Civil Writ Petition No.10203 of 1988 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH **** Civil Writ Petition No.10203 of 1988 Date of Decision:17.11.2008 Gurdev Singh .....Petitioner Vs. The Presiding Officer, Labour Court, Bathinda and another .....Respondents CORAM:- HON'BLE MR. JUSTICE HARBANS LAL Present:- Mr. J.C. Verma, Sr. Advocate with Ms. Meenakshi Verma, Advocate for the petitioner. Mr. V.K. Chaudhary, AAG, Punjab. **** JUDGMENT HARBANS LAL, J. This petition has been moved by Gurdev Singh under Articles 226/227 of the Constitution of India for quashing the impugned award dated 12.3.1987 Annexure P.5. The brief facts giving rise to this petition are that on 6.3.1977 when the bus was being conducted by the petitioner, the bus was overloaded and three passengers had neither paid any fare nor tickets were issued. The Inspectors had charged double fare from the passengers. Further on 8.4.1977 as alleged, the petitioner collected 35 paise from each of the six passengers amounting to Rs.2.10. The passengers were still to be issued tickets. As alleged, because of the inimical attitude of the Inspectors, the unpunched tickets were forcibly collected by them from the petitioner. Further, as alleged, on 6.7.1977, the passengers were issued tickets by the Adda Conductor from the advance booking window. The passengers had not got issued one half ticket from the advance booking window. The non- Civil Writ Petition No.10203 of 1988 -2- issuing of the half ticket to the passenger thus cannot be treated as a fault of the Conductor. On 15.7.1977 as alleged, the petitioner had charged 10 paise excess from the passenger who was still travelling in the bus. The amount could be returned to him and there was no question of excess charge of 10 paise. As alleged, it was a fit case where even if the inquiry was proved to be valid, the Labour Court was required under Section 11-A of the Industrial Disputes Act, 1947 (for brevity `the Act') to have interfered therewith. An inquiry was ordered against the petitioner. On the basis of the so-called inquiry, his services were terminated. The petitioner raised an industrial dispute which was referred to the Labour Court. Admittedly, no cash was checked nor the petitioner was confronted with the statements of the passengers at the time of checking. The guidelines issued by the Director State Transport to be observed by the checking staff had not been complied with at all. It was incumbent upon the checking staff to refer the statements of the witnesses or to confront the petitioner with any of the passengers to prove the case. The failure to do so amounted to the case of no evidence. The compliance of Rule 8.11 of the Punjab Civil Services (Punishment & Appeals) Rules, 1970 (hereinafter to be referred as `Civil Service Rules') has not been made by the Inquiry Officer though it was mandatory. The petitioner, a semi literate person being not conversant with the inquiry proceedings should have been provided the assistance of a co- worker or the lawyer in the case. He was not aware of his such right and thus prejudice has been occasioned to him by not providing the assistance of the co-worker and as such the inquiry ought to have been quashed. Lastly, it has been prayed that this petition may be allowed on the grounds embodied therein. Civil Writ Petition No.10203 of 1988 -3- In the written statement filed by the respondents, it has been held that the Labour Court, Bhatinda rightly held that the inquiry was fair and proper. There is no evidence that the workman/ petitioner sought the assistance of a co-worker and the Inquiry Officer declined it. The services of the petitioner were terminated on the allegations and charges that while he was on duty, he was detected by the Inspectorate Staff defrauding the revenue of Punjab Roadways including the passengers tax by way of charging requisite fare from them but not willfully and intentionally issuing them tickets in lieu of the fare charged. Traversing other pleas in the petition, it has been prayed that this petition may be dismissed with costs. The following issues were framed by the learned Presiding Officer, Labour Court:- (i) Whether the reference is bad in law as alleged? (ii) Whether the order of termination of services of the workman is justified and in order? (iii) Relief. After hearing the respective representatives of the parties and examining the evidence on record, the Presiding Officer, Labour Court, Bhatinda vide impugned award dated 12.3.1987 held that the workman is not entitled to any relief. Feeling aggrieved therewith, the workman- petitioner has preferred this petition. I have heard learned counsel for the parties besides, perusing the findings returned by the learned Presiding Officer, Labour Court with due care and circumspection. Mr. J.C. Verma, learned Senior Advocate appearing on behalf of the petitioner strenuously urged that as is borne out from the record, the Civil Writ Petition No.10203 of 1988 -4- provisions of Rule 8.11 ibid have been given a go by as the assistance of a co-workman was not provided to the petitioner who being a semi literate person did require the same and thus he has been abundantly prejudiced in his valuable right as he could not put forth his case in a desired manner. To buttress this stance, he has sought to place reliance upon the observations made in re: Bhagat Ram v. State of H.P. and others, AIR 1983 Supreme Court 454. I have given a deep and thoughtful consideration to this submission. The allegations against the petitioner were that he had misappropriated the fare charges by not issuing the tickets. To my mind, it did not involve decision of a complex or a intricate question of law. The petitioner could defend himself even without the assistance of a co-worker. He did not make any complaint. A glance through the petition or the impugned award would reveal that it is not his case that he had made a request to the Inquiry Officer to provide the assistance of a co-worker or a lawyer and the same was declined. So, it has