C.W.P. No.2921 of 1995 (O&M) -1- IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P. No.2921 of 1995 (O&M) Date of Decision: 12.08.2009 Baldev Singh .....Petitioner Versus Presiding Officer, Labour Court, U.T., Chandigarh and another ...Respondents Present: Mr.J.C. Verma, Sr. Advocate with Ms. Deepinder Kaur, Advocate for the petitioner. Ms. Monica Chhibbar Sharma, 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 ? No 2. To be referred to the Reporters or not ? No 3. Whether the judgment should be reported in the Digest? No -.- K. KANNAN J. (ORAL) 1. The writ petition challenges the award of the Labour Court, U.T., Chandigarh rejecting the reference sought by the workman that the dismissal pursuant to departmental enquiry was illegal. The writ petitioner was a Conductor in the respondent-Roadways and he had been charged with having embezzled an amount of Rs.124.75/- by issuing old tickets to passengers and also running away from the scene without delivering the Way Bill and Advance Booking Vouchers when the checking staff stopped the bus for the purpose of checking and demanded the same. The abandonment of the duty was also a subject of complaint by the inspection staff at the Morinda Police Station. The charge-sheet, which had been levied on the workman C.W.P. No.2921 of 1995 (O&M) -2- also contained reference to the fact that the checking staff compared the tickets with the duplicate Way Bills obtained from the office and came to know that 8 ½ tickets for passengers had been issued from Chandigarh to Ludhiana, which had “up and down punched tickets.”. It was also alleged that the Conductor had issued old tickets of Rs.6+2.70 whereas they were required to be issued with tickets of Rs.6.20+2.80. 2. The workman had a different story to tell that on that day on 30.07.1988, when the vehicle was proceeding from Chandigarh to Ludhiana and when the bus had gone past Kharar, he felt unwell with nausea and signalled the Driver to stop for easing himself but when he got down, the bus Driver had taken the vehicle without waiting for him to get into the bus again. According to the Conductor, he went therefore to the nearby hospital and got himself treated as an out patient. The incident as alleged by the management through the charge-sheet, according to the Conductor, did not happen at all. 3. An enquiry had been constituted by the competent authority before whom the inspection staff had given evidence that when they demanded of the Conductor at Morinda to hand over the Way Bills and the dockets pertaining to the Conductor, he not only refused to comply with the demand but he got down from the bus and ran away. The old tickets were also produced before the Enquiry Officer in support of the charge that the Conductor had issued old tickets and some of them 'up and down punched tickets'. If the evidence on the side of the management could not be believed, it could arise only in a situation where the defendant had established his case that such an C.W.P. No.2921 of 1995 (O&M) -3- incident did not take place at all. In such an eventuality, the burden ought to be on the workman to establish that the vehicle had stopped at Kharar and that he got down but the bus left without picking him up. Such an evidence was required to be established and the only aspect that has to be considered in this case is whether the defence story obtained any form of proof at the enquiry before the Enquiry Officer. 4. Learned Senior Counsel appearing for the workman even before adverting to the core contentions between the parties took up at least six objections as regards the enquiry conducted and the conduct of the management which, according to him, would vitiate the ultimate finding and the punishment accorded to him. One, the competent authority was biased, which is discernible from the fact that the charge-sheet itself made a positive assertion that the workman had embezzled a sum of Rs.124.75/- and that he was guilty of not giving the documents to checking staff and having run away leaving the bus. Learned Senior Counsel would rely on judgment of the Hon'ble Supreme Court in Kumaon Mandal Vikas Nigam Ltd. Vs. Girja Shankar Pant and others 2000 (4) RSJ 512 and State of Bengal and others Vs. Shivananda Pathak and others 1998(2) RSJ 791 that held that the Disciplinary Authority shall be sole judge of facts and the High Court would not interfere with factual findings but the Court would still apply its power of judicial review, in case the recorded findings were based on no evidence or the findings are totally perverse or legally untenable. In Kumaon Mandal Vikas Nigam Ltd.'s case (supra), the Hon'ble Supreme Court referred to a charge C.W.P. No.2921 of 1995 (O&M) -4- that made an assertion of the misconduct as an evidence of a mindset that betrayed bias and prejudice. In that