JUDGMENT Rajiv Sharma, Judge (oral): Petitioner (hereinafter referred to as ‘employer’) has challenged award dated 1.9.2012 rendered by learned Industrial Tribunal-cum-Labour Court, Shimla in Reference No. 54/2009. 2. “Key facts” necessary for the adjudication of this petition are that respondent-workman (hereinafter referred to as the ‘workman’ for brevity sake) was engaged as Beldar on 4.10.1991. Enquiry Committee was constituted on 19.9.1998 to look into the reasons regarding tampering with the record of vouchers of Chopal Sub Division lying in the Divisional Office in the case of workman. Enquiry Committee concluded that the workman was responsible for tampering with the official record. Enquiry report is dated 24.11.1998. Consequently, a notice was served upon the workman on 26.2.1999, on the basis of which petitioner’s services were terminated. 3. Workman raised industrial dispute. State Government made the following reference to the Presiding Judge, Industrial Tribunal-cum-Labour Court, Shimla: - “Whether the termination of services of Shri Ramesh Chand S/o Shri Dilmee am by the Executive Engineer, HPPWD Division Chopal District Shimla H.P w.e.f. 26.1.1999 on the allegation of misconduct and tempering of office record is proper and justified? If not, what relief of service benefits including seniority and compensation the above workman is entitled to?” 4. Workman filed a claim petition, to which reply was filed by the employer. Case of the workman precisely was that neither any notice was issued to him nor any regular enquiry was held against him. Workman appeared as PW-1. On behalf of the employer, Shri T.S. Chandel appeared as RW-1. Learned Labour Court made award on 1.9.2012. The termination of the workman was declared improper and unjustified and his reinstatement was ordered with immediate effect by giving him benefit of continuity and back wages @ 25%. It is in these circumstances the employer has challenged the award dated 1.9.2012. 5. Mr. Parmod Thakur, learned Additional Advocate General has vehemently argued that the learned Labour Court has erred in law by coming to the conclusion that charge sheet was required to be issued to the workman and a regular enquiry was required to be conducted. According to him, case of the workman did not fall within the ambit of retrenchment. It was a disciplinary action taken against the workman. He then contended that issuance of notice under Section 25 (F) of the Industrial Disputes Act was by way of abundant precaution though not required in law. 6. Mr. According to him, case of the workman did not fall within the ambit of retrenchment. It was a disciplinary action taken against the workman. He then contended that issuance of notice under Section 25 (F) of the Industrial Disputes Act was by way of abundant precaution though not required in law. 6. Mr. Sanjeev Bhushan has supported the award dated 1.9.2012. 7. I have heard the learned counsel for the parties and also gone through the record carefully. 8. The workman was engaged on 4.10.1991. According to the employer, workman was deployed in Chopal office to assist the dealing hand to sort out the record alongwith other workmen in the Accounts Branch of Chopal Division in the month of August, 1998. Divisional Accounts Officer noticed that the name of workman was inserted after overwriting and tampering over the names of other labourers in various muster rolls/ vouchers. In order to find whether the workman has tampered with the record, a Committee was constituted, as noticed above, on 19.9.1998. The Enquiry Committee found that the workman was responsible for tampering with the official record. Consequently, workman was issued notice on 26.2.1998 under Section 25(f) of the Industrial Disputes Act, 1947. Labour Court has definitely erred in law by coming to the conclusion that a regular enquiry was required to be held against the workman. The workman was only engaged on daily wage basis. The workman while appearing as PW-1 has categorically admitted in his cross-examination that he was associated by the Enquiry Committee. His version was taken into consideration. Questions were also put to him. A regular enquiry is required to be conducted only if the workman was a regular employee. There was no violation of the principles of natural justice in the instant case. The Enquiry Committee has taken into consideration the statement of other workmen also. The workman has admitted his guilt that he has tampered with the record. The workman alone was to be benefited by the tampering carried out by him to get himself regularized. 9. Mr. Sanjeev Bhushan, Advocate has also argued that FIR was also registered against his client bearing FIR No. 98/1999 dated 3.8.1999 at Police Station Chopal, District Shimla. He was acquitted on 30.7.2002 by the Judicial Magistrate 1st Class, Chopal. Fact of the matter is that workman has been acquitted by the Judicial Magistrate by giving him the benefit of doubt. Mr. Sanjeev Bhushan, Advocate has also argued that FIR was also registered against his client bearing FIR No. 98/1999 dated 3.8.1999 at Police Station Chopal, District Shimla. He was acquitted on 30.7.2002 by the Judicial Magistrate 1st Class, Chopal. Fact of the matter is that workman has been acquitted by the Judicial Magistrate by giving him the benefit of doubt. There can not be any automatic reinstatement once acquittal is recorded by a criminal Court. Disciplinary proceedings can continue and action can be taken on the basis of findings given by the enquiry officer. In a criminal case, offence is to be proved beyond reasonable doubt whereas during the course of disciplinary proceedings, charges have to be proved only on the basis of preponderance of probabilities. 