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2008 DIGILAW 1917 (PNJ)

Amrik Singh v. Presiding Officer

2008-11-17

HARBANS LAL

body2008
Judgment Harbans Lal, J. 1. This petition has been moved by Amrik Singh under Articles 226/227 of the Constitution of India forquashing the impugned award dated 25.3.1987 Annexure P.4. 2. The brief facts giving to this petition are than when the bus being conducted by the petitioner (hereinafter to be referred as the workman) was checked on way to Delhi from Muktsar between Malout and Dabwali, it was discovered that three passengers who were travelling from Muktsar to Delhi, two from Muktsar to Rohtak and one from Muktsar to Sirsa, all of them had been charged for Delhi but they were given the tickets for Sirsa and had in the process embezzled Rs. 85.25. When the cash in hand with the workman was checked on 18.6.79 on his return trip from Delhi, it was found in excess of sale proceeds of the tickets by Rs. 102.32 suggesting that he had charged certain passengers without issuing them the requisite tickets. When his bus was checked again on 3.4.1979 on way to Bathinda from Muktsar, he was found to have charged Rs. 2/- from four passengers at the rate of Rs, 0.50 paise per head without issuing any tickets to them. That without considering the charge- sheet and the reply, an inquiry was ordered. The Inquiry Officer had exonerated the workman of the Charge dated 3.4.1979 but held him guilty of other two charges. His Services were terminated, which gave rise to an industria! dispute. The matter was referred to the Labour Court. The Presiding Officer, Labour Court framed the following issues :- 1. Whether the reference is bad for non-joinder of necessary parties ? 2. Whether there has been a fair and proper enquiry? 3. Whether the order of termination of Services of the workman is justified and in order ? 4. Relief. 3. After hearing the representatives of the parties and examining the evidence on record, the learned Presiding Officer, Labour Court held that "I am of the opinion that the inquiry was absolutely fair and proper and the termination of the Services of the workman was thoroughly justified and he is not entitled to ahy relief." Feeling aggrieved with the impugned award, the workman has preferred this Petition. 4. I have heard iearned counsel for the parties besides, perusing the findings returned by the learned Presiding Officer, Labour Court with due care and circumspection. 5. Mr. 4. I have heard iearned counsel for the parties besides, perusing the findings returned by the learned Presiding Officer, Labour Court with due care and circumspection. 5. Mr. J.C.Verma, learned Senior Advocate appearing on behalf of the petitioner strenuously urged that as is borne put from the record, the provisions of Rule 8.11 ibid been given a go by, as the assistance of a co-workman was not provided to the petitioner who being a semi literate person did require the same and thus he has been abundantly prejudiced in his valuable right as he could not put forth his case in a desired manner. To buttress this stance, he has sought to place reliance upon the observations made in re : Bhagat Ram vs. State of H.P. and others, AIR 1983 Supreme Court 454. 6. I have given a deep and thoughtful consideration to this Submission. The allegations against the petitioner were that he had misapprophated the fare charges by not issuing the tickets. To my mind, it did not involve decision of a complex or a intricate question of law. The petitioner could defend himself even without the assistance of a co-worker. He did not make any complaint. A glance through the Petition or the impugned award would reveal that it is not his case that he had made a request to the Inquiry Officer to provide the assistance of a co-worker or a lawyer and the same was declined, So, it has to be presumed that he did not make any such request. Had he made such a request and the same had been declined by the Inquiry Officer, he would have made complaint against the denial of assistance of a co-worker or a lawyer. Thus, non-providing of such assistance does not have the effect of vitiating the inquiry. If the need be, the reference may be made to Ram Singh vs. The State of Punjab and another, 1998(2) Recent Services Judgments 518. In such a Situation, it is to be noticed as to whether the delinquent official due to non-providing of the assistance of a co-worker has suffered any prejudice or was at disadvantage as compared to the disciplinary authority represented by the Presenting Officer. If the answer to the question is in the affirmative, then the inquiry would be vitiated, but if the answer is in the negative, then the inquiry proceedings would not be vitiated. If the answer to the question is in the affirmative, then the inquiry would be vitiated, but if the answer is in the negative, then the inquiry proceedings would not be vitiated. This would vary, from case to case. The delinquent official can assail the inquiry proceedings, if he could establish prejudice to himself in the course of inquiry proceedings. He has to establish that he was put to a disadvantage as he did not have the assistante of a co-worker during the course of inquiry because he could not cross-examine the departmental witnesses being not well equipped for it and that despite request he was not given the assistance of a next friend. 