IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Civil Writ Petition No.16240 of 1993
Date of decision:20.07.2009
Kirpal Singh ...Petitioner
versus
The Presiding Officer, Labour Court, Patiala ...Respondents
and others.
CORAM: HON'BLE MR. JUSTICE K.KANNAN
Present: Mr. Vikas Singh, Advocate with
Mr. Jagdev Singh, Advocate, for the petitioner.
Mr. Gurinder Singh Gill, Advocate,
for respondents No.2 to 4
---
1. Whether reporters of local papers may be allowed to see the
judgment ?
2. To be referred to the reporters or not ?
3. Whether the judgment should be reported in the digest ?
K.Kannan, J.(Oral)
1. The award in challenge before this Court is a direction
for dismissal of a workman employed with the respondent-Pepsu Road
Transport Corporation. The misconduct attributed to the workman was
that he absented himself without any leave from 05.01.1988 for a period
in excess of 10 days and he did not return till he was terminated on
21.09.1988. The order was issued by the proceedings of the Depot
Manager that detailed the enquiry that was conducted and also recorded
that fact that when an opportunity of personal hearing was given to the
workman, it was not availed by the workman. Keeping in view the
gravity of charges, the authority held that there was a presumption that
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he was not interested to serve the corporation and removed him from
service for his unauthorized absence.
2. Before the Labour Court, an attempt was made by the
workman to state that there was a personal tragedy in his life when his
son died and his mother was very ill and he sent a leave letter from his
neighbour Jasmer Singh. The Labour Court reasoned that Jasmer Singh
was neither examined in Court nor before the domestic Tribunal. He,
therefore, confirmed the punishment imposed on him for removal from
service.
3. In the writ petition apart from reiterating the stand
made before the Labour Court, an objection had also been taken to the
effect that the person that appointed him to as the manager of the
Corporation but the order of removal had been made by the Depot
Manager. The punishing authority was lower in rank to the appointing
authority and hence, the order was vitiated.
4. At a still later time, the petitioner sought to improve
his case by saying that there was a register maintained by the
Corporation that showed that the leave extension letter that had been
given was entered in the register by the Corporation and that vindicated
the truth of his contention. The copy of the register which has been
adverted to through C.M. No.5599 of 2009 has come at the fag end of the
hearing of the case in the writ petition. Time had been granted to file the
objection, but I do not propose to give the benefit of consideration to the
petitioner through a document introduced after such a long delay. It is
highly suspicious whether such a document could have existed and there
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is no explanation as to why no steps have been taken to summon its
production at least at the Labour Court. If the document were to be true,
still it cannot explain the long absence from January 1988 to September
1988. Under the circumstances, the decision by the disciplinary authority
that there was an unexplained absence without leave must be held to be
fully proved. The Pepsu Road Transport Corporation (Conditions of
appointment and Service Regulations), 1981 sets out that “habitual late
attendance or absence from duty without applying leave in accordance
with rules……….” constitutes an act of misconduct. The penalties are set
out in Rule 23 under the relevant rules. Rule 20 prescribes a power to
removal from service which does not disqualify from future employment
as well as dismissal from service which would disqualify from future
employment under the Corporation. The finding therefore as regards the
proof of charge and affirmed by the Labour Court, would require no
interference.
5. The other contention by the learned counsel for the
petitioner is that the order of appointment dated 07.10.1970 would show
that the petitioner had been appointed by the proceedings of the General
Manager on 07.10.1970 and therefore, the order of removal could have
been only by the General Manager and not by the Depot Manager, who is
lower in rank. The learned counsel for the respondent would submit that
Ex.P-1 does not constitute the appointment order which was merely a
communication of affirmation to an appointment made through the
proceedings of the Depot Manager on 15.04.1971. The letter of
the Depot Manager was not furnished before the Labour Court and it is
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being produced before this Court for the first time. The contention itself
seems to be an after thought and no such contention was taken before the
Labour Court. However, the only relevant consideration ought to be that
the disciplinary authority to inflict a punishment of removal shall be a
person competent to do so under the rules themselves. Rule 21 of the
Rules states that the competent authority to impose the penalties
specified in Column 3 of the Appendix ‘B’ against each post in relation to
an employee holding that post, shall be as specified in column thereof.
In the year 1988, the persons specified in Appendix ‘B’ for a conductor as
the appointing authority is the Depot Manager and the power to impose
penalty ranging from censure to removal from service which does not
disqualify from future employment (Clauses A to F) vest with the Depot
Manager and the power to dismiss from service which disqualifies future
employment vest with the Deputy General Manager. The impugned
order of removal of the workman from service merely refers to removal
that does not make a reference that he was not disqualified from future
employment. The act of removal as such by a Depot Manager, is a
power which is conferred under the relevant rules. Therefore, the order
passed by the Depot Manager remove him from service cannot be
questioned by the workman. It must be noticed that the protection under
Article 311 (1) of the Constitution applies only to civil service and there
is preponderance of authority to hold that employment in a Corporation
does not amount to civil service.
6. It is contended that the enquiry report itself was
produced only through the Clerk and it had not been produced through
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the person who conducted the enquiry. The learned counsel refers to a
decision of this Court reported in Jagsir Singh Versus The State of
Punjab and others-1983(2) SLR 685 to say that the enquiry file
produced before the Labour Court by a person having no personal
knowledge of the case could not be taken into evidence without
producing relevant evidence in that regard. This aspect was further
considered by a Division Bench of this Court in CWP No.12661 of 1993,
dated 01.03.1994 that by a mere production of file without proving the
signatures in the enquiry either of the Enquiry Officer or the delinquent
official, the Court cannot rely on the enquiry file. There had never been
any objection at any point of time that the enquiry file had been produced
by a person who was incompetent to produce it or the signatures of the
Enquiry Officer had not been proved. The matter that was so
fundamental cannot be a matter that could be taken for the first time at
the time of argument without any basis in the pleadings. If the document
could not have been seen or relied on it should have been specifically
brought to the attention of the Court earlier by a due reference to it in the
writ petition or objected to at the time when the Enquiry Officer’s file
was produced and exhibited before Labour Court. Even the proceedings
of the Labour Court are not before the Court and it is not possible for me
to make an inference that the enquiry file had not been produced through
a competent person or that the enquiry file had not been proved by any
person who identified the signature of the Enquiry Officer. Such a
contention cannot be countenanced at this stage and reliance placed
on the authorities are not applied for absence of making such a ground
Civil Writ Petition No.16240 of 1993 -6-
either before the Labour Court or before this Court as the ground of
attack in the writ petition. The writ petition is, therefore, dismissed.
(K.KANNAN)
JUDGE
20.07.2009
sanjeev