{"id":33607,"date":"2009-11-11T00:00:00","date_gmt":"2009-11-10T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/gulab-singh-vs-presiding-officer-on-11-november-2009"},"modified":"2015-02-04T07:04:27","modified_gmt":"2015-02-04T01:34:27","slug":"gulab-singh-vs-presiding-officer-on-11-november-2009","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/gulab-singh-vs-presiding-officer-on-11-november-2009","title":{"rendered":"Gulab Singh vs Presiding Officer on 11 November, 2009"},"content":{"rendered":"
Punjab-Haryana High Court<\/div>\n
Gulab Singh vs Presiding Officer on 11 November, 2009<\/div>\n
C.W.P. No.10934 of 2005                                   -1-\n\n     IN THE HIGH COURT FOR THE STATES OF PUNJAB\n             AND HARYANA AT CHANDIGARH\n\n                            C.W.P. No.10934 of 2005\n                            Date of Decision: 11.11.2009\n\nGulab Singh                                     .....Petitioner\n\n                             Versus\n\nPresiding Officer, Labour Court, U.T., Chandigarh and another\n                                              ....Respondents<\/pre>\n
Present: Mr. P.K. Sachdev, Advocate
\n         for the petitioner.\n<\/p>\n
         Mr. D.S. Nalwa, Addl. A.G., Haryana.\n<\/p>\n
CORAM:HON’BLE MR. JUSTICE K. KANNAN<\/p>\n
1. Whether Reporters of local papers may be allowed to see the
\n    judgment ? Yes\n<\/p>\n
2. To be referred to the Reporters or not ? Yes\n<\/p>\n
3. Whether the judgment should be reported in the Digest? Yes\n<\/p>\n
                               -.-\n<\/p>\n
K. KANNAN J.\n<\/p>\n
1.       The workman, who is a Conductor in Haryana<\/p>\n
Roadways, was shown the door out of employment on alleged<\/p>\n
proof of misconduct that he had committed the fraud of selling<\/p>\n
fake tickets to passengers and misappropriating money to the tune<\/p>\n
of Rs.1740\/- by fake tickets and Rs.260\/- by way of preparation<\/p>\n
of a fake way bill. The misconduct was alleged to have been<\/p>\n
detected by inspecting staff on 29.07.1997 when the workman<\/p>\n
was alleged to have admitted to his guilt before the checking staff<\/p>\n
but later in the enquiry, which was constituted, the admission was<\/p>\n
withdrawn. The Enquiry Officer, however, found the misconduct<\/p>\n
to have been established and the disciplinary authority dismissed
\n C.W.P. No.10934 of 2005                                  -2-<\/span><\/p>\n
him after serving him a notice to show cause against the<\/p>\n
punishment. The enquiry was found to be fair and proper by the<\/p>\n
Labour Court on a reference sought by the workman.             The<\/p>\n
workman challenges the order of the Labour Court before this<\/p>\n
Court by means of this writ petition.\n<\/p>\n
2.       The contention of the learned counsel appearing for the<\/p>\n
workman was that the enquiry was not fair and proper in that he<\/p>\n
was not apprised that he was entitled to the assistance of a co-<\/p>\n
worker for conduct of the trial.        Even the witness from the<\/p>\n
booking office had been reported to have been examined behind<\/p>\n
his back and he had not been given any opportunity to cross-<\/p>\n
examine the said witnesses.     There had been a criminal trial<\/p>\n
pending against the workman on the very same incident of alleged<\/p>\n
preparation of fake tickets and the departmental enquiry into the<\/p>\n
very same charge was not correct since the proof of the charge<\/p>\n
was technical in nature and the very same evidence was required<\/p>\n
to be used in the departmental proceedings.\n<\/p>\n
3.       To comment generally on the order of the Labour Court,<\/p>\n
I find that the Labour Court has not attempted any forensic<\/p>\n
appraisal of the issues involved in the case but has gone on to a<\/p>\n
mere reaffirmation of the finding by the Enquiry Officer without<\/p>\n
considering any of the three objections raised by the learned<\/p>\n
counsel appearing for the petitioner. On the last contention raised<\/p>\n
by him that a departmental enquiry ought not to have been
\n C.W.P. No.10934 of 2005                                  -3-<\/span><\/p>\n
undertaken when there was a criminal case pending with<\/p>\n
reference to the same charge, the learned counsel appearing for<\/p>\n
the workman relied on the decision Capt. M. Paul Anthony Vs.<\/p>\n
Bharat Gold Mines Ltd. and another 1999 LAB I.C. 1565. The<\/p>\n
Hon’ble Supreme Court referred to several earlier decisions and<\/p>\n
had deduced from the authorities the following principles as<\/p>\n