10. Division Bench of Delhi High Court in Lachman Das and another vs. M/s Indian Express Newspapers (Bombay) Pvt. Ltd. and another, 1977 Lab.I.C. 823 has held that the termination by way of disciplinary action as a punishment is directly conflicts with termination by way of retrenchment. Division Bench has held as under: “5. In our view the word “illegal” has a very wide significance. Considered in isolation, it is vague, for, the termination of employment may be illegal for different and even conflicting reasons. Therefore, the meaning of the word “illegal” has to be understood in the context of the allegations of facts constituting the particular kind of illegality pleaded. I would follow that the word “illegal” so construed according to context would not include some meaning of illegality which was not pleaded and which was contrary to the pleading. The definition of “retrenchment” in Section 2 (oo) includes every termination excepting a termination inflicted as a punishment by way of disciplinary action and some other kinds of termination. The allegations of the petitioners that they were victimized because of their union activities and participation in the strike meant that they were really punished by the employer by way of disciplinary action. Therefore, the meaning of termination of services alleged by the petitioners was outside the definition of “retrenchment”. Indeed the termination by way of disciplinary action as a punishment is directly conflicting with termination by way of retrenchment. Therefore, the meaning of termination of services alleged by the petitioners was outside the definition of “retrenchment”. Indeed the termination by way of disciplinary action as a punishment is directly conflicting with termination by way of retrenchment. The former is by way of punishment while the latter is in the interest of economy or because the employer did not need the services of the petitioners who had become surplus after the contract for the printing of the American Reporter which had been enjoyed by the employer came to an end.” 11. Similarly, Division Bench of Madhya Pradesh High Court in New India Assurance Co. Limited vs Dalbir Singh Khera, 1982 (1) Labour Law Journal 39 has held as under: “5. It was contended by the learned Counsel for the respondent that the order amounted to retrenchment and as retrenchment was done without following the requirements of Section 25F of the Act, it was invalid and void and could be ignored. Now, the circumstances of this case would show that the respondent's services were not terminated on the ground that he was surplus. The termination of the respondent's employment was on the ground of misconduct as stated above. The termination was, therefore, a punishment inflicted by way of disciplinary action, although without holding an enquiry, and did not fall within the definition of retrenchment. Apart from that, on the respondent's own showing, he continued to be unwell and was unable to resume duty from 5th February, 1975 till the order of termination was passed. It will also, therefore, be a case of termination of the service on the ground of continued illhealth of the workman and will be outside the definition of retrenchment contained in Section 2(oo) of the Act.” 12. Division Bench of Patna High Court in Abdul Khalique vs. Heavy Engineering Corporation Ltd. and others, 1985 Lab. I.C. 1114 has held that removal amounts to punishment and it was not retrenchment. Division Bench has held as under: “6. Mr. Habib, learned counsel appearing on behalf of the petitioner did not dispute the fact contended by Mr. S.B. Sinha, learned counsel appearing on behalf of the respondents that the order contained in Annexure 7 amounted to punishment. That being the factual position, the removal of the petitioner cannot be said to be retrenchment as defined in section 2 (oo) of the I.D. Act. S.B. Sinha, learned counsel appearing on behalf of the respondents that the order contained in Annexure 7 amounted to punishment. That being the factual position, the removal of the petitioner cannot be said to be retrenchment as defined in section 2 (oo) of the I.D. Act. Consequently section 25-N of the I.D. Act has no application to the case of the petitioner.” 13. Their Lordships of the Hon'ble Supreme Court in State Bank of India v. Workmen of State Bank of India and another, 1990 (2) Labour Law Journal 586 have held that termination of employee under paragraph 521 (10) of the award was as a result of the disciplinary proceedings and is punitive. Therefore, it was not “retrenchment” within the meaning of section 2 (oo) of the Industrial Disputes Act and there was no question of complying with the provisions of section 25-F of the Industrial Disputes Act. Division Bench has held as under: “25. The result to our aforesaid discussion is that the termination of service of the employee in the present case under paragraph 521(10)(c) of the Award is as a result of the disciplinary proceedings and is punitive. It is, there- fore. not "retrenchment" within the meaning of Section 2(00) of the Act. Hence, there was no question of complying with the provisions of Section 25-F of the Act. The decision of the High Court has, therefore, to be set aside.” 