The Management Mother Dairy vs Arvind Kumar Arora
2016 Latest Caselaw 3529 Del

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*      IN THE HIGH COURT OF DELHI AT NEW DELHI
                                            RESERVED ON: 23.02.2016
%                                        PRONOUNCED ON: 12.05.2016

+                        LPA 143/2015
THE MANAGEMENT MOTHER DAIRY                                   ..... Appellant
            versus
ARVIND KUMAR ARORA                                          ..... Respondent

                         LPA 144/2015
MOTHER DAIRY                                                  ..... Appellant
            versus
ARVIND KUMAR ARORA                                          ..... Respondent

Appearance: Mr. Lalit Bhasin with Ms. Ratna Dwivedi Dhingra and Ms.
            Bhava Dhami, Advocates for appellant in both matters.
            Mr. Rajesh with Mr. Jitin Sahni, Advocates for respondent in
            both matters.

CORAM:
HON'BLE MR. JUSTICE S. RAVINDRA BHAT
HON'BLE MS. JUSTICE DEEPA SHARMA
S.RAVINDRA BHAT, J.

1. The management of Mother Diary (hereafter "Mother Diary") appeals a decision of the learned single judge, dismissing its writ petition. Mother Diary had, in its writ petition, challenged an award whereby the Labour Court set aside the penalty of dismissal imposed upon the workman/first respondent.

2. The workman was recruited by Mother Diary and was working in its employment from 1984 on a monthly salary of `1,600/-. He was eventually

LPA Nos.143 & 144/2015 Page 1 promoted as Senior Superintendent (Marketing) and the last drawn salary was `7,500/- per month. On 19.11.1999, the petitioner was suspended; later on 27.11.1999, he was served with a chargesheet which alleged that he (1) opened a Current Account with a Bank in the fictitious/pseudonymous name of "Arun Kumar" and had dealings with Mother Dairy in connection with milk supply to the Insulated Container and secured pecuniary benefits. This was a "grave act of misconduct of engaging in private work or trade for profit to personal gain while still in the service of the Dairy, Clause 20(b) x." (2) The workman signed two agreements and obtained two cheques in the name of "Arun" and committed misconduct under Clause 20(b) xxviii. (3) The workman signed agreements dated 07.09.1998 and 07.09.1999 in connection with the Insulated Container as "Arun" (in Hindi) and also signed as one of the witnesses in respect of the said agreements; thereby he misrepresented the facts to Mother Dairy and committed a grave act of misconduct with bad faith towards the employer/Dairy, under Clause 20(b) xxxiii. Similarly a fourth head of charge was that in view of these, the workman had "committed a grave act of misconduct of fraud and dishonesty in dealing with the Dairy's business. Clause 20 (b) iii."

3. The Mother Diary appointed one Mr. M.G. Sharma as Enquiry Officer. On 03.12.1999, the Management wrote a letter to the Chief Manager, Indian Bank, Nehru Place Branch, requesting it to provide photocopies of the account opening form duly filled in by the person, namely, Arun Kumar along with photograph so produced by the said person at the time of opening Bank Account No.2738. After completion of enquiry, the workman was found guilty in the report dated 15.04.2003; the Mother

LPA Nos.143 & 144/2015 Page 2 Dairy dismissed him from service on 22.07.2003. He consequently, raised an industrial dispute, which was referred for adjudication by the Labour Court, after efforts at conciliation failed. The Mother Dairy also lodged a First Information Report, alleging that the workman had committed an offence punishable under Sections 419/420/468/471 of the Indian Penal Code (IPC).

4. The first controversy before the Labour Court was whether the Mother Dairy had adopted a fair procedure, whilst conducting the domestic inquiry. The Labour Court, by its order of 21.08.2008, held that the domestic inquiry was conducted fairly and upheld its findings. The workman, in WP 168/2013- under Article 226 of the Constitution of India, challenged this decision before this Court. That writ petition was dismissed on 11.01.2013 by a learned single judge (Vipin Sanghi, J), who held as follows:

"7. At the outset, I may note that the learned counsel for the petitioner has not raised any submission with regard to the procedure adopted for conducting the enquiry against the petitioner. The only submission of learned counsel for the petitioner is that at the time when the charge sheet was issued, the respondent was not possessed of the original account opening form and the original photographs. He further submits that the original of all these documents were never provided by the bank. He submits that neither any bank official was examined in evidence to prove the opening of the bank account by the petitioner in the name of some other person nor the original documents were produced during the enquiry.

