Haryana Roadways vs Shri Lochan Singh
2010 Latest Caselaw 3009 Del

                    *IN THE HIGH COURT OF DELHI AT NEW DELHI

+                             W.P.(C) 8983/2003

%                                             Date of decision: 1st July, 2010

HARYANA ROADWAYS                                                 ..... Petitioner
                Through:                    Mr. Manish Bishnoi, Advocate.

                                         Versus

SHRI LOCHAN SINGH                                              ..... Respondents
                              Through:      Mr. Praveen Sharma & Mr. D.M.
                                            Sharma, Advocates.

CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1.       Whether reporters of Local papers may
         be allowed to see the judgment?                        NO

2.       To be referred to the reporter or not?                 NO

3.       Whether the judgment should be reported                NO
         in the Digest?

RAJIV SAHAI ENDLAW, J.

1. The petitioner in this writ petition impugns the award dated 17th January,

2003 of the Labour Court holding the termination by the petitioner of the services

of the respondent workman to be bad for the reason of the domestic inquiry

conducted prior to such termination being vitiated. The domestic inquiry was held

to be vitiated in the earlier order dated 27th April, 2002 of the Labour Court for

two reasons; firstly because the Inquiry Officer admitted that the respondent

workman was not given the list of documents and was also not supplied the list of

witnesses and secondly because the Inquiry Officer acted also, as the Presenting

Officer. The award directs the petitioner to reinstate the respondent workman with

full back wages and continuity of service.

2. The respondent workman was employed with the petitioner as a conductor.

On 16th May, 1987 the bus of the respondent workman was checked by inspectors

of the petitioner at Ambala Cantt and it was found that the respondent workman

had from four of the passengers charged Rs.25/- only against the prescribed fare of

Rs.35.50p and issued tickets to them of Rs.18/- only. Two other passengers were

found sleeping on the roof and claimed to be there with the permission of the

respondent workman. The respondent workman was as such charged with causing

loss to the petitioner of the fare of a total sum of Rs.75.50p and having embezzled

the same. The explanation of the respondent workman having not been found

satisfactory, an Inquiry Officer was appointed. The respondent workman

participated in the inquiry; the Inquiry Officer submitted a report finding the

charges to have been made out and the Disciplinary Authority of the petitioner

imposed the punishment of dismissal from service on the respondent workman.

The respondent workman thereafter raised a dispute and on which the award

aforesaid was made.

3. The petitioner, aggrieved from the award preferred the present petition.

This Court vide ex parte order dated 23rd April, 2004 while issuing notice of the

petition stayed the operation of the award subject to the petitioner depositing with

the Asstt. Labour Commissioner the amount sought to be recovered; however the

amount was not permitted to be disbursed to the respondent workman. The

respondent workman applied under Section 17B of the ID Act and vide order

dated 22nd March, 2006 the said application was allowed.

4. The only question requiring adjudication is with respect to the finding of

the Labour Court of the domestic inquiry preceding the termination of the services

of the respondent workman being vitiated for the two reasons aforesaid. It being

the contention of the petitioner that the finding of the Labour Court of the list of

documents and list of witnesses having not been supplied to the respondent

workman is contrary to the record, the file of the Labour Court was also

requisitioned and has been perused.

5. The respondent workman before raising the dispute had also preferred a

departmental appeal, though to the wrong authority. The memorandum of the said

appeal is found on the file of the Labour Court. In the said departmental appeal,

though the respondent workman had complained about non-supply of the report of

the Inquiry Officer but is not found to have complained of non-supply of list of

documents or list of witnesses accompanying the chargesheet. Only, generally it

has been stated that the inquiry has not been done in accordance with the

principles of natural justice.

6. I have also perused the claim petition filed by the respondent workman

before the Labour Court. There is no complaint therein also, of the list of

documents & list of witnesses accompanying the chargesheet having been not

supplied to the respondent workman. The respondent workman has however

complained that the day to day proceedings of the inquiry were not given to him

and the report of the Inquiry Officer had also not been given to him.

7. I have also perused the affidavit by way of examination-in-chief of the

respondent workman before the Labour Court. The position therein is also the

same. Though, it has been deposed that the day to day proceedings of the inquiry

and the inquiry report were not supplied but there is no grievance of non-supply of

list of documents and list of witnesses accompanying the chargesheet.

