Delhi Transport Corporation vs Azad Singh
2006 Latest Caselaw 1965 Del

JUDGMENT

Shiv Narayan Dhingra, J.

1. By this writ petition, the petitioner has challenged the validity of award dated 1.4.2002 and order dated 1.5.1999, passed by the Industrial Tribunal-I, New Delhi. By order dated 1.5.1999 the enquiry conducted by the petitioner against the respondent into the misconduct was held to be unfair and invalid and by award dated 1.4.2002, the punishment awarded to the respondent was held to be illegal and unjustified and the punishment of stoppage of three increments with cumulative effect was set aside.

2. The respondent was working as a conductor with the petitioner. His track record about the misconduct/mis-behavior was as under:

  S.  Order of Support       Reasons                         Form of fine
No.  
1   KR/ATT/CR-164/79       Performing duty without         Cautioned
                           uniform on 4.10.1979
2   SE/KPD/ATT/Comp.48/80  Misbehaved with the             Advised
                           passenger on 20.9.1980       
3   KP/AI/CR-4/78          Did not close the number        Warned
    dated 2.2.78           of tickets in up-direction 
                           ticket from Mehrauli 
                           on 23.11.1998
4   KP/AIT/CR-29/80/4718   Non-issuance of ticket after    Next due one Inc.
                           collecting Rs. 1/- Refused to   stopped with cumulative
                           get searched the body cash      effect
                           short by Rs. 2.95 tried to 
                           swell the unpunched tickets 
                           on 26.1.1980
5   AND/AIT/CR-38/85       Misbehaved with DTC Official.   Warned
    dated 13.3.1985        Refused to give the way till 
                           and to render the trip without 
                           route on 19.2.1985
6   AND/AIT/Int-74/85      Without rear inclination        Warned
    dated 25.6.1985        boarded on 10.6.1985
6A. ST/AND                 Did not refunded the passenger  Advised
                           balance on 16.5.1985
7   AND/AIT/CR-99/86/      Performing the duty without     Placed under suspension
    2400 dated 9.4.86      uniform, snatched the way bill  w.e.f.10.4.1986
                           when challaned misbehaved and 
                           manhandled with the checking 
                           staff
8   AND/AIT/CR-97/86/2919  Released from suspension        Stoppage of next due 
    dated 2.5.1986         w.e.f. 3.5.86                   one Inc. with cumulative 
                                                           effect.
9   OCII/AIT/STR-129/86    Re-selling of tickets           Warned
    dated 12.12.1986
10  ODII/AIT/Susp/87/1872  Non-issuing of Ticket to a      Placed under susp. 
    dated 27/187           group of 3 passengers on        w.e.f 28.11.87
                           19.11.87 on interstate 
                           route
11  ODII/AIT/CS-225/87/    -do-                            Released from suspension
    149 dated 27.1.1988                                    w.e.f. 28.1.1988
12  VVD/AIT/Ch-19/         -do-                            Stoppage of next due one
    Appeal/88/7377 dated                                   Inc. with cumulative effect.
    6.12.88
13  VVD/AIT/Ch-109/88/     Did not display the             Advised
    160 dated 27.5.88      R-Destination Board on 
                           4.5.88
14  VVD/AIT/Int-99/88/     Did not display rear            Advised
    131 dated 18.7.88      destination board on 
                           12.5.88
15  VVD/AIT/Int-10/89      Did not deposit the             Advised
    dated 23.1.89          way bill on 5.1.89
16  VVD/AIT/Int-29/89      Did not deposit the             Advised
    dated 23.1.89          complaint book in time 
                           on 30.12.88
17  VVD/AIT/Chall-3/5/89   Performing his duty without     V.warned
    dated 10.5.89          license and wearing very 
                           dirty cloths
18  VVD/AIT/CH-4/89/2502   Placed under suspension 
    dated 10.5.89          w.e.f. 11.5.89 as he did 
                           not render the Sch. Trip 
                           the parked the bus of route 
                           and wasted the time on 
                           29.4.89
19  VVD/AIT/CH-4/89/4004   Released from susp. w.e.f. 
    dated 3.7.89           1.8.89 pending enquiry into 
                           the case
20  VVD/AIT/Ch-4/89/4586   On account of not rendering     Next due two inc. stopped
    dated 28.8.89          the scheduled trip knowingly    with cumulative effect.
                           and causing losses to the 
                           Corporation on 29.4.89
 