14. Their Lordships of the Hon'ble Supreme Court in Samar Bahadur Singh v. State of Uttar Pradesh and others, (2011) 9 SCC 94 have held that acquittal in criminal case has no bearing or relevance to departmental proceedings as standard of proof in both the cases is totally different. Their Lordships have held as under: “2. This appeal is directed against the judgment and order dated 13.02.2004 passed by the Division Bench of the Allahabad High Court dismissing the writ petition filed by the appellant against the judgment and order passed by the State Public Service Tribunal, U.P., which upheld the order of dismissal passed against the appellant by the respondents on 11.02.1993. 6. We have considered all the aforesaid submissions in the light of the records that are available with us. The medical report which is placed on record indicates that the appellant had consumed alcohol, but he was not intoxicated. 6. We have considered all the aforesaid submissions in the light of the records that are available with us. The medical report which is placed on record indicates that the appellant had consumed alcohol, but he was not intoxicated. The appellant was missing from the headquarters on 27.10.1991 from the morning and he was caught in the case registered under Section 392 I.P.C. in the evening. The appellant wishes to make a defence that he was advised to take medicine but the prescription which is placed in the departmental proceedings does not indicate that any medicine was prescribed in that prescription. The appellant was arrested in the criminal case in connection with stealing of a bottle of foreign liquor and even during that time he had consumed alcohol prior to the incident. These facts have been brought out in the inquiry proceedings initiated against him in which the appellant did not participate. Therefore, whatever allegations have been brought against him, have been proved by placing cogent materials on record, which go unrebutted due to his absence in the proceedings. We also find that the appellant has been charged on the ground of negligence, deriliction of duty and consuming liquor. The aforesaid facts are found proved in the departmental proceedings. 8. Now, the issue is whether punishment awarded to the appellant is disproportionate to the offence alleged. The appellant belongs to a disciplinary force and the members of such a force is required to maintain discipline and to act in a befitting manner in public. Instead of that, he was found under the influence of liquor and then indulged himself in an offence. Be that as it may, we are not inclined to interfere with the satisfaction arrived at by the disciplinary authority that in the present case punishment of dismissal from service is called for. The punishment awarded, in our considered opinion, cannot be said to be shocking to our conscience and, therefore, the aforesaid punishment awarded does not call for any interference.” 15. Their Lordships of the Hon'ble Supreme Court in Avinash Sadashiv Bhosale (dead) v. Union of India and others, (2012) 13 SCC 142 have held that proof of criminal charges depends upon prosecution producing proof beyond reasonable doubt relating to culpability of accused, while in departmental proceedings standard of proof is one of preponderance of probabilities. Their Lordships have held as under: “45. Their Lordships have held as under: “45. In view of the aforesaid legal principles enunciated and reiterated by this Court, we cannot accept that because the appellant had been prosecuted, the departmental proceedings could not have been continued simultaneously. As pointed out by Mr. Dwivedi, the charges against the appellant in the criminal trial related to the commission of criminal offences under Sections 120(B), 420, 467, 468, 471 and 201 of Indian Penal Code. The proof of criminal charges was depended upon prosecution producing proof beyond reasonable doubt relating to the culpability of the appellant alongwith other persons. In the departmental proceedings, the basic charge was that appellant whilst posted as a Branch Manager of Washi Turbhe Branch, failed to discharge his duties with utmost integrity, honesty, devotion and diligence to ensure and protect the interest of the Bank and acted in a manner unbecoming of a Bank Officer. The aforesaid charge clearly related to the manner in which the appellant performed the duties as the Manager of the Branch of the Bank. It had nothing to do with any criminal liability attaching to such conduct.” 16. Their Lordships of the Hon'ble Supreme Court in Deputy Inspector General of Police and another v. S. Samuthiram, (2013) 1 SCC 598 have held that acquittal may be outcome of higher level proof which prosecution could not meet yet an employee may be found guilty in departmental proceedings on account of relatively lower standard of proof. Their Lordships have further held that mere acquittal of an employee by a criminal court has no impact on the disciplinary proceedings initiated by the Department. Their Lordships have held as under: “23. We are of the view that the mere acquittal of an employee by a criminal court has no impact on the disciplinary proceedings initiated by the Department. The respondent, it may be noted, is a member of a disciplined force and non examination of two key witnesses before the criminal court that is Adiyodi and Peter, in our view, was a serious flaw in the conduct of the criminal case by the Prosecution. Considering the facts and circumstances of the case, the possibility of winning order P.Ws. 1 