to be presumed that he did not make any such request. Had he made such a request and the same had been declined by the Inquiry Officer, he would have made complaint against the denial of assistance of a co-worker or a lawyer. Thus, non-providing of such assistance does not have the effect of vitiating the inquiry. If the need be, the reference may be made to Ram Singh v. The State of Punjab and another, 1998(2) Recent Services Judgments 518 (D.B.). In such a situation, it is to be noticed as to whether the delinquent official due to non- providing of the assistance of a co-worker has suffered any prejudice or was at disadvantage as compared to the disciplinary authority represented by the Presenting Officer. If the answer to the question is in the affirmative, then Civil Writ Petition No.10203 of 1988 -5- the inquiry would be vitiated, but if the answer is in the negative, then the inquiry proceedings would not be vitiated. This would vary from case to case. The delinquent official can assail the inquiry proceedings, if he could establish prejudice to himself in the course of any inquiry proceedings. He has to establish that he was put to a disadvantage as he did not have the assistance of a co-worker during the course of inquiry because he could not cross-examine the departmental witnesses being not well equipped for it and that despite request he was not given the assistance of a next friend. Adverting to the facts of the case in hand, Annexure P.1, the statement of Sukhdev Singh- PW, Annexure P.2 the statement of Inspector Surinderjit Singh, Annexure P.3 the statement of Babu Singh Inspector, Annexure P.4 the statement of Jagdish Singh, Inspector would reveal that they were sufficiently and relevantly cross-examined by the petitioner. He has not disclosed either before the Labour Court or in this petition as to how he has been prejudiced for not being provided the assistance of the co- worker. In re: Bhagat Ram (supra), too, the Apex Court has observed as under:- “But if the delinquent officer is not informed of his right and an overall view of the joint inquiry of the delinquent and his Superior Officer shows that the delinquent Government servant was at a comparative disadvantage compared to the disciplinary authority represented by the Presiding Officer and a superior officer, co-delinquent, is also represented by an officer of his choice to defend him, the absence of anyone to assist such a Government servant belonging to the lower echelons of service would unless it is shown that he had not Civil Writ Petition No.10203 of 1988 -6- suffered any prejudice, vitiate the inquiry.” In the present case, the cross-examination of the abovementioned witnesses by the workman indicates that he had not suffered any prejudice. In re: Kirpal Singh v. Presiding Officer, Labour Court, U.T, Chandigarh and another, 1993(3) Recent Services Judgments 338, it has been held as under:- “It is one thing to say that the assistance of a co-workman was denied and altogether different thing to say that the co- workman be called and the enquiry may be ensued only thereafter. Further, this point was not raised before the Labour Court. While dealing with issue No.1 which is with regard to enquiry being proper or vitiated for some reason, it has been held that the workman in fact in his statement did not make any grievance with regard to the conduct of enquiry nor did he say anything which could possibly suggest that he was not allowed fair and reasonable opportunity either to cross-examine the witnesses who appeared against him or in leading defence to prove his own case. If this point was taken in the pleadings before the Labour Court and evidence was led, it was possible for the management to rebut the same and prove that in fact assistance of a co-workman was never denied to the petitioner and that the presence of the co-workman was not to be secured by it. In view of the fact that this matter was not agitated before the Labour Court and in fact no question whatsoever was raised against the conduct of the enquiry, it shall not be just and equitable at this stage to go into this point and set aside Civil Writ Petition No.10203 of 1988 -7- the order of dismissal of petitioner from service.” In re: R.C. Sharma v. Union of India and others, 1976(2) Services Law Reporter 265, it has been held as under:- “The question whether the appellant was given a reasonable opportunity to lead evidence and to be heard or not is largely a question of fact. It is only when an opportunity denied is of such a nature that the denial contravenes a mandatory provision of law or a rule of natural justice that it could vitiate the whole departmental trial. Prejudice to the government servant resulting from an alleged violation of a rule must be proved.” In view of the above discussion and the case law, the argument raised by Mr. Verma has no legs to stand upon and is repelled. It is further argued on behalf of the petitioner that at the time of checking, no cash was checked nor the petitioner was confronted with the statements of the passengers at the time of checking and thus, the guidelines issued by the Director, State Transport to be observed by the checking staff had not been complied with at all and had the same been done and the statements by the passengers recorded, the result would have been otherwise. To tide over these submissions, the learned Assistant Advocate General, Punjab by relying upon the observations rendered in re: State of Punjab and others v. Nirmal Singh, 1987 Punjab Acts and Precedents 24, maintained that the law does not envisage that the cash should have been checked or the petitioner ought to have been confronted with the statements and as regards, the stated guidelines, the same do not carry the force of law. Civil Writ Petition No.10203 of 1988 -8- I have well considered the rival contentions. In Nirmal Singh's case (supra), it has been observed as under:- “Counsel for the respondent, however, sought to rely upon the recent judgment of this Court in State of Haryana