D.T.C. vs Anup Singh
2006 Latest Caselaw 1590 Del

JUDGMENT

S. Muralidhar, J.

1. This appeal is directed against an order dated 10.2.2004 passed by the learned Single Judge dismissing the appellant's Writ Petition (C) No. 65 of 2002 thereby upholding an order dated 27.4.2001 passed by the Industrial Tribunal in O.P. No 204/1993.

2. The facts leading to the filing of the present appeal are that the respondent was appointed with the appellant Corporation in February 1981 as a conductor. While he was on duty on 29.10.1992 on the bus No. DBP-6458 from Delhi to Ganga Nagar, an Assistant Ticket Inspector (ATI) along with other members of the ticket checking staff boarded the said bus at Sher Pur (Sirsa) and found that four persons were traveling in the bus without tickets. It is the appellant's case that those passengers disclosed that they boarded the bus at Fatehabad for going to Sirsa and had paid Rs. 36/- as fare charges to the respondent who had not issued them tickets. On the basis of the report of the checking staff, the Depot Manager issued a chargesheet on 20.11.1992 to the respondent charging him with misconduct within the meaning of paras 19(b) and (m) of the Standing Orders governing the conduct of the DTC employees.

3. The charge sheet issued to the respondent workman reads as under:

You are required to explain, why a disciplinary action should not be taken against you under the provision of Delhi Road Transport Corporation (Amended Act, 1971 read with Section 15(2) of Delhi Transport Corporation (Conditions of Appointment and Service) Rules, 1952 for the following irregularities:

On 20.10.2002 you was performing your duty on Bus No. 6458 of Route No. Delhi to Ganga Nagar, Checking staff boarded the said bus at 10.35 at Sharpur (Sirsa) and found that a group of four passengers was traveling in the bus without ticket. It was informed by those passengers that they boarded into the bus at Fatehabad for going to Sirsa and had paid Rs. 35/- as fare charges to the conductor. However, the conductor did not issue them tickets.' Your above mentioned conduct is against the norms of duty of conductor under paras 6 and 7 and also misconduct within the meaning of para 19(b) and (m) of the standing orders governing the conduct of DTC employees.

4. Clause 19(b) and (m) of the standing orders, referred to in the charge sheet, reads as under:

19(b) Theft, fraud or dishonesty in connection with the Authority business or property;

19(m) Any other activity not specifically covered above, but which is prime facie detrimental with interest of the organization.

5. In the enquiry that followed, Shri Balbir Singh, ATI was examined on behalf of the appellant. The Enquiry Officer came to the following conclusion after examining the witnesses:

In the light of the above I am of the view that may be Conductor should not be of bad conduct but it is sure that he himself in his reply of the chargesheet and in final statement has accepted that there were four passengers in his bus and were traveling without tickets. Now question is that passengers were boarded from Fatehabad to Sirsa and bus was checked at Sher Pur (Sirsa). But till that place Conductor did not issued tickets to passengers. Therefore, the charge is proved.

6. Accepting the report of the Enquiry Officer, the Depot Manager imposed the punishment of removal from the services of the appellant with effect from 8.4.1993.

7. In view of the pending industrial dispute concerning the grant of revised wages consequent upon the Report of the Fourth Pay Commission, the appellant filed an application before the Industrial Tribunal under Section 33(2)(b) of the Industrial Disputes Act, 1947 (`ID Act') seeking approval of the Tribunal of its decision to remove the respondent from its services. The appellant remitted one months' wages to the respondent as required under the said provision.

8. The Tribunal, after noticing that the charge against the respondent was that he collected fare charges of Rs. 36/- from the said four passengers and did not issue them tickets, found that the appellant had failed to lead evidence to prove the said charge. The Tribunal in its order dated 27.4.2001, came to the following conclusion:

The petitioner has failed to examine the concerned passengers or any independent passengers in the bus to confirm that the concerned four passengers had made the payment of fare charges to the conductor.

The respondent was not chargesheeted that he did not issue tickets to the passengers in spite of the fact that they travelled in the bus from Fatehabad to Sher Pur and thus he did not perform his duty properly and was negligent in performing his duty. If such charges would have been levelled against the respondent then the enquiry officer and the disciplinary authority could have been justified in concluding that conductor was negligent in performing his duty. In the absence of such case of the petitioner and in the absence of any evidence on the file in respect to the charges that the conductor collected Rs. 36/- from the passengers but did not issue them tickets, I find that petitioner has failed to establish that the respondent committed misconduct as alleged against him.

Consequently, the Tribunal rejected the appellant's application being O.P. No. 204/1993 under Section 33(2)(b) of the Act.

9. The appellant then filed Writ Petition (C) No 65 of 2002 challenging the said order dated 27.4.2001 passed by the Industrial Tribunal. The learned Single Judge dismissed the writ petition and held as under : Having perused the record of the learned Tribunal, I find that there is no error in the conclusion arrived at by the learned tribunal to the effect that there is no evidence that the respondent/workman collected Rs. 36/- from the passengers but did not issue them any tickets. Permitting ticketless travel may be a misconduct, but the Respondent/workman was not charged of this.

