Dharam Pal vs Dtc Etc.
2006 Latest Caselaw 633 Del

JUDGMENT

Gita Mittal, J.

1. By this petition the petitioner has assailed an Award dated 10th February, 1994 whereby it was held by the industrial adjudicator that the petitioner had committed an act of serious misconduct and as such upheld the penalty of dismissal from service imposed on him while directing the respondent to make payment of wages to the workman till the date of passing of the award subject to adjustment of the amount which had been paid to the workman pursuant to the interim award dated 21st January, 1992 passed by it.

2. The petitioner was appointed as a sweeper in the Delhi Transport Corporation with effect from 16th August, 1973. It appears that he presented a claim for leave travel concession in respect of alleged travel by his family members that is his wife and two sons. According to the claim submitted by the petitioner on 15th March, 1982, his family members had travelled by bus No. DLP 4650 from Delhi to Kanyakumari on 20th February, 1982 and returned on 8th March, 1992 for the year 1982-1985. The petitioner had submitted a printed money receipt dated 9th March, 1982 for 2 Â1/2 tickets for a sum of Rs. 1250/- These tickets were alleged to have been forged tickets inasmuch as no permit was issued by the State Transport Authority to M/s Goswami Travels who had allegedly issued the tickets for conducting the tour to Kanyakumari on the claimed dates.

3. On these allegations, disciplinary proceedings were initiated against the petitioner. A chargesheet dated 30th June, 1982 was served upon him wherein it was alleged that the petitioner had tried to cheat the Delhi Transport Corporation by submitting a forged claim. Upon receipt of the inquiry report, a memorandum dated 31st August , 1992 was served on the petitioner by the depot manager of the Hari Nagar depot, New Delhi to show cause why the petitioner be not removed from service and calling upon the petitioner to file his representation against the proposed penalty. Ultimately, vide an order passed on 7th September, 1982, the petitioner was removed from service with the Delhi Transport Corporation.

4. The petitioner complained against his removal in proceedings under the Industrial Disputes Act, 1947. By an order dated 10th October , 1983, the government made an order in exercise of its powers under Section 10(1) and 12(5) of the Industrial Disputes Act, 1947 referring the following dispute for adjudication to the labour court:

Whether the removal from service of Shri Dharam Pal is legal and justified and if not to what relief is he entitled and what directions are necessary in this respect?

5. Vide an order passed on 10th July, 1991, the labour court held that the disciplinary proceedings and inquiry conducted by the Delhi Transport Corporation was not an appropriate and valid one and consequently answered the issue as to the validity and propriety of the inquiry against the Delhi Transport Corporation.

6. In these circumstances, the labour court thereafter gave an opportunity to the respondent to prove the misconduct. The evidence was recorded on behalf of the parties and the proceedings culminated in an adjudication and industrial award dated 10th February, 1994 whereby the labour court held that the Delhi Transport Corporation had succeeded in establishing that the claimant has furnished a bogus claim for the sum of Rs. 1250/- towards leave travel concession in respect of a journey which his wife and two children had not undertaken at all. The labour court held that the petitioner had committed an act of serious misconduct and consequently the penalty of dismissal imposed upon him was an appropriate penalty.

7. Placing reliance on the law laid down by the Apex Court, the labour court was of the view that inasmuch as the inquiry held by the Delhi Transport Corporation had been vitiated and that only the order of dismissal was sustained on the ground that the workman was guilty of gross misconduct, the labour court directed that the date of dismissal would not relate back to the date of the order passed by the employer on the basis of the illegal proceedings. In this view of the matter, the labour court held that the dismissal of the petitioner would come into operation with effect from the date of passing of the award.

8. The award also noticed that vide an order dated 21st January , 1992, interim relief was granted in favor of the workman whereby the appropriate government was advised to instruct the DTC for payment of a sum of Rs. 550/- per month to the workman till final adjudication of the matter. In the award passed by the labour court dated 10th February, 1994, for this reason, the labour court directed that the workman would be entitled to wages till the date of the award after adjustment of the amount paid in compliance of the order dated 21st January, 1992.

