tried subsequently even for a different offence which might be permitted by the terms of Section 403(2), Criminal Procedure Code.
17. The question of a Tribunal being precluded on the principle of res judicata from coming to a finding inconsistent with that of a criminal Court in an identical matter can however arise only where the parties are the same. In cases relating to Government servants departmental action is taken by the State which is also a party to the criminal proceedings and thus in the criminal Court as in the departmental proceedings the parties are the same. We find no good reason for invoking this principle where the parties are different, because it would be unfair to hold a party bound by a finding in proceedings to which it was not a party, and, therefore, had no opportunity to challenge it.
18. It is to be borne in mind that the petitioner was not a party to the criminal case which was instituted by the State and as such had no say in the matter. According to the petitioners they have in their possession substantial evidence relating to misconduct including the confession of the non-petitioner No. 1. There is, therefore, no good reason to debar the petitioners (employers) from adducing evidence in Labour Court relating to the misconduct of the employee despite his acquittal by a criminal Court, even though the acquittal may be honourable. It may be pointed out that the decisions of this Court as well as the Supreme Court referred to above related to Government servants. We are, therefore, of the view that the Labour Court was in error in disallowing the petitioners to adduce evidence relating to the misconduct of theft of non-petitioner No. 1. We may add that even if the principle of honourable acquittal is extended to a case of this nature the petitioners would still be entitled to adduce evidence of misconduct because the acquittal was not honourable.
19. In paragraph 7 of the judgment (Ex. R-l) the Magistrate observed as under:--
Considering the whole evidence on record I am of the opinion that a doubt is created as to whether the incident had taken place in the manner in which it has been made to appear by the prosecution which has failed to bring home the offence against the accused beyond any reasonable doubt and he is not held guilty as such.
From the above observations it would appear that the Magistrate acquitted the non-petitioner No. 1 on the ground that the charge was not established beyond reasonable doubt. The acquittal cannot, therefore, be considered as an honourable one. The learned Counsel for non-petitioner No. 1 brought to our notice certain observations of the Magistrate in paragraph 6 in support of his contention that the acquittal was an honourable one. But it seems to us after considering the judgment as a whole that the non-petitioner No. 1 was given benefit of doubt and not honourably acquitted. For this reason too the petitioner is entitled to adduce evidence relating to the misconduct of the non-petitioner No. 1.
20. The conduct of non-petitioner No. 1 is also material for determining whether this is a fit case in which reinstatement should have been ordered. This is collateral matter and the evidence relating to the alleged misconduct must be allowed to be adduced at least for the limited purpose of determining this question.
21. We, therefore, hold that the entire proceedings have been vitiated as the petitioners were not allowed to adduce evidence relating to the misconduct of non-petitioner No. 1. It is surprising that the learned member of the Tribunal paid no attention to this question although it was raised in the revision petition before him.
22. The petition is, therefore, allowed and the orders of the Labour Court as well as of the Industrial Court are hereby quashed. The case will now go to the Labour Court for a fresh decision after giving the petitioners an opportunity to adduce evidence relating to the misconduct of theft. The non-petitioner No. 1 will also be entitled to adduce evidence in rebuttal thereof. We make no order as to costs in the circumstances of this case.