IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No.10198 of 1999 Date of decision: 31.07.2009 Karam Singh ....Petitioner versus Punjab State Warehousing Corporation and another ...Respondents CORAM: HON'BLE MR. JUSTICE K.KANNAN Present: Mr. B.R.Mahajan, Advocate, with Mr. V.K.Kaushal, Advocate and Ms.Naina Goel, Advocate, for the petitioner. Mr.Inderpreet Singh, Advocate, for respondent No.1. --- 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 that is challenged before this Court is the order upholding the findings before the Enquiry Officer and upholding the punishment of removal from service. 2. There had been two different incidents for two different charges that had been levied against the workman in a godown in the State Warehousing Corporation. Two orders had been passed by the disciplinary authority but in an earlier round of litigation, the orders came to be appraised on an assumption that there was only one enquiry. The disputes between the parties reached upto the Hon’ble Supreme Court where the Hon’ble Supreme Court directed the matter to be Civil Writ Petition No.10198 of 1999 - 2 - remitted to the Labour Court for fresh adjudication relating to the termination of service on the basis of two separate orders of removal passed on the basis of two sets of separate charge-sheets. The Labour Court reversed its earlier findings and found the termination to be justified. 3. The learned counsel appearing for the workman would point out that at the first time when the enquiry was undertaken before the Labour Court, the award had been passed upholding the contention of the workman that the findings of the Enquiry Officer and the punishment meted out were not justified. No new evidence had been brought forth to justify a reversal of the earlier findings and for upholding the findings of the Enquiry Officer and for the punishment imposed. The learned counsel would urge that in respect of two different incidents, one was in relation to the alleged misappropriation at the time when he was working in Patti where the person, Shri Bedi, who had been appointed as an Enquiry Officer had a personal bias against him inasmuch as he was also the complainant that led to another enquiry constituted for alleged defalcation that was attributed to him when he was working at Morinda. The learned counsel would therefore say that the enquiry before the Enquiry Officer Mr. Bedi, who was the complainant, ought to have been held by the Labour Court to be vitiated. 4. If the Enquiry Officer was also the complainant in the case which was before him, the contention made by the learned counsel for the workman would have some substance. If he had been a complainant for another incident which was subject of an independent enquiry, it is Civil Writ Petition No.10198 of 1999 - 3 - not possible to infer a bias as argued by the learned counsel for the workman. The enquiry by the Enquiry Officer yielded to findings of guilt against the workman for the misconduct attributed to him and the disciplinary authority visited him with the punishment of removal. This punishment was also found to be justified and the Labour Court found that there was enough material to uphold the claim for management. However, in view of the strong contentions made on behalf of the workman that the Labour Court did not exercise its jurisdiction properly by examining whether the enquiry before the Enquiry Officer for the charges against the workman when he was working at Patti and the Court did not give a finding whether the enquiry was fair or proper, I take even the plea that the Enquiry Officer’s report as regards the misconduct attributed to the workman at Patti to be vitiated for the reasons submitted by him and proceed to examine the case with reference to the other enquiry relating to the incident when he was working at Morinda. 5. Out of the seven charges levelled against the workman, four charges namely 1, 3, 4 and 5 had been found against the workman. The charges were: 1. That he did not transfer correctly SSP-IFFCO bags to PAIC and on that account 168 bags were found less in the stocks of SSP-PAIC and 159 bags are found excess in SSP-IFFCO. Apart from this irregularity accounting of SSP-IFFCO bags, there was a net shortage of 9 bags valued at Rs.405/-. 3. That he kept off the record 12 bags of CAN 26% FCI, 16 bags of urea FCI, 44 bags of DAP FCI, 5 bags of Urea PAIC in G.No.1 in excess of the book balance with malafide intention to defalcate the same at an opportune time. Civil Writ Petition No.10198 of 1999 - 4 - 4. That he similarly kept off the record 5 bags of urea FCI in G.No.3 and 3 bags of Urea FCI, and 5 bags of DAP in G.No.4 in excess of the book balance with malafide intention to defalcate the same at any opportune time. 5. That there was shortage of 3 bags of DAP FCI and 56 bags of Urea FCI in G.No.2 and 1 bag of Urea PAIC, in G.No.3 which had been misappropriated/defalcated by him costing Rs.6150/-. 