C.W.P. No.1371 of 2008 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P. No.1371 of 2008 Decided on : 25-11-2008 State Transport, Punjab & another ....Petitioners VERSUS Darshan Singh & another ....Respondents CORAM:-HON'BLE MR. JUSTICE HEMANT GUPTA. HON'BLE MR. JUSTICE NAWAB SINGH. 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 ? -.- Present:- Ms. Ambika Luthra, AAG, Punjab for the petitioners. Mr. Akshay Kumar Goel, Advocate for respondent No.1-workman. HEMANT GUPTA, J The challenge in the present writ petition is to the Award dated 20.06.2007 (Annexure P-12), whereby an Industrial Dispute raised by the respondent No.1 (hereinafter referred to as workman), was answered in favour of the workman. It is the case of the workman that he was appointed as a Conductor in the year 1996. But his services were terminated on 21.04.1982 on the basis of departmental enquiry, which was not legal, fair, and proper. Thus, the workman claimed for setting aside of his termination and reinstatement with continuity of service. The Management in its reply to the statement of claim before the learned Labour Court, took up a stand that the workman has earlier filed a Civil Suit to challenge his termination C.W.P. No.1371 of 2008 -2- vide order dated 21.04.1982. The said suit was dismissed. Once the suit challenging the termination stands dismissed, the workman is estopped by his own conduct from filing the present reference. It was also pointed out that services of the workman were terminated on 21.04.1982 after conducting regular departmental enquiry in respect of charge of misconduct, of not issuing tickets to passengers on collecting fare from them when he was on route from Amritsar to Ranian on 14.01.1981. Earlier, the workman was placed under suspension and a regular enquiry was conducted. The workman was given proper opportunity of hearing. The Enquiry Officer gave its finding against the workman and after considering the reply to the show cause notice served on conclusion of the enquiry, the order of termination was passed. While adjudicating reference an dispute raised by the workman, the learned Labour Court found that the Civil Suit was dismissed in default and therefore, invocation of jurisdiction of the remedy under the Industrial Disputes Act, 1947 (for short “the Act”), is not barred. However, the learned Labour Court on merits held that the enquiry stands vitiated as the workman was not given reasonable opportunity to defend his case. The learned Labour Court found that inquiry was not adjourned after recording the initial statement of the workman on 13.05.1981 and that workman was not allowed time by the Enquiry Officer to scrutinize the evidence proposed to be led against him and to prepare his defence after looking into the other records in possession of the Government. Thus, the Labour Court concluded that non-compliance of the provisions of Rule 8 (11) of Punjab Civil Services (Punishment and Appeal) Rules, 1970 (hereinafter referred to as 'the Rules') resulted in denial of reasonable C.W.P. No.1371 of 2008 -3- opportunity to the workman to defend his case. It was also found that the argument that the workman has not suffered any prejudice, is out of place as the duty is cast on the Enquiry Officer to facilitate the Government employee with the opportunity to scrutinize the prosecution evidence which is likely to be produced against him. It has been further found that enquiry report does not disclose reasons in what manner the workman was in the position to falsify the report by cross-examination of the Inspector during the enquiry. Labour Court found that no reasons are discernible from the enquiry report as to why the defence led by the workman was found to be unacceptable. The learned Labour Court's record has been summoned. The record shows that the workman was called to participate in enquiry proceedings on 13.05.1981. On the said date, the statement of the workman was recorded, which is in question-answer form. The questions are in respect of chargesheet and the documents or admission of the allegations levelled in the chargesheet. One of the question is that which Inspector has prepared report against him. The workman has named Sh. Amarjit Singh Sandhu, Kashmir Singh and Gurdip Singh, Inspectors. When asked to disclose the name of his defence witness, he has disclosed the name of Tirath Singh. Thereafter, on 13.05.1981, statement of Sh. Amarjit Singh was recorded. Such order of recording an order of his evidence is countersigned by the workman. The workman has cross-examined such witness. On 17.06.1981, the statement of Kashmir Singh, Inspector was recorded and the workman has cross-examined the witness as well. Thereafter, it was on 18.01.1982, statement of Darshan Singh-workman was recorded. The statement of the workman was that he is not to give any C.W.P. No.1371 of 2008 -4- statement nor to produce any defence witness. Thereafter, on 29.02.1982, an enquiry officer has given his report finding charges proved against the workman. On the basis thereof, a show cause notice was issued on 02.03.1982 and services terminated later on. With the said factual basis, we need to examine whether the Award of the Labour Court, setting aside the order of termination is legal and valid. The stand of the workman in his evidence by way of affidavit is as under:- "The Enquiry Officer was biased and charges were leveled on assumption and E.O. finding was without reasoning. The worker was asked to sign on blank papers by E.O. when refused was threatened for dismissal. No opportunity of defence was given. The statement of cross-examination