21  VVD/AIT/Ch-61/90       Performing his duty without     Advised
    dated 12.4.90          name plate
22  VVD/AIT/Loss-TKT-      Loss of passes Rs. 4/-          Advised
    2/90/3597 dated        on 8.8.90
    29.8.90
23  VVD/____________       Refusal of the trip on          Suspended w.e.f. 6.2.91
    2/91/116 dated         4.2.91 not to tender 
    5.2.1991               route form, complaint book 
                           and misbehaved with the 
                           time keeper


 

Refusal of the trip on 4.2.91 not to tender route form, complaint book and misbehaved with the time keeper
 

Suspended w.e.f. 6.2.91
 

3. On 4th February, 1991, respondent was on duty at bus No. 2490 route No. 623. The schedule trip of this bus was at 1320 hrs from Vasant Vihar Terminal to Nizamuddin Railway Station. The respondent refused to take the trip. He refused to show the way bill to the ATI, disobeyed the order of the time-keeper and drove the bus to the depot without informing. A report of misconduct was submitted to the Depot Manager on 5th February, 1991 and a charge-sheet was served upon the respondent on 11th February, 1991.

4. The facts as brought on record reveal that on 4th February, 1991 passengers were waiting at the bus terminal for the bus Route No. 623. The conductor and driver asked the passengers to sit in the bus but after sometime, the conductor and driver told the passengers to get down from the bus and both went for taking tea at tea-shop. At 1325 hrs Bus Route No. 56 bus came and some of the passengers went in that bus, however, one lady passenger and one another passenger yet remained waiting for bus route No. 623 because they were to go to Nizamuddin Railway Station. At 1325 hrs when the conductor and driver came at the bus, Mukut Behari, ATI asked them as to why they made all the passengers get down from the bus. They told him that they did not want to go on Route No. 623, if he wanted to take duty from them, they should be sent either on Route No. 659 or Route No. 660. The passengers told that they had to go only at route No. 623 because that meted their requirement. The conductor and driver refused to take the bus on that route despite ATI telling them to do duty as per schedule. The driver and conductor gave him abuses and without informing him took away the bus at 1340 hrs, without passenger. He recorded the statement of lady passenger and gave his report to the Depot Manager. He told the manager that this attitude of conductor and driver was a regular feature and after every 2-3 days they would ask him to relieve them from the route. He also reported that he had demanded complaint book from the conductor and driver but they refused to give him the complaint book. They also did not hand him over the way bill for making entries in it .

5. A charge-sheet was issued to the respondent on 11.2.1991 levelling charges of refusal of trip, disobeying the order of the time-keeper, refusal to show way bill and driving the bus to Bus Depot without informing the ATI and misbehaving with the ATI, Mukut Behari. Enquiry was conducted into the misconduct and the Enquiry Officer, gave his report on 19th March, 1991, in the meantime the respondent remained suspended from the service. After enquiry, punishment of stoppage of next three increments with cumulative effect was imposed on the respondent on 11.4.1991. Respondent preferred a departmental appeal to the Appellate Authority. The appeal was dismissed vide order dated 25.5.1992. The respondent thereafter raised an industrial dispute which was referred to the Tribunal in following terms:

Whether the punishment of stoppage of next due three increments with cumulative effect imposed on Shri Azad Singh is illegal and/or unjustified and if so, what directions are necessary in this respect?