9. This award was assailed by the workman by way of the present writ petition. It appears that a submission was made before this Court on 13th September, 1996 that the inquiry having been vitiated by the order dated 10th July, 1991, it was not open for the labour court to record evidence and examine the merits of the controversy. This contention had found favor with this Court which had allowed the writ petition and set aside the award dated 10th February , 1994 vide a judgment passed on 13th September, 1996.

This judgment was assailed by the DTC before the Apex Court by way of SLP(Civil) No. 7768/1998 which was registered as Civil Appeal No. 2295/1999. The Apex Court had held that the view taken by this Court in the judgment dated 13th September, 1996 was contrary to the judgment of the Apex Court entitled The Workman of Firestone Tyre and Rubber Co. Of India (Pvt.) Ltd. v. The Management and Ors. In these circumstances, the judgment dated 13th September, 1996 was set aside and the matter was remitted to this Court for being heard and disposed of afresh in accordance with law.

10. Having heard learned Counsel for the parties, I find that the allegations against the petitioner related to his having submitted a forged ticket. The management had lead oral evidence by way of a testimony of Shri Ved Prakash Shukla before the industrial adjudicator who had proved the ticket and the permit submitted by the petitioner in support of his leave travel concession claim. The DTC had confirmed that the permit No. 1025 submitted by the petitioner in respect of the claim of the journey of his family members to Kanyakumari had actually been issued by the transport authorities against bus No. DGP 3520 for its journey from Delhi to Agra on 14th February, 1982 and not against the bus on which the petitioner had claimed that his family had travelled. Despite the petitioner being required to contact M/s Goswami Travels who had allegedly issued a receipt and the permit, the petitioner failed to get the corrections. It was in these circumstances that the chargesheet was issued to the petitioner. The respondents had further proved in evidence that the petitioner reiterated his claim in the reply filed by him to the chargesheet. However, he sought to evade responsibility by alleging that it was for the transporter to obtain an appropriate permit. The DTC proved the application which was submitted by the petitioner claiming the leave travel concession. The petitioner failed to challenge the testimony on behalf of the respondent. In these circumstances, the labour court has returned a clear finding of fact that the Delhi Transport Corporation had succeeded in establishing that the petitioner had submitted a bogus claim of Rs. 1250/- towards the leave travel concession in respect of a journey purportedly undertaken by his wife and two children whereas they had never travelled.

11. Before this Court, it has been urged that the respondent was required to lead evidence and should have produced a witness from M/s Goswami Travels. It is settled law that the onus and burden of proof for proving a fact set up lies on the party which is placing reliance on this submission. The claim was made by the petitioner placing reliance on tickets and permit purportedly issued to him by M/s Goswami Travels. The same were discovered to be bogus. The respondents had given an opportunity to the petitioner to get the same corrected, if his contention had been true. The petitioner failed to do so. It was for the petitioner to produce such evidence as it relied upon in support of its contention before the labour court. Having failed to do so, he cannot possibly shift the onus upon the respondent to prove the case which had been set up by the workman.

12. It is also well settled that even if a disciplinary inquiry conducted by an employer is vitiated on account of violation of principles of natural justice or for any other reason, it is open for an industrial adjudicator to give an opportunity to the management which has sought the same, to prove the alleged misconduct by leading evidence before it. It was so laid down in Karnataka State Road Transport Corporation v. Lakshmidevamma (Smt) and Anr. and (2005) 2 SCC 684 Divyash Pandit v. Management. NCCBM.

13. The right of a management to lead evidence before the labour court or the industrial tribunal in justification of its decision taken on the basis of a domestic inquiry which is under consideration by such tribunal or court, is not a statutory right. It is actually a procedure which has been approved by the Apex Court to avoid delay and multiplicity of proceedings in the disposal of disputes between the management and the workman. The genesis of this procedure is to be found in the observations of the Supreme Court in Workman v. Motipur Sugar Factory Private Limited wherein the court held thus:

If it is held that in cases where the employer dismisses his employee without holding an enquiry, the dismissal must be set aside by the Industrial Tribunal only on that ground, it would inevitably mean that the employer will immediately proceed to hold the enquiry and pass an order dismissing the employee once again. In that case, another industrial dispute would arise and the employer would be entitled to rely upon the enquiry which he had held in the meantime. This course would mean delay and on the second occasion it will entitle the employer to claim the benefit of the domestic enquiry given. On the other hand, if in such cases the employer is given an opportunity to justify the impugned dismissal on the merits, the employee has the advantage of having the merits of his case being considered by the Tribunal for itself and that clearly would be to the benefit of the employee. That is why this Court has consistently held that if the domestic enquiry is irregular, invalid or improper, the Tribunal may give an opportunity to the employer to prove his case and in doing so the Tribunal tries the merits itself.

14. Subsequently, various decisions of the Supreme Court though agreed on the conferment of this right of the management, however there was difference of opinion with regard to the stage of making such application. So far as this aspect is concerned, principles on this issue were laid down in Shambu Nath Goyal v. Bank of Baroda in the Workman v. Motipur Sugar Factory Private Limited (supra), the court laid down the following principles:

When a question arises in a reference under Section 10 of the Act after the workman had been punished pursuant to a finding of guilt recorded against him in the domestic enquiry, there is no question of the management filing any application for permission to lead further evidence in support of the charge or charges framed against the workman. The defect in the domestic enquiry is pointed out by the workman in his written claim statement filed in the Labour Court or Industrial Tribunal after the reference had been received and the management has the opportunity to look into that statement before it files its written statement of defense in the enquiry before the Labour Court or Industrial Tribunal and could make the request for the opportunity in the written statement itself. If it does not choose to do so at that stage it cannot be allowed to do it at any later stage of the proceedings by filing any application for the purpose which may result in delay leading to wrecking the morale of the workman and compel him to surrender which he may not otherwise do.

15. In a subsequent judgment reported at 1984 Supplementary SCC 520 Rajendra Jha v. Presiding Officer, Labour Court the court was concerned with a case where the labour court held that the departmental inquiry was vitiated and by the same order allowed the employers to lead evidence to justify the order of dismissal. It was held by the Supreme Court that in passing the order allowing the employers to lead evidence, the labour court cannot be said to have acted without jurisdiction. It has been noticed in the judgment that the employers did not ask for an opportunity to lead evidence simultaneously with the filing of the application under Section 33(2)(b) of the Industrial Disputes Act, 1947 but when the hearing of that application was nearing completion, before the final orders were passed however, the employers asked for an opportunity to lead evidence to justify the order of dismissal.

16. In view of the conflict of decisions of the Apex Court in the Shambu Nath Goyal case (supra) and Rajendra Jha v. Presiding Officer, Labour Court 1984 Supplementary SCC 520, the matter was referred to a Bench of five Judges of the Apex Court which authoritatively decided the issue in its judgment reported at Karnataka State Road Transport Corporation v Lakshmidevamma (Smt) and Anr. holding thus:

16. While considering the decision in Shambhu Nath Goyal case we should bear in mind that the judgment of Varadarajan, J. therein does not refer to the case of Cooper Engg. However, the concurring judgment of D.A. Desai, J. specifically considers this case. By the judgment in Goyal case the management was given the right to adduce evidence to justify its domestic enquiry only if it had reserved its right to do so in the application made by it under Section 33 of the Industrial Disputes Act, 1947 or in the objection that the management had to file to the reference made under Section 10 of the Act, meaning thereby that the management had to exercise its right of leading fresh evidence at the first available opportunity and not at any time thereafter during the proceedings before the Tribunal/Labour Court.

17. Keeping in mind the object of providing an opportunity to the management to adduce evidence before the Tribunal/Labour Court, we re of the opinion that the directions issued by this Court in Shabhu Nath Goyal case need not be varied, being just and fair. There can be no complaint from the management side for this procedure because this opportunity of leading evidence is being sought by the management only as an alternative plea and not as an admission of illegality in its domestic enquiry. At the same time, it is also of advantage to the workmen inasmuch as they will be put to notice of the fact that the management is likely to adduce fresh evidence, hence, they can keep their rebuttal or other evidence ready. This procedure also eliminates the likely delay in permitting the management to make belated application whereby the proceedings before the Labour Court/Tribunal could get prolonged. In our opinion, the procedure laid down in Shambhu Nath Goyal case is just and fair.

