Delhi Transport Corporation vs Gordhan Dass
2004 Latest Caselaw 1228 Del

JUDGMENT

Swatanter Kumar, J.

1. Delhi Transport Corporation filed an application under Section 33(2)(b) of the Industrial Disputes Act (hereinafter referred to as the said Act) for seeking approval of the Court for its action for removing the workman from service. This application of the Corporation was dismissed and approval prayed for decline vide order datd 24.3.2003 of the Industrial Tribunal, Karkardooma Courts, Delhi. In the present writ petition, the Corporation thus challenges the legality and correctness of this order.

2. According to the case of the Management of the Corporation, Gordhan Dass was working as a Conductor with the Corporation. He was on duty on Bus No. 6261 on Route No. 094 on 20.7.2003. On that date the checking scott, upon checking the bus found that the 5 tickets were found to be down side but the bus was coming to Sultan Puri from Railway Station on up side round. On verification of the waybill of the Conductor it was found that tickets No. 944/10860 was closed from preliminary side and from Railway Station side it was closed on 10955. There was excess of Rs.42/- on the counting of the cash with the Conductor. The checking scott prepared a challan. Statement of the passenger was handed over to the workman and his signatures and written statement were obtained. In view of this incident the Management served upon the workman a charge-sheet on 20.8.1993. The workman denied articles of charges. Domestic enquiry was conducted against the workman in view of his denial reply dated 27.8.1993 to the charge-sheet. The enquiry officer submitted a report on 21.10.1993 holding the workman guilty of misconduct of the articles of charges and consequently of misconduct under Rule 19(b) (f) and (h) of the standing orders governing the conduct of DTC employees. The disciplinary authority agreeing with the filing of the enquiry officer issued a show cause notice to the workman on 4.11.1993 to which he submitted a reply. After considering the reply, order dated 24.12.1993 was passed against the workman removing him from service and also one month salary was sent to the workman by Money Order on the same date. Having taken this action the Corporation also moved an application under Section 33(2)(b) of the Act seeking approval of its action before the Labour Court which was rejected by order dated 24.3.2003 as already noticed above, giving rise to the filing of the present writ petition. The learned counsel appearing for the Corporation contended that the Industrial Tribunal has failed to exercise a jurisdiction vested in it and an incorrect appreciation of evidence has declined the approval. According to him the management had established a prima facie case to show that the enquiry was fair and the department was justified in imposing the punishment of removal from service upon the workman.

3. At this stage, it may be noticed that the workman had filed a writ petition being WP(C) No. 4246/2003 praying that in view of the judgment of the Supreme Court in the case of M.P. State Electricity Board v. Smt Jarina Bee, JT 2003 Vol. 5 SC 542 holding that once after enquiry application under Section 33(2)(b) of the Act is dismissed the order of dismissal has to be treated as nonest entitling the petitioner for all consequential reliefs, a direction be issued to the Corporation to reinstate the petitioner into service with consequential benefits. According to the workman he had not misconducted himself and the order of dismissal was not only ineffective but was non est. In view of the order of the Industrial Tribunal dated 24.3.2003 the workman also filed an application before the Chairman, Delhi Transport Corporation (Annexure C to the writ petition) wherein he prayed before the Corporation for the same relief.

4. Thus, it would be appropriate to dispose of both these writ petitions by a common judgment.

5. In the reply which was submitted by the workman to the charge-sheet dated 20.3.1993 he had specifically disputed the contents of the article of charges. According to the workman he had not sold any old tickets to the passengers. In fact, the statement allegedly recorded was a result of coercion and threat. He made a specific allegation that he had brought cash from home and entry to that effect was made in the records as required under the Rules. The workman also denied that the statement of the passengers was recorded in his presence or even otherwise. No copy of the alleged statement of the passengers was supplied to the workman as per the averments consistently made by him at different stages of the proceedings.

6. AW1 the Management in order to establish its prayer before the Industrial Tribunal had examined two witnesses Shri Pyare Lal and Shri Tarun Kumar Verma. Shri Pyare Lal had filed his affidavit on 11.11.2002 but his statement and cross-examination as was considered by the Industrial Tribunal in its correct perspective and had recorded the following findings :-

"He admitted that the sold tickets alleged to be recovered from the passengers were not given by concerned person in his presence. He admitted that Conductor was not present when the alleged sold tickets were recovered from the passengers. He further admitted that the passenger statement does not bear the signature of Conductor. On the other hand respondent entered into the witness box and denied the charges levelled against him.

I have gone through the entire material available on record. The record shows that the applicant has failed to produce the complainants, who made complaint against the respondent that he issued already sold tickets to them."

7. AW2 was a witness whose affidavit was not relatable to the misconduct of the workman and was primarily produced only to prove the payment of one month salary to the workman.

