Delhi Transport Corp. vs The Presiding Officer, I.T. And ...
2006 Latest Caselaw 1970 Del

JUDGMENT

Manju Goel, J.

1. These are two writ petitions being WP(C) Nos. 7886/2001 & 3176/2002 between the same parties and involving the same transaction. WP(C) 7886/2001 is filed by Bhagwan Dass who was a Conductor in the employment of Delhi Transport Corporation (`DTC' in short) and was removed from service of DTC on 15.4.1993 after an inquiry into an alleged misconduct of failure to issue tickets after receiving the fare from eight passengers. At the relevant time an industrial dispute was pending on account of which the DTC applied under Section 33(2)(b) of the Industrial Disputes Act, 1947 (`I.D. Act' in short) being OP No. 215/1993 for approval to the dismissal order. The Industrial Tribunal dismissed O.P. No. 215/93 vide an order dated 7.8.2001. Bhagwan Dass in his writ petition being WP(C) No. 7886/2001 prays for holding the removal order dated 15.4.1993 wholly invalid and for an order of reinstatement and entire back wages on the plea that on the approval application having been dismissed he continues to be in employment. The DTC, on the other hand, in its writ petition being WP(C) No. 3176/2002 is challenging the order dated 7.8.2001 on the plea that the Industrial Tribunal had returned a finding which was perverse and not based on any cogent reason. Both the writ petitions, therefore, can be disposed of by the same judgment.

2. So far as the case of Bhagwan Dass is concerned, the same is sufficiently covered by the judgment in the case of Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd. v. Ram Gopal Sharma and Ors. . On the Industrial Tribunal declining to grant approval to an order of dismissal or removal of a workman, the order of removal/dismissal would be deemed to be non est and the workman to have continued in service. Bhagwan Dass claims that with O.P. No. 215/93 being rejected, he is entitled to the relief claimed by him. The DTC, on the other hand, is challenging the order in the O.P. No. 215/93. Therefore, the core of the dispute before this Court is the challenge to the order in O.P. No. 215/93. Therefore, the present judgment is being written with reference to the writ petition of DTC being WP(C) 3176/2002 and the DTC is being referred as the petitioner and Bhagwan Dass as the respondent for the present judgment.

3. The factual matrix of the case is as under:

The respondent was on duty as a Conductor on the Ratol-Delhi route. The petitioner had some source information of cheating on that route. On 24.7.1992 while the respondent was performing his duty on Bus No. 9381 the vigilance team reached Bhatta and intercepted Bus No. 9381 at 2220 hours. The checking staff, according to the petitioner, found that a group of eight passengers had paid an amount of Rs. 40/- to the respondent and had received the balance of Rs. 15/- but the respondent had not issued any tickets to them and that the respondent on being confronted by the leader of the group admitted his fault of not issuing tickets after collecting Rs. 25/-. The actual fare for the journey undertaken by the group for Ratol-Loni was Rs. 28/-. The checking staff allegedly took the statement of the group leader Shri Ravinder Kumar and recorded the same at the spot at the back of challan No. 159243 which was signed by the respondent and a copy thereof was given to him under his signature. Subsequently a charge-sheet was issued to the respondent on the specific charge of non-issue of ticket to a group of eight passengers after collecting insufficient fare. The respondent represented against the issuance of the charge-sheet. An inquiry was held by the Inquiry Officer in which the charge was found to be proved. The respondent duly participated in the inquiry. On the inquiry report being forwarded to the disciplinary authority, namely, the Depot Manager, a show cause notice was issued to the respondent as to why he should not be removed from service of the petitioner. The respondent then made a representation for supply of certain documents etc. on which the respondent was allowed to inspect all the documents but the respondent failed to avail of the opportunity. The disciplinary authority thereafter imposed a penalty of removal from service vide the order dated 15.4.1993. The respondent was paid wages amounting to Rs. 2,232/- on the same day. The petitioner thereafter applied under Section 33(2)(b) of the I.D. Act as mentioned above in which the impugned order dated 7.8.2001 was passed.

4. The Industrial Tribunal framed a preliminary issue on the question of validity of inquiry. The respondent in its written statement had, inter alia, challenged the competence of the Depot Manager and the validity of the charge-sheet. He had also challenged the validity of the inquiry on the ground that the principles of natural justice had not been complied with and that the finding of the Inquiry Officer was perverse. The DTC/petitioner did not produce any evidence on this issue. The issue was decided against the DTC/petitioner. However, on the request of the petitioner it was allowed to lead evidence before the Industrial Tribunal to prove the misconduct. A fresh issue was framed as under:

Whether the respondent conducted the misconduct for which he was charge-sheeted?

5. The Industrial Tribunal then took evidence of the parties on this issue. The petitioner produced Shri Ram Kisham Sharma, AW-1, one of the members of the checking staff, who proved the incident of checking and also proved the documents, namely, the challan issued to the respondent, the report of the checking staff, charge-sheet, show cause notice and the order of removal of the respondent from service. He also testified the facts regarding non-issue of tickets by the respondent after collecting due fare from the passengers. The respondent also examined himself. The respondent testified that he had actually issued tickets to the eight passengers but the group leader had misplaced the same by the time the checking staff wanted to see them. He further submitted that the checking staff did not check the cash available with the respondent and that the checking staff did not record the statement of the other passengers in the bus. The respondent also relied upon the reply to the charge-sheet Ex.RW-1/1. He denied that the statement of the passengers was recorded in his presence.

