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Rajasthan High Court · body

2002 DIGILAW 664 (RAJ)

Dhanna Ram v. R. S. R. T. C.

2002-03-26

K.K.ACHARYA, RAJESH BALIA

body2002
Honble BALIA, J.–Heard learned counsel for the parties. (2). These two appeals are cross appeals and arise out of the order passed by learned Single Judge in S.B. Civil Writ Petition No.2608/95. (3). The facts of the case which lead to these two appeals are that one Dhanna Ram was removed from service of the Rajasthan State Road Transport Corporation (hereinafter called `the Corporation) on 21.6.1979 on account of his conviction by the Judicial Magistrate (Roadways) vide order dated 18.7.79 whereby he was sentenced to one days imprisonment. The said order of conviction was set aside by the learned Sessions Judge on 17.1.179 and the matter was remanded back for re-trial. The trial Magistrate after re-trial, by order dated 13.11.81 acquitted the said Dhanna Ram from the charges. (4). On 25.11.81, Dhanna sought to for reinstatement after acquittal which was not responded to. The matter was taken to the conciliation proceedings before the Joint Labour Commissioner and having failed there, ultimately the dispute about termination of workmans services was referred to the Labour Court, Jodhpur. (5). Before the Labour Court, the employer demanded for an enquiry into the legitimacy of the order dated 21.6.79 by seeking an opportunity to prove guilt of the incumbent about the charges for which he had been criminally prosecuted. The prayer was granted by the Labour Court and he was allowed to lead evidence. In support o the said charge, the Corporation filed two affidavits of its employees namely Sardar Ali and Hanuta Ram and they were also cross-examined by the workman before the Labour Court. The Labour Court after appreciating the evidence came to the same conclusion that the employer has failed to prove the charges levelled against the workman and finding the termination to be invalid both on account of acquittal having taken place for which the employee had been prosecuted and the employer having failed to prove the guilt of Dhanna before it ordered his reinstatement with full back wages. (6). Aggrieved with the aforesaid Award dated 19.1.95, the Corporation filed the aforesaid writ petition. (6). Aggrieved with the aforesaid Award dated 19.1.95, the Corporation filed the aforesaid writ petition. The learned Single Judge, while upholding the Award left it free for the Corporation to initiate an enquiry if it so desired for which the workman had been found not guilty by the criminal Court as well as by the Labour Court and to withhold the back wages until the said enquiry is completed for which 4 months period was fixed. (7). Aggrieved with the aforesaid judgment by the learned Single Judge dated 19.03.1998, these two appeals are before us. To the extent termination was found o be invalid and the order of reinstatement was upheld by the learned Single Judge, the Corporation is aggrieved and to the extent the learned Single Judge has left the Corporation free to initiate enquiry afresh into the said charge and left the question of back wages to be decided by the employer in the enquiry to be conducted by it, the workman is aggrieved. The Special Appeal No.831 of 1998 is by the Corporation and Special Appeal No.554 of 1998 is by the workman. (8). Having heard learned counsel for the parties and perused the material on record, we are of the opinion that the appeal filed by the workman must succeed and that of the Corporation must fail. The reason is obvious. (9). So far as charge alleged against the workman is concerned, the evidence led before the criminal Court as well as before the Labour Court are identical, viz., the statements of Sardar Ali and Hanuta Ram. The Labour Court as well as the criminal Court both did not find the statements of these two persons reliable enough to convict o to hold the workman guilty of the charges levelled against him. (10). In these circumstances, we do not see any reason to take a different view on the very same material and give a fresh chance to the corporation to prosecute the workman again a third time by leading fresh evidence after about 19 years of the incident. It is not the case of the Corporation that it did not have the opportunity to prove the guilty of workman. (11). It has relied on principle that Criminal proceedings and Departmental enquiry are two different and independent proceedings and can take place independent of each other reaching different conclusions. It is not the case of the Corporation that it did not have the opportunity to prove the guilty of workman. (11). It has relied on principle that Criminal proceedings and Departmental enquiry are two different and independent proceedings and can take place independent of each other reaching different conclusions. On that basis, the Corporation demanded of the Labour Court to permit it to lead evidence to rove the guilt of the workman independent of finding by criminal court to sustain the order of termination, treating it to have been passed without holding an enquiry. (12). The Labour Court on such demand gave the Corporation opportunity to lead evidence before it to sustain the termination in terms of principle enunciated by the Supreme Court in Workmen of Firestone Tyres & Rubber Co. of India (P) Ltd. vs. Management (1) - ``An employer, who