Bisan Lal (Since vs State Of Himachal
2022 Latest Caselaw 5309 HP

                                                        .
       IN   THE    HIGH   COURT OF HIMACHAL              PRADESH,





                             SHIMLA

                   ON THE 6th DAY OF JULY, 2022





                              BEFORE
               HON'BLE MR. JUSTICE AJAY MOHAN GOEL

                 CIVIL WRIT PETITION No.3837 of 2011





    Between:

    1.    BISAN   LAL     (SINCE

    DECEASED) THROUGH HIS
    LEGAL HEIRS:­

    1(a) SANJIV KUMAR S/O LATE
    SHRI    BISHAN    LAL    R/O
    VILLAGE HAN POST OFFICE
    KUNHAR      TEHSIL     ARKI,


    DISTRICT SOLAN, H.P.
    1 (b) KUMARI RAMA D/O
    LATE SHRI BISHAN LAL R/O




    VILLAGE HAN POST OFFICE
    KUNHAR      TEHSIL     ARKI,





    DISTRICT SOLAN, H.P.
    1(c)   KAMLA     W/D    SHRI
    BISHAN LAL R/O VILLAGE





    HAN POST OFFICE KUNHAR
    TEHSIL     ARKI,   DISTRICT
    SOLAN, H.P.
    1(d) VIDYA DEVI MOTHER OF
    LATE SHRI BISAN LAL R/O
    VILLAGE HAN POST OFFICE
    KUNHAR      TEHSIL     ARKI,
    DISTRICT SOLAN, H.P.
                                                    ....PETITIONERS.

    (BY. MR. VIRENDER THAKUR, ADVOCATE)

    AND




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                                                                   .
    1. STATE OF HIMACHAL





    PRADESH          THROUGH
    PRINCIPAL SECRETARY (I &
    PH) TO THE GOVERNMENT





    OF HIMACHAL PRADESH,
    SHIMLA­2.
    2.        SUPERINTENDING
    ENGINEER, I & PH CIRCLE,





    SHIMLA, SHIMLA­9.
    3. EXECUTIVE ENGINEER,
    I&  PH    DIVISION  NO.1,
    SHIMLA­9, H.P.
                    r                                        ....RESPONDENTS.

    (BY. MR. DINESH THAKUR, MR. SUMESH RAJ, MR. SANJEEV
    SOOD, ADDITIONAL ADVOCATES GENERAL, WITH MR.
    SUNNY DHATWALIA, ASSISTANT ADVOCATE GENERAL)



    Whether approved for reporting?1 Yes
    Reserved on:        07.04.2022




          This petition coming on for orders this day, the Court passed the following:





                        JUDGMENT

By way of the present Writ Petition, the petitioner has

primarily prayed for the following reliefs:­

"i) That the award passed by the Ld. Labour Court may very kindly be quashed and set aside as the Ld. Labour Court has totally failed to appreciate the facts and circumstances and evidence and given undue advantage to the evidence submitted by the respondent department while rejecting the legitimate claim of the present petitioner.

.

ii) That the respondent department may very kindly be

directed to re­engage the services of the petitioner as he has completed 240 days continuously w.e.f. 1997 to

2004 with all consequently benefits including back wages along with interest."

2. As the original petitioner Shri Bisan Lal died during the

pendency of the present proceedings, therefore, he was substituted

by his legal representatives.

3. Brief facts necessary for the adjudication of the present

petition are as under:­

The original petitioner joined the service of the

respondent/Department as a daily wage beldar in the year 1987, i.e.

on 04.12.1987, in Sub­Division Ghanahatti, District Shimla, H.P.

Thereafter, w.e.f. 16.08.1993 to 18.10.2004, he served as daily wage

Water Works Clerk. He worked as such continuously without any

break for more than 240 days in each calendar year. On 18.10.2004,

the services of the workman were terminated by the Department on

the ground that a First Information Report (FIR) was registered

against him under Section 420 of the Indian Penal Code at Police

Station Boiluganj, District Shimla, H.P. This FIR was converted

under Sections 409 and 120(B) of the Indian Penal Code and eleven

employees of the respondent­Department were named as accused

.

therein. As per the original petitioner, only his services were

terminated, but no action was initiated against any other employees.

