Delhi Transport Corporation vs Om Pal And Anr.
2004 Latest Caselaw 690 Del

JUDGMENT

Mukundakam Sharma, J.

1. The present writ petition is filed by the petitioner corporation aggrieved by the orders dated August 12, 2002 and August 26, 1998 passed by the Industrial Tribunal No. II in O.P. No. 252/92 on the basis of an application filed under section 33(2)(b) of the Industrial Disputes Act, 1947.

2. The aforesaid application was filed by the Corporation seeking approval of its decision to remove the respondent No.1 from service. The allegation against the respondent is that he was issuing tickets of less amount after collecting full fare charges from the passengers and an amount of Rs.21.70 paise was found less and, therefore, he misconducted himself. Accordingly, a charge sheet was issued to the petitioner on the basis of which a domestic enquiry was held and in the said domestic enquiry the respondent was found guilty. Consequently, the disciplinary authority removed the respondent from service of the corporation by order dated July 2, 1992. Along with the said order of removal, the corporation remitted full one month wage to the respondent. After taking the aforesaid action, the aforesaid application was filed by the corporation seeking approval of their action. After receipt of the aforesaid application and on the basis of the pleadings of the parties, a preliminary issue was framed by the Tribunal on March 3, 1993 to the following effect:-

"Whether the applicant held a legal and valid enquiry against the respondent according to the principles of natural justice?"

3. Evidence was led and thereafter an order was passed by the Tribunal on August 26, 1998 holding that no documentary evidence was produced in the enquiry by the Corporation in support of its case and that neither the respondent nor the passengers were confronted with any statement in the enquiry. The Industrial Tribunal further held that in view of the statements of the passengers before the enquiry officer the respondent could not have held the workman guilty and, therefore, the findings of the enquiry officer were perverse as far as the charge is concerned. It was also held that there was no evidence on record to prove and establish as to how many tickets were found to have been issued by the workman till the time of checking and what amount of cash he had received till then, and that in absence of the aforesaid details the enquiry officer could not have held that the aforesaid charge against the workman also stood proved. Consequently, the Tribunal held that the enquiry conducted by the management was in violation of the principles of natural justice and that the findings of the enquiry officer were also perverse. The said issue was accordingly decided against the Corporation.

4. Thereafter, the matter was again placed before the Industrial Tribunal when three issues were framed by the Tribunal on December 16, 1998. After considering the records and the evidence adduced, the learned Presiding Officer held that the testimonies of AW-3 and AW-4 were not sufficient to prove the alleged misconduct of the respondent particularly when the management did not make any effort to call the passenger witnesses who happened to be primary evidence of the allegations. In the light of the aforesaid conclusion it was held that the management failed to prove the misconduct of the respondent. It was also held that one month's wage was paid to the respondent, but in the context of the finding on issue No.1 the Tribunal was of the opinion that the approval application of the Corporation under section 33(2)(b) of the Industrial Disputes Act should be dismissed. Consequently, the prayer for approval was rejected. Being aggrieved by the said decision, this writ petition is filed on which I have heard the learned counsel appearing for the parties.

5. It was contended by the counsel appearing for the petitioner that besides and apart from the statements of the passengers there was other materials on record. It was submitted that on the basis of the entire evidence on record the enquiry officer in the domestic enquiry came to the conclusion that the respondent was guilty of misconduct and, therefore, the Industrial Tribunal exceeded its jurisdiction in holding that the findings of the enquiry officer were perverse. It was submitted that production of passenger witnesses either in the domestic enquiry or before the Industrial Tribunal in an industrial dispute should not be considered to be at all necessary as it could be highly impractical to produce such witnesses. In support of the said contention, counsel for the petitioner relied upon the decision of this Court in Shyam Sunder v. Delhi Transport Corporation (CWP No. 922/76, decided on February 5, 1996) and also the decision in Delhi Transport Corporation v. N.L. Kakkar and another, 110 (2004) D.L.T. 493. Reliance was also placed by the learned counsel on the decision of the Supreme Court in State of Haryana v. Rattan Singh, . Counsel appearing for the respondent-workman, however, submitted that this court while exercising powers under section 226 of the Constitution of India cannot sit as a court of appeal over the findings and conclusions reached by he Industrial Tribunal in order to come to a contrary finding. It was also submitted by him that the cases cited at the bar by the counsel appearing for the petitioner are not applicable to the facts and circumstances of the case. It was submitted by him that in the trial held by the Tribunal the petitioner corporation withheld the best witnesses like the driver and passenger witnesses. He pointed out that the driver and passengers of the bus were not examined by the corporation before the Industrial Tribunal and, therefore, no relief could be granted in favor of the petitioner for withholding the best evidence as available.

