Delhi Transport Corporation vs Ishwar Singh
2006 Latest Caselaw 1747 Del

JUDGMENT

Shiv Narayan Dhingra, J.

1. By this writ petition the petitioner has challenged the validity of award dated 28.7.2003 whereby the application made by the petitioner under Section 33(2)(b) of Industrial Dispute Act (for short 'the Act') seeking approval of dismissal of respondent, was rejected.

2. Briefly the facts are that respondent was working as a Conductor. The bus on which he was on duty, was checked on 17.9.1992 and a group of three passengers who alighted the bus, told that they had paid Rs. 2/- each but Conductor issued tickets of Rs. 1/- each numbered 07001 to 07003. The checking staff recorded statements of the passengers and confronted the Conductor with their statements and tickets received from the passengers. Conductor made a statement that he committed the mistake by issuing a ticket of Rs. 1/- against receiving Rs. 2/-. However, he stated that this happened due to rush of passengers. The bus was handed over to another Conductor and respondent-conductor was challaned and later on charge sheeted. Domestic enquiry was conducted and Enquiry Officer found all the charges proved against the respondent-conductor. The Conductor was dismissed from service by disciplinary authority. An application under Section 33(2)(b) was made. The Industrial Tribunal framed a preliminary issue: 'Whether the petitioner had a legal and valid enquiry against the respondent?' The preliminary issue, was decided against the petitioner holding as under:

Admittedly in the present case it is admitted case of parties that neither the passenger witnesses who happened to be primary evidence of allegations were summoned nor examined by the enquiry officer. In the absence of primary substantial evidence there is no material before the enquiry officer to hold that delinquent official took the fare @ Rs. 2/- per passenger and issued the tickets of Rs. one only. The enquiry officer has totally ignored this fact of non-examination of passengers who made the allegations against the respondent. Consequently the enquiry is hereby held to be vitiated.

3. After holding so, opportunity was given to the petitioner to lead evidence to prove misconduct and thereafter the evidence was recorded. Petitioner produced the enquiry report, challan, way bill, passenger statement recorded by the Inspector and also examined the checking staff. Respondent examined himself and denied the allegations. The Industrial Tribunal observed as under:

I have heard the arguments advanced by both the parties. As it was already observed during the decision on enquiry issue that the passengers happened to be primary evidence of the allegations levelled against the respondent and in the absence of substantial evidence, by mere statement of checking staff, the allegations could not be established. Even at the instance of applicant, summons were sent to passenger witness namely Ram Sharan Shah but he was not found on the given address. Consequently, in the facts and circumstances, I am of the considered opinion that applicant has miserably failed to prove the allegations that sum of Rs. 6/- was paid to the conducted but he did not issue tickets of proper denomination to the passengers. Issue is decided against the applicant.

4. The Tribunal dismissed the application. The award of the Tribunal has been challenged on the ground that the Tribunal had not acted in accordance with law. The order of Tribunal was perverse and contrary to law laid down by the Supreme Court in State of Haryana and Anr. v. Rattan Singh .

5. It is apparent from the award that the Tribunal did not consider other evidence adduced before it by the petitioner on the ground that passenger witnesses were not produced. Tribunal considered passengers as the only material and substantial evidence. Tribunal obviously went wrong. The Tribunal could not have ignored other evidence and material produced before it. Nor Tribunal could hold enquiry as invalid on the ground of non-examination of passengers.

6. In Divisional Controller, KSRTC (NWKRTC) v. A.T. Mane , the Supreme Court had occasion to deal with the similar case where a conductor was held guilty of misconduct of not giving tickets. The passengers involved in the case were not examined before the Inquiry Officer and inquiry report was given on the basis of the evidence of the persons who had conducted the raid. Supreme Court observed as under:

8. This Court in the case of State of Haryana v. Rattan Singh which is also a case arising out of non-issuance of ticket by a conductor held thus: (SCC pp. 491-92)

In a domestic enquiry all the strict and sophisticated rules of the Evidence Act may not apply. All materials which are logically probative for a prudent mind are permissible, though 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 Evidence Act. The essence of judicial approach is objectivity, exclusion of extraneous materials or considerations, and observance of rules of natural justice. Fair play is the basis and if perversity or arbitrariness, bias or surrender of independence of judgment, vitiate the conclusion reached, such a finding, even of a domestic tribunal, cannot be held to be good. The simple point in all these cases is, was there some evidence or was there no evidence - not in the sense of the technical rules governing court proceedings but in a fair common-sense way as men of understanding and worldly wisdom will accept. Sufficiency of evidence in proof of the finding by a domestic tribunal is beyond scrutiny by court, while absence of any evidence in support of the finding is an error of law apparent on the record and the court can interfere with the finding.

