JUDGMENT
G.R. Majithia, J.
1. This Judgment disposes of R.S.A. No. 2409 of 1986, C.W.P. Nos. 11002 and 12667 of 1992.
2. In C.W.P. No. 12667 of 1992, Janak Chand petitioner/workman (hereinafter to be referred to as the ‘workman’) has challenged the award of the Labour Court dated February 17, 1992 rendered in Reference No. 339 of 1988. In C.W.P. No. 11002 of 1992 Gurpal Singh, petitioner-workman (hereinafter to be referred to as the ‘workman’) has challenged the award of the Labour Court dated February 17, 1992 rendered in Refer No. 483 of 1987. R.S.A. No. 2409 of 1986 is directed against the Judgment and decree of the learned Additional District Judge, Gurdaspur affirming on appeal those of the trial Judge dismissing the suit of the plaintiff-appellant (herein after ‘plaintiff) for declaration to the effect that the appellate order passed by the Divisional Manager, Transport Department, Jalandhar, dated October 31, 1983, affirming on appeal the order of removal of the plaintiff from service dated July 11, 1993, was dismissed.
3. The regular second appeal came up for hearing before a learned Single Judge of this Court. It was conceded before the learned Single Judge that the Inquiry Officer did not ask the delinquent employee if he wanted the help of his next friend and that failure to do so resulted in vitiating the enquiry proceedings. In support of his submission, reliance was placed on Bhagat Ram v. State of Himachal Pradesh,1 A.I.R. 1983 S.C. 454, and two Judgments of this Court reported as Kchar Din v. The Presiding Officer, Labour Court, U.T. Chandigarh,2 1992(2) R.S.J. 181, and Hans Raj Gupta v. State of Punjab,3 1992(1) R.S J. 462. The learned Judge expressed doubt about the view expressed by the learned Single Judge in Hans Raj Gupta’s case in para 7 of the Judgment. He accordingly requested Hon’ble the Chief Justice that the matter be placed before a Division Bench for disposal.
4. When the civil writ petitions came up for motion hearing, the learned counsel for the workmen raised the same submissions as were made by him before the learned Single Judge who was seized of R.S.A. No. 2409 of 1986. On April 20, 1993, the writ petitions were admitted to hearing by Division Bench and the Registrar (Judicial) was directed to enlist R.S.A No. 2409 of 1986 for disposal along with the writ petitions after obtaining permission of Hon’ble the Chief Justice. It is how these writ petitions and the regular second appeal have been placed for disposal before us.
5. A brief reference to the relevant facts of each of the writ petitions and the regular second appeal is necessary to adjudicate the legal submissions made before us:
C.W.P. No. 12667 of 1992:
On a petition moved by the workman, the appropriate Government referred the following dispute to the Labour Court, Patiala, for adjudication :-
“Whether termination of service of Shri Janak Chand, workman, is justified and in order? If not, to what relief/ exact amount of compensation is he entitled ?
The workman filed the statement of claim stating that his services were terminated without following proper procedure and fair and proper enquiry was not conducted. The management controverted the pleas raised by the workman.
6. On the pleadings of the parties, the following issues were framed:-
1. Whether there has been a fair and proper enquiry?
2. Whether the order of termination of services of the workman is justified and in order ?
3. Relief.
Both the issues were disposed of together. The Labour Court, on consideration of the entire evidence, came to the following conclusions:-
” I have thoroughly examined the enquiry proceedings and I am of the opinion that the enquiry officer conducted the same in a fair and proper manner. He afforded full opportunity to the workman to cross-examine the witnesses of the respondent. He appreciated the evidence produced by both the sides before him and in my considered, view rightly came to the conclusion that the workman did not issue tickets to seven passengers and embezzled a sum of Rs. 20.30. The workman did not produce any defence to justify that a number of passengers boarded the bus at Kangra and he could not issue tickets to seven passengers because of over crowdedness in the bus. According to the Inspectors, who checked the bus, the bus was not overloaded but was full to its capacity. I have not been able to find anything wrong in the conduct of the enquiry by the enquiry officer and returning its findings of guilt against the workman. In these circumstances both these issues are decided in favour of the respondents and against the workman.”
It held that the workman was not entitled to any relief.
