IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No.16319 of 1992 Date of decision:30.07.2009 Dalbir Singh ...Petitioner versus Presiding Officer, Labour Court, Patiala and others ...Respondents Present: Mr. Arun Palli, Senior Advocate with Mr. Jai Bhagwan, Advocate and Mr. K.V.S.Kang, Advocate, for the petitioner. Mr. R.S.Ahluwalia, Advocate, for the respondents. --- 2. Civil Writ Petition No.1331 of 1993 Kuldip Singh ...Petitioner versus Presiding Officer, Labour Court, Patiala and others ...Respondents. Present: Mr. Arun Palli, Senior Advocate with Mr. Jai Bhagwan, Advocate and Mr. K.V.S.Kang, Advocate, for the petitioner. Mr. Harsh Aggarwal, Advocate, for the respondents. --- 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. I. Scope of writ petitions 1. The writ petitioner in Civil Writ Petition No.16319 of 1992 was the driver in the respondent-Corporation, while the petitioner in Civil Civil Writ Petition No.16319 of 1992 - 2 - Writ Petition No.1331 of 1993 was the conductor in the same bus at the relevant time when delinquency were attributed to them. The writ petitions challenge the awards passed by the Labour Courts rejecting the reference against the respective workmen and affirming the decision of the disciplinary authority terminating their services. The reference to the petitioners in CWP No.16319 of 1992 and CWP No.1331 of 1993 shall be driver and conductor respectively. II. Facts in brief 2. On 06.02.1987, admittedly the driver and the conductor were assigned to the duty of the trip from Patiala to Khalra. The charge against the driver and the conductor were, the driver plied a special trip from Khalra to Bhikhiwind without permission and the driver had issued old tickets to 35 passengers and collected 35 rupees for his own personal benefit. The driver had connived with the conductor for the unauthorized plying of the bus and since it amounted to very serious misconduct, change-sheet had been served and enquiry was constituted. In answer to the charges, both the driver and the conductor had, in their individual replies, denied that they had plied the vehicle from Khalra to Bhikhiwind. They stated that the charge was vague and they had not been in any way involved in the misconduct attributed to them. They had also asked for copy of the alleged report of the inspecting staff which had been alluded to in the charge-sheet. (a) Enquiry Officer's finding 3. The Enquiry Officer, who was a Traffic Manager Shri Tarsem Lal, had held enquiry and submitted a report on 31.07.1987. The report after Civil Writ Petition No.16319 of 1992 - 3 - setting out the charge against the workman stated as follows:- “On the departmental enquiry was ordered by the D.M./PRTC/PD-II and the undersigned was appointed as E.O. to hold the enquiry and Sh. Ardev Singh and P.O. vide order No.12/PRTC/PD-II, dated 3.4.87. The history of the case is that Sh. Dalbir Singh, driver No.P-II-8 operated special trip from Kalra to Bhikhiwind Vehicle No.7259 on 6.2.87 without prior permission and also helped the bus-conductor by defrauding the amount to the extent of Rs.35/-. The statement of the bus-driver and defence witness of the driver was recorded. The statement of the management witness was also recorded. Keeping in view the above statements, I am of the view that charges levelled in the charge-sheet against him stand proved.” (b) Disciplinary Authority's decision 4. The copy of the report had been sent along with a show cause notice by the disciplinary authority that he was provisionally of the opinion that penalty of termination of service should be imposed upon the workman to answer to the charges. They denied that they had plied the bus in any unauthorized manner and that the report was invalid. The disciplinary authority ultimately passed the order in the following terms: “I thoroughly examined the statements of the prosecution witnesses, accused and his defence witnesses and also examined the enquiry report. The driver has failed to produce any proof that he is not guilty. The E.O. has held him guilty of all the charges levelled in the charge- sheet. Thereafter, Shri Dalbir Singh, Driver P-II-8 was issued show cause notice vide Memo No.3020/PRTC/PD-II dated 5.8.1987 for the penalty of termination of his services. His reply to the show cause notice received and considered. He was given opportunity for personal hearing vide letter No.3421 dated 14.8.1987. Shri Dalbir Singh driver has heard in person on 20.8.1987. Shri Dalbir Singh Driver was given full chance in the personal hearing to prove his innocence but he failed and from the above facts, it has been proved beyond doubt that Civil Writ Petition No.16319 of 1992 - 4 - the driver has operated special trip from Khalra to Bhikhi- wind unauthorisedly in connivance with the conductor who defrauded the Corporation to the tune of Rs.35/- by way of not issuing tickets to 35 passengers travelling from Khalra to Bhikhi Wind after charging the requisite fare. In view of the above facts and the gravity of the charges proved against him, I am of the opinion that his retainment with the PRTC is against the interest of the Corporation. Therefore, keeping in view the facts on record, the services of Shri Dalbir Singh Driver No.P-II-8 are hereby terminated with immediate effect.” III. The case in defence by workmen 5. Before the Labour Court, the workman had complained that the enquiry before the Enquiry Officer was vitiated and it was neither fair nor proper by pointing out that no reason at all had been given except reproducing the charges and stating in one sentence that the charges had been proved. The disciplinary authority also had given no reasons nor adverted to either the statement of witnesses nor the explanation given by them but merely recorded the fact of constitution of an enquiry, the