Allahabad High Court
Distt.Administrative Committee U.P. ... vs Secretary Cum G.M. Distt.Co-Operative ... on 1 July, 2010
Author: Prakash Krishna
Bench: Prakash Krishna
1 Reserved/Court No. - 6 Case :- WRIT - C No. - 2331 of 2000 Petitioner :- Distt.Administrative Committee U.P. P.A.C.C.S.C.Services Respondent :- Secretary Cum G.M. Distt.Co-Operative Bank Ltd. Petitioner Counsel :- Hemant Kumar,Brijesh Pratap Singh Respondent Counsel :- C.S.C.,Dinesh Pathak,Rakesh Prasad,Surya Prakash Vishwakarma Hon'ble Prakash Krishna,J.
Questioning the legality and validity of the Labour Court award dated 14th of November, 1996 published on 2nd of January, 1998, passed in Adjudication Case No.181 of 1991, the present writ petition is at the instance of the employer. By means of the present petition, the petitioners have also challenged the legality and validity of the recovery proceedings initiated in pursuance of the impugned award and have also sought the quashing of the recovery certificate dated 11th of August, 1999 and the citation notice dated 16th of December, 1999. The facts which are not in dispute may be noticed in brief.
Shanker Prasad, respondent No.5 herein(hereinafter referred as the respondent) was selected by U.P. Primary Agricultural Cooperative Credit Societies Centralized Service and was initially appointed as accountant. He was subsequently promoted to the post of secretary w.e.f. 3rd of February, 1977 and was finally posted under the control of District Administrative Committee Centralized Service.
The respondent was appointed as secretary in Sadhan Sahkari Samiti Limited, Markundi, Block Robertsganj, District Mirzapur vide appointment letter, a copy whereof has been annexed as Annexure-1 to the writ petition. He was transferred and was posted at Sadhan Sahkari Samiti Limited, Block Koan, District Mirzapur on June 11, 1980. His work was not found satisfactory and a complaint was lodged by the Chairman of Cheel Sadhan Sahakari Samiti Limited. A preliminary inquiry was conducted against him wherein it was found that the respondent has embezzled huge amount by making forged entries and allegedly distributed the same to the fictious persons. A First Information Report vide Case Crime No.104 of 1981 under Section 409 of I.P.C was lodged with police station, Cheel, District Mirzapur. The respondent was placed under suspension vide order dated 20th of February, 1981 and after holding a departmental proceeding and serving a charge sheet dated 23rd of November, 1981, the services of the respondent were terminated as his reply was not found satisfactory 2 and charges were found proved. The District Administrative Committee, Mirzapur vide resolution 2 Kha dated 22.4.1984 decided to terminate the services of the respondent on the ground of misconduct and embezzlement of fund of the society and his services were terminated w.e.f. 26th of May, 1982. The respondent No.5 after about nine years, approached the State Government disputing the legality and validity of the aforesaid termination order by raising an industrial dispute and the State Government in exercise of its power under Section 4K of the U.P. Industrial Disputes Act referred the following question for adjudication to the Labour Court, Varanasi:-
Whether the employers rightly terminated the services of the workman Sri Shanker Prasad son of Badri Prasad from the post of secretary on 26th of May, 1982 and if not so, to what relief he is entitled?
It was registered as Adjudication Case No.181 of 1981. In response to the notice issued by the Labour Court, a detailed reply was submitted by the petitioner on various pleas including that the matter is not cognizable by the Labour Court as the respondent was not working as workman on the date of termination order. The dispute raised by him is not an industrial dispute and that the termination order was passed in the month of April, 1982 and the dispute has been referred for adjudication on 10th of May, 1991, the case is highly belated. It was also pleaded that the respondent workman is guilty of misconduct of embezzlement and misappropriation of money of the society and the employers have lost confidence in him and his continuity in employment was not considered proper.
The respondent workman in his written statement pleaded that the inquiry conducted against him was not fair and proper and no proper opportunity was given to him to defend himself by the Inquiry Officer. He was charge-sheeted on false and frivolous allegations.
Dates were fixed for recording of evidence of the petitioners' witnesses but the petitioners failed to produce them on the dates so fixed. The Labour Court proceeded to pass the impugned award on a short ground that it was the duty and responsibility of the employer petitioners to prove the misconduct of the respondent which they failed to prove and therefore, the only conclusion is that the services of the respondent were terminated illegally. No other issue was even touched.
Before proceeding further, it may be placed on record that the present writ petition was heard earlier and was dismissed by judgment passed by this Court in connected writ petition No.29032 of 2001. The said writ petition was filed by the District Cooperative Bank Limited, 3 Mirzapur against recovery proceeding on the ground that the recovery is being wrongly pressed against them as the respondent herein was never their employee. The said writ petition was allowed by this Court by accepting the above submission but the present writ petition was dismissed without going into the merit of the case. The matter was carried in Civil Appeal No.2377 of 2007 before the Apex Court by the petitioner and the Apex Court by its judgment dated 14th of July, 2009 after setting aside the order passed on the present writ petition restored the matter back to the High Court with the direction to decide the present writ petition on merit. Hence the matter has come up for consideration again before this Court.
