C.W.P. No.882 of 1988 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH **** C.W.P. No.882 of 1988 Date of Decision:09.12.2008 Sardari Lal .....Petitioner Vs. The Presiding Officer, Labour Court, Jalandhar and others .....Respondents CORAM:- HON'BLE MR. JUSTICE HARBANS LAL Present:- Mr. Pawan Kumar, Senior Advocate with Mr. Swapan Shorey, Advocate for the petitioner. Mr. Suvir Sehgal, Advocate for respondents No.3 and 4. **** JUDGMENT HARBANS LAL, J. This petition has been moved by Sardari Lal for quashing the award dated 13.4.1987 Annexure P.18, the inquiry report dated 30.9.1981 Annexure P.17, the termination order dated 20.7.1982 Annexure P.1 with a further direction to respondents No.1 and 2 to reinstate the petitioner with full back-wages, seniority benefits and all other consequential service benefits. The facts giving rise to this petition are that the petitioner was appointed as Daftri on 10.9.1962 by the Chairman, Managing Committee Mehar Chand Polytechnic C/o D.A.V. College Managing Committee, Chitra Gupta Road, New Delhi- respondent. He was appointed as Clerk on 1.11.1963. Since then, he had been working on the post of Clerk till 20.7.1982, when his services were illegally terminated on the basis of an C.W.P. No.882 of 1988 -2- illegal inquiry. In the month of October, 1978, Mr. B.L. Handoo, respondent No.3 was appointed as the Principal of Mehar Chand, Polytechnic College, Jalandhar City. He did not like the petitioner because of his support to the Union. This Principal started making efforts to get rid of him on one pretext or the other. The petitioner was transferred to Dayanand Junior Technical School, Jalandhar City on 14.9.1979. He was placed under suspension on 15.12.1979 by the aforesaid Principal, who was not the appointing authority without any reason or material on record. The Principal is subordinate to respondent No.2. On 4.8.1980, the petitioner was served with a charge- sheet containing the allegations concerning the year 1978 or prior thereto. The list of witnesses was not supplied to the petitioner. The above- mentioned Principal issued charge-sheet to the petitioner and passed the termination order. For the purpose of preparing a reply to the charge-sheet, the petitioner wanted to see the record relevant to the charges and the documents which were relied upon by the Principal. Shri Tek Chand (a retired Judge of this Court), a life Member of the DAV Management Committee was appointed as an Enquiry Officer whom the petitioner sent a letter to requesting him to direct the aforesaid Principal to supply the duplicate copies of the documents mentioned in support of allegations. The Enquiry Officer granted an opportunity to the petitioner to inspect the record and obtain copies or make his notes for submitting reply to the charge-sheet. The petitioner approached the Clerk of the Principal on 28.11.1980 to inspect the record, which was not shown to him. He immediately sent a recorded delivery letter to the Enquiry Officer that he has not been shown the record. The Enquiry Officer started making inquiry from 26.11.1980. That it appears from the award that the Enquiry Officer C.W.P. No.882 of 1988 -3- started inquiry after receipt of Ex.C.3 dated 20.3.1981, thus, the Enquiry Officer resumed his office even before his appointment as such. The petitioner submitted his reply to the charge-sheet on 4.12.1980 without an opportunity to either inspect the record or having the copies of the documents relied upon by the respondent- Management. The petitioner expressed complete lack of faith in the Enquiry Officer as he being a life Member of the DAV Management Committee onwards took a biased view favourable to the Managing Committee. On 10.2.1981, the petitioner appeared before the Enquiry Officer and moved an application requesting him to supply him or get him the copies of documents which are being relied upon by the Principal. The Enquiry Officer expressed his total inability in this behalf. On the same day, the petitioner moved two applications to the Enquiry Officer out of which, one was made for obtaining permission to engage the lawyer in the inquiry proceedings as the charges had been made complicated. Such permission was declined. The other one was moved for seeking permission to engage a person well versed in labour matters like the General Secretary of the Indian National Trade Union Congress, which was also rejected by the Enquiry Officer. Enquiry Officer continued with the inquiry, though the petitioner did not appear before him in protest as he was completely handicapped to defend himself. The petitioner was proceeded ex parte without following the due procedure. The Enquiry Officer submitted his report. The inquiry report reflects that the Enquiry Officer made personal comments on the petitioner and by proposed punishment overstepped his