7. C.W.P. No. 11002 of 1992:
On demand by the workman, the appropriate Government referred the following dispute to the Labour Court for adjudication :-
” Whether termination of services of Sh. Gurpal Singh workman is justified and in order ? If not, to what relief/exact amount of compensation is he entitled ?
In the statement of claim the workman urged that his services were wrongly terminated and fair and proper enquiry was not conducted by the management. The management controverted the pleas of the workman and pleaded that proper enquiry was held and the workman was given full opportunity to cross-examine the witnesses produced by the Department and he was allowed to produce his defence. On the pleadings of the parties, the Labour Court framed the following issues :-
1. Whether there has been a fair and proper enquiry ?
2. Whether the order of termination of services of the workman is justified and in order ?
3. Relief.
Issues No. 1 and 2 were disposed of together and after appreciating the evidence, the Labour Court held thus :-
” The enquiry filed is Ex. M1 and I have thoroughly examined the same. Admittedly, the bus conducted by the workman was checked on 21.12.85. The report made by Sh. Mohinder Singh Inspector, who checked the bus on 21.12.85, is at page no. 117 of the enquiry file. The workman duly submitted his reply to the charge-sheet whereafter the respondent examined Sh. Mohinder Singh Inspector. After the management closed the evidence, the workman made his own statement and closed his case. He did not produce any defence evidence. The enquiry officer thereafter submitted his report which is at pages 179 to 193. Thereafter a show cause notice was issued to the workman who submitted his reply thereto, Ultimately, the services of the workman were terminated. Both- the witnesses examined by the respondent before the enquiry officer stated on oath that the bus in question was checked near village Smalkha. Judicial notice can be taken that this village is about 35-36 Kilometers from Delhi barrier. The stand of the workman is that his bus was checked only 4 Kilometers away from the Delhi barrier near village Phalguwana and hence he was still in the process of issuing the tickets when the checking staff entered the bus and checked the passengers. No question was put by the workman to Sh. Mohinder Singh Inspector, and Sh. Balbir Singh Sanghera Inspector, if the bus was checked near village Phalguwana and not near Samalkha. He did not produce any evidence except his own statement that the bus was checked near village Phalguwana. In his statement of claim, the workman mentioned that 23 passengers boarded the bus at Phalguwana and the checking staff also entered there. This fact was not disclosed by the workman in his statement on oath made before the enquiry officer. There he gave a different version that 16 passengers boarded the bus near Delhi barrier. There being a wide difference between two versions of the workman, it is not acceptable that he could not issue the tickets because of short span left between the passengers boarding bus and the checking staff also arriving there sooner and having found the workman not to have issued the tickets to the passengers, I am satisfied that the bus was checked near Samalkha which place is quite far off from the place where the passengers, boarded the bus either from near Delhi barrier or from village Phalguwana. The workman had sufficient time to issue the tickets to the passengers but he did not do so and he realizing the fare amount of Rs. 154.95 and embezzled the same to his own benefit. I, therefore, hold that a fair and proper enquiry was held in the matter against the workman and his services were rightly terminated on that score. Both these issues are thus decided in favour of the respondent and against the workman.”
R.S.A. No. 2409 of 1986.:
The plaintiff was a Conductor in Punjab Roadways. He was removed from service by the General Manager, Punjab Roadways, Pathankot, vide order No. 4582-85/GM, dated July 11, 1983. The order of termination from service was affirmed, on appeal, by the divisional Manager Transport, Jalandhar, vide order dated November 14, 1983. The workman challenged the order of the Divisional Manager Transport through a civil suit stating that proper enquiry was not held in accordance with the service Rules; that he was not allowed the assistance of a co-worker or a legal practitioner during the enquiry, whereas the Department was represented by a trained prosecutor; that the Inquiry Officer did not record the statements of the witnesses as per their version. The management denied these allegations.
