Punjab-Haryana High Court
State Of Haryana Through G.M. Haryana vs Avtar Singh And Others on 27 May, 2009
Author: Augustine George Masih
Bench: Augustine George Masih
C.W.P.No.823 of 2004 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
C.M.No.7546 of 2009 and
C.W.P.No.823 of 2004
Date of Decision:- 27.05.2009
State of Haryana through G.M. Haryana
Roadways, Chandigarh ....Petitioner(s)
vs.
Avtar Singh and others ....Respondent(s)
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CORAM:- HON'BLE MR.JUSTICE AUGUSTINE GEORGE MASIH
***
Present:- Mr.Kartar Singh, AAG, Haryana,
for the petitioner.
Mr.Ranjit Saini, Advocate,
for the workman-respondent No.1.
***
AUGUSTINE GEORGE MASIH, J. (Oral)
In the present writ petition, challenge is to the award dated 9.4.2003 (Annexure P-1) passed by the Labour Court, U.T., Chandigarh vide which the reference has been answered in favour of the workman holding him entitled to reinstatement with continuity of service and full back wages from the date of demand notice.
Briefly, the facts of the case are that the allegations against the respondent-workman, who was working as an Advance Booking Clerk at Ambala, were that he had booked tickets in advance booking for the bus on route Kalka to Delhi at Ambala Cantt bearing bus No.728. The said bus was checked at Ganaur and it was found that tickets No.28242 and 28243 C.W.P.No.823 of 2004 -2- of the denomination of Rs.26/- each were issued to two passengers which did not find mention in the way bill No.818505. The said way bill opened with ticket Sr.No.28244 and concluded with 28246. Since these two numbers i.e. 28242 and 28243 did not find mention in the way bill, it was alleged that the workman had defrauded the respondent-Management of two tickets of the denomination of Rs.26/- each by re-issuing the tickets after arranging the sold tickets back from Delhi. The workman was charge- sheeted for the same but he did not file any reply to the charge-sheet. An Inquiry Officer was appointed. Despite various opportunities granted to him and even after publication of the notice to attend the enquiry, the workman failed to participate in the same. Ex parte enquiry was held against him and on the basis thereof, he was held guilty of the charges levelled against him. He was given a show cause notice and ultimately, his services were terminated. He preferred an appeal against the said order but the appeal also was rejected. Thereafter, the workman served the Management with a demand notice and the conciliation proceedings failed. Reference was made by the Appropriate Government to the Labour Court for adjudication of the dispute. On the basis of the pleadings and the evidence led by the parties, the Labour Court came to the conclusion that the Management had not been able to prove the enquiry report before it since it had failed to tender the original file in evidence nor were any reasons given for non-production thereof and only a photocopy of the original file was produced. Further, the Labour Court came to the conclusion that the findings recorded by the Inquiry Officer were perverse as he had not evaluated the evidence so produced before him and had merely reproduced the statements of the parties. On the basis thereof, the C.W.P.No.823 of 2004 -3- Labour Court came to the conclusion that the findings recorded by the Inquiry Officer were based on conjectures and surmises and, thus, the findings recorded by him were not as per the evidence on record and, thus, not justifiable. The Labour Court further came to the conclusion that the order of termination passed by the Management against the workman could not be said to be justified as the evidence was too shabby and the conclusions drawn by the Inquiry Officer were based on no evidence.
Counsel for the petitioner-Management has contended that the findings as recorded by the Labour Court are not correct for the reason that a proper and fair enquiry was held against the workman in which the workman had failed to participate. He contends that it is not a case of no evidence at all as the statements of the departmental witnesses i.e. the Inspectors who had checked the bus, were recorded by the Inquiry Officer, thus, interference by the Labour Court in the findings recorded by the Inquiry Officer is not justified. He further contends that once a finding has been recorded during the enquiry proceedings, where the workman failed to participate, despite being given numerous opportunities and a misconduct with regard to misappropriation and fraud of Rs.52/- committed by him having been established, the Labour Court could not have come to a different conclusion merely because the allegations were not substantiated or enquiry file in original was not produced before the Labour Court. He, therefore, contends that the impugned award deserves to be set aside.