emerging and set out in paragraph 22 of the judgment, which run<\/p>\n
as follows:\n<\/p>\n
         “(i) Departmental proceedings and proceedings in a<\/p>\n
              criminal case can proceed simultaneously as there<\/p>\n
              is no bar in their being conducted simultaneously,<\/p>\n
              though separately.\n<\/p><\/blockquote>\n
         (ii) If the departmental proceedings and the criminal<\/p>\n
              case are based on identical and similar set of facts<\/p>\n
              and the charge in the criminal case against the<\/p>\n
              delinquent employee is of a grave nature which<\/p>\n
              involves complicated questions of law and fact, it<\/p>\n
              would be desirable to stay the departmental<\/p>\n
              proceedings till the conclusion of the criminal<\/p>\n
              case.\n<\/p><\/blockquote>\n
         (iii) Whether the nature of a charge in a criminal case is<\/p>\n
              grave and whether complicated questions of fact<\/p>\n
              and law are involved in that case, will depend upon<\/p>\n
              the nature of offence, the nature of the case
\n C.W.P. No.10934 of 2005                                   -4-<\/span><\/p>\n
               launched against the employee on the basis of<\/p>\n
               evidence and material collected against him during<\/p>\n
               investigation or as reflected in the charge sheet.<\/p>\n<\/blockquote>\n
         (iv) The factors mentioned at (ii) and (iii) above cannot<\/p>\n
               be considered in isolation to stay the departmental<\/p>\n
               proceedings but due regard has to be given to the<\/p>\n
               fact that the departmental proceedings cannot be<\/p>\n
               unduly delayed.\n<\/p><\/blockquote>\n
         (v) If the criminal case does not proceed or its disposal<\/p>\n
               is   being   unduly    delayed,   the   departmental<\/p>\n
               proceedings, even if they were stayed on account<\/p>\n
               of the pendency of the criminal case, can be<\/p>\n
               resumed and proceeded with so as to conclude<\/p>\n
               them at an early date, so that if the employee is<\/p>\n
               found not guilty his honour may be vindicated and<\/p>\n
               in case he is found guilty, administration may get<\/p>\n
               rid of him at the earliest.”\n<\/p><\/blockquote>\n
4.       The decision does not spell out any rigid rule that<\/p>\n
whenever there was a criminal case with reference to a same<\/p>\n
incident, the departmental enquiry cannot be proceeded with. The<\/p>\n
decision can also be seen as an authority that a criminal case and<\/p>\n
departmental enquiry do exist in two distinct spheres. It has also<\/p>\n
been held in several decisions that while the criminal case expects<\/p>\n
the proof of guilt to be beyond reasonable doubt, the departmental
\n C.W.P. No.10934 of 2005                                 -5-<\/span><\/p>\n
enquiry is premised on preponderance of probability.          The<\/p>\n
decision for the authority that if a criminal case proceeding were<\/p>\n
to be unduly protected, the Court could even resume the conduct<\/p>\n
of the departmental enquiry. The present incident itself is of the<\/p>\n
year 1997 and it is not seen either from the Enquiry Officer’s<\/p>\n
proceedings file or in the Labour Court’s award whether there has<\/p>\n
been any final adjudication by the Criminal Court. At best, the<\/p>\n
Criminal Court judgment itself could be merely a factor that the<\/p>\n
departmental enquiry could have taken note of, unless the charge<\/p>\n
itself made on the basis of a Criminal Court verdict in which case<\/p>\n
the alteration of verdict would have immediately a bearing on the<\/p>\n
result of the departmental enquiry or the punishment meted out to<\/p>\n
the workman.        The departmental enquiry had proceeded<\/p>\n
independently of the criminal case and therefore, in my view, it<\/p>\n
will be not any longer possible to await the decision of the<\/p>\n
Criminal Court or to assume that it will have any bearing to the<\/p>\n
course of the departmental enquiry. This decision of the Hon’ble<\/p>\n
Supreme Court was relied on by a subsequent ruling of a Division<\/p>\n
Bench of this Hon’ble Court in Sushil Kumar Vs. Food<\/p>\n
Corporation of India and others 2002(7) SLR 664 where the<\/p>\n
Hon’ble Bench found the criminal charge and the charge sheet<\/p>\n
issued departmentally were based on the same facts and had to be<\/p>\n
