State Of Haryana & Another vs Shree Krishan (Deceased) Through His ... on 3 February, 2014

[Cites 5, Cited by 1]

Punjab-Haryana High Court

State Of Haryana & Another vs Shree Krishan (Deceased) Through His ... on 3 February, 2014

1. Challenge in the present writ petition is to the award dated 04.09.2000 (Annexure P12) whereby the workman, who has now expired, was directed to be reinstated with continuity in service and full back wages.

2. The reasoning given by the Labour Court was that domestic enquiry, held by the Management, was not fair and proper and it had been held so under issue No.1, decided on an earlier point of time, i.e., on 28.12.1998. It was noticed that the copy of the enquiry report was not given to the workman and it had been admitted by Chand Singh MW1, in his cross-examination. The workman, who was working as a Conductor, was alleged to have illegally received `171/- from the passengers and it was held that he had not embezzled the money since the inspecting party never checked the cash-book and there was no evidence worth the name that there Sailesh ranjan 2014.02.19 12:54 I attest to the accuracy and integrity of this document CWP No.6915 of 2001 (O & M) -2- was any entrustment of money to the passengers which he could have misappropriated. The tickets had not been compared with the already sold tickets and thus, an adverse inference was drawn against the Management and it was held that the punishment could not be sustained on such a charge, being violative of the principles of natural justice.

3. The factual matrix of the case go on to show that the petitioner was appointed as a Conductor on 10.08.1976 and during the course of his duties, he was on the bus which was checked on 07.07.1990 which was travelling from Ludhiana to Moga. The show cause notice was issued to him on 17.07.1990 and an enquiry officer was appointed on 07.09.1990. The enquiry officer came to the conclusion that he had committed a fraud to the tune of `171/- as he had charged the said amount from the passengers from Ludhiana to Moga. Accordingly, a show cause notice dated 24.10.1991 was issued to him as to why his services should not be terminated on account of fraud to which he filed reply dated 12.11.1991. Taking into account his reply, his two yearly increments were stopped temporarily and he was held not entitled to any more amount received during the suspension period, vide order dated 30.12.1992. However, the Transport Commissioner issued show cause notice on 01.02.1993 and keeping in view the earlier service record, came to the conclusion that he was habitual of committing fraud and issued show cause notice under Rule 14 of the Haryana Civil Services (Punishment & Appeal) Rules, 1987, as to why this punishment should not be enhanced to that of dismissal from service. Thereafter, the services of the workman were dispensed with vide order dated 25/29.03.1993. The said order was upheld in appeal by the Secretary to the Government on 14.10.1993/08.11.1993. Resultantly, the Sailesh ranjan 2014.02.19 12:54 I attest to the accuracy and integrity of this document CWP No.6915 of 2001 (O & M) -3- matter was referred to the Labour Court and claim statement was filed in which the plea taken was that the enquiry officer had not provided any opportunity to the applicant to examine the witnesses, produced on behalf of the Management. The order stopping the two annual increments was also challenged apart from the order of dismissal. It was further pointed out that without affording any personal hearing to the applicant, the order of dismissal was passed.

4. In the written statement, the plea taken by the Management- petitioner was that the workman had charged `5/- each from 10 passengers, totaling to `50/- from Ludhiana to Tagranwa and not issuing travelling tickets to them and charged `9/- each from 15 passengers from Ludhiana to Moga and issued them less value tickets @ `8/- each and having three punches each and one old ticket of `1/- and accordingly, the old tickets of `121/- were issued and thus, had committed a fraud of `171/-. The enquiry officer had completed the enquiry without any pressure and fear and the workman had been given full opportunity and thereafter, the punishment of stoppage of two increments was issued. The Transport Commissioner had issued show cause notice to the petitioner and thereafter, terminated his service, which is correct and on the basis of the rules.