6. A preliminary issue was framed by the Tribunal whether a fair and proper enquiry was conducted. The Tribunal vide order dated 1.5.1999 held that the enquiry conducted was not fair and proper observing that it was obligatory on the part of the Enquiry Officer to ask the workman on each date of proceedings, if he wanted the assistance of any co-worker. This requirement was laid down as per circular dated 12.2.1973 of DTC. Since, this requirement was not fulfillled and on every date of enquiry, delinquent was not asked if he needed the assistance of co-worker, the enquiry was vitiated, despite the fact that the respondent not only participated in the enquiry but cross examined the witnesses himself. In the initial stage of enquiry when he was asked, if he needed assistance of co-worker, he had refused to take assistance of co-worker, stating that he shall himself conduct the enquiry. The other ground on which the enquiry was held vitiated was that a copy of the preliminary enquiry report was not supplied to the respondent and this caused prejudice to the workman. Reliance was placed by the Tribunal on State of Uttar Pradesh v. Mohammad Sharif 1982 (45) FLR 289. The third ground on which the enquiry was held vitiated was that the copies of list of witnesses was not supplied to the workman as required by him.

7. The conclusion arrived at by the Tribunal holding that the enquiry was not conducted as per principles of natural justice, on the face of it, is perverse. It is settled law that principles of natural justice cannot be put into a straight jacket formula. Whenever a ground is taken that the enquiry was not conducted in accordance with the principles of natural justice, the workman has to show in what manner he was prejudiced by the alleged violations of the principles of natural justice. Unless, it is proved that there was a prejudice caused to the workman, the enquiry cannot be held to be contrary to principles of natural justice. In 1987(Suppl) SSC 518, Chandrama Tewari v. Union of India, the question before the Supreme Court was whether the disciplinary proceedings against the appellant resulting into his dismissal was not conducted according to the principles of natural justice. The Supreme Court held as under:

We have given our anxious consideration to the submissions made on behalf of the appellant and we have further considered the aforesaid authorities referred to by the learned Counsel for the appellant but we do not find any merit in the appellant's submissions to justify interference with the High Court's judgment. Article 311 of the Constitution requires that reasonable opportunity of defense must be afforded to a government servant before he is awarded major punishment of dismissal. It further contemplates that disciplinary enquiry must be held in accordance with the rules in a just and fair manner. The procedure at the enquiry must be consistent with the principles of natural justice. Principles of natural justice require that the copy of the document if any relied upon against the party charged should be given to him and he should be afforded opportunity to cross-examine the witnesses and to produce his own witnesses in his defense. If findings are recorded against the government servant placing reliance on a document which may not have been disclosed to him or the copy whereof may not have been supplied to him during the enquiry when demanded, that would contravene principles of natural justice rendering the enquiry, and the consequential order of punishment illegal and void. These principles are well settled by a catena of decisions of this Court. We need not refer to them. However, it is not necessary that each and every document must be supplied to the delinquent government servant facing the charges, instead only material and relevant documents are necessary to be supplied to him. If a document even though mentioned in the memo of charges is not relevant to the charges or if it is not referred to or relied upon by the enquiry officer or the punishing authority in holding the charges proved against the government servant, no exception can be taken to the validity of the proceedings or the order. If the document is not used against the party charged the ground of violation of principles of natural justice cannot successfully be raised. The violation of principles of natural justice arises only when a document, copy of which may not have been supplied to the party charged when demanded is used in recording finding of guilt against him. On a careful consideration of the authorities cited on behalf of the appellant we find that the obligation to supply copies of a document is confined only to material and relevant documents and the enquiry would be vitiated only if the non-supply of material and relevant documents when demanded may have caused prejudice to the delinquent officer.

8. In 2006 SSC (L&S) 810, A. Sudhakar v. Post Master General, Hyderabad, Supreme Court again considered as to what constitute the principles of natural justice in domestic enquiries and observed that the principles of natural justice are not embodied principles. The Courts are required to see whether non-observance of any of the alleged violation of principles of natural justice in a given case has resulted in denial of justice. If there has been substantial compliance with the procedure, the Court may not interfere.

