CIVIL WRIT PETITION NO.13415 OF 2009 :{ 1 }: IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH DATE OF DECISION: JULY 27, 2010 Gurdial Singh .....Petitioner VERSUS Presiding Officer, Industrial Tribunal-cum-Labour Court, UT., Chandigarh and others ....Respondents CORAM:- HON'BLE MR.JUSTICE RANJIT SINGH 1. Whether Reporters of local papers may be allowed to see the judgement? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? PRESENT: Mr. Dinesh Kumar, Advocate, for the petitioner. Mr. Ravi Sodhi, Advocate, for respondent Nos.2 and 3. **** RANJIT SINGH, J. The petitioner, who is a Conductor in Chandigarh Transport Undertaking (CTU) has filed this writ petition to impugn the award passed by the Labour Court, Chandigarh, which has dismissed the reference of an industrial dispute referred to it and has upheld the order of punishment of stoppage of one increment with cumulative effect passed against the petitioner. During December 1997, the petitioner was conducting a CTU bus, when the same was checked in the vicinity of Jammu CIVIL WRIT PETITION NO.13415 OF 2009 :{ 2 }: Octroi and it was found that the petitioner had issued less ticket of Rs.2/- and non issue of tickets to four passengers for a sum of Rs.48/- and, thus, committed a fraud of Rs.156/-. The petitioner was served with a charge sheet, to which he submitted reply. The petitioner alleges that without considering his reply properly, enquiry was ordered. The witnesses, who were examined, admitted that the note given was for Rs.48/- but the report was made for fraud of Rs.156/-. No statement of passengers was recorded and no cash was checked. The witnesses also conceded that some tickets attached with the report were correctly punched. In his defence, the petitioner had examined Sh.Baldev Singh, a passenger. Driver of the bus had also sent his statement duly verified by the Lambardar of the village, disclosing that no passenger was found without ticket. On the basis of the evidence, the Enquiry Officer ultimately held that charge levelled against the petitioner was not proved. The operative part of the report dated 7.12.2000 is as under:- “After having gone through the inquiry proceedings, facts and circumstances, report of the checking staff/their statement/evidence, statement of defence witness, statement of the passengers, defence statement of Sh.Gurdial Singh C-252, the report of the checking staff and their note on the was bills is contradictory and seems to be fabricated, hence the management has been failed to prove the charges levelled against him. On the whole, the report made by the checking staff seems to be fabricated and baseless and benefits goes in favour of the CIVIL WRIT PETITION NO.13415 OF 2009 :{ 3 }: conduct (Sh.Gurdial Singh, C-252). Thus, the charges levelled against Sh.Gurdial Singh, C-252 vide memo 945/DT/CTU-I/98 dated 28.1.98 stand not proved. I record my findings accordingly.” The Disciplinary Authority did not accept the finding returned by the Enquiry Officer and recorded a note of dissent. As per the petitioner, this was without looking into the evidence and accordingly notice was served on the petitioner on 7.2.2001 to represent against the same. After receiving the reply from the petitioner, the Disciplinary Authority passed an order of stoppage of one increment with cumulative effect besides order directing that the salary of the petitioner be limited to the subsistence allowance for the period he had remained under suspension. Aggrieved against this action, the petitioner served a demand notice, which was ultimately referred to Labour Court for adjudication. The Labour Court answered the reference against the petitioner and has upheld the order of punishment. The petitioner has, thus, filed the present writ petition. Written statement has been filed stating that the punishing authority had passed the order after giving full and reasonable opportunity to the petitioner-workman. It is pointed out that the petitioner was on duty, when the bus was checked and it was found that the petitioner had defrauded a sum of Rs.156/- by not issuing tickets to the passengers. The petitioner had allegedly misbehaved with the checking staff by not opening the door of the bus for checking, which was opened by the passengers. Even during the course of submission, the counsel for the respondents would CIVIL WRIT PETITION NO.13415 OF 2009 :{ 4 }: submit that the documentary proof available in the form of unpunched tickets was enough to establish the charges. As was viewed by the Disciplinary Authority, it is urged by the counsel for the respondents, that the petitioner did not produce any evidence to establish that he did not commit any fraud. The counsel, thus, would plead for upholding the view of the Punishing Authority while it had disagreed with the finding returned by the Enquiry Officer. Though the Labour Court has found that there was no violation of principles of natural justice while holding enquiry and has accordingly justified the punishment awarded to the petitioner but learned counsel for the petitioner would refer to dissent note, which according to him, has not been considered in an appropriate manner by the Labour Court. The copy of the dissent note is annexed with the petition as Annexure P-8. As per the Disciplinary Authority, the Enquiry Officer had submitted a report merely on the basis of presumption and had not gone into the main case involved. As per the Disciplinary Authority, documentary proof of unpunched tickets was sufficient enough to establish the charge and, thus, the evidence given by one of the Inspector that he did not know the contents of the report was found to be having no meaning as the signed report was available. The Disciplinary Authority further observed that no evidence has been produced by the Conductor to establish that he had not committed any fraud. The Labour Court apparently has not considered the issue in right perspective. The petitioner had in his favour a report given by Enquiry Officer, exonerating him of the allegation made. The petitioner had examined a passenger in his defence. There was CIVIL WRIT PETITION NO.13415 OF 2009 :{ 5 }: contradiction found in the report of the checking staff and as per the finding returned by the Enquiry Officer, the report by Inspecting Staff seemed to be fabricated. The Disciplinary Authority was well within its right to differ with the finding returned by the Enquiry officer but was required and could be expected to give valid reasons for taking a different view. One of the Inspector even did not know the contents of the report. It would mean that said report could not be proved. Merely because he had signed the same would not mean that he stood by the contents of the report. The contents of the report were, thus, not properly proved. The observation by the Disciplinary Authority that the petitioner did not produce any evidence to show that he did not commit fraud would mean that the enquiry and the evidence was ignored by the Disciplinary Authority. The petitioner had not only produced a passenger but had also placed the statement of the Driver on record to show that no passenger was found without ticket. Thus, the dissent note was recorded, ignoring the evidence available on record. The dissent note also did not furnish sufficient information to the petitioner and also did not contain any valid reason for differing with the finding returned by the Enquiry Officer. The petitioner, thus, was denied fair and proper opportunity to defend himself. The petitioner was also put under burden to show his innocence whereas it was for the department to prove the allegation, as per the procedure prescribed under the Punishment and Appeal Rules. The petitioner, thus, apparently was not fairly treated while awarding this punishment, despite having been exonerated. The reasons given by the Disciplinary Authority while recording note of CIVIL WRIT PETITION NO.13415 OF 2009 :{ 6 }: dissent are just an ipsi dixit of the authority and are not on the basis of the record and evidence. The only justification given in support that the unpunched tickets were available as a documentary proof, is also not fully established as the evidence given by Nachhattar Singh PW would show that the witness had admitted that some tickets attached with the report were correctly punched. The note given was for Rs.48/- but the report was made for Rs.156/-. Pashora Singh PW conceded that he has no knowledge of the tickets and the tickets were collected by Nachhattar Singh. It is also in the evidence that unpunched tickets were taken forcibly. All these aspects have not been taken into consideration while recording a note of dissent, which has caused a serious prejudice to the case of the petitioner and would lead to violating the rights of the petitioner to defend properly and would vitiated the punishment awarded. The writ petition is accordingly allowed. The impugned award is set-aside. The petitioner would be entitled to all the consequential reliefs. July 27, 2010 ( RANJIT SINGH ) khurmi JUDGE