IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED:28/9/2004.
CORAM
THE HONOURABLE MR.JUSTICE V.KANAGARAJ
WRIT PETITION No.18832 OF 1996
The General Manager
Swadeshi Cotton Mills,
Pondicherry. ... Petitioner
-Vs-
1. The Presiding Officer,
Labour Court,
Pondicherry.
2. S.Dhandapani ... Respondents
Writ Petition filed under Article 226 of the Constitution of India
praying for the relief as stated therein.
For petitioner : Mr.Karthic for
M/s.T.S.Gopalan & Co.
^For R.2 : Mr.A.Sasidharan
:O R D E R
The above Writ Petition has been filed under Article 226 of the
Constitution of India praying to issue a Writ of Certiorari to call for the
records of the first respondent in I.D.No.12 of 1990, dated 28.7.1 995 and
quash the same.
2. On a perusal of the materials placed on record and upon hearing
the learned counsel for both, it comes to be known that the second respondent
was an Electrician with the petitioner Management. The case of the
petitioner/Management is that on 27.10.1988 at about 1.10 a.m., the second
respondent/workman came in a cycle and committed theft of two copper coils
kept near the compound wall and when he was attempting to move his cycle with
the copper coils, he was apprehended by the Security Guard and when questioned
by the security personnel, he admitted the guilt. On such charge, the
petitioner/Management has not only initiated departmental proceedings against
the second respondent/workman but has also lodged a criminal complaint against
him. Thereupon, the petitioner Management has issued a charge memo. dated
28.10 .1988 thereby alleging misconduct of theft, fraud and committing acts
punishable under the law of the land and after investigation in the criminal
case, a charge sheet was also filed before the Court of I Class Magistrate,
Pondicherry in C.C.No.1989.
3. It further comes to be known that thereafter, the Management
conducted a departmental enquiry and having held that the charges were proved
against him, the second respondent was dismissed from service by the
petitioner Management by their order dated 24.5.1989. In the Industrial
Dispute raised by the second respondent/workman challenging his dismissal by
the Management, the Labour Court has ordered reinstatement of the second
respondent in the petitioner Mill. It is only aggrieved against such a
finding of the Labour Court, the petitioner Management has come forward to
file the above writ petition.
4. A careful perusal of the Award passed by the Labour Court would
show that the Labour Court has proceeded on the basis that the second
respondent was acquitted in the criminal proceedings in C.C.No.66 of 1989 and
held that in such circumstances, the petitioner has no power to dismiss the
second respondent for the same alleged misconduct since it amounts to ‘double
jeopardy’ for the single act alleged to have been committed on the part of the
second respondent.
5. The learned counsel for the petitioner would Pooh-pooh the said
finding of the Labour Court on ground that it is a well established principle
of law that for the same misconduct, the employee can be taken to task both
under the criminal law and also under the departmental proceedings and it can
never be treated as a double jeopardy since they both are two different and
distinct proceedings and the standard of proof in departmental enquiry is not
the same as in criminal trial and would cite two judgments of the Honourable
Apex Court, the first one delivered in SENIOR SUPERINTENDENT OF POST OFFICES,
PATHANAMTHITTA AND OTHERS vs. A.GOPALAN reported in (1997) 11 SCC 239 and the
other one in GOVIND DAS vs. STATE OF BIHAR AND OTHERS reported in (1997 ) 11
SCC 361. In both the above judgments, the Honourable Apex Court, in no
uncertain terms, has held:
“The acquittal of the appellant in the criminal proceedings is based on the
view that the charges were not proved beyond reasonable doubt. Since the
standard of proof required to prove a charge of misconduct in departmental
proceedings is not the same as that required to prove a criminal charge, the
acquittal of the appellant in the criminal case could not be made the basis
for setting aside the order for termination of the services of the appellant
passed in the disciplinary proceedings on the basis of evidence adduced in the
departmental inquiry conducted in the charges levelled against the appellant.”
6. Regarding the merits of the case, the learned counsel for the
petitioner would submit that since the offence is one of theft, the Management
is justified in awarding the punishment of dismissal from service and would
cite two judgments of this Court, the first one delivered in T.SEERALAN vs.