On the pleadings of the parties, the trial Judge framed the following issues :-
1. Whether the order dated 11-1-1983 passed by the General Manager, Punjab Roadways, Pathankot is illegal, ultra vires and void? OPP
2. Whether the order dated 31.10.1983 passed by the Divisional Manger Transport, Jullundur is illegal, ultra vires and void? OPP
3. Whether valid notice under Section 80 CPC was served before the filing of suit, OPP
4. Relief.
Issues No. 1 and 2 were disposed of together. The trial Judge, after appreciating the evidence and the submissions made before him, arrived at the following finding :-
” In view of the evidence on the record and the arguments advanced, I came to the conclusion that the enquiry was held against the plaintiff properly and he was found guilty of not issuing tickets to 12 passengers while he had received money from them. On the report of the Enquiry Officer, the plaintiff was removed from services legally vide order dated 11.7.1983 and the appeal of the plaintiff was rightly dismissed by the Appellate Authority vide order dated 14.11.83 I, therefore, decide both these issues against the plaintiff.”
The Plaintiff challenged the Judgment and decree of the trial Judge in first appeal. It was urged before the first appellate Court that the order of the Enquiry Officer holding that the charges levelled against the workman stood proved did not contain reasons. The learned appellate Judge negatived the submissions made on behalf of the workman.
It was not urged before the trial Court or the first appellate Court that the plaintiff was prejudiced by the enquiry report as he could not effectively cross-examine the Department’s witnesses since he did not have the assistance of a co-worker or next friend. The trial Court gave a firm finding that fair and proper enquiry was held against the plaintiff. This finding was not challenged in first appeal. The only exception taken to the enquiry report was that it did not contain reason for holding that the charge of misappropriation stood proved, this plea was found to be unsustainable and it was held that the enquiry report contained reasons.
9. Admittedly, the departmental enquiry was held against the writ petitioners and the plaintiff under the Punjab Civil Services (Punishment & Appeal) Rules 1970.
10. The precise question which arose for determination is : Whether Rule 8(8) of the Punjab Civil Services (Punishment and Appeal) Rules, 1970, is mandatory or whether failure of the Inquiry Officer to apprise an employee of his right to take the assistance of any other Government employee to present the case on his behalf would vitiate the entire enquiry proceedings or not?
11. Rule 8 (8) of the Punjab Civil Services (Punishment and Appeal) Rules, 1970 (for short, the Rules) reads thus :-
” 8. Procedure for imposing major penalties :-
(1)to(4)… … …
(8) The Government employee may take the assistance of any other Government employee to present the case on his behalf, but may not engage a legal practitioner for the purpose unless the Presenting Officer appointed by the punishing authority is a legal practitioner, or the punishing authority having regard to the circumstances of the case, so permits.”
The use of the word “may” in this sub-rule is indicative of the fact that the Rule is directory and its non-compliance will not have drastic effect of vitiating the enquiry proceedings.
12. In Bhagat Ram v. The State of Himachal Pradesh1, A.I.R. 1983 S.C. 454; 1983(1) SLR 626, the apex Court was dealing with a case where the appellant was a Forest Guard belonging to the lower echelons of Class IV Service and whose educational attainments were not of a very high order. On the facts of that case, the apex Court held that justice and fair play demand that where in a disciplinary proceedings the Department is represented by a Presenting Officer, It would be incumbent upon the disciplinary authority while making appointment of a Presenting Officer to appear on his behalf simultaneously to inform the delinquent of the fact of appointment and the right of the delinquent to take the help of another Government servant before the commencement of enquiry. The apex Court while considering the provisions of Rule 15(5) of the Central Civil Services (Classification, Control and Appeal) Rules, 1964, observed as under:-
” The principle deducible from the provision contained in Sub-rule (5) of Rule 15 upon its true construction that where the department is represented by a Presenting Officer, it would be the duty of the delinquent officer, more particularly where he is a class IV Government servant whose educational equipment is such as would lead to an inference that he may not be aware of technical rules prescribed for holding inquiry, that he is entitled to be defended by another Government servant of his choice. If the Government servant declined to avail of the opportunity, the inquiry would proceed. But if the delinquent officer is not informed of his right and an overall view of the inquiry shows that the delinquent Government servant was at a comparative disadvantage compared to the disciplinary authority represented by their Presenting Officer and as in the present case, a Superior Officer, co-delinquent is also represented by an officer of his choice to defend him, the absence of anyone to assist such a Government servant belonging to the lower echelons of service would unless it is shown that he had not suffered any prejudice, vitiate the inquiry.
