Delhi Transport Corporation vs N.L. Kakkar Presiding Officer, ...
2004 Latest Caselaw 282 Del

JUDGMENT

Madan B. Lokur, J.

1. The Petitioner (DTC) is aggrieved by orders dated 25th April, 1977 and 11th July, 1979 passed by the Additional Industrial Tribunal and the Industrial Tribunal No. 1 respectively in O.P. No. 85 of 1974 being an application under Section 33(2)(b) of the Industrial Disputes Act, 1947 (the Act).

2. The facts as they appear from the record are that on 4th May, 1972, two Assistant Traffic Inspectors Om Prakash and H.C. Dutta checked a DTC bus for ticketless travellers. Three ladies in a group, alighting from the bus after completing their journey from East Park Road to Fatehpuri, were found to be without tickets. On being asked, they stated that they had given a one-rupee note to the conductor (Respondent/workman herein) who returned 40 paise to them, but did not issue any ticket. On being confronted, the conductor stated that the tickets were lying on the foot-board of the bus. These ladies were immediately taken to a Special Metropolitan Magistrate/Mobile Court for being challaned for ticketless travel. The learned MM passed the following order:-

"Heard the accused in detail. I am convinced that the accused paid the fare to the conductor but he did not issue the ticket properly. The accused is, therefore, acquitted."

3. What seems to have transpired is that the fare payable by each lady was 25 paise and when the conductor saw the checking staff, he issued them tickets of 20 paise each. Two other passengers in the bus stated that the conductor threw these tickets on the floor of the bus. These tickets were seized by the checking staff and were found to be of inadequate denomination and not punched at the proper place. Since the fare was 25 paise each, the checking staff asked the ladies to give another 15 paise to the conductor who then issued three more tickets of 5 paise each. A challan was then issued to the conductor and the checking staff prepared their report accordingly.

4. On these broad facts, the conductor was issued a charge sheet on 4th September, 1972 containing the following allegations:

"That on 4.5.72 you were conducting bus No. 1675 of route No. 25-X when the checking officials checked the tickets of the alighted passengers of your bus at Fatehpuri at about 10.55 hours. Three lady passengers in a group headed by Mrs. Tara Wati who had boarded your bus from East Park Road and from whom you had collected 60 paise as against the due fare of 75 paise alighted there without having been issued any tickets by you. You thus contravened the provisions of para 21(iv) of the Executive Instructions - Duties of a Conductor and para 19(b) of the Standing Orders governing the conduct of DTC Employees."

5. A domestic inquiry was held against the conductor, in which he was found guilty and subsequently awarded a punishment of removal from service on 14th August, 1974. The DTC moved an application under Section 33(2)(b) of the Act before the learned Tribunal seeking approval of their action.

6. By the first impugned order, the learned Tribunal held that the domestic inquiry was vitiated. Two reasons were given for holding so: firstly, the evidence did not point to the guilt of the conductor and secondly, the two passengers who said they saw the conductor throwing tickets on the floor of the bus when the checking staff arrived, were not produced as witnesses before the enquiry officer.

7. After holding the domestic inquiry to be vitiated, the learned Tribunal permitted DTC to lead evidence before it for proving the misconduct of the conductor. DTC examined the checking staff as its witnesses. The lady passengers were summoned as witnesses but were not available for evidence.

8. The learned Tribunal weighed the evidence and concluded that DTC was not able to prove that the conductor did not issue the tickets. On the contrary, it was held that the conductor did issue tickets to the ladies. The learned Tribunal also held that the ladies were the best witnesses to state whether the conductor had issued tickets or not. Since they were not produced, no case was made out against the conductor. Accordingly, the application under Section 33(2)(b) of the Act was dismissed by the second impugned order.

