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PETITIONER: MAKHAN SINGH

       Vs.

RESPONDENT: NARAINPURA CO-OPERATIVE AGRICULTURALSERVICE SOCIETY LTD. & A

DATE OF JUDGMENT17/07/1987

BENCH: VENKATARAMIAH, E.S. (J) BENCH: VENKATARAMIAH, E.S. (J) SINGH, K.N. (J)

CITATION:  1987 AIR 1892            1987 SCR  (3) 527  1987 SCC  (3) 571        JT 1987 (3)    87  1987 SCALE  (2)57

ACT:     Industrial Disputes Act 1947---Termination of service of a  workman without holding a domestic enquiry is not  justi- fied.

HEADNOTE:     The  respondent-Society  terminated the service  of  the appellant, who stayed away from work for a few days, without holding  a  domestic  enquiry. Upon  an  industrial  dispute having been raised, the question whether the termination  of service was justified was referred to the Labour Court under S. 10(1)(c) of the Industrial Disputes Act, 1947. The appel- lant submitted that he had stayed away from work due to  his illness and gave evidence in support thereof. The respondent pleaded  that the appellant had gone ’on a  strike’  without obtaining  any leave and had also committed embezzlement  of money belonging to it. The Labour Court came to the  conclu- sion  that  the appellant had absented himself  from  duties without  obtaining leave and, accepting photostat copies  of certain documents furnished by the respondent found that the appellant had committed the alleged embezzlement. It accord- ingly  held that the termination of service  was  justified. The  appellant’s  writ  petition against the  award  of  the Labour Court was dismissed in limine by the High Court.     Allowing the appeal by special leave and ordering  rein- statement of the appellant in service with full back wages,     HELD:The  termination  of the service of  the  appellant without holding any domestic enquiry is unjustified.  [530E- F]     The  finding of the Labour Court that the appellant  had embezzled amounts belonging to the respondent without  going into the question whether the photostat copies of  documents produced could be accepted as evidence in the absence of the originals,  when no explanation was given by the  respondent for not producing the originals, is without any basis and is liable to be set aside. The finding of the Labour Court that the  appellant  had  absented himself  from  duties  without obtaining leave is not sustainable for the reason .that  the case of the respondent was that 528 the appellant had gone ’on a strike’ and, if that was so, no

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question of obtaining any leave would arise. There was  also no  reason to reject the evidence given by the appellant  in support  of  his assertion that he had not attended  to  his work during the relevant period due to his illness. [530A-C]     (ii)  If the appellant has worked in any other  society, the  amount  of back wages payable shall be reduced  by  the salary  drawn by the appellant from such society during  the period subsequent to his termination of service. [531A]

JUDGMENT:     CIVIL  APPELLATE JURISDICTION: Civil Appeal No. 1080  of 1987.     From  the  Judgment  and Order dated 3.2.  1986  of  the Punjab and Haryana High Court in C.W. No. 561 of 1986. Pramod Ahuja and Kailash Vasdev for the Appellant. P.N. Puri for the Respondents. The Judgment of the Court was delivered by     VENKATARAMIAH,  J.  The  appellant,  Makhan  Singh,  was working as the Secretary of Narainpura Co-operative Agricul- tural Service Society Limited, Narainpura, District  Feroze- pur--Respondent  No.  1  (hereinafter referred  to  as  ’the Society’).  He did not attend to his duties between May  11, 1981 and May 29, 1981 and that he had stayed away from  work during  that period. The Society passed a resolution on  May 30, 1981 terminating his services. On an industrial  dispute being  raised the Labour Commissioner, Punjab  referred  the following  questions  to the Labour  Court,  Bhatinda  under section 10(I)(c) of the Industrial Disputes Act, 1947:               Whether  termination  of  services  of  Makhan               Singh,  workman is justified and in order?  If               not,   to   what   relief/exact   amount    of               compensation is he entitled?     Before  the Labour Court the appellant filed his  state- ment of claim in which he asserted that he had not  attended to his work between May 11, 1981 and May 29, 1981 due to his illness,  that he had taken leave for that period  and  that his  services had been terminated by the management  without any justification. He further alleged that he had put in six years of service in the Society and was drawing a salary  529 of  Rs.460 per month at the time of the termination  of  his services.  He prayed for reinstatement in his post and  also for  back  wages.  The Society contested the  claim  of  the appellant  on various grounds. It alleged that  the  Society was  not ’an industry and the Industrial Disputes Act,  1947 was  not applicable. It pleaded that the appellant had  gone ’on  a strike’ without obtaining any leave and that  he  had also  committed embezzlement of the money belonging  to  the Society.  The  Labour  Court found that  the  appellant  had committed embezzlement and that he had absented himself from duties  without obtaining leave. It accordingly  found  that the termination of the services of the appellant was  justi- fied. It, however, held that the Society was an industry and the  Labour  Court had jurisdiction to pass the  award.  The Labour  Court accordingly rejected the claim.  Aggrieved  by the  award passed by the Labour Court the appellant filed  a writ petition in Civil Writ Petition No. 561 of 1986 on  the file  of the High Court of Punjab & Haryana.  That  petition was  dismissed  in limine by the High Court on  February  3, 1986.  This  appeal by special leave has been filed  by  the appellant against the decision of the High Court as well  as against the award of the Labour Court.     Admittedly, no domestic enquiry was held by the  manage-

