C.W.P. No.10934 of 2005 -1- IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P. No.10934 of 2005 Date of Decision: 11.11.2009 Gulab Singh .....Petitioner Versus Presiding Officer, Labour Court, U.T., Chandigarh and another ....Respondents Present: Mr. P.K. Sachdev, Advocate for the petitioner. Mr. D.S. Nalwa, Addl. A.G., Haryana. 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. 1. The workman, who is a Conductor in Haryana Roadways, was shown the door out of employment on alleged proof of misconduct that he had committed the fraud of selling fake tickets to passengers and misappropriating money to the tune of Rs.1740/- by fake tickets and Rs.260/- by way of preparation of a fake way bill. The misconduct was alleged to have been detected by inspecting staff on 29.07.1997 when the workman was alleged to have admitted to his guilt before the checking staff but later in the enquiry, which was constituted, the admission was withdrawn. The Enquiry Officer, however, found the misconduct to have been established and the disciplinary authority dismissed C.W.P. No.10934 of 2005 -2- him after serving him a notice to show cause against the punishment. The enquiry was found to be fair and proper by the Labour Court on a reference sought by the workman. The workman challenges the order of the Labour Court before this Court by means of this writ petition. 2. The contention of the learned counsel appearing for the workman was that the enquiry was not fair and proper in that he was not apprised that he was entitled to the assistance of a co- worker for conduct of the trial. Even the witness from the booking office had been reported to have been examined behind his back and he had not been given any opportunity to cross- examine the said witnesses. There had been a criminal trial pending against the workman on the very same incident of alleged preparation of fake tickets and the departmental enquiry into the very same charge was not correct since the proof of the charge was technical in nature and the very same evidence was required to be used in the departmental proceedings. 3. To comment generally on the order of the Labour Court, I find that the Labour Court has not attempted any forensic appraisal of the issues involved in the case but has gone on to a mere reaffirmation of the finding by the Enquiry Officer without considering any of the three objections raised by the learned counsel appearing for the petitioner. On the last contention raised by him that a departmental enquiry ought not to have been C.W.P. No.10934 of 2005 -3- undertaken when there was a criminal case pending with reference to the same charge, the learned counsel appearing for the workman relied on the decision Capt. M. Paul Anthony Vs. Bharat Gold Mines Ltd. and another 1999 LAB I.C. 1565. The Hon'ble Supreme Court referred to several earlier decisions and had deduced from the authorities the following principles as emerging and set out in paragraph 22 of the judgment, which run as follows: “(i) Departmental proceedings and proceedings in a criminal case can proceed simultaneously as there is no bar in their being conducted simultaneously, though separately. (ii) If the departmental proceedings and the criminal case are based on identical and similar set of facts and the charge in the criminal case against the delinquent employee is of a grave nature which involves complicated questions of law and fact, it would be desirable to stay the departmental proceedings till the conclusion of the criminal case. (iii) Whether the nature of a charge in a criminal case is grave and whether complicated questions of fact and law are involved in that case, will depend upon the nature of offence, the nature of the case C.W.P. No.10934 of 2005 -4- launched against the employee on the basis of evidence and material collected against him during investigation or as reflected in the charge sheet. (iv) The factors mentioned at (ii) and (iii) above cannot be considered in isolation to stay the departmental proceedings but due regard has to be given to the fact that the departmental proceedings cannot be unduly delayed. (v) If the criminal case does not proceed or its disposal is being unduly delayed, the departmental proceedings, even if they were stayed on account of the pendency of the criminal case, can be resumed and proceeded with so as to conclude them at an early date, so that if the employee is found not guilty his honour may be vindicated and in case he is found guilty, administration may get rid of him at the earliest.” 4. The decision does not spell out any rigid rule that whenever there was a criminal case with reference to a same incident, the departmental enquiry cannot be proceeded with. The decision can also be seen as an authority that a criminal case and departmental enquiry do exist in two distinct spheres. It has also been held in several decisions that while the criminal case expects the proof of guilt to be beyond reasonable doubt, the departmental C.W.P. No.10934 of 2005 -5- enquiry is premised on preponderance of probability. The decision for the authority that if a criminal case proceeding were to be unduly protected, the Court could even resume the conduct of the departmental enquiry. The present incident itself is of the year 1997 and it is not seen either from the Enquiry Officer's proceedings file or in the Labour Court's award whether there has been any final adjudication by the Criminal Court. At best, the Criminal Court judgment itself could be merely a factor that the departmental enquiry could have taken note of, unless the charge itself made on the basis of a Criminal Court verdict in which case the alteration of verdict would have immediately a bearing on the result of the departmental enquiry or the punishment meted out to the workman. The departmental enquiry had proceeded independently of the criminal case and therefore, in my view, it will be not any longer possible to await the decision of the Criminal Court or to assume that it will have any bearing to the course of the departmental enquiry. This decision of the Hon'ble Supreme Court was relied on by a subsequent ruling of a Division Bench of this Hon'ble Court in Sushil Kumar Vs. Food Corporation of India and others 2002(7) SLR 664 where the Hon'ble Bench found the criminal charge and the charge sheet issued departmentally were based on the same facts and had to be proved by the same witnesses when the Bench held that the acquittal in the criminal proceedings would by itself put an end C.W.P. No.10934 of 2005 -6- and nullify the departmental proceedings. The said decision will have to be taken as governing the particular situation and cannot be applied in all instances of pendency of criminal proceedings