The learned counsel for the petitioners submits that the Labour Court has committed illegality in passing the impugned award without adjudicating as to whether the respondent is a "workman" within the meaning of Section 2 (Z) of the U.P. Industrial Disputes Act, not withstanding the fact that the petitioners did not produce any oral evidence. The said issue related to question of jurisdiction and should have been addressed on the basis of the available material on record by the Labour Court, first. Secondly, the Labour Court has overlooked the fact that the dispute was sought to be raised after more than nine years of passing of the termination order. The respondent had accepted the termination order and that is the reason he did not avail statutory remedy of appeal against the termination order as provided under the relevant Service Rules. It was also urged that the petitioner is a Cooperative Society and the services of its employees are governed by the various statutory provisions as applicable to the employees of cooperative societies and as such the provisions of the Industrial Disputes Act are excluded by necessary implication as held by the Apex Court. It was also argued that even if the oral evidence could not be produced, it was incumbent upon the Labour Court to have considered the documentary evidence already on the record filed by the petitioners for whatsoever worth they may be. The Labour Court has acted arbitrarily and capriciously by passing the impugned award without considering the case of the respondent on merit. There is no application of mind by the Labour Court to the controversy which was involved before it.
The learned counsel for the respondent, on the other hand, submits that the departmental inquiry which was conducted against the respondent was not fair and proper and the delay in filing the reference was condoned by the order dated 21st of February, 1991. A copy of the said order is not on the record but was placed before the Court during the course of argument. It was further submitted that the respondent has been exonerated by the Criminal Court in Case No.2354 of 2009 vide judgment dated 3rd of November, 2009. Copy 4 of the said judgment was referred during the course of argument but is not on the record.
Considered the respective submissions of the learned counsel for the parties and perused the record. On the basis of the above, the following questions fall for consideration:-
1. Whether the Labour Court was justified without deciding the question as to whether the respondent is "workman" or not in passing the impugned award?
2. Whether the Labour Court has rightly condoned the delay in raising the dispute?
3. Whether, the provisions of Industrial Disputes Act could be invoked in the present case?
Taking the first point first, it may be noted that in the written statement it was pleaded that the respondent being secretary of the society was exercising managerial and administrative powers and is not a "workman" within the definition of Section 2-Z of the U.P. Industrial Disputes Act, 1947 vide paragraph 8. The said plea has been reiterated in the writ petition also. In paragraph no.23 of the writ petition it has been stated that the respondent was working as secretary of the society and under Section 31 of the U.P. Cooperative Society Act, secretary is Chief Executive Officer of the society and is responsible for sound and efficient management of the business of the society. The further allegation is that the respondent was in managerial or administrative capacity and as such, he does not come within the purview of the workman as defined under Section 2(Z) of the U.P. Industrial Disputes Act and as such, the reference dated 10 th of May, 1991 and all the subsequent proceedings are illegal and void.
In para 19 of the counter affidavit, reply of paragraph 23 of the writ petition has been given. A bare perusal of paragraph 19 of the counter affidavit would show that the reply is wholly evasive. Only this much has been stated that the Cooperative Society and Samiti are industry and their employees are workman and the respondent is workman and the petitioner is employer. Hence the dispute between the parties fall within the purview of U.P. Industrial Disputes Act. Importantly, the respondent could not dare to state in his reply that he was not holding either the post of secretary or that secretary is not executive officer of society or secretary is not responsible for sound and efficient management of the business of the society. The averment made in paragraph 23 of the writ petition that the respondent was in 5 managerial or administrative capacity remains, thus, uncontroverted. Assuming even for a moment that cooperative society and samiti are industry but it does not necessarily follow that an employee or its employees are workman. 'Workman' has been statutorily defined under section 2 (Z) of the U.P. Industrial Disputes Act. Necessarily, it was upon the respondent to lead evidence or place material on record to show that he falls within the definition of 'workman' as defined under the said Act and consequently does not fall in any of exception clauses. It may be noted that the Labour Court has in its earlier part of the award noticed the said plea which was put forward by the petitioner herein. But it proceeded to deliver the award without addressing the said issue and in my view has, thus, committed serious illegality. Even if no evidence was forthcoming from the side of the employer, it is incumbent upon the employee to establish at least the primary facts so as to give jurisdiction to a Tribunal or authority of a restricted jurisdiction.