proved by the same witnesses when the Bench held that the<\/p>\n
acquittal in the criminal proceedings would by itself put an end
\n C.W.P. No.10934 of 2005                                  -6-<\/span><\/p>\n
and nullify the departmental proceedings. The said decision will<\/p>\n
have to be taken as governing the particular situation and cannot<\/p>\n
be applied in all instances of pendency of criminal proceedings as<\/p>\n
annulling the conduct of departmental proceedings also.           I,<\/p>\n
therefore, proceed to examine the correctness of the decision of<\/p>\n
the Labour Court uninfluenced by any decision that the Criminal<\/p>\n
Court could have come to.\n<\/p>\n
5.       It has been too well settled a proposition of law that in a<\/p>\n
challenge to the fairness of procedure and the propriety of the<\/p>\n
departmental proceedings, the Labour Court is bound under<\/p>\n
Section 11-A of the Industrial Disputes Act to examine both the<\/p>\n
factors as regards the procedural fairness and the ultimate<\/p>\n
propriety of its decision. The workman had complained in his<\/p>\n
response to the show cause notice issued by the departmental<\/p>\n
enquiry after receiving the findings of the Enquiry Officer that he<\/p>\n
had not been granted the assistance of a co-worker. The MW-1<\/p>\n
who was the only witness examined on behalf of the management<\/p>\n
before the Labour Court admitted; “it is correct that the Enquiry<\/p>\n
Officer did not tell the workman that he can take the assistance of<\/p>\n
a co-worker.”    Even if this were to be discounted merely as<\/p>\n
technical, a more substantial point of a procedure relating to an<\/p>\n
opportunity to the workman to know the incriminating documents<\/p>\n
or witnesses against him was again flouted.      The said witness,<\/p>\n
MW-1 had also admitted; “it is correct that in the list of witnesses
\n C.W.P. No.10934 of 2005                                 -7-<\/span><\/p>\n
given along with chargesheet, there were names of two Inspectors<\/p>\n
namely Rachna Ram and Balbir Singh and that the name of<\/p>\n
Inspectors Daljit Singh was not named” (sic). Daljit Singh was<\/p>\n
produced before the EO as departmental witness, whose name<\/p>\n
was not in the list of witnesses.” It is not merely a case of<\/p>\n
surprise at the trial by production of a witness, who was not set<\/p>\n
out in the list but even the Enquiry Officer had permitted a<\/p>\n
witness to be brought in with no opportunity to the workman to<\/p>\n
cross-examine. Hear the witness of MW-1 again on this: “it is<\/p>\n
correct that Amrik Singh was produced before the EO but no<\/p>\n
opportunity was given to the workman to cross-examine him.” I<\/p>\n
find that the linchpin on which the management was trying to<\/p>\n
prove the fake nature of the tickets was through the booking<\/p>\n
clerk, Amrik Singh and a petition has also been filed before the<\/p>\n
Labour Court for citing him as a witness and the Court had also<\/p>\n
issued the summons for his enquiry before the Labour Court for<\/p>\n
appearance on 25.05.2000. However, I find no record of any<\/p>\n
evidence as having been recorded of Amrik Singh. After all, if<\/p>\n
the charge was that the workman had used the fake tickets and has<\/p>\n
also used the fake way bill, the character of the tickets as fake<\/p>\n
must be only in relation to the real tickets. In other words, the<\/p>\n
fake character could be seen only by comparison to the real<\/p>\n
tickets. The checking staff could have found that the tickets were<\/p>\n
fake if they had known what the real tickets were with reference
\n C.W.P. No.10934 of 2005                                   -8-<\/span><\/p>\n
either to the serial numbers found in the tickets or in the manner<\/p>\n
in which it had been printed with any special features which were<\/p>\n
absent in the tickets. Unlike currency notes issued at the mint<\/p>\n
which are difficult to be duplicated and the fake character could<\/p>\n
be discernible even by a naked eye, the tickets printed and issued<\/p>\n
by a Transport Department normally could not be expected to be<\/p>\n
having any specific feature, which could be shown to be very<\/p>\n
distinctive from the fake ones. If they did exist, it was the duty of<\/p>\n
the management witness to show how it was possible to identify<\/p>\n
such fake tickets. I find absolutely no evidence either as having<\/p>\n
been brought before the Enquiry Officer or before the Labour<\/p>\n
Court. It is in this context that the admission of the management<\/p>\n