Counsel for the petitioner further contends that it is an admitted position that during the interregnum period, the workman had been working with his father and doing the agricultural work and, therefore, grant of full back wages to him is not justified.
C.W.P.No.823 of 2004 -4-
On the other hand, counsel for the respondent-workman contends that the Labour Court has rightly exercised its powers in the present case, while coming to the conclusion that the findings recorded by the Inquiry Officer are perverse. The Punishing Authority and the Appellate Authority have not exercised their powers in a reasonable and justifiable manner as they merely proceeded to accept the enquiry report without going through the conclusions as recorded by the Inquiry Officer. The finding as has been recorded by the Inquiry Officer is totally perverse as no prudent person could have arrived at a conclusion, as has been drawn by the Inquiry Officer on which reliance was made by the Punishing Authority as well as the Appellate Authority. He on this basis contends that the impugned award of the Labour Court is fully justified. As regards the grant of back wages, counsel contends that the respondent-workman was merely helping his father in the agricultural work as he failed to get any gainful employment and, therefore, had no option in this regard.
I have heard counsel for the parties and have gone through the records.
A perusal of the records and the impugned award would clearly indicate that indeed the finding which has been recorded by the Inquiry Officer is totally perverse as no prudent person could have arrived at the conclusion as has been drawn by the Inquiry Officer. It is not in dispute that ticket Nos.28242 and 28243 which did not find mention in the way bill are in continuation to the subsequent way bill tickets i.e. 28244 to 28246 which do find mention in the way bills. The allegations against the workman are that he had committed fraud of Rs.52/- by reselling the tickets bearing No.28242 and 28243 which were found in possession of two C.W.P.No.823 of 2004 -5- passengers travelling from Ambala Cantt to Delhi and further the allegation against him is that he had resold the tickets which according to the Management, he had procured from the passengers travelling from Ambala Cantt to Delhi. It is a common knowledge that the distance from Ambala to Delhi (to and fro) cannot be travelled within a short period of time as it would take at least six hours. A ticket issuing Clerk, would not wait for long six hours, as from Ambala to Delhi a large number of buses ply, for issuing tickets and stay waiting for the earlier tickets to come back so that they could be resold. The Management has acted in a totally unreasonable manner without verifying the facts. Since the tickets i.e. No. 28242 and 28243 were in continuation of the subsequent i.e. tickets No.28244 to 28246 which were mentioned in the way bill, the only conclusion which can be reasonably drawn is that the tickets No. 28242 and 28243 were issued at the same time or a few minutes before the other passengers. The said tickets having been issued in seriatim, merely because the same do not find mention in the way bills, would not lead to a conclusion that a fraud had been committed upon the Management by the workman. The assertion of fraud was made by the Management and so the onus to prove the same was also on the Management, which it has utterly failed to discharge. Therefore, the findings recorded by the Labour Court being fully justified, do not call for any interference by this Court.
As regards the grant of full back wages to the workman, the same would not be justified for the reason that he has not asserted in his statement before the Labour Court that he did not get any job or could not be gainfully employed despite of his having made efforts in that regard. It is an admitted position that the workman had helped his father in the C.W.P.No.823 of 2004 -6- agricultural work. In this view of the matter, it would be just and equitable that the amount of back wages be reduced to 50% from full back wages.
In view of the above, the present writ petition is partly allowed. The impugned award dated 9.4.2003 (Annexure P-1) is modified to the extent that workman will be entitled to 50% back wages from the date of demand notice instead of full back wages, rest of the award is upheld.
It has been stated by the counsel for the workman that the respondent-workman has attained the age of superannuation. A direction is issued to the petitioner-Management to process the claim of the respondent- workman within a period of three months from the date of receipt of certified copy of this order and to release all the dues to him within the time so stipulated. The amount paid to the workman under Section 17-B of the Industrial Disputes Act, 1947 during the pendency of the writ petition may be adjusted by the Management while making final payment to the workman.
Records of the Labour Court be sent back forthwith.
May 27, 2009 ( AUGUSTINE GEORGE MASIH ) poonam JUDGE Whether referred to Reporters ________ Yes/No