6. The Industrial Tribunal took note of the fact that the checking staff had not recorded the statement of any independent witness, that the cash of the respondent was not checked, that the statement of the second conductor had not been recorded, that the signatures of the Conductor had not been obtained on the surrendered unpunched tickets and that the checking staff was not a witness to the receipt of payment and non-issue of tickets. The Industrial Tribunal further took note of the fact that none of the passengers out of the group of eight had been examined by the petitioner. The Industrial Tribunal further found that the affidavit of the respondent has gone undisputed. The issue was decided against the petitioner/DTC. Accordingly the approval was declined.

7. So far as the validity of the domestic inquiry is concerned, the DTC itself did not want to stand by it and it did not produce any evidence in support of the preliminary issue. Before this Court an attempt was made to take the court through the inquiry proceedings and to show that the inquiry conducted by the Inquiry Officer was a legal and valid inquiry. However, since the DTC/petitioner did not try to prove the validity and legality of the proceedings before the Industrial Tribunal, it will be appropriate only to see if the Industrial Tribunal's finding is perverse rather than to see if the finding of the Inquiry Officer could be upheld.

8. The Industrial Tribunal, as can be seen from the above discussion, has examined the evidence led by the parties before it in the same manner as is done in any criminal trial. The Industrial Tribunal could not say that the respondent's testimony to the effect that the eight passengers had lost their tickets had not been challenged in cross-examination and, therefore, the defense stood proved by only such an omission. Even in regular court proceedings, where strict rules of evidence apply, the entire evidence on the record has to be taken into consideration. Such evidence before the Industrial Tribunal included the statement of the passengers recorded by the checking staff on the spot as well as the testimony of one of the members of the checking staff. The statement of the passengers recorded on the reverse side of the challan carries the signature of the respondent and it is futile for the respondent to allege that he was not present when the statement of the passengers was recorded. An attempt was made at the time of argument to allege that the statement was recorded in his absence obliquely suggesting that the statement of the passengers was a manufactured document with the aid of blank signature of Bhagwan Dass or by forging his signatures subsequently on the statement. There was no such plea taken by the respondent at any time either during the inquiry or during the proceedings before the Industrial Tribunal. The presence of his signature immediately below the signature of the passenger proves the presence of the respondent at the time the statement of passengers was recorded. It is a composite statement signed by all the passengers through their leader Shri Ravinder Kumar. This piece of evidence could not have been ignored by the Industrial Tribunal while weighing the total evidence before it. It is true that the passengers were not summoned during the inquiry before the Industrial Tribunal. However, this document could not be altogether ignored on this account. The document itself has evidenciary value when proved by the checking staff who recorded the same. The Supreme Court in the case of State of Haryana v. Rattan Singh and DTC v. Shamlal has held that in such matters where the conductor is accused of having misappropriated the fare by not issuing ticket it is not necessary to call the passenger and the statement of the checking staff would suffice to prove the misconduct.

9. The Industrial Tribunal has gone into other shortcomings in the evidence, viz., non-examination of the co-conductor and not counting the cash available with the conductor as mentioned above. This was not a criminal trial where the prosecution has to establish the offence beyond doubt and the accused can be acquitted on account of any doubt. Going by preponderance of evidence, the checking staff's testimony along with the recorded statement of the passengers was sufficient to prove the misconduct.

10. The Industrial Tribunal has completely proceeded on a mistaken view of the scope of inquiry before it and has mis-applied the strict rules of evidence. The Industrial Tribunal has proceeded on an entirely erroneous view of law relating to the sufficiency of the evidence and level of proof required in an inquiry on the charge of misconduct. The finding of the Industrial Tribunal on this issue, therefore, has to be discarded as perverse.

11. The finding of the Industrial Tribunal on this issue, therefore, has to be set aside. There was more than sufficient evidence to hold that the respondent had committed acts of misconduct. The respondent was, therefore, liable to punishment. So far as the sufficiency of punishment is concerned, the Supreme Court has held in the cases of Rattan Chand (supra) & Sham Lal (supra) as also in the case of UPSRTC v. Mahender Nath Tewari and Ors. that punishment of such a conductor by removal from service or dismissal from service was not disproportionate and, therefore, could not have been interfered with by Courts.

12. The dismissal of the approval application is based entirely on the finding of the Industrial Tribunal that the misconduct had not been proved. Since this finding of the Industrial Tribunal is itself perverse the impugned order declining approval dated 7.8.2001 also has to be quashed. It has also to be held that the order of removal dated 15.4.1993 was legal and valid.

13. In view of above discussion, the writ petition of the petitioner/DTC being WP(C) No. 3176/2002 succeeds and the writ petition of respondent being WP(C) 7886/2001 must fail. Hence the writ petition No. 7886/2001 is dismissed and WP(C) 3176/2002 is allowed. The impugned order dated 7.8.2001 is hereby quashed and the order of removal from service of Bhagwan Dass dated 15.4.1993 is held to be valid.