8. It is true that it may not be necessary for the Management to examine the passengers of the bus in each and every case to establish the articles of charges particularly when their recorded statements have been tendered in evidence in accordance with law. But in the present case, AW1 had specifically stated that the tickets were not given to the passengers in his presence and also that Conductor was not present when the alleged sold tickets were recovered from the passengers and even the statements recorded of the passengers does not bear the signatures of the workman or other persons. Even the enquiry officer has totally relied upon the statements of the witness Shri Pyare Lal in coming to the conclusion that article of charges were established against the workman. The Industrial Tribunal has to satisfy itself in relation to existence of a prima facie case of the Management which would justify passing of the order of punishment impugned. Such satisfaction has to be judicious and based upon some reliable and cogent evidence on record. As the management had failed to place on record any cogent and proper evidence before the Tribunal to substantiate its plea that the enquiry was fair and proper for coming to the conclusion that article of charges were proved, the finding recorded by the Tribunal and declining of approval prayed for cannot be faulted with. The view of the Labour Court does not call for any interference.

9. Having recorded the above finding, now I would proceed to discuss whether the workman is entitled to full back wages or not. It will be appropriate at this stage to refer to the recent judgments of the Supreme Court on the question of back wages.

10. In the case of Ram Ashrey Singh and Anr. v. Ram Bux Singh and Ors. 2003(2) LLJ 106, the Supreme Court laid emphasis on the principle that payment of back wages is not an automatic relief to a workman in the event of order of reinstatement. The Supreme Court held as under:-

"6. When fixing the back wages several factors need to be noted. It is a well-settled position in law that on reinstatement there is no automatic entitlement to full back wages. In Hindustan Tin Works Pvt. Ltd. v. Employees of Hindustan Tin Works Pvt. Ltd. And others AIR 1979 SC 75 : 1978-II-LLJ-474, a three Judge bench of this Court laid down at p.478 of LLJ:

"In the very nature of things there cannot be a straight-jacket formula for awarding relief of back wages. All relevant considerations will enter the verdict. More or less, it would be a motion addressed to the discretion of the Tribunal. Full back wages would be the normal rule and the party objecting to it must establish the circumstances necessitating departure. At that stage the Tribunal will exercise its discretion keeping in view all the relevant circumstances. But the discretion must be exercised in a judicial and judicious manner. The reason for exercising discretion must be cogent and convincing and must appear on the face of the record. When it is said that something is to be done within the discretion of the authority, that something is to be done according to the rules of reason and justice, according to law and not humour. It is not to be arbitrary, vague and fanciful but legal and regular (See Susannah Sharp v. Wakefield (1891) AC 173, 179)."

7. In P.G.I. of Medical Education and Research, Chandigarh v. Raj Kumar 2001-I-LLJ-546, this Court found fault with the High Court in setting aside the award of the Labour Court which restricted the back wages to 60% and directing payment of full back wages. It was observed thus at p.547 of LLJ:

"6. The Labour Court being the final Court of facts came to a conclusion that payment of 60% wages would comply with the requirement of law. The finding of perversity or being erroneous or not in accordance with law shall have to be recorded with reasons in order of assail the finding of the Tribunal or the Labour Court. It is not for the High Court to go into the factual aspects of the matter and there is an existing limitation on the High Court to that affect."

Again at paragraph 12, this Court observed at p.548 of LLJ:

"Payment of back wages having a discretionary element involved in it has to be dealt with in the facts and circumstances of each case and no straitjacket formula can be evolved, though, however, there is statutory sanction to direct payment of back wages in its entirety."

[See : Hindustan Motors Ltd. v. Tapan Kumar Bhattacharya and another 2002-II-LLJ-1156 (SC)]."

(emphasis applied by me)

11. However, in the case of Hindustan Motors Ltd. v. Tapan Kumar Bhattacharya and another AIR 2002 (89) SC 2676, the Supreme Court clearly declared the law that payment of back wages having a discretionary element must be dealt with, in the facts and circumstances of each case. Indicating the provisions of Section 11-A of the Act, their Lordships held as under:-

"10. Under Section 11-A as amended in 1971, the Industrial Tribunal is statutorily mandated, while setting aside the order of discharge or dismissal and directing reinstatement of the workman to consider the terms and conditions, subject to which the relief should be granted or to give such other relief to the workman including the award of any other punishment in lieu of the discharge of dismissal, as the circumstances of the case may require. The Section is couched in wide and comprehensive terms. It vests a wide discretion in the Tribunal in the matter of awarding proper punishment and also in the matter of the terms and conditions on which reinstatement of the workman should be ordered. It necessarily follows that the Tribunal is duty bound to consider whether in the circumstances of the case, back wages have to be awarded and if so, to what extent.

11. From the award passed by the Industrial Tribunal which has been confirmed by the Division Bench of the High Court it is clear that the order for payment of full back wages to the workman was passed without any discussion and without stating any reason. It appears that the Tribunal and the Division Bench had proceeded on the footing that since the order of dismissal passed by the Management was set aside, the order of reinstatement with full back wages was to follow as a matter of course.