submission of report and his active consideration of the relevant facts to deliver the punishment of removal from service without any further reasoning. The endeavour on behalf of the workman was to show that the enquiry was totally vitiated and the reports could not be relied on since it showed a complete lack of application of mind. The workman contended before the Labour Court that the trip time was from 7.30 am at Patiala to reach at 3.30 pm at Khalra between a distance of over 250 kilometers. The alleged intersession and inspection by the staff of the Corporation had been made even before the trip was complete and even before they reached the destination at Khalra. On behalf of the driver, it Civil Writ Petition No.16319 of 1992 - 5- was contended that if the conductor had issued old tickets, no complicity of the same could be attributed to the driver and the management could have easily seen whether the vehicle had reached the destination at Khalra and was doing a return trip unauthorisedly by looking into the records of the time-keeper. Again, the time for arrival at Khalra itself was only at 3.30 pm and the incident at 3.05 pm would only show that they had not completed the trip one way and the imputation against them that the bus was being plied after reaching Khalra by a return to Bhikhiwind could not be true at all. IV. Adjudication whether enquiry was fair and proper was an essential pre-requisite by the Labour Court. 6. The Labour Court framed an issue whether the enquiry proceedings had been fair and proper and also took the issue regarding whether the termination of services was valid and held. Without saying in so many words that the enquiry was fair and proper it held that the case of the driver and conductor that they had not even completed the trip had not been stated in so many words in the replies to the charge nor even suggested to the management witnesses. It reasoned that such a defence was brought out for the first time in their own evidence and therefore was an after thought. (a) Effect of decision without spelling out reasons 7. The learned Senior counsel appearing for the workman placed at the forefront of his arguments the legal proposition that the report of the Enquiry Officer ought to be a reasoned one and the Labour Court was bound to adjudicate on the fairness and the proper procedure adopted by the Enquiry Officer. According to him, it is a legal mandate which is Civil Writ Petition No.16319 of 1992 - 6- cast on the Labour Court to first render an adjudication on the validity of domestic enquiry and the punishment inflicted on such enquiry. The learned counsel refers to the decision in the workman of M/s Firestone Tyre and Rubber Company Versus the Management and others –AIR 1973 Supreme Court 1227, where the Hon’ble Supreme Court adverting to the powers of the Labour Court under Section 11-A of the Industrial Disputes Act that the Labour Court must first be satisfied whether a proper enquiry has been held by an employer and whether the finding of misconduct is plausible conclusion flowing from the evidence, if no such enquiry had been held or when the enquiry was found to be defective, the Tribunal in order to satisfy itself about the legality and validity of the order, has to give an opportunity to the employer and the employee to adduce evidence before it. The learned Senior counsel appearing for the workman would therefore submit that the Labour Court had not anywhere stated that the enquiry held was either fair or proper. According to him, the enquiry and the punishment orders failed on both counts. 8. The learned counsel would place the basis for such a contention that the enquiry was vitiated by the report of the Enquiry Officer and the order of punishment by the disciplinary authority which we have extracted above as containing no reasons for their respective conclusions. Reading the order, there is no doubt in my mind that there is no reasoning at all for the conclusion arrived at. It merely sets out that opportunity had been given, evidence had been taken and that the charges had been proved. The disciplinary authority’s order is no better Civil Writ Petition No.16319 of 1992 - 7- except that he had made references to additional points like constitution of enquiry, the examination of witnesses and his own satisfaction that the enquiry report was proper. The learned counsel appearing for the workman relied on the judgment of the Hon’ble Supreme Court in Anil Kumar Versus Presiding Officer and others-(1985) 3 SCC 378, the decision sets out a pellucid proposition that postulates that an enquiry without reasons is not an enquiry report at all. In that case, the enquiry report submitted by the enquiry officer only contained the charges against the appellant, the dates on which the enquiry was held, names of witnesses produced on behalf of the management followed by a statement that evidence of the appellant and his witnesses were recorded. After that the report concluded with the statement that the appellant’s “non-observing of the instructions of his seniors and leaving the place of work without proper permission is a serious case of misconduct, negligence of duty and indiscipline”. At the foot of it there was a forwarding note. The General Manager accepting the report passed the order of dismissal of the appellant from service. Allowing the appeal, setting aside the order of dismissal and ordering reinstatement and payment of back wages the Hon'ble Supreme Court held: “The enquiry officer in the present case merely recorded his ipse dixit that the charges were proved, without assigning any reason why the evidence produced by the management appealed to him in preference to the evidence produced by the appellant. Therefore, there was no enquiry in this case worth the name and the