Management Of Delhi Transport ... vs Radhey Lal
2006 Latest Caselaw 2196 Del

JUDGMENT

Shiv Narayan Dhingra, J.

1. By this writ petition, the petitioner has challenged the validity of award dated 2.12.2003 passed by the Labour Court VII, Delhi, whereby the petitioner was directed to reinstate the respondent with full back wages and continuity of service and has also challenged the order passed by the Labour Court dated 4th July, 2003, directing the petitioner to grant employment to the respondent in DTC during the pendency of the proceedings as interim relief. It was also directed that the respondent be either allowed to join as a conductor or be given any other suitable post.

2. Briefly, the facts are that the respondent Radhey Lal was working as a conductor with the petitioner. On 4th August, 1993, he was on duty on bus No. DL-1P-9445 from Gwalior to Delhi. Checking staff of DTC gave signal to this bus at 7.50 PM when the bus was near Dom Pura Road, Murena for checking of the bus. At that time, the checking staff found the conductor sitting at the bonnet of the bus near the driver. The bus was not stopped for checking despite signal of checking staff. The checking staff chased the bus in a jeep. The bus was compelled to stop by bringing the jeep ahead of bus by overtaking it after about 2 kms. The passengers were checked by the checking staff. It was found that 10 passengers having ticket Serial No. 00037276 to 85 were issued tickets during the running of the bus when it was being chased by the checking staff. All these tickets were not entered into the way voucher. On enquiry from the passengers, they told that they had boarded the bus from Gwalior for Murena and paid Rs. 9 each to the conductor. The Conductor did not issue any ticket to them but, on seeing the checking staff and when checking staff was chasing the bus, he hurriedly issued tickets to them.

3. A charge sheet was issued to the conductor in respect of the above misconduct on 8th September, 1993. It was mentioned in the charge sheet that he also refused to sign the statements of passengers, which was taken in his presence. His way voucher was incomplete and he violated the Standing Orders and Rules governing the conduct of conductor, as issued by DTC. The respondent denied the charges levied against him and took the stand that it was not his duty to stop the bus but it was the duty of the driver. He denied that the bus was chased or the statement of any passenger was recorded in his presence. Regarding incompletion of way voucher, he submitted that he was going to complete the same but was not allowed to do so by the checking staff, who took away the same.

4. An enquiry was conducted into the charges and the Enquiry Officer found misconduct proved. The punishment of removal from service was imposed on the respondent, looking into his past conduct. The past conduct of the respondent was as under:

DETAILS OF THE CONDUCtor/DRIVER'S PAST RECORD

Sh. Radhey Lal Badge No. 10648 T. No.16249

S/o Sh. Nanak Chand Date of Appointment 25.5.1977-MR

24-7-75(Apprentice)

S. No.

Order of the Authority

Reasons

Nature of penalty

IPD/Al(T)CS/111/79/10864 DM IPD Dt. 10101979

For two used tickets found in the ticket block

Censured

IPD/AL(T)/Loss of tickets 7/80 dt. 7-03-1980

For loss of tickets and leather bag on 20.2.1980

Warned

IPD Al(T)CS-108/80/6101 dt.30.6.80

For Non Issuance Of Tickets on 20.12.1979

Stoppage of his next due increment for six months without cumu lative effect

IPD/Al(T)CS 122/80 7571 dt.

24/7/80

For Non Issuance Of Tickets on 30.9.1979

Stoppage of his next due six months without cumulative effect

IPD/Al(TO Susp/822588/ 31.3.1982

Placed under suspension w.ef.

1-4-82 for Non Issuance Of Tickets 7 cash Short of Rs. 150 on 17.3.1982

IPD/Al(T)Cs 82/2523 dt.

14.4.82

Put back on duty w.e.f 14.4.82

pending enquiry finalization of the case

IPD/Al(T) St./Comp/156/81 30-3-1982

For misbehaved with passengers

Warned

IPD/Al/(T)/Susp/Cs 282/83 /562/dt.7.2.83

Placed under suspension w.e.f.

9.2.83 for Non Issuance Of Tickets to 4 passengers on 5.2.83

IPD/Al(T CS/282/83 1149 dt.

10.3.1983

Put back on duty w.e.f.

10.3.1983

pending enquiry finalization of the case

IPD Al(T) Cs 50/83 5512/ dt/24.8.83

Case closed in terms of OO No. 33 dt.2.11.82

shd/Al/(T) Ch-19/85 2883 dt.23/7/85

Non issue of tickets after collecting the due fare on dt. 5.2.1985

Stoppage of next due one increment without cumulative effect for six months.

