431 9e2 t 1 CWP N0e17787of2008 1 INTHE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CWP NO17787 of 2008 DATE OF DECISION16 2009 r The General ManagerHaryanaRoadwaysRohtak 0 PETITIONER 0 VERSUS Sh Balbir singhMohar slo Sh DalipSinghand another Z 2 RESPONDENTS r I c8 CORAMHONBLE MR JUSTICE AUGUSTINE GEORGE MASIH W7 Z PRESENTMr DNalw AddI AG Haryana for the petitioner e Mr Surinder Deswal Advocate for respondentNol It l AUGUSTINE GEORGE MASIH J 1 In the presentwrit petitionthe challengeis to the award dated 11 12008 64nnexureP91 passedby the IndustrialTribunallmeLabour Court Rohtak wherein the reference has been answered in favour of the workman on thegroundthat the enquiryheld againstthe workman was not fair and proper and thereafter on an opportunity givento the Management Rashmi 2014.02.22 10:55 Sahil Soni 2016.03.21 12:27 I attest to the accuracy and integrity of this document 432 t CWP No17787of2008 2 the Managementhas failed to producethe records to justifythe order of dismissal of the workman BrieOythe facts which are essentiai to understand the matter in questionare that the workmanwas appointed as a Conductor on regular m basis on selection by the Services Selection Board HaryanaChandigarh r on 171 1990with the HaryanaRoadwaysat Rohtak The bus which he 0 U was conductingon 06101996 was on route of Kota to Rohtakt was checked at Tonk at 00 AM by Shri Laxmi Kant Inspectorand Shri 0 Randhir Singh DeputyInspectorwho formed the checkingteam Ten passengerswho were travellingfrom Kota to Jaipurand from whom the Z workman had chargedRs each were not issued tickets thus misw 2 r appropaUngan amount of Rs40 Five passengers who were I travellingfrom Bundi to Jaipur from whom he had chargedRs per c8 passenger were not issued tickets thus Rs 2701 Similarlyten passengers were found without tickets travelling from Bundi W2 Z to Tonk from whom allegedlyR 291 per passenger were chargedbythe workman which wouid amount to of Rs 2901 and further were allegedlyfound without tickets who were travelling from Devli to Jaipur who had been chargedRs 411eeach amounting to Rs 1641 and ten passengers travellingfrom Devli to Tonk who were charged Rs161 per passenger were not given tickets thus Rsl 601 Two passengers who were travellingfrom Devli to Jaipur were issued old tickets worth Rs 801 while theywere chargedRs 821 bythe workmar The total embezziement comes to Rs 16041 bythe workman who was conductingthe bus The checkingstaH demanded the way bill and the unpunchedtickets which were refused by the workman because of which the checkingstaff could not make the entry Sahil Soni 2016.03.21 12:27 I attest to the accuracy and integrity of this document 433 1 CWP No 17787 of2008 3 1 of the same in the waybili He in thisway misbehavedwith the checking staff and accordinglya chargesheetwas issued to the workman on 091996 underRuie 70f the HaryanaCivil Services Ounishmentand AppeallRuies 1987 and thereafter the workman was put under 1 on 01 2 1996 The workman Oled replyto the chargeleet r therein that the checkingstaff was enemical towards him and they 0 S had demanded tnoney from the petitionerFindingthe replyto the charge sheet not satisfactoryan Enquiry Officer was appointedwho enquiredinto 0 the chargesIevelled againstthe workman On completionof the enquiry he submittedhis report holdinghim guiltyof the chargesIevelled against Z him which was an exoarte enquiryand on the basis of the findings 2 ra2 recorded bythe EnquiryOfficer the services of the workman were terminated c25 The workman raised an industrialdisputeand the same was referred to the LabourCourt for adjudicationOn the basis of the claim 7 Z statementof the workman issues were framed Issue No 14I was with Om to the questionWhether the Management had gotconducted a fair andproper enquiryagainstthe petitioner7The Labour Court took it as a preliminary issue and decided the same in favour of the workman vide order dated 18032004 hoidingtherein that the enquiryhas not been conductedbythe EnquiryOfficer in a fair and proper manner Itwould notbe out of way to mentionhere that the enquiryfile was before the Labour Court by the Managementand the documentstherein stood provedand were exhibited before the Labour Cour Sh PehladSingh Clerk HaryanaRoadwaysRohtak appearedas MV and the records of the enquiryand SI Om Pal Singh TanwarAccounts Offlcer HaryanaChandigarhEnquiryOmcer had Sahil Soni 2016.03.21 12:27 I attest to the accuracy and integrity of this document 434 V 6 1 CWP Noe 17787 of2008 4 appearedbefore the Labour Court as MWe1 and provedthe enquiry proceedingsand proveddocuments thereon before the Labour Court which have been exhibited Thereafter