Delhi High Court
Delhi Transport Corporation vs Shri Baleshwar And Anr. on 9 November, 2006
Author: S N Dhingra
Bench: S N Dhingra
JUDGMENT
Shiv Narayan Dhingra, J.
1. By this writ petition, the petitioner has challenged the validity of orders dated 6.9.2002 and 24.3.2003 passed by the Labour Court. By order dated 6.9.2002, Labour Court held that the enquiry conducted by the petitioner against the respondent was vitiated and not valid. Thereafter, Labour Court framed issue whether the respondent committed misconduct and recorded evidence of the parties and passed an order dated 24.3.2003 dismissing the application under Section 33(2)(b) of the Industrial Dispute Act.
2. Briefly, the facts are that the petitioner was working as a bus conductor. On 5.8.1992, he was performing his duty on bus route from Faridabad to Delhi. His bus was checked by the checking staff at 2145 hours at Faridabad Bus Adda and a passenger was found traveling without ticket. When the passenger was enquired, he told that he had paid the due fare of Rs. 2/- but he was not issued ticket by the conductor. The checking staff recorded statement of the passenger behind the challan and obtained an unpunched ticket from the conductor of Rs. 2/-. The conductor countersigned the statement of the passenger without recording any protest and because the passenger was illiterate so, his thumb impression was obtained. A charge-sheet was issued to the conductor of the charges of mis-appropriation of the revenue and dishonestly dealing with the corporation. The conductor did not reply to the charge-sheet so, an enquiry was conducted into the charges and after enquiry he was found guilty of the charges. A penalty of dismissal from service was imposed on conductor and along with the dismissal order salary of one month as required under law, was sent to him. An application under Section 33(2)(b) was made after passing of the dismissal order which was dismissed by the impugned orders.
3. A perusal of the order dated 6.9.2002 passed by the Tribunal would show the Tribunal did not hold that the enquiry was not conducted according to principles of natural justice or opportunity was not given to the respondent to defend himself. The only reason given by the Tribunal for holding that enquiry as vitiated is that the passenger who, was found without ticket had not supported the version of the management and took the stand that he was about to receive the ticket when his hand was caught by flying squad. In the order dismissing application under Section 33(2)(b), the Tribunal acted as a Court of Appeal over the decision of the enquiry officer, re-appreciated the evidence and gave its own findings on the evidence. The Tribunal transgressed its jurisdiction. It was only to see if, a prima facie case was made out against the delinquent and there was some evidence which linked the charged officer with the misconduct alleged against him.
4. In the present case, the enquiry officer had recorded statements of three witnesses, two were the officers involved in conducting checking and the third one was the passenger. The passenger though did not support the management at the time of enquiry but, he did testify that he had made statement to the checking staff, which was recorded at the time when checking was done. The statement, which was recorded at the time when checking was done was countersigned by the conductor without any protest and in that statement the passenger had stated that he had paid fare but he was not issued ticket. The next important aspect is that both the checking staff had categorically stated that the checking was done when bus had stopped and passengers were getting down from the bus and this passenger had got down without ticket. On an enquiry about the ticket, he had told that he had paid the fare to the conductor and when the conductor was confronted with the passenger, the conductor gave unpunched ticket and also countersigned the statement of passenger then and there.
5. In view of the fact that there was other evidence apart from the evidence of passenger before the enquiry officer, the enquiry officer had concluded that the charge against the conductor was proved. The Tribunal could not have upset this conclusion. Turning of a witness hostile is not a new phenomenon and merely because one witness has turned hostile, the statement of other witnesses, who were also witnesses to the incident cannot be rejected. The enquiry officer had, therefore, come to the right conclusion that the misconduct was proved. It was not within the jurisdiction of the Tribunal to re-appreciate the evidence and to arrive at a different conclusion than what had been arrived at by the enquriy officer. The Tribunal's jurisdiction was to see that there was some evidence and the conclusion was not based on 'no evidence'.
6. The credibility of witnesses, the sufficiency of evidence etc. are the areas in which the Tribunal could not have traveled nor the Writ Court can enter. In L.K. Textile Mills v. Its workmen , Supreme Court observed as under:
The jurisdiction conferred on the Tribunal under Section 33(2)(b) was a limited one. Where a proper enquiry had been held and no victimization or unfair labour practice had been resorted to, the Tribunal in granting permission had only to satisfy itself that there was a prima facie case against the employee and not to consider the propriety or adequacy of the proposed action.
The above view has been time and again reiterated by Supreme Court in various judgments.
7. In the present case there was sufficient material before the enquiry officer as well as before Tribunal. Not 'some evidence' but evidence of both checking officials was there. But the Tribunal instead of considering whether there was prima facie case or not, acted as a Court of Appeal and re-appreciated the evidence. If, two views can possibly be taken from evidence, the Tribunal cannot hold the enquiry being vitiated because the view of enquiry officer was different from that of the Tribunal. The Tribunal also went wrong in holding that the passenger was a necessary witness during the proceedings before the Tribunal. Even before the Tribunal both the witnesses, who had conducted the checking had supported the case of the management but the Tribunal held that it was the passenger, who was necessary to be examined and dismissed the application.
8. In State of Haryana and Anr. v. Ratan Singh AIR 1977 (2) SSC 491 Supreme Court observed that in a domestic enquiry the strict and sophisticated rules of evidence under Indian Evidence Act may not apply. The materials which are logical probative for a prudent mind are admissible. There is no allergy to hearsay evidence provided it has reasonable nexus and credibility. Viewed from this, the sufficiency of evidence in proof of the findings of a domestic tribunal is beyond scrutiny. Absence of any evidence in support of a finding is certainly available for the Court to look into the case because it amounts to an error of law apparent on the record.
9. I consider that the Tribunal in this case grossly misconducted itself and over-stepped its jurisdiction. Both the orders of the Tribunal are perverse, the orders of Tribunal dated 6.9.2002 and 24.3.2003 are set aside, the writ petition is allowed. The application of the petitioner under Section 33(2)(b) is allowed. No orders as to costs.