The aforementioned observations indicate that the apex Court posed a question to itself whether the delinquent official suffered any prejudice or was at disadvantage as compared to the disciplinary authority represented by a Presenting Officer. If the answer to the question is in the affirmative, then the enquiry would be vitiated, but if the answer is in the negative, then the enquiry proceedings would not be vitiated. This would vary from case to case. These observations in unequivocal terms suggest that the delinquent official can assail the enquiry proceedings if he could establish prejudice to himself in the course of enquiry proceedings. The delinquent official has to establish that he was put to a disadvantage as he did not have the assistance of a co-worker during the course of enquiry because he could not cross-examine the departmental witnesses he being not well equipped for it and that despite request he was not given the assistance of a next friend.
13. In Hans Raj Gupta’s case (supra), the learned Single Judge proceeds on the basis that it was settled in Bhagat Ram’s case by the apex Court that Rub 8(8) of the Rules was mandatory. No reasoning is recorded in this Judgment for coming to the conclusion that Rule 8(8) is mandatory. Apart from this, the petitioner in that case was an Assistant Food and Supplies Officer in the service of the Food and Supplies Department of the State of Punjab. His learned counsel did not refer to any material on record from which it could be inferred that the petitioner was prejudiced in the course of enquiry for not having the assistance of a next friend. In Bhagat Ram’s case (supra), the appellant was a Class IV employees.
14. The view taken by the learned Judge in Hans Raj Gupta’s case (supra) does not find support from the ratio of the Judgment of the apex Court in Bhagat Ram’s case (supra). The assumption that Rule 8(8) of the Rules is mandatory does not flow from the correct interpretation of the rule. The language of the sub-rule is clear and explicit. The words of the rule speak the intention of the rule-making authority. The Court has to give effect to it. The language of the rule cannot be stretched to give it a meaning which was not intended to. We cannot infer that the rule-making authority intended that the rule would be mandatory. It will he useful to reproduce the following observations of the apex Court in Dr. Ajay Pradhan v. State of Madhya Pradesh,4 (1988)4 S.C.C. 514:-
” Where the language is explicit its consequences are for Parliament, and not for the courts, to consider. Where the language of an Act is clear and explicit’, said Viscount Simon in King Emperor v. Bensari Lal Sarma, LR (1945) 72 IA 57,70 AIR 1945 PC 48, ‘we must give effect to it whatever may the consequences for in that case the words of the statute speak the intention of the legislature.’ We do not see why the same rule of construction should not apply to the Rules framed by the State Governments under Article 162 of the Constitution.”
The view taken by the learned single Judge in Hans Raj Gupta’s case (supra) cannot be upheld and the same is accordingly overruled.
15. In Kehar Din’s case, the petitioner was a Class IV employee, who was working as an Attendant in the post-Graduate Institute of Medical Education and Research, Chandigarh (for short, the P.G.I.). He was suffering from mental depression. He did not cross-examine two material witnesses examined by the P.G.I. On these proved facts, the learned Judge came to the conclusion that prejudice was caused to the petitioner during the course of enquiry. The conclusion arrived at by the learned Judge that the enquiry was vitiated was based on the peculiar facts of that particular case. It was in that context that the learned Judge held that Rule 14(8) (a) of the Central Civil Services (Classification, Conduct and Appeal) Rules, 1965, was mandatory. The ratio of the Judgment does not suggest that the learned Judge has laid down an abstract question of law that merely because the delinquent official was not informed that he was entitled to be assisted by another Government servant in the course of enquiry, the enquiry proceedings would stand vitiated.
16. The petitioners in both the writ petitions or the plaintiff in the regular second appeal did not urge before the Labour Court or before the civil Court that they had been put to any disadvantage during the course of enquiry for lack of assistance of a co-worker or a next friend. They never even remotely suggested that they could not cross-examine the departmental witnesses as they were not mentally equipped for it. We find no infirmity in the findings arrived at by the Labour Court in References No. 483 of 1987 and 339 of 1988 and in the conclusions arrived at by the first appellate Court in R.S.A. No. 2409 of 1986.
17. For the reasons stated above, the writ petitions and the regular second appeal fail and are dismissed, but with no order as to costs.