was recorded on back. Finding was devoid of reasoning. Reply its reasoning and defence was not tackled considered by E.O. as well Punishing authority nor the reason were weighted for non-consideration of defence and written statement of worker for disbelieving. That reasons for non-counting of cash; nor recording statement or then signature by passengers were considered by inspectorate staff for non- complying norms of checking guidelines given by Director, State Transport. The deponent had not committed any fraud nor had an intention nor was charged for same." A perusal of the said paragraph would show that the stand of the workman was that he was asked to sign on blank papers and statement of cross-examination was recorded at his back or that the findings are without any reasons. It was also pleaded that the statement of the passengers was C.W.P. No.1371 of 2008 -5- not recorded and that the workman has not committed any fraud nor had any bad intention. We find that the finding recorded by the Labour Court that termination is invalid, as the workman was not given any sufficient opportunity to lead evidence or to cross-examine the witnesses, is not supported by enquiry report. A perusal of the record shows that the workman himself has named the Inspectors, who have given report against him in his statement before the enquiry officer on 13.05.1981. Meaning thereby that he was aware of the report of the Inspectors. Thereafter, the statement of one witness has been recorded. The workman has cross- examined such witness. On the said one side of page, signatures of the workman appeared at two places and another signatures appeared on the reverse side of the page. The manner of signatures does not suggest even remotely that signatures were obtained on a blank paper. Therefore, the evidence of the workman on affidavit is not factually correct. Still further, the workman has cross-examined another witness on 17.06.1981. On 18.01.1982, the workman has given a statement which is duly signed by him that he is not to examine any witness. In these circumstances, to return a finding that workman was not given reasonable opportunity to defend himself, is not sustainable. The learned Labour Court has heavily relied upon Rule 8 (11) of the Rules to hold that the statement of prosecution witness could not have been recorded on the same day when the statement of the workman was recorded. The Rule 8 (11) of the Rules reads as under:- "The inquiring authority shall if the Government employee fails to appear within the specified time or refuses or C.W.P. No.1371 of 2008 -6- omits to plead, require the presenting officer to produce the evidence by which he proposes to prove the articles of charge, and shall adjourn the case to a later date not exceeding thirty days, after recording an order that the Government employee may for the purpose of preparing his defence:- (i) inspect within five days of the order or within such further time not exceeding five days as the inquiring authority may allow, the documents, specified in the list referred to in Sub-rule (3). (ii) submit a list of witnesses to be examined on his behalf. (iii) apply orally or in writing for the supply of copies of the statements, if any recorded, of witness mentioned in the list referred to in Sub-rule (3), in which case the inquiring authority shall furnish to him such copies as early as possible and in any case not later than three days before the commencement of the examination of the witnesses on behalf of the punishing authority; and (iv) give a notice within ten days of the order or within such further time not exceeding ten days, as the inquiring authority may allow for the discovery or production of any document which is in the possession of Government, but not mentioned in the list referred to in Sub-rule (3) and the Government employee shall also indicate the relevance of the document required by him to be discovered or produced by the Government." C.W.P. No.1371 of 2008 -7- The proceedings as per the enquiry file, does not show any substantial violation of the aforesaid rule. The workman was aware of the evidence of the Inspectors against him. He has not sought production or examination of any of the witnesses which were sought to be produced by prosecution by the Department. The workman has given names of the witnesses to be examined. But subsequently, gave statement that he is not to examine any witness. Therefore, it cannot be said that any part of Rule 8 Sub-Rule 11 was violated in conducting disciplinary proceedings against the workman. Thus, we are of the opinion that the finding recorded by learned Labour Court that the workman was not given reasonable opportunity to defend himself, is not sustainable even on facts. Still further, the procedure under the Rules is directory so as to provide an opportunity to the delinquent to participate in inquiry proceedings fairly and to provide a reasonable opportunity to the delinquent to defend himself. The entire proceedings does not show any violation. The proceedings conducted do not lead to violation of principles of natural justice or denial of reasonable opportunity to the workman to defend himself. In view of the above, we are of the opinion that the Award of the Labour Court granting reinstatement with continuity of service suffers from any patent illegality or material irregularity which cannot be sustained in law. Consequently, we allow the present writ petition and set aside the Award dated 20.06.2007, passed by the Labour Court. (Hemant Gupta) Judge 25th November , 2008. (Nawab Singh) Monika Judge C.W.P. No.1371 of 2008 -8-