9. Challenging the correctness of the first impugned order, learned counsel for the Petitioner contended before me that the evidence on record, including the conclusion of the learned Magistrate, shows that even though tickets may have been issued by the conductor, the fact remains that they were not valid tickets for the journey since the fare was 25 paise per head but the tickets issued were for 20 paise each. Moreover, the tickets were not punched in the proper place and were not handed over to the ladies but were thrown on the floor of the bus when the checking staff arrived. According to learned counsel, it can hardly be said that the conductor had "issued tickets" to the ladies and the inquiry officer had correctly assessed the evidence. There was, therefore, no reason for the learned Tribunal to differ with the views of the inquiry officer. It was further submitted that the learned Tribunal was unduly influenced by the fact that the two passengers were not produced as witnesses.

10. The second impugned order was challenged by learned counsel on similar grounds. It was alternatively contended that the Presiding Officer of the learned Tribunal was not specifically empowered to deal with the case. However, in the view that I am taking, it is not necessary to deal with the alternative contention.

11. Two issues arise in this case: the extent of interference permissible with the findings in a domestic inquiry and the necessity of passengers being produced as witnesses, that is to say, whether hearsay evidence can be accepted in a domestic inquiry.

12. Both the aforesaid issues are squarely covered in favor of DTC by several decisions, including a leading decision of the Supreme Court and a Division Bench decision of this Court.

Passenger witnesses

13. In a similar fact situation, a Full Bench of the Punjab & Haryana High Court in State of Haryana vs. Ram Chander 1976 (2) SLR 690 laid the foundation for its discussion in paragraph 3 of the Report. It was held that a domestic tribunal is not bound by the strict rules of evidence and can evolve its own procedure as long as it is in accordance with the principles of natural justice. It was said :

"The first question for consideration is, whether the evidence of the checkers as to what they were told by the passengers was not legal evidence in the domestic enquiry against the respondent. Time and again, it has been repeated by the Supreme Court that domestic tribunals in the absence of statutory guidance, have the right to regulate their own procedure and are also not bound by the strict rules of evidence. The rules of procedure and the rules of evidence observed in Courts are often misplaced in domestic enquiries. A Domestic tribunal whose procedure is not regulated by a statute is free to adopt a procedure of its own so long as it conforms to principles of natural justice. It is equally free to receive evidence from whatever source if it is 'logically probative'."

14. Thereafter, the Full Bench considered earlier decisions of the Supreme Court and also referred to cases from England to lay down the law in paragraph 4 of the Report with regard to the value to be attached to hearsay evidence. It was held :

"... ... where a bus is checked and it is found that tickets have not been issued to several passengers and the passengers state in the presence of the conductor that they paid the fare, the enquiry officer would be justified in acting upon the evidence of the checkers stating these facts even though the passengers themselves are not examined as witnesses. A finding of guilt arrived at by him would not be based on pure hearsay. It would be based on (1) the evidence of the Checker that he found passengers traveling without tickets and (2) the statements made by the passengers to the checker at the time of checking. The second item of evidence alone would be hearsay but it would be hearsay of high probative value because of the circumstance that statements were made in the presence of the conductor and on the spot. In such a case, it cannot be said that the enquiry officer's findings are based on pure hearsay or hearsay of unreliable nature."

15. The most important judgment on the subject is State of Haryana vs. Rattan Singh . The facts of that case are similar to the facts of the present case. What must be mentioned, however, is that in Rattan Singh the Civil Court declared the domestic inquiry a nullity. The appellate Court affirmed this conclusion and the High Court dismissed a second appeal. Yet, the Supreme Court entertained a petition for special leave to appeal and upset the conclusions of three Courts.

16. The contentions urged before the Supreme Court are also of some importance. They are:

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

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

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

17. The Supreme Court held in paragraph 4 of the Report that a domestic inquiry can take into consideration all materials logically probative for a prudent mind and that there is no allergy to hearsay evidence, provided it has reasonable nexus and credibility. It was said that the passengers are not required to be chased and brought before the domestic tribunal.

18. 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. As long as there is 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.

19. I think it is worth quoting the view of the Supreme Court as reflected in paragraph 4 of the Report. This passage really answers both the issues before me. This is what the Supreme Court says:

"It is well settled that in a domestic enquiry 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."