5. The Labour Court framed two issues; firstly, that whether a domestic enquiry held by the Management was fair and proper and whether the termination of the workman was justified and if not, to what relief he was entitled to. The first issue regarding the fairness of the departmental enquiry was treated as preliminary issue and in support of the same, the Management examined two witnesses, Chand Singh, Traffic Manager, the Enquiry Officer and Mohinder Pal, Clerk, whereas the petitioner appeared Sailesh ranjan 2014.02.19 12:54 I attest to the accuracy and integrity of this document CWP No.6915 of 2001 (O & M) -4- as his own witness. The Labour Court found that Inspector Dayal Singh and D.S.Randhawa had checked the bus and had found some passengers without ticket. The statement of those passengers were not recorded by the Inspectors at the time of checking of the bus. Accordingly, it was held that the Management has not been able to prove that the petitioner had embezzled the Government money since it was never proved that the said passengers had paid for the bus tickets. Accordingly, the Labour Court held that the petitioner could not be held guilty of embezzlement of the Government money in the absence of proof of entrustment. It was also noticed that the Inspectors had not got the bus checking report exhibited before the enquiry officer and no bus passenger had been produced by the Management, during the enquiry. Finding on the said issue became final and thereafter, also, none appeared on behalf of the Management. It is also further noticed that the enquiry report was not given to the petitioner which was admitted by Chand Singh, in his cross-examination. The fact that the cash-book was not checked during the checking by the inspection party weighed with the Labour Court to hold that the charge of embezzlement was never proved. Therefore, in the absence of the statement of any witness recorded by the checking staff, an adverse inference was drawn against the Management and it was held that the enquiry report was vitiated and punishment on the same could not be substantiated and accordingly, the workman was held entitled for reinstatement with continuity in service and full back wages.

6. Resultantly, the writ petition was field and during the pendency of the writ petition, the workman expired on 20.05.2003, leaving behind his legal heirs who have, now, been impleaded.

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7. Counsel for the State, on the abovesaid factual matrix, submitted that the Labour Court was not justified in giving the said benefit while sitting as a Court of appeal against departmental proceedings and placed reliance upon the show cause notice dated 24.10.1991, to state that the enquiry report was supplied to the workman. Reliance was also placed upon the claim statement to plead that as per the case of the workman himself, notice was given to the applicant and he had replied and thereafter, the punishment had been imposed.

8. After hearing counsel for the parties, this Court is of the opinion that the said submission is without any basis. Perusal of the record would go on to show that Dayal Singh, Inspector, who is part of the checking team, has admitted, in his statement before the Labour Court, recorded on 18.01.2000, that he has not recorded the statement of any of the passengers and had prepared the report along with Darban Singh, Inspector. He had compared the cash and unsold tickets and had not written anything in the way-bill of the workman and he did not remember that he had made any statement before the enquiry officer or not. Similarly, the statement of Mohinder Pal, Clerk (MW2), which was recorded on 17.11.1997, would show that the show cause notice was issued by the Transport Commissioner, Chandigarh vide Exhibit M10, by the petitioner, for dismissal and in his cross-examination, he had admitted that no personal hearing was given when the order of dismissal was passed on 25.03.1993. Similarly, as per the statement of the enquiry officer, Chand Singh, Traffic Manager, it transpires that he admitted that no passengers were produced who were present at the time of checking and that no cash were checked during the checking because the same was not possible in the running condition of the bus. In Sailesh ranjan 2014.02.19 12:54 I attest to the accuracy and integrity of this document CWP No.6915 of 2001 (O & M) -6- the statement of the workman, recorded on 23.03.1998, he categorically deposed that the then Transport Commissioner had terminated his service without affording any opportunity to defend himself and he was never given any personal hearing and he remained unemployed. In cross-examination also, he took the stand that he had never been provided opportunity of personal hearing by the Transport Commissioner, who terminated his service. Similarly, his appeal was also dismissed, without any opportunity of hearing.

9. From the above facts, it would be clear that the Labour Court has examined the issue in detail and come to the conclusion that the enquiry proceedings were violative of the principles of natural justice and proper procedure was not followed and no categorical finding was arrived at that there was any misappropriation since the cash was not compared to find out whether there was any shortage and the statements of the passengers were never recorded by the checking team. Reliance upon the judgment of this Court in State of Haryana Vs. Mohan Singh 1985 (2) SLR 116 by the counsel for the deceased-workman is well founded. It was held in the said judgment that since the statement of the passengers, who concededly gave a sum to the Conductor, was never recorded and it was held that the termination of the services of the Conductor on the said basis was not sustainable and the evidentiary value of the testimony has to be objectively considered. The Management, in the present case, had examined Chand Singh, Mohinder Pal and Dayal Singh and it had the freedom to examine other witnesses to prove the guilt of the workman but had failed to do so. Rather the inspecting team failed to record the statements of the bus passengers also. Finding on issue No.1 that the enquiry report was not fair, Sailesh ranjan 2014.02.19 12:54 I attest to the accuracy and integrity of this document CWP No.6915 of 2001 (O & M) -7- arrived at on 28.12.1998, has never been challenged and even in the present writ petition, since the said order has not been impugned, the same had become final. It has been held by this Court in The State of Punjab Vs. Pritam Singh 1994 (1) SCT 198 that where the un-punched tickets and cash have not been tallied and the inspectors had not even referred to the un- punched tickets, the said inspection could not be held against the Conductor. Relevant portion of the judgment read as under:

"5. It is now well settled that a disciplinary enquiry has to be a quasi-judicial enquiry held according to the principles of natural justice and the enquiry officer has a duty to act judicially. Perusal of the enquiry report would reveal that it has not been prepared in accordance with the provisions of Rule 8(23) of the Rules inasmuch as it does not contain the articles of charge and the statement of imputation of misconduct and misbehaviour distinctly. The Supreme Court in Sawai Singh v. State of Rajasthan, AIR 1986 SC 995 has been pleased to hold that where the charges framed against the delinquent officer were vague and no allegations regarding it have been made by him before the enquiry officer or before the High Court, the fact that he has participated in the enquiry would not exonerate the department to bring home the charges. The enquiry based on such charges would stand vitiated being not fair, and further that the report of the enquiry officer finding the delinquent official guilty could not be sustained as the charges were vague and it was difficult to meet the charges fairly by the delinquent official. The case in hand is squarely covered by the abovesaid judgment.

6. Perusal of the enquiry report further reveals that there is no legal and valid evidence before the enquiry officer for having come to conclusion that the third charge, namely, the plaintiff having charges Rs. 2.40 paise from the two passengers allegedly travelling from Kathgarh to Ropar had been proved. Admittedly, there is nothing on Sailesh ranjan the record to show that the un-punched tickets and the 2014.02.19 12:54 I attest to the accuracy and integrity of this document CWP No.6915 of 2001 (O & M) -8- cash with the conductor had been tallied and then it was found out that how many tickets had been issued by the delinquent official. None of the four Inspectors who conducted the raid had even referred to the un-punched tickets collected by them from the delinquent official. Strangely enough, he disbelieved the statement of the witnesses produced by the department on two counts but conveniently believed them on the third count."

10. Counsel for the workman was right in holding out that in view of the judgment of the Apex Court in M/s Fire Stone Tyre & Rubber Company of India Vs. The Management & others AIR 1973 SC 1227, the Labour Court could reappraise the evidence to verify the correctness of findings and come to the conclusion whether the enquiry proceedings are valid or not. It was further held that when the enquiry is held to be defective, it was open for the employer to prove before the Tribunal, the misconduct of the employer and whether it stood proved and the workman had to be given opportunity to lead evidence to the counter that also. Thus, the Management was within its right to lead further evidence, thereafter also after the issue had been decided against it on 28.12.1998. Once the said report became final inter se the parties, the conclusion arrived at by the Labour Court cannot be faulted. Nothing came from the testimony of Dayal Singh, Inspector who was examined on 18.01.2000; rather in his statement, it further came that he had not compared the cash and the unsold tickets, which was the ground for disbelieving the enquiry report.

11. Thus, keeping in view the cumulative discussion made above, this Court is of the opinion that the conclusions arrived at by the Labour Court are well justified and there is no scope for interference under Article 226 of the Constitution of India. Nothing has been pointed out to show that there Sailesh ranjan 2014.02.19 12:54 I attest to the accuracy and integrity of this document CWP No.6915 of 2001 (O & M) -9- is any illegality, irregularity or the Labour Court has exercised jurisdiction, not vested in it under the law. This Court is not to sit as a Court of appeal over the judgment of the Labour Court. There is no merit in the present writ petition and the same is, accordingly, dismissed. The legal heirs of the deceased-workman will be entitled for all the monetary benefits which arise to them from the termination till the time the deceased-employee reached the age of superannuation. Thereafter, they are further entitled for the pensionary benefits of the employee, as per the rules.


           03.02.2014                                               (G.S.Sandhawalia)
           sailesh                                                        JUDGE




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