ONKAR CHAND DUTTA Vs. STATE OF HIMACHAL PRADESH

JUDGEMENT

(1.) THE petitioner was appointed as Accounts Assistant in the Vikram Pharmaceutical Private Limited, Parwanoo (second respondent), with effect from the date of joining duty vide letter dt. Oct. 1, 1985. The appointment was on probation for a period of six months and was liable to be terminated at any time during the probationary period if his work was found to be unsatisfactory. The confirmation was to depend upon his work and conduct being found satisfactory during the period of probation. On Mar. 11, 1986, when the cash at the factory premises was verified and checked, a sum of Rs. 6471. 67 paisa was allegedly found short. The responsibility therefore is stated to have been fixed upon the petitioner. In order to clear the shortage, he is alleged to have given three post-dated cheques, each of Rs. 2000/-, and to have promised to pay the balance amount. The cheque (s) alleged to have been given accordingly is stated to have bounced when presented for encashment through bank on due date (s ). Criminal/civil case (s) in connection with the said matter is stated to be pending in the court (s) in Chandigarh. By a communication dt. Mar. 31, 1986, the petitioner's period of probation is stated to have been extended by one month, that is up to April 30, 1986. During this period, the petitioner is also alleged to have been irregular in attending duty. Before the expiry of the alleged extended period of probation, his services were terminated on the ground of being no longer required vide letter dt. April 29, 1986. By the same letter he was asked to clear the shortage of Rs. 6471-67 paisa in his account on or before May 15, 1986. His name is stated to have been removed from the roll of the employees of the Company on and with effect from May 1,1986.

(2.) AFTER the termination of service as aforesaid, the petitioner submitted a charter of demands before the Conciliation Officer (Labour Inspector), Nalagarh Circle, Parwanoo, which was received by the said authority on April 16, 1987. In the conciliation proceedings which followed, no fruitful progress was made. The petitioner thereupon requested the Conciliation. Officer to submit a failure report with a recommendation that the dispute be referred to the Labour Court, Himachal Pradesh. The Conciliation Officer was of the view that he could not recommend the reference of the dispute with respect to the reinstatement of the petitioner to the Labour Court keeping in view the fact that the services of the petitioner were terminated before the completion of 240 days "on the charge of misappropriation of funds the case is being tried in the court". However, while submitting the failure report dt. Sept. 10, 1987, he left it open to the competent authority to consider the request of the petitioner. By a communication dt. Sept. 24, 1987, the Secretary (Labour) to the State Government called for certain further information from the Conciliation Officer which was supplied by way of a report dt. Oct. 1. 1987. In the ultimate paragraph of the said report, the Conciliation Officer expressed the view that on the basis of the said fact finding report submitted after on-the-spot inquiry, the case was a fit one for reference to the Labour Court Industrial Tribunal, Himachal Pradesh, for adjudication.

(3.) ON Oct. 6, 1987, the Secretary (Labour) to the State Government wrote to the Manager of the second respondent stating, inter-alia, that from the report submitted by the Conciliation Officer it was evident that the petitioner was appointed as Accounts Assistant and not as Cashier, that no entrustment of money alleged to have been embezzled by him had been revealed during the course of the conciliation proceedings, that no charge-sheet was served nor any inquiry was conducted by the management with respect to the alleged misappropriation, that the procedure prescribed in Section 25 and Section 25-N of the Industrial Disputes Act, 1947 (hereinafter referred to as "the Act") was not followed before terminating his services and that, therefore, the petitioner should be reinstated in service on and with effect from April 29, 1986 and he should also be paid all the dues. It was clarified however that it was open to the management to give a show-cause notice and to take appropriate action against him in accordance with law by following the proper procedure. The communication in question is couched in a language which would indicate that it was in the form of an order issued by the Secretary (Labour) to the second respondent. Pursuant to the aforesaid order, the petitioner appears to have reported for duty on Oct. 12, 1987 but he was not allowed to join duty. He then appears to have approached the Conciliation Officer who called upon the Manager and the Managing Director of the second respondent to abide by the directions issued by the Secretary (Labour ). The efforts of the Conciliation Officer, however, were not fruitful since they took up the stand that the order in question was "meaningless" and lacked in power, authority and jurisdiction to order reinstatement of an employee whose services stood terminated. The Conciliation Officer made a report dt. Oct 17, 1987 in that behalf to the State Government. The Managing Director of the second respondent thereafter met the Secretary (Labour) to the State Government and represented that the provisions of Section 25-F of the Act were not attracted on the facts and in the circumstances of the case since the petitioner had put in less than one year's service with them. According to the State Government, upon re-examination of the case in light of the factual and legal position, the directions issued to the second respondent on Oct. 6. 1987 were withdrawn on Mar 2, 1988 (after the present petition was registered and notice was ordered to issue thereupon)