In the present case, the evidence of the inspector is some evidence which has relevance to the charge and the courts below had misdirected themselves in insisting on the evidence of the ticketless passengers. Also, merely because their statements were not recorded, the order for termination cannot be invalid. In fact, the inspector tried to get their statements but the passengers declined. Further, it was not for the court but for the Tribunal to assess the evidence of the co-conductor.

9. From the above, it is clear that once a domestic tribunal based on evidence comes to a particular conclusion, normally it is not open to the Appellate Tribunals and courts to substitute their subjective opinion in the place of the one arrived at by the domestic tribunal. In the present case, there is evidence of the inspector who checked the bus which establishes the misconduct of the respondent. The domestic tribunal accepted that evidence and found the respondent guilty. But the courts below misdirected themselves in insisting on the evidence of the ticketless passengers to reject the said finding which, in our opinion, as held by this Court in the case of Rattan Singh (1977) 2 SCC 491 : 1977 SCC (L&S) 298 is not a condition precedent. We may herein note that the judgment of this Court in Rattan Singh has since been followed by this Court in Devendra Swamy v. Karnataka SRTC .

10. Since the only ground on which the finding of the domestic tribunal has been set aside being the ground that the passengers concerned are not examined or their statements were not recorded, in spite of there being other material to establish the misconduct of the respondent, we are of the opinion, the courts below have erred in allowing the claim of the respondent. In our opinion, the ratio laid down in the above case of Rattan Singh applies squarely to the facts of this case.

11. In the instant case also there is the evidence of the inspector who conducted the checking which establishes the misconduct of the respondent based on which a finding was given that the respondent was guilty of the misconduct alleged. Based on the said finding, the disciplinary authority has punished the respondent by an order of dismissal. But the Labour Court and the learned Single Judge rejected the said finding and set aside the punishment imposed solely on the ground that the evidence of the passengers concerned was not adduced and their statements were not recorded by the inspector which as stated in Rattan Singh case is not a condition precedent. Therefore, we are of the opinion that the courts below have erred in interfering with the finding of fact on an erroneous basis.

12. Coming to the question of quantum of punishment, one should bear in mind the fact that it is not the amount of money misappropriated that becomes a primary factor for awarding punishment; on the contrary, it is the loss of confidence which is the primary factor to be taken into consideration. In our opinion, when a person is found guilty of misappropriating the corporation's funds, there is nothing wrong in the corporation losing confidence or faith in such a person and awarding a punishment of dismissal.

13. This Court in the case of B.S. Kullikatti (2001) 2 SCC 574 : 2001 SCC (L&S) 469 held in similar circumstances that the act was either dishonest or was so grossly negligent that the respondent therein was not fit to be retained as a conductor. It is also held that in such cases there is no place for generosity or misplaced sympathy on the part of the judicial forums and thereby interfere with the quantum of punishment.

7. There is no dispute that the petitioner had participated in the inquiry and the enquiry was conducted in proper and fair manner. Tribunal committed grave error of law in holding that examination of passengers was necessary. A domestic enquiry is not like a criminal trial. Neither the standard of proof to prove the charges has to be the same as in that of a criminal trial. The enquiry officer in a domestic enquiry can base his results on the basis of preponderance of evidence. The strict rules of evidence are not applicable and hearsay evidence, admission made by the delinquent, confessional statements recorded before the police are admissible piece of evidence in a domestic enquiry. The order of the Tribunal holding that domestic enquiry is not valid and is a perverse order.

8. The Tribunal laboured under the same misconception of law while deciding the reference after recording evidence and wrongly came to conclusion that passengers were the only important and necessary witnesses and if they had not been examined, rest of the evidence cannot be believed. Passengers are not required to be chased. In this case summons were issued to the passengers and they did not appear. Looking into the present judicial system where a witness is called time and again to depose but is sent back for various reasons e.g. non availability of advocate, strike of advocates, illness of counsel, Presiding Officer is on leave, working day suddenly declared holiday etc., it cannot be expected of a witness in such a case to even think of appearing before the Tribunal.

9. I find that the order of the Tribunal is totally erroneous and contrary to law. Accordingly, the writ petition is allowed and the order of Tribunal rejecting the application is hereby set aside. The application under Section 33(2)(b) of the Act made by the petitioner stands allowed.