20. With regard to the second contention relating to non-compliance of departmental instructions, the Supreme Court found them to be rules of prudence and not rules that bind so that their violation will not vitiate the exercise. Absence of written statements of the passengers (the statements were orally made) was explained by Supreme Court as being understandable given the psychology of the passengers, though not worthy of approval. But, it was held that merely because their statements were not recorded, it would not invalidate the order in the domestic inquiry.

21. Finally, with regard to the third contention, the Supreme Court held that "re-evaluation of the evidence on the strength of co-conductor's testimony is a matter not for the court but for the administrative tribunal."

22. Two facts are noteworthy in the decision of the Supreme Court. Firstly, the only evidence against the conductor was what was told by the passengers to the checking staff. The passengers did not enter the witness box, nor did they give written statements to the checking staff. Secondly, the co-conductor supported the conductor and apparently entered the witness box. Yet the Supreme Court accepted the finding of the domestic inquiry and reversed the conclusion of three Courts.

23. Soon after the decision of the Supreme Court in Rattan Singh, a Division Bench of this Court had occasion to deal with a similar situation, wherein again, both the issues before me had also arisen. In Delhi Transport Corporation vs. Presiding Officer, Additional Industrial Tribunal (1979) XVI DLT 220, the Division Bench noted two competing principles, that is, non-reviewability of a finding of fact based on evidence and violation of the rules of natural justice. The Division Bench laid down the law on page 224 of the Report and then referred to and relied upon Rattan Singh in support of its conclusions. This is what the Division Bench said:

"The alleged violation of natural justice pre-supposes that it was necessary that the passenger witness should have been made available for cross examination. This assumption is baseless. Firstly, the notice by registered post sent to the witness was received back with the remark that the witness had left the address and the notice could not, therefore, be served on that address. This made it impossible for the Inquiry Officer to serve the passenger witness. Secondly, the question whether the hear-say evidence of the checking staff about the statement of the passenger should have been admitted in evidence by the Inquiry Officer because of the impossibility of enforcing his attendance which may arise in a suitable case did not arise in this case. Even when no such impossibility of enforcing the attendance of the passenger was proved the Supreme Court observed in State of Haryana and another v. Rattan Singh ......"

24. On the question of interference with a finding of fact arrived at in a domestic inquiry, it was held :

"Therefore, in the present case, the principle (sic) finding of fact of the Inquiry Officer which is based on some evidence independent of the written statement or oral evidence of the passenger witness is unassailable."

25. On page 225 of the Report, the Division Bench made an important observation, which I think should be taken serious note of. It was said:

"We may take judicial notice of the fact that the checking of the conductors of the buses of the appellant is a salutary practice. Its effectiveness cannot be defeated by technicalities. When the misconduct is proved by the common sense standards before the Inquiry Officer, legal ingenuity and technicalities should not be allowed to impugn the common sense findings and defeat the operation of the system of checking."

26. The above Division Bench decision was followed by a learned Single Judge of this Court in Sultan Singh vs. Delhi Transport Corporation, 1987 I LLN 399. In that case, grant of approval under Section 33(2)(b) of the Act was challenged by the petitioner on the ground that the passenger witness who had given a statement against the petitioner was not examined and so the petitioner did not have any opportunity to cross-examine this witness and, therefore, the inquiry against him was vitiated. The learned Judge also referred to Mahinder Singh vs. Presiding Officer (CW No. 136 of 1975 decided on 10th February 1979) and observed that in these cases, it had been held that:

"... ... even if the passenger witnesses are not examined and if there was enough other evidence to prove the misconduct of the employee the inquiry is not vitiated. In the present case also, there is a clear finding that the checking officers were examined and they gave evidence to prove the misconduct and the statement of the passenger was recorded in the presence of the petitioner. Thus, even if the statement of the passenger witness is held to be inadmissible since there was other evidence, the order cannot be held to be invalid."