the Managementwas given an opportunityto justifyits order of termination in the Iightof the fact that the enquiry 02 proceedingshave been heid to be vitiated vide order dated 18032004 0 t passedbythe Labour Court Sh Laxmi Kant Retired inspectorHaryana RoadwaysRohtak who was one of the members of the checkingstaff 0 appeared before the Labour Court as MW8 before the Labour Court and provedhis complaintExvl4 6 wherein he had giventhe details about the Z n on ssu a nce of the tickets to the passengers as has been enumerated C above and has also stated that total amount embezzled by the workman comesto Rs 16041 MW4 Mehatab Singh Driver HaryanaRoadways c8 Rohtak has appearedbefore the Labour Court and has stated that he couid not say whether the Conductor vorkmanlhas committed any 47 Z embezziement However he admittedhis signatures on his statement Ex Qm M5 made before the EnquityOfficer but further stated that he had signed thereon without readingthe same He further stated that originalrecord could not be produced as it was damagedand therefore no adverse inference could be drawn againstthe Management The workman appearedas INW2 and reiterated his version as he had made in the claim statement He has examined WW RajeshArora Clerk Haryana RoadwaysRohtak who had stated that he cannot producethe records relatingto the petitionerand in crosseexamination he admitted that the same cannot be producedas the record stood damaged The Labour Court on the assessment of the evidence producedbythe partiescame to the conclusion that no record pertaining to the enquiryhas been produced to provethe chargesexceptcomplaintExM6 made bySh Laxmi Kant Sahil Soni 2016.03.21 12:27 I attest to the accuracy and integrity of this document 435 41 CWP No 17787of2008 5 Retired inspector MW3 and in the absence of the records as well asin the absence of the statement of the passengers and the checkingstaH the EnquiryOfficer had no basis to come to the conclusion that the allegations stood provedagainstthe workman and therefore the order of termination r IS not sustainabie On this basis the reinstatementof the workman has 0 U been ordered on his previouspostwith continuity of service and 500Ioback I wagesfrom the date of demand notice e 20041 999 0 Counsel for the petitionercontends that the Labour Court has totallyoverlooked the provisionsof Section 114 of the IndustrialDisputes Z Act4e contends that once an opportunity was givento justifythe order C passedby the Management The enquiryfile was available on record of the Labour Cour Pehlad Singh Clerk HaryanaRoadwaysRohtak has d5 appearedas MW2 and producedthe record of the enquiryproceedings before the Labour Couit Further Sh Om PaI SinghTanwar Accounts n7 Z Officer Haryanawho was the EnquiryOfficer had appearedas MW and has provedthe enquiryproceedingsand the documents thereon which stood exhibited before the Labour Court and thereafter MW Sh Laxmi Kant Retired InspectorHaryanaRoadwaysRohtak who was the member of the checkingstaff and on whose report Exvle1 6 departmental proceedings were initiated againstthe workman appearedand deposed about the incidence All these go to show that the records were available before the Labour Court Further MW4 Mehatab Singh Driver Haryana RoadwaysRohtak had also appearedand provedhis statement before the EnquiryOfficer as Ex M5 althoughhe had denied readingthe same before puttinghis signatures on the statement but he does not denythe contentsof the statement givenbyhim He further contends that one of 1 Sahil Soni 2016.03.21 12:27 I attest to the accuracy and integrity of this document 436 CWP No 17787 of2008 6 the basic groundon which the Labour Court has concluded that the order of terminationis not justifiedis that the statementsof passengers have not been recorded before the EnquiryOfficer and before the Coun which cannot be sustained as the Honble SupremeCourt in the case of State of 1 HaryanaVS Rattan Singh AlR 1977 SC 1512 has held that strict RuIes C of Evidence are not applicableto the domestic enquiryarid even hearsay 0 evidence is permissibleand can be taken into consideration duringa departmental enquiry He submits that this is not a case of no evidence tD where the Labour Court could have interferedand come to a conclusion that the order of termination is not justifiedin the Iightof the evidence Z Produced bYthe ManagementHe thus contends that award as givenby 2 r the Labour Court cannot be sustained1e further contends that as per I Proviso to Section 114 of the IndustrialDisputesAct which states that the c8 Labour Court shall relyonlyon the material on record and shall not take anyfresh evidence in relationto the matter