15. As already noted, there was no application of mind to the question of back wages by the Labour Court. There was no pleading or evidence whatsoever on the aspect whether the respondent was employed elsewhere during this long interregnum. Instead of remitting the matter to the Labour Court or High Court for fresh consideration at this distance of time, we feel that the issue relating to payment of back wages should be settled finally. On consideration of the entire matter in the light of the observations referred to supra in the matter of awarding back wages, we are of the view that in the context of the facts of this particular case including the vicissitudes of long drawn litigation, it will serve the ends of justice if the respondent is paid 50% of the back wages till the date of reinstatement."

(emphasis applied by me)

12. Even in the case of Haryana Urban Development Authority v. Devi Dayal JT 2002 (2) SC 587 while specifically dealing with the question of payment of back wages and its extent, their Lordships held as under:-

"6. We are of the view that having regard to the facts of the case, the award of full back wages covering a period of nearly five years is not warranted. Firstly, it is to be noted that the respondent was in service for a short period with frequent spells of absence. The second and more important aspect is that there is a reasonable possibility of the respondent being gainfully employed somewhere else. The respondent was working as a helper which, apparently, involves performance of work of manual labourer. In all probability, he would have been working somewhere and earning daily wages, if not regularly, at lease for some days in a month. The respondent did neither assert in the claim statement nor did he give any evidence that he could not earn anything throughout by way of daily wages or otherwise during this long interregnum. Considering all these aspects, it would not be a sound exercise of discretion to saddle the appellant with the liability to full back wages. We are inclined to think that the award of back wages to the extent of 50% would be proper and justified, on the peculiar facts of this case."

(emphasis applied by me)

13. The Supreme Court while applying the principles of probability emphasised that there was a possibility that a workman would be employed during the period of his termination. The Court in the case of MP State Electricity Board v. Smt. Jarina Bee, JT 2003 (5) SC 542 after considering with approval the various earlier judgments of the Supreme Court on the subject took the view that this principle of probability can be applied to the cases like in hand and held as under:

"Alternatively, it was submitted that full back wages are to be paid, considering the nature of the allegations and findings recorded by the labour court, industrial court and the High Court and the directions cannot be faulted on the facts of the case.

In PGI of Medical Education and research, Chandigarh v. Raj Kumar , this Court found fault with the High court in setting aside the award of the labour court which restricted the back wages to 60% and directing payment of full back wages. It was observe thus :

"The labour court being the final court of facts came to a conclusion that payment of 60% wages would comply with the requirement of law. The finding of perversity or being erroneous or not in accordance with law shall have to be recorded with reasons in order to assail the fining of the tribunal or the labour court. It is not for the High court to go into the factual aspects of the matter and there is an existing limitation on the High Court to that effect".

Again at paragraph 12, this court observed:-

" Payment of back wages having a discretionary element involved in it has to be dealt with, in the facts and circumstances of each case and no straight jacket formula can be evolved, though, however, there is statutory sanction to direct payment of back wages in its entirety."

The position was reiterate in Hindustan Motors Ltd. v. Tapan Kumar Bhattacharya and Another and Indian Railway Construction Co. Ltd. v. Ajay Kumar.

Applying the legal principles, the inevitable conclusion is that the High Court committed an error in holding that the award of full back wages was the natural consequence."

14. Learned counsel appearing for the Corporation has not been able to demonstrate before the Court by reference to the relevant records before the Court that the order of the Tribunal suffers from any patent error of jurisdiction or perverse finding of fact which would call for interference by this Court under Article 226 of the Constitution of India. Finding no merit in WP (C) No. 17469/2004, I have no hesitation in dismissing the said writ at the admission stage itself. But inevitable consequence thereof is that WP (C) No. 4246/2003 has to be allowed if not wholly at least in part. The workman would be entitled to reinstatement with consequential benefits. Grant of a relief of reinstatement would not automatically entitle the workman to the grant of full back wages. A workman must make specific averments in the writ petition that he remained unemployed from the date of termination till filing of the petition and even thereafter he is expected to say that despite his efforts he was not able to earn nothing. In the present writ petition the workman has not made an averment claiming to the full back wages and has also not averred that during the interregnum period of pendency of this petition or before the Industrial Tribunal the workman was not gainfully employed and remained unemployed despite his efforts to seek employment.

15. Keeping in view the facts and circumstances of the case and normal human conduct it is not possible to believe that the workman would sit idle for such long periods. This is no presumption of fact but is a relevant factor founded on normal human conduct.

16. Lack of any specific pleadings much less relevant averments supported by proper evidence on record would be sufficient to reject the arguments of the petitioner. The workman at the same time had asserted his right to seek reinstatement with the Corporation vide letter dated 22.4.2003. Even in this application no averment was made that he remained unemployed and was not able to earn any amount during the period of termination. In view of these facts, interest of justice would require that workman is ordered to be reinstated with continuity of service but 50% back wages.

17. Both the writ petitions are disposed of in the above terms while leaving the parties to bear their own costs.