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ment  before passing the order of termination of the  appel- lant’s  services.  Before the Labour  Court  the  management tried  to  justify the order of termination  of  appellant’s services on the two grounds, namely, that the appellant  had embezzled  certain  amounts of the Society and that  he  had absented  himself  from duty without  obtaining  leave.  The evidence  led by the management in support of the  embezzle- ment  alleged by it is very scrappy indeed. It  relied  upon the evidence of Ram Sarup, who was working as the  Secretary of the Society that the appellant had received a sum of  Rs. 125 from one shareholder Bhaga Ram but he had made an  entry in  the account books stating that only a sum of Rs.100  had been  received and that the appellant had received a sum  of Rs.1145 and Rs.150 from Sat Pal and Jagir Singh,  sharehold- ers of the Society respectively and had made entries in  the account books showing that he had received Rs.920 and Rs.125 respectively from them. The management produced three photo- stat  copies  of the entries in the pass  books  which  were marked  as Exhibits M/1 to M/3. The originals were not  pro- duced.  The  appellant  denied  having  misappropriated  the amount of Rs.25 in the first case, Rs.205 in the second case and  Rs.25 in the third case. he stated that  the  photostat copies  were fabricated documents. The Labour Court  however accepted the evidence placed before it by the management. It did  not go into the question whether the photostat  copies, Exhibits M 1 to M 3, could be accepted as evi- 530 dence in the absence of the originals. The award shows  that no  explanation  had been given by the  management  for  not producing  the  originals.  We are not  satisfied  with  the finding recorded by the Labour Court that the appellant  had embezzled amounts belonging to the Society. The said finding is  without  any basis and is, therefore, liable to  be  set aside. The Labour Court has also accepted that the appellant had  absented himself from duty without obtaining leave.  It is  interesting to note that the case of the Society  before the Labour Court was that the appellant had gone on a strike without  getting  any leave. If he had gone on a  strike  no question  of obtaining any leave would arise. The  appellant gave  evidence before the Labour Court stating that  he  was ill and, therefore, he was not able to attend to his duties. He  also stated that he had obtained necessary  leave  sanc- tioned before absenting himself from duties. Of course,  the appellant  could not produce any record showing that he  had given  the  application for leave to  the  management  which could only be in the possession of the Society. In any event there was no reason at all for rejecting the evidence  given by  him. The finding on the above question is also not  sus- tainable on the material placed before the Court. We  regret to  observe  that the approach of the Labour  Court  to  the whole case is highly casual and superficial.     On  a consideration of the whole material placed  before this  Court  we  are of the view that the  decision  of  the management in the instant case to terminate the services  of the appellant without holding any domestic enquiry is not  a bona  fide one. We accordingly hold that the termination  of the  appellant’s services is unjustified. In the  result  we set  aside  the  judgment of the High Court  and  the  award passed  by the Labour Court and pass an award directing  the Society  to  reinstate  the appellant in  its  service  with effect  from  May 30, 1981, the date on  which  the  Society passed the resolution terminating the appellant’s  services. The  appellant shall be treated as being in the  service  of the Society without any break in his service. He is entitled to all the consequential benefits. We direct the Society  to

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pay full back wages to the appellant from the date of termi- nation of his service till the date of reinstatement.     Shri P.N. Puff, learned counsel for the Society  pleaded that  the  appellant  was working  in  another  co-operative society after his services were terminated and that the back wages  payable  to the appellant should be  reduced  by  the salary drawn by him from the said society. If the  appellant has  worked in any other society, as pleaded by the  learned counsel for the Society, the amount of back wages payable  531 under this award shall be reduced by the salary drawn by the appellant during the period subsequent to his termination of service  from  any  other society. The  Labour  Court  shall determine  the actual amount payable by the Society  to  the appellant  after  hearing both the parties.  The  appeal  is accordingly  allowed. The appellant is entitled  to  recover costs from the Society which we quantify at Rs.1,000. H.L.C.                                       Appeal allowed. 532