7. Reverting back to the instant case, Annexure P.l the Statement of Piara Singh C.l. and Annexure P.2 the Statement of Rattan Chand, tnspector would reveal that they were adequately and relevantly cross-examined by the workman. He did not disclose either before the Labour Court or in this petition as to how he has been prejudiced for not being provided the assistance of the co-worker. In re : Bhagat Ram (supra), too, the Apex Court has observed as under :- . "But if the delinquent officer is not informed of his right and an overall view of the joint inquiry of the delinquent and his Superior Officer shows that the deünquent Government servant was at a comparative disadvantage compared to the discipünary authority represented by the Presiding Officer and a superior officer, co-delinquent, is also represented by an officer of his choice to defend him, the absence of anyone to assist such a Government servant belonging to the lower echelons of Service would unless it is shown that he had not suffered any prejudice, vitiate the inquiry." Herein this case, the cross-examination of the above mentioned witnesses by the workman reveal that he has not suffered any prejudice. In re : Kirpal Singh vs. Presiding Officer, Labour Court, U.T. Chandigarh andanother, 1993(3) Recent Services Judgments 338, it has been held as under :- "It is one thing to say that the assistance of a co-workman was denied and altogether different thing to say that the co-workman be called and the enquiry may be ensued only thereafter. Further, this point was not raised before the Labour Court. Further, this point was not raised before the Labour Court. While dealing with issue No. 1 which is with regard to enquiry being proper or vitiated for some reason, it has been held that the workman in fact in his statement did not make any grievance with regard to the conduct of enquiry nor did he say anything which could possibly suggest that he was not allowed fair and reasonable opportunity either to cross-examine the witnesses who appeared against him or in leading defence to prove his own case. If this point was taken in the pleadings before the Labour Court and evidence was led, it was possible for the management to rebut the same and prove that in fact assistance of a co-workman was never denied to the petitioner and that the presence of the co-workman was not to be secured by it. In view of the fact that this matter was not agitated before the Labour Court and in fact, no question whatsoever was raised against the conduct of the enquiry, it shall not be just and equitable at this stage to go into this point and set aside the order of dismissal of petitioner from Service." In re: R.C. Sharma vs. Union of India and others, 1976(2) Services Law Reporter 265, it has been held as under :- "The question whether the appellant was given a . reasonable opportunity to lead evidence and to be heard or not is largely a question of fact. It is only when an opportunity denied is of such a nature that the denial contravenes a mandatory Provision of law or a rule of natural justice that it could vitiate the whole departmental trial. Prejudice to the govemment servant resulting from an alleged violation of a rule must be proved." In view of the above discussion and case law, the argument raised by Mr. Verma has no legs to stand upon and is overruled. Prejudice to the govemment servant resulting from an alleged violation of a rule must be proved." In view of the above discussion and case law, the argument raised by Mr. Verma has no legs to stand upon and is overruled. 8 It is further argued on behalf of the petitioner that at the time of checking, no cash was checked nor the petitioner was confronted with the statements of the passengers at the time of checking and thus the guidelines issued by the Director, State Transport to be observed by the checking staff had not been complied with at all and had the same been done and the Statements by the passengers recorded, the result would have been different. 9. To tide over these submissions, the learned Assistant Advocate General, Punjab by relying upon the observations rendered in re: State ofPunjab and others vs. Nirmal Singh, 1987 Punjab Acts and Precedents 24, maintained that the law does not envisage that the cash should have been checked or the petitioner ought to have been confronted with the Statements and as regards, the stated guidelines, the same do not carry the force of law. 10. I have well considered the rival contentions. In Nirmal Singhs case (supra), it has been observed as under :- "Counsel for the respondent, however, sought to rely upon the recent judgment of this Court in State of Haryana vs. Mohan Singh, 1985(2) SLR 116. This was no doubt a similar case, where the Services of the conductor had been terminated on the Charge that he had taken fare from passengers without issuing them tickets, but a reading thereof would