8. Though strict rules of pleadings and evidence do not apply to the

proceedings before Industrial Adjudicator but in the face of the respondent

workman making express grievance of non-supply of day to day proceedings of

the inquiry and the report of the Inquiry Officer, had the list of documents and list

of witnesses accompanying the chargesheet been not supplied to the respondent

workman and/or had the respondent workman considered himself prejudiced

therefrom, grievance in that respect would also have certainly been made. When

the respondent workman has neither in his pleadings nor in his evidence

complained of non-supply of list of documents and list of witnesses accompanying

the chargesheet, the Labour Court, of its own, ordinarily ought not to have held the

inquiry to be vitiated on the said ground.

9. Interestingly, the respondent workman in his cross examination admitted

that his bus was checked as aforesaid; that he had participated in the inquiry

proceedings and had also examined one witness therein.

10. The petitioner examined the Inquiry Officer as its witness before the

Labour Court. The said Inquiry Officer in his cross examination deposed "As per

the record no list of documents was given to the workman along with the

chargesheet. Copies of the documents were not supplied to the workman before

conducting inquiry as same are not given as a practice. I cannot tell whether copies

of the documents given during the inquiry to the workman or not". The earlier

Inquiry Officer was also examined as a witness and similarly deposed that he did

not give any list of documents, list of witnesses and documents to the workman

before or during the inquiry. The Labour Court on the basis of the said cross

examination reached the conclusion of the list of documents and list of witnesses

accompanying the chargesheet having not been supplied and the inquiry being

vitiated for the said reason.

11. The counsel for the petitioner in this regard has drawn attention to the

chargesheet which has been signed by the respondent workman at the bottom in

token of receipt. It is also shown that the list of witnesses is contained at the

bottom of the chargesheet itself and as such the question of non-furnishing thereof

to the respondent workman does not arise. He also draws attention to the reply by

the respondent workman to the chargesheet and which also does not complain of

non-furnishing of list of documents or list of witnesses. Attention is also invited to

the notice sent by the Inquiry Officer of hearing to the respondent workman and

wherein also the names of witnesses are mentioned. It is urged that the respondent

workman not only cross examined the witnesses of the petitioner but produced his

own witnesses before the Inquiry Officer and all of which would not have been

done had the respondent workman been not fully aware of the scope of the inquiry

and the case/charge against him.

12. I may add that the perusal of the Labour Court record also shows that the

respondent workman was represented by legal practitioners.

13. The counsel for the petitioner has also contended that the Inquiry Officer is

not required to furnish the list of witnesses and documents accompanying the

chargesheet to the delinquent workman unless demanded from the Inquiry Officer

in as much as the chargesheet is served on the delinquent workman prior thereto. It

is urged that thus the statement in cross examination of the Inquiry Officer of

having not supplied/delivered list of documents and list of witnesses is of no avail;

if the same had not been delivered, the respondent workman would have

demanded the same from the Inquiry Officer. It is also contended that in three

years' service, 17 warnings had been meted out to the respondent workman.

Reliance is placed on:-

i. Karnataka State Road Transport Corporation Vs. B.S. Hullikatti

AIR 2001 SC 930 laying down that misplaced sympathy in cases

when, on checking, the bus conductors are found to have either not

issued tickets or having issued tickets of lower denomination

should not come in the way of meting out appropriate punishment;

ii. U.P.State Road Transport Corporation Vs. Ram Chandra Yadav

2000 VII AD (S.C.) 304 laying down that rules of natural justice

are not violated by examination of witnesses on an unscheduled

date, particularly when the names of such witnesses were already

known from prior thereto.

14. The counsel for the respondent has per contra urged that the finding of the

list of documents and list of witnesses having not been supplied is a finding of

fact and incapable of interference in the exercise of writ jurisdiction. Reliance is

placed on Filmistan Exhibitors Ltd. v. N.C.T., thr. Secy. Labour 131 (2006)

DLT 648.

15. The finding of the Labour Court of the domestic inquiry being vitiated for

the reason of non-supply of list of documents and list of witnesses is in the

aforesaid facts and circumstances found to be perverse. The Labour Court has not

at all considered that neither was any grievance made by the respondent workman

in this regard nor was it the case of the respondent workman. The proceedings

before an Industrial Adjudicator, even though not governed by technical rules of

Civil Procedure Code and Indian Evidence Act, nevertheless are judicial

proceedings. A party ought to know what case it is required to meet of the other.

