C.W.P. No.9714 of 1992 -1- IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P. No.9714 of 1992 Date of Decision: 04.12.2009 Atma Singh .....Petitioner Versus The Presiding Officer, Labour Court, Patiala and another ....Respondents Present: Mr. Ashwani Bakshi, Advocate for the petitioner. Ms. Manpreet Kaur, Advocate for Mr. G.S. Gill, Advocate for respondent No.2. CORAM:HON'BLE MR. JUSTICE K. KANNAN 1. Whether Reporters of local papers may be allowed to see the judgment ? Yes 2. To be referred to the Reporters or not ? Yes 3. Whether the judgment should be reported in the Digest? Yes -.- K. KANNAN J.(ORAL) 1. By impugned order, the workman's claims to reinstatement and back wages were refused. The workman was a conductor in PRTC, Patiala and the charge against him was that on 23.09.1981, the Conductor had collected money from passengers but he had not issued tickets and in the process, the Conductor had misappropriated Rs.46.40. A charge-sheet had been issued and an enquiry was constituted for the proof of misconduct. Before the Enquiry Officer, two Checking Inspectors and the Superintendent of the Corporation had been C.W.P. No.9714 of 1992 -2- examined. The Checking Inspectors gave evidence to the effect that they had noticed that there were 62 passengers, 30 of whom had not purchased tickets and unpunched tickets to the value of Rs.46.40 had been collected from the Conductor and that he had violated the rules of the Corporation by collecting money and not issuing tickets. The cross-examination had been to the effect that the Inspector had not taken any statement from any of the passengers and that he did not check whether the cash collected by the Conductor. 2. Both of the management witnesses stated that they had not taken any statement from the passengers nor did they check the cash. On the side of the workman, the workman examined himself to the effect that on that day, there was a procession of supporters of Sant Jarnail Singh Bhindranwale and the persons, who boarded the bus were participants in the rally. The bus was jam packed and there were about 30 passengers over the roof of the bus. Many of them refused to buy tickets and when the Conductor asked the Driver that the bus be driven back to the Depot, the unruly passengers threatened that they would set fire to the bus and they also refused to purchase the tickets. This version was also affirmed by the Driver. One of the passengers in the bus was also examined to testify to the fulminating atmosphere in the bus and how many passengers refused to purchase tickets. 3. The Enquiry Officer had merely stated in his report that C.W.P. No.9714 of 1992 -3- the evidence of the inspecting staff proved the misconduct. Nowhere in the report did the Inspector affirm or deny the correctness of the version given by the Driver and the Conductor or even the independent witness. The report does not spell out whether there were several passengers, who refused to purchase tickets. The report did not also examine the source of information to the inspecting staff that the Conductor collected money to the tune of Rs.46.40 and did not give tickets. It must be remembered that the charge was not that the Conductor had been negligent in not issuing tickets to 30 passengers. On the other hand, it was an aggravated offence: a case of collection of money from persons to the tune of Rs.46.40 and non-issuance of tickets. It was expected that both the elements were required to be proved. 4. The Labour Court addressed the issue from the stand- point of what was contained in the claim statement namely that the workman had contended that there had been no notice and there was no enquiry before the Enquiry Officer and the workman had also admitted that he had participated in the enquiry. The Labour Court, therefore, went on to observe that the Conductor, who had participated in the enquiry had emboldened himself to state in his claim statement that there was no enquiry and that the workman had not come to the Court with clean hands. The Court was not granting any discretionary relief but was deciding a pointed reference whether the enquiry had been fair and proper C.W.P. No.9714 of 1992 -4- and whether the termination was justified or not. Although so stated in the claim statement, parties knew and joined issues on the fact that there was an enquiry and the question for adjudication was whether it was fair and proper. The procedural aspect of the fair opportunity was easily available but it answers only one portion of an adjudication. Whether such an enquiry yielded to just result by a judicial appreciation of the evidence tendered before the Enquiry Officer is verily an aspect which the Labour Court must consider. The scope of enquiry before the Labour Court in a case where it had to deal with the fairness and propriety of an enquiry was spelt out by the Hon'ble Supreme Court in M/s Firestone Tyre and Rubber Company of India Vs. The Management and others AIR 1973 SC 1227. Paragraphs 32 and 37 in the judgment are instructive as to the scope of the power of the Labour Court and the extent of interference that it could make on the finding of the Enquiry Officer. The relevant portions are: "32. We will first consider cases where an employer has held a proper and valid domestic enquiry before passing the order of punishment. Previously the Tribunal had no power to interfere with its finding of misconduct recorded in the domestic enquiry unless one or other infirmities pointed out by this Court in Indian Iron & Steel Co. Ltd. 1958 SCR 667 = AIR 1958 SC 130 existed. The conduct of disciplinary proceeding and the punishment to be imposed were all considered to be a managerial function, which the Tribunal had no power to interfere unless the finding was perverse or the punishment was so harsh as to lead to an inference of victimisation or unfair labour practice. This position, in our view, has no wbeen changed by Section 11A. The C.W.P. No.9714 of 1992 -5- words "in the course of the adjudication proceeding, the Tribunal is satisfied that the order of discharge or dismissal was not justified" clearly indicate that the Tribunal is now clothed with the power to reappraise the evidence in the domestic enquiry and satisfy itself whether the said evidence realised on by an employer established the misconduct alleged against a workman. What was originally a plausible conclusion that could be drawn by an employer from the evidence, has now given place to a satisfaction being arrived at by the Tribunal that the finding of misconduct is correct. The limitations imposed on the powers of the Tribunal by the decision in Indian Iron & Steel Co. Ltd. 1958 SCR 667 = AIR 1958 SC 130 case can longer be invoked by an employer. The Tribunal is now at liberty to consider not only whether the finding of misconduct recorded by an employer is correct; but also to differ from the said finding if a proper case is made out. What was once largely in the realm of the satisfaction of the employer, has ceased to be so; and now it is the satisfaction of the Tribunal that finally decides the matter. 