jurisdiction. The dispute was raised by the petitioner. The impugned award was passed. The services of the petitioner are governed by the Punjab Privately Managed Recognized C.W.P. No.882 of 1988 -4- Schools Employees (Security of Service) Act, 1979 and the rules framed thereunder, which are known as Punjab Privately Managed Recognized Schools Employees (Security of Service) Rules, 1981. The respondent institution is being given 95% aid by the Government of Punjab. Therefore, this Act has been extended to all the Polytechnics which are aided by the State of Punjab. The Labour Court has failed to take into consideration the fact that the petitioner was not supplied copies of the documents and the Enquiry Officer had started the inquiry before he was appointed as such vide Ex.C.3 and the petitioner was not permitted to engage a counsel or an expert of proceedings of inquiry and in these circumstances, the impugned award is liable to be set aside. In their joint written reply, respondents No.2 to 4 have inter- alia pleaded that it is a personal contract of service, not enforceable in law. The petitioner is guilty of misrepresentation and misstatement of facts. This writ petition suffers from latches having not been filed with promptitude. The termination of service is an internal management, in which no other agency can interfere. Lastly, it has been prayed that this petition may be dismissed. On being raised industrial dispute, the matter was referred to the Labour Court, Jalandhar. After hearing the respective representatives of the parties and examining the evidence, the learned Presiding Officer, Labour Court, Jalandhar held that the termination of the services of the workman was justified and in order. Feeling aggrieved therewith, the petitioner has preferred this petition. None has come forward to argue on behalf of respondent No.2- Management. C.W.P. No.882 of 1988 -5- I have heard the learned counsel for the petitioner as well as learned counsel for respondents No.3 and 4, besides perusing the findings returned by the learned Presiding Officer, Labour Court with due care and circumspection. Mr. Pawan Kumar, Senior Advocate appearing on behalf of the petitioner urged with great eloquence that before the suspension of the petitioner- workman, he was transferred to Dayanand Junior Technical School, which is managed and administered by the same Management and this school is getting 95% aid from the government. He was working in this school, when his services were terminated vide order dated 20.7.1982. That being so, by no stretch of imagination, it could be said that Mehar Chand Polytechnic is being managed and administered by any minority community. The Government aided schools and institutions are governed under the provisions of the Punjab Aided Schools (Security of Service) Act, 1969, which reveal that the services of an employee of an aided school cannot be terminated without conducting proper inquiry against him and receiving the approval of the Deputy Commissioner of the District. The Enquiry Officer stated in his chief examination before the Labour Court that he received letter No.8879 dated 30.3.1981 from Shri. B.L. Handoo which is Ex.C.3 and he conducted inquiry on receipt of this letter. Further in his cross- examination, he reiterated that he started inquiry on receipt of communication Ex.C.3. A perusal of the inquiry proceedings clearly show that the Enquiry Officer started the inquiry proceedings on 26.11.1980. The minutes recorded by the Enquiry Officer on 26.11.1980 show that the entire record was placed at the disposal of the Enquiry Officer and after going through the same, he found that the reply to the charge-sheet was not on the C.W.P. No.882 of 1988 -6- file and he advised the workman to send reply of the charge-sheet to the Management by 5.12.1980 and the next date for holding inquiry was fixed as 9.12.1980. The Enquiry Officer recorded evidence of three witnesses, i.e., PW1 to PW3 on 10.02.1981, PW4 on 26.2.1981, PW5 to PW7 on 11.3.1981. Obviously, he started the inquiry before 30.3.1981 without any authority and hence the same stands vitiated. The Inquiry Officer in his report has clearly mentioned that the workman repeatedly requested to be represented in the inquiry by a lawyer or Union representative, but his request was rejected by him on 10.2.1981. The Inquiry Officer is a very senior retired Judge of this High Court. It is admitted by him that the Management had not appointed any Presenting or Prosecuting Officer to conduct the case on behalf of the Management. The refusal to allow the petitioner to be represented through a lawyer was illegal and it amounted to denial of opportunity before properly defended and on this score too the inquiry is vitiated. He made repeated requests for the supply of copies of the documents on the basis