The Management Of Delhi Transport ... vs Surinder Singh
2006 Latest Caselaw 2082 Del

JUDGMENT

Shiv Narayan Dhingra, J.

1. By this writ petition, the petitioner has challenged the validity of the order dated 28.5.2003 whereby the application of the petitioner under Section 33(2)(b) of the Industrial Dispute Act was dismissed.

2. Briefly, the facts are that the respondent was working as a conductor with the petitioner. He was on duty on 6.7.1992 on Bus No. 8994 on route Shivaji Stadium to Ghaziabad. The bus was checked by the checking staff at Mohan Nagar and it was found that 1 ½ tickets to the traveling passenger, who had boarded the bus from ITO, were not issued despite the fact that the passengers were standing near the conductor. Blank tickets of Rs. 5.50/- and Rs. 2.85/- were got issued by the checking staff to the passengers. On further checking, 17 passengers were found in possession of city tickets of Rs. 2/- each and balance tickets of inter state tickets from Mohan Nagar to Ghaziabad. A charge-sheet was issued to the respondent and an enquiry was held against the respondent. DTC found the respondent guilty of charges and removed him from service. An application under Section 33(2)(b) was made by the DTC wherein a preliminary issue was framed whether the enquiry was conducted as per principles of natural justice or not. This issue was decided against the petitioner by the Labour Court vide its order dated 18.9.2002. The Labour Court observed that assistance of co-worker was not given to the delinquent official on 10.6.1993 and 16.6.1993 i.e. two dates of the enquiry and no passenger was called by the management to prove the charge of non-issuance of tickets. The Tribunal held that onus was on the management to prove the allegations that the conductor took the money and did not issue tickets. In absence of the passengers, who made the allegation, there was no legal evidence against the delinquent. The Tribunal thereafter framed following issues:

1. Whether the respondent committed the misconduct?

2. Whether the applicant has remitted one month's salary as required under Section 33(2)(b) of the I.D.Act?

3. Relief.

3. After framing issues evidence was led by the petitioner and the Tribunal held that applicant did not produce any passenger witness to substantiate the charges leveled against the respondent. On the other hand, the witness of the petitioner admitted inter state tickets were not available therefore, the local tickets were given to the conductor. The Tribunal dismissed the application under Section 33(2)(b).

4. It is obvious that the order holding that the enquiry was not conducted in accordance with the principles of natural justice is a perverse order on the face of it. The allegations against the respondent was not that he had taken money from the passengers and not issued tickets. The allegations against the respondent were that despite the 1 ½ passengers standing near him in the bus he had not issued the tickets to them and that he issued local city tickets to inter state passengers. All the city tickets and inter state tickets collected from the passengers were placed on record and the checking staff had given testimony before the enquiry officer and had proved both the facts. It is now settled law that non examination of passengers is not fatal to the enquiry. Passengers are not required to be chased nor it can be expected from the passenger that they shall appear before the enquiry officer and then before the Tribunal, repeatedly to depose. In State of Haryana v. Rattan Singh Supreme Court held as under: It is well settled that in a domestic enquiry the strict and sophisticated rules of evidence under the Indian Evidence Act may not apply. All materials which are logically probative for a prudent mind are permissible. There is no allergy to hearsay evidence provided it has reasonable nexus and credibility. It is true that departmental authorities and administrative tribunals must be careful in evaluating such material and should not glibly swallow what is strictly speaking not relevant under the Indian Evidence Act. For this proposition it is not necessary to cite decisions nor text books, although we have been taken through case law and other authorities by counsel on both sides. The essence of a judicial approach is objectivity, exclusion of extraneous materials or considerations and observance of rules of natural justice. Of course, fairplay is the basis and if perversity or arbitrariness, bias or surrender of independence of judgment vitiate the conclusions reached, such finding ,even though of a domestic tribunal, cannot be held good. However, the courts below misdirected themselves, perhaps, in insisting that passengers who had come in and gone out should be chased and brought before the tribunal before a valid finding could be recorded. The 'residuum' rule to which counsel for the respondent referred, based upon certain passengers from American Jurisprudence does not go to that extent nor does the passage from Halsbury insist on such rigid requirement. the simple point is, was there some evidence or was there no evidence-not in the sense of the technical rules evidence or was there no evidence-not in the sense of the technical rules governing regular court proceedings but in a fair commonsense way as men of understanding and worldly wisdom will accept. Viewed in this way, sufficiency of evidence in proof of the finding by a domestic tribunal is beyond scrutiny. Absence of any evidence in support of a finding is certainly available for the court to look into because it amounts to an error of law apparent on the record. We find, in this case, that the evidence of Chamanlal, Inspector of the flying squad, is some evidence which has relevance to the charge levelled against the respondent. Therefore, we are unable to hold that the order is invalid on that ground.(para 4)

