IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No.13639 of 2000 (O&M) Date of decision:31.08.2009 M/s the Maruti Employees Co-op. House Building Society Limited, Bhondsi, District Gurgaon. ...Petitioner versus The Presiding Officer, Labour Court, Gurgaon and others. ...Respondents CORAM: HON'BLE MR. JUSTICE K.KANNAN Present: Mr. Amit Jain, Advocate, for the petitioner. Mr. Jasmeet Singh Bedi, Advocate, for respondents 2 and 3. ---- 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 award of the Labour Court that is in challenge is a direction for reinstatement with continuity of service and back wages to the extent of 40%. The misconduct attributed to the workman was that when he had been working as a Clerk, he had misplaced the 'proceeding book'. When issued with show cause notice, he had admitted to have removed at the instance of one Ajit Sigh and that he was feeling sorry about his misconduct, that he was returning the book and that he was seeking the indulgence of the management against any serious punishment. The management acted on the letter and terminated him from service after paying a month’s salary. The workman denied the Civil Writ Petition No.13639 of 2000 (O&M) - 2 - letter as being voluntary and sought a reference for an adjudication questioning the termination of service. The Labour Court found that he had not let in any evidence even before the Labour Court to say that it was not a voluntary letter. The Labour Court found the document of admission of guilt as beyond doubt but still held that the management had not conducted any enquiry and the order of termination was grossly disproportionate and directed reinstatement. 2. The learned counsel appearing for the management would contend that the misconduct itself was an admitted one; if it was admitted, there was hardly scope for levying a charge-sheet and conducting an enquiry. The workman, who was a Clerk, was holding a position of trust and by his misconduct had rendered himself unworthy of such trust. The Labour Court ought not to have under such circumstances, expected any enquiry especially when it found that the reply to the show cause notice of the workman admitted the misconduct and held the document to be true and genuine. The learned counsel appearing for the management refers to a decision in Municipal Committee, Sirsa Versus Munshi Ram-(2005)2 Supreme Court Cases 382, that held in paras 13 and 14 as follows:- “13. In Pavanendra Narayan Verma V. Sanjay Gandhi PGI of Medical Sciences this Court again considering a similar case held: “21. One of the judicially evolved tests to determine whether in substance an order of termination is punitive is to see whether prior to the termination there was (a) a full-scale formal enquiry (b) into allegations involving moral turpitude or misconduct which (c) culminated in a finding of guilt. If all three factors are present the termination has been held to be punitive irrespective of the form of the termination Civil Writ Petition No.13639 of 2000 (O&M) - 3 - order. Conversely if any one of the three factors is missing, the termination has been upheld.” 14. From the above, it is seen that in the absence of the three facts as mentioned therein, namely, (a) a full-scale formal enquiry (b) into allegations involving moral turpitude or misconduct which ( c) culminated in a finding of guilt the termination cannot be held to be bad. According to the learned counsel if a full-scale formal enquiry had been conducted into the allegations involving misconduct and that culminated in a finding of guilt, the termination cannot be bad and it cannot be interfered by any Court. In this case, the Labour Court found a scope for intervention only because it found that there had been no formal enquiry at all. In my view, there ought to be another reason as well. When the workman was complaining that he had not voluntarily given that letter but he was forced to do so, the non-institution of an enquiry really exposed its vulnerability and made its conclusion regarding proof of misconduct suspect. The Labour Court found that the workman himself had let no evidence. The management also had no evidence beyond merely referring to these documents. The Labour Court had certainly a power to consider that even in a given case of misconduct whether the punishment is in proportion to the actual misconduct. 3. If the management was relying on the misconduct from the statement of the workman, it cannot truncate the recital in the letter and take only one portion of the letter as constituting an admission of misconduct. The workman had admitted in that letter that he was prevailed upon by one Ajit Singh to conceal the document. The learned counsel for the workman is unable to say what position Ajit Singh held Civil Writ Petition No.13639 of 2000 (O&M) - 4 - in relation to the workman. This again is an aspect which will be relevant as to when a person had compulsion from one among the workforce to do a thing, comes clean and then makes a statement before the management, whether he should be visited with such a serious punishment. We have subverted all our systems of enquiry to such levels that it pays to be untruthful. We see virtue brazen denials of all facts and let the other person prove guilt. Our criminal jurisprudence finds virtue in creating doubts; administrative law makes a concession in favour of the management that it shall be merely preponderance of probability. There is hardly a system where the truth is attempted to be secured. If some element of truth has come about in this case, it should be seen in the whole context of how the entire statement is made. I am referring to all this only to bring home the point that it was not merely a case of an admission of guilt, plain and simple. It is loaded with other factors which according to the workman made him to succumb to the misconduct. If the Labour Court found that the charge had not been fully established by constituting a proper enquiry and it found that he had been condemned unheard, it was definitely justified for if there had been an enquiry, the further truth of how and under whose instance the document came to be concealed could have been brought out. 4. My attention is drawn to the fact that the workman himself has expired and only the legal heirs are prosecuting the claim. There is not going to be need to answer the issue whether the person shall be reinstated in service. The whole benefit comes through monetary terms for the legal heirs of the person who is now dead. This is definitely not a Civil Writ Petition No.13639 of 2000 (O&M) - 5 - case where any intervention is necessary in the extraordinary jurisdiction of this Court for a decision rendered by the Labour Court on factual consideration. 5. The award of the Labour Court is, under the circumstances, confirmed and the writ petition is dismissed. There shall be however, no direction as to costs. (K.KANNAN) JUDGE 31.08.2009 sanjeev