{"id":198887,"date":"2009-07-20T00:00:00","date_gmt":"2009-07-19T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/manmohan-sood-vs-the-presiding-officer-on-20-july-2009"},"modified":"2018-11-17T11:51:10","modified_gmt":"2018-11-17T06:21:10","slug":"manmohan-sood-vs-the-presiding-officer-on-20-july-2009","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/manmohan-sood-vs-the-presiding-officer-on-20-july-2009","title":{"rendered":"Manmohan Sood vs The Presiding Officer on 20 July, 2009"},"content":{"rendered":"
Punjab-Haryana High Court<\/div>\n
Manmohan Sood vs The Presiding Officer on 20 July, 2009<\/div>\n
C.W.P No.5097 of 1995                                        -1-\n\n IN THE HIGH COURT FOR THE STATES OF PUNJAB AND\n             HARYANA AT CHANDIGARH\n\n                              C.W.P No.5097 of 1995\n                              Date of Decision: 20.07.2009\n\nManmohan Sood                                         .....Petitioner\n\n                               Versus\n\nThe Presiding Officer, Labour Court, U.T. and another\n\n                                                  ...Respondents<\/pre>\n
Present: Mr. Rahul Sharma, Advocate
\n         for the petitioner.\n<\/p>\n
          Mr. Ramesh Chopra, Advocate
\n          for respondent No.2.\n<\/p>\n
CORAM:HON’BLE MR. JUSTICE K. KANNAN<\/p>\n
1.        Whether Reporters of local papers may be allowed to see
\n          the judgment ? Yes\n<\/p>\n
2.        To be referred to the Reporters or not ?Yes\n<\/p>\n
3.        Whether the judgment should be reported in the Digest?Yes\n<\/p>\n
                               -.-\n<\/p>\n
K. KANNAN J.\n<\/p>\n
1.        The point of reference before the Labour Court was whether<\/p>\n
the workman, who was working as a Salesman in the Central<\/p>\n
Cooperative Consumers Store Ltd., Chandigarh had been responsible<\/p>\n
for a shortage that worked out to a loss of Rs.1,08,888.61 and whether<\/p>\n
he was validly terminated from service. The Labour Court answered<\/p>\n
the reference against the workman and upheld the contention of the<\/p>\n
management. Aggrieved workman is the party before this Court that<\/p>\n
challenges the award of the Labour Court by the writ petitioner.<\/p>\n
2.        The charge-sheet imputing allegations of misappropriation<\/p>\n
germinated from the fact that the workman had confirmed his liability<\/p>\n
in the liability register on 28.02.1987. There had been a balance as on
\n C.W.P No.5097 of 1995                                      -2-<\/span><\/p>\n
06.03.1987 of Rs.1,08,888.61 against the workman which he was<\/p>\n
called upon to reconcile. The workman had availed several<\/p>\n
opportunities but did not reconcile the same. To the charge-sheet, the<\/p>\n
reply was that he had not admitted his liability and his signature had<\/p>\n
been taken in some paper on a representation that if he did not do so,<\/p>\n
the management would give a complaint to the police. It was the<\/p>\n
statement in defence that he had also paid Rs.40,000\/- to cashier in<\/p>\n
cash, which had not been brought to the books of account. At the<\/p>\n
enquiry, the management examined Sh. Shugan Chand, who produced<\/p>\n
photocopies of the register, which was Mark ‘A1’ to Mark ‘A4’ but<\/p>\n
significantly they had not been exhibited as documents in evidence.<\/p>\n
The workman pointed out to the fact that no documents had been<\/p>\n
produced that could be said to admit his liability and his contention<\/p>\n
was also that the witness brought on behalf of the management did not<\/p>\n
himself know whether cash had been paid by the workman to the<\/p>\n
cashier or not. He was also unaware about the correctness of entries<\/p>\n
in the liability register and therefore, the contention was that<\/p>\n
management had not established before the Enquiry Officer that there<\/p>\n
had been any case of defalcation. The enquiry had been concluded<\/p>\n
and report of guilt was returned.     The order of termination was<\/p>\n
subsequently passed and when the workman demurred and refused to<\/p>\n
accept the finding, the adjudication was sought through reference to<\/p>\n
the Labour Court.\n<\/p>\n
3.       Before the Labour Court, it was shown that the fundamental<\/p>\n
flaw in the enquiry proceedings was that subsistence allowance had<\/p>\n
not been paid and that the workman did not have the necessary