6. As regards the first charge, the definite case of the management was that there had been a short fall of nine bags of fertilizer stocks valued at Rs.405/-. The explanation which was given by the workman was that he was an incharge of the godown as Clerk-cum-typist only for a short period between 17.06.1980 to 16.09.1980 and in a large godown, it was impossible to have a verification of every bag and the shortfall ought not to be seen as resulting from act of secretion. According to him, the inspection or verification of stocks had been done between 09.09.1980 to 11.09.1980 and it was not reported at any time that there was any shortfall in the stocks. According to him, he had handed over the charge and in the certificate made on 14.10.1980, no short fall was noticed. He further sought to explain that there had been actually a work of standardization that had been undertaken during the period from 05.09.1980 and no pilferage or shortage was noticed at any time. 7. The learned counsel appearing for the management would explain the fact that although he had been relieved on 16.09.1980, he had the godown in his control till the charge was ultimately taken from him on 14.10.1980. The inspection carried out between 09.09.1980 to 11.09.1980 yielded to a report which was made on 13.09.1980 which Civil Writ Petition No.10198 of 1999 - 5- found the short fall. If on the date when the certificate of handing over charge was made namely on 14.10.1980, there appeared to be no shortage, it was most likely that he had made good the shortage at that time. It would be no answer to the charge made that on the date when the inspection was undertaken and then the reports were made, there had been a short fall to say when the subsequent certificate was made on 14.10.1980, it did not show any short fall. 8. As regards the defence of the workman that there had been a standardization work which was in progress from 05.09.1980 and by a proper reckoning, it was noticed that there had been no shortage, the learned counsel appearing for the workman argued that there was another witness Shri Swaran Singh who had been examined to support the contention that there was a standardization work and that aspect had not been considered at all by the Enquiry Officer. Though the learned counsel appearing for the workman would concede that it would be impermissible for this Court to re-examine the evidence placed before the Enquiry Officer, he would submit that it would still be possible for this Court to see whether the evidence placed before the Enquiry Officer was considered at all or not. In this case as regards the evidence of another witness in support of the workman that standardization work had been taken up from 05.09.1980, the counsel for the management would point out that the Enquiry Officer himself had made reference to the fact if there had been such standardization, there should have been work slips that would indicate such an exercise. There ought to have been also entries in the standardization register about the particular dates when the Civil Writ Petition No.10198 of 1999 - 6 - exercise was said to have been undertaken. I find that no such evidence was tendered before the enquiry officer. If the Enquiry Officer did not accept the evidence of the witness Swaran Singh, it was well-reasoned as to why that evidence was not acceptable. 9. This work of standardization would have really been an answer as well for the other charges which were held proved. Charges No.3 and 4 related to excess of bags found than what were shown in the accounts book and charge No.5 was shortage of several bags costing to a tune of Rs.6150/-. The attempt of the workman to show was that all bags will not normally be properly packed and there would have been spillage all over and it was only in the exercise of standardization that bags would be filled to the appropriate quantity and physical verification would be undertaken. According to him, the excess of bags than what were shown in the registers or a short fall that what were in the books were all the result of such spillover or inadequate/improper packing. The learned counsel for the Management pointed out that there was clear evidence that stacking had been properly done after aligning the bags vertically and a peripheral count had clearly shown the shortages in stock. If the findings of the Enquiry Officer that standardization itself was merely a ruse set up by the workman to exculpate himself and the physical verification was done in the presence of the workman, the charges No.3, 4 and 5 must only be taken to have been properly established. 10. The Labour Court’s findings affirming the Enquiry Officer’s report of Morinda and the ultimate order of dismissal in a case that Civil Writ Petition No.10198 of 1999 - 7 - involved misappropriation of goods in the premises of the Warehousing Corporation were based on adequate evidence and the award suffers from no vice to be susceptible for intervention in the writ petition. 11. The writ petition is consequently dismissed. (K.KANNAN) JUDGE 31.07.2009 sanjeev