v. Mohan Singh, 1985(2) S.L.R. 116. This was no doubt a similar case, where the services of the conductor had been terminated on the charge that he had taken fare from passengers without issuing them tickets, but a reading thereof would show that the earlier judgment of the Supreme Court in Rattan Singh's case (supra) had not been noticed and further the case was decided on its own facts, in as much as it was found that the Inspector who had detected the non-issue of tickets, had not checked the cash of the conductor, nor had he recorded the statement of any passengers or other persons. It was on this account held to be a case of no evidence. This thus affords no assistance to the respondent.” In re: State of Haryana & another v. Rattan Singh, 1977 Punjab Law Reporter 492, the Apex Court ruled as under:- “Held, that it is well settled that in a domestic enquiry the strict and sophisticated rules of evidence under the Indian Evidence Act may not apply. All materials which are logically probative for a prudent mind are permissible. There is no allergy to hearsay evidence provided it has reasonable nexus and credibility. It is true that departmental authorities and administrative tribunals must be careful in evaluating such material and should not glibly swallow what is strictly speaking Civil Writ Petition No.10203 of 1988 -9- not relevant under the Indian Evidence Act. The essence of a judicial approach is objectivity, exclusion of extraneous materials or considerations and observance of rules of natural justice. Sufficiency of evidence in proof of the finding by a domestic tribunal is beyond scrutiny. Absence of any evidence in support of a finding is certainly available for the court to look into because it amounts to an error of law apparent on the record. It cannot hold that merely because statements of passengers were not recorded the order that followed was invalid. Likewise, the re-evaluation of the evidence on the strength of co-conductor's testimony is a matter not for the court but for the administrative tribunal.” In view of the above extracted observations, the re-evaluation of the evidence is not required to be done by this Court as it is the function of the Labour Court. As regards the stated departmental instructions, these are of prudence and not the rules that bind or vitiate any violation. Thus, this contention being bereft of any merit is turned down. It is further pressed into service that it was imperative upon the checking staff to record the statements of the passengers/ witnesses and the failure to do so, amounts to a case of no evidence. This contention pales into insignificance in view of Rattan Singh's case (supra). Last of all, it has been argued that the Labour Court has not apportioned any reason as to why the relief could not be given under the provisions of Section 11-A of the Act. I regret my inability to be one with Mr. Verma for the reason that on different occasions in 1977 when bus being conducted by the petitioner was checked by the inspecting staff, he Civil Writ Petition No.10203 of 1988 -10- was found to have collected the bus fare without issuing the requisite tickets to the passengers. The charges were supported by the Inspectorate staff. The Presiding Officer, Labour Court is not obligated to invoke the provisions of Section 11-A ibid in every case. In re: Harjinder Singh v. State of Punjab (1999) 1 Labour Laws Journal 1292, this Court observed as under:- “It is true that under Section 11-A, the Labour Court has the power to reappraise the evidence. It is also true that the writ Court is normally reluctant to interfere with the findings recorded by the Labour Court. Yet, the power given to the Labour Court cannot be arbitrarily used to order reinstatement or re-employment of dishonest employee. Fraud of even a small amount is like a drop of poison in a bucket of pure milk. It ruins the milk completely and renders it unfit for human consumption. Similarly, an employee found to be guilty of a dishonest act renders himself unfit for retention in service.” In view of the above observations, the Labour Court has the power to re-evaluate the evidence. The power vested in the Labour Court under Section 11-A ibid cannot be arbitrarily or whimsically used to order reinstatement or re-employment of dishonest employee. The Labour Court may or may not assign reasons for non-exercise of the powers vested in it under Section 11 ibid. In re: North West Karnataka Road Transport Corporation v. H.H. Pujar, 2008(5) Services Law Reporter 513, the respondent- workman had not issued tickets to 20 out of 136 passengers. During domestic inquiry, he was found guilty. Consequently, he was dismissed Civil Writ Petition No.10203 of 1988 -11- from service. The order of dismissal passed by the Corporation was upheld by the Apex Court. In re: Municipal Committee, Bahadurgarh v. Krishnan Behari, 1996(2) Service Cases Today 508, the respondent was dismissed from service on the charges of misappropriation of public money. The Apex Court held that “any sympathy shown in such cases is totally uncalled for and opposed to public interest. The amount misappropriated may be small or large, it is the act of misappropriation which is relevant.” The order of the Director Local Bodies reducing the punishment of dismissal into stoppage of increments was set aside. In the case at hand, the disciplinary authority after analysing the evidence on record found that the petitioner is guilty in this case. The Labour Court also after hearing the representatives of both the parties and evaluating the evidence on record agreed with the findings of the disciplinary authority. Therefore, this Court by sitting under writ jurisdiction under Article 226 of the Constitution of India cannot go into the sufficiency or otherwise of the evidence before the Inquiry Officer and come to a different finding after re-appreciating the evidence on record. Sequelly, this petition is dismissed. November 17, 2008 ( HARBANS LAL ) renu JUDGE Whether to be referred to the Reporter? Yes.