\n C.W.P No.5097 of 1995                                          -3-<\/span><\/p>\n
wherewithal to put up a proper defence. The management conceded<\/p>\n
to the inherent defect although it did not concede that the finding itself<\/p>\n
was vitiated. It sought for a finding as a preliminary issue whether the<\/p>\n
proceedings before the Enquiry Officer were to be held to be not fair,<\/p>\n
the manager was prepared to prove the guilt before the Labour Court.<\/p>\n
The Labour Court by its order dated 17.08.1993 found that the enquiry<\/p>\n
had been vitiated and the management was given an opportunity to<\/p>\n
prove the alleged misconduct in Court. The management examined<\/p>\n
the accountant, Sh. Shugan Chand and another witness, Sh. Gurmit<\/p>\n
Singh, a Law Officer of the department and also produced the enquiry<\/p>\n
report. The workman examined himself.\n<\/p>\n
4.        Adverting to the objections of the workman that the liability<\/p>\n
register itself had not been proved and there was nothing on record to<\/p>\n
show that he had admitted his liability, the Labour Court ruled that<\/p>\n
documents Mark A-1 to Mark A-4 which were photocopies had been<\/p>\n
admitted before the Enquiry Officer and therefore, it was not possible<\/p>\n
to deny the genuineness of the documents. The Labour Court also<\/p>\n
commented on the fact that the workman could not be said to be<\/p>\n
speaking the truth when he was contending that Rs.40,000\/- had been<\/p>\n
paid to the cashier and according to the Labour Court, it was<\/p>\n
inconceivable that such a large amount could have been paid. It also<\/p>\n
observed that the very fact that Rs.40,000\/- was said to have been<\/p>\n
deposited showed admission of guilt for, if no amount had been<\/p>\n
misappropriated, there was no need for deposit of Rs.40,000\/-.<\/p>\n
5.        At the outset, the power of the Labour Court to take<\/p>\n
evidence and prove the guilt in cases where it was found that the
\n C.W.P No.5097 of 1995                                       -4-<\/span><\/p>\n
enquiry before the Enquiry Officer was vitiated, was pointed out by<\/p>\n
learned counsel appearing for the respondent as perfectly justified by<\/p>\n
referring to a decision of the Hon’ble Supreme Court in<\/p>\n
Cooper Engineering Limited Vs. P.P. Mundhe 1975 II LLJ 379 that<\/p>\n
held that where a case of dismissal or discharge of employee is<\/p>\n
referred for adjudication, the Labour Court must first decide as a<\/p>\n
preliminary issue whether the domestic enquiry was following the<\/p>\n
principles of natural justice and if it found that the enquiry was<\/p>\n
vitiated for any reason, it was competent for the Labour Court to allow<\/p>\n
the proof to be adduced before it for rendering an adjudication.<\/p>\n
Although the manner of conduct of enquiry regarding examination of<\/p>\n
witnesses or the adequacy of the evidence was itself not in challenge,<\/p>\n
the management had conceded that the enquiry was vitiated by the fact<\/p>\n
that subsistence allowance had not been paid to the workman and it<\/p>\n
took upon itself the burden of establishing the alleged guilt of the<\/p>\n
delinquent before the Labour Court. In view of the stand taken by the<\/p>\n
management, the case of proof of guilt was required to be examined<\/p>\n
only in the manner of how evidence had been adduced and how the<\/p>\n
charge was sought to be proved before the Labour Court. The finding<\/p>\n
of the Enquiry Officer itself loses value and so too nature of evidence<\/p>\n
produced before the Enquiry Officer.\n<\/p>\n
6.        Learned counsel appearing for the workman, Sh. Rahul<\/p>\n
Sharma contended that there was no document at all which had been<\/p>\n
accepted as a document supporting the contention that there had been<\/p>\n
any admission of liability.   According to him, the finding of the<\/p>\n
Labour Court that documents Mark A-1 to Mark A-4 had been
\n C.W.P No.5097 of 1995                                         -5-<\/span><\/p>\n
established was wrong since the documents had not been exhibited as<\/p>\n
evidence. Mere filing of documents, he contended would not amount<\/p>\n
to proof of the same. In the absence of proof through any documents,<\/p>\n
it could not be stated that even the so-called liability register had been<\/p>\n
