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2015 DIGILAW 1088 (RAJ)

Rajasthan Housing Board v. Roshan Lal Saini

2015-05-18

SUNIL AMBWANI, VEERENDR SINGH SIRADHANA

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Judgment : 1. We have heard learned counsel appearing for the parties. 2. These Special Appeals arise out of the judgment of learned Single Judge dated 23.05.2014, by which he has allowed the writ petition filed by Roshan Lal Saini, challenging the order dated 29.05.2013 passed by Labour Court Jaipur-I, Jaipur in L.C.R. 38/11, by which the petitioner was held to be workman within the meaning of section 2(s) of the Industrial Disputes Act, 1947, and that the domestic enquiry conducted against him by the respondent-Rajasthan Housing Board, in which he was held to be guilty of charges of serious misconduct and was dismissed from service, was held to be just fair and proper. 3. Learned Single Judge, after considering the chequered history of the case in which the respondent Roshan Lal Saini had approached the High Court and had thereafter approached the Supreme Court, challenging the findings of the High Court in which he was relegated to the remedies of the Labour Court. The petitioner had withdrawn the Special Leave to Appeal with liberty to move the appropriate forum in accordance with law. Learned Single Judge held that the order of the Labour Court holding the departmental enquiry to be fair and reasonable, was vitiated on the grounds that the evidence was not led by the employer on all the charges and the appellant was not given sufficient opportunity to cross-examine the witnesses of the department. 4. Learned Single Judge held that the procedure adopted by the Labour Court was not justified. The enquiry officer had not analyzed the missing documents, and it was not clear as on what evidence the charges were proved. If the documents were missing, the charges could not be held to be proved. Learned Single Judge held that the enquiry was held to be unfair and improper and remanded the matter to the Labour Court to decide the dispute afresh. 5. So far as the order, by which the petitioner was dismissed for the second time on 25.10.2013, the disciplinary authority had referred to five communications sent to the petitioner calling him to appear before him. 5. So far as the order, by which the petitioner was dismissed for the second time on 25.10.2013, the disciplinary authority had referred to five communications sent to the petitioner calling him to appear before him. Learned Single Judge held that some of those communications are such, which should be eliminated from this sequence as by a letter dated 05.08.2013, the petitioner was required to appear before the disciplinary authority on 20.09.2013, but before the petitioner could appear before him, he was sent another communication vide another letter dated 06.09.2013 changing the date of appearance from 20.09.2013 to 24.09.2013. The petitioner had submitted a representation before the Commissioner, Rajasthan Housing Board that he was required to appear in Contempt Petition No.378/2013 against the enquiry, pending the High Court. He had also requested the Commissioner, Rajasthan Housing Board to postpone the proceedings. Learned Single Judge found that the petitioner was not allowed to substantiate his defence, and when he specially requested for postponing the date on the ground that he had to appear before the High Court in a contempt matter, the departmental enquiry could not have proceeded against him. In any case, an employee, who was already dismissed, could not be dismissed all over and again, even if the charges could not be proved in the departmental enquiry. 6. We do not find any error of law in the judgment of learned Single Judge, inasmuch as, his observation that the Labour Court was not justified in holding the departmental enquiry to be fair and proper are based on assessment of facts and circumstances in which the enquiry officer had recorded the findings, in respect of those charges, on which no evidence was led. The petitioner was also not found to be given sufficient opportunity to cross-examine the witnesses. 7. We are informed that the Labour Court is seized with the matter, and that the respondent Roshan Lal Saini has been afforded opportunity by the Labour Court to cross-examine the prosecution witnesses, but that on account of repeated requests of adjournments made by the workman, the Labour Court is unable to proceed with the matter. 8. We also do not find any good ground to interfere with the findings recorded by learned Single Judge against the second order of dismissal dated 25.10.2013. 8. We also do not find any good ground to interfere with the findings recorded by learned Single Judge against the second order of dismissal dated 25.10.2013. Even if there were some additional charges, on which the departmental made an enquiry and passed the second order of dismissal, the second order of dismissal could not be passed. At best the findings could be recorded on the charges, on which he was not subjected to departmental enquiry in the earlier proceedings, as criminal cases were pending against him. 9. Learned Single Judge has made a formal declaration that the second dismissal order is superfluous, and has set aside the second dismissal order. 