case, the Hon'ble Supreme Court found among other vitiating circumstances, the expressions used under the charge-sheet itself as one of the factors that would be relevant. It was not a case where the Court found that if ever a charge-sheet made a strong assertion, the whole proceedings would be vitiated. Similarly in the latter judgment as well, the Hon'ble Supreme Court explained the concept of bias, which was an expression of a pre- conceived opinion or a pre-disposition or a pre-determination to decide a case on an issue in a particular manner, so much so that such a pre-disposition does not leave the mind open to conviction of a point of view of the workman. The principles of bias would well apply in a case where the Disciplinary Authority had a pre-judged view of things and he was also conducting an enquiry or had any direct control over the Enquiry Officer to tow his line. In this case, an independent Enquiry Officer had been appointed and unless it is shown that the Enquiry Officer himself was, in any way, subjected to bias or if it could be shown that the competent authority, even without reference to the Enquiry Officer's report, was merely reaffirming his own pre- conceived notion, the workman cannot impeach the outcome of the enquiry by the only fact that some positive assertions had been made by the Disciplinary Authority in the charge-sheet. The contention that the enquiry was vitiated by bias, in my view, has no substance. 5. It was the second contention of learned Senior Counsel that the hospital records which the workman wanted to secure were not allowed to be summoned. The Labour Court had dealt with this issue C.W.P. No.2921 of 1995 (O&M) -5- by stating that he sought for summoning of records by an application and on the same day, he had also closed his evidence. He had observed that the application made by him for summoning of records was not followed diligently and by the fact that he opted to close the evidence, the Enquiry Officer was justified in not taking notice of it. The point that has to be seen is that by the production of the record if any new fact could have been proved or if the defence theory obtained greater credibility. At the enquiry before the Enquiry Officer, the workman had produced the copy of the medical chit. The fact that he had gone to hospital itself is not a matter that would have deflected the course of the enquiry or could have resulted in a different finding. The issue was whether he had alighted at Kharar and did not proceed upto Morinda, could have been proved only by establishing through some independent witnesses, who were immediately connected with the incident, that is, either by examination of some person in the bus, who saw the conductor alighting and who knew that the Driver did not wait to pick him up but had left the place. The best of evidence would have been possible if the Driver himself had been examined or any passenger had given such evidence. The learned Senior Counsel turned the table on the management and stated that the evidence of the Driver or the passenger must have been put only at the instance of the management. In my view, such a contention is untenable for, it was not a case of the management to the incident as spoken to by the delinquent. It was, on the other hand, an attempt of the workman to show that the charge could not be true. It was more in the nature of alibi which a person who sets up such plea ought to have established. C.W.P. No.2921 of 1995 (O&M) -6- The production of any of the hospital records would have been wholly irrelevant for even if the management's case were to be believed even then the conductor could have gone to the hospital on the same date. It is not possible to accept the contention made on behalf of the workman that any prejudice was caused to him by not summoning the records from the hospital. 6. The third contention raised on behalf of the workman was that he had not been permitted to engage a legal practitioner/advocate for assisting him in the enquiry. The Enquiry Officer had himself observed that the Presenting Officer was not a legally trained officer himself and there was no need to provide the workman such a legal assistance. Instead of merely rejecting it, he had also passed an order in the course of the proceedings that it was open to the workman to apply to the manager and secure such a permission. According to learned Senior Counsel appearing for the petitioner, such a petition had been presented before the General Manager but he had not taken any decision on the petition. The learned counsel refers to the decision of the Hon'ble Supreme Court in The Board of Trustees of the Port of Bombay Vs. Dilipkumar Raghavendranath Nadkarni and others AIR 1983 SC 109 that if a request of an employee to be represented by a lawyer is refused, it could be