established. He pointed out to the evidence of Mr. Gurmit Singh, who<\/p>\n
referred to document Mark-A, which was photocopy of indent<\/p>\n
No.4355 that purported to show that material amounting to<\/p>\n
Rs.84,000\/- was taken under his signature by the workman. This<\/p>\n
document was denied in evidence by the workman by contending that<\/p>\n
he had not signed in the document and he had not received the<\/p>\n
document amounting to Rs.84,000\/-. Documents Mark-B to E were<\/p>\n
purported to be letters written to the workman to reconcile liability<\/p>\n
and the receipt of letters themselves were not denied and therefore,<\/p>\n
even without reference to a document it might be noticed that the<\/p>\n
management was at various time calling upon the workman to<\/p>\n
reconcile liability. In the cross-examination, it was admitted by Sh.<\/p>\n
Gurmit Singh that he had himself not prepared the indent nor was it<\/p>\n
prepared in his presence. He also admitted that letters seeking for<\/p>\n
reconciliation of accounts had not been issued by him and it was not<\/p>\n
part of his duties to write letters which were Mark-B to Mark-E. He<\/p>\n
also denied knowledge if the workman had deposited Rs.40,000\/-.<\/p>\n
Therefore, it could be seen that the evidence of Gurmit Singh itself<\/p>\n
proved neither the indent register nor alleged admission of liability by<\/p>\n
the workman.\n<\/p>\n
7.        The statement of Shugan Chand was placed before Labour<\/p>\n
Court where he gave evidence to the effect that on 28.02.1987, the
\n C.W.P No.5097 of 1995                                        -6-<\/span><\/p>\n
workman had confirmed his liability in the register. It has to be again<\/p>\n
noticed that the liability register Mark A-1 to Mark A-4 from<\/p>\n
December, 1986 to March, 1987 had not been accepted as evidence<\/p>\n
and merely the photocopies had been referred to in the evidence. In<\/p>\n
the cross-examination, he admitted that the liability register was being<\/p>\n
maintained by a clerk and the liabili ty register was compared with the<\/p>\n
indent as per records. Even the WW-1 had not been produced in<\/p>\n
original and merely a photocopy had been filed. With reference to<\/p>\n
document Ex.W-1 also, the management witness, Sh. Shugan Chand<\/p>\n
admitted that he had not brought the original. A discrepancy was<\/p>\n
confronted to the witness that indent No.4154 had been shown to have<\/p>\n
been issued on 04.12.1986 whereas the particular indent whereby the<\/p>\n
workman was alleged to have received materials amounting to<\/p>\n
Rs.84,000\/- was shown bearing No.4155 which was dated the<\/p>\n
previous date. This discrepancy was also pressed with vehemence by<\/p>\n
the learned counsel for the workman to point out that the alleged<\/p>\n
indent which purported to prove the receipt of materials to the tune of<\/p>\n
Rs.84,000\/- had not been established at all, in spite of his denial that<\/p>\n
he had received the materials and that he had signed the indent. Again<\/p>\n
with reference to the payment of the workman to the extent of<\/p>\n
Rs.40,000\/- to the cashier, Shugan Chand, the accountant had denied<\/p>\n
any knowledge about the same. He admitted that if there was any<\/p>\n
payment, it could have been entered in the cash book but he had not<\/p>\n
brought the cash book before the Court.\n<\/p>\n
8.        In order that the charge might stick, three things at least<\/p>\n
were required to be established (i) that the workman had signed the
\n C.W.P No.5097 of 1995                                          -7-<\/span><\/p>\n
indent and had received the materials. For this, the original indent<\/p>\n
was not there and both the management witnesses gave no evidence of<\/p>\n
the absence of the original or produced proof that the workman had<\/p>\n
actually signed in the indent; (ii) The signature in the liability register<\/p>\n
would have pinned down the liability of the workman. The liability<\/p>\n
registers purporting to contain the signature of the workman were<\/p>\n
again not produced before the Court nor was the clerk who had<\/p>\n
admitted to have made the entries examined before the Labour Court;<\/p>\n
(iii) the remittance of Rs.40,000\/- in cash to the cashier was not even<\/p>\n
specifically denied by the the accountant, Sh. Shugan Chand, who<\/p>\n
