Ramesh Kumar vs The Management Of Delhi Transport ...
2006 Latest Caselaw 1962 Del

JUDGMENT

Manju Goel, J.

1. Admit.

2. Ramesh Kumar employed with the Delhi Transport Corporation (in short `DTC') as a conductor was removed from service vide an order of 24-1-1992. This gave rise to an industrial dispute which was referred to the Labour Court for adjudication. The award of the Labour Court No. II, Delhi in that industrial dispute (being No. 368/1994) dated 26-8-1996 is challenged by Ramesh Kumar in WP(Civil) No. 5073/1998. The DTC, on the other hand, applied for approval of the order of termination under Section 33(2)(b) of the Industrial Disputes Act. The Industrial Tribunal declined to approve the action of DTC vide an order dated 26-7-2001 which is under challenge in WP(Civil) No. 1937/2003.

3. For the purpose of the judgment, Ramesh Kumar, the writ petitioner is being referred to as the `workman' and the DTC as the `management'.

4. The workman was working as a conductor with the management and on the relevant day was on duty in a bus run by the management on the route of Alipur Block to Singhola. He was served with a charge sheet dated 28-10-1991 alleging that he had taken an amount of Rs. 10/- from ten passengers who travelled in the bus from Alipur Block to Singhola and in lieu of the fare paid, the workman had not given them tickets and further had taken Rs. 10/- which was less than the actual fare. As per the management's story as the passengers alighted from the bus the checking staff of the management found them without tickets and on discovering the facts, Rs. 5/- was collected and, thereafter, ten tickets of Rs. 1.50 each were taken from the unpunched tickets and given to the passengers. Further allegation against the workman was that he threw the sum of Rs. 15/- and incited the passengers against the checking staff.

5. In the departmental inquiry that followed, the workman was found guilty and eventually his services were terminated. The workman challenged this order of termination 26-10-1991 which resulted in the Industrial Dispute No. 368/1994. Award over this industrial dispute dated 26-8-1996 held that the inquiry conducted by the management was just and fair and that the order of punishment of removal from service was appropriate. The management DTC, on the other hand, made an application under Section 33(2)(b) of the Industrial Disputes Act which was heard by the Presiding Officer, Industrial Tribunal. The management's application in O.P. No. 58/1992 was dismissed vide an order dated 26-7-2001. The workman has challenged the award whereas the management has challenged the order of the Industrial Tribunal dated 26-7-2001.

6. Strangely, the order in O.P.58/1992 was decided much later than the industrial dispute. As mentioned earlier, the industrial dispute was decided vide award 26-8-1996. Unfortunately, there is no mention of this award in the judgment on the application O.P. No. 58/1992. The findings in the award were res judicata for the O.P. No. 58/1992. Had this award been brought to the notice of the Industrial Tribunal when O.P. No. 58/1992 was heard, the Industrial Tribunal certainly would not have decided the O.P. No. 58/1992 the way it has done.

7. The same inquiry report was placed before the Industrial Tribunal. The management did not lead any evidence in support of the inquiry in order to prove that it was a legal and valid inquiry. Accordingly, the Industrial Tribunal decided the issue as to whether the workman had committed the misconduct against the management. The Industrial Tribunal allowed the management to produce evidence in support of its application. During this inquiry before the Industrial Tribunal, the management produced the affidavits of three witnesses who were the checking staff accompanying A.T.I. Balbir Singh. They corroborated the allegations in the charge sheet that, on checking, A.T.I. Balbir Singh found the irregularity committed by the workman and, thereafter, issued the challan Ex.AW 1/1 and Balbir Singh then also submitted his report Ex.AW1/3. The charge sheet Ex.AW1/C was issued on the basis of the report of Balbir Singh. On the other hand, before the Industrial Tribunal the workman submitted his own affidavit RW1/A to state that he issued tickets to all the passengers in his bus. He also denied that he had instigated any passenger against the checking staff and also relied upon the reply to the charge sheet as well as to the notice to show cause issued after the inquiry was completed. The Industrial Tribunal then proceeded to scrutinize the evidence led before it. It was observed by the Industrial Tribunal that although the passengers had alighted from the bus at Singhola, the challan was given to the Conductor at Patla, a place about 10-12 kms from Singhola and that the signatures of the defaulting passengers were taken on a plain paper which had not been counter-signed by any independent witnesses. None of the passengers in question was produced before the Industrial Tribunal and, as such, there was no corroboration to the testimony of the checking staff in respect of non issue of tickets. So far as the workman instigating the passengers is concerned, it was found by the Industrial Tribunal that when the challan was given to the workman at Patla, the bus was empty and there was no question of the workman instigating the passengers in the bus. The Industrial Tribunal observed that the lady passengers were examined in the absence of the workman and that it was quite possible that the lady passenger had alighted from the bus without ticket but the question for consideration was whether the conductor/workman had collected the fare charged and despite that had not issued tickets. The industrial Tribunal also took note of the fact that the cash available with the workman had not been checked. The Industrial Tribunal then concluded that the management had failed to establish by sufficient evidence that the workman had committed any misconduct. Accordingly, the permission under Section 33(2)(b) was declined.

8. So far as the impugned award dated 26-8-1996 is concerned, the same is entirely based on the domestic inquiry. The workman before the Labour Court produced the copy of the charge sheet dated 28-10-1991, the copy of his reply dated 13-11-1991, the copy of the show cause notice dated 16.1.1992 and the copy of the reply dated 1.2.1992 to the show cause notice. The inquiry was challenged by the workman on the grounds that:

(i) He was not informed about the appointment of the inquiry officer and inquiry proceedings;

(ii) He was not asked to obtain assistance of co-worker, union leader or advocate;

(iii) No list of documents or list of witnesses was ever provided to the workman.