27. Shyam Sunder vs. Delhi Transport Corporation (CW No. 922/76 decided on 5th February, 1996) dealt with an identical issue. In that case, the learned Single Judge referred to DTC vs. Presiding Officer (CW No. 7/79 decided on 16th July, 1979), the Division Bench decision mentioned above and Rattan Singh and held that since the inquiry officer based his findings on the examination of the checking staff (who were also cross-examined), there was independent evidence to link the petitioner with the charges levelled against him. Consequently, the statement of the passengers, not being the sole material against the petitioner, the domestic inquiry was not vitiated.

28. The learned Judge also held that:

"It is settled law that this court is not competent and has no jurisdiction to reappraise the evidence on record and come to a different finding from that of the Enquiry Officer."

29. It is quite clear that the consistent view of this Court over the last few decades has been that the non-production of passenger witnesses is not fatal to the domestic inquiry and that findings of fact arrived at in a domestic enquiry should not be interfered with so long they are based on some evidence. The value of that evidence and what weight is to be attached to it is within the jurisdiction of the tribunal.

Law laid down by some other High Courts.

30. What is the view of some other High Courts? The view of the Karnataka High Court is clear from three Division Bench decisions. In Karnataka State Road Transport Corporation vs. Sathyanarayanan, 2003-II-LLJ 301, a conductor failed to issue tickets to a group of seven passengers despite collecting the fare from them. With a view to misappropriate the amount, he also closed the waybill. After a disciplinary enquiry, the conductor was found guilty and dismissed but the Labour Court held that the charge against the conductor was not established. A learned Single Judge upheld the view of the Labour Court. The Division Bench concluded that simply because the passengers, whose statements were recorded by the checking officials, were not examined in the domestic enquiry, it cannot be said that the evidentiary value of those statements is lost. It was also found that to cover up his misdeeds, the conductor had closed the waybill. The Division Bench held that the misconduct by the conductor was proved.

31. Similarly, in North West Karnataka Road Transport Corporation vs. K.S. Raghunathappa, 2003-II-LLJ 989, the allegation against the conductor was that he had not issued tickets to six passengers despite having collected the fare from them. After a disciplinary enquiry, he was dismissed from service. The Labour Court before whom an industrial dispute was raised held that the domestic enquiry was fair and proper but the charge against the conductor was not proved, inter alia, because none of the passengers were examined. The Division Bench rejected the reasoning of the Labour Court after relying upon Rattan Singh. It was also held that apart from the statement of the passengers, there was other material such as unpunched tickets, offence memo checking report etc.

32. In North West Karnataka Road Transport Corporation vs. S.S. Poleshi, 2000 III CLR 203, the conductor of a bus had not issued tickets to some passengers despite taking the fare. Disciplinary proceedings were initiated against him and he was dismissed from service. He raised an industrial dispute and the Labour Court held that the charges against him were not proved because none of the passengers had been examined during the adjudication proceedings. A learned Single Judge upheld the view of the Labour Court. In appeal, the Division Bench relied upon Rattan Singh to set aside the order of the learned Single Judge and restored the penalty of dismissal from service.

33. The view of the Bombay High Court is to be found in Pandurang Kashinath Wani vs. Divisional Controller, 1996-I-LLJ 540. In that case also, the conductor failed to issue tickets to some passengers despite having collected the fare from them. After a domestic enquiry, the conductor was dismissed from service and though the Labour Court held that the domestic enquiry was conducted fairly, the punishment of dismissal from service was found to be disproportionate.

34. In a writ petition filed before the High Court, it was contended that the domestic enquiry was not fair because the passengers were not subjected to cross-examination.

35. The High Court rejected the contention on the ground that the statement of the passengers was recorded in the presence of the conductor who made an endorsement at the foot of each statement and put his signatures. It was not as if the statement of the passengers was taken at the back of the conductor. Relying upon Rattan Singh, it was held that even though the passengers were not called at the domestic enquiry and permitted to be cross-examined, there was no violation of the principles of natural justice. Additionally, it was noted that the conductor was found in possession of sufficient stock of tickets in his money bag for which the explanation given by him was fanciful and unsatisfactory.

