Diwan Chand vs The Presiding Officer on 16 July, 2009

[Cites 5, Cited by 0]

Punjab-Haryana High Court

Diwan Chand vs The Presiding Officer on 16 July, 2009

1. A conductor in the State Transport Bus that was charged for misconduct of not issuing tickets, causing loss to the tune of Rs.5.05 paise, was proceeded with departmentally and visited with a punishment of removal from service. The industrial dispute that was referred for adjudication confirmed the finding of the disciplinary authority and the Labour Court on additional evidence obtained through previous records of the workman, confirmed the order of dismissal from service and saw no reason to reduce the punishment. The workman, who is aggrieved by the order of dismissal, is the petitioner, challenging the adjudication.

Civil Writ Petition No.10899 of 1988 - 2-

            II.    Grounds of attack on behalf of the workman

            2.     The   learned      Senior   Counsel   Shri   J.C.Verma,

appearing on behalf of the workman, had the following submissions to make:-

i) The enquiry before the Enquiry Officer was vitiated, in that the workman had not been apprised of his right to have a co-worker to assist him in the defence before the Enquiry Officer;

ii) There had been no legal evidence before the Enquiry Officer to find him guilty and consequently, the order of dismissal was vitiated;

iii) Even a plea before the Labour Court for consideration of reducing the quantum of punishment under Section 11-A of the Industrial Disputes Act ought not to be considered as constituting an estoppel to urge on the lack legal evidence to justify the finding of the alleged guilt and the confirmation of the Labour Court with reference to past records was itself barred by the proviso to Section 11-A of the Industrial Disputes Act.

3. Each of the submissions made by the learned Senior Counsel is resisted with vehemence by Ms. Monica Chhibbar Sharma, as is the wont for a person that supports the order of the Presiding Officer and whose judgment is assailed in the writ petition.

III. Plea for reducing punishment, if constitutes estoppel against urging on merits.

4. In paragraph 8 of the award, the Labour Court has observed that the learned representative for the workman did not address any arguments on merits and that his only submission was that the punishment was harsh and sought Court's indulgence under Section Civil Writ Petition No.10899 of 1988 - 3- 11-A of the Industrial Disputes Act, for an alternative order to termination of services. The initial objection therefore by the learned counsel appearing for the respondent was that the workman was not entitled to urge on the merits of his case and the Enquiry Officer's report cannot in any way be assailed. It should be pointed out that it is not as if the Labour Court had not itself adverted to the merits of the contention between the parties. The award adverts to the merits in paragraphs 4 to 7 and in the last paragraph when it dealt with the issue of whether or not to affirm the finding of the disciplinary authority, he had also referred to the fact that the counsel did not argue on the merits. Unless there was clear finding that the workman had forsaken his defence and had acknowledged in clear terms that the finding of the Enquiry Officer was not in challenge before the Labour Court, it shall be impermissible to deny the right to the workman to argue on merits that the case grapples with. Even in the writ petition, elaborate references have been made to the complete lack of legal evidence before the Enquiry Officer and the abject lack of judicial approach that vitiated both the findings of the Enquiry Officer as well as of the Labour Court. I therefore keep out of way the contention that the workman cannot urge on the merits of his defence before this Court. There can not be an estoppel against urging the correctness of the decision of either the Enquiry Officer or the Labour Court IV. Background facts

5. On 14.06.1976, in the Bus No.2665 operating between Amritsar and Goindwal, Inspectors Shri Sital Singh and Balwant Singh, Civil Writ Petition No.10899 of 1988 -4- under the supervision of Traffic Manager, Takhtuchak, found that 1 passenger from Amritsar to Takhtuchak, "5 ½ of passengers" (sic) from Jandiala to Takhtuchak and 3 from Jandiala to Sarli, were travelling without tickets and the workman-conductor had recovered the fare of Rs.5.05 paise but had not issued tickets to them.. Yet another passenger was found without ticket, but he was charged ten times the fare. The workman had been, therefore, found as being negligent in failing to issue the tickets to all the passengers and the charge-sheet was issued to him on 21.06.1976, for not issuing the tickets to the passengers, for negligence of duty and misappropriation. The statement of allegations accompanying the charge-sheet was that the workman had been guilty of not issuing tickets to the passengers, dereliction of duty and misappropriation of the Rs.5.05 paise of the Government money. Three persons have been cited as witnesses namely the Inspectors and the Manager and list of documents that had been referred to in the statement of allegations were the report of the Inspectors and the unpunched tickets.