THE PRESIDING OFFICER, II ADDITIONAL LABOUR COURT AND OTHERS reported in
1985(II) LLJ 85 and the other one delivered in S.ANTHONISAMY vs. PRESIDING
OFFICER, LABOUR COURT, PONDICHERRY AND ANOTHER reported in 2003 (4) LLN 922.
In both these cases, the learned Judges of this Court have upheld the decision
of the Management in dismissing the workmen therein for theft, which were
considered as serious misconduct. On such arguments, the learned counsel for
the petitioner would pray to set aside the Award of the Labour Court.
7. On the other hand, on the part of the second respondent/workman,
the learned counsel while backing the Award passed by the Labour Court as one
passed after full consideration of all the facts and circumstances of the case
and the law covering the subject and would cite a judgment of this Court
delivered in S.RANGASAMY vs. VELLANDIVALASAI INDUSTRIAL WEAVERS COOPERATIVE
PRODUCTION AND SALES SOCIETY LTD., SALEM DISTRICT AND OTHERS reported in
1992-1-LLN 1028 wherein a learned single Judge of this Court, way-back in the
year 1991, while considering the point ‘whether in the face of acquittal in
criminal case, the petitioner-employee was entitled to reinstatement’, has
held that ‘ while Courts admit that acquittal in criminal charge may not be a
bar to departmental proceeding, it will be of significance and importance in
departmental proceeding and go a long way to show the innocence of employee’
and in the facts of the case, has remitted the matter to the Labour Court with
a direction to give weight to the findings of the Sessions Court in the
criminal appeal.
8. Citing the above judgment of the learned single Judge of this
Court and further submitting that the Labour Court has appreciated the entire
facts and circumstances of the case in the manner required under law and has
correctly arrived at the decision to order reinstatement of the second
respondent, the learned counsel for the second respondent would pray to
dismiss the above writ petition.
9. As pointed out on the part of the petitioner, the Labour Court has
proceeded on the basis of the acquittal judgment rendered in the criminal
proceedings further holding that it is nothing but a double jeopardy. The law
is well settled to the effect that both the departmental proceedings and the
criminal proceedings are two independent parallel proceedings which could be
initiated against an erring employee and neither of the decisions would be
binding on the other. When such is the well settled position of law now, the
Labour Court has gone upto the extent of remarking that the proceeding against
the employee under both the laws as of double jeopardy, which is nothing but a
surmise or an illusion. In view of the latest judicial thinking, as held by
the Honourable Apex Court in the judgments cited supra and in very many other
judgments, the view held by the learned single Judge of this Court in the
judgment cited on the part of the second respondent is held no longer a good
law and would not become applicable in the case in hand.
10. For the foregoing reasons assigned, the above Writ Petition
though succeeds, paving way for setting aside the order of the Labour court
below, still, in the considered opinion of this Court since the Labour Court
has been under miserable misconception of the legal position regarding the
bearing of a decision of a criminal court on the domestic proceeding and being
influenced by such thought occupied in its mind, the Labour Judge without
giving vent to the standard of proof and the requirement for a valid
conclusion to be arrived at in the matter concerned with a departmental
proceeding, has arrived at a wrong conclusion based on such perception
regarding the legality which is erroneous and therefore with these
clarifications, it is only proper for setting aside the award passed by the
Labour Court, to order a fresh enquiry to be held with sufficient opportunity
for both parties to be heard and to deliver a judgment on merits and in
accordance with law in a time bound manner and hence the following order:
In result,
(i) the above Writ Petition stands allowed in part;
(ii)the Award dated 28.7.1995 made in I.D.No.12 of 1990 by the Labour Court,
Pondicherry is quashed;
(iii) the subject matter is remitted back to the Labour Court, Pondicherry to
conduct a fresh enquiry with sufficient opportunity for both parties to be
heard and to deliver a judgment on merits and in accordance with law in the
manner aforementioned within six months from the date of receipt of a copy of
this order;
(iv) till such time, the status that is prevalent as on date shall not be
disturbed.
However, in the circumstances of the case, there shall be no order as
to costs.
Index: Yes
Internet: Yes
Rao
To
The Labour Court,
Pondicherry.