of which he was charge-sheeted. The Principal of the institution as well as the Eqquiry Officer refused to supply the same and asked him to inspect such documents. A perusal of the list of documents which runs into 6 pages would show that there were more than 100 documents. It is humanely impossible to go through the same and to remember their contents. When the workman went to examine the documents, he was not allowed to inspect the same under the pretext that the Office Superintendent was not available to show the documents. The workman wrote a letter to the Principal in this regard and a copy of the same was placed on the Court file. Thus, he was denied the most essential opportunity to defend himself in the domestic inquiry. C.W.P. No.882 of 1988 -7- As per the inquiry report, the workman was suspended on 15.12.1979 by the Principal, who is not his appointing authority. He was also charge-sheeted by the Principal on 4.12.1980, i.e., after about an year of his suspension. There is nothing on the record to show that the Principal was authorised to suspend the workman or to charge-sheet him. Had the allegations been verily subsisting against the workman at the relevant time, the Management would not have taken about an year to serve charge-sheet to the workman after his suspension. A glance through the allegations levelled against him would reveal that the same spreads over a period of 7 years right from 1971 to 1978. After placing the workman under suspension, the Management started digging out and creating allegations against him. After taking the undertaking from him, he was punished by putting back his increment for one year vide order dated 19.10.1978. As such, he could not be punished for the same allegations again. The inquiry was started without considering the reply of the workman to the charge- sheet, in derogation of rules. It is strange that in spite of serious allegations levelled by the workman against the impartiality of the Inquiry Officer, the latter preferred to conduct inquiry against a Clerk. To add further to it, while submitting his report, the Enquiry Officer exceeded the limit of his function and went to the extent of recommending dismissal of the workman from service. The workman even went to the extent that in case, the Enquiry Officer was not to be changed, then Mr. S.P. Luthar, Secretary of the Managing Committee be deputed to sit as observer to see that that the inquiry is being conducted in a fair and proper manner. But this request was also turned down without assigning any reason. It is in these circumstances that the workman was left with no alternative except to refrain from C.W.P. No.882 of 1988 -8- participating in the inquiry proceedings, which were conducted against the well-settled principles of natural justice and law. The Enquiry Officer acted as a biased person and against the canons of natural justice by performing the duties of Presenting and Prosecuting Officer as well which palpably would vitiate the entire inquiry proceedings. Lastly, it has been submitted that the termination of the services of the workman on the basis of this inquiry report is nothing more than a farce and is bad in law. He has sought to place reliance upon the observations rendered in re: State of Uttaranchal and others v. Kharak Singh, (2008) 8 Supreme Court Cases 236; State of Punjab v. Sampuran Singh, (2005) 1 Recent Services Judgments 192; South Bengal State Transport Corporation v. Sapan Kumar Mitra and others, (2006) 2 Supreme Court Cases 584 and D.A.V. College Managing Committee v. Dr. S.K. Sood, 1999(1) Service Cases Today 230. Mr. Suvir Sehgal, Advocate representing respondents No.3 and 4 countered these arguments by urging that the Enquiry Officer was authorised vide Ex.C.3 to conduct inquiry and as regards the denial of the assistance of a co-workman or a lawyer, the workman was not pitted against any legally trained mind, who would have worked as a Presenting Officer. He further argued that it has nowhere been pointed out as to copies of which documents were not supplied. Furthermore, the workman was allowed to inspect the documents and this apart, he has not shown as to what prejudice has been occasioned to him due to non supply of copies of the documents. The non-participation of the workman in the inquiry proceedings is indicative of his defiant attitude and that being so, now he cannot be allowed to raise a plea that he has not been given full and proper C.W.P. No.882 of 1988 -9- opportunity to defend himself. Lastly, he argued that the inquiry has been conducted in a fair and legal manner and sequelly, no holes can be picked therein. I have well considered the rival contentions. There is no gainsaying the fact that the petitioner was appointed as Daftri on 10.9.1962 by respondent No.2. Later on, he was appointed as Clerk on 1.11.1963 