assumed that there is denial of reasonable opportunity of hearing to employee. This observation of the Hon'ble Supreme Court was in the context of the employer being represented by legally trained officer at the enquiry. The same position does not arise in this case, as pointed out by the learned counsel appearing for the Corporation that in the departmental C.W.P. No.2921 of 1995 (O&M) -7- enquiry, there is no right to demand assistance of a lawyer. Learned counsel refers a decision of the Hon'ble Supreme Court in Chairman and Managing Director, Hindustan Teleprinters Ltd. Vs. M. Rajan Isaac 2005(3) RSJ 347 that there is no vested or an absolute right in the officer/employee/workman to demand the assistance of a lawyer unless the statutes/regulations/rules/standing orders recognized such a right. The Hon'ble Supreme Court observed that this right could be restricted, controlled or regulated by statutes/regulations/rules/ standing orders as the case may be. In my view, no serious prejudice could be shown to have been caused even by the state of indecision of the Manager to pass appropriate orders on the basis of the representation of the workman. It was even unnecessary for the Enquiry Officer to have referred the workman to the manager for taking a decision. He had already taken a decision that such a permission, he was not prepared to give and so far as the workman was concerned that concluded the issue. 7. The further submission on behalf of the workman was that the dockets pertaining to the Conductor had not been given although sought for by the workman through his notice dated 27.08.1988 before giving a reply to the chargesheet. The learned counsel appearing for the workman would point out that the dockets contained details as to the actual tickets with the respective numbers that he took from the depot, the tickets issued to passengers, the money collected on that day etc. and by the non-production of these records, he had been put to great hardship. This argument also, in my view, is wholly irrelevant for, a charge against the conduct to stick, in the manner that C.W.P. No.2921 of 1995 (O&M) -8- had been drafted against him, was an affirmative evidence that the Conductor did not hand over Way Bills and the Dockets pertaining to a Conductor and that he had issued old tickets to some of the passengers and that he had run away from the place without making himself accountable to the queries put to him by the inspection staff. The details in the dockets themselves had no relevance and an inference of embezzlement was possible through the fact that old tickets had been issued to some passengers and they had been handed over by the inspection staff along with the memo to the competent authority and they had also been produced before the Enquiry Officer at the time of enquiry. The non-production of the dockets as demanded by the workman had, therefore, no relevance at all. Two other contentions which had been taken were: one, the old tickets had not been produced and that there could not have been a case of embezzlement for issuance of old tickets when all the passengers from Chandigarh to Ludhiana were persons who had purchased the tickets in advance at Chandigarh itself and therefore, it would not have been possible for him to cause any misappropriation of funds. The contention that no old tickets had been purchased was clearly wrong and the enquiry file has been produced before Court and I have seen for myself that the old tickets had been produced before the Enquiry Officer. Even the contention that all the passengers in the bus had secured advance tickets at Chandigarh itself is also not correct as the learned counsel appearing for the Corporation points out that the workman himself did not have a consistent case with reference to the same. He had in one portion of his evidence states that he did not C.W.P. No.2921 of 1995 (O&M) -9- issue tickets but at yet another place, he asserts that he had issued as many as 25-30 tickets. It was nobody's contention that the bus did not admit passengers on the way or that only reserved passengers who had purchased the tickets in advance were allowed to travel in the bus. Therefore, the contention that there could not have been a case of embezzlement and he could not have issued tickets is falsified by his own evidence. 8. The case in all its facets had been properly examined by the Eqnuiry Officer and he had come to a correct conclusion which was accepted by the management. The Labour Court had also dealt with every one of the objection that had been taken by the workman and has come to a right conclusion. The writ petition challenging the order of the Labour Court has absolutely no merit and it is dismissed accordingly. There shall be, however, no direction as to costs. (K. KANNAN) JUDGE August 12, 2009 Pankaj*