V. Alleged defects in enquiry before Enquiry Officer

6. The first contention on behalf of the workman was that the enquiry had been vitiated by the fact that the documents that had been referred to in the statement of allegations had never been supplied to the workman for his defence. The workman had sought by reply to the charge-sheet that the documents referred to in the statement of allegation to be furnished to him (Annexure P-3, dated 07.07.1976), but they were not supplied to him. The workman normally was entitled to knew how Civil Writ Petition No.10899 of 1988 - 5- the Inspectors had reported to the higher officers to support the plea that the money had been misappropriated. Production of records on the basis of which enquiry was made, was to prevent surprise at the trial so that a person who was charged with misconduct know the details beforehand to enable him to prepare how he was required to explain an allegation. The learned counsel also refers the judgment of this Court in Dhup Singh Kanunago Versus the State of Haryana and others-1969 SLR 436, that held a copy of complaint on which charge-sheet was based, if it was not supplied to the delinquent, the enquiry was liable to be quashed. The non-supply of documents in all cases, in my view, will not be material. In departmental proceedings where the defence is made by a person who is not trained in forensic course of examination, it shall be the least that shall be done by an Enquiry Officer to provide beforehand the documents on which the management places reliance. In this case, however, it was not as if the Enquiry Officer returned the findings of guilt merely on the statements but the persons that had given the reports had actually given the statements before the Enquiry Officer and cross- examination of witnesses had also been done. The delinquent could not be said to be wholly prejudiced, but it has a certain bearing on the unfairness of the procedure adopted in the enquiry.

7. His objection that was not apprised of his right of co- worker to assist him in his enquiry. Even that objection was not urged before the Labour Court. Hence, I do not think that any prejudice was caused to him at the enquiry. The workman had explained also the allegation of not issuing tickets and misappropriation by stating that Civil Writ Petition No.10899 of 1988 - 6- checking had been done hardly within 5 kilometers from Jandiala from where the bus started and tickets had not been admittedly issued to all passengers. He had also another reason for not issuing tickets to three passengers viz, they had actually held students' passes and the Inspector ignored to check them for free passes. The persons to whom 5 ½ ticket should have been issued, reported that they also held passes and they never purchased tickets nor paid money. On checking, they said that they had lost the tickets, but the fellow passengers rebuked them for speaking falsely, but the Inspector instead of charging ten times the fare, made a false case against the workman. Yet another passenger, who was not a student, had admittedly not taken ticket and fine had been collected from him. He also stated that the Inspectors were requested to check the cash which they did not and requested the Inspector to record the statements of passengers or cite them witnesses which again they did not. One passenger Amarjit Singh, a traveller from Amritsar, was an eye- witness, got noted his ticket to stand as a witness.

8. While the attempt of the learned counsel appearing on behalf of the workman was to show that there was actually a reason for not having issued the tickets and it was not a case of collection of money by the conductor and not issuing tickets that could amount to misappropriation and dereliction of duty. The learned counsel for the respondent sought to contend that there was no requirement in departmental enquiry to examine the passengers themselves or take statements from them. Dilating the point further she would also urge that there was no need to check the cash with the conductor. If the Inspectors Civil Writ Petition No.10899 of 1988 - 7- had given statements before the Enquiry Officer that they found that the conductor had collected money, but not issued tickets and thereby caused misappropriation, it was not necessary for the Inspectors to state in evidence before the Enquiry Officer that they had confronted to the passengers in the presence of the conductor whether they had paid money to the conductor, but still not issued with the tickets. According to her, such an inference must be made from the evidence of the Inspectors themselves that there had been misappropriation by the conductor collecting the money and not issuing the tickets.

VI. Hearsay evidence, even if admissible must have the character of high probative value.

9. The learned Senior Counsel appearing for the petitioner relies on Full Bench decision of this Court in State of Haryana Versus Ram Chander-AIR 1976 Punjab & Haryana 381, that held as under:-

"Where a bus is checked and it is, found that tickets have not been issued to several passengers and the passengers state in the presence of the conductor that they paid the fare, the Enquiry Officer would be justified in acting upon the evidence of the checkers stating these facts even though the passengers themselves are not examined as witnesses. A finding on guilt arrived at by him would not be based on pure hearsay. It would be based on (1) the evidence of the checker that he found passengers travelling without tickets and (2) the statements made by the passengers to the checker at the time of checking. The second item of evidence alone would be hearsay but it would be hearsay of high probative value because of the circumstance that statements were made in the presence of the conductor and on the spot. In such a case, it cannot be said that the Enquiry Officer's findings are based on pure hearsay or hearsay of unrealiable nature."

