C.W.P.No.4104 of 2010 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P.No.4104 of 2010 Date of Decision:- 09.03.2010 Mehar Chand ....Petitioner(s) vs. Presiding Officer etc. ....Respondent(s) *** CORAM:- HON'BLE MR.JUSTICE AUGUSTINE GEORGE MASIH *** Present:- Mr.R.S.Mittal, Sr. Advocate with Mr.Atul Gaur, Advocate, for the petitioner. *** AUGUSTINE GEORGE MASIH, J. Through this writ petition, the petitioner-workman, who was appointed as a Conductor in the Haryana Roadways, Chandigarh, on 7.10.1982, has challenged the Award dated 23.10.2009 (Annexure P-4) passed by the Labour Court-II, Faridabad vide which the reference has been answered against him thereby holding that the termination of his services by the respondent-Management vide order dated 13.5.1997 was in accordance with law and, therefore, he was not held entitled to any relief as claimed by him. Briefly, the facts of the case are that after the appointment of the petitioner as Conductor with the Haryana Roadways, Chandigarh on 7.10.1982 he was transferred to Faridabad Depot in the year 1991. He continued to work there. During the checking of the way bills, an embezzlement of Rs.600/- in one way bill was found wherein cuttings had C.W.P.No.4104 of 2010 -2- been made and it was detected that 30 tickets of the denomination of Rs.20/- each were shown to have been entered in two way bills leading to an embezzlement of Rs.600/- in one way bill. The report as submitted by Abdul Majid, Inspector Haryana Roadways, Faridabad MW-2, to the Traffic Manager, who forwarded the same to the General Manager Haryana Roadways, Faridabad. The General Manager on the basis thereof issued a charge-sheet to the petitioner-workman vide letter dated 24.9.1996 (Exhibit M-1) along with the list of witnesses (Exhibit M-3) which was duly acknowledged by the workman vide Exhibit M-4 to which he submitted reply (Exhibit M-5) but the same was not found satisfactory. Accordingly, Traffic Manager, Faridabad was appointed as an Inquiry Officer vide letter dated 5.12.1996 (Exhibit M-6), who conducted enquiry against the petitioner-workman wherein he took part in toto. He produced his own evidence and also cross-examined the witnesses who appeared during the enquiry proceedings on behalf of the Management. On conclusion of the enquiry, the Inquiry officer submitted his report, Exhibit M-7. A show cause notice dated 17.1.1997, Exhibit M-8, was issued to the petitioner- workman which was duly received by him. As per the acknowledgment Exhibit M-9 to this show cause notice, the petitioner-workman submitted his reply Exhibit M-10. He claimed personal hearing which was also given to him by the General Manager, Haryana Roadways, Faridabad vide letter dated 10.4.1997 Exhibit M-11. The petitioner-workman appeared in person on 29.4.1997 before the Punishing Authority. On consideration of the enquiry report, reply to the show cause notice and the submissions made by the workman in person, the Punishing Authority passed order dated 13.5.1997 (Exhibit M-12) ordering termination of his services. The C.W.P.No.4104 of 2010 -3- petitioner preferred a Statutory Appeal before the Transport Commissioner, Haryana, Chandigarh where again after hearing him in person, his appeal was dismissed vide order dated 10.12.1997 Exhibit P-13. The petitioner preferred a second appeal to the Secretary, Transport, Haryana but the same also met the same fate and was dismissed on 11.2.1999. Thereafter, the petitioner preferred a civil suit for permanent injunction in the Civil Court, Faridabad, for restraining the respondents from terminating his services but the said suit also came to be dismissed by the Civil Court. Thereafter the petitioner preferred a demand notice and when the conciliation proceedings failed, reference was made to the Labour Court. The Labour Court while deciding the reference held that the domestic enquiry conducted against the workman by the Management was in accordance with law and the termination of his services was also legal and vide the impugned Award dated 23.10.2009 ( Annexure P-4) thus, rejected the reference of the petitioner-workman leading to the filing of the present writ petition. Counsel for the petitioner-workman submits that there has been violation of the principles of natural justice. He contends that the complainant and the Inquiry Officer are the same and, therefore, the right of the petitioner for holding of an independent and fair enquiry stands violated as it is a settled proposition of law that no person can be a Judge of his own cause. He contends that the complaint was filed by the Traffic Manager and the General Manager had appointed the Traffic Manager as an Inquiry Officer. Counsel, on this basis, contends that the enquiry proceedings held against the petitioner-workman cannot be sustained. His further contention is that the complaint with regard to the tampering of the way-bills and the C.W.P.No.4104 of 2010 -4- embezzlement of an amount of Rs.600/- was filed after a period of two months and that too on the ground that there was cutting in the way bills. He contends that after the petitioner had deposited the way bills with the respondent-Management, the same were in the exclusive possession of the Management and it is only then that tampering with the way bills was done by some official with a mala fide intention and, thus, the petitioner cannot be held liable for the embezzlement. His further contention is that fresh way bills are only issued on the deposit of the old way bills and at the time of the submission of the way bills by the petitioner-workman, no cutting was found by the official who had received the cash and the way