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Judgment
(1) None appears for the appellant. Counsel as above appears for respondent No.2. The appeal was earlier dismissed in default. It was restored for
hearing. It was expected that Counsel would appear for the appellant.
(2) It appears that the appellant is interested in flogging a dead horse. Relevant facts are that respondent No.2 was appointed as a salesman by the
appellant and a charge-sheet was issued to him on 27.11.1984 alleging that he had misappropriated goods worth `44,954.80 from the store of which he
was the incharge.
(3) At this stage while we were dictating the order Shri Prateek Kedawat, Advocate appears on behalf of Mr. R.B.Mathur, Advocate and seeks
adjournment which is declined.
(4) We proceed further.
(5) The enquiry Officer submitted a report on 5.8.1985. The enquiry Officer recorded the circumstance under which he was compelled to proceed ex
parte against the respondent, and noted in the report of the Internal Auditor had recorded that the workman has worked as a salesman from the year
1979-1980 till the year 1984-1985. Based on the audit report and without noting that the primary documents were not filed, workman was found guilty
and was visited with the penalty of the dismissal from service.
(6) The workman raised an industrial dispute. As per law the labour Court had to first decide whether the enquiry conducted against the workman
was fair. If held enquiry not to be fair. The date of the order is not disclosed in the pleadings of either parties. The labour Court thereafter gave an
opportunity to the management to lead evidence and based on the evidence led the labour Court pronounced the award on 10.10.2001 noting that the
management could not prove the case but finding workman negligent in duty directed reinstatement without backwages.
(7) The appellant filed a writ petition in this Court laying a challenge to the award.
(8) The grounds pleaded in the writ petition to challenge the award read as under : -
“(a) Because the award passed by the learned Labour Court is against the law, facts, circumstances and record of the case.
(b) Because the learned Labour Court has erred in not considering that the enquiry made by the petitioner federation was completely just and fair,
which is apparent from the perusal or enquiry report itself.
(c) Because the order passed by the learned Labour Court by which the enquiry, held by the petitioner federation, is declared unfair, whereas the
same is perfectly fair.
(d) Because the learned Labour Court has erred in making the observation that the respondent No.2 had completed 240 days and there is violation of
provision of Section 25-F, whereas, no such submission was ever made by the Respondent No.2 either in the claim or in his evidence or even in verbal
submissions at the time of arguments, as wrongly recorded by the learned Labour Court.
(e) Because the learned Labour Court has erred in passing the award inspite of the clear finding that the respondent No.2 had not challenged the
order passed u/s 74 of the Rajasthan Co-operative Society Act, 1965, neither in the appeal nor before the Hon’ble High Court, by which the
misappropriation of Rs.44,954.80/- is proved and it is not proved by the Respondent No.2 that he had deposited the said amount.
(f) Because the learned Labour Court has erred in coming to the conclusion that the worker has not mis-appropriated the amount intentionally. Such
finding is against the judgment of Hon’ble Supreme Court in which it is held that the shortage is a mis-appropriation and in such cases punishment
of dismissal is upheld.
(g) Because the learned Labour Court has erred in coming to the conclusion that the petitioner federation had not submitted the full-record regarding
the mis-appropriation due to the same howmuch mis-appropriation and at what time, is not fully proved.
(h) Because the learned Labour Court has erred in passing the order inspite of the finding that the shortage of goods cannot be termed as
depreciation. A clear finding that the shortage of such a huge goods is covered under mis-appropriation and it was the liability of respondent NO.2 to
deposit Rs.44,944.80/-, for which the charge was levied against him but the respondent No.2 has failed to deposit the same and hence the respondent
No.2 is not entitled to get full wages for the suspension period during 22.9.84 to 18.3.86.
(I) Because the learned Labour Court has erred in making the observation that no notice & compliance of Section 25-F is made by the petitioner
federation before dismissing the respondent No.2 and the compliance of provisions of Industrial Dispute Act is not made while giving such finding the
learned Labour Court has not even considered that in the present case no such controversy is involved. It is a case of dismissal after departmental
enquiry. No such contention of said violation of Section 25-F was even raised by the respondent No.2.