has been totallyoverlooked by 7 Z the Labour Court while givinga findingthat no records penainingto the r enquiryhave been producedto provethe chargeagainstthe wokman On the other hand counsel for the respondents contends that the Labour Court vide its order dated 18032004 has come to a conclusion that the enquiryheld againstthe workman was not fair and proper The evidence therefore Ied before the Labour Court earlier to this order passed by the Labour Court 1e 18032004 cannot be subsequentlytaken into consideration by the Labour Coun whiie proceedingto decide the matter with regard to the justificationof termination of the employee It is only the subsequentevidence which IS Iedbythe partieswhich has to be taken intoconsiderationfor justifying the order He submitsthat onlyLaxmi Kant Retired Inspectorhas appeared Sahil Soni 2016.03.21 12:27 I attest to the accuracy and integrity of this document 437 4 9 CWP No 17787 of2008 7 rl as MW and has provedhis complaintEx Me16 and Mehatab Sngh Driver HaryanaRoadwaysRohtak MW4 has provedhis statement Ex M5 before the EnquiryOfficer No other evidence can be Iooked into by the Labour Cour He on this basis contends that the award passedby 1 the Labour Court dated 11 12008 is in accordance with Iaw and does not C4 call for any interferencebythis Court 0 have heard the counsel for the partiesand have gone I throughthe records of the case with theirable assistance 0 The questionwhich needs to be considered and decided by this Court is whether the records pertaining to the enquiryproceeclgs Z which have been producedand have been provedbefore the Labour Coun 2 rr duringthe proceedingswhile decidingan issue which was treated as a preliminaryissue and decided in favour of the workman could be c8 relied upon while decidingother issues7 a2 The Labour Court framed thefollowing issues mm Z 11 Whether the terminationof services of Sh BaIbirSingh is justifiedand in order2 If not to what relief he is entitled7 l mAlWhether the Management has gotconducted a fair and properenquiryagainstthe petitioner7 OPM 21 Whether the workman has no cause of action and Iocus standi to file the presentclaim statement2OPM 31 VVhether this Courl has no jurisdiction to decide this reference2 41 Relief Issue No 14 was treated as a preliminary issue Both the Sahil Soni 2016.03.21 12:27 I attest to the accuracy and integrity of this document 438 m CWP Noe17787 of2008 8 partiesIedtheir evidence on this issue On the basis of the pleadingsand the evidence producedthe Labour Court vide its order dated 1 032004 decided the same in favour of the workman and againstthe Management 1 holdingthat the enquinjhas not been conducted fairlyand properlybythe C ManagementDuringthese proceedingsbefore the LaboUr Court Pehlad 0 t Singh Clerk HaryanaRoadways Rohtak appearedas MW02 and producedthe record of the enquirybefore the Labour Court Sh Om Pal 0 Singh Tanwar who was the EnquiryOHicer appearedas MWn4 and has provedthe contents of the enquiryOle and the enquiryproceedingsThe Z documents therein were exhibited by the Labour Court which find 2 C mentioned in the order dated 1 032004 passedby the Labour Court on the preliminary issue copy whereof has been appendedas Anneuxre Pe8 c8 with the writ petition After the passingof the order on the preliminary r issue evidence was Ied on other issues out of which issue Nol related W2 Z to Whether the terminationof the setvices of Sh Balbir Singhis jusitified and in order To prove this MW Sh Laxmi Kant Retired inspectorwho was the member of the checkingstaff has put in appearance and has Provedhis complaintEx M 6 MW4 Mehatab Singh Driver has appearedand provedhis statement Ex N5 before the EnquiryOfficer What therefOre now needs to be decided is Whether the evidence Ied bythe Managementbefore the Labour Coun on issue No A vvhich was regardingthe conduct of enquirybythe Managementcould be taken into consideration by the Labour Court while decidingissue Nol which related to the terminationof the servicesof the workman Section 1144 ofthe IndustrialDisputesAct reads as followslm 1 1A Powers of Labour Courts TribunaIs and National Sahil Soni 2016.03.21 12:27 I attest to the accuracy and integrity of this document 439 11 CWP Nos17787of2008 9 Tribunals to giveappropriaterelief in case of dischargeor dismissal of workmenm Where an industrialdisputerelating to the dischargeor dismissal of a workman has been referred to a Labour Court Tribunai or National Tribunai for a adjudication and in the course of the adjudicationproceedings 0 the Labour Court Tribunal or National Tribunal as the case 0 U maybe is satisfied that the order of dischargeor dismissal was not justifiedit