C.W.P. No.10934 of 2005 -1-
IN THE HIGH COURT FOR THE STATES OF PUNJAB
AND HARYANA AT CHANDIGARH
C.W.P. No.10934 of 2005
Date of Decision: 11.11.2009
Gulab Singh .....Petitioner
Versus
Presiding Officer, Labour Court, U.T., Chandigarh and another
....Respondents
Present: Mr. P.K. Sachdev, Advocate
for the petitioner.
Mr. D.S. Nalwa, Addl. A.G., Haryana.
CORAM:HON’BLE MR. JUSTICE K. KANNAN
1. Whether Reporters of local papers may be allowed to see the
judgment ? Yes
2. To be referred to the Reporters or not ? Yes
3. Whether the judgment should be reported in the Digest? Yes
-.-
K. KANNAN J.
1. The workman, who is a Conductor in Haryana
Roadways, was shown the door out of employment on alleged
proof of misconduct that he had committed the fraud of selling
fake tickets to passengers and misappropriating money to the tune
of Rs.1740/- by fake tickets and Rs.260/- by way of preparation
of a fake way bill. The misconduct was alleged to have been
detected by inspecting staff on 29.07.1997 when the workman
was alleged to have admitted to his guilt before the checking staff
but later in the enquiry, which was constituted, the admission was
withdrawn. The Enquiry Officer, however, found the misconduct
to have been established and the disciplinary authority dismissed
C.W.P. No.10934 of 2005 -2-
him after serving him a notice to show cause against the
punishment. The enquiry was found to be fair and proper by the
Labour Court on a reference sought by the workman. The
workman challenges the order of the Labour Court before this
Court by means of this writ petition.
2. The contention of the learned counsel appearing for the
workman was that the enquiry was not fair and proper in that he
was not apprised that he was entitled to the assistance of a co-
worker for conduct of the trial. Even the witness from the
booking office had been reported to have been examined behind
his back and he had not been given any opportunity to cross-
examine the said witnesses. There had been a criminal trial
pending against the workman on the very same incident of alleged
preparation of fake tickets and the departmental enquiry into the
very same charge was not correct since the proof of the charge
was technical in nature and the very same evidence was required
to be used in the departmental proceedings.
3. To comment generally on the order of the Labour Court,
I find that the Labour Court has not attempted any forensic
appraisal of the issues involved in the case but has gone on to a
mere reaffirmation of the finding by the Enquiry Officer without
considering any of the three objections raised by the learned
counsel appearing for the petitioner. On the last contention raised
by him that a departmental enquiry ought not to have been
C.W.P. No.10934 of 2005 -3-
undertaken when there was a criminal case pending with
reference to the same charge, the learned counsel appearing for
the workman relied on the decision Capt. M. Paul Anthony Vs.
Bharat Gold Mines Ltd. and another 1999 LAB I.C. 1565. The
Hon’ble Supreme Court referred to several earlier decisions and
had deduced from the authorities the following principles as
emerging and set out in paragraph 22 of the judgment, which run
as follows:
“(i) Departmental proceedings and proceedings in a
criminal case can proceed simultaneously as there
is no bar in their being conducted simultaneously,
though separately.
(ii) If the departmental proceedings and the criminal
case are based on identical and similar set of facts
and the charge in the criminal case against the
delinquent employee is of a grave nature which
involves complicated questions of law and fact, it
would be desirable to stay the departmental
proceedings till the conclusion of the criminal
case.
(iii) Whether the nature of a charge in a criminal case is
grave and whether complicated questions of fact
and law are involved in that case, will depend upon
the nature of offence, the nature of the case
C.W.P. No.10934 of 2005 -4-launched against the employee on the basis of
evidence and material collected against him during
investigation or as reflected in the charge sheet.
(iv) The factors mentioned at (ii) and (iii) above cannot
be considered in isolation to stay the departmental
proceedings but due regard has to be given to the
fact that the departmental proceedings cannot be
unduly delayed.