(j) Because the learned Labour Court has erred in not considering the judgment cited before it and has rejected the same while making an observation
that the facts of the said cited cases are different and are not applicable in the present case.
(k) because the learned Labour Court has erred in not considering the provisions of Rajasthan Co-operative Societies Act, 1965 and Rules made there
under.
(l) Because the learned Labour Court has erred is not considering the judgment reported in 1985 R.L.R. Page 614 which is upheld by the D.B. of the
Hon’ble High Court, reported in 1989(2) R.L.R. Page 555 and the judgment reported in (1997)5 SCC. Page 125. In the above said judgment the
Hon’ble Supreme Court, held that a dispute arises between a society and its employee shall be decided by the Registrar Cooperative Society and
the reference under Section 10 stands excluded, while coming to the said conclusion the Hon’ble Supreme Court has considered the wordings of
section 64 of M.P. Cooperative Society Act. The provisions of section 64 of M.P. Cooperative Societies Act are analogous to the section 75 of the
Rajasthan Co-operative Society Act, 1965, read with rule 41 of the rules. It is also respectfully submitted that the Hon’ble Supreme Court in its
judgment reported in 1970 S.C. Page 245 has clearly held that the jurisdiction of the Industrial Tribunal under the Industrial Dispute Act will be barred
if the dispute can be decided by the Registrar under Section 61 of the Andhra Pradesh Act. If section 75 of the Rajasthan Co-operative Societies Act
1965 is read with the rules of 1966 it is clear that such disputes are to be decided by the Registrar Co-operative Societies. As such the learned Labour
Court has failed to consider the said settled proposition of Law.
(m) Because the learned Labour Court has erred in not considering the judgment reported in 1985 RLR Page 614, which was upheld by the D.B.
judgment reported in 1989(2) RLR Page 555. It is relevant to submit here that in the said judgment 1985 RLR Page 614 the following judgments were
considered.
1.        1970              S.C. 245
       1969               S.C. 1320
3.        1979              S.C. 1203
4.        1975              S.C. 1895
       1981               S.C. 152
       1970               S.C. 1244
       1966               S.C. 1449
       1982               R.L.R. 927
       1981               Raj. 39
     1967              R.L.W. 73
and in 1989(2) RLR Page 555 the following judgments were considered
1.        1979              S.C. 1203
       1970               S.C. 245
       1982               R.L.R. 927
       1981               S.C. 152
5.        1969              S.C. 1320
(n) Because the learned Labour Court has erred in coming to the conclusion that the dispute is maintainable whereas the same is not maintainable as
per the settled law.
(o) Because the learned Labour Court has erred in relying on the judgment referred in its order whereas the said judgment is not applicable in facts
and circumstances of the present case and it is not binding in view of the D.B. Judgment of this Hon’ble High Court and of the Judgment given by
Hon’ble Supreme Court, as referred above.
(p) Because the learned Labour Court has erred in passing the award dated 10.10.2001 which is apparent from the perusal of the award itself.
(q) Because the learned Labour Court has committed serious error of jurisdiction in passing the award dated 10.10.2001.
(r) Because the impugned award passed by the learned Labour Court is not only without jurisdiction but it is highly arbitrary and unjustified.
(s) That the other grounds will be submitted at the time of arguments.â€
(9) Relevant would it be to note that the award is based on appreciation of evidence and in the entire writ petition there is no pleading as to what
evidence has been overlooked by the labour Court or in what manner the finding of fact arrived at by the labour Court is perverse.
Each and every ground raised is vague.
(10) The only ground which needs to be considered is ground (e) wherein it is pleaded that order passed under Section 14 of the Rajasthan
Cooperative Societies Act, 1965 by which it was proved that the workman had misappropriated ` 44,954.80 has been overlooked.
(11) The award makes no mention of any such order being proved in the evidence led before it.
(12) Indeed, there is no pleading that the said order, if at all passed, was accepted by the workman. Interestingly, even the date of the order is not
pleaded in the writ petition. The learned Single Judge has dismissed the writ petition vide order dated 24.10.2005.
(13) Even in the appeal, there is no mention of what evidence has not been considered by the labour Court. It is not pleaded as to in what manner the
award is perverse.
(14) We find no merit in the appeal which is dismissed.