6. The charge against the respondent was that on January 14, 1992 the checking team of Delhi Transport Corporation checked the bus in which the respondent was on duty as a conductor and found that two passengers were traveling without tickets and on being asked by the checking officials those passengers told the checking staff that they had paid the due fare to the conductor but he had not issued the tickets to them. Those two passengers gave written statements at the time of checking. Even the respondent also signed the said statements and also handed over three unpunched tickets to the checking officials. On checking the cash available with the respondent it was found to be short by Rs.21.70 paise on the basis of which the aforesaid charge sheet was issued. The learned Tribunal by its order dated August 26, 1998 held that the enquiry conducted by the management was in violation of the principles of natural justice and that the findings recorded by the enquiry officer were also perverse. The said conclusions were reached on the basis of observations that the passenger witnesses who were examined before the enquiry officer did not support the management's case in the enquiry. One of the passengers stated before the enquiry officer that he did not pay the fare to the respondent and that because of fear of getting arrested by the police as he was threatened by the checking officials he had spoken a lie at the time of checking of the bus. The learned Industrial Tribunal found fault with the report of the enquiry officer on that count and it was held by the Presiding Officer that it was unfortunate that the enquiry officer did not attach any importance to the aforesaid unchallenged statement of the passenger and proceeded to reject the same observing that he was mixed up with the respondent. It was also held that no documentary evidence was produced in the enquiry and that neither the respondent nor the passengers were confronted with any statement in the enquiry. Accordingly, it was held that the findings of the enquiry officer were perverse. Counsel appearing for the respondent vehemently supported the aforesaid findings recorded by the learned tribunal, whereas the counsel appearing for the petitioner submitted that the said findings of the learned Industrial Tribunal are not only without jurisdiction but the same are also contrary to the settled position of law as laid down by this Court and the Supreme Court.

7. So far the comments of the Presiding Officer on the evidence of the passenger witness is concerned, the passengers gave in writing statements to the checking officials that they had paid due fare to the conductor but that the conductor had not issued the tickets. The respondent also signed the said statements. The aforesaid statements given by the passengers to the checking officials containing admission of the respondent were placed before the enquiry officer. The passengers were confronted with the aforesaid statements. As stated above one of the passengers sought to resile from his earlier statement contending that the said statement was given out of fear of getting arrested by the police as was threatened by the checking officials. Such a stand on the part of the passenger cannot be accepted. The aforesaid alleged threat is definitely an after thought. Even assuming that the statement given by the passenger witness to the checking staff, which is an admitted position in the enquiry, cannot be taken into consideration in view of the subsequent stand of the passenger before the enquiry officer, in my considered opinion the independent evidence like the evidence of the checking staff which is produced in the matter could be looked into and on the basis thereof a finding could have been arrived at that the respondent is guilty of the misconduct. The enquiry officer came to such a conclusion that the respondent is guilty of the misconduct on the basis of all the evidence on record including the evidence of the checking staff and not only on the basis of the solitary evidence in the nature of statements of the passenger witnesses. The learned Industrial Tribunal decided the case primarily on the basis of the fact that the passenger witness did not support the case of the management. In this connection I deem it appropriate to refer to the decision of the Supreme Court in State of Haryana v. Rattan Singh (supra). In the said decision three contentions were mainly raised before the Supreme Court which are as follows:-

(1) None of the passengers traveling without tickets were examined in the domestic enquiry.

(2) The checking inspectors had violated a departmental instructions by not recording the statements of the passengers.

(3) The co-conductor in the bus had affirmed the innocence of the conductor.