8. A perusal of the impugned order shows that the bank had sent duly certified copies of the document to the enquiry officer, which were exhibited in evidence. Not only this, the petitioner got the signatures from those documents compared by handwriting expert which clearly

LPA Nos.143 & 144/2015 Page 3 shows that the petitioner also accepted that the documents produced in the enquiry were certified copies obtained from the relevant bank and the branch. The petitioner could not dispute that in the bank account opening form, though the account was opened in the name of Arun Kumar, but the photograph affixed on the account opening form was that of the petitioner. The learned IA has rightly observed that there was no reason for any bank employee or officer to place the photograph of the petitioner on the account opening form in the name of Arun Kumar, if the said account had not been opened by the petitioner himself and he did not provide the photographs on the form.

9. The signatures on the account opening form were also proved on record as that appended by the petitioner through a handwriting expert produced by the respondent/management. In fact, the petitioner had produced a person as Arun Kumar who failed to establish his identity by any cogentor reliable evidence. He even failed to answer various questions and declined to give the names of brother of the delinquent petitioner. The person produced by the petitioner as Arun Kumar admitted in his cross examination that he and the petitioner were related as cousin brothers. This aspect had been concealed by the petitioner before the revelation was made during the cross examination of the said person.

10. In my view, there is more than sufficient evidence available on record to implicate the petitioner. The enquiry has been conducted fairly and the evidence has been properly marshaled by the enquiry officer and also correctly appreciated by the IA. This Court while hearing a writ petition under Article 226 of the Constitution of India does not sit as an appellate Court to again re-appreciate the evidence. Since I do not find any error in the approached adopted by the forums below and I concur with the approach as well as the findings returned by them, I do not find any merit in this petition and accordingly dismiss the same, leaving the parties to bear their respective costs.

VIPIN SANGHI, J."

LPA Nos.143 & 144/2015 Page 4

5. The above order, dismissing the writ petition, attained finality. While so, the Labour Court proceeded to hear the industrial dispute, on the basis of the materials on record, on the issue of quantum of punishment and whether that required interference under Section 11-A of the Industrial Disputes Act, 1947. The Chief Metropolitan Magistrate, who tried the allegations of criminality, under the First Information Report, held that the workman was not guilty, by his judgment and order dated 08.05.2013. He consequently acquitted him. This circumstance was taken into account by the Labour Court, which directed the management of Mother Dairy to reinstate the workman, though it denied him backwages.

6. The learned single judge, by the impugned order, took note of the fact that when the first writ petition (which had questioned the order of the Labour Court, holding the inquiry to be proper and fair) was rejected, the judgment of the criminal court, which went into the same charges, and considered relevant evidence, was not in existence. He also considered the findings of the criminal court and noticed that the "real" Arun Kumar was related to the workman; on examination, the criminal court had commented upon the striking resemblance. The single judge therefore, held that since the witnesses in both the domestic inquiry and the criminal proceedings were common, the findings in the criminal trial, which resulted in the workman's acquittal, added a new dimension to the case.

7. The learned single judge, in view of the above facts, held as follows:

"30. It is true that petitioner was given opportunity in the domestic enquiry, but the question is that keeping in view the facts noted above, whether he could be held liable for the misconduct alleged against him.

LPA Nos.143 & 144/2015 Page 5

31. On perusal of judgment dated 08.05.2013 passed by the Criminal Court, it is clear that details of the documents mentioned in the chargesheet were not with the respondent Management, which fact stands proved from the letter dated 03.12.1999, whereby the Management itself asked from the Bank to furnish the documents but the said request was declined by the Bank vide its letter dated 13.01.2000. Therefore, if the respondent Management had no documents as alleged in the chargesheet dated 27.11.1999, then how the enquiry can be fair and proper.

32. Moreover, the main charge against the petitioner was that he impersonated as Arun Kumar and opened the Bank account as well as obtained the Mother Dairy container, stands falsified as said Arun Kumar is an existing person and is doing the business of selling milk in his name. Thus, the petitioner could be nowhere connected to any misconduct as alleged in the chargesheet dated 27.11.1999.

33. In view of the discussion above, I am of the considered view that the enquiry itself is vitiated and the same cannot be sustained in the eyes of law.

34. Accordingly, I modify the order dated 07.07.2014 to the extent that the petitioner is entitled for back wages with continuity of service."