10. We are informed that three more writ petitions have been filed in this Court. In S.B.Civil Writ Petition No.1511/2008 the order dated 19.03.2010 by which the departmental enquiry against the charges of embezzlement was separated, and was directed to be proceeded against the respondent separately has been challenged. We do not find that the writ petition, after the first dismissal order dated 03.01.2003, has any significance, inasmuch as, when the first dismissal order dated 03.01.2003 was challenged, and that the challenge, in which the respondent was directed to approach the Labour Court, it was open to the respondent to challenge the order separating the enquiry. He could also have challenged the order in the Labour Court, which is still seized of the matter with regard to validity of the first dismissal order dated 03.01.2003. The writ petition No.1511/2008 is thus meritless, and is liable to be dismissed by learned Single Judge. 11. We are informed that S.B.Civil Writ Petition Nos.2678/2008 & 1511/2008 are pending against the direction of special audit of the accounts in the Rajasthan Housing Board for the period, during which the respondent Roshan Lal Saini was in service. We are unable to appreciate as to how the direction of special audit can be challenged by the employee, who was dismissed on the charges, in which the embezzlement was found proved against him on the findings of the special audit. He has already challenged the first dismissal order dated 03.01.2003, in which the charges of embezzlement were proved in the Labour Court. These two writ petitions will also be listed before learned Single Judge for the consequential orders. 12. He has already challenged the first dismissal order dated 03.01.2003, in which the charges of embezzlement were proved in the Labour Court. These two writ petitions will also be listed before learned Single Judge for the consequential orders. 12. D.B. Civil Special Appeal (Writ) No.1636/2014 has been filed against the order dated 23.05.2014, in which it is alleged by the appellant that the prayer for suspension allowance from 17.08.2002 was not considered. 13. We do not find that the question of suspension allowance was an issue in the Labour Court, where the proceedings are pending after remand. Learned Single Judge was thus not required to consider the matter for suspension allowance in the writ petition. 14. The first dismissal dated 03.01.2003 was challenged in the High Court, and thereafter this matter is pending in the High Court. The petitioner could have raised the question of non-payment of suspension allowance before the Labour Court. Consequently D.B.Civil Special Appeal (Writ) No.1636/2014 is also found to be devoid of merits and is dismissed. 15. We are informed that three First Information Reports were lodged against Roshan Lal Saini-the respondent. The details of the First Information Reports are given as below: Year FIR No. Date of FIR Amt. Of Embesslement (Rs. in lakhs) Irregular Payment (Rs. in lakhs) Missing Vouchers (Rs. in lakhs) Total Amt. (Rs. in lakhs) 2001-02 208/02 04/09/02 19.09 18.79 - 37.88 1998-01 292/02 17.11.02 27.81 1.98 17.55 30.11 1995-98 322/02 20.12.02 6.64 5.92 17.55 30.11 53.54 26.69 68.88 149.11 16. All the aforesaid three FIRs, for embezzlement of Rs.1.49 crores in the period when the respondent was serving as Assistant Accountant in the Rajasthan Housing Board, have been challenged in the High Court. The allegations against the appellant are for issuing cheques in the name of the firms in the name of his wife Smt. Laxmi, after which he used to misplace the records. The fraud could be detected only after a special audit was carried out. The charge-sheet has been filed in all three criminal cases, in which the respondent was also arrested. In the three criminal cases pending in this Court, namely, S.B.Criminal Misc. Petition Nos.525/2007, 539/2007 & 1127/2009, interim orders have been passed staying the proceedings and arrest. We are informed by learned counsel appearing for the Rajasthan Housing Board that in these Criminal Misc. In the three criminal cases pending in this Court, namely, S.B.Criminal Misc. Petition Nos.525/2007, 539/2007 & 1127/2009, interim orders have been passed staying the proceedings and arrest. We are informed by learned counsel appearing for the Rajasthan Housing Board that in these Criminal Misc. Petitions, the original records of the investigation has been summoned by the High Court, and since 2007, after the stay orders were passed, the original records of the investigation are missing from the High Court. 17. We take serious notice of the loss of the original records from the High Court. The Registrar General is directed to carry out an enquiry through the Registrar (Vigilance) of the loss of the original records. The Registrar (Vigilance) will make an enquiry and submit a report to the Registrar General, which will be placed before the Chief Justice on the administrative side for consideration. 18. We are informed that in S.B. Criminal Misc. Petition No.8/2015, arrest of the respondent Roshan Lal Saini has been stayed in a fourth criminal case lodged against him. 19. On the aforesaid discussion, both the Special Appeals are dismissed. The four writ petitions, as above, will be clubbed together and listed before appropriate Bench on 27.05.2015 for consequential orders. All the Criminal Misc. Petitions will be clubbed together, and will be listed before appropriate Bench on 15.07.2015 for orders with the report of the Registrar General in the matter of loss of original records. 20. A copy of this order will be placed in both the files.