(v) If the criminal case does not proceed or its disposal
is being unduly delayed, the departmental
proceedings, even if they were stayed on account
of the pendency of the criminal case, can be
resumed and proceeded with so as to conclude
them at an early date, so that if the employee is
found not guilty his honour may be vindicated and
in case he is found guilty, administration may get
rid of him at the earliest.”
4. The decision does not spell out any rigid rule that
whenever there was a criminal case with reference to a same
incident, the departmental enquiry cannot be proceeded with. The
decision can also be seen as an authority that a criminal case and
departmental enquiry do exist in two distinct spheres. It has also
been held in several decisions that while the criminal case expects
the proof of guilt to be beyond reasonable doubt, the departmental
C.W.P. No.10934 of 2005 -5-
enquiry is premised on preponderance of probability. The
decision for the authority that if a criminal case proceeding were
to be unduly protected, the Court could even resume the conduct
of the departmental enquiry. The present incident itself is of the
year 1997 and it is not seen either from the Enquiry Officer’s
proceedings file or in the Labour Court’s award whether there has
been any final adjudication by the Criminal Court. At best, the
Criminal Court judgment itself could be merely a factor that the
departmental enquiry could have taken note of, unless the charge
itself made on the basis of a Criminal Court verdict in which case
the alteration of verdict would have immediately a bearing on the
result of the departmental enquiry or the punishment meted out to
the workman. The departmental enquiry had proceeded
independently of the criminal case and therefore, in my view, it
will be not any longer possible to await the decision of the
Criminal Court or to assume that it will have any bearing to the
course of the departmental enquiry. This decision of the Hon’ble
Supreme Court was relied on by a subsequent ruling of a Division
Bench of this Hon’ble Court in Sushil Kumar Vs. Food
Corporation of India and others 2002(7) SLR 664 where the
Hon’ble Bench found the criminal charge and the charge sheet
issued departmentally were based on the same facts and had to be
proved by the same witnesses when the Bench held that the
acquittal in the criminal proceedings would by itself put an end
C.W.P. No.10934 of 2005 -6-
and nullify the departmental proceedings. The said decision will
have to be taken as governing the particular situation and cannot
be applied in all instances of pendency of criminal proceedings as
annulling the conduct of departmental proceedings also. I,
therefore, proceed to examine the correctness of the decision of
the Labour Court uninfluenced by any decision that the Criminal
Court could have come to.
5. It has been too well settled a proposition of law that in a
challenge to the fairness of procedure and the propriety of the
departmental proceedings, the Labour Court is bound under
Section 11-A of the Industrial Disputes Act to examine both the
factors as regards the procedural fairness and the ultimate
propriety of its decision. The workman had complained in his
response to the show cause notice issued by the departmental
enquiry after receiving the findings of the Enquiry Officer that he
had not been granted the assistance of a co-worker. The MW-1
who was the only witness examined on behalf of the management
before the Labour Court admitted; “it is correct that the Enquiry
Officer did not tell the workman that he can take the assistance of
a co-worker.” Even if this were to be discounted merely as
technical, a more substantial point of a procedure relating to an
opportunity to the workman to know the incriminating documents
or witnesses against him was again flouted. The said witness,
MW-1 had also admitted; “it is correct that in the list of witnesses
C.W.P. No.10934 of 2005 -7-
given along with chargesheet, there were names of two Inspectors
namely Rachna Ram and Balbir Singh and that the name of
Inspectors Daljit Singh was not named” (sic). Daljit Singh was
produced before the EO as departmental witness, whose name
was not in the list of witnesses.” It is not merely a case of
surprise at the trial by production of a witness, who was not set
out in the list but even the Enquiry Officer had permitted a
witness to be brought in with no opportunity to the workman to
cross-examine. Hear the witness of MW-1 again on this: “it is
correct that Amrik Singh was produced before the EO but no
opportunity was given to the workman to cross-examine him.” I
find that the linchpin on which the management was trying to