8. Mr. Lalit Bhasin, learned counsel for Mother Diary, argued that the impugned judgment is not sustainable in law. He relied on the decision of the Supreme Court in Management Pandian Roadways Corporation v N. Balakrishnan 2007 (9) SCC 355, where it was observed that:

"21. However, there is another aspect of the matter which cannot be lost sight of. Respondent, in the meanwhile, has been acquitted. The factum of his acquittal has been taken into consideration by the Division Bench, which was considered to be an additional factor.

Ordinarily, the question as to whether acquittal in a criminal case

LPA Nos.143 & 144/2015 Page 6 will be conclusive in regard to the order of punishment imposed upon the delinquent officer in a departmental proceeding is a matter which will again depend upon the fact situation involved in a given case.

22. There are evidently two lines of decisions of this Court operating in the field. One being the cases which would come within the purview of Capt. Paul Anthony v. Bharat Gold Mines Ltd. and Anr. (1999)ILLJ1094 (SC) and G.M. Tank v. State of Gujarat and Ors. (2006)IIILLJ1075 (SC). However, the second line of decisions show that an honourable acquittal in the criminal case itself may not be held to be determinative in respect of order of punishment meted out to the delinquent officer, inter alia, when: (i) the order of acquittal has not been passed on the same set of fact or same set of evidence;

(ii) the effect of difference in the standard of proof in a criminal trial and disciplinary proceeding has not been considered. [See Commissioner of Police, New Delhi v Narender Singh AIR2006SC 1800], or; where the delinquent officer was charged with something more than the subject-matter of the criminal case and/or covered by a decision of the Civil Court. [See G.M. Tank (supra), Jasbir Singh v. Punjab & Sind Bank & Ors (2007)1SCC566 , and Noida Enterprises Assn. v. Noida and Ors. ]"

9. It was argued that the workman never produced his cousin in the proceedings before the Enquiry Officer. Counsel highlighted that even in the criminal proceedings, there was no finding with regard to the nature of documents. Counsel submitted that a close reading of the evidence led in the criminal court in fact showed that at best there was some doubt about the prosecution case; by no means could it be said that the allegations of culpability were false. Learned counsel relied on the copy of criminal proceedings, produced in court, on behalf of the workman.

10. Learned counsel for the workman argued that in fact the charge sheet

LPA Nos.143 & 144/2015 Page 7 was issued in this case on27.11.1999 and thereafter the relevant documents, i.e. photocopies of the current account and photograph of the account holder were subsequently demanded by the management on 03.12.1999. It was also argued that on 13.01.2000, the Bank informed the respondent Management that they were unable to give the required information unless there is an order from a competent court of law or from an officer authorized by Statute to call for such information. Counsel relied heavily on the acquittal recorded by the Criminal court and stated that on 22.07.2003, the evidence of the Bank officers, such as the Chief Manager (who deposed in criminal trial as PW 6) and Sh. Sanjay Dahiya, Investigating Officer of the case (PW7), were not available. PW-7 admitted that he collected the documents in original from Chief Manager, Sh.Mathur of Indian Bank, Nehru Place Branch, vide seizure memo dated 07.02.2001. The Investigating Officer specifically deposed that Arun Kumar and Arvind Kumar Arora (the workman) were two different persons.

11. It was submitted that Arun Kumar has been examined as DW1; he deposed that the workman was his cousin and had applied for allotment of an insulated milk container from Mother Dairy in the year 1994. He also stated that after deposit of his application with the Mother Dairy, the latter had his premises inspected and thereafter a container was allotted in his name at 16, Jeevan Jyoti Camp, Okhla, Delhi. The witness further deposed that he opened an account in Indian Bank, Nehru Place and had seen the original account opening form of his bank account No.2738, Ex.PW6/C, which bears his signature at point P3. He also admitted that original specimen card bore his signatures. He deposed that he had given photograph

LPA Nos.143 & 144/2015 Page 8 Ex. PW6/DA to the Bank at the time of opening of account. He further stated that he had entered into an agreement with Mother Dairy on year-to- year basis from 1994 to 1999 and had been running the business of selling milk through his insulated milk container No. 1069 till 1999. No person in the name of Avlesh Kumar ever worked in his allotted insulated container. He denied the suggestion that the petitioner was running a booth in his name. All these were not before the disciplinary authority. They were available only after the industrial dispute was raised. In these circumstances, argued counsel, there was no infirmity with the approach and findings of the learned single judge.

12. Learned counsel for the workman lastly urged that the single judge's findings are also sound because it is in conformity with the judgment of the Supreme Court in Makhan Singh v Narainpura Co-operative Agricultural Service Society Ltd & Anr. AIR 1987 SC 1892. It was submitted that in the said decision, the Court held that in the absence of originals, any findings adverse to a workman, based on photocopies, cannot be sustained.