5. The non-providing of assistance of co-worker or defense assistance is another reason stated by the Tribunal. It is now settled law that if an allegation is made of the contravention of principles of natural justice, the delinquent has to showen as to how a prejudice was caused to him by such alleged violation. It was not showing before the Tribunal as to how a prejudice was caused during enquiry if on two days the defense assistance was not available. The order does not show whether any witness was recorded on those two days or not, nor does it show if the delinquent was denied defense assistance despite request. I, therefore, consider that the order dated 18.9.2002 passed by the Tribunal is perverse.

6. Even in the order dated 28.5.2003, the Tribunal observed that the applicant did not produce any passenger witness to substantiate the charges leveled against the respondent and, therefore, held that the charges have not been proved. In Cholan Roadways Ltd. V. G. Thirugnanasambandam , Supreme Court held as under :

In Maharashtra State Board of Secondary and Higher Secondary Education v. K.S. Gandhi 5 it was held:(SCC p.748, para 37) 37. It is thus well-settled law that strict rules of the Evidence Act, and the standard of proof envisaged therein do not apply to departmental proceedings or domestic tribunal. it is open to the authorities to receive and place on record all the necessary, relevant, cogent and acceptable material facts though not proved strictly in conformity with the Evidence Act. the material must be germane and relevant to the fats in issue. In grave cases like forgery, fraud, conspiracy, misappropriation etc. seldom direct evidence would be available. Only the circumstantial evidence would furnish the proof. In our considered view inference from the evidence and circumstances must be carefully distinguished from conjectures or speculation. The mind is prone to take pleasure to adapt circumstances to one another and even in staining them a little to force them to form parts of one connected whole. There must be evidence direct or circumstantial to deduce necessary inferences in proof of the facts in issue. There can be no inferences unless there are objective facts, direction or circumstantial from which to infer the other fact which it is sought to establish....The standard of proof is not proof beyond reasonable doubt ' but' the preponderance of probabilities tending to draw an inference that the fact must be more probable. Standard of proof cannot be put in a straitjacket formula. No mathematical formula could be laid on degree of proof. The probative value could be gauged from facts and circumstances in a given case. The standard of proof is the same both in civil cases and domestic enquiries. (Para 17).

7. I, therefore, consider that the order of the Tribunal dismissing application under Section 33(2)(b) was perverse. The charges against the respondent were that he did not issue tickets to 1 ½ passengers, who were standing near him. The respondent had issued tickets to all other passengers, who were in the bus except 1 ½ passengers. It seems that these 1 ½ passengers got missed from him. He had not taken money from from these passengers. The other charge against the respondent was that he had issued local tickets along with inter state tickets to the passengers going to Ghaziabad. This charge failed because it was admitted during the cross-examination of the management witness that the proper ticket of inter state were not available and the conductor was given local tickets. It is not the case of the management that the conductor had charged more money and given tickets of less denomination. Rather the conductor had given the full amount tickets combining the city tickets and inter state tickets. It is clear that the negligence of the respondent was of minor nature and the punishment awarded to him was quite disproportionate . It is now settled law that if the Court comes to conclusion that the punishment was disproportionate to the proved misconduct, the Court should modify the punishment. I consider that stoppage of one increment for a period of two years without cumulative effect shall serve the ends of justice. The punishment awarded to the respondent is accordingly modified.

8. In view of modification of punishment, the relief granted to the respondent is also modified. The respondent is directed to be reinstated with continuity in service. As far as back wages are concerned it is now settled law that full back wages is not an automatic relief to be granted with every reinstatement. The Court has to look into all facts and circumstances. In this case the negligence of the conductor was proved and he was removed from service because of his negligence. There is no evidence or contention that the conductor remained unemployed throughout I consider that 50% back wages would be adequate relief I therefore, direct the reinstatement of the respondent with 50% back wages.