Without the petitioner knowing that the domestic inquiry was challenged for the

said reason, an answer in cross examination to a stray question cannot form the

basis of the order/award of the Labour Court. The petitioner in the present case did

not produce any evidence to establish that the list of documents and list of

witnesses had been furnished. The Inquiry Officers were examined not in proof of

the said fact but to prove the proceedings in the inquiry. There is merit in the

contention of the counsel for the petitioner that the chargesheet had been delivered

to the respondent workman prior to the Inquiry Officers coming into picture and

the answer of the Inquiry Officer of having not delivered the list of documents and

list of witnesses cannot mean that the list of documents and list of witnesses

accompanying the chargesheet were not delivered to the respondent workman. The

said reasoning given by the Labour Court is thus set aside.

16. The only other ground on which the inquiry has been held to be vitiated is

that of the Inquiry Officer also acting as the Presenting Officer. The counsel for

the petitioner relies on the Division Bench judgment of this Court in Ramesh

Chand Vs. DTC 2007 (96) DRJ 399, where also an argument was raised of the

inquiry being vitiated in the absence of the Presenting Officer. The Division

Bench found that no such contention was ever raised at any stage prior thereto

before the Labour Court or the Single Judge and held that the plea being factual

and no foundation therefor having been made could not be permitted to be taken at

the stage of argument of the appeal. Reliance was placed on Workmen in

Buckingham & Carnatic Mills, Madras Vs. Buckingham & Carnatic Mills,

Madras 1970 (1) LLJ 26 SC holding that principles of natural justice are not

violated when the Presiding Officer asks questions, elicits answers and

clarifications from the witnesses.

17. A domestic inquiry is an inquisitorial and not adversarial proceeding. The

Inquiry Officer is not to weigh the case of two sides and to adjudicate which one

of them is right, but to enquire whether the charge against the delinquent workman

is made out or not. In the absence of any plea of bias, the admission of the Inquiry

Officer in cross examination, and which Inquiry Officer is also a colleague and has

fraternity affiliations to the respondent workman, that there was no Presenting

Officer and he was acting in both the capacities cannot vitiate the inquiry.

18. Again, it was not the case of the respondent workman that the domestic

inquiry was vitiated for this reason. The Labour Court has also not recorded any

prejudice to have been caused to the respondent workman for the said reason.

Even if the Inquiry Officer acted as the Presenting Officer, in so far as the same

has not resulted in any prejudice to the respondent workman, the said factor cannot

be held to have vitiated the inquiry.

19. The award of the Labour Court, on this account also, is thus found to be

perverse and contrary to the settled legal position.

20. Though the counsel for the respondent workman has during the hearing

also contended that the Inquiry Officer did not examine the passengers but since

the same does not form the basis of the award, need is not felt to go into the said

aspect. Moreover in State of Haryana Vs. Rattan Singh AIR 1977 SC 1512

followed in Divisional Controller, KSRTC Vs. A.T. Mane (2005) 3 SCC 254 and

DTC Vs. N.L. Kakkar, Presiding Officer MANU/DE/0135/2004, the Courts have

held that there are inherent practical difficulties in examination of passenger

witnesses; that the production of passengers either in a domestic inquiry or before

the Labour Court in an industrial dispute is not at all necessary and their non

examination cannot be fatal.

21. The respondent workman in the present case has not made out any case of

victimization/motives on the part of the petitioner to be wanting to remove him

from the services. The disciplinary proceedings against the respondent workman

commenced pursuant to an inspection of the bus of the respondent workman and

there is no reason for this Court to not believe the same. Once the same is to be

believed, the finding of the Inquiry Officer against the respondent workman

cannot be disturbed particularly when the principles of natural justice are found to

have been complied with.

22. The petition is allowed. The award 17th January, 2003 is set aside/quashed.

The domestic inquiry conducted prior to the order of termination of the respondent

workman is found to be valid and legal and in compliance of the principles of

natural justice. Resultantly, the termination of services of the respondent workman

is found to be legal and justified and the respondent workman is not found entitled

to any relief.

The petition is disposed of.

No order as to costs.

RAJIV SAHAI ENDLAW (JUDGE) 1st July, 2010 pp