CWP No. 6925 of 1998 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CWP No. 6925 of 1998 Date of decision: 30.03.2010 Kishan Singh s/o Jodha Singh ...... PETITIONER VERSUS The Presiding Officer, Labour Court-II, Faridabad and another ....... RESPONDENTS CORAM: HON'BLE MR. JUSTICE AUGUSTINE GEORGE MASIH Present: Mr. Ranjit Saini, Advocate, for the petitioner. Mr. Ashok S. Chaudhary, Advocate, for respondent No. 2. *** AUGUSTINE GEORGE MASIH, J. (ORAL) The petitioner has approached this Court praying for quashing of the Award dated 30.07.1997 (Annexure P-3) passed by the Labour Court-II, Faridabad, vide which the reference has been answered against the workman holding therein that the departmental enquiry held against the petitioner was in accordance with law and also that the penalty, which has been imposed by the punishing authority against the workman-petitioner, CWP No. 6925 of 1998 2 was proportionate to the mis-conduct committed by the workman. Counsel for the petitioner refers to the enquiry report to contend that there were two lists submitted before the Enquiry Officer, one was issued by the Haryana Tourism Corporation and the other was the list verified by the State Transport Authority. As regards the list submitted by the Haryana Tourism Corporation is concerned, the name of the petitioner did not find mention therein, however, in the State Transport Authority list, the name of the petitioner did appear and it was proved from the list of the State Transport Authority that the petitioner had travelled from Ballabgarh to Rameshwaram. He, on this basis, contends that there was no forging of any document, which was submitted by the petitioner to claim the Leave Travelling Concession as per the Rules and, therefore, the findings recorded by the Enquiry Officer cannot thus be said to be correct. The reliance on the enquiry proceedings by the Labour Court to hold that the workman had mis-conducted, thus, cannot be sustained. His further contention is that the extreme penalty of termination from service is disproportionate to the mis-conduct attributed to the petitioner and a sympathetic view should have been taken by the Labour Court in exercise of its powers under Section 11-A of the Industrial Disputes Act. His further contention is that the similarly placed employees of the respondent- Management, namely, Sh. Virender Singh, Shift Manager, Rajinder Swaroop, Mechanic and Mohinder Singh, Assistant, who were also involved in the same mis-conduct and alleged to have availed of the Leave Travelling Concession along with the petitioner, have been given a lesser punishment, therefore, the Labour Court should have taken this into consideration and should have interfered to reduce the penalty of termination from service passed against the petitioner-workman. On this CWP No. 6925 of 1998 3 basis, he prays for interference by this Court in the Award passed by the Labour Court. On the other hand, counsel for respondent No. 2 submits that the jurisdiction of the Court is restricted primarily to find out if any illegality has been committed by the Enquiry Officer during the enquiry proceedings or any statutory Rules governing the holding of the enquiry have been violated. A categoric finding has been given by the Labour Court that there is no such violation by the Enquiry Officer during the enquiry proceedings. He further contends that the finding recorded by the Enquiry Officer is based on the evidence produced before it and the Court cannot go into the interpretation of the documents because that would be the sole jurisdiction of the Enquiry Officer. In any case, he submits that the genuine list would be the list, which was submitted by the Haryana Tourism Corporation as the tour was conducted by the Haryana Tourism Corporation alone. The State Transport Authority was only an authority which approved the list. He contends that the list, which was approved by the State Transport Authority, cannot be termed as a genuine list when the tour was conducted by the Haryana Tourism Corporation which has submitted the list, in which the name of the petitioner did not find mention. His further contention is that the petitioner, who was an employee of the Management, had committed a fraud and had produced a bogus certificate, which was a forged one in an endeavour to claim the Leave Travelling Concession which attracts the punishment of termination and the punishing authority has rightly passed the order of termination which does not call for any interference by this Court. His further contention is that the guarantee of equality as enshrined under Article 14 of the Constitution of India requires CWP No. 6925 of 1998 4 to be exercised as a positive concept and cannot be enforced in a negative manner as has been sought to be enforced by the petitioner by asserting that Virender Singh, Shift Manager, Rajinder Swaroop, Mechanic and Mohinder Singh, Assistant, had been awarded a punishment, which is on the lower side than what has been imposed upon the petitioner. In support of this contention, he relies upon a judgment of the Hon'ble Supreme Court in the case of State of Kerala vs. K. Prasad and another, 2007 (3) SCT 703. I have heard the counsel for the parties and have gone through the records of the case. The facts are not in dispute. The petitioner was appointed as a Dairyman w.e.f. 14.11.1980. According to the petitioner, he undertook journey from Ballabgarh to Rameshwaram along with his other family members and availed of Leave Travelling Concession facility. Due permission was sought by the petitioner to undertake his journey to avail the Leave Travelling Concession from 16.06.1989 to 03.07.1989. The sanction was duly granted by the competent authority. Thereafter the petitioner submitted his Leave Travelling Concession claim amounting to Rs. 8937.50 Paise. In support of his claim, he submitted an affidavit dated 09.10.1989 declaring that the journey was actually performed by him along with his family members by a Delux Bus through the Haryana Tourism Corporation, Chandigarh. A certificate was also attached about the travelling purported to have been issued by the Haryana Tourism Corporation. The Management, during the processing of the said claim, got investigated the certificate sought to have been issued by the Haryana Tourism Corporation. The same was not found to be a genuine one. Accordingly, a show cause notice was issued to the petitioner, to which he CWP No. 6925 of 1998 5 submitted a reply, which was not found to be satisfactory and accordingly, an Enquiry Officer was appointed to look into the allegations levelled against the petitioner. The Enquiry Officer conducted enquiry and on the basis of the evidence led by the parties, returned a finding that the allegation of defrauding the department for claiming bogus Leave Travelling Concession claim