may by its award set aside the order of 0 discharge or dismissal and direct relstatement of the workman on such terms and conditions if any as it thinks fit Z orgIve such other relief to the workman includingthe award of 2 C4 any Iesser punishment in Iieu of dischargeor dismissal as the circumstancesof the case may requirel d5 Provided that in any proceedingunder this Section the Labour Court Tribunalor National TribunaI as the case may awe Z be shall relyonlyon the materiaison record and shaii not take V anyfresh evidence in relationto the matter Proviso to Section 1144 would show that the Court dealingwith the matter shall relyon the materialson record and shall not take any fresh evidence in relation to the matter Duringthe proceedingsbefore the Labour Court while decidingthe preliminaryissue evidence which IS producedbefore it would be materialon record even if an issue with regard to the holdingof the enquiryis held to be not fair and proper The evidence which IS Ied by the partiesis available on the records of the Labour Court and therefore would be materlals on record ofthe Labour P Court as per Proviso to Section 114 which the Labour Court has to take Sahil Soni 2016.03.21 12:27 I attest to the accuracy and integrity of this document 440 6 CWP Noe 17787of2008 10 1 into consideration if they have been properlyproved during the proceedingsin accordance with iaw While decidingthe preiiminaryissue what basicallyweighson the rnind of the Labour Court is whether the enquiryhas been held in a fair and proper manner and the principlesof natural justicehave been compliedwith or not Further vvhetherthere is m C any violation of statutoryRules or the standingorders holdingthe field 0 and governingthe proceedingsThe contentsand the basis for holdingthe 0 workman guiltyare not taken into consideration It relates to primarilythe 0 procedural aspect of holdingthe enquiryand not as to whether there was X evidence on record to hold him guiityor not That beingthe positionWhile Z decidingthe remainingissues as in this case whether the terminationof 2 C4 the services of the workman is justifiedand in order the contents of the I documents producedon record has to be Iooked into and considered by 5 the Labour Court as theywould fall within the meaningof material on record as envisagedin provisoto Section 1144 of the IndustrialDisputes 7 Z Act Therefore the conclusion of the Labour Cou that no records pertaining to the enquiryhave been producedto provethe chargesagainst the workman cannot be sustained The questionwhich was culled out for this Court to be decided ie whether the records pertaining to the enquiryproceedingswhich have been producedand have been provedbefore the Labour Court duringthe proceedings while decidinganissue which was treated as a preliminary Issue and decided in favour of the workman could be subsequentlyrelied uponwhile decidingother issues7 is answered in amrmative Apartfrom this in the presentcase the Managementhas as a matter of fact producedMV3 Laxmi Kant Retired Inspectorwho was a member of the checkingstaff He has provedhis complaintEx M 6 Sahil Soni 2016.03.21 12:27 I attest to the accuracy and integrity of this document 441 Jl 6 r CWP Noe 17787 of2008 11 before the Labour Court which contained the details of the checkingof the bus which has been done as well as the misconduct on the part of the workman with regard to nonssuance of the tickets Ieading to embezzlement of Rs 16041 He has further stated that despitethe checkingstaff demandingthe way bill and the unpunchedtickets the 1 C4 workman refused to hand over the same to them and misbehaved with 0 t them Nothinghas been broughtabout in the crossexamination of this witness which would show that the contents of the complaintor the 0 statement made by MWm3was not correct This in itself was enoughto prove the guiltof the workman The enquiryfile and the contents of the Z enquiryreportwould have no bearingin the iightof the statement of the C member of the checkingstaff himself before the Labour Coun itself The I Driver of the bus Mehatab Singh MW4 has also appearedbefore the 5 Labour Court and has admitted the statement Ex N5 before the Enquiry Officer He has not denied the contents of the statement before the mma Z EnquiryOfficer and has rather reiterated the same before the Labour Cs Coutl Whathas been stated by him is that he could not say whether the Workmanhas committedany embezzlement Itis now a settledpreposition of Iaw that strict RuIes of Evidence under the Indian Evidence Act are not applicableto the departmental proceedings and therefore even hearsay evidence is admissible therein The statementsof the