Delhi Transport Corporation vs Sewa Ram S/O Shri Risal Singh And ...
2004 Latest Caselaw 992 Del

JUDGMENT

Madan B. Lokur, J.

1. The Petitioner has challenged an order dated 3rd September, 2001 passed by the Industrial Tribunal whereby a domestic enquiry conducted by the Petitioner against the Respondent/workman was found to be vitiated for non-compliance with the principles of natural justice. The Petitioner has also challenged an order dated 24th December, 2002 by which the learned Tribunal, acting under the provisions of Section 33(2)(b) of the Industrial Disputes Act, 1947 (for short the Act) declined to grant approval for removal of the Respondent/workman from service.

2. The allegation against the Respondent/workman was that on 25th June, 1993 while working as a conductor in a bus, he had accepted the fare from two passengers but did not issue them tickets. Teeka Ram (Traffic Inspector) and Raghunath (Assistant Traffic Inspector), members of a checking staff, discovered this when they routinely intercepted the bus.

3.The checking staff confronted the Respondent/workman with this situation and he handed over two unpunched tickets for the requisite denomination. The checking staff recorded the statements of the passengers on a challan but the Respondent/workman refused to counter sign the statements. A copy of the challan was, however, handed over to the Respondent/workman. On the basis of the report made by the checking staff a charge sheet was issued to the Respondent/workman on 9th July, 1993 for having committed a misconduct within the meaning of paragraph 19(b) and (h) of the Standing Orders governing the conduct of employees of the Petitioner.

4.Since the Respondent/workman denied the charges, a domestic enquiry was held against him in which he was found guilty of the charges levelled. The Enquiry Officer relied on the statements of the checking staff, the statements of the passengers recorded by them, the two unpunched tickets for the requisite denomination mentioned in the way voucher and the way bill whereby the Respondent/workman deposited the entire cash received, including for the two unpunched tickets. After accepting the enquiry report, the Respondent/workman's disciplinary authority removed him from service and sought approval of its action by moving an application under Section 33(2)(b) of the Act before the learned Tribunal.

5.The learned Tribunal framed a preliminary issue whether a legal and valid enquiry was held against the Respondent/workman. The Petitioner examined the Enquiry Officer as its witness. The Enquiry Officer produced the charge sheet, the order entrusting him with the enquiry, the enquiry proceedings and the report prepared by him. The Respondent/workman did not lead any evidence.

6.The learned Tribunal held that the Respondent/workman had demanded a copy of certain documents to file a reply to the charge sheet but these documents were not sent to him. The documents required were the statements of the passengers and a copy of the document in which he is said to have made a confession of his guilt. It is not at all clear from the record of the case what the second document is supposed to be.

7.The learned Tribunal noted that the witness for the Petitioner had stated on oath that the documents were supplied to the Respondent/workman but he had no proof that the documents were sent to the Respondent/workman by post or that he received them. It was held that since the documents demanded were relevant documents and they were not supplied to the Respondent/workman, he could not effectively prepare his defense, which was, therefore, prejudiced. It was also held by the learned Tribunal that since he passengers were not produced as witnesses in the domestic enquiry, therefore, what the Enquiry Officer relied upon was mere hearsay evidence, which is not admissible. On these bases, the first impugned order dated 3rd September, 2001 was passed in which it was held that the domestic enquiry against the Respondent/workman was vitiated due to non-compliance with the principles of natural justice.

8.The Petitioner was thereafter given an opportunity to lead additional evidence to prove the misconduct of the Respondent/workman before the learned Tribunal. Since the Petitioner failed to lead any additional evidence, the learned Tribunal declined to grant approval for removal of the Respondent/workman from service and passed the second impugned order dated 24th December, 2002.

9.Learned counsel for the Petitioner submitted, and learned counsel for the Respondent/workman did not seriously controvert this, that the absence of the passengers as witnesses in the domestic enquiry cannot by itself vitiate the domestic enquiry. This has been so held by the Supreme Court in State of Haryana and Another vs. Rattan Singh and has also been discussed in detail in Delhi Transport Corporation vs. N.L. Kakkar and Anr., 110 (2004) DLT 493. If the checking staff entered the witness box and stated what had actually transpired, their evidence cannot be discarded only because the passengers were not produced before the Enquiry Officer. Consequently, to this extent it must be held that the first impugned order is bad in law.

10. As regards non-supply of the statements of the two passengers, one needs only to take a re-look at Rattan Singh. In that case two things stand out. Firstly, the statements of the passengers was not even recorded by the checking staff and secondly, the co-conductor supported the version of the delinquent that no misconduct had been committed by him. Yet, the Supreme Court did not interfere with the findings arrived at in the domestic enquiry. This is because there was other credible evidence available to show the guilt of the delinquent.

11. Applying the logic of Rattan Singh, what would happen if the statement of the passengers were discarded? Would there still be any probative or credible evidence to show that the Respondent/workman was not innocent? The answer to this must lie in the statements of the checking staff. There is nothing to suggest that they deposed falsely before the Enquiry Officer. Indeed, even the learned Tribunal has not disbelieved their version of what transpired. Consequently, on the basis of their testimony, even without the statement of any of the passengers, the Enquiry Officer could have reasonably come to the conclusion that he did. This is the rationale on which Rattan Singh proceeded, despite the evidence of the co-conductor in favor of the delinquent therein.

12. In the present case, in addition to the believable statements of the checking staff, the other evidence on record was the two unpunched ticket given by the Respondent/workman to the checking staff, the way voucher and the waybill whereby the Respondent/workman deposited the entire cash collection including for the unpunched tickets. This being the position, there was sufficient material on record with the Enquiry Officer to reasonably arrive at his conclusions. As the Supreme Court put it, there must be some credible evidence in a fair commonsense way, as men of understanding and worldly wisdom would accept. Consequently, even if the statements of the passengers are ignored even then it is possible to concur with the view taken by the Enquiry Office The non-supply of the statements of the passengers, therefore, loses all its importance. The innocence of the Respondent/workman could be disproved on the basis of material other than these statements.

13. At this stage, it must be appreciated that it is nobody's case that the statements of the passengers were exculpatory. Indeed, if they were, the Respondent/workman would not have refused to countersign them on the fateful day when the challan was prepared.

14.Consequently, it must be held that the learned Tribunal erred in disregarding the conclusions of fact arrived at by the Enquiry Officer. There being no violation of the principles of natural justice, the first impugned order dated 3rd September, 2001 is set aside. The conclusion in the first impugned order with regard to non-examination of the passengers is incorrect as already mentioned above.

15.The learned Tribunal gave the Petitioner an opportunity of leading additional evidence to prove the misconduct of the Respondent/workman, but the Petitioner did not do so. There was no requirement for the Petitioner to lead additional evidence, if it is held, as I have done, that the domestic inquiry conducted against the Respondent/workman is not vitiated. The second impugned order dated 24th December, 2002 is, therefore, quashed since it was not called for, except to the extent it is held that one months wages were duly sent to the Respondent/workman as required by law. No error can be found in this part of the order passed by the learned Tribunal.

16.In view of the above, the conclusion arrived at by the learned Tribunal that approval cannot be granted to the Petitioner under the provisions of Section 33(2)(b) of the Act is set aside and the writ petition is allowed. Approval is granted to the Petitioner to terminate the services of the Respondent/workman. No costs.

September 28, 2004 ( Madan B. Lokur )

rkr Judge