as annulling the conduct of departmental proceedings also. I, therefore, proceed to examine the correctness of the decision of the Labour Court uninfluenced by any decision that the Criminal Court could have come to. 5. It has been too well settled a proposition of law that in a challenge to the fairness of procedure and the propriety of the departmental proceedings, the Labour Court is bound under Section 11-A of the Industrial Disputes Act to examine both the factors as regards the procedural fairness and the ultimate propriety of its decision. The workman had complained in his response to the show cause notice issued by the departmental enquiry after receiving the findings of the Enquiry Officer that he had not been granted the assistance of a co-worker. The MW-1 who was the only witness examined on behalf of the management before the Labour Court admitted; “it is correct that the Enquiry Officer did not tell the workman that he can take the assistance of a co-worker.” Even if this were to be discounted merely as technical, a more substantial point of a procedure relating to an opportunity to the workman to know the incriminating documents or witnesses against him was again flouted. The said witness, MW-1 had also admitted; “it is correct that in the list of witnesses C.W.P. No.10934 of 2005 -7- given along with chargesheet, there were names of two Inspectors namely Rachna Ram and Balbir Singh and that the name of Inspectors Daljit Singh was not named" (sic). Daljit Singh was produced before the EO as departmental witness, whose name was not in the list of witnesses.” It is not merely a case of surprise at the trial by production of a witness, who was not set out in the list but even the Enquiry Officer had permitted a witness to be brought in with no opportunity to the workman to cross-examine. Hear the witness of MW-1 again on this: “it is correct that Amrik Singh was produced before the EO but no opportunity was given to the workman to cross-examine him.” I find that the linchpin on which the management was trying to prove the fake nature of the tickets was through the booking clerk, Amrik Singh and a petition has also been filed before the Labour Court for citing him as a witness and the Court had also issued the summons for his enquiry before the Labour Court for appearance on 25.05.2000. However, I find no record of any evidence as having been recorded of Amrik Singh. After all, if the charge was that the workman had used the fake tickets and has also used the fake way bill, the character of the tickets as fake must be only in relation to the real tickets. In other words, the fake character could be seen only by comparison to the real tickets. The checking staff could have found that the tickets were fake if they had known what the real tickets were with reference C.W.P. No.10934 of 2005 -8- either to the serial numbers found in the tickets or in the manner in which it had been printed with any special features which were absent in the tickets. Unlike currency notes issued at the mint which are difficult to be duplicated and the fake character could be discernible even by a naked eye, the tickets printed and issued by a Transport Department normally could not be expected to be having any specific feature, which could be shown to be very distinctive from the fake ones. If they did exist, it was the duty of the management witness to show how it was possible to identify such fake tickets. I find absolutely no evidence either as having been brought before the Enquiry Officer or before the Labour Court. It is in this context that the admission of the management witness relating to the tickets assume importance. He admits in his cross-examination as follows: “I have gone through the enquiry file before giving the statement. The original alleged fake tickets were not produced during the enquiry proceeding. It is correct that Haryana Roadways used to get the tickets printed from any Press. No report was called for from the Press used to print the tickets to the fact that the said tickets are fake.....” It is not understood on what basis the Enquiry Officer could have ever come to the conclusion that the tickets were fake with no evidence whatsoever from the checking staff as to how the fake C.W.P. No.10934 of 2005 -9- tickets were identified and even without production of the original tickets. 6. The finding could be seen to be suspect also from the another stand point. If the booking clerk had issued some tickets with specific serial numbers, which had been entered in the way bill, the genuine way bill and the tickets which had been handed over to the Conductor must have been simultaneously available with the Conductor even at the time of seizing the fake ones. The checking staff did not seize even the original tickets or the original way bill. If it is to be assumed that the original tickets and the way bill had been not recovered from the Conductor at the spot, it should have been recovered later in some other place at least, for it is only through the retention of genuine tickets and the return of the same to the booking clerk that a Conductor could ever commit a fraud and make misappropriation. If all the original tickets had been used or not redelivered, the Conductor in any event becomes liable for money and no misappropriation would have been possible. In any way, the charge against the workman could never have been taken by the Enquiry Officer as having been established both procedurally and as a measure of content. 7. With all the above observations, it shall not be however still possible for me to set aside the award of the Labour Court and find the workman to be totally exculpated from the charge C.W.P. No.10934 of 2005 -10- and let the matter reach a finality. If a finding were to be recorded that the enquiry had not been fair and proper, it shall become necessary to give an opportunity to the management to prove the misconduct before the Labour Court, as laid down in Workmen Vs. Firestone Tyre and Rubber Co. of India (P) Ltd. (1973) 1 SCC 813 and Bharat Forge Co. Ltd. Vs. A.B. Zodge (1996) 4 SCC 374. 8. The award of the Labour Court is under the circumstances set aside and the order of dismissal from service is set aside for the purpose of fresh enquiry as regards proof of alleged misconduct. It shall be open to the management to establish the misconduct by production of such evidence as it may think necessary. The Labour Court shall consider the whole case in the light of any evidence that may be adduced before the Court and take a decision in accordance with law. The writ petition is allowed in the above terms. The parties shall appear before the Labour Court on 02.12.2009. (K. KANNAN) JUDGE November 11, 2009 Pankaj*