17. In the same case Shivraj V. Patil, J, for Khare, J, and himself, concurring with the aforenoticed judgment further observed thus:

44. The question as to at what stage the management should seek leave of the Labour Court/Tribunal to lead evidence/additional evidence justifying its action is concerned in the draft judgment of Hegde, J. And not the power of the court/tribunal requiring or directing the parties to produce evidence if deemed fit in a given case having regard to the facts and circumstances of that case. As per Section 11(1) of the Industrial Disputes Act, 1947 (for short 'the Act') a court/tribunal can follow the procedure which it thinks fit in the circumstances of the case subject to the provisions of the Act and the rules framed there under and in accordance with the principles of natural justice. Under Section 11(3), the Labour Court/Tribunal and other authorities mentioned therein have the same powers as are vested in a civil court under the Code of Civil Procedure when trying a suit in respect of certain matters which include enforcing the attendance of any person and examining him on oath and compelling the production of documents and material objects.

45. It is consistently held and accepted that strict rules of evidence are not applicable to the proceedings before the Labour Court/Tribunal but essentially the rules of natural justice are to be observed in such proceedings. Labour Courts/Tribunals have the power to call for any evidence at any stage of the proceedings if the facts and circumstances of the case demand the same to meet the ends of justice in a given situation. We reiterate that in order to avoid unnecessary delay and multiplicity of proceedings, the management has to seek leave of the court/tribunal in the written statement itself to lead additional evidence to support its action in the alternative and without prejudice to its rights and contentions. But this should not be understood as placing fetters on the powers of the court/tribunal requiring or directing parties to lead additional evidence including production of documents at any stage of the proceedings before they are concluded if on facts and circumstances of the case it is deemed just and necessary in the interest of justice.

18. In a recent decision of the Supreme Court reported in (2005) 2 SCC 684 Divyash Pandit v. Management, NCCBM, the Apex Court has so held:

8. The appellant has challenged this decision of the High Court before us. We are of the view that the order of the High Court dated 2.12.2002 as clarified on 3-3-2003 does not need any interference. It is true no doubt that the respondent may not have made any prayer for (sic submitting) additional evidence in its written statement but, as held by this Court in Karnataka SRTC v. Laxmidevamma this did not place a fetter on the powers of the Court/Tribunal to require or permit parties to lead additional evidence including production of document at any stage of proceedings before they are concluded. Once the Labour Court came to the finding that the enquiry was not est, the facts of the case warranted that the Labour Court should have given one opportunity to the respondent to establish the charges before passing an award in favor of the workman.

19. In view of the various judgments of the Supreme Court, there can be no dispute that an employer has a right to adduce evidence before the labour court and industrial tribunal to justify the termination of the services of a workman the domestic inquiry held by it was held to be defective. Even, the Apex Court had rejected the objection raised by the present petitioner in this behalf.

19. The respondent before this Court sought this opportunity and lead evidence on the misconduct. The labour court has noticed that the deposition by its witness was not assailed by the petitioner and further that it was adequately established that the petitioner had actually furnished a bogus claim for an amount in respect of a journey which his family members had not undertaken at all. In my view, the findings of fact returned by the labour court are based on a correct appreciation on the material placed before it and on a correct application of the principles of law, I therefore find no infirmity in the findings returned.

20. The petitioner has sought to assail these findings of fact by way of the present writ petition.

The parameters of judicial review into industrial adjudication especially on issues of fact are well settled.