passengers are not therefore requiredto be recorded either by the checkingstaff or by the EnquiryOfficer norIS it mandatory to producethe passengers before the Labour Cot of passengers either before the Enquiry Officer or the Labour Coun cannot be taken as a groundfor coming10 a conclusion that the order of terminationwas not justifiedor that the enquiry 1 proceedings stand vitiated on this groundThe Honble SupremeCourt in Sahil Soni 2016.03.21 12:27 I attest to the accuracy and integrity of this document 442 1 V 1 CWP Noe 17787 of2008 12 r the case of State of Haryanavslattan Singh AlR 1977 SupremeCourt 0 6 1512 in para4 has held as follows Il It is well settled that in a domestic inquirythe strict and sophisticated rules of evidence under the IndianEvidence Act t may not apply AIImaterialswhich are Iogicallyprobativefor a prudentmind are permissible There isno allergyto hearsay 0 evidence providedit has reasonable nexus and credibilityIt IS true that departmentalauthorities and administrative 0 tribunais must be careful in evaluatingsuch material and should not gliblyswailow what is strictlyspeakingnot relevant Z under the indian Evidence Act For this propositionit is n ot 2 C4 necessaryto cite decisions nor text books althoughwe have been taken throughcase Iawand other authorities bycounsel a3 on both sides The essence of a judicialapproach IS OblectivitY exclusion of extraneous materials or vm Z considerations and observance of rules of naturaljustice Of 0m course fair piayis the basis and if perversity or arbitrariness bias Or surrender of independenceof judgmentvitiate the conclusions reached such findingeven thoughof a domestic tribunal cannot be held good However the Courts below misdirected themselves perhapsin insistingthat passengers who had come in and gone out should be chased and brought before the tribunal before a valid findingcould be recorded The residuum rule to which counsel for the respondent referred based upon certain passages from American lUriSPrudencedoes not go to that extent nor does the passage from Halsburyinsist on such rigidrequirement The simple Sahil Soni 2016.03.21 12:27 I attest to the accuracy and integrity of this document 443 l CWP No 17787 of2008 13 pointis was there some evidence or was there no evidence not in the sense of the technical rules governingregularCourt proceedingsbut in a fair commonsense way as men of understanding and wordilywisdom will accept Viewed in this P way sufficiencyof evidence Itl proof of the tlndingby a C domestic tribunal is beyondscrutiny Absence of any 0 t evidencein supportof a findingis certainlyavailabie for the Court to Iook into because it amounts to an error of Iaw tD apparent on the recorc In view of the principlesIaid above by the Honble Supreme Z Court in the Iightof the statement of Laxmi Kant Retired Inspector as 2 C2 MW the evidence IS admissibie and would be enoughto prove the chargesagainstthe workman speciallywhen he had withstood the cross c8 examination before the Labour Court Nothinghas been pointedout by the counsel for respondentNol workman which would show that the 7 Z statement as made by MWm3 was not correct or there was any discrepancy nor any fault has been pointedout showingthat his statement was not trustworthy The facts as has been referred to above speak for themselves A Government offlcial who has been assignedan nonoureso responsibility of collectingcash from the travellingpassengers in the form of fare instead of issuingthem tickets pocketsthe same for his personal gains thus the Government money He did not issue any ticketsto 39 passengers and two passengers whom he issued tickets were also old tickets virtuallyissuingno tickets to any passenger as the total passengers who have not been issued tickets would be 41 thus embezzling a totalamount of Rs 16041 A Government oHicial is Sahil Soni 2016.03.21 12:27 I attest to the accuracy and integrity of this document 444 1 CWP Noe17787 of2008 14 expectedto be fair and justwhile performinghis duties His conduct is requiredto be over4ooardand such iike omciais as the workman here do not deserve any IeniencyThe order of punishment e terminationof the workman is thus fullyjustifiedand in consonance with the miseconduct attributedto him which stands proved m Ql In view of the above the presentwrit petitionis allowed The 0 t4 impugnedaward dated11 12008 AnnexureP91 passedbythe Industrial TribunaicumLabour Court Rohtak is herebyset aside 0 AUGUSTINE GEORGE MASIH I Z JUDGE 11v 2 March I8 2009 Cs1 PJ l I Whether referredto RepoitsYeslHS c5 W3 Z 0 f1 4277 p tll a ae Sahil Soni 2016.03.21 12:27 I attest to the accuracy and integrity of this document