In paragraph 4 of the said judgment the Supreme Court had held that a domestic inquiry can take into consideration all materials logically probative for a prudent mind and that there is no allergy of hearsay evidence, provided it has reasonable nexus and credibility. It was also held in the said decision that the passengers are not required to be chased and brought before the domestic tribunal. On the scope of permissible interference with the conclusions of a domestic inquiry, the Supreme Court said in the same paragraph that what has to be seen is whether there was some evidence or was it a case of no evidence. It was further held that as long as there was some evidence, sufficiency thereof in proof of a finding by a domestic tribunal is beyond scrutiny. The Supreme Court found that there was some evidence before the inquiry officer and, therefore, the order passed in the domestic inquiry could not be held invalid. The following passage from the decision of the Supreme Court is worth quoting which is as under:-

"It is well settled that in a domestic inquiry the strict and sophisticated rules of evidence under the Indian Evidence Act may not apply. All materials which are logically probative for a prudent mind are permissible. There is no allergy to hearsay evidence provided it has reasonable nexus and credibility. It is true that 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 Indian Evidence Act. For this proposition it is not necessary to cite decisions nor text books, although we have been taken through case law and other authorities by counsel on both sides. The essence of a judicial approach is objectivity, exclusion of extraneous materials or considerations and observance of rules of natural justice. Of course, fairplay is the basis and if perversity or arbitrariness, bias or surrender of independence of judgment vitiate the conclusions reached, such finding even though of a domestic tribunal, cannot be held good. However, the Courts below misdirected themselves, perhaps, in insisting that passengers who had come in and gone out should be chased and brought before the tribunal before a valid finding could be recorded. The `residuum' rule to which counsel for the respondent referred, based upon certain passages from American Jurisprudence does not go to that extent nor does the passage from Halsbury insist on such rigid requirement. The simple point is, was there some evidence or was there no evidence - not in the sense of the technical rules governing regular Court proceedings but in a fair commonsense way as men of understanding and worldly wisdom will accept. Viewed in this way, sufficiency of evidence in proof of the finding by a domestic tribunal is beyond scrutiny. Absence of any evidence in support of a finding is certainly available for the Court to look into because it amounts to an error of law apparent on the record. We find, in this case, that the evidence of Chamanlal, Inspector of the flying squad, is some evidence which has relevance to the charge levelled against the respondent. Therefore, we are unable to hold that the order is invalid on that ground."

8. In Shyam Sunder v. Delhi Transport Corporation (supra) this Court held that since the enquiry officer based his findings on the examination of the checking staff, there was independence evidence to link the petitioner with the charges levelled against him, and consequently it was held that the statement of the passengers, not being the sole material against the petitioner, the domestic inquiry was not vitiated. The aforesaid decision of this Court as also the decision of the Supreme Court in Rattan Singh (supra) and many other decisions were noticed by this Court in the decision in Delhi Transport Corporation v. N.L. Kakkar and another (supra). After noticing all the judgments, this Court held that it is quite clear that consistent view of the court over the last few decades has been that non-production of the passenger witnesses is not fatal to the domestic inquiry and that findings of fact arrived at in a domestic inquiry should not be interfered with so long as they are based on some evidence. It was further held that the value of that evidence and what weight is to be attached to it is within the jurisdiction of the tribunal. In the said judgment this court also noted the law laid down by some other High Courts and thereafter it was held that the production of passengers either in a domestic inquiry or before the Labour Court in an industrial dispute is not at all necessary. This Court was of the view that in most cases this would be highly impractical because it would mean that passengers would have to be traced out, chased and brought before the inquiry officer or the Labour Court causing them unnecessary inconvenience. I am of the considered opinion that all the aforesaid decisions are fully applicable to the facts and circumstances of the present case.

9. In the present case, there was evidence before the enquiry officer in the form of statements of the two passengers, the unpunched tickets and also the evidence of the checking staff. The evidence adduced by the passenger before the enquiry officer giving reasons for resiling from the earlier statements given to the checking staff is found to be not worthy of any credence. In my considered opinion, in the present case there was independent evidence to link the petitioner with the charges levelled against him and the Tribunal did not appreciate the issues in the right perspective and on the law laid down and, therefore, it committed an error. The present case is definitely not a case of no evidence. This is not a case of perversity as was held by the Tribunal because there was definitely legal evidence before the enquiry officer having nexus with the events that were being enquired into. The guilt of the respondent was correctly established by the enquiry officer. As the Tribunal fell into an error in holding that the domestic enquiry was vitiated, I am of the considered opinion that both the orders of the Tribunal are liable to be set aside.

10. Accordingly, the writ petition succeeds and the same is allowed. Consequently, the impugned order dated August 26, 1998 passed by the Industrial Tribunal is set aside and quashed and the order of removal from service passed against the respondent conductor is restored. The second order passed by the Industrial Tribunal on August 12, 2002 also stands set aside on the same ground. In the facts and circumstances of the case, I, however, leave the parties to bear their own costs.