show that the earlier judgment of the Supreme Court in Rattan Singhs case (supra) had not been noticed and further the case was decided on its own facts, inas- much as, it was found that the Inspector who had detected the non-issue of tickets, had not checked the cash of the conductor, nor had he recorded the Statement of any passengers or other persons. It was on this account held to be a case of no evidence. It was on this account held to be a case of no evidence. This thus, affords no assistance to the respondent." In re : State of Haryana & another vs. Rattan Singh, 1977 Punjab Law Reporter 492, the Apex Court ruled as under :- "Held, that it is well settled that in a domestic enquiry the strict and sophisticated rules of evience under the Indian Evidence Act may not apply. All materials which are logically probative for a prudent mind are permissible. There is no allergy to hearsay evidence provided it has reasonable nexus and credibility. It is true that departmenta! authorities and administrative tribunals must be careful in evaluating such material and should not glibly swallow what is strictly speaking not relevant under the Indian Evidence Act. The essence of a judicial approach is objectivity, exclusion of extraneous materials or considerations and observance of rules of natural justice. Sufficiency of evidence in proof of the finding by a domestic tribunal is beyond scrutiny. Absence of any evidence in support of a finding is certainly available for the court to look into because it amounts to an error of law apparent on the record. It cannot hold that merely because Statements of passengers were not recorded the order that followed was invalid. Likewise, the re-evaluation of the evidence on the strength of co-conductors testimony is a matter not for the Gourt but for the administrative tribunal." 11. In view of the above observations, the re-evaluation of the evidence is not required to be done by this Court as it is the function of the Labour Court. As regards, the stated departmental instructions, these are of prudence and not the rules that bind or vitiate any violation. Thus, this contention being bereft of any merit is turned down. 12. It is further pressed into service that it was imperative upon the checking staff to record the Statements of the passengers/ witnesses and the failure to do so, amounts to a case of no evidence. This contention pales into insignificance in view of Rattan Singhs case (supra). 13. Mr. 12. It is further pressed into service that it was imperative upon the checking staff to record the Statements of the passengers/ witnesses and the failure to do so, amounts to a case of no evidence. This contention pales into insignificance in view of Rattan Singhs case (supra). 13. Mr. Verma further argued that as would be apparent from the inquiry file, the punishing authority by recording a discordant note disagreed with the findings of inquirying authority, but without supplying the copy of the reasons recorded for such disagreement and thus, the provisions of Rule 9 Sub-rule 2 of the Civil Service Rules which is mandatory in nature has not been adhered to. Consequently, the workman has been prejudiced. This contention is unsustainable. Ruie 9 Sub-rule 2 ibid reads in the following terms :- "(2) The punishing authority shall, if it disagrees with the findings of the inquiring authority on any article of Charge, record its reasons for each disagreement and record its findings on such Charge, if the evidence on record is sufficient for the purpose." Of course, the language of this Rule requires the punishing authority to record its reasons for disagreement on any article of Charge, but it has not been specifically mentioned that the copy of such reasoning ought to be given to the employee. A glance through the inquiry file would reveal that the punishing authority did not disagree with the findings arrived at by the inquiring authority but recorded a note that the matter requires further probe. AAO was appointed as inquiry Officer. So, it does not lie in the mouth of the workman to contend that the punishing authority had disagreed with the Inquiry Officer. 14. Mr. Verma further agitated at the bar that as transpires from Annexure P.3, the statement of defence witness Harminder Singh, number of questions were put by the Inquiry Officer to this witness and thus, obviously he has travelled beyond the rules or the scope of inquiry. A glance through, these questions would reveal that the same are of such a nature, that by no process of reasoning, these can be deemed to have caused prejudice to the workman. Mr. Verma laid much emphasis that the Inquiry Officer was not competent to put the question to this witness as to how he was known to the conductor. A glance through, these questions would reveal that the same are of such a nature, that by no process of reasoning, these can be deemed to have caused prejudice to the workman. Mr. Verma laid much emphasis that the Inquiry Officer was not competent to put the question to this witness as to how he was known to the conductor. The answer was that he (referring to the conductor) had noted down my (Harminder Singh) address so that I can be called if the need be. t have no acquaintance with him. It clearly shows that by putting this question or the other ones, no prejudice of any sort has been occasioned to the workman. On going through these questions, it would be revealed that the inquiry report is not based on the answers given by this witness. More to the point, this witness was examined in defence only. So, this contention is also not sustainable. 