IPD Al(T) CS 93/1506 Dt.

10.8.93

Suspended w e f 10.8.1993

pending the enquiry and decision in the case.

   

 
  
 
  
   
   

(1) For not stopping the bus
  on          being signaled on 4.8.93
  
   
   

Suspended
  
 
  
   
   

(2) Not issuing tickets to 10
  passengers after collecting due fare from them and issuing tickets
  subsequently on seeing the checking staff, attempting to cause financial loss
  to the corporation refusing to sign the statement given by the passengers for
  incomplete way voucher
  
 
  
   
   


  
   
   

IPD Al(T) CS 48/93/94 53 dt.30.5.94
   

 
  
   
   

Suspension order being revoked
  w e f 30.5.1994 in aforem- entioned case
  
   
   

Remove from service of DTC w e
  f 29.10.1994 under 15(2) VI of DRTA conditions of Appointment and Services regulations

  
 
  
   
   

 
   

IPD PLD III/CNL/Trans/94 2626
  3-06-94
  
   
   

 
   

Transferred order on Admn. ground
  from IPD to SHD-1
  
   
   

 
  
 


 

5. The petitioner challenged his dismissal and following dispute dispute was referred for adjudication to the Labour Court vide reference dated 21.9.1995:

Whether the removal of Shri Radhey Lal from the service by the management is illegal and/or unjustified and if so, to what relief is he entitled and what directions are necessary in this respect.

6. The Labour Court, on the basis of the pleadings of the parties, framed preliminary issues to the following effect:

Whether the domestic enquiry was not fair and valid and was not conducted according to the principles of natural justice.

7. The Labour Court decided this issue against the petitioner vide order dated 17.9.1999 and after holding the above issue against the petitioner, the Labour Court went on to record evidence of both parties and passed the impugned award. While passing the award the Labour Court observed that:

Ld. AR for the workman for the workman has contended that the DTC in its written statement has not sought any permission to prove misconduct in the court. This is borne out by the reading of written statement. It is contended by Ld. AR for the workman that since permission has not been sought. the court could not have allowed DTC to prove misconduct and, therefore, the evidence should not be led to prove the misconduct. There cannot be disagreement on this score with the submissions of Ld. AR of the workman as the Hon'ble Supreme Court has held it so in the case of Karnataka State Transport Corporation v. Smt. Lakshmidevamma and Anr. reported as 2001 IV AD (SC) 285....(Para 8)

8. I consider that the Labour Court's observations that since no permission had been sought, no evidence could have been allowed by the Tribunal to prove misconduct, are misconceived. The Labour Court was sent a reference under Section 10 of the Industrial Disputes Act for adjudication. It was not a case where an application under Section 33(2)(b) of the Act has been made by the management, seeking approval of its action of dismissal. The powers of the Labour Court, while granting approval under Section 33(2)(b) of the I.D. Act, are limited. However, if the Labour Court holds that the enquiry held by the management was vitiated, for any reasons, the Labour Court has to allow the management to prove the misconduct by leading evidence before the Tribunal at the request of the management. If no request is made by the management to prove the misconduct before the Labour Court, still the Labour Court has power to ask the management to prove the misconduct suo moto. However, where a reference is made under Section 10 of the I.D.Act, the scope of adjudication before the Labour Court is vast and wide. The Labour Court has to conduct the proceedings as a court of first adjudication and the enquiry report is one piece of evidence which may or may not be believed by the Labour Court, but the Labour Court is duty bound to give opportunity to both sides to prove their case before it. In a reference under Section 10 of the I.D. Act, it is not necessary for the management to seek permission to adduce evidence because this is management's natural right. The observations made by the Labour Court, therefore, are per se contrary to law.

9. In The workmen of M/s Firestone Tyre and Rubber Co. of India(Pvt.) Ltd. v. The Management and Ors. , the four principles relevant for the present purpose are as contained at sub-paras 4,6,7 and 8 of para 32 of the report. The said principles are:

(4) Even if no enquiry has been held by an employer or if the enquiry held by him is found to be defective, the Tribunal in order to satisfy itself about the legality and validity of the order, had to give an opportunity to the employer and employee to adduce evidence before it. It is open to the employer to adduce evidence for the first time justifying his action, and it is open to the employee to adduce evidence contra.

(6) The Tribunal gets jurisdiction to consider the evidence placed before it for the first time in justification of the action taken only, if no enquiry has been held or after the enquiry conducted by an employer is found to be defective.