10. According to him, although there is no bar to the reception of hearsay evidence in domestic enquiry, the evidence must Civil Writ Petition No.10899 of 1988 - 8- be of reasonable probative value, such as, when the person who gives evidence that the conductor did not issue tickets after collecting money must have at least confronted to the passengers in front of the conductor the fact whether they had paid money although they did not obtain tickets. In the case cited, the Full Bench was dealing with a statement made by passenger to the checker at the time of checking to be relevant, if the reference to the statement was made by the checker, although the passenger himself was not examined. The learned Senior Counsel would therefore submit that both the checkers who had been examined before the Investigating Officer, had never stated in evidence that they had enquired the passengers and that they had stated that money had been collected by the conductor. The statements of witnesses have been reproduced in the writ petition. Before the Labour Court itself no evidence was let in and the entire enquiry file was marked through Shri Randhawa, management witness as M-1. The respective statements of the witnesses Balwant Singh, Inspector (English translation) as well as Shri Sital Singh, Inspector, merely state that during the checking, ten passengers were found without tickets. The statements make reference to the enquiry as revealing that one passenger had not purchased the ticket nor paid money, but it does not say anywhere that other passengers, who had not taken tickets had actually paid the money. The affirmative statement of the payment of money to the conductor by the passengers without purchasing of tickets was not spoken to by the Inspectors. The statements were only that the conductor had charged fare from the passengers and it is nowhere stated as to how such an Civil Writ Petition No.10899 of 1988 - 9- inference was made. When the defence was that the tickets had not been really issued and he was giving a justification for the same namely that they were students who had held free passes. In the enquiry, the Inspectors ought to have stated whether they had verified with the passengers that they held passes or not; or whether they had parted with the money to the conductor or not.

VII. Justification for interference by High Court in case of total lack of legal evidence.

11. While normally, this Court exercising jurisdiction under Article 226 of the Constitution, will not examine a question of fact that doubts the correctness of evidence when evidence had been let in and when the Labour Court had also considered the evidence, this Court cannot abdicate its powers and shut its eyes to examine whether there was any legal evidence at all. It is not merely a case of misappreciation of evidence or making a wrong inference from evidence. It is, on the other hand, a case of complete lack of evidence whether any passenger paid money to the conductor to whom he did not also issue tickets. Again, when the defence itself was an admission that he did not issue tickets, but was giving a justification for the same that they held passes, without any evidence whatever that the Inspectors asked the passengers whether they held passes or whether they had paid money to the conductor, it would be impossible to hold that there had been a case of neglect and misappropriation. Even the charge of misappropriation of Rs.5.05 paise does not find expressed in clear terms in the charge-sheet. Only in the statement in the allegations, the reference to Rs.5.05 paise is made as a loss to the Government. A finding of guilt by the Enquiry Civil Writ Petition No.10899 of 1988 - 10 - Officer under the circumstance is absolutely perverse.

12. The learned counsel appearing for the respondent refers to a decision of Hon'ble the Supreme Court in State of Haryana and another Versus Rattan Singh-(1977) 2 Supreme Court Cases 491, that rules of evidence do not apply to domestic enquiries and a departmental enquiry shall not be bound by strict rules of Evidence Act. Only total absence but not sufficiency of evidence will be a ground for inference before the Court. I have held that there was no fair play in that the Enquiry Officer did not furnish to the workman the report but the prejudice was undone by not merely relying on reports but making available the statement of authors of the reports for cross-examination. The evidence of the authors of the report just do not state anywhere that the workman had collected money from the passengers and he had not accounted for the same. Such an inference would be possible only if there had been some evidence that the checkers had enquired the passengers and obtained such information although passengers themselves need not have been examined before the Enquiry Officer. There is a complete lack of evidence that the checkers examined the passengers or the passengers themselves had voluntarily given information that they had paid their fares to the workman. The test of complete lack of evidence to vitiate a finding in domestic enquiry as found in the judgment of the Hon'ble Supreme Court is what permeates the instant enquiry. The learned counsel for the management submits that re-evaluation of the evidence on the strength of testimony is a matter not for the Court but for the Administrative Tribunal shall be applied in Civil Writ Petition No.10899 of 1988 - 11- cases where there exists evidence and the quality of evidence is that which will be examined only by the Tribunal or not by the Court. The Hon'ble Supreme Court in Rattan Singh's case (supra) was dealing with the case where the passengers had not been examined but the explanation of the State with reference to the records was that the Inspector of the Flying Squad had elicited that passengers stated that they had paid the fares, but they declined to give such statement in writing. In this case, we have no evidence that the Inspector had elicited from any passenger that they had paid the fares. In State of Punjab and others Versus Nirmal Singh-1987 PAP 24, a learned Senior Judge of this Court had held, there was no need to produce passengers and for proving the guilt of mis-conduct by a conductor, statement of Inspector, who checked the passengers and cash of the conductor, was sufficient. In fact, the said judgment refers to the decision of Hon'ble the Supreme Court, referred to above, dealing with the situation of effect of non-examination of passengers as irrelevant. It is not possible to find from the facts disclosed in the judgment whether in that case also there was no evidence at all of, any passenger volunteering information whether they had paid the fare to the conductor or not. The said judgment must, therefore, be understood as merely a reaffirmation of the principle laid down by the judgment of Hon'ble the Supreme Court in Rattan Singh's case which as observed, apart from saying that the rules of Evidence Act, shall not be strictly applied, still observes that the Court shall interfere if there was a total absence of evidence.