15. It has been further argued by Mr. Verma that the Labour Court has illegally held that the passengers had paid any fair from Muktsar to Delhi. Only because the passengers had the intention of continuing their journey from Sirsa to Delhi, if their other companions join them at that place, would not show misconduct. The Presiding Officer, Labour Court has observed that the workman in answer to the charge-sheet said that when the Inspector inquired from the passengers their destination, they had told them that it was the place for which they had brought the tickets. The defence plea was artificial and inconvenience on the face of it. It was completely shattered by Harminder Singh examined by the workman. He said that he with his two companions had boarded the bus from Muktsar and that, when the Inspector inquired from them about their; destination, they had said that it was Delhi, but some of their companions were to board the bus at Sirsa. The two versions are in serious conflict with each other." In my view, no exception can be taken to these observations. 16. Last of all, it has been argued that the Labour Court has not apportioned any reason as to why the relief could not be given under the provisions of Section 11- A of the Act, I regret my inability to be one with Mr. 16. Last of all, it has been argued that the Labour Court has not apportioned any reason as to why the relief could not be given under the provisions of Section 11- A of the Act, I regret my inability to be one with Mr. Verma for the reason that on different occasions when bus being conducted by the petitioner was checked by the inspecting staff, he was found to have collected the bus fare without issuing the requisite tickets to the passengers. The charges were supported by the Inspectorate staff. The Presiding Officer, Labour Court is not obligated to invoke the provisions of Section 11-A ibid in every case. In re : Harjinder Singh vs. State of Punjab, 1999(1) Labour Laws Journal 1292, this Court observed as under :- "It is true that under Section 11-A the Labour Court has the power to reappraise the evidence. It is also true that the writ Court is normally reluctant to interfere with the findings recorded by the Labour Court. Yet, the power given to the Labour Court cannot be arbitrarily used to order reinstatement or re-employment of dishonest employee. Fraud of even a small amount is like a drop of poison in a bucket of pure milk. It ruins the milk completely and renders it unfit for human consumption. Similarly, an employee found to be guilty of a dishonest act renders himself unfit for retention in service." In view of the above observations, the power vested in the Labour Court under Section 11-A ibid cannot be arbitrarily or whimsically used to order reinstatement or re-employment of dishonest employee. in re: North West Karnataka Road Transport Corporation vs. H.H. Pujar, 2008(5) Services Law Reporter 513, the respondent- workman had not issued tickets to 20 out of 136 passengers. During domestic inquiry, he was found guilty. Consequently, he was dismissed from service. The order of dismissal passed by the Corporation was upheld by the Apex Court. In re: Municipal Committee, Bahadurgarh vs. Krishnan Behari, 1996(2) SCT 508, the respondent was dismissed from service on the charges of misappropriation-of public money. The Apex Court held that "any sympathy shown in such cases is totally uncalled for and opposed to public interest. The order of dismissal passed by the Corporation was upheld by the Apex Court. In re: Municipal Committee, Bahadurgarh vs. Krishnan Behari, 1996(2) SCT 508, the respondent was dismissed from service on the charges of misappropriation-of public money. The Apex Court held that "any sympathy shown in such cases is totally uncalled for and opposed to public interest. The amount misappropriated may be small or large, it is the act of misappropriation which is relevant." The order of the Director Local Bodies reducing the punishment of dismissal into stoppage of increments was set aside. 17. In the present case, the disciplinary authority after analysing the evidence on record found that the petitioner is guilty in this case. The Labour Court also after hearing the representatives of both the parties and evaluating the evidence on record agreed with the findings of the disciplinary authority. Therefore, this Court by sitting under writ jurisdiction under Article 226 of the Constitution of india cannot.go into the sufficiency or otherwise of the evidence before the Inquiry Officer and come to a different finding after re-appreciating the evidence on record. Sequelly, this petition is dismissed. Petition dismissed