Punjab-Haryana High Court
Haryana Vidyut Parsaran Nigam Ltd. And ... vs Presiding Officer And Another on 31 January, 2013
Author: Rajiv Narain Raina
Bench: Rajiv Narain Raina
Civil Writ Petition No.19550 of 2011 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Civil Writ Petition No.19550 of 2011
Date of Decision:31.01.2013
Haryana Vidyut Parsaran Nigam Ltd. and others
...... Petitioners
Versus
Presiding Officer and another ...... Respondents
CORAM:- HON'BLE MR. JUSTICE RAJIV NARAIN RAINA
Present: Mr. Mohnish Sharma, Advocate for the petitioner.
Mr. Rajesh Arora, Advocate for respondent No.2.
1. To be referred to the Reporters or not? yes
2. Whether the judgment should be reported in the Digest? yes
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RAJIV NARAIN RAINA, J.
IDR No.380 of 2003 was registered before the Presiding Officer, Industrial Tribunal-cum-Labour Court-II, Faridabad, under Section 10(1)(c) of the Industrial Disputes Act, 1947 (for short "the Act") on reference which has been answered against the Haryana Vidyut Parsaran Nigam Limited. The Labour Court has set aside the termination order dated 30.8.1992 after the workman had served as Mate on daily wages from 6.3.1980.
The facts are that a criminal case was registered by the management on 30.8.1992; the workman was terminated. He served a legal notice on 4.5.2000 for reinstatement with full back wages and continuity in service. He also sought unpaid wages for the month of August, 1992. On registration of FIR No.343 dated 30.8.1992 under Section 379 IPC for theft of department material, respondent No.2-workman was arrested and Civil Writ Petition No.19550 of 2011 -2- remained in police custody for five days. After investigation the final report under Section 173 Cr. P.C was presented. Charges were framed under Section 411 IPC by the trial court. He faced criminal trial. He was earlier removed from service for reason of remaining in police custody. It appears that a departmental investigation report indicating involvement in theft led to termination. It is not disputed that other than an ex parte report no regular inquiry was held. No charge-sheet was issued. The management relied upon the criminal proceedings which have resulted in acquittal on 28.3.2000 by the trial Court. It is also not disputed that acquittal has attained finality. The respondent has been declared innocent of the crime.
Learned counsel for the petitioner-Nigam submits that though no inquiry was held yet the charge of theft of material of the Board was a serious misconduct and the acquittal by the trial court was based on giving the benefit of doubt, therefore, the Chief Judicial Magistrate, Faridabad, in his judgment and order dated 28.3.2000 has not given a clean chit. A distinction is sought to be drawn between "acquittal" and "acquittal by giving benefit of doubt".
Learned counsel for the respondent-workman would submit that there is no real and substantial distinction between "acquittal" and "acquittal by giving benefit of doubt". Both have to be treated at par and the respondent-workman has to be treated in law as innocent.
This Court while speaking through S.S. Nijjar, J., when his lordship was Judge of this Court, had occasion to consider this aspect lucidly in Bhag Singh v. Punjab and Sind Bank and others; (2005) 6 SLR 464 (P&H) (DB) holding as under:
"In our opinion, the mere use of the expression "benefit of doubt" or "not proved beyond reasonable doubt" by the trial Court or the appellate court cannot be permitted to convert an acquittal on the ground of no evidence, Civil Writ Petition No.19550 of 2011 -3- to something less than that. The concepts of "Honourable Acquittal", "fully exonerated" or "acquitted of blame" are all unknown to the Criminal Procedure Code, 1973. Therefore, the term "benefit of doubt"
cannot detract from the impact of the acquittal."
In Jagmohan Lal v. State of Punjab and others; AIR (54) 1967 Punjab and Haryana 422, this Court held as under:
"In criminal law, the Courts are called upon to decide whether the prosecution has succeeded in bringing home the guilt to the accused. The moment the court is not satisfied regarding the guilt of the accused, he is acquitted. Whether a person is acquitted after being given a benefit of doubt or for other reasons, the result is that his guilt is not proved. The Code of Criminal Procedure does not contemplate honourable acquittal. The only words known to the Code are "discharged" or "acquitted". The effect of a person being discharged or acquitted is the same in the eyes of law. Since, according to the accepted notions of imparting criminal justice, the Court has to be satisfied regarding the guilt of the accused beyond a reasonable doubt, it is generally held that there being a doubt in the mind of the court, the accused is acquitted."