9. The Labour Court found that the workman's statement of claim did not contain any of the three grounds. The Labour Court observed that in the statement of claim the workman had admitted that he had objected to the charge sheet which he had received and that thereafter the inquiry had commenced and he had participated in the inquiry. In the statement of claim the workman had not denied that he had participated in the proceedings. He had also admitted that the penalty of removal from service had been imposed by the management. On the basis of the above evidence, the Labour Court found that the inquiry proceedings had not been vitiated.

10. The Labour Court also took into consideration the plea of the workman that other passengers had not been summoned in the inquiry proceedings. The Labour Court then opined that no particular number of witnesses was required to be produced for proving any fact in the inquiry proceedings and that the management had examined the checking staff and, thereafter, it was not necessary to examine the passengers also.

11. The basic question for consideration before this Court is primarily whether the Labour Court award was legal and valid. By now, the law is settled that in order to prove similar guilt by a conductor, it is not necessary to produce the passengers and that it is sufficient if the checking staff deposes before the inquiry officer that the conductor was found to be a defaulter in issuing tickets. The judgments of the Supreme Court that can be cited in this regard are:

1) State of Haryana v. Rattan Singh and

2) Delhi Transport Corporation v. Shyam Lal

12. It is also settled by now that in this kind of an offence, dismissal/removal from service cannot be looked upon as a punishment shockingly disproportionate to the misconduct. Reference can be made to the two judgments of the Supreme Court mentioned in the previous paragraph. So far as the inquiry is concerned, the workman was given sufficient opportunity to defend himself as he appeared in all the hearings. The grounds to challenge the award taken in the writ petition are as under;-

(a) The award of the Labour Court is violative of the principles of natural justice;

(b) The Labour Court failed to appreciate that there was no evidence to prove the alleged misconduct;

(c) No evidence was produced before the Labour Court and the workman's request to summon the passengers failed on deaf ears;

(d) The Labour Court did not take the statements of independent witnesses and had independent witnesses been examined by the Labour Court, the truth would have been revealed;

(e) The inquiry officer being an employee of the management was interested in convicting the petitioner and, therefore, he was not a neutral person;

(f) The workman did not get the help of a co-worker;

(g) All the witnesses were official witnesses and were interested in favor of the management;

(h) Had the statement and other witnesses been considered, the petitioner would have been exonerated;

(i) The punishment was not inconsonance with the offence which involved only Rs. 15/-;

(j) That the Labour Court failed to exercise the jurisdiction under Section 11(3);

(k) The Labour Court should have interfered in the matter and should have set aside the findings of the domestic tribunal and interfered with the punishment.

13. In view of the legal situation that has emerged from the judgment of the Supreme Court, the finding of the inquiry officer against the workman could not be said to have been perverse. There is no denial of the fact that checking staff had appeared in the inquiry and that in the inquiry statements of the passengers recorded by the checking staff was produced. Therefore, there was evidence on record available with the Inquiry Officer on the basis of which the inquiry officer could arrive at a finding that the workman was guilty of the misconduct. Therefore, the finding of the inquiry officer could not be said to have been perverse. The award, therefore, cannot be faulted. It may also be said here that so far as the question of the workman's representation in the inquiry is concerned, he was given the assistance of a co-worker which he had declined. The mere fact that the inquiry officer and the witnesses of the management were employees of the DTC cannot be sufficient to hold that they were all interested to return a finding against the workman. There is no denying the fact that the petitioner had taken part in the inquiry proceedings. Therefore, none of the objections to the inquiry proceedings can be said to be well founded. The Labour Court could not have interfered with the punishment as punishment from removal of service of such a workman was not quite shockingly disproportionate to the misconduct as was held by the Supreme Court in the case Rattan Singh(supra) and Shyam Lal(supra).

14. In view of this situation, the order of the Industrial Tribunal in O.P. No. 58/1992 cannot be sustained. As mentioned earlier, the Industrial Tribunal, in fact, had not gone into the question of validity of inquiry. As the management did not produce any evidence to prove the inquiry proceedings, the issue was answered against the management. However, even before the Industrial Tribunal, the management had again produced the checking staff and the relevant documents, namely, the challan and the statement of the passengers recorded by the checking staff. In the light of the legal position as explained above, the Industrial Tribunal could not have returned a finding in favor of the workman. The Industrial Tribunal could not have weighed the evidence as if it was deciding a criminal case. The misconduct of the workman was not required to be proved beyond doubt. The Industrial Tribunal has only noticed the deficiencies in evidence which in a criminal trial can give the accused benefit of doubt. Therefore, the Industrial Tribunal which examined the evidence with strictness required for examining in a criminal case entirely went wrong in its appreciation of evidence.

15. In view of the above, I have no hesitation to hold that the award of the Labour Court cannot be faulted in any manner and no interference with that award is called for. The order of the Industrial Tribunal in O.P. No. 58/1992 has to go not only because the award has been upheld but also because the Industrial Tribunal itself has not employed the right principle for appreciation of evidence led before it.

16. In the result, the WP(C) No. 5073/1998 fails and the same is dismissed and the WP(C) No. 1937/2003 is allowed. The impugned order dated 26-7-2001 in O.P. No. 58/1992 is quashed.