Kehar Din vs The Presiding Officer, Labour Court and Another

H.S. Bedi, J.—Petitioner Kehar Din who was working as an Attendant in the Post Graduate Institute of Medical Education and Research, Chandigarh (hereinafter referred to as the P.G..) was charge-sheeted under Rule 3(1)(i) and (ii) of the Central Civil Service (Classification, Conduct and Appeal) Rules, 1965 (hereinafter referred to as the Rules) on the ground that on 26th September, 1965 he had stolen certain injections and medicines from the P.G.I. A regular enquiry was held on the allegations given in the charge-sheet and the Enquiry Officer recommended dismissal of the Petitioner from the service of the P.G.I. The matter was thereafter referred to the punishing authority i.e. Director of the P.G.I, who,--vide order dated 31st May, 1986 Annexure P-6 removed the Petitioner from service with immediate effect. The removal was thereafter confirmed by the Minister of Health and Family Welfare, Government of India as required by the Rules, Aggrieved by the action that had been taken against him, the Petitioner sought and secured a reference to the Labour Court, Union Territory, Chandigarh who,--vide its Award Annexure P-8 declined to interfere and, held that the services of the Petitioner had not been terminated illegally and as such he was not entitled to any relief. The Labour Court weighed the evidence adduced by the P.G.I. before the Enquiry Officer and on appreciation thereof some to this conclusion. The primary fact that weighted with the Court was that when the matter of theft was reported by the staff nurses to the Security Officer, the Petitioner admitted his guilt and begged for giveness. The Labour Court was also impressed by the fact that when the Petitioner was produced before Dr. Kalra, one of the Senior Officers of the P.G.I., he once again confessed his guilt. The present petition has been filed against the award Annexure P-8 on the allegations that the report of the Enquiry Officer was biased and based on mere suspicion and the proper procedure as provided by the Rules had not been followed. Pointed attention has been focussed on the fact that the two material witnesses i.e. Miss Alekutty and Mrs. Meena Masih, Staff Nurses, who were first informants of the incident and whose statements are appended Annexures P-2 and P-8 with the writ petition were not allowed to be cross-examined by the petition and the Labour Court brushed aside this fact by stating that even if the evidence of these two witnesses was to be ignored, there was adequate evidence on the record to hold the Petitioner guilty. It was also contended that non-compliance with the provisions of Rule 14(8)(a) which stipulated that the delinquent government servant was entitled to the assistance of a Presenting Officer, Rule 14(14) which provided for an opportunity to cross-examine the witnesses and Rule 15 which provided that the copy of the enquiry report, as also service of a second show cause notice before imposition of penalty, had vitiated the enquiry.

In answer to the various contentions raised in the writ petition, the Respondents in the written statement as also in the course of arguments by their learned Counsel have relied on the finding of fact recorded by the Labour Court as also by the Enquiry Officer and have further argued that these concurrent findings of fact should not be interferred with by the High Court on a reappraisal of the evidence adduced.

After hearing the learned Counsel for the parties, I find that the petition deserves to succeed. It will be apparent from a reading of Rule 14(a) already referred to above that a delingent official is entitled to the services of a Presenting Officer and it has been urged by Mr. Verma learned Counsel for the Petitioner that it was incumbent upon the enquiry officer to make the Petitioner aware of this fact and the omission to do so would itself vitiate the enquiry. He has relied upon Bhagat Ram Vs. State of Himachal Pradesh and Others, , which bears out the arguments of the learned Counsel. This is what the Supreme Court had to say:

The principle deducible from the provision contained in Sub-rule (5) of Rule 15 upon its true construction is that where the department is represented by a Presenting Officer, it would be the duty of the delinquent officer, more particularly when 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 the 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 any one 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.

Viewed in the light of the above, it is clear that the Petitioner who is admittedly a Class IV employee, and as per the record, was suffering from some kind of depression, was definitely prejudicied in not being made aware of the fact that he was entitled to be assisted in the enquiry by another Government servant belonging to the department particularly when the P.G.I. itself was represented by its Presenting Officer Amar Singh by name. The enquiry against the Petitioner, therefore, stands vitiated on this short ground.

It has been additionally argued by the learned Counsel for the Petitioner that Sub-clause (4) of Rule 14 of the Rules provided that the Petitioner was entitled to cross-examine the witnesses produced by the P.G.I, and admittedly this was not done in the case of the two material witnesses, namely, Miss Alekutty and Mrs. Meena Mashih. He has urged that even these two witnesses had sot seen the Petitioner actually stealing the medicines in question and they had come to the spot after the theft had in fact taken place. On this reasoning Mr. Verma argued, that had the Petitioner been allowed to cross-examine these witnesses, some facts in favour of the Petitioner could well have been elicited. Denial of the opportunity to cross-examine the above said Witnesses was thus said to have caused prejudice to the Petitioner and accordingly vitiated the enquiry. This argument too, to my mind, is unexceptionable. Admittedly, the opportunity to cross-examine the witnesses was not given and the finding of the Labour Court that their evidence could well be ignored is contrary to the well settle principle of law that the first informant who is the best witness of the incident must be put up for cross-examination so that the truth might be elicited. It is possible that had these two witnesses been cross-examined, a story favourable to the Petitioner could well have come out. I am, therefore, of the view that noncompliance with this rule, once again vitiates the domestic enquiry.

It has next been argued by the learned Counsel for the Petitioner that the provisions of Rule 15 of the Rules which provide for the supply of the report of the enquiry officer to the delinquent and the issuance of a show cause notice before the imposition of a penalty, has also not been admittedly con t led with which yet again vitiates the enquiry. For this purpose reliance has been placed on Union of India and Ors. v. Mohd. Ramzan Khan 1991 (1) S.L.R. This argument too, has some force. Admittedly, the rules which are applicable to the P.G.I. do provide for the issuance of second show cause notice before the imposition of a penalty, although the rules have been amended in their applicability to other organizations. Even if the Rules did not so provide, the Supreme Court in the aforesaid case has held that the rules of natural justice require the issuance of such a notice and the consideration of the reply received thereto. Admittedly, this has not been done in the present case. The Court also held in Mohd. Ramzans''s case that the supply of the enquiry report along with the opinion recorded by the Enquiry Officer was a mandatory requirement under the Rules and its non-compliance would vitiate the enquiry. However, keeping in view the fact that the law on this aspect had remained unsettled for sometime it was stated in para No. 17 of the judgment that this part of the judgment would have prospective application and no punishment shall be open to challenge on this ground. Admittedly, the punishment was imposed in this case long Before the judgment aforesaid was rendered and as such an this particular score the Petitioner cannot succeed.

Mr. Nehra learned Counsel for the P.G.I, has urged that even if the petition be allowed, the management should he permitted hold a fresh enquiry against the Petitioner and as he has lost confidence of the management, he should not in any case be reinstated in service. In support of his contention he has relied upon Bhagat Ram''s case supra. I think this argument is also of no avail. The Petitioner is admittedly a Class IV employee belonging to the poorest sections of the Society. He has undergone the agony of a domestic enquiry proceedings before the Labour Court and also now before this Court for more than five years and as such has been adequately punished for what he may or may not have done. In this view of the matter, it would be inappropriate to remand the case for fresh enquiry or to deny the Petitioner the benefit of reinstatement in service.

For the reasons recorded above, the petition is allowed. Annexure P-8 is quashed with no order as to costs. The Petitioner is directed to be reinstated in service with full back wages and with continuity in service. He shall be put back in service forthwith and given His arrears etc. within a period of two months of the receipt of a copy of this order, by the Respondents.