IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No.16240 of 1993 Date of decision:20.07.2009 Kirpal Singh ...Petitioner versus The Presiding Officer, Labour Court, Patiala ...Respondents and others. CORAM: HON'BLE MR. JUSTICE K.KANNAN Present: Mr. Vikas Singh, Advocate with Mr. Jagdev Singh, Advocate, for the petitioner. Mr. Gurinder Singh Gill, Advocate, for respondents No.2 to 4 --- 1. Whether reporters of local papers may be allowed to see the judgment ? 2. To be referred to the reporters or not ? 3. Whether the judgment should be reported in the digest ? K.Kannan, J.(Oral) 1. The award in challenge before this Court is a direction for dismissal of a workman employed with the respondent-Pepsu Road Transport Corporation. The misconduct attributed to the workman was that he absented himself without any leave from 05.01.1988 for a period in excess of 10 days and he did not return till he was terminated on 21.09.1988. The order was issued by the proceedings of the Depot Manager that detailed the enquiry that was conducted and also recorded that fact that when an opportunity of personal hearing was given to the workman, it was not availed by the workman. Keeping in view the gravity of charges, the authority held that there was a presumption that Civil Writ Petition No.16240 of 1993 - 2 - he was not interested to serve the corporation and removed him from service for his unauthorized absence. 2. Before the Labour Court, an attempt was made by the workman to state that there was a personal tragedy in his life when his son died and his mother was very ill and he sent a leave letter from his neighbour Jasmer Singh. The Labour Court reasoned that Jasmer Singh was neither examined in Court nor before the domestic Tribunal. He, therefore, confirmed the punishment imposed on him for removal from service. 3. In the writ petition apart from reiterating the stand made before the Labour Court, an objection had also been taken to the effect that the person that appointed him to as the manager of the Corporation but the order of removal had been made by the Depot Manager. The punishing authority was lower in rank to the appointing authority and hence, the order was vitiated. 4. At a still later time, the petitioner sought to improve his case by saying that there was a register maintained by the Corporation that showed that the leave extension letter that had been given was entered in the register by the Corporation and that vindicated the truth of his contention. The copy of the register which has been adverted to through C.M. No.5599 of 2009 has come at the fag end of the hearing of the case in the writ petition. Time had been granted to file the objection, but I do not propose to give the benefit of consideration to the petitioner through a document introduced after such a long delay. It is highly suspicious whether such a document could have existed and there Civil Writ Petition No.16240 of 1993 - 3 - is no explanation as to why no steps have been taken to summon its production at least at the Labour Court. If the document were to be true, still it cannot explain the long absence from January 1988 to September 1988. Under the circumstances, the decision by the disciplinary authority that there was an unexplained absence without leave must be held to be fully proved. The Pepsu Road Transport Corporation (Conditions of appointment and Service Regulations), 1981 sets out that “habitual late attendance or absence from duty without applying leave in accordance with rules..........” constitutes an act of misconduct. The penalties are set out in Rule 23 under the relevant rules. Rule 20 prescribes a power to removal from service which does not disqualify from future employment as well as dismissal from service which would disqualify from future employment under the Corporation. The finding therefore as regards the proof of charge and affirmed by the Labour Court, would require no interference. 5. The other contention by the learned counsel for the petitioner is that the order of appointment dated 07.10.1970 would show that the petitioner had been appointed by the proceedings of the General Manager on 07.10.1970 and therefore, the order of removal could have been only by the General Manager and not by the Depot Manager, who is lower in rank. The learned counsel for the respondent would submit that Ex.P-1 does not constitute the appointment order which was merely a communication of affirmation to an appointment made through the proceedings of the Depot Manager on 15.04.1971. The letter of the Depot Manager was not furnished before the Labour Court and it is Civil Writ Petition No.16240 of 1993 - 4 - being produced before this Court for the first time. The contention itself seems to be an after thought and no such contention was taken before the Labour Court. However, the only relevant consideration ought to be that the disciplinary authority to inflict a punishment of removal shall be a person competent to do so under the rules themselves. Rule 21 of the Rules states that the competent authority to impose the penalties specified in Column 3 of the Appendix 'B' against each post in relation to an employee holding that post, shall be as specified in column thereof. In the year 1988, the persons specified in Appendix 'B' for a conductor as the appointing authority is the Depot Manager and the power to impose penalty ranging from censure to removal from service which does not disqualify from future employment (Clauses A to F) vest with the Depot Manager and the power to dismiss from service which disqualifies future employment vest with the Deputy General Manager. The impugned order of removal of the workman from service merely refers to removal that does not make a reference that he was not disqualified from future employment. The act of removal as such by a Depot Manager, is a power which is conferred under the relevant rules. Therefore, the order passed by the Depot Manager remove him from service cannot be questioned by the workman. It must be noticed that the protection under Article 311 (1) of the Constitution applies only to civil service and there is preponderance of authority to hold that employment in a Corporation does not amount to civil service. 6. It is contended that the enquiry report itself was produced only through the Clerk and it had not been produced through Civil Writ Petition No.16240 of 1993 - 5 - the person who conducted the enquiry. The learned counsel refers to a decision of this Court reported in Jagsir Singh Versus The State of Punjab and others-1983(2) SLR 685 to say that the enquiry file produced before the Labour Court by a person having no personal knowledge of the case could not be taken into evidence without producing relevant evidence in that regard. This aspect was further considered by a Division Bench of this Court in CWP No.12661 of 1993, dated 01.03.1994 that by a mere production of file without proving the signatures in the enquiry either of the Enquiry Officer or the delinquent official, the Court cannot rely on the enquiry file. There had never been any objection at any point of time that the enquiry file had been produced by a person who was incompetent to produce it or the signatures of the Enquiry Officer had not been proved. The matter that was so fundamental cannot be a matter that could be taken for the first time at the time of argument without any basis in the pleadings. If the document could not have been seen or relied on it should have been specifically brought to the attention of the Court earlier by a due reference to it in the writ petition or objected to at the time when the Enquiry Officer's file was produced and exhibited before Labour Court. Even the proceedings of the Labour Court are not before the Court and it is not possible for me to make an inference that the enquiry file had not been produced through a competent person or that the enquiry file had not been proved by any person who identified the signature of the Enquiry Officer. Such a contention cannot be countenanced at this stage and reliance placed on the authorities are not applied for absence of making such a ground Civil Writ Petition No.16240 of 1993 - 6 - either before the Labour Court or before this Court as the ground of attack in the writ petition. The writ petition is, therefore, dismissed. (K.KANNAN) JUDGE 20.07.2009 sanjeev