by the same respondent. He was transferred to Dayanand Junior Technical School, Jalandhar City on 14.9.1979. In paragraph No.18 on merits of the written reply filed on behalf of respondents No.2 to 4 to this writ petition, it has been admitted that the institute is receiving grant-in-aid to the tune of 95% deficit from the State. It is a clincher towards the fact that respondent No.2 is a State-aided institution. The Managing Committee of the aforesaid school being the same, the Punjab Privately Managed Recognised School Employees (Security of Service) Rules, 1981 apply to the employees of the afore- mentioned school. On the analogy of the observations rendered in re: D.A.V. College Managing Committee vs. Dr. S.K. Sood (supra), the Punjab Privately Managed Recognised Schools Employees (Security of Service) Rules, 1981 govern the employees of the above referred school. Rule 2(c) of these Rules lays down that “Punishing Authority” means the managing committee or any person otherwise competent to impose on an employee any of the penalties specified in rule 16. Rule 13 ibid contemplates that the appointing authority or any other authority empowered by it in this behalf, may place an employee under suspension. Herein, the workman was placed under suspension vide Annexure P.5 an order dated 15.12.1979. The relevant para of it reads in the terms “Now, C.W.P. No.882 of 1988 -10- therefore, the undersigned (referring the Principal, Mehar Chand Polytechnic Jalandhar) in exercise of powers conferred by the Managing Committee, Mehar Chand Polytechnic, hereby places the said Shri Sardari Lal (referring to the petitioner) under suspension with immediate effect.” Obviously, the Principal by claiming himself to have been empowered by the Managing Committee, placed the workman Sardari Lal under suspension. The record is quite barren to show that he was authorised by the Managing Committee to place the workman under suspension. In the absence of the resolution or the letter, vide which he was authorised to exercise the powers of the Managing Committee, it would be begging the question to assume so. Thus, Rule 13 ibid had been given a go by. It connotes that the petitioner was not placed under suspension by a competent authority, i.e., the Managing Committee or any other authority empowered by it in this behalf. Further as transpires from Annexure P.6, the articles of charge were also served upon the workman by the Principal. Rule 17 ibid reads as under:- “17. “Procedure for imposing penalties. – [Sections 5, 6 and 15]. - (1) Whenever the punishing authority is of opinion that there are grounds for inquiring into the truth of any imputation of misconduct or misbehaviour against an employee, it may itself inquire into or appoint under this rule an authority to inquire into the truth thereof.” Rule 17(3) ibid reads as under:- “(3) The punishing authority shall deliver or cause to be delivered to the employee a copy of the articles of charge, the statement of the imputations of misconduct C.W.P. No.882 of 1988 -11- or misbehaviour and a list of documents and witnesses by which or whom each article of charge is proposed to be sustained and shall require the employee to submit within fifteen days a written statement of his defence.” Section 17(4) ibid reads “the employee may, on his written request, be permitted to engage a legal practitioner to defend him, and to inspect or take extracts from the records, pertaining to the case for the purpose of preparing a written statement.” The imputation of misconduct or misbehaviour having not been served by the Managing Committee itself rather by the Principal who as per record was not authorised to do so, Rule 17(1) and (3) ibid, have been utterly violated. There is also nothing on the record to show that the Managing Committee had taken the decision not to inquire into the truth of any imputation of misconduct or misbehaviour against the workman itself or that it had authorised someone, if so, whom. As per Rule 17(3), the Punishing Authority was obligated to supply the copy of witnesses by whom the articles of charge were to be proved. Such copy does not seem to have been supplied to the workman, which clearly indicates that the Managing Committee acted in utter derogation of Rule 17(3) ibid. As is borne out from the record from time to time, the workman requested the Enquiry Officer to permit him to engage a lawyer to defend him, but his request was never accepted. Furthermore when he approached the authorities to inspect the records pertaining to the case for preparing his written statement, he was not allowed to have access to the same. Thus, axiomatically, Rule 17(4) ibid has been thrown to the wind. The workman being fed up ultimately stopped participating in the inquiry proceedings. C.W.P. No.882 of 1988 -12- The articles of charge were not