and 2 in the criminal case cannot be ruled out. We fail to see, why the Prosecution had not examined Head Constables 1368 Adiyodi and 1079 Peter of Tenkasi Police Station. Considering the facts and circumstances of the case, the possibility of winning order P.Ws. 1 and 2 in the criminal case cannot be ruled out. We fail to see, why the Prosecution had not examined Head Constables 1368 Adiyodi and 1079 Peter of Tenkasi Police Station. It was these two Head Constables who took the respondent from the scene of occurrence along with P.Ws. 1 and 2, husband and wife, to the Tenkasi Police Station and it is in their presence that the complaint was registered. In fact, the criminal court has also opined that the signature of PW 1 (husband complainant) is found in Ex.P1 Complaint. Further, the Doctor P.W.8 has also clearly stated before the Enquiry Officer that the respondent was under the influence of liquor and that he had refused to undergo blood and urine tests. That being the factual situation, we are of the view that the respondent was not honourably acquitted by the criminal court, but only due to the fact that PW 1 and PW 2 turned hostile and other prosecution witnesses were not examined. 24. The meaning of the expression “honourable acquittal” came up for consideration before this Court in Management of Reserve Bank of India, New Delhi v. Bhopal Singh Panchal (1994) 1 SCC 541 . In that case, this Court has considered the impact of Regulation 46(4) dealing with honourable acquittal by a criminal court on the disciplinary proceedings. In that context, this Court held that the mere acquittal does not entitle an employee to reinstatement in service, the acquittal, it was held, has to be honourable. The expressions “honourable acquittal”, “acquitted of blame”, “fully exonerated” are unknown to the Code of Criminal Procedure or the Penal Code, which are coined by judicial pronouncements. It is difficult to define precisely what is meant by the expression “honourably acquitted”. When the accused is acquitted after full consideration of prosecution evidence and that the prosecution had miserably failed to prove the charges levelled against the accused, it can possibly be said that the accused was honourably acquitted. 25. In R.P. Kapoor v. Union of India, AIR 1964 SC 787 , it was held even in the case of acquittal, departmental proceedings may follow where the acquittal is other than honourable. 25. In R.P. Kapoor v. Union of India, AIR 1964 SC 787 , it was held even in the case of acquittal, departmental proceedings may follow where the acquittal is other than honourable. In State of Assam and another v. Raghava Rajgopalachari reported in 1972 SLR 45, this Court quoted with approval the views expressed by Lord Williams, J. in (1934) 61 ILR Cal. 168 which is as follows: “The expression “honourably acquitted” is one which is unknown to court of justice. Apparently it is a form of order used in courts martial and other extra judicial tribunals. We said in our judgment that we accepted the explanation given by the appellant believed it to be true and considered that it ought to have been accepted by the Government authorities and by the magistrate. Further, we decided that the appellant had not misappropriated the monies referred to in the charge. It is thus clear that the effect of our judgment was that the appellant was acquitted as fully and completely as it was possible for him to be acquitted. Presumably, this is equivalent to what Government authorities term “honourably acquitted”. 26. As we have already indicated, in the absence of any provision in the service rule for reinstatement, if an employee is honourably acquitted by a Criminal Court, no right is conferred on the employee to claim any benefit including reinstatement. Reason is that the standard of proof required for holding a person guilty by a criminal court and the enquiry conducted by way of disciplinary proceeding is entirely different. In a criminal case, the onus of establishing the guilt of the accused is on the prosecution and if it fails to establish the guilt beyond reasonable doubt, the accused is assumed to be innocent. It is settled law that the strict burden of proof required to establish guilt in a criminal court is not required in a disciplinary proceedings and preponderance of probabilities is sufficient. There may be cases where a person is acquitted for technical reasons or the prosecution giving up other witnesses since few of the other witnesses turned hostile etc. In the case on hand the prosecution did not take steps to examine many of the crucial witnesses on the ground that the complainant and his wife turned hostile. The court, therefore, acquitted the accused giving the benefit of doubt. In the case on hand the prosecution did not take steps to examine many of the crucial witnesses on the ground that the complainant and his wife turned hostile. The court, therefore, acquitted the accused giving the benefit of doubt. We are not prepared to say in the instant case, the respondent was honourably acquitted by the criminal court and even if it is so, he is not entitled to claim reinstatement since the Tamil Nadu Service Rules do not provide so. 27. We have also come across cases where the service rules provide that on registration of a criminal case, an employee can be kept under suspension and on acquittal by the criminal court, he be reinstated. In such cases, the re-instatement is automatic. There may be cases where the service rules provide in spite of domestic enquiry, if the criminal court acquits an employee honourably, he could be reinstated. In other words, the issue whether an employee has to be reinstated in service or not depends upon the question whether the service rules contain any such provision for reinstatement and not as a matter of right. Such provisions are absent in the Tamil Nadu Service Rules.” 