JUDGMENT
Kailash Gambhir, J.
1. Rule. With the consent of counsel for the parties the matter is set for final hearing.
2. The petitioner is aggrieved with the impugned award on the premise that the Labour Court has placed undue weightage on non-supply of some documents to the workman and non production of ticketless passengers during the course of the enquiry proceedings. The contention of counsel for the petitioner is that the charged employee who was a conductor at the relevant time had misconducted himself by indulging into an act of corruption in not issuing the tickets in as much as to 12 passengers and such serious misconduct should have weighed with the Labour Court while deciding the reference. Another contention which has been raised by the counsel for the petitioner is that the enquiry proceedings are not governed by strict rules of Evidence Act and it is only total lack of evidence but not sufficiency of evidence could be a ground for interference by the Labour Court in the findings of the enquiry officer. Counsel for the petitioner further submitted that it is not merely non-supply of the documents to the workman but coupled with prejudice being caused to the rights of the workman in absence of such documents, can only result into violation of principles of natural justice. In support of his arguments counsel for the petitioner has relied upon the judgment in the case of Divisional Controller, KSRTC (NWKRTC) v. A.T. Mane reported at in Para 9 of this judgment the Hon’ble Supreme Court after placing reliance on its another judgment in the case of State of Haryana and Anr. v. Rattan Singh has held as under:
This Court in the case of State of Haryana and Anr. v. Rattan Singh which is also a case arising out of non-issuance of ticket by a conductor held thus:
In a domestic inquiry all the strict and sophisticated rules of Evidence Act may not apply. All materials which are logically probative for a prudent mind are permissible, though departmental authorities and Administrative Tribunals must be careful in evaluating such material and should not glibly swallow what is strictly speaking not relevant under the Evidence Act. The essence of judicial approach is objectivity, exclusion of extraneous materials or considerations, and observance of rules of natural justice. Fair play is the basis and if perversity or arbitrariness, bias or surrender of independence of judgment, vitiate the conclusion reached, such a finding, even of a domestic tribunal, cannot be held to be good. The simple point in all these cases is, was there some evidence or was there no evidence ” not in the sense of the technical rules governing court proceedings but in a fair commonsense way as men of understanding and worldly wisdom will accept. Sufficiency of evidence in proof of the finding by a domestic tribunal is beyond scrutiny by court, while absence of any evidence in support of the finding is an error of law apparent on the record and the court can interfere with the finding.
In the present case, evidence of the inspector is some evidence which has relevance to the charge and the courts below had misdirected themselves in insisting on the evidence of ticketless passengers. Also merely because the statements were not recorded, the order for termination cannot be invalid in fact, the inspector tried to get their statements but the passengers declined. Further, it was not for the court but the tribunal to assess the evidence of the conductor.
Counsel for the petitioner has also placed reliance on another judgment in the case of Food Corporation of India v. B.J. Jambulkar reported in JT 1998 (7) SC 131 in support of his argument that the issue of non-supply of documents if not taken at the relevant stage, is of no consequence. Counsel has drawn my attention to para 4 of the said judgment which is reproduced as under:
In this view of the matter, the High Court did not go into the question if the services of the respondent were terminated by an officer who was lower in rank than the person who appointed him. As regards the first point on which the High Court was inclined to hold that inquiry proceeding stood vitiated related to the second article of charge. In this case only an explanation was called for by the District Manager of the Corporation from the respondent and to which he had replied. The person who had called for the explanation was not the one competent to hold any inquiry against the respondent. The High Court, therefore, was not correct in holding that this charge should not have been included with other charges. In any case the inclusion of this charge could not vitiate the whole of the inquiry regarding other charges as well. Proceedings of 23.08.1983 before the inquiry Officer are self-evident to show that inquiry had been conducted keeping in view the principles of natural justice. The argument that documents were not supplied for inspection of those documents not given is quite an afterthought. Learned Counsel for the respondent was unable to tell us as to when the respondent has asked for supply of certain documents or when he had requested for inspection of certain documents and what those documents were, which request of the respondent was not accepted. We find no substance in this plea of the respondent. Again learned Counsel for the respondent has not been able to tell us as to how it could be said that services of the respondent were terminated by an officer who was lower in rank.