prove the fake nature of the tickets was through the booking
clerk, Amrik Singh and a petition has also been filed before the
Labour Court for citing him as a witness and the Court had also
issued the summons for his enquiry before the Labour Court for
appearance on 25.05.2000. However, I find no record of any
evidence as having been recorded of Amrik Singh. After all, if
the charge was that the workman had used the fake tickets and has
also used the fake way bill, the character of the tickets as fake
must be only in relation to the real tickets. In other words, the
fake character could be seen only by comparison to the real
tickets. The checking staff could have found that the tickets were
fake if they had known what the real tickets were with reference
C.W.P. No.10934 of 2005 -8-
either to the serial numbers found in the tickets or in the manner
in which it had been printed with any special features which were
absent in the tickets. Unlike currency notes issued at the mint
which are difficult to be duplicated and the fake character could
be discernible even by a naked eye, the tickets printed and issued
by a Transport Department normally could not be expected to be
having any specific feature, which could be shown to be very
distinctive from the fake ones. If they did exist, it was the duty of
the management witness to show how it was possible to identify
such fake tickets. I find absolutely no evidence either as having
been brought before the Enquiry Officer or before the Labour
Court. It is in this context that the admission of the management
witness relating to the tickets assume importance. He admits in
his cross-examination as follows:
“I have gone through the enquiry file before giving the
statement. The original alleged fake tickets were not
produced during the enquiry proceeding. It is correct
that Haryana Roadways used to get the tickets printed
from any Press. No report was called for from the Press
used to print the tickets to the fact that the said tickets
are fake…..”
It is not understood on what basis the Enquiry Officer could have
ever come to the conclusion that the tickets were fake with no
evidence whatsoever from the checking staff as to how the fake
C.W.P. No.10934 of 2005 -9-
tickets were identified and even without production of the original
tickets.
6. The finding could be seen to be suspect also from the
another stand point. If the booking clerk had issued some tickets
with specific serial numbers, which had been entered in the way
bill, the genuine way bill and the tickets which had been handed
over to the Conductor must have been simultaneously available
with the Conductor even at the time of seizing the fake ones. The
checking staff did not seize even the original tickets or the
original way bill. If it is to be assumed that the original tickets
and the way bill had been not recovered from the Conductor at the
spot, it should have been recovered later in some other place at
least, for it is only through the retention of genuine tickets and the
return of the same to the booking clerk that a Conductor could
ever commit a fraud and make misappropriation. If all the
original tickets had been used or not redelivered, the Conductor in
any event becomes liable for money and no misappropriation
would have been possible. In any way, the charge against the
workman could never have been taken by the Enquiry Officer as
having been established both procedurally and as a measure of
content.
7. With all the above observations, it shall not be however
still possible for me to set aside the award of the Labour Court
and find the workman to be totally exculpated from the charge
C.W.P. No.10934 of 2005 -10-
and let the matter reach a finality. If a finding were to be recorded
that the enquiry had not been fair and proper, it shall become
necessary to give an opportunity to the management to prove the
misconduct before the Labour Court, as laid down in Workmen
Vs. Firestone Tyre and Rubber Co. of India (P) Ltd. (1973) 1
SCC 813 and Bharat Forge Co. Ltd. Vs. A.B. Zodge (1996) 4
SCC 374.
8. The award of the Labour Court is under the
circumstances set aside and the order of dismissal from service is
set aside for the purpose of fresh enquiry as regards proof of
alleged misconduct. It shall be open to the management to
establish the misconduct by production of such evidence as it may
think necessary. The Labour Court shall consider the whole case
in the light of any evidence that may be adduced before the Court
and take a decision in accordance with law. The writ petition is
allowed in the above terms. The parties shall appear before the
Labour Court on 02.12.2009.
(K. KANNAN)
JUDGE
November 11, 2009
Pankaj*