The termination of the services of the petitioner was without any

notice etc. and feeling aggrieved, he raised an industrial dispute. The

appropriate Government made the following reference for

adjudication to the Presiding Judge, Industrial Tribunal­cum­Labour

Court (hereinafter referred to as the 'Tribunal'):­

" Whether the action of the Superintendent Engineer, I &

PH Circle, Shimla­9 (2) Executive Engineer, I & PH Division No.1, Shimla­9 to terminate the services of Shri Bishan lal S/O Late Shri Baboo Ram ex­daily wages

water works clerk w.e.f. 9.11.2004 on the charge of embezzlement of government money amounting to

Rs.10.77 Lacs without holding any domestic enquiry and

without complying the provisions of the Industrial Disputes Act, 1947 is proper and justified? If not, what relief of service benefits and amount of compensation the

above aggrieved workman is entitled to?"

4. Vide award dated 08.04.2011, the reference was

answered by the learned Court by dismissing the claim petition and

this led to the filing of the present Writ Petition.

5. As already mentioned hereinabove, during the pendency

of the present proceedings, the original petitioner died and his legal

representatives were thereafter substituted as the petitioner.

.

6. I have heard learned counsel for the parties and have

also gone through the pleadings as well as the award under

challenge.

7. The following issues were framed by the learned

Tribunal for adjudication:­

" 1. Whether the action of the respondents to terminate the services of petitioner w.e.f. 9.11.2004 on the charge

of embezzlement of government money amounting to

Rs.10.77 lakhs without holding any domestic enquiry and without complying the provisions of Industrial Disputes Act, 1947 is improper and unjustified as

alleged? OPP........

2. If issue no.1 is proved, to what relief of service benefits and amount of compensation, the petitioner is entitled to?

OPP......

3. Whether the petition is barred by law of lispendense as alleged? OPR......

4. Whether the present petition is not maintainable? OPR......

5. Relief."

    8.           These issues were answered as under:­

                 "Issue no.1         No.
                 Issue no.2          No.
                 Issue no.3          No.
                 Issue no.4          Yes.










                                                                .
                 Relief               Reference answered in negative per





                                      operative part of award."

9. While answering issue No.1, learned Tribunal held that

proper opportunity of being heard was afforded to the workman

before initiating action against him and the workman had

participated in the course of inquiry and a show cause notice was

also issued to him before taking final decision in the matter. On

these basis, learned Tribunal held that it could not be said that

proper inquiry was not instituted or that the workman was

condemned unheard. Learned Tribunal also took into consideration

the fact that the workman had admitted that he remained in police

custody w.e.f. 26.02.2004 to 03.11.2004 and that a preliminary

inquiry was conducted against him and further he had filed a reply

to the same and also given a statement in the course of the inquiry

admitting that he had misappropriated the government money.

10. Be that as it may, as has been argued by learned

counsel for the petitioner, in the present case, in the course of the

trial which ensued from the lodging of the FIR, the original petitioner

died and the trial stood abated against him. Further, it has also

come on record and in fact this is not disputed by the respondent­

Department that in the trial which was held, other accused were

acquitted by the learned Trial Court. Now, incidently in the present

.

case the record demonstrates that whereas the services of the

petitioner were disengaged w.e.f. 18.10.2004, the show cause notice

which was issued to the petitioner was issued on 24.11.2004, after

the termination of his services. This Court fails to understand that

for what purpose, a show cause notice was issued after termination

of the services of the petitioner and preliminary inquiry conducted in

the issue. All that can be observed is this that it was just a formality

which was undertaken by the Department to demonstrate that the

principles of natural justice were complied with. Reliance placed by

the learned Tribunal upon the so called admission of the original

petitioner about the confession of his guilt in the course of

preliminary inquiry was also totally misconceived, for the reason

that when a criminal case was pending with regard to the issue,

then it was the adjudication of the Court concerned, which was

material and it is a matter of record that the accused therein were

acquitted by the Court concerned.

11. In this view of the matter, the award passed by the

learned Tribunal definitely is not sustainable in the eyes of law and

this Court has no hesitation in holding that the termination of the

services of the petitioner by the Department was indeed bad in law,

as neither the statutory provisions of the Industrial Disputes Act

were followed in the matter nor any inquiry worth its name was held.

.

Moreover, as the termination of the services of the petitioner was on

the basis of FIR and the other accused therein stand acquitted,

therefore also, the termination of the services of the original

petitioner cannot be held to be sustainable in the eyes of law.

12. Accordingly, this petition is allowed. The award under

challenge is set aside. It is ordered that termination of the services of

the petitioner is held to be bad and consequences thereof including

monitory benefits to ensue in favour of the present petitioners.

13. Petition is disposed of, so also the pending

miscellaneous applications, if any.

(Ajay Mohan Goel)

Judge July 06, 2022

(Rishi)