Present: Mr. K.K. Gupta Advocate Vs. Manmohan Sood and anr. - Court Judgment

SooperKanoon Citationsooperkanoon.com/1131228
CourtPunjab and Haryana High Court
Decided OnFeb-20-2014
AppellantPresent: Mr. K.K. Gupta Advocate
RespondentManmohan Sood and anr.
Excerpt:
lpa no.1207 of 2010 1 in the high court of punjab and haryana at chandigarh lpa no.1207 of 2010 (o&m) date of decision : 20.02.2014 the central cooperative consumers.store limited ..appellant versus manmohan sood and anr..respondents coram:hon'ble mr.justice jasbir singh hon'ble mr.justice harinder singh sidhu present: mr.k.k.gupta, advocate for the appellant. mr.rahul sharma, advocate for respondent no.1. -- jasbir singh, j.(oral) cm no.3659-lpa of 2010 for the reasons given in the application, which is duly supported by an affidavit, delay of 247 days in re-filing the appeal, is condoned. cm stands disposed of. lpa no.1207 of 2010 the appellant (under liquidation) has filed this appeal against the order dated 20.07.2009 passed by learned single kumar dinesh 2014.03.05 10:38 i attest to the accuracy and integrity of this document high court,chandigarh lpa no.1207 of 2010 2 judge whereby civil writ petition no.5097 of 1995, filed by the workman was allowed and he was ordered to be reinstated in service on payment of full back wages. against the workman, it was alleged that he has caused loss to the appellant while working as salesman at ration depot of super bazar. the said super bazar was closed on 10.10.2000 and now the appellant is under liquidation. it was the case of the management that before ordering termination from service, a regular enquiry was conducted and on getting report and finding no substance in the reply filed by the respondent-workman, order of dismissal was passed on 03.01.1989. the respondent-workman raised an industrial dispute. the matter was sent to industrial tribunal, ut chandigarh for adjudication. it was alleged by the workman that enquiry was not properly conducted. this was taken up as a preliminary issue and vide order dated 17.08.1993 the labour court held the enquiry bad in law. however, the labour court allowed the management to prove mis-conduct on the part of the respondent-workman before it. thereafter both the parties led evidence and on analysis thereof, it was found as a matter of fact by learned labour court that the workman had caused loss to the appellant and on account of that reference was declined on 02.01.1995. kumar dinesh 2014.03.05 10:38 i attest to the accuracy and integrity of this document high court,chandigarh lpa no.1207 of 2010 3 the respondent-workman challenged the award dated 02.01.1995 in this court by filing civil writ petition no.5097 of 1995, which was allowed by learned single judge on 20.07.2009. hence, this appeal. counsel for the appellant has vehemently contended that all the documents were produced on record, which were accepted by the workman and as such the finding given by learned single judge, was not correct. we are not inclined to accept the above said arguments . to give relief to the respondent-workman, following findings were given by learned single judge:- “8. in order that the charge might stick, three things at least were required to be established (i) that the workman had signed the indent and had received the materials. for this, the original indent was not there and both the management witnesses gave no evidence of the absence of the original or produced proof that the workman had actually signed in the indent; (ii) the signature in the liability register would have pinned down the liability of the workman. the liability registers purporting to contain the signature of the workman were again not produced before the court nor was the clerk who had admitted to have made the entries examined before the labour court; (iii) the remittance of rs.40,000/- in cash to the cashier was not even specifically denied by the the accountant, sh. shugan chand, who merely said that he did not know whether rs.40,000/- had been paid to the cashier. kumar dinesh 2014.03.05 10:38 i attest to the accuracy and integrity of this document high court,chandigarh lpa no.1207 of 2010 4 7. in spite of these deficiencies, the labour court went on to observe that the management had proved the guilt by a sweeping observation that all the documents, which were photocopies had been admitted by the workman. while strict rules of evidence may not be applied in an enquiry before the enquiry officer and leeway could be made for certain deviation so long as there were cogent reasons and proof in support of the contention of the management, the labour court that passed an order rejecting the enquiry officer's report and undertaken a responsibility to direct the parties to give evidence before it, could not have also thrown the rules of evidence to the winds. in the absence of any evidence or production of documents relating to the liability register, mere reference to documents mark a-1 to mark a-4 could not have been relied on by the labour court to establish admission of liability by the workman. it is not clear from the records as to what the workman had admitted before the enquiry officer. even admission to the existence of documents would not amount to admission of the recitals in the documents nor would it dispense with the necessity to prove the documents in the manner required by law. the burden of proof of establishing the guilt and misappropriation could never shift, it would lie anchored in the management at all times. the onus of proof could shift to the workman in case there was any evidence let in that was acceptable to show that there was either proof of receipt of materials worth rs.84,000/- or there had been a shortfall of stocks to the tune of rs.1,08,888.61. the failure of the workman to turn up in spite of notices for reconciling the account itself cannot amount to proof of the charge-sheet. the charge was not after all the failure to reconcile account kumar dinesh 2014.03.05 10:38 i attest to the accuracy and integrity of this document high court,chandigarh lpa no.1207 of 2010 5 but the charge was of misappropriation. even independently of his liability to turn up at the office and reconcile the accounts, there was always the burden on the management to show that there had been misappropriation to the tune imputed by them on the workman. such an evidence was not available.”. it was specifically stated by learned single judge that the original indent was not produced by the management. it was also stated that original liability register, allegedly signed by the workman, was also not produced on the record. remittance of rs.40,000/- in cash to the cashier was not even specifically denied by the the accountant, sh. shugan chand. leaned single judge has rightly said that in such like cases where the poor workman has been put under cloud, the labour court is required to put the management to strict proof of the allegations against such person. it was also said that the labour court has wrongly relied upon the documents mark-a to a-4. mere acceptance of photocopies of those documents by the workman, would not prove the contents thereof. the witness of the management has not said even a single word beyond placing on record photocopies of the documents. under these circumstances, we are not inclined to interfere in the judgment passed by learned single judge. the service of the workman was terminated on 03.01.1989. the appellant is now under liquidation. hence,it would not be proper kumar dinesh 2014.03.05 10:38 i attest to the accuracy and integrity of this document high court,chandigarh lpa no.1207 of 2010 6 to grant benefit of full back wages. faced with the situation, mr.sharma states that let back wages to the extent of 40% be granted to the respondent-workman. ordered accordingly. as the appellant has gone into liquidation, reinstatement into service of the workman cannot be granted. qua claim of back wages and other benefits, the respondent-workman may put up the claim with the liquidator. (jasbir singh ) judge ( harinder singh sidhu ) judge2002.2014 dinesh kumar dinesh 2014.03.05 10:38 i attest to the accuracy and integrity of this document high court,chandigarh
Judgment:

LPA No.1207 of 2010 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH LPA No.1207 of 2010 (O&M) Date of Decision : 20.02.2014 The Central Cooperative ConsumeRs.Store Limited ..Appellant Versus Manmohan Sood and anr..Respondents CORAM:HON'BLE Mr.JUSTICE JASBIR SINGH HON'BLE MR.JUSTICE HARINDER SINGH SIDHU Present: Mr.K.K.Gupta, Advocate for the appellant.

Mr.Rahul Sharma, Advocate for respondent No.1.

-- JASBIR SINGH, J.(Oral) CM No.3659-LPA of 2010 For the reasons given in the application, which is duly supported by an affidavit, delay of 247 days in re-filing the appeal, is condoned.

CM stands disposed of.

LPA No.1207 of 2010 The appellant (under liquidation) has filed this appeal against the order dated 20.07.2009 passed by learned Single Kumar Dinesh 2014.03.05 10:38 I attest to the accuracy and integrity of this document High Court,Chandigarh LPA No.1207 of 2010 2 Judge whereby Civil Writ Petition No.5097 of 1995, filed by the workman was allowed and he was ordered to be reinstated in service on payment of full back wages.

Against the workman, it was alleged that he has caused loss to the appellant while working as salesman at ration depot of Super Bazar.

The said Super Bazar was closed on 10.10.2000 and now the appellant is under liquidation.

It was the case of the Management that before ordering termination from service, a regular enquiry was conducted and on getting report and finding no substance in the reply filed by the respondent-workman, order of dismissal was passed on 03.01.1989.

The respondent-workman raised an industrial dispute.

The matter was sent to Industrial Tribunal, UT Chandigarh for adjudication.

It was alleged by the workman that enquiry was not properly conducted.

This was taken up as a preliminary issue and vide order dated 17.08.1993 the Labour Court held the enquiry bad in law.

However, the Labour Court allowed the Management to prove mis-conduct on the part of the respondent-workman before it.

Thereafter both the parties led evidence and on analysis thereof, it was found as a matter of fact by learned Labour Court that the workman had caused loss to the appellant and on account of that reference was declined on 02.01.1995.

Kumar Dinesh 2014.03.05 10:38 I attest to the accuracy and integrity of this document High Court,Chandigarh LPA No.1207 of 2010 3 The respondent-workman challenged the award dated 02.01.1995 in this Court by filing Civil Writ Petition No.5097 of 1995, which was allowed by learned Single Judge on 20.07.2009.