33 - 36....................... 37. We are not inclined to accept the contentions advanced on behalf of the employers that the stage for interference under Section 11A by the Tribunal is reached only when it has to consider the punishment after having accepted the finding of guilt recorded by an employer. It has to be remembered that a Tribunal may hold that the punishment is not justified because the misconduct alleged and found proved is such that it does not warrant dismissal or discharge. The Tribunal may also hold that the order of discharge or dismissal is not justified because the alleged misconduct itself is not established by the evidence. To come to a conclusion either way, the Tribunal will have to reappraise the evidence for itself. Ultimately it may hold that the misconduct itself is not proved or that the misconduct proved does not warrant the punishment of dismissal or discharge. That is why, according to us, Section 11A now gives full power to the Tribunal to go into the evidence and satisfy itself on both these points. Now the jurisdiction of the Tribunal to reappraise the evidence and come to its conclusion enures to it when it has to adjudicate upon the dispute referred to it in which an employer relies on the findings recorded by him in a domestic enquiry. Such a power to appreciate the C.W.P. No.9714 of 1992 -6- evidence and come to its own conclusion about the guilt or otherwise was always recognized in a Tribunal when it was deciding a dispute on the basis of evidence adduced before it for the first time. Both categories are now put on a par by Section 11A. 5. The Hon'ble Supreme Court was emphatic in its expression that the extent of interference would not be limited merely to whether the findings were perverse or not. After the enactment of Section 11-A, it has been held that the Tribunal now becomes clothed with the power to reappraise the evidence in the domestic enquiry and satisfy to itself whether the evidence relied on by the employer established the misconduct or not. In this case, the misconduct attributed was collection of money from passengers and non-issuance of tickets. Non-issuance of tickets was an admitted fact which required no adjudication. The Conductor had an explanation why he did not issue tickets. The crucial aspect was only whether he had collected money from the passengers and thereby misappropriated the money. The two Checking Inspectors had given evidence that the Conductor had collected money. None of them stated the source of information. They had not even whispered in Court that they had asked any passenger whether they had paid the money to the Conductor and the Conductor received the same but did not issue tickets. With no source of information disclosed before the Enquiry Officer, when admittedly the Inspecting Staff themselves were not personal witnesses to the incident of collection of money, the C.W.P. No.9714 of 1992 -7- Enquiry Officer ought to have seen that there was no evidence at all that money had been collected from any of the passengers. Indeed the statement of the Driver and the Conductor that they had to cope with a riotous assembly of passengers in the bus was not even denied by any of the management witnesses and not even a suggestion had been given to the Driver or the Conductor that such a situation did not exist. An independent witness, who was a passenger, was also examined to vouch for the unruly nature of crowd of passengers in the bus on that day. The misconduct which the Enquiry Officer found was on the basis of absolutely no evidence. The Labour Court's judgment betrayed a complete lack of judicial approach of what an enquiry before the Labour Court ought to be compliant of. The Labour Court had deflected itself to commenting on the conduct of the workman in not stating the fact truly in the claim statement about his participation in the enquiry. It had examined the issue whether the reference to past misconduct in the ultimate order of dismissal was justified or not. The contention of the workman before the Labour Court was that past records had not been even put to him. This aspect does not require any adjudicatioon, for in an earlier round of litigation when the writ petition had been filed against the award of the Labour Court, the award was set aside only on this aspect of consideration of past record without putting it to the workman. The judgment of this Hon'ble Court rendered on a C.W.P. No.9714 of 1992 -8- singular aspect of consideration of past records without adverting to the other contentious issues became a subject of adjudication by the Hon'ble Supreme Court in Civil Appeal No.3854 of 1993 and it set aside the order of the High Court and directed a remand by its judgment dated 06.08.1993 that the case would require to be considered afresh by this Court on all other aspects. 6. In the writ petition, which is before me, therefore, I have adverted only to other issues, sans a reference to consideration of the propriety or otherwise of the disciplinary authority to refer to past records. The core contorversy of whether the misconduct was established, shall be required to be answered in favour of the workman for the flaws that I have outlined from the Enquiry Officer's report and how there had been a complete failure of consideration by the Labour Court in its judgment. 7. The workman has fought a long battle, sustained himself this long for an event which is said to have been taken place in the year 1981. Bhindrewale has come and gone into past history. The litigation has stood on for what his followers have perhaps unwittingly left as an unsavoury legacy for the workman. The workman now shall have relief. 8. The award of the Labour Court is set aside and the workman is entitled to the relief as he prayed for. If the workman has already reached the age of superannuation, the question of reinstatement does not arise and the workman shall be entitled to C.W.P. No.9714 of 1992 -9- all the terminal benefits as though he continued in service till he was superannuated. 9. The writ petition is allowed and the benefits to the workman shall be calculated as though he was in service till he reached the age of superannuation. The workman shall also be entitled to costs which I assess at Rs.5,000/-. (K. KANNAN) JUDGE December 04, 2009 Pankaj*