Analysis and Findings

13. It is apparent from the above discussion that the question which this court has to address itself to, is whether the issue of merits of factual findings recorded in a disciplinary proceeding, leading to an adverse order against a workman, that attain finality after proceedings before the competent court or tribunal under industrial law can be re-opened or re- examined, on the basis of findings recorded by a criminal court.

LPA Nos.143 & 144/2015 Page 9

14. Various judgments of the Supreme Court (Capt. Paul Anthony v. Bharat Gold Mines Ltd & Anr 1999 (I)LLJ1094 (SC) and G.M. Tank have undoubtedly highlighted that where the materials considered in the disciplinary proceedings and criminal proceedings are identical, the employer has to defer to and give effect to the findings of the competent criminal court. At the same time, however, the decision in Pandyan Roadways (supra) has highlighted that if the materials considered in both proceedings are different, though the charge leveled is identical, the outcome can be different, because disciplinary proceedings do not insist on proving facts beyond reasonable doubt, whereas criminal proceedings do so.

15. What is immediately noticeable is that in the earlier disciplinary proceedings, the workman never produced his "cousin" Arun Kumar. Rather, his endeavor and energy was spent on establishing that he did not conduct a benami business. The Management produced a welter of documentary evidence - M-1 to 12. In the disciplinary proceedings, the complainant was examined; he clearly stated that he used to carry on business for the workman, who used to collect money. The complainant was also aware of the account into which the monies were paid. The complainant, Avlesh Kumar, in cross examination, during the disciplinary enquiry proceedings, clearly deposed that he used to carry out the business of milk supply in the insulated container 1069 on behalf of the workman, whom he used to pay `1000/- per month. It was also stated that every month, he used to receive cheque drawn on the account of one Arun Kumar, for the milk supplied. The same witness deposed as PW-4. He clearly stated that:

LPA Nos.143 & 144/2015 Page 10 "Since 1991-92 to 2002, I was doing the business of selling the Mother dairy milk in the insulated Milk container/tank. The booth no. 1069 was taken by me on rent from one Arora Saheb. Accused present in court and correctly identified by the witness. Arora Saheb also used to hand over the cheque book in the name of Arun Kumar already having signature of Arun Kumar and seal of the mother diary and I used to handed over the cheques after filling the amount to the driver of the mother dairy of the mother dairy milk tanker and after selling of the milk I used to deposit the amount in the Bank at Nehru Place..."

16. The above evidence in our opinion is sufficient for an Inquiry Officer to conclude that the workman had committed misconduct and entered into business or commercial transactions, with Mother Dairy, which was prohibited. The workman nowhere mentioned in the departmental proceedings, about the existence of his cousin Arun Kumar. He was not produced. On the other hand, Arun Kumar knew about the criminal proceedings right from 2000 after service of summon; yet neither he nor the workman thought it appropriate to have his version recorded in the criminal proceeding. Significantly too, there were other witnesses who deposed in the departmental proceedings; hardly any of them were called for examination in criminal proceedings.

17. The workman's penalty was imposed on 22.07.2003. At that stage, the criminal proceedings had not commenced, though a first information report was lodged. It is now recognized that the standard of proof in disciplinary proceedings and those in criminal trials vary. As long as departmental proceedings are not held, the findings in a criminal trial can be treated as final. However, the converse is not always accurate - if disciplinary

LPA Nos.143 & 144/2015 Page 11 proceedings are allowed to continue, the fact that on a distant date, if due to lack of evidence, the charged officer is acquitted would not lead to effacement of the findings in the disciplinary enquiry.

18. This court is of the opinion that once the fairness of inquiry was examined, findings adverse to the workman were rendered. Having regard to the fact that in this case, the workman's challenge in CWP 168/2013 was turned down, he was not entitled to challenge in the final award the findings relating to the materials considered by the Labour Court. What he could not have achieved directly could not have been attempted indirectly. The Labour Court's jurisdiction in this case was and could be only with regard to the correctness of the penalty, not the merits of the materials, which led to the workman's dismissal.

19. In view of the above findings, the impugned judgment and order is hereby set aside. The penalty imposed upon the workman is hereby restored. The appeals of the management are allowed. There shall be no orders on costs.

S. RAVINDRA BHAT (JUDGE)

DEEPA SHARMA (JUDGE) MAY 12, 2016

LPA Nos.143 & 144/2015 Page 12