3. Counsel for the petitioner has also submitted that the passengers who gave their statements were summoned during the enquiry proceedings but they did not appear and the petitioner DTC could not enforce the presence of the passengers. The counsel has also submitted that the workman had fully participated during the course of the enquiry proceedings and he himself had cross-examined the witnesses and at no stage he had insisted for the supply of the documents. On the other hand, counsel for the respondent has stated that the enquiry against the workman has not been conducted in accordance with the principles of natural justice as there was no corroboration of the evidence of an enquiry officer by any independent witness. He has also submitted that during the enquiry proceedings on 04.11.1991 he had requested for the supply of documents comprising of copy of way bill, copy of challan, copy of the statement of passengers with their addresses and vouchers blank and print ticket copies etc., but, none of these documents were supplied to the workman. Counsel for the respondent further submitted that the petitioner had failed to follow the mandatory procedure as laid down in Circular No. AdmI-3(1)/52 dated 29th July, 1954 and, therefore, the enquiry proceedings became bad and illegal. Clause (iv) of the said Executive instructions also mandates supply of copy of challan form to the conductor but, admittedly, no challan form was supplied to the workman in the present case. The workman in the present case had died during the pendency of the proceedings before the Labour Court, i.e., on 30.11.2001. Under these circumstances, the Labour Court had directed the Management to pay full back wages with consequential benefits from 24.04.1992 to 30.11.2001 to the respondent workman – widow of the deceased workman Smt. Angrejo Devi. The Tribunal in the impugned judgment has clearly held that the procedure adopted by the enquiry officer is unknown to the criminal jurisprudence and there has been a serious breach of the principles of natural justice. The deceased workman was a permanent employee of the petitioner management and the Tribunal had arrived at certain findings of facts, inter alia such as, the Management did not appoint any presenting officer and enquiry officer acted as a Judge as well as a prosecutor, enquiry officer did not record the statement of Raj Singh, T.I and Kanhaiyalal, T.I in the presence of workman, no summoning of 12 passengers as witnesses, although, the workman had expressed his intention to summon them, non-checking of cash by the checking staff in violation to the mandate of the executive instructions dated 13.06.1996 and non-issuance of the challan in the prescribed proforma. It would be relevant to reproduce the following observations from the impugned Award:
11. After hearing AR of the parties, I find that there is no dispute that the deceased workman was a permanent employee of the management. Admittedly on the file there is no letter appointing Shri. Sumeet Mudgal as the enquiry officer. Admittedly there is no letter on the file vide which the workman was intimated that Mr. Sumeet Mudgal has been appointed as Enquiry officer. It has been admitted by MW1 in his cross examination that before start of the enquiry proceedings the workman was not supplied the documents relied upon by the management. This is contrary to the principles of natural justice. In the present case, the management did not appoint any presenting officer and enquiry officer acted as a judge as well as prosecutor which is violative principles of natural justice. It will not be out of place to mention here that the enquiry officer did not record the statement of Raj Singh T.I. and Kanhaiyalal T.I. in the presence of workman. This procedure adopted by the enquiry officer is unknown to the criminal jurisprudence. It may be further submitted that the workman expressed his intention that all the 12 passengers be summoned as is mentioned at page 33 of enquiry proceedings Ex. WW1/7 in spite of said request made by the workman none of the 12 said passengers have been examined by the enquiry officer. The checking staff also did not check the cash as is mandatory vide circular dated 13.06.1996 the challan has also not been issued in the prescribed proforma annexure ‘C’ of the management. The above discussion leads may to believe that the enquiry has not been conducted in a fair and proper manner and is also violative of principles of natural justice.
4. Based on the said findings the Tribunal reached to the conclusion that the domestic enquiry conducted by the management was neither fair nor proper. It is no more res integra that the adequacy and reliability of the evidence, as led before the domestic enquiry, is not to be deeply probed into by the Tribunal and the case before the enquiry officer is also not to be proved beyond reasonable doubt like any criminal case. It is only the preponderance of probabilities and some evidence on record may be sufficient to prove charges against the delinquent employee. It is also well settled law that enquiry officer and disciplinary authority are the sole Judges of facts and due weightage should be given to the findings arrived at by the enquiry officer. However, in the present case the pre-dominant question is not that how the enquiry officer proceeded during the enquiry, but the vital question is whether there was a violation of principles of natural justice right at the very inception. It would be worthwhile to refer to the cross-examination of the witness produced by the management, who entered the witness box as MW-1. He in his cross-examination has stated as under:
There is no separate order of entrustment of this case to act as an Enquiry Officer in the present case. I have not supplied any documents to the workman concerned before starting the enquiry such as report of the inspecting officers, statement of passengers. It is correct that the workman had moved an application on 4.11.1991 to the Depot Manager for supplying certain documents. It is correct that no passenger was examined during the enquiry.