Civil Writ Petition No.10899 of 1988 - 12-

13. The learned counsel appearing for the workman referred to several decisions that involve cases of passengers not being issued with tickets and the nature of evidence that was expected in order to find the guilt as having been established. I do not propose to examine them all, for, they lay down no principle of law than what is gathered from the decision of the Hon'ble Supreme Court Rattan Singh's case. In a case that involves the dismissal of an employee, it shall always be the duty of the Labour Court to see whether the domestic enquiry had complied with the principles of natural justice or whether there was any violation (The Cooper Engineering Ltd. Versus P.P.Mundhe-AIR 1975 Supreme Court 1900). The Labour Court that went on to examine whether the punishment was justified or not, was still bound to see whether there was any evidence at all, on the basis of which, the finding could have been rendered. If the counsel for the workman had argued only on the issue of punishment, there was perforce a greater responsibility for the Presiding Officer to be satisfied that there was some material on which the misconduct was established before undertaking an enquiry about the quantum of punishment.

VIII. Power to reduce punishment under Section 11-A of the Industrial Disputes Act to be exercised with evidence on record.

14. Even while disposing of the plea for quantum of punishment, the Labour Court had committed a mistake by calling for the past records and taking note of them for confirming the punishment. In a case where the Labour Court finds that the enquiry before the Enquiry Officer had been vitiated in any way, it would always be permissible to Civil Writ Petition No.10899 of 1988 - 13- allow the management to prove the guilt before it by virtue of the powers that the Labour Court exercises under Section 11 of the Industrial Disputes Act. It may also be possible in cases where the punishment is sought to be interfered under Section 11-A of the Industrial Disputes Act, the evidence tendered through the witnesses either by the management or the workman shall be examined by the Court to the find whether there are any extenuating circumstances for considering reduction of punishment from dismissal to a lesser punishment. In this case, it is seen from the records of the Labour Court that it closed both sides on 20.08.1985 and fixed the case for arguments on 10.09.1985. The Labour Court had suo-moto directed the management to produce the past records and they were received by the court on 17.12.1985; it proceeded to hear the arguments and delivered the award. The learned senior counsel appearing for the workman referred me to authorities Jagsir Singh Versus the State of Punjab and others-1983 (2) SLR 685; State of Haryana and others Versus Bikar Singh and others-2002(1) RSJ 519; State of Punjab and others Versus Balbir Singh-1980 (2) SLR 653, that hold that alteration of punishment by referring to enquiry files that were not put to workman is improper and such judgment will be vitiated. The Labour Court will always be entitled, while invoking the powers under Section 11-A of the Industrial Disputes Act, only to appraise the evidence and examine the correctness of the evidence thereat. It also gives the power to interfere with punishment and alter the same (M/s. Firestone Tyre and Rubber Company of India Versus the Management and others-1973 AIR Supreme Court 1227). The powers Civil Writ Petition No.10899 of 1988 - 14- exercised under Section 11-A shall be only with reference to evidence already on record. Proviso under Section 11-A reads: "any proceedings under this Section, the Labour Court, Tribunal or National Tribunal, as the case may be, shall rely only on the materials on records and shall not take any fresh evidence in relation to the matter." The order passed by the Labour Court confirming the punishment is also vitiated by the fact that the Labour Court relied on materials which were in the nature of additional evidence to sustain the punishment of dismissal.

IX. Conclusion

15. The decision of the Labour Court that affirms the finding of the Enquiry Officer is vitiated and it is, therefore, set aside. The writ petition succeeds and the workman is entitled to reinstatement with continuity of service and back wages. If the petitioner has already reached the age of superannuation, all the benefits shall be computed and given to him appropriately, within a period of two months, failing which the component of monetary benefit will attract simple interest at 6% per annum. The petitioner is also entitled to costs that is assessed of the writ petition at Rs.5000/-.

(K.KANNAN) JUDGE 16.07.2009 sanjeev

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