order of termination based on such proceeding disclosing non- application of mind would be unsustainable. A disciplinary enquiry has to be a quasi-judicial enquiry held according to the principles of natural justice and the enquiry officer has a duty to act judicially. Where a disciplinary enquiry affects the livelihood and is likely to Civil Writ Petition No.16319 of 1992 - 8- cast a stigma and it has to be held in accordance with the principles of natural justice, the minimum expectation is that the report must be a reasoned one. It cannot be an ipse dixit of the enquiry officer. The Court then may not enter into the adequacy or sufficiency of evidence. But where the evidence is annexed to an order sheet and no corelation is established between the two showing application of mind, it is not an enquiry report at all.” 9. The learned counsel also pointed out that the same point has been emphasized through other judgments of the Hon’ble Supreme Court as well. In Powari Tea Estate Versus Barkataki (M.K.) and others-1965- II-LLJ 102¸ the Hon’ble Supreme Court held as under :- “It is necessary to emphasize that domestic enquiries held against industrial employees must conform to the basic requirement of natural justice, and one of the essential requisites of a proceeding of this character is that when the enquiry is over the officer must consider the evidence and record his conclusions and reasons therefor.” 10. The need to record reasons had been expressed in the decision in Khardah & Co. Ltd. Versus Its workmen-1963-II-LLJ 452, when it held if the enquiry had not recorded his reasons for finding the workman guilty of the charges levelled against him, it would vitiate the domestic enquiry. A.L.Kalra Versus Project and Equipment Corporation of India Ltd.-(1984) 3 SCC 316, also laid down that a decision by an Enquiry Officer or disciplinary authority that contained no reasons for the decision would be treated as vitiated by non-application of mind. It underscored that : “A speaking order will at its best be reasonable and at its worst be at least a plausible one. If reasons for an order are given, there will be less scope for arbitrary or partial exercise of power and the orders ex facie will indicate whether extraneous circumstances were taken into consideration by authority passing the order.” Civil Writ Petition No.16319 of 1992 - 9- If these principles are applied, I have no doubt in my mind after going through the report of the Enquiry Officer and the orders of dismissal passed by the disciplinary authority, that they suffer from vice of non- application of mind and vitiated by a complete lack of reasoning for the decisions taken. V. In the absence of finding about the fairness and propriety of enquiry, the extent of power of Labour Court to deduce its own reasons 11. It the enquiry was vitiated by lack of reasoning, the management by the application of the principle laid down in the Firestone’s case (referred to supra) could have either conceded that the report was not fair or proper and sought for proof of the guilt of the workman by leading evidence before the Labour Court. If it chose not to make such a concession, the Labour Court ought to have examined it as a preliminary point and ought to have given an adjudication whether the report and the decision of the disciplinary authority were either fair or proper. The fairness and the propriety principles are drowned fathoms deep in this case by utter lack of reasoning in the respective report and the order. The Labour Court, however, had examined the merits of the contentions by making references to the report of the inspection staff and the evidence given by the witnesses to discount the weight of the contentions raised in defence by the workmen. To the defence that the vehicle was still on its ordinary journey to Khalra and had not returned from Khalra to Bhikhiwind, the Labour Court reasoned that such a case had not been suggested in the cross-examination of the management witnesses and therefore, it could not be accepted. If the Labour Court had held that the Civil Writ Petition No.16319 of 1992 - 10 - enquiry was proper, it had no further exercise to undertake. If in this case, the enquiry is shown to be vitiated and if neither the report nor the order of termination contained any reasons for the same, without directing the parties to let in evidence before it, the Labour Court cannot examine the evidence tendered before the Enquiry Officer and supply reasons for the conclusion of the Enquiry Officer and the decision of the disciplinary authority which they did not contain. The duty of the Labour Court would be to examine the report or the termination order itself and if in their reasoning, they had made reference to documents or oral evidence, the Labour Court would also be justified in saying whether the evidence as given led to the decisions that had been taken. If re-appreciation of evidence was deemed necessary, without the management tendering evidence before the Labour Court, the Labour Court could not have itself examined the evidence and documents placed before the Enquiry Officer, that neither the Enquiry Officer nor the disciplinary authority had adverted to in the respective report and order. 