17. Their Lordships of the Hon'ble Supreme Court in Commissioner of Police, New Delhi and another vs Mehar Singh, (2013) 7 SCC 685 have held that an acquittal based on benefit of doubt would not stand on a par with a clean acquittal on merit after a full fledged trial, where there is no indication of the witnesses being won over. Their Lordships have held as under: 24. We find no substance in the contention that by cancelling the respondents’ candidature, the Screening Committee has overreached the judgments of the criminal court. We are aware that the question of co- relation between a criminal case and a departmental inquiry does not directly arise here, but, support can be drawn from the principles laid down by this Court in connection with it because the issue involved is somewhat identical namely whether to allow a person with doubtful integrity to work in the department. While the standard of proof in a criminal case is the proof beyond all reasonable doubt, the proof in a departmental proceeding is preponderance of probabilities. Quite often criminal cases end in acquittal because witnesses turn hostile. Such acquittals are not acquittals on merit. While the standard of proof in a criminal case is the proof beyond all reasonable doubt, the proof in a departmental proceeding is preponderance of probabilities. Quite often criminal cases end in acquittal because witnesses turn hostile. Such acquittals are not acquittals on merit. An acquittal based on benefit of doubt would not stand on par with a clean acquittal on merit after a full fledged trial, where there is no indication of the witnesses being won over. In R.P. Kapur v. Union of India this Court has taken a view that departmental proceedings can proceed even though a person is acquitted when the acquittal is other than honourable. 25. The expression “honourable acquittal” was considered by this Court in S. Samuthiram. In that case this Court was concerned with a situation where disciplinary proceedings were initiated against a police officer. Criminal case was pending against him under Section 509 of the IPC and under Section 4 of the Eve-teasing Act. He was acquitted in that case because of the non-examination of key witnesses. There was a serious flaw in the conduct of the criminal case. Two material witnesses turned hostile. Referring to the judgment of this Court in Management of Reserve Bank, New Delhi v. Bhopal Singh Panchal], where in somewhat similar fact situation, this Court upheld a bank’s action of refusing to reinstate an employee in service on the ground that in the criminal case he was acquitted by giving him benefit of doubt and, therefore, it was not an honourable acquittal, this Court held that the High Court was not justified in setting aside the punishment imposed in departmental proceedings. This Court observed that the expressions “honourable acquittal”, “acquitted of blame” and “fully exonerated” are unknown to the Criminal Procedure Code or the Penal Code. They are coined by judicial pronouncements. It is difficult to define what is meant by the expression “honourably acquitted”. This Court expressed that when the accused is acquitted after full consideration of prosecution case and the prosecution miserably fails to prove the charges leveled against the accused, it can possibly be said that the accused was honourably acquitted. 26. They are coined by judicial pronouncements. It is difficult to define what is meant by the expression “honourably acquitted”. This Court expressed that when the accused is acquitted after full consideration of prosecution case and the prosecution miserably fails to prove the charges leveled against the accused, it can possibly be said that the accused was honourably acquitted. 26. In light of above, we are of the opinion that since the purpose of departmental proceedings is to keep persons, who are guilty of serious misconduct or dereliction of duty or who are guilty of grave cases of moral turpitude, out of the department, if found necessary, because they pollute the department, surely the above principles will apply with more vigour at the point of entry of a person in the police department i.e. at the time of recruitment. If it is found by the Screening Committee that the person against whom a serious case involving moral turpitude is registered is discharged on technical grounds or is acquitted of the same charge but the acquittal is not honourable, the Screening Committee would be entitled to cancel his candidature. Stricter norms need to be applied while appointing persons in a disciplinary force because public interest is involved in it.” 18. In the instant case also, the workman has been acquitted by the trial court by giving him the benefit of doubt. 19. Petitioner has been terminated by way of punishment after holding enquiry against him. Notice was issued to him under section 25-F of the Industrial Disputes Act only by way of abundant precaution. 20. Accordingly, in view of the discussion and analysis made herein above, the petition is allowed. Award dated 1.9.2012 is set aside. Pending application(s), if any, also stand disposed of.