IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No.3266 of 1989 Date of decision:03.07.2009 Mukhtiar Singh ...Petitioner versus The Presiding Officer, Labour Court, Bathinda ...Respondents and another CORAM: HON'BLE MR. JUSTICE K.KANNAN Present: Mr. J.C.Verma, Senior Advocate with Ms. Meenakshi Verma, Advocate for the petitioner. Ms. Monica Chhibbar Sharma, AAG, Punjab, for the respondent. ----- 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 writ petition challenges the award of the Labour Court which affirmed the findings held in an enquiry departmentally against the petitioner-workman that he had, while serving as a Washing Boy, on 26.11.1983 at about 6.15 P.M. tried to throw over the wall of the workshop five old pattas (kamanis) and tried to take them by crossing the wall with an intent to commit theft. The Labour Court found the charge as having been established and confirmed the order of dismissal. The affected employee is the writ petitioner before this Court. Civil Writ Petition No.3266 of 1989 - 2 - 2. The learned Senior Counsel appearing for the petitioner submits that the charge-sheet dated 27.12.1983 (Annexure P-1) is an expression of premeditation of finding of guilt in that it expresses that the petitioner was guilty of misconduct and liable for punishment. He also refers to the statement of allegations which run as follows: “Shri Mukhtiar Singh, Washing Boy, came to the workshop at about 6.15 O'Clock on 26.11.83 in a drunken condition. Some of the employees of the workshop noticed that this employee, with the intention of theft, threw five old pattas (pieces of kamanis) across the kotha. This was seen by these employees. When this employee, after crossing the wall, wanted to take these pattas, they raised an alarm and brought him to the workshop alongwith the pattas and told Shri Amarjit Singh, S.S.I., Incharge of the Workshop, and Shri Ajit Singh, H.Mechanic. Thus, he is guilty of trying to steal the Government property from the workshop on 26.11.83.” 3. Accordingly to him, the reference to drunken condition as stated in the allegations was not even in the charge-sheet and the statement of allegations revealed that some co-employees had seen the delinquent throwing over the wall five old pattas with an intention to commit theft. The employees had seen the delinquent employee crossing over the wall and when he wanted to take the pattas, they raised an alarm and brought him to the workshop along with the pattas and told Shri Amarjit Singh, S.S.I., Incharge of the Workshop and Shri Ajit Singh, H. Mechanic. According to the learned Senior Counsel, Amarjit Singh himself was not referred to as an eye-witness to the Civil Writ Petition No.3266 of 1989 - 3 - incident but merely stated to be a person to whom the delinquent was brought by the co-employees who had seen him commit the act of which he was charged with. 4. Before the Enquiry Officer, two of his co-employees namely Swaran Singh and Pritam Singh had been examined. The original records of the Enquiry Officer had been sent for. I heard the learned Senior Counsel read out the evidence of the witnesses Swaran Singh and Pritam Singh, who have not supported the version as found in the statement of allegations. Both of them had only stated in their respective evidence that they were brought to the office of Amarjit Singh where they saw the delinquent and the five pattas were lying around him. In fact, they did not support the version that they had seen the delinquent throwing the pattas over the wall or crossing the wall or even raising an alarm and securing his presence before Amarjit Singh. Amarjit Singh was also examined before the Enquiry Officer who stated that he caught the delinquent red handed and when the Enquiry Officer gave his report, it was evidently on the evidence of Amarjit Singh that the charge was said to have been proved. The learned Senior Counsel pointed out that Amarjit Singh was not stated to be a personal witness himself even in the statement of allegations and therefore, his evidence as though he had personally seen the delinquent throwing the pattas and crossing the wall, could not have been taken as correct. 5. The learned Senior Counsel also laid emphasis on the fact that the delinquent had sought the assistance of a co-worker to cross examine the witnesses and that permission had not been accorded. This, Civil Writ Petition No.3266 of 1989 - 4 - according to him, was a violation of Rule 8.11 of the Punjab Civil Services (Punishment and Appeal) Rules. This objection was not stated before the Enquiry Officer himself but it was urged for the first time before the Labour Court. According to him, it was a right which was inherent in an employee to be informed as such at the time of enquiry, no matter that a person did not make such demand before the Enquiry Officer. The Labour Court had dealt with that issue by observing that Rule 8.11 was merely directory and the decision of Hon'ble the Supreme Court in S.D.Bhardwaj Versus Union of India- 1976 (2) SLR 265 cited before it dealt with the case as per CCS/CCA Rules. According to him, the same principle ought to have been also applied for a case involving Punjab Civil Service Rules and the want of prejudice as found by the Labour Court, according to him, was clearly erroneous. 6. I do not propose to deal with the issue of the prejudice or otherwise caused to the employee for not being apprised of his right to avail of the service of a co-worker since two of the co-workers did not give any evidence in support of the management that they had themselves seen the pattas being thrown over the wall or caught the delinquent red handed. The finding against the delinquent was made by the Enquiry Officer and affirmed by the Labour Court only on the statement of Amarjit Singh. The Labour Court had believed Amarjit Singh to be an eye-witness by making reference to an alleged report of the incident by the Chowkidar. Curiously, the report of the incident by the Chowkidar itself was never before the Court. Chowkidar had not even been examined as an witness. Neither the charge-sheet nor the Civil Writ Petition No.3266 of 1989 - 5 - statement of allegations make reference to either the report of the Chowkidar or named the Chowkidar as a person, who had been a witness to the incident. The expressions found in the statement of allegations was : “................they raised an alarm and brought him to the workshop along with the pattas and told Shri Amarjit Singh, S.S.I., Incharge of the Workshop.............” If Amarjit Singh had been an witness, there was no need for him to be told of the incident. A person who was not a witness could not have stated before the Enquiry Officer or the Labour Court that he caught him red handed. The Labour Court's finding that the charge against the delinquent had been established by the evidence of Amarjit Singh, therefore, in my view, perverse and against the grain of the chargesheet that had been levelled against the delinquent. 7. While this Court exercising the jurisdiction under Article 226 of the Constitution of India will not normally interfere on a point of fact in an enquiry, the Court cannot be a mere spectator to a perverse finding made on an important aspect of theft which none of the witnesses who were said to have been present at the incident said so. A person who was not a witness was brought before the Court to state something which was not stated either in the statement of allegations or in the charge-sheet. It is not merely a case of misappreciation of evidence but it is a case of complete lack of evidence relating to the incident of throwing the pattas over the wall or an attempt to take them away with an intent to commit theft. The award of the Labour Court finding him guilty and confirming the order of dismissal from service, is erroneous and it is set aside. Civil Writ Petition No.3266 of 1989 - 6 - 8. The writ petition is, therefore, allowed and the petitioner is entitled to reinstatement with full back wages. The cost of the petition is assessed at Rs.5,000/- and awarded against the respondent. (K.KANNAN) JUDGE 03.07.2009 sanjeev