5. This admission on the part of the management witness in no uncertain terms clearly gives an indication that the management had seriously breached the principles of natural justice by withholding the documents although specifically demanded by the respondent workman vide his application dated 4th November, 1991. The examination of passengers during the enquiry may not in itself prove fatal to hold the enquiry as illegal, but to deny the delinquent workman copies of statement of passengers as recorded at the time of raid certainly is fatal and such an act on the part of the management is in clear breach of the principles of natural justice. The documents, which were admittedly in the possession of the petitioner management and formed basis of the chargesheet against the respondent workman have to be mandatorily supplied to the delinquent workman facing the charges. The delinquent employee, who is facing the charges must know as to what case he has to met with during the course of enquiry and the petitioner management in the present case has failed to give any explanation as to why the documents demanded by the respondent workman were not supplied to him. In a recent judgment of the Hon’ble Supreme Court reported in South Bengal State Transport Corporation v. Sapan Kumar Mitra and Ors. the issue before the Hon’ble Supreme Court was that whether the enquiry as held by the enquiry officer was bad and invalid in law as the documents relied by the enquiry officer neither feature in the list of documents annexed to the chargesheet nor the copies of the same were supplied to the delinquent employee. The Supreme Court after placing reliance on various judgments including Managing Director, ECIL v. B. Karunakar of the Constitution Bench made the following observations:
11. On the question, whether copies of the documents relied on by the inquiry officer and the disciplinary authority must be served on Respondent 1 before passing any order of removal from service, it is no doubt true that such order of punishment, ought not to be passed without supplying the copies of the documents to Respondent 1. Now the question is whether non-supply of the documents, as referred to hereinbefore, would vitiate the departmental proceeding in its entirety and directions for reinstatement should be passed or directions to supply copies of documents relied on by the authorities should be made and thereafter direct reinstatement of Respondent 1 into service on condition that the disciplinary authority shall continue with the disciplinary proceeding from the stage of supplying copies of the documents to Respondent 1 to reach a fresh and final conclusion. It cannot be disputed that serious prejudice would be caused to Respondent 1 if the documents on which reliance was placed by the authorities in removing him from service were not supplied to him. This will cause denial of reasonable opportunity of hearing to him. This view was also expressed by the decision of this Court in Union of India v. Mohd. Ramzan Khan which was approved by the Constitution Bench of this Court in Managing Director, ECIL v. B. Karunakar. This Court in Ramzan Khan case at para 18, has clearly observed as follows: (SCC p. 597) ‘Wherever there has been an inquiry officer and he has furnished a report to the disciplinary authority at the conclusion of the inquiry holding the delinquent guilty of all or any of the charges with proposal for any particular punishment or not, the delinquent is entitled to a copy of such report and will also be entitled to make a representation against it, if he so desires, and non- furnishing of the report would amount to violation of rules of natural justice and make the final order liable to challenge hereafter.’
12. As noted, this decision was approved by the Constitution Bench of this Court in Managing Director, ECIL v. B. Karunakar. The Constitution Bench has clearly held that in order to impose punishment of removal on a delinquent employee, it is necessary to supply a copy of the inquiry report to him before such punishment is imposed by the disciplinary authority. The Constitution Bench on the issue of non-supply of inquiry report, observed as follows: (SCC p. 754, para 26)
26. The reason why the right to receive the report of the enquiry officer is considered an essential part of the reasonable opportunity at the first stage and also a principle of natural justice is that the findings recorded by the enquiry officer form an important material before the disciplinary authority which along with the evidence is taken into consideration by it to come to its conclusions. It is difficult to say in advance, to what extent the said findings including the punishment, if any, recommended in the report would influence the dsiciplinary authority while drawing its conclusions. The findings further might have been recorded without considering the relevant evidence on record, or by misconstruing it or unsupported by it. If such a finding is to be one of the documents to be considered by the disciplinary authority, the principles of natural justice require that the employee should have a fair opportunity to meet, explain and controvert it before he is condemned. It is negation of the tenets of justice and a denial of fair opportunity to the employee to consider the findings recorded by a third party like the enquiry officer without giving the employee an opportunity to reply to it. Although it is true that the disciplinary authority is supposed to arrive at its own findings on the basis of the evidence recorded in the inquiry, it is also equally true that the disciplinary authority takes into consideration the findings recorded by the enquiry officer along with the evidence on record. In the circumstances, the findings of the enquiry officer do constitute an important material before the disciplinary authority which is likely to influence its conclusions. If the enquiry officer were only to record the evidence and forward the same to the disciplinary authority, that would not constitute any additional material before the disciplinary authority of which the delinquent employee has no knowledge. However, when the enquiry officer goes further and records his findings, as stated above, which may or may not be based on the evidence on record or are contrary to the same or in ignorance of it, such findings are an additional material unknown to the employee but are taken into consideration by the disciplinary authority while arriving at its conclusions. Both the dictates of the reasonable opportunity as well as the principles of natural justice, therefore, require that before the disciplinary authority comes to its own conclusions, the delinquent employee should have an opportunity to reply to the enquiry officer’s findings. The disciplinary authrority is then required to consider the evidence, the report of the enquiry officer and the representation of the employee against it.
13. In view of the Constitution Bench decision of this Court, as referred to herein earlier, we therefore, cannot have any dispute that Respondent 1 was entitled to a copy of the inquiry report, report of the District Magistrate and all allied documents, including depositions of witnesses relied on by the District Magistrate.
6. The judgments cited by learned Counsel for petitioner are not applicable to the facts of the present case as the petitioner management has violated the principles of natural justice right at the threshold by not supplying the documents relied upon, which formed very basis of the chargesheet against the respondent workman. I, therefore, do not find any illegality in the impugned order passed by the Tribunal. In the present case no fresh enquiry can be directed as the respondent has already expired. The order of the Tribunal is upheld and the present petition is, accordingly, dismissed. Rule discharged. Parties are left to bear their own costs.