A bare perusal of the award would show that the Labour Court has conveniently overlooked the said aspect of the case which goes to the very root of the matter and has directly related to its authority and jurisdiction to adjudicate upon the dispute. It was incumbent upon it to have decided the said objection first on the basis of the material available on record. The Labour Court in a slipshod manner has delivered the award as the employer has failed to lead evidence to prove the misconduct of the respondent which is hardly sufficient. Neither in the award of the Labour Court nor in the counter affidavit of the respondent there is any material to come to the conclusion that the respondent is a workman. On the contrary, the unctroverted averments made in paragraph 23 of the writ petition that the respondent was the chief executive officer of the society and was responsible for sound management of business and efficient administration of society, is sufficient to draw an inference in absence of contrary material, that the respondent is not a workman. The Labour Court has put the cart before the horse by passing the impugned award. Having said so, I find sufficient force in the argument of the petitioners. The matter should have been remanded to the Labour Court in normal circumstances to adjudicate upon the issue left by it undecided. But in view of the findings recorded in the later part of the judgment, it is not appropriate to restore back the matter to the Labour Court and the matter is allowed to rest here as it is.
The second point urged by the petitioners is that the reference was sought for after expiry of more than nine years from the date of termination order. The termination order according to the petitioners is dated 26th of May, 1982 and the matter was ordered to be referred in the year 1991 on the application filed by the respondent on 9th of 6 January, 1991. During the course of the argument a copy of the order dated 21.2.1991 condoning the delay passed by the Deputy Labour Commissioner was produced. It shows that the delay was condoned on the ground of lack of legal knowledge. Be that as it may, in such circumstances, where a dispute has been raised with delay, the Labour Court should not have entertained the matter. The present case is a case of secretary of cooperative society and the explanation furnished by him for condonation of delay is nothing but a lame excuse. The said explanation is not available to a person who was holding the administrative and managerial post in an establishment. In my considered view, the delay was condoned on insufficient grounds.
Now, coming to the third point, the contention of the petitioners is that in view of the Apex Court judgment in the case of Ghaziabad Zila Sahkari Bank Ltd. Vs. Additional Labour Commissioner and others, (2007) 11 SCC 756 wherein it has been held that in view of the provisions of the U.P. Cooperative Societies Act, the provisions of U.P. Industrial Disputes Act, 1947, stand excluded to the employees of the Cooperative Societies. Elaborating the argument, it was submitted that the State Government in exercise of power under Section 122 A of the U.P. Cooperative Societies Act, 1965 has framed U.P. Primary Agricultural Cooperative Credit Centralized Service Rule, 1976. The said Rule apply to a Primary Agricultural Cooperative Society. The respondent was selected and appointed under the said service rule. He was finally posted under the control of District Administrative Committee, Centralized Services who appointed him as secretary in Sadhan Sahkari Samiti Limited. Departmental proceedings were initiated against the respondent as contemplated by Regulation 59 of the U.P. Primary Agricultural Cooperative Credit Centralized Service Regulation, 1978. The Regulation 60 of the said Regulation provides a statutory appeal before Regional Administrative Committee. No such appeal was filed as stated in paragraph 12 of the writ petition. Only this much has been stated in the counter affidavit by the respondent that suitable reply shall be given at the time of the argument. So far as factual part that no statutory appeal was filed has not been disputed in the counter affidavit. The learned counsel for the petitioners during the course of argument could not place anything to show that the respondent's case does not come in the grip of the aforesaid Regulation, 1978. Necessarily, it follows that the legislators have taken care by providing a statutory appeal to the aggrieved person against termination order. To put it differently, a different set of Regulations covering the service dispute of employees of cooperative society has been provided for by way of aforesaid Regulation. The aforesaid Regulations being specific and statutory will exclude the provisions of the U.P. Industrial Disputes Act as held by the Apex Court in the case of Ghaziabad Zila Sahkari Bank Ltd. (supra). This 7 very controversy was up for consideration with reference to the provisions of the U.P. Cooperative Societies Act, 1965 therein. It has been held that the jurisdiction of Labour Court in such matters cannot be invoked.
The learned counsel for the respondent could not place any material to take a different view of the matter. The controversy stands concluded against the respondent in view of the aforesaid authoritative pronouncement of the Apex Court and this is the end of the matter.
Now, the other peripheral issues may be considered. In para 17 of the writ petition it has been stated that the petitioner has filed a number of evidences such as the copy of First Information Report, suspension order, charge sheet, reply of the respondent etc.. These documents were not considered by the Labour Court, submits the learned counsel for the petitioner. From the award of the Labour Court it is apparent that the case was adjourned on 2-3 occasions to enable the petitioner to lead the oral evidence but they failed. The submission is that even if the petitioner failed to lead the evidence, burden was on the shoulders of the respondent to prove the termination order as illegal. He was required to lead evidence first which he failed. A perusal of the impugned award also does not show that any evidence either oral or documentary was led by the respondent. In the case of no evidence, the reference has to be dismissed. However, it is not necessary to dilate on this point any further as the said plea has not been put forward in specific terms in the writ petition.
Before parting with the case, it may be noted that even the Criminal Court has not given clear cut acquittal to the respondent accused. The criminal case has been dismissed by giving benefit of doubt to the respondent herein.
In view of the above discussions, I find sufficient force in the writ petition. The impugned award passed by the Labour Court cannot be allowed to stand. The writ petition is allowed by deciding the reference against the respondent. No order as to costs.
(Prakash Krishna, J.) Order Date :- 1.7.2010 LBY 8 9 10 11