21. Noteworthy in this behalf are the observations of the Apex Court in AIR 2000 SC 1508 entitled Indian Overseas Bank v. I.O.B. Staff Canteen Workers' Union and Anr. wherein which it was held thus:

The learned single Judge seems to have undertaken an exercise, impermissible for him in exercising writ jurisdiction, by liberally reappreciating the evidence and drawing conclusions of his own on pure questions of fact, unmindful, though aware fully, that he is not exercising any appellate jurisdiction over the awards passed by a Tribunal, presided over by a Judicial Officer. The findings of fact recorded by a fact-finding authority duly constituted for the purpose and which ordinarily should be considered to have become final, cannot be disturbed for the mere reason of having been based on materials or evidence not sufficient or credible in the opinion of the writ Court to warrant those findings at any rate, as long as they are based upon some material which are relevant for the purpose or even on the ground that there is yet another view which can b reasonably and possibly one taken. The Division Bench was not only justified but well merited in its criticism of the order of the learned single Judge and in ordering restoration of the Award of the Tribunal. On being taken through the findings of the Industrial Tribunal as well as the order of the learned single Judge and the judgment of the Division Bench, we are of the view that the Industrial Tribunal had overwhelming materials which constituted ample and sufficient basis for recording its findings, as it did, and the manner of consideration undertaken, the objectivity of approach adopted and reasonableness of findings recorded seem to be unexceptionable. The only course, therefore, open to the writ Judge was the relevant criteria laid down by this Court, before sustaining the claim of the canteen workmen, on the facts found and recorded by the fact-finding authority and not embark upon an exercise of re-assessing the evidence and arriving at findings of ones own, altogether giving a complete go-bye even to the facts specifically found by the Tribunal below.'

22. In this context the principles laid down by the Apex Court in Sadhu Ram v. Delhi Transport Corporation AIR 1984 SC 1967 may also be noticed where it was observed thus:

Para 5. ...nor do we think that it was right for the High Court to interfere with the Award of the Industrial Tribunal under Article 226 on a mere technicality. Article 226 is a device to secure and advance justice and not otherwise. In the result, we allow the appeal, set-aside the judgment of the High Court and restore the Award of the Presiding Officer.

23. In Harbans Lal v. Jag Mohan the court ruled:

Para 5....The limitations on the jurisdiction of the High Court under Article 226 of the Constitution are well settled. The Writ Petition before the High Court prayed for a Writ in the nature of certiorari, and it is well known that a Writ in the nature of certiorari may be issued only if the order of the inferior tribunal of subordinate court suffers from an error of jurisdiction, or from a breach of the principles of natural justice or is vitiated by a manifest or apparent error of law. There is no sanction enabling the High Court to reappraise the evidence without sufficient reason in law and reach finding of fact contrary to those rendered by an inferior court or subordinate court. When a High Court proceeds to do so, it acts plainly in excess of its power.

24. In Calcutta Port Shramik Union v. Calcutta River Transport Association and Ors. 1988 (Supp.) SCC 768, the court further observed that:

Para 10. The object of enacting the enacting the Industrial Disputes Act, 1947 and of making provision therein to refer disputes to Tribunals for settlement is to bring about industrial peace. Whenever a reference is made by the Government to the Industrial Tribunal, it has to be presumed ordinarily that there is a genuine industrial dispute between the parties which requires to be resolved by adjudication. In all such cases, an attempt should be made by Courts exercising powers of judicial review to sustain as far as possible the Awards made by the Industrial Tribunal instead of picking holes here and there in the Awards on rival points and ultimately frustrating the entire adjudication process before the Tribunals by striking down the Awards in hyper technical grounds. Unfortunately, the orders of the Single Judge and of the Division Bench have resulted in such frustration and have made the Award fruitless on an untenable basis.

25. In the light of these principles also the findings of fact in the present case cannot be challenged by the petitioner. For all the foregoing reasons, there can be no manner of doubt that the act which petitioner was held to have committed was a dishonest act and amounted to a serious misconduct. The respondent was therefore justified in considering such a charge as an act of merely turpitude resulting in a loss of confidence in him which justifies the penalty of dismissal from service.

26. The labour court has however held that the inquiry conducted by the management had been vitiated and consequently the order of dismissal could not be considered as taking effect on the date when it was passed pursuant to such inquiry. Accordingly, the order of dismissal has been directed to be effective from the date of the award.

27. The petitioner has been given wages subject to adjustment of the amounts which he received under an interim order dated 21st January, 1992 of the labour court. For all the foregoing, I see no reason to interfere with the award dated 10th February, 1994.

This writ petition is accordingly dismissed. There shall be no order as to costs.