wants to avail himself of the opportunity of adducing evidence for the first time before the Tribunal to justify his action, should ask for it at the appropriate stage. if such an opportunity is asked for, the Tribunal has no power to refuse. The giving of an opportunity to an employer to adduce evidence for the first time before the Tribunal is in the interest of both the management and the employee and to enable the Tribunal itself to be satisfied about the alleged misconduct. (13). On such opportunity having availed and unsuccessful to convince the Labour Court about the ground on which termination order could be sustained, the Corporation has desired of this Court to reappreciate the evidence lead before the Tribunal and come to a different conclusion. (14). The learned Single Judge too has not found any mistake apparent in the conclusion reached by the Labour Court which could justify issue of a writ of certiorari by overlooking such finding. The evidence relied on by the Labour court is neither irrelevant nor has been ignored so as to vitiate the finding of fact reached by the Labour Court, so as to lose its binding force. The Corporation has not, and cannot claim that Tribunal has committed any breach of natural justice or denied an opportunity to lead evidence to sustain the order of termination. (15). The Corporation has not, and cannot claim that Tribunal has committed any breach of natural justice or denied an opportunity to lead evidence to sustain the order of termination. (15). As noticed by us above, an employer who has terminated services of any workman, without holding any enquiry or by holding such enquiry which is found to be defective or unfair, he is entitled still to sustain such order of termination by demanding an opportunity to an inquiry by the Labour Court/Industrial Tribunal and leading evidence to prove the misconduct of the workman. The termination order having been founded solely on the basis of conviction for an offence in a criminal trial by Court, lost its nexus with said reason when the conviction was set aside and the workman was ultimately acquitted. He became entitled to be reinstated ordinarily with full back wages with effect from date of acquittal. (16). Still desirous of sustaining termination order in exercise of its own right as an employer, the Corporation demanded such an opportunity, which was granted by the Court and the Corporation availed such opportunity. (17). Having failed in its attempt to sustain the termination order eve on such enquiry it could not have claimed a third opportunity to reach a different conclusion by itself after having failed to prove such fact before two different courts successively. (18). Moreover, it is also trite to say that though it is permissible for the employer to hold an enquiry independent of criminal trial, but he is not permitted to some to different conclusion on the same material, which has been placed before the criminal Court, after the Courts pronounced upon the fact of such conduct by appreciating evidence. This amounts to undermine the supremacy of finding reached by an independent judicial court to a private Tribunal. (19). The principle was accepted by Supreme Court in Delhi Cloth & General Mills vs. Kushal Bhan (2) `that very often the employer say enquiries pending the decision of criminal trial courts and that is fair; but e cannot say that principle of natural justice require that an employer must wait for the decision at least of the criminal trial court before taking action against an employee. ... ... We may, however, add that if the case is of a grave nature or involves questions of fact or law, which are not simple, it would be advisable for the employer to await the decision of the trial court, so that the defence of the employee in the criminal case may not be prejudiced. (20). Very recently, in M. Paul Anthony vs. Bharat Gold Mines Ltd. (3) the Apex Court by reviewing a large number of its earlier decisions on the issue, including the aforesaid decision in Delhi Cloth & General Mills case, it was put beyond the pale of doubt that where the criminal case as well as enquiry are founded on same set of facts and evidence led in both proceedings is also the same the judicial decision must have precedence irrespective of the fact whether departmental enquiry is concluded earlier to criminal trials or held later on. (21). It was a case where disciplinary proceedings were concluded earlier and the employee was punished by finding the misconduct proved. Later on in respect of the criminal charge, founded on same facts as the misconduct, he was tried and acquitted by the criminal Court by considering the identical evidence produced in Court as was brought on record during the departmental enquiry. The Courts setting aside the finding in Departmental Enquiry and the punishment, said while setting aside the judgment of High Court: ``There is yet another reason for discarding the whole of the case of the respondents. As pointed out earlier, the criminal case as also the departmental proceedings were based on identical set of facts namely, `the raid conducted at the appellants proceedings were based on identical set of facts namely, the raid conducted at the appellants residence and recovery of incriminating articles therefrom. The finding recorded by the Inquiry Officer, a copy of which has been placed before us, indicate that the