Civil Writ Petition No. 5951 of 1993 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No. 5951 of 1993 Date of decision: 18.11.2010 Avtar Singh ...Petitioner Versus The Managing Director, Pepsu Roadways and others ...Respondents CORAM: HON'BLE MR. JUSTICE RANJIT SINGH Present: Mr. Kanwalvir Singh Kang, Advocate for the petitioner. Mr. G.S. Beinpal, Advocate for respondent No. 1. RANJIT SINGH J. C.M. No. 15947 of 2010 For the reasons mentioned in the application, order dated 08.11.2010 is recalled. The writ petition is restored to its original position. With the concurrence of the parties, the main writ petition is taken up for hearing. Application disposed of . Civil Writ Petition No. 5951 of 1993 The petitioner, a Driver, in Pepsu Road Transport Corporation has filed this writ petition to challenge the award passed by the labour Court, Patiala. The challenge to the award is primarily on the ground that the domestic inquiry held against him to investigate the charges was not fairly conducted and it was a case of no evidence and, hence, the finding given by the inquiry officer and upheld by the labour Court cannot be sustained. The petitioner had nearly 15½ of service when the order of termination was passed. Civil Writ Petition No. 5951 of 1993 2 The allegation made against him was that the petitioner while driving the bus had consumed liquor for which he was checked by Inspector Mohinder Singh on 03.07.1984. On the basis of report so made, the petitioner was issued a charge sheet containing statement of allegation, copy of which is attached with the petition as Annexure P- 1. The perusal of Annexure P-1 would show that the petitioner was allegedly driving bus No. 3592 enroute Patiala-Dhuri when he was given signal to stop the bus at bus stand Kausari. Gurdev Singh, Conductor of the bus was seen driving the bus at that stage. The petitioner being driver of the bus was seen lying on the seat besides Bonet. Sh. M.S. Chadha, Inspector who checked the bus, told the Conductor to show the way-bill for checking. The passengers at that stage complained to the checking staff that the Driver and the Conductor had liquor at the bus stand, Chintawala. The passengers had reported the matter to the Depot Manager, Sangrur and he had verified the fact that both Driver and the Conductor were under the influence of liquor while on duty. The Depot Manager had given a note to this effect on the way-bill. Jaswant Singh, another driver of the staff car was sent to perform duty on Bus No. 3592. The Conductor had admitted their fault in writing that he and the driver had consumed liquor at Chintawala. The Conductor also conceded that he had driven the bus. Accordingly, they were alleged to have violated the rules of the Corporation and were found willfully negligent in performance of duties and endangering the lives of the passengers by driving the bus under the influence of liquor. While responding to the charge sheet, the petitioner had denied the allegations made therein. The inquiry officer, thereafter, Civil Writ Petition No. 5951 of 1993 3 was appointed. It is alleged that the said inquiry was held in complete violation of principles of natural justice and fair play on number of grounds. On 27.03.1985, the petitioner, however, was found guilty of the charges levelled against him. Deputy General Manager thereupon issued a show cause notice to the petitioner proposing the punishment of removal from service. The petitioner again made an attempt to clarify his position and pleaded that he was innocent. He also pleaded that relevant facts and evidence was not available on record and so also the fact that the inquiry was in violation of principles of natural justice. Deputy General Manager, however, passed an order removing the petitioner from service on 11.11.1985. The petitioner would plead that this order was passed completely ignoring the pleas and defence raised by the petitioner. The petitioner, accordingly, filed appeal pleading so but the same was rejected on 08.02.1990. Aggrieved against the order of termination and rejection of his appeal, the petitioner issued a demand notice under the provisions of Industrial Disputes Act. The Government, thereafter, referred the matter regarding termination of the petitioner to labour Court, Patiala for adjudication. The petitioner filed his claim statement seeking reinstatement with continuity in service. The labour Court, however, has held that the domestic inquiry was held in a fair and proper manner and, accordingly, upheld the order of termination passed against the petitioner. The petitioner, thereafter, has now filed this present writ petition to impugn his termination. The respondents have filed reply pleading that fair and proper inquiry was conducted and full opportunity of hearing and Civil Writ Petition No. 5951 of 1993 4 leading evidence was given to the petitioner. It is stated that labour Court has scrutinized the entire record and has upheld the penalty imposed upon the petitioner. It is, accordingly, urged that no fault can be found in conducting the inquiry which was done in fair and proper manner and so punishment awarded was proper. The respondents, therefore, would plead that no case for interference in the impugned award is made out. Learned counsel for the petitioner has made a painstaking efforts to point out that there was major infirmity in the manner of holding of inquiry and had tried to build this to be a case of no evidence. The counsel appearing for the respondents have made equal efforts to plead that inquiry held in this case was fair and proper. The first infirmity that the counsel for the petitioner would point out is that the part of the allegation made in the charge that the petitioner was drunk has not been proved on the basis of evidence and the material, which is on record of the inquiry proceedings. As per the counsel, remaining allegation that the petitioner had permitted the Conductor to drive the bus would be insignificant if the main allegation that the petitioner was intoxicated is not established. As noticed by the labour Court, two witnesses were examined on behalf of the management and these were Mohinder Singh, Chief Inspector and Sh. R.P. Pandov, Depot Manager PRTC, Sangrur. Statement given by Mohinder Singh may have to be excluded from consideration. This witness was not made available for cross examination and only had given