Delhi Transport Corporation, ... vs Radhey Kishan, S/O Shri Babu Ram
2004 Latest Caselaw 811 Del

JUDGMENT

Madan B. Lokur, J.

1. The Petitioner has challenged an Award dated 26th May, 2003 passed by the learned Labour Court in ID No.53/1989.

2. The issue referred for consideration was as follows:-

"Whether the termination of the services of Sh. Radhey Kishan is illegal and/or unjustified and if so, to what relief is he entitled and what directions are necessary in this respect?"

3. The only contention that has been urged by learned counsel for the Petitioner is with regard to the quantum of punishment that has been imposed on the Respondent/workman. According to learned counsel for the Petitioner, there was absolutely no reason for completely setting aside the punishment of termination from service and directing reinstatement of the Respondent/workman with 40% back wages.

4. To appreciate the contention of learned counsel, it is necessary to elucidate the facts of the case.

5. The Respondent/workman was a bus driver with the Petitioner. At about 9.00 pm on 6th June, 1986, one Sat Prakash Gupta got down from the bus and wanted to cross the road. While he was in front of the bus, the Respondent/workman dashed the bus against him. On some people raising a noise, the bus was stopped and Sat Prakash Gupta was removed from under the bus. The Respondent/workman assured the persons present that Sat Prakash Gupta will be taken to a hospital. It appears that there were no passengers in the bus at that time and the assurance was given to those present on the road. On this assurance, Sat Prakash Gupta was put in the bus for being taken to a hospital.

6. One of the persons who had earlier disembarked along with Sat Prakash Gupta had later informed his son Pawan Gupta about the accident. Thereafter, when Pawan Gupta tried to locate his father in the nearby hospitals, he was not able to find him and the next morning he came to know from the ESI Hospital that his father had died in the accident.

7. Inquiries revealed that the Respondent/workman and the conductor of the bus did not take Sat Prakash Gupta to a hospital but they seem to have left him in some drain where he died. Thereafter, some person seems to have discovered him and taken him to the hospital.

8. On these facts, a criminal case was registered against the Respondent/workman but he was found not guilty. Apparently no criminal action was initiated against the conductor.

9. A departmental inquiry was also initiated against the Respondent/workman in which it was alleged that he had caused an accident in which a passenger had died and that he had not given any information about this accident either to the police or to the depot officials. The inquiry officer found the Respondent/workman guilty of misconduct and thereafter the disciplinary authority dismissed him from service.

10. The Respondent/workman raised an industrial dispute which, as mentioned above, was referred for adjudication. One of the issues raised before the learned Labour Court was whether the inquiry was conducted in a fair and proper manner and this was decided in favor of the Petitioner and against the Respondent/workman. Thereafter, the other issues were taken up including the question whether the punishment imposed upon the Respondent/workman was adequate or harsh.

11. Three submissions were made on behalf of the Respondent/workman before the learned Labour Court in respect of the quantum of punishment. It was contended that the conductor of the bus was reinstated although the allegations against him were the same and, therefore, there was no reason to subject the Respondent/workman to a penalty of dismissal. It was contended that this discriminatory treatment is violative of Article 14 of the Constitution. It was also contended that the past record of the Respondent/workman was clean and finally that even the criminal Court had acquitted the Respondent/ workman.

12. The learned Labour Court took two factors into consideration while quashing the punishment. The factors taken into consideration by the learned Labour Court were that the Respondent/workman had been acquitted in the criminal case and that he had been treated in a discriminatory manner vis-a-vis the conductor of the bus. The punishment was, therefore, held to be disproportionate to the gravity of the misconduct. The past record of the Respondent/workman was not adverted to by the learned Labour Court.

13. It is quite clear that the allegation made against the Respondent/workman is of an extremely serious nature. Not only did he cause the death of a disembarked passenger but he also did not inform the police or the depot officials about the accident.

To make matters worse, instead of taking the injured to a hospital, he seems to have been left on the way side to die.

14. Learned counsel for the parties were heard on 18th August, 2004 when judgment was reserved.

15. Such as a co-delinquent had been given a lesser punishment. The Supreme Court rejected this contention by relying upon Balbir Chand vs. Food Corporation of India Ltd., wherein it was held that if a co-delinquent is awarded a lesser punishment it cannot be a ground for interference.

16. In so far as the present case is concerned, it is not clear from the record under what circumstances the conductor of the bus was let off but surely his role cannot be equal to that of the bus driver who actually knocked down a disembarked passenger and that accident eventually resulted in his death. Ex facie there cannot be a comparison between the role of the driver and conductor of the bus in a case of accidental death. It is also, perhaps, for this reason that no criminal case was filed against the conductor.

17. The effect of an acquittal by a criminal Court was also dealt with in P.C. Kakkar. It was held in paragraph 15 of the Report that :-

18. In the case at hand the Respondent/workman was found guilty in the departmental inquiry held against him. The standard of proof that is required to be followed in a domestic enquiry is much less than in a criminal case, such as the one in which the Respondent/workman was acquitted. The nature of the case being what it is, one has to take a pragmatic view of the events and by doing so it is difficult to conclude that the Respondent/workman was not at all at fault.

19. The sequence of events shows that the Respondent/ workman had dashed against Sat Prakash Gupta such that the injured had to be taken out from under the bus. The Respondent/workman had assured the bystanders that he would take the injured to a hospital but instead of doing so he either left him in a drain or in any case did not take him to the hospital with the result that the injured died. This extremely callous conduct of the Respondent/workman must be visited with penalty that is commensurate with the gravity of the misconduct. Consequently, there is no escape from the fact that the order of dismissal passed by the departmental authorities is fully justified.

20. Learned counsel for the Respondent/workman submitted that the learned Labour Court had exercised its discretion under Section 11-A in awarding a lesser penalty and this should not be interfered with.

21. I have discussed in detail the ambit and scope of Section 11-A of the Act in Municipal Corporation of Delhi vs. Shri Daulat Ram and Anr., WP (C) No.2149 of 1990 decided on 27th August, 2001 and it is not necessary to repeat the discussion.

22. The nature of the misconduct in this case cannot be over looked, namely, severely injuring a person and later not taking him to a hospital at least on humanitarian grounds and instead leaving him to die by the way side. Directing the reinstatement of the Respondent/workman in such circumstances along with 40% back wages is, to my mind, injudicious and completely disproportionate to the nature of the misconduct. I do not see any error in the conclusion arrived at by the departmental authoritie in awarding a punishment of dismissal from service.

23. For the above reasons, the writ petition is allowed and the impugned order dated 26th May, 2003 is set aside. The punishment imposed upon the Respondent/workman namely dismissal from service is restored. No costs.