witness relating to the tickets assume importance. He admits in<\/p>\n
his cross-examination as follows:\n<\/p>\n
          “I have gone through the enquiry file before giving the<\/p>\n
          statement. The original alleged fake tickets were not<\/p>\n
          produced during the enquiry proceeding. It is correct<\/p>\n
          that Haryana Roadways used to get the tickets printed<\/p>\n
          from any Press. No report was called for from the Press<\/p>\n
          used to print the tickets to the fact that the said tickets<\/p>\n
          are fake…..”\n<\/p><\/blockquote>\n
It is not understood on what basis the Enquiry Officer could have<\/p>\n
ever come to the conclusion that the tickets were fake with no<\/p>\n
evidence whatsoever from the checking staff as to how the fake
\n C.W.P. No.10934 of 2005                                    -9-<\/span><\/p>\n
tickets were identified and even without production of the original<\/p>\n
tickets.\n<\/p>\n
6.         The finding could be seen to be suspect also from the<\/p>\n
another stand point. If the booking clerk had issued some tickets<\/p>\n
with specific serial numbers, which had been entered in the way<\/p>\n
bill, the genuine way bill and the tickets which had been handed<\/p>\n
over to the Conductor must have been simultaneously available<\/p>\n
with the Conductor even at the time of seizing the fake ones. The<\/p>\n
checking staff did not seize even the original tickets or the<\/p>\n
original way bill. If it is to be assumed that the original tickets<\/p>\n
and the way bill had been not recovered from the Conductor at the<\/p>\n
spot, it should have been recovered later in some other place at<\/p>\n
least, for it is only through the retention of genuine tickets and the<\/p>\n
return of the same to the booking clerk that a Conductor could<\/p>\n
ever commit a fraud and make misappropriation.             If all the<\/p>\n
original tickets had been used or not redelivered, the Conductor in<\/p>\n
any event becomes liable for money and no misappropriation<\/p>\n
would have been possible. In any way, the charge against the<\/p>\n
workman could never have been taken by the Enquiry Officer as<\/p>\n
having been established both procedurally and as a measure of<\/p>\n
content.\n<\/p>\n
7.         With all the above observations, it shall not be however<\/p>\n
still possible for me to set aside the award of the Labour Court<\/p>\n
and find the workman to be totally exculpated from the charge
\n C.W.P. No.10934 of 2005                                   -10-<\/span><\/p>\n
and let the matter reach a finality. If a finding were to be recorded<\/p>\n
that the enquiry had not been fair and proper, it shall become<\/p>\n
necessary to give an opportunity to the management to prove the<\/p>\n
misconduct before the Labour Court, as laid down in Workmen<\/p>\n
Vs. Firestone Tyre and Rubber Co. of India (P) Ltd. (1973) 1<\/p>\n
SCC 813 and Bharat Forge Co. Ltd. Vs. A.B. Zodge (1996) 4<\/p>\n
SCC 374.\n<\/p>\n
8.       The award of the Labour Court is under the<\/p>\n
circumstances set aside and the order of dismissal from service is<\/p>\n
set aside for the purpose of fresh enquiry as regards proof of<\/p>\n
alleged misconduct.     It shall be open to the management to<\/p>\n
establish the misconduct by production of such evidence as it may<\/p>\n
think necessary. The Labour Court shall consider the whole case<\/p>\n
in the light of any evidence that may be adduced before the Court<\/p>\n
and take a decision in accordance with law. The writ petition is<\/p>\n
allowed in the above terms. The parties shall appear before the<\/p>\n
Labour Court on 02.12.2009.\n<\/p>\n<\/p>\n
                                                (K. KANNAN)
\n                                                  JUDGE
\nNovember 11, 2009
\nPankaj*\n <\/p>\n","protected":false},"excerpt":{"rendered":"
Punjab-Haryana High Court Gulab Singh vs Presiding Officer on 11 November, 2009 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, […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,28],"tags":[],"class_list":["post-33607","post","type-post","status-publish","format-standard","hentry","category-high-court","category-punjab-haryana-high-court"],"yoast_head":"\nGulab Singh vs Presiding Officer on 11 November, 2009 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/gulab-singh-vs-presiding-officer-on-11-november-2009\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Gulab Singh vs Presiding Officer on 11 November, 2009 - 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