bills. His further submission is that the Labour Court has wrongly refused to exercise its powers under Section 11-A of the Act while not interfering with the quantum of punishment imposed upon the petitioner by the respondent- Management. He contends that the allegation is only with regard to an embezzlement of Rs.600/- and, therefore, the order of termination passed against the petitioner was disproportionate to the misconduct alleged to have been committed by him. He, on this basis, submits that the impugned Award dated 23.10.2009 cannot be sustained and deserves to be set aside. I have heard counsel for the petitioner and gone through the records of the case. There can be no dispute with regard to the submission made by the counsel for the petitioner that the principles of natural justice are required to be followed while holding a departmental enquiry. It is also true that no one can be a Judge of his own cause and if the Traffic Manager was the complainant and he was appointed as an Inquiry Officer as well, the enquiry so held by the Traffic Manager cannot pass the test of principles of natural justice. A perusal of the record indicates that the way bills were C.W.P.No.4104 of 2010 -5- examined by MW-2 Abdul Majid. He submitted his report, Exhibit M-15, to the Traffic Manager who further forwarded the same to the General Manager, Haryana Roadways, Faridabad-the punishing Authority. The complainant, thus, was not the Traffic Manager but was MW-2 Abdul Majid. The complaint which was in the form of a report by the Inspector, had to be submitted to his immediate officer who was the Traffic Manager. The Traffic Manager, on receipt of the same, forwarded it to the General Manager, Haryana Roadways, Faridabad. It is not the case of the petitioner- workman that the Traffic Manager had commented upon the said report or recommended some action thereon to the General Manager. What has been done by the Traffic Manager is mere forwarding of the report to the General Manager. The competent Authority to initiate action against the petitioner- workman was the General Manager, Haryana Roadways, Faridabad, who on consideration of the report, Exhibit M-15, submitted by Abdul Majid, Inspector, proceeded to charge-sheet the petitioner. On consideration of the reply submitted by the petitioner-workman and finding it unsatisfactory, General Manager, Haryana Roadways, Faridabad appointed the Traffic Manager as an Inquiry Officer, who proceed to hold an enquiry against the petitioner. It would not be out of way to mention here that neither at the time of initiation of the enquiry by the General Manager, on appointment of the Traffic Manager as the Inquiry officer nor during the enquiry proceedings, any objection was taken by the petitioner with regard to the appointment of the Traffic Manager as the Inquiry Officer. There is nothing on the record to suggest that the Traffic Manager was either biased or had not proceeded to hold an enquiry in a fair and proper manner. On the basis of the evidence led by the parties before the Labour Court, the Labour Court C.W.P.No.4104 of 2010 -6- had on consideration of the evidence, held the domestic enquiry to be in accordance with law and, thus, did not find any illegality, either procedural or legal. In this view of the matter, the contention as raised by the counsel for the petitioner with regard to violation of the principles of natural justice, cannot be accepted. The contention of the counsel for the petitioner with regard to the tempering of the way bills by some official when the same were in possession of the Management, also does not have any basis. Firstly, the Inquiry Officer and thereafter the Labour Court proceeded to evaluate the evidence so led by the parties and have come to a conclusion that there was no such tempering with the way bill wherein cuttings were found. Thus, no interference on this aspect as well is called for in exercise of the writ jurisdiction. Non-exercise of powers by the Labour Court as per the jurisdiction conferred upon it under Section 11-A of the Act also cannot be faulted with. Where a charge of embezzlement has been duly proved against an employee in a departmental enquiry which has been held in accordance with law, no lenient view is required to be taken. Exercise of powers under Section 11-A of the Act to interfere with the quantum of punishment awarded to the employee is an exceptional power which cannot be exercised at the whims and fancies by the Labour Court. This power can be exercised only in exceptional circumstances where the punishment imposed is shockingly disproportionate to the misconduct of embezzlement proved against the petitioner in accordance with law. Present is a case where misconduct of embezzlement for an amount of Rs.600/- stands proved against the petitioner-workman. Public money which has been C.W.P.No.4104 of 2010 -7- embezzled by the petitioner-workman itself dis-entitles him to any lenient view where the interference on the quantum of punishment awarded by the employer to a delinquent employee can be made by the Court. The petitioner is a Conductor who has to deal in money as he has to disburse tickets to the passengers travelling by bus. Loss of faith is apparent in such cases where lessor punishment if substituted by the Courts in exercise of power under Section 11-A of the Act where an order of termination has been passed by the Competent Authority, would not be justified or called for. Finding no merit in the contentions raised by the counsel for the petitioner, the present writ petition deserves to be dismissed. Ordered accordingly. March 09, 2010 ( AUGUSTINE GEORGE MASIH ) poonam JUDGE