36. The Madras High Court in Pandian Roadways Corporation Ltd. vs. Presiding Officer, 2000-II-LLJ 1593 also dealt with a case where the conductor did not issue tickets to some passengers despite having collected the fare from them. The statement of the passengers was recorded by the checking staff who was examined in the departmental enquiry held by the appellant. The conductor was dismissed from service but the Labour Court, upon an industrial dispute having been raised by the conductor, upheld the validity of the domestic inquiry but directed the reinstatement of the conductor on the ground that the punishment was excessive.

37. Relying upon Rattan Singh, the Madras High Court came to the conclusion that it was not necessary to examine the passengers. In that case, however, there was a slight difference on facts inasmuch as the conductor admitted that he did not have time to complete the necessary paper work at the time of issuing the tickets. Based on this admission, as well as the evidence of the checking inspector and the fact that the conductor had not completed the invoice, the Madras High Court interfered with the order of reinstatement and approved the dismissal of the conductor.

38. The view of the Gujarat High Court is to be found in Gujarat State Road Transport Corporation vs. M.S. Patel, 1998 II CLR 473. In that case, the conductor of a bus did not issue tickets to two groups of passengers. The checking staff made a report after taking the statements of the passengers. In a departmental enquiry, the conductor was held guilty of misconduct and dismissed from service. The Labour Court, however, upset the finding of the disciplinary authority and reinstated the workman. The Gujarat High Court held that it was not a criminal prosecution where the allegations have to be proved against the conductor beyond doubt. The checking staff had produced the statements of the passengers and had withstood cross-examination. Relying upon the judgment of the Supreme Court in Rattan Singh, it was held that the finding of guilt against the conductor was not unjustified.

Conclusion

39. A perusal of the above judgments of various High Courts clearly shows that the production of passengers either in a domestic enquiry or before the Labour Court in an industrial dispute is not at all necessary. Indeed, I am 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 enquiry officer or the Labour Court causing them unnecessary inconvenience. One has to take a pragmatic view of the situation as well as consider the amount of effort and energy that may have to be expended in producing the passengers as witnesses. DTC carries passengers who are residents of not only Delhi but also of other States. Is it practicable to expect a passenger, who goes back to his State after a trip to Delhi, to appear before an Inquiry Officer for confirming a statement already given by him to the checking staff? As our Division Bench has cautioned us, one has to take a commonsense approach to the whole problem and not allow legal technicalities to come in the way.

40. The facts of the present case show that there was some evidence before the Inquiry Officer, in the form of the statements of Om Prakash and H.C. Dutta and the report prepared by them. More importantly, the conclusion arrived at by the Special Metropolitan Magistrate/Mobile Court should have really concluded the issue against the conductor. Unfortunately, the learned Tribunal did not approach the issues before it in the right perspective and on the basis of the law laid down, and that is why it fell into error. It was certainly not a case of no evidence. It was also not a case of perversity, because there was some legal evidence before the Inquiry Officer, evidence that had high probative value and that had nexus with the events that were being enquired into. Once this is established, and I think it has been established in this case, the question of upsetting the conclusions of fact arrived at by the Inquiry Officer does not arise, as held in Rattan Singh and consistently followed by this Court.

41. Under the circumstances, the learned Tribunal erred in holding that the domestic inquiry was vitiated. It must be held that the guilt of the conductor was correctly established by the inquiry officer. The first impugned order must, therefore, be set aside and the order of removal from service passed against the Respondent conductor on 14th August, 1974 is restored. Consequently, it is held there was no occasion for DTC to lead evidence before the learned Tribunal to establish the guilt of the conductor. The second impugned order is required to be quashed for this reason alone.

42. The writ petition is allowed. The order dated 25th April, 1977 passed by the learned Additional Industrial Tribunal in O.P. No. 85 of 1974 is quashed. No costs.