merely said that he did not know whether Rs.40,000\/- had been paid<\/p>\n
to the cashier.\n<\/p>\n
7.        In spite of these deficiencies, the Labour Court went on to<\/p>\n
observe that the management had proved the guilt by a sweeping<\/p>\n
observation that all the documents, which were photocopies had been<\/p>\n
admitted by the workman. While strict rules of evidence may not be<\/p>\n
applied in an enquiry before the Enquiry Officer and leeway could be<\/p>\n
made for certain deviation so long as there were cogent reasons and<\/p>\n
proof in support of the contention of the management, the Labour<\/p>\n
Court that passed an order rejecting the Enquiry Officer’s report and<\/p>\n
undertaken a responsibility to direct the parties to give evidence<\/p>\n
before it, could not have also thrown the rules of evidence to the<\/p>\n
winds. In the absence of any evidence or production of documents<\/p>\n
relating to the liability register, mere reference to documents Mark A-<\/p>\n
1 to Mark A-4 could not have been relied on by the Labour Court to<\/p>\n
establish admission of liability by the workman. It is not clear from
\n C.W.P No.5097 of 1995                                          -8-<\/span><\/p>\n
the records as to what the workman had admitted before the Enquiry<\/p>\n
Officer. Even admission to the existence of documents would not<\/p>\n
amount to admission of the recitals in the documents nor would it<\/p>\n
dispense with the necessity to prove the documents in the manner<\/p>\n
required by law. The burden of proof of establishing the guilt and<\/p>\n
misappropriation could never shift, it would lie anchored in the<\/p>\n
management at all times.       The onus of proof could shift to the<\/p>\n
workman in case there was any evidence let in that was acceptable to<\/p>\n
show that there was either proof of receipt of materials worth<\/p>\n
Rs.84,000\/- or there had been a shortfall of stocks to the tune of<\/p>\n
Rs.1,08,888.61. The failure of the workman to turn up in spite of<\/p>\n
notices for reconciling the account itself cannot amount to proof of the<\/p>\n
charge-sheet. The charge was not after all the failure to reconcile<\/p>\n
account but the charge was of misappropriation. Even independently<\/p>\n
of his liability to turn up at the office and reconcile the accounts, there<\/p>\n
was always the burden on the management to show that there had<\/p>\n
been misappropriation to the tune imputed by them on the workman.<\/p>\n
Such an evidence was just not available.\n<\/p>\n
9.        The Labour Court has rendered the finding of guilt against<\/p>\n
the workman on evidence that did not exist; on admission that the<\/p>\n
workman did not made; and on proof that the management did not<\/p>\n
render. The finding of the Labour Court is vitiated by a complete lack<\/p>\n
of evidence and I have no alternative except to reject the award passed<\/p>\n
by the Labour Court as not conforming to law and evidence.<\/p>\n
10.       Under the circumstances, the award of the Labour Court is<\/p>\n
set aside and the workman is entitled to reinstatement, back wages and
\n C.W.P No.5097 of 1995                                       -9-<\/span><\/p>\n
continuity of service. The writ petition is allowed with costs assessed<\/p>\n
at Rs.5000\/-.\n<\/p>\n
                                                  (K. KANNAN)
\n                                                    JUDGE
\nJuly 20, 2009
\nPankaj*\n <\/p>\n","protected":false},"excerpt":{"rendered":"
Punjab-Haryana High Court Manmohan Sood vs The Presiding Officer on 20 July, 2009 C.W.P No.5097 of 1995 -1- IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P No.5097 of 1995 Date of Decision: 20.07.2009 Manmohan Sood …..Petitioner Versus The Presiding Officer, Labour Court, U.T. and another …Respondents Present: Mr. Rahul […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,28],"tags":[],"class_list":["post-198887","post","type-post","status-publish","format-standard","hentry","category-high-court","category-punjab-haryana-high-court"],"yoast_head":"\nManmohan Sood vs The Presiding Officer on 20 July, 2009 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/manmohan-sood-vs-the-presiding-officer-on-20-july-2009\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Manmohan Sood vs The Presiding Officer on 20 July, 2009 - 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