statement while being examined-in- chief. The cross examination of the witness had been deferred but he Civil Writ Petition No. 5951 of 1993 5 was never made available to the petitioner. Thereafter, this witness was never produced for cross-examination. Sh. R.P. Pandov the second witness, however, was cross examined by the petitioner. He has given evidence that the petitioner was under the influence of liquor and that he was not driving the bus himself and as he was lying on a seat behind the back of the driver seat. As per the version of this witness, Conductor was driving the bus. This witness had signed the way bill endorsing the state of affairs. To rebut this evidence, the petitioner workman appeared as a witness in support of his case. He set up the plea that he was suffering from fever and thus allowed the Conductor to drive the bus. The petitioner also admitted this fact that the bus was checked by the Depot Manager, Sangrur and that he had submitted the certificate of his illness, which was not taken into consideration. He did not produce any witness in his defence. On the basis of evidence led before the inquiry officer, the fact that the petitioner had permitted the Conductor to drive the bus is not in dispute. The dispute is in regard to the reason, which may have led the petitioner to permit the Conductor to drive the bus. As per the management, the reason in this regard was that the petitioner was drunk. The petitioner, however, would plead that his illness was the reason for him to permit the Conductor to drive the bus. Whatever may be the reason, the action on the part of the petitioner to permit the Conductor to drive the bus is not in dispute. Even if the petitioner was unwell, he could not have taken the risk of permitting the Conductor to drive the bus and put the lives of the passengers at stake. The evidence or the version of the Conductor, which is taken Civil Writ Petition No. 5951 of 1993 6 note of by the labour Court and the inquiry officer and his so called admission was never led into evidence as the Conductor did not appear as a witness. Thus, except the version of Sh. R.P. Pandov, Depot Manager, PRTC, nothing is available on record to indicate that the petitioner was under the influence of liquor while the bus was checked. The submission by the counsel for the petitioner that the Management should have ensured the medical examination of the petitioner may appear far fetched but still would carry some weight. Even if medical examination was not got conducted the evidence of person seeing the behaviour of the petitioner could have been produced to show/prove this fact. If the management had intended to proceed against the petitioner with the allegation of being under the influence of liquor medical examination of the petitioner would have been appropriate course to follow, to support the eye witness account. Apparently, the petitioner is seen taking advantage of this to urge that the allegation the petitioner being under the influence of liquor is not established. Normally, the appreciation of evidence is beyond the scope of writ court but the fact that there is an absence of evidence making it a case of no evidence can always be raised before the writ court. No reasons are forthcoming as to why the witnesses who had checked the petitioner inside the bus was not made available to the petitioner for cross examination. The entire version of this witness, thus, is to be excluded. To an extent, Sh. R.P. Pandov did not appear to give any direct account of events. He apparently is given a derivative evidence as to what he had learned from the other witnesses who had checked the bus. The fact, however, is that the petitioner has admitted that he was not driving Civil Writ Petition No. 5951 of 1993 7 the bus and had permitting the Conductor to do so. Even if he was unwell and it is assumed that he was not under the influence of liquor, he has misconducted in permitting the conductor to drive the bus. There are number of other courses available to him to adopt even if the petitioner was unwell. Accordingly, he cannot escape responsibility in regard to part of allegation made against him for committing the misconduct of permitting the conductor to drive the bus and putting the lives of the passengers at stake. Number of passengers had also complained against the conduct of the petitioner and the conductor but they were not examined. The version of the Inspector, who had heard the passengers to complain, as already noticed is required to be excluded from consideration. That evidence though hearsay but permissible to see if it was a case of no evidence, thus, would also not be available for use. I am, thus, inclined to view that there is no evidence on record to prove that part of allegation that the petitioner was under the influence of liquor. The finding in this regard is based on no evidence and this has apparently escaped consideration of the labour Court, while upholding the enquiry. However, the remaining part of the misconduct as alleged certainly stands proved and that would be enough to sustain the finding of guilt of the petitioner on that part of the misconduct. The petitioner is held responsible for misconduct in permitting the conductor to drive the bus and putting the lives of passengers at risk. Since the finding on the part of misconduct alleged is not sustained, the punishment, which was imposed on the petitioner taking into account the full effect of misconduct alleged, may call for some interference. Ordinarily, the Civil Writ Petition No. 5951 of 1993 8 case could have been remanded for passing a fresh punishment. Instead of remanding the case back to the labour Court, it is considered appropriate to substitute the punishment, which was imposed on the petitioner in order to do justice as at this belated stage remanding this case back to the Court may lead to further harassment of the parties and a prolonged litigation. The parties are heard in this regard and both the counsel would not have any objection to the course as is being adopted. The petitioner shall be deemed to have been compulsorily retired from the date his services were terminated which is one of the punishment as prescribed in the PRTC Conditions and Appointment & Service Regulations of 1981. It is so ordered. The writ petition is, accordingly, disposed of. November 18, 2010 ( RANJIT SINGH ) rts JUDGE