charges framed against the appellant were sought to be proved by Police Officers and Panch witnesses, who had effected recovery. They were the only witnesses examined by the Inquiry Officer and the Inquiry Officer, relying upon their statements, came to the conclusion that the charges were established against the appellant. They were the only witnesses examined by the Inquiry Officer and the Inquiry Officer, relying upon their statements, came to the conclusion that the charges were established against the appellant. The same witnesses were examined in the criminal case but the Court, on a consideration of the entire evidence, came to the conclusion that no search was conducted nor was any recovery made from the residence of the appellant. The whole case of the prosecution was thrown out and the appellant was acquitted. In this situation, therefore, where the appellant is acquitted by a judicial pronouncement with the finding that the `raid and recovery t the residence of the appellant were not proved, it would be unjust, unfair and rather oppressive to allow the findings recorded at the ex parte departmental proceedings, to stand. Since the facts and the evidence in both the proceedings, namely, the departmental proceedings and the criminal case were the same without there being any iota of difference, the distinction, which is usually drawn as between the departmental proceedings and the criminal case on the basis of approach and burden of proof, would not be applicable to the instant case. (22). The Court further refused to direct fresh enquiry at such long distance of time, holding that it will amount to persecution and harassment. (23). It may further be noticed that though an employer in technical sense is not a party to criminal case, and is permitted to hold an enquiry independent of such trial in exercise of his right as an employer, no such reason can be found in favour of an employer who was a party to proceedings in which such an enquiry was held at his instance and with his participation. Any finding reached in such proceedings binds the parties thereto; any claim thereafter to exercise independent right of employer to hold an enquiry into alleged misconduct of its employee and punish him by finding him guilty, comes to a close. (24). At best such right could have been exercised by the employer, after the conviction the basis on which termination order was founded, if he would have reinstated the workman, and proved his misconduct by bringing on record such material which was not before the criminal court and not considered by the Court. (24). At best such right could have been exercised by the employer, after the conviction the basis on which termination order was founded, if he would have reinstated the workman, and proved his misconduct by bringing on record such material which was not before the criminal court and not considered by the Court. But once the employer declines to adopt such course, as has happened in the present case, and wants to sustain such termination, if challenged by workman, by exercise of his right to sustain a termination order held without enquiry, before a Labour Court or the Tribunal, and leads evidence by demanding an opportunity to prove the alleged misconduct of the workman, there cannot exist thereafter a right to hold an enquiry in such allegation independent of findings reached by Labour Court. (25). Present is not a case which has rested at acquittal by a criminal Court. Much water has flown thereafter down the drawn to hold that even after enquiry is held by a Labour Court to which employer is a party at its instance, the employer still has right to hold an enquiry by himself in exercise of his right as an employer, if the Labour Court finds against him. (26). We are, therefore, of the opinion that there was no occasion for granting a third opportunity to the Corporation to come to a different finding than what has been reached by two courts, at different time, where the employer had fullest opportunity to lead whatever evidence it wanted to produce to sustain its allegation against the workman and sustain the termination order. Having failed to secure a favourable verdict from judicial court and quasi judicial tribunal, it cannot be permitted to sit over such finding by holding a trial by itself. The direction to that effect by learned Single Judge deserves to be set aside. (27). Accordingly, Appeal No.554 of 1998 by Dhanna Ram is allowed and Appeal No.831 of 1998 by the Corporation is dismissed. The judgment of learned Single Judge is modified by setting aside its direction permitting the Corporation to hold an enquiry against the workman. We are also of the opinion that back wages which can be granted in such cases cannot cover the period during which order of conviction remained operative and ground for reinstatement did not come into existence. The judgment of learned Single Judge is modified by setting aside its direction permitting the Corporation to hold an enquiry against the workman. We are also of the opinion that back wages which can be granted in such cases cannot cover the period during which order of conviction remained operative and ground for reinstatement did not come into existence. Therefore, the workman shall be entitled to full back wages with effect from the date of his acquittal only. With this modification, Award of the Labour Court is restored in full.