Besides, a departmental investigation in a theft case cannot be used in place of regular departmental proceedings launched after issuing a charge sheet, inviting reply, considering the same if it is satisfactory or not, accordingly proceeding further by leading evidence for and against, and granting opportunity of cross examination of the witnesses etc. Learned counsel for the petitioner submits that when the work and conduct of the employee is not found up to the mark administratively then merely on acquittal in the criminal case, he would have no vested or accrued civil right to be reinstated in service especially when in the departmental investigation he was found guilty of theft. Learned counsel would also rely on the disclosure statement made by the respondent before the police during investigation leading to recovery of material. In the judgment of acquittal, the learned trial Court has found that the prosecution witness Mehar Ram, in whose presence disclosure statement was made by both the accused and recovery of stolen property effected had resiled in the witness box and stated that nothing had happened in his presence. The testimony of SI Gian Chand-PW-4 has also been found suspicious by the Civil Writ Petition No.19550 of 2011 -4- trial court and therefore, the conviction could not be based on the sole testimony of the police officials.
When notice of motion was issued by this Court on 18.10.2011, the following order was passed:
"Notice of motion for 13.1.2012.
Meanwhile, subject to the condition that the respondent-workman shall again be engaged as daily wager, payment of back wages shall remain stayed."
Heard the learned counsel and perused the record.
The sole question which requires determination is to the effect of the order of acquittal on the order of termination based solely on the ground that the workman had remained in police custody for five days. The petitioner Nigam had the option to hold a regular inquiry into the misconduct parallel to the criminal trial but that course was not adopted. On acquittal although, by giving benefit of doubt, the workman was declared innocent by a Court of competent jurisdiction. That order has attained finality and the workman's innocence in FIR No.343 dated 30.8.1992 continues to operate in rem. The same cannot be used by the department, time and again, pointing out that the man was guilty of theft and therefore, his work and conduct was not satisfactory. It is not demonstrated before me that work and conduct, besides the allegations of theft in the FIR was not satisfactory. The man had served for 10 years on daily wages. He held the post of Mate. The Labour Court in the award in para-11 has observed that "admittedly, the workman remained in regular service since 6.3.1980 to 30.8.1992". Nothing has been pointed out in the writ petition assailing this finding. It is also not stated nor argued that the respondent-workman was a back-door entry into service as a Mate. It is also not pleaded in the writ petition that the management has lost Civil Writ Petition No.19550 of 2011 -5- confidence in the man.
I have examined the investigation report (P-1) which has been authored by the Executive Engineer, T&S Maintenance Division, Faridabad. The report has apparently been made after the petitioner was dismissed from service. It was, therefore, obviously behind his back. The operative part of the report is relevant so far as respondent-workman is concerned and of the security arrangements obtaining in the 66 KV yard. It reads as follows:
"Investigation of the case on the basis of the available record reveals that the security arrangement in the yard of 66 KV S/S A.5 Faridabad are missing since no contingent staff, via chowkidar, sweeper, Mali etc. are posted at the S/S and alternative arrangement by the Director V&S HSEB, Panchkula suggested as alternative in the yard stick removing the provision of the contingent staff at S/S have not been made. It is also concluded that Sh. Ved Parkash SSA and Sh. Jaib ir SA were not alert enough and did not go but into the yard for conservations and according other reading etc. during the night which made it very easy and confrotable for Sh. Bal Govind to commit the theft at issues. The fencing around the the S/S also needed mtc. And upgradation of proper designing to prevent entry of unauthorized people by tampering with the fencing."
There appears to be no palpable error of jurisdiction or triable issue arising out of mis-appreciation of evidence in the impugned award. The present being a case founded on the bedrock of trial on a criminal charge remaining unsuccessful coupled with the fact that no domestic inquiry was held to establish misconduct on preponderance of probabilities, I do not see how the termination order can be sustained in law. It would be difficult to say that any palpable error can be attributed to the labour Court in passing the award. The only question that could have been examined was to grant permission to the management to yet hold an inquiry into the alleged misconduct since it is insisted upon in the writ petition that the man was guilty of theft despite acquittal but not pleaded specifically as a ground for interference by this Court. I could still have considered that plea if the incident was of recent origin. The best evidence the prosecution had to bring home the charge against respondent Bal Govind was not produced Civil Writ Petition No.19550 of 2011 -6- before the trial Court or at any rate it failed to bring home the charge. The witnesses for the prosecution resiled from their earlier statements under Section 161 Cr.P.C. The only police official who stuck to his statement, being one among total four prosecution witnesses was found suspicious in his testimony by the trial court. Therefore, after 20 years, it may not be fair and proper to re-open the matter, where witnesses may not be available neither contemporaneous documents etc. However, if the management has witnesses remaining and available other than those witnesses who were produced at the trial by the prosecution and any fresh material having bearing on the standards of a domestic inquiry then I think I would have to leave it open to the management to consider whether it ought to hold an inquiry into the alleged misconduct at this distance of time, if law and service rules permit without bar of limitation coming in the way. And due regard being had to a rule of the kind seen and akin to that which is found in Rule 2.2 (b) of the Punjab Civil Service Rules in case they exist in the Nigams' rules of service for its employees. That would be purely an administrative decision which this Court should not be taken to foreclose. To that extent the labour Court award can be said to have been modified.
Petition to stand dismissed with the aforesaid liberty.
( RAJIV NARAIN RAINA ) JUDGE 31.01.2013 rajeev