(7) It has never been recognized that the Tribunal should straightway, without anything more, direct reinstatement of a dismissed or discharged employee, once it is found that no domestic enquiry has been held or the said enquiry is found to be defective.

(8) An employer, who wants to avail himself of the opportunity of adducing evidence for the first time before the Tribunal to justify his action should ask for it at the appropriate stage. If such an opportunity is asked for, the Tribunal has no power to refuse. The giving of an opportunity to an employer to adduce evidence for the first time before the Tribunal is in the interest of both the management and the employee and to enable the Tribunal itself to be satisfied about the alleged misconduct.

10. The Labour Court, in para 10 of its judgment, further observed that there was no cogent evidence produced by the management against the workman, although adducing of evidence was prohibited as per law. There was no categorical evidence of misconduct.

11. It seems that the Labour Court has all along been labouring under a concept that it was not supposed to record evidence of the management, since no permission was sought by the management. It half heartedly proceeded to consider the evidence since the evidence had been recorded. The Labour Court also seems to labouring under the concept that the standard of proof required to prove misconduct has to be very high. The Labour Court did not consider that it has to weigh the evidence on balance of probabilities and consider the entire relevant material produced before it. It observed that the evidence of the bus driver cannot be used against the conductor since the enquiry was not against the driver but against the conductor. It is now settled law that a quasi judicial authority and the Tribunals are not bound by sophisticated rules of evidence. The Tribunal is supposed to consider all that material which is logical, probative for a prudent mind, although the Tribunal must be careful in evaluating such material. What is inadmissible under evidence Act can be admissible in the enquiry. While considering the charges against the delinquent, the Tribunal has to see that if there was some evidence or it was a case of no evidence, without taking into account the technical rules of evidence. The Court has to accept, in same manner and form and in common sense to weigh the materials as a man of understanding and wisdom, will accept. The evidence of inspecting staff and the officials of flying squad is relevant and material evidence even if no passenger has been examined.

12. The Tribunal discarded the evidence of the flying squad/inspecting staff and driver. It seemed to labour under the impression that since all the passengers were given tickets, there was no loss caused to the petitioner so there was no misconduct. The misconduct which was sought to be proved against the respondent was that he deliberately, in collusion with the driver, not allowed the bus to stop for checking. The bus was driven for about 2 kms before it was forcibly stopped by the inspecting staff. Within this period, the respondent hurriedly issued tickets to the passengers. He thereby caused hindrance in the duty of the checking staff by not allowing the bus to be checked at the point when signal was given. Had the bus been stopped immediately, he would have been caught with extra money which he had received from passengers. His way voucher was incomplete. To this charge, there was sufficient evidence placed on record before the Tribunal, which was brushed aside by the Tribunal without any reasons. The Tribunal did not look into the past record of the respondent to see as to why the respondent was determined not to allow the checking staff to check the bus immediately. His past record showed that he had earlier been punished for the same misconduct for non issuance of tickets four times, once he was caught with old used tickets.

13. The plea that bus was to be stopped by driver is of no help to the respondent. In public transport buses, the drivers stop and start buses at the signal of conductor. It is the whistle blown by conductor which causes the bus to stop, start or not to stop. There is close cooperation between bus conductor and driver. This cooperation cannot be used for illegal purposes. As per duty roaster of conductor, it was obligatory on him to get the bus checked by the checking staff as and when signaled. Non stopping of bus on signaling by the checking staff itself is a serious misconduct. In this case apart from evidence of non stopping of bus, the evidence of hurriedly issuance of tickets to passenger was there. All the passengers who were hurriedly issued tickets had boarded the bus from starting point of the bus. There could have been no reason of their tickets non-entry into way voucher unless they were issued tickets hurriedly on seeing checking staff. Since bus was forced to stop by checking staff, so conductor could not make entry of such tickets into the way voucher. Checking staff recorded statements of passengers which conductor/respondent refused to sign. The plea that it was raining on that day, also is of no help, since due to rain bus would already had been slow and could be easily stopped within 200 mtrs. The very fact that bus had to be forced stopped after about 2 kms, showed that rain was not a factor.

14. While entertaining a writ petition under Section 226 of the Constitution of India, High Court cannot act as Court of appeal and re- appreciate the evidence. The High Court can interfere only if there is perversity in the award. The award is perverse if it is based on no evidence or is contrary to evidence on record. Award is also perverse if it is passed in ignorance of law or contrary to settled principles of law. The award in question has been passed by the Tribunal in ignorance of law and is also contrary to evidence on record.

15. I consider that the award passed by the Tribunal is perverse, bad in law and is hereby set aside. The writ petition is allowed. No orders as to cost.