personally served upon the workman. In re: Sampuran Singh (supra), the Department was assisted by a law graduate, whereas the plaintiff being a mere layman himself was engaged in defending his case. It was held that the inquiry proceedings had not been conducted properly, inasmuch as, reasonable opportunity had not been granted to the plaintiff to defend his case and the inquiry proceedings stood vitiated. Here in this case, needless to say, the Inquiry Officer was a law graduate. The Presenting Officer was not appointed. It is thus inferable that the Inquiry Officer also played the role of Presenting Officer. Admittedly, the workman was appointed as a Daftri and later on, he was appointed as Clerk. The workman being from the lower echelons of service, it was obligatory upon the Enquiry Officer to permit the workman to engage a legal practitioner in adherence to Rule 17(4) ibid. For denial of the assistance of a legal practitioner, he has been prejudiced. In the absence of assistance of a legal practitioner or the leader asked for, the could not cross- examine the witnesses incisively. In Annexure P.13, the order passed by the Enquiry Officer, it has been mentioned that he (referring to the workman) has presented an application dated 10.2.1981 on the subject “Engagement of a lawyer in the inquiry proceeding”. He has requested that he should be allowed to engage a lawyer for assisting him and guiding him in the inquiry. This is an inquiry which is of a domestic nature. I cannot say anyway to allow either the respondent or the other party to be represented by a lawyer. Thus, equivocally, the workman's request to engage a lawyer was declined regardless to Rule 17(4) ibid. In this Annexure it has also been mentioned that after the disposal of the above application, the respondent has presented another type of application on the subject “Engagement of labour leader in C.W.P. No.882 of 1988 -13- the inquiry proceedings.” In this application, he has requested for services of Labour Leader, i.e., INTUC, General Secretary for assistance and guidance. In respect of this request, he is at liberty to seek advise and guidance from anybody, whom he considered to be in a position to help him. But no such person can be allowed to appear in the inquiry proceedings and to represent him as a attorney or as a lawyer. Thus, this request of the workman was declined in candid terms by the Enquiry Officer. It is also in this annexure that a third application dated 10.2.1981 has also been represented by the respondent on the subject “Copies of documents on which the prosecution basis its reliance”. In this application, he has asked that he be supplied copies of documents on which the prosecution places its reliance adding “So that there may not be any addition or alteration in the record connected with the charges and the copy of the statement of the witnesses recorded against him.” It is further mentioned that he (workman) has not availed himself of this opportunity to inspect the documents despite the fact that this opportunity was given to him. Thus, this prayer was also declined. In re: Sapan Kumar Mitra and others (supra), it has been observed that “On the question whether copies of the documents relied on by the inquiry officer and the disciplinary authority must be served on Respondent No.1 before passing any order of removal from service, it is no doubt true that such order of punishment, ought not to be passed without supplying the copies of the documents to Respondent No.1.” It is further observed that “It cannot be disputed that serious prejudice would be caused to Respondent No.1, if the documents on which reliance was placed by the authorities in removing him from service were not supplied to him. This will cause denial of reasonable opportunity of C.W.P. No.882 of 1988 -14- hearing to him.” Annexure P.14 is the copy of the application dated 10.2.1981 vide which the workman had requested to allow him the services of a lawyer for assistance and guidance. Ex.P.15 is a copy of application dated 10.2.1981 vide which the workman had sought the assistance of the above-mentioned Labour Leader. Anexure P.16 is the document vide which the reports of the workman were considered and it was resolved that the Enquiry Officer be not changed and that in case Sardari Lal (workman) does not participate in the inquiry proceedings, ex parte decision be taken against him. Further at the fag end of the inquiry report Annexure P.17 dated 30.9.1981, it has been observed as under:- “In my view, the respondent deserves to be dismissed from service by the Management but after due notice to him to show cause against the proposed dismissal from my above conclusion and findings are accepted and after hearing his explanation, if any, on the measurement of punishment.” Ostensibly, the Enquiry Officer suggested