12. The learned counsel appearing for the management would contend that the charge was that the driver plied the bus by a special trip from Khalra to Bhikhiwind and that had been referred to in the report of the inspection staff. It must be noticed that even while replying to the charge, the workman had sought for copy of the report but it was never given to them. Even in the absence of report, it should have been possible to establish the same in evidence if the management witnesses had spoken about the fact that the bus was intercepted in a return journey from Khalra to Bhikhiwind. Such a statement must have Civil Writ Petition No.16319 of 1992 - 11- been referred to in the order of the Enquiry Officer to find positively that the charge had been proved by such evidence. The Labour Court itself undertook the task of examining the evidence that was let in before the Enquiry Officer, but it reasoned that the case in defence that vehicle was still on its onwards journey to Khalra and had not returned, had come by the evidence of the workmen only when their turn came to give evidence but not suggested to the management witnesses. When there was positive evidence of the workman that the driver had not plied a special return trip, there could have been several ways to disprove such a contention. The learned counsel pointed out that there had been no attempt by the management to show the time of arrival at Khalra and when the vehicle was on its unauthorized return journey, there was no statement from any passengers; there had been no communication by the inspecting staff either to the depot at the point of the destination or the starting point to check whether the vehicle had already reached Khalra and it was returning; none of the old tickets, which were said to have been collected by the conductor, had been produced before the enquiry; there ought to have been an endorsement even on the way bill by the inspecting staff that the vehicle was found on a return trip from Khalra. On the other hand, it merely contained an endorsement that it was fraudulent case of issuance of tickets. If there was some evidence before the Enquiry Officer and that evidence had been referred to by the Enquiry Officer to support his finding, the existence of evidence itself would have been sufficient to uphold the order. The sufficiency or the adequacy of the evidence itself may not be a matter for adjudication Civil Writ Petition No.16319 of 1992 - 12- before this Court so long as there was some evidence that went into the mind of the Enquiry Officer. If the Labour Court itself had not allowed for evidence to be given and the Enquiry Officer also did not refer to any evidence, it would be impermissible for the Labour Court or this Court to examine the evidence that has been placed before the Enquiry Officer afresh as if the trial were conducted either before the Labour Court or this Court. The enquiry report finding the workman guilty requires to be trounced also for the reason that the justification for its conclusions by the Labour Court came through an approach, when it queried why the workmen had not given any evidence to prove their innocence. The management which ought to have had all the relevant records in its hands ought to have given positive evidence to the charges attributed to them, instead of looking for what the workman did not do or what was not suggested by the workman in the cross-examination. If the vehicle had been intercepted on its return journey from Khalra towards Bhikhiwind, a reference to a report of the inspecting staff which was not even referred to in the enquiry report or the disciplinary authority’s order, cannot be the only source for this Court to find that the vehicle had reached Khalra and it was on its return. The decision of the disciplinary authority must be supported on the basis of the proceedings themselves and not through statements or explanations given in the writ petition. In M.S. Gill Versus Chief Election Commissioner -(1978) 1 SCC 405 , the Hon’ble Supreme Court held that the reasoning and explanation given in an affidavit in the writ petition cannot substitute the requirement of what ought to find a place in the impugned proceedings themselves. The order Civil Writ Petition No.16319 of 1992 - 13- of the Labour Court's finding that the decision of the disciplinary authority to be valid is set aside. The enquiry proceedings are wholly vitiated by lack of reasons and the decision to terminate the services are also set aside. VI. Enquiry vitiated, Labour Court's verdict is defective by a wrong approach (a) As regards driver 13. In the absence of clear proof that the driver had plied the bus on a return special trip from Khalra towards Bhikhiwind, even if the conductor had issued old tickets to passengers and pocketed the money collected from the passengers, the driver cannot be imputed with any complicity. Such complicity would have been possible only if it was clearly established that the vehicle was on a return trip after reaching Khalra. If the vehicle was only proceedings towards Khalra, it would not be possible to tack the liability on the driver also. The driver would therefore be entitled to the relief of reinstatement (if he has not already reached the age of superannuation) with full back wages and continuity of service. (b) As regards, conductor 14. As far as the conductor is concerned which is the subject matter of CWP No.1331 of 1993, the issue is slightly different. I have held that there was no proof that the vehicle reached Khalra and was on a return trip. The learned counsel for the management points out that the conductor at no point of time denied that he had issued old tickets. If there was such a report but not been availed to the conductor and the copy of which even had not been furnished to the conductor nor allowed Civil Writ Petition No.16319 of 1992 - 14- to be inspected by him, it would not be possible to conclude that he had issued old tickets and caused loss to the Corporation. A conductor who collects money from passengers and who is bound to account to the management is in a position of trust, a position which is slightly different from the position of the driver. The management has lost its confidence in the workman and therefore directing reinstatement for such a person may not be appropriate. The conductor would therefore be entitled only