9. In State of Haryana, and Anr v. Ratan Singh AIR 1977 (2) SSC 491, Supreme Court held that the non-compliance of departmental instructions like the statement of passengers should be recorded by inspector does not amount to violation of the principles of natural justice. The departmental instructions are instructions of prudence and not rules that bind or vitiate in the violation.

10. In the present case, the respondent had participated in the enquiry. He was asked at the start of the enquriy, if he wanted the assistance of any co-worker, he declined the assistance of any co-worker and continued to conduct the cross examination of witnesses himself. He cross-examined all the witnesses. In view of his conducting proceedings himself, the non-asking of enquiry officer to the respondent on each date of hearing whether he wanted the assistance of a co-worker, cannot be considered as a violation of principles of natural justice. It has been held by Hon'ble Supreme Court that departmental instructions cannot bind or vitiate the proceedings. The Tribunal's observation that non-asking the workman whether he wanted assistance of co-worker on each date of hearing amounted to violation of principles of natural justice is perverse.

11. The other ground on which the enquiry has been held to be vitiated is non-supply of preliminary enquiry proceedings to the respondent. Preliminary enquiry is held by a department only to find out whether there ware sufficient grounds to proceed against the delinquent. If in the preliminary enquiry it turns out that there was no ground to proceed against the delinquent, no charge-sheet is served upon the delinquent. The preliminary enquiry is not for the consumption of the delinquent. It is for the consumption of the administration. A delinquent, who is served with a charge-sheet has a right to get all that material on which reliance is placed by the department. If no reliance is placed on preliminary enquiry, non-supply of preliminary enquiry report cannot cause any prejudice to the delinquent. The delinquent is only concerned with the material which is to be adduced against him during the enquiry. He is not concerned with those documents or that material, which is not to be used against him. Non-supply of any such material including the preliminary report, does not amount to violation of principles of natural justice.

12. The third ground is the non-supply of list of witnesses to the workman. I consider that the Tribunal should have addressed a question to itself as to in what manner the non-supply of list of witnesses has prejudice the defense of respondent. The respondent has cross examined each and every witness. He was well aware of the names of the witnesses, so mere non-supply of list of witnesses which has not caused any prejudice to the respondent, shall not result in vitiation of the enquiry. The Tribunal's conclusion that the enquiry was vitiated is bad in law.

13. After holding that the enquiry was vitiated Tribunal passed an award on the basis of evidence recorded by it. Though there was evidence of the management that the driver and conductor refused to take the trip and asked the passengers to get down of the bus, but the Tribunal observed that the lady passenger, who had given her statement in support of the report of ATI Mukut Behari had not been produced as a witness and therefore, held that the charge against the respondent was not proved.

14. It has been held by Supreme Court in Ratan Singh Case (supra) that examination of passenger witnesses was not necessary for proving the misconduct of the conductor. The strict and sophisticated rules of evidence under Indian Evidence Act do not apply in domestic enquiries and all material which is relevant and logical has to be considered and can be produced during domestic enquiry. There is no allergy to hearsay evidence. In Cholan Roadways v. G. Thirugnansambandam 2005 1 (LLJ) 569, Supreme Court observed as under:

It is further trite that the standard of proof required in a domestic inquiry vis-a-vis a criminal trial is absolutely different. Whereas in the former 'preponderance of probability' would suffice; in the latter, 'proof beyond all reasonable doubt' is imperative.

15. The Tribunal in the present case misdirected itself by not asking the question to itself whether any prejudice was caused to the respondent by the alleged violations of principles of natural justice. The Tribunal also wrongly held that the examination of the passengers witnesses was very material. The enquiry held by the department was a valid enquiry and the punishment awarded to the respondent after proving all misconduct in the enquiry was in accordance with the law.

16. The order of the Tribunal dated 1.5.99 holding that the enquriy was vitiated is perverse and is hereby set aside. The order dated 1.4.2002 holding that misconduct was not proved is also perverse, the same is also set aside. The writ petition is allowed.