Hence, this appeal.

Counsel for the appellant has vehemently contended that all the documents were produced on record, which were accepted by the workman and as such the finding given by learned Single Judge, was not correct.

We are not inclined to accept the above said arguments .

To give relief to the respondent-workman, following findings were given by learned Single Judge:- “8.

In order that the charge might stick, three things at least were required to be established (i) that the workman had signed the indent and had received the materials.

For this, the original indent was not there and both the management witnesses gave no evidence of the absence of the original or produced proof that the workman had actually signed in the indent; (ii) The signature in the liability register would have pinned down the liability of the workman.

The liability registers purporting to contain the signature of the workman were again not produced before the Court nor was the clerk who had admitted to have made the entries examined before the Labour Court; (iii) the remittance of Rs.40,000/- in cash to the cashier was not even specifically denied by the the accountant, Sh.

Shugan Chand, who merely said that he did not know whether Rs.40,000/- had been paid to the cashier.

Kumar Dinesh 2014.03.05 10:38 I attest to the accuracy and integrity of this document High Court,Chandigarh LPA No.1207 of 2010 4 7.

In spite of these deficiencies, the Labour Court went on to observe that the management had proved the guilt by a sweeping observation that all the documents, which were photocopies had been admitted by the workman.

While strict rules of evidence may not be applied in an enquiry before the Enquiry Officer and leeway could be made for certain deviation so long as there were cogent reasons and proof in support of the contention of the management, the Labour Court that passed an order rejecting the Enquiry Officer's report and undertaken a responsibility to direct the parties to give evidence before it, could not have also thrown the rules of evidence to the winds.

In the absence of any evidence or production of documents relating to the liability register, mere reference to documents Mark A-1 to Mark A-4 could not have been relied on by the Labour Court to establish admission of liability by the workman.

It is not clear from the records as to what the workman had admitted before the Enquiry Officer.

Even admission to the existence of documents would not amount to admission of the recitals in the documents nor would it dispense with the necessity to prove the documents in the manner required by law.

The burden of proof of establishing the guilt and misappropriation could never shift, it would lie anchored in the management at all times.

The onus of proof could shift to the workman in case there was any evidence let in that was acceptable to show that there was either proof of receipt of materials worth Rs.84,000/- or there had been a shortfall of stocks to the tune of Rs.1,08,888.61.

The failure of the workman to turn up in spite of notices for reconciling the account itself cannot amount to proof of the charge-sheet.

The charge was not after all the failure to reconcile account Kumar Dinesh 2014.03.05 10:38 I attest to the accuracy and integrity of this document High Court,Chandigarh LPA No.1207 of 2010 5 but the charge was of misappropriation.

Even independently of his liability to turn up at the office and reconcile the accounts, there was always the burden on the management to show that there had been misappropriation to the tune imputed by them on the workman.

Such an evidence was not available.”

.

It was specifically stated by learned Single Judge that the original indent was not produced by the Management.

It was also stated that original liability register, allegedly signed by the workman, was also not produced on the record.

Remittance of Rs.40,000/- in cash to the cashier was not even specifically denied by the the accountant, Sh.

Shugan Chand.

Leaned Single Judge has rightly said that in such like cases where the poor workman has been put under cloud, the Labour Court is required to put the Management to strict proof of the allegations against such person.

It was also said that the Labour Court has wrongly relied upon the documents Mark-A to A-4.

Mere acceptance of photocopies of those documents by the workman, would not prove the contents thereof.

The witness of the Management has not said even a single word beyond placing on record photocopies of the documents.

Under these circumstances, we are not inclined to interfere in the judgment passed by learned Single Judge.

The service of the workman was terminated on 03.01.1989.

The appellant is now under liquidation.

Hence,it would not be proper Kumar Dinesh 2014.03.05 10:38 I attest to the accuracy and integrity of this document High Court,Chandigarh LPA No.1207 of 2010 6 to grant benefit of full back wages.

Faced with the situation, Mr.Sharma states that let back wages to the extent of 40% be granted to the respondent-workman.

Ordered accordingly.

As the appellant has gone into liquidation, reinstatement into service of the workman cannot be granted.

Qua claim of back wages and other benefits, the respondent-workman may put up the claim with the liquidator.

(JASBIR SINGH ) JUDGE ( HARINDER SINGH SIDHU ) JUDGE2002.2014 dinesh Kumar Dinesh 2014.03.05 10:38 I attest to the accuracy and integrity of this document High Court,Chandigarh