was proved against the workman. On the basis of the enquiry report, a show cause notice was issued to the petitioner and on consideration of the reply, the punishing authority proceeded to pass the order of termination from service. This order of termination was challenged by the petitioner by preferring a demand notice. As the conciliation proceedings failed, the same was referred to the Labour Court, Faridabad for adjudication. The Labour Court, on the basis of the pleadings of the parties, proceeded to frame issue No. 1 as “Whether the enquiry conducted by the Management was fair and proper? and issue No. 2 as “Whether the termination of the services of Sh. Kishan Singh is legal and justified? If not, to what relief, he is entitled to? On the first issue, on the basis of the evidence led by the parties, wherein MW-1 S.K.Saini, who was the Enquiry Officer, appeared before the Labour Court and produced the enquiry proceedings, the Labour Court proceeded to consider the contention of the Authorized Representative of the workman and on proper consideration of the assertions, came to a conclusion that the enquiry proceedings were held in accordance with law. As per the findings of the Labour Court, full opportunities were given to the workman to defend himself. He cross examined the witnesses during the domestic enquiry and personal hearing was also given to the petitioner. The procedure, as prescribed, was duly followed and the Labour Court came to the conclusion that the domestic CWP No. 6925 of 1998 6 enquiry held against the petitioner-workman was in accordance with law. The Labour Court, on the question of the quantum of punishment, has proceeded to give a finding that since the allegations made against the workman were of cheating and fabrication of false and forged documents, the punishment of termination from service was in accordance with the mis- conduct attributed to the petitioner, which has been proved in the departmental enquiry held against him, which was in accordance with law. The punishment was not shockingly dis-proportionate and, therefore, no interference by the Labour Court was called for on the quantum of punishment as well. Resultantly, the reference was answered in favour of the Management and against the claimant-workman. The contention of the counsel for the petitioner that the Enquiry Officer should have taken into consideration the list, which was approved by the State Transport Authority which contained the name of the petitioner-workman rather than the list submitted by the Haryana Tourism Corporation, cannot be accepted. It is an admitted position that the journey undertaken by the petitioner along with his family members from Ballabgarh to Rameshwaram during the period 16.06.1989 to 03.07.1989 was through the Haryana Tourism Corporation, Chandigarh. The list, therefore, submitted by the Haryana Tourism Corporation was the genuine list, which contained the names of the persons, who had travelled on the tour. This list admittedly did not contain the name of the petitioner. The subsequent list, as was verified by the State Transport Authority, cannot be said to be a genuine list for the reason that the State Transport Authority did not conduct the tour nor was it the assertion of the petitioner that he had travelled through the bus arranged by the State Transport Authority. Bus number has CWP No. 6925 of 1998 7 specifically been mentioned which bus was arranged by the Haryana Tourism Corporation. In this view of the matter, the finding recorded by the Enquiry Officer is based on the evidence on record and there is proper appreciation of the same. Even otherwise, the jurisdiction of the Labour Court is limited while considering the enquiry proceedings. Illegality or irregularity, if any, committed by the Enquiry Officer can be looked into but if two views on the same findings are possible, the view taken by the Enquiry Officer shall generally be taken as a correct view. If there is no evidence on the record and the findings are based on no evidence, then the Court does have the power to interfere in the enquiry proceedings and the findings thereof. The present case is not the case where there is no evidence against the workman. The only assertion is that it is not proper appreciation of the evidence of the Enquiry Officer which would not be within the domain of the Court while exercising its jurisdiction and looking into the illegality and the irregularity of the enquiry proceedings, the contention of the counsel for the petitioner is thus rejected. As regards the submission of the counsel for the petitioner that the punishment awarded to the petitioner is disproportionate to the mis- conduct attributed to him, suffice it to say that lenient view can not be taken in cases where in a departmental enquiry, the findings have been returned and that too, on the basis of the documents and the evidence led by the parties that cheating and fabrication of false and forged documents have been committed by the employee. In the present case, the petitioner had made an endeavour to claim the Leave Travelling Concession by way of producing false and fabricated certificate and has submitted an affidavit in support of CWP No. 6925 of 1998 8 those contentions which have been made and have asserted in the affidavit dated 01.10.1989. In such a case, it cannot be said that the punishment of termination is either disproportionate to the mis-conduct attributed to the petitioner or is shockingly harsh which would call for any interference by the Labour Court. The contention of the counsel for the petitioner with regard to the lighter punishment having been given to Sh. Virender Singh, Shift Manager, Rajinder Swaroop, Mechanic and Mohinder Singh, Assistant, who were also involved in the same mis-conduct and alleged to have availed of the leave travelling concession along with the petitioner, is of no help to the petitioner as no negative equality can be pressed into service for claiming benefit. Imposing a punishment is the discretion of the punishing authority. It is dependent on various factors. The discretion, which has been exercised by the punishing authority, cannot be interfered with by this Court unless the same is found to be either shocking or disproportionate to the mis-conduct attributed to the workman. As stated above, this case is not of the same nature. The judgment of the Hon'ble Supreme Court in the case of State of Kerala (supra) can, at this stage, be relied upon to state that the guarantee of equality, as provided under Article 14 of the Constitution of India, being a positive concept, cannot be enforced in a negative manner which is being sought to be pressed into service by the counsel for the petitioner. Finding no merit in the present petition, the same stands dismissed. ( AUGUSTINE GEORGE MASIH ) JUDGE March 30, 2010 pj