10. Mr. Ata-ul Haque, the learned Counsel for the appellant submits that the Tribunal was in error in rejecting the appellant's petition on the ground that the four passengers were not examined to prove the charge. He submitted that in a case of this nature, it may not at all be possible to examine the said passengers and urged that the evidence on record, in the form of the depositions of the witnesses of the appellant, was sufficient to prove the charge against the respondent. Ms. Pratibha Chaudhary, learned Counsel for the respondent, on the other hand submitted that the charge against the respondent was not proved at all. She, accordingly, submitted that no ground has been made out for interference with the order of the learned Single Judge.

11. Although, in the instant case, the Tribunal as well as the learned Single Judge have concurrently found on facts that the appellant has failed to prove the charge against the respondent, we have nevertheless examined the records ourselves. The evidence led by the appellant was in the form of two witnesses, namely, Shri Balbir Singh, ATI and Shri Hari Singh, TI. The respondent was permitted to cross-examine the said witnesses. The answers given by the ATI in his cross-examination are relevant and read as under:

Q.4 Had I taken the fare from the passengers?

Ans Yes Sir, passengers have told that we have given the fare and you have accepted this thing.

Q.5. Why you have not checked my cash?

Ans. In the moving bus it was not possible to check the cash, so, we don't checked the cash.

Q.6. In which rule it is written that in the moving bus cash don't be checked?

Ans. It is not written in any rule.

Q.7. Have I given unpunched ticket in this regard have you taken any evidence?

Ans. You have accepted your fault and surrendered unpunched ticket. We don't think appropriate to record evidence.

Likewise in answer to question No. 5, the other witness Shri Hari Singh replied:

I have prepared challan in the running bus and in the moving bus the checking of cash is not possible.

12. There is nothing in the above statement of either of the two witnesses to show that respondent had collected Rs. 36 from the four passengers. The answer given by the ATI in cross-examination on this point is only based on hearsay. The explanation that they had not checked the conductor's cash and that the checking staff does not check the cash in a moving bus is not acceptable. We also notice that the case of the appellant, as evidenced in the order dated 6.1.1992 placing the respondent under suspension was that the act of misconduct was:

Not issued tickets to four passengers after taking fare from them.

The evidence led does not prove this charge at all. In any event, the misconduct in terms of Clauses 19(b) and 19(m) of the Standing Orders has certainly not been proved. In the circumstances, we hold that Tribunal was right in coming to the conclusion that the evidence led by the appellant does not prove the charge on which the enquiry was held by it.

13. The learned Counsel for the appellant sought to rely upon an order of the Hon'ble Supreme Court in Karnataka State Road Transport Corporation v. B.S. Hullikatti 2001 (1) SCALE 373. In that case, the charge was that the collector had collected, on a particular trip of the bus, Rs. 2.25 from each of the 35 passengers but had issued tickets of the denomination of Rs. 1.75 only. The Labour Court had come to the conclusion that the allegation that the conductor had issued tickets of Rs. 1.75 instead of Rs. 2.25 was proved but the charge that he had collected Rs. 2.25 from the passengers was not proved. It was held by the Hon'ble Supreme Court that charging 50 paise per ticket less from as many as 35 passengers could only be to get financial benefit by the conductor. This act was either dishonest or was so grossly negligent that the respondent was not fit to be retained as a Conductor because such action or inaction of his is bound to result in financial loss to the appellant-corporation. It was further held that it is the responsibility of the Bus Conductor to collect the correct fare from the passengers and deposit the same with the company. They act in a fiduciary capacity and it would be a case of gross misconduct if knowingly they do not collect any fare or the correct amount of fare. In those circumstances, the order of dismissal of the conductor was restored.

14. We are unable to appreciate how the above decision can apply to the facts of the instant case. Not only the charge here is different from the one with which the Hon'ble Supreme Court was concerned in the above case, but there was also some evidence led in the said case to show that the conductor had in fact collected some amount, although the tickets issued were of a denomination less than what he ought to have issued. The charge here, however, is that the respondent collected Rs. 36/- from the four passengers without issuing any tickets. And, there is absolutely no evidence to show that he had collected Rs. 36/-. This is indeed a case of no evidence at all. Therefore, the aforementioned decision of the Hon'ble Supreme Court cannot help the appellant.

15. The learned Counsel for the appellant next relied upon the decision of the Hon'ble Supreme Court in Devendra Swamy v. Karnataka State Road Transport Corporation AIR 2002 SC 2545. In that case, the Labour Court found that the misconduct was proved but interfered with the quantum of punishment. The Division Bench of the High Court reversed the Labour Court and restored the punishment. The employee preferred an appeal to the Hon'ble Supreme Court. It was held that since the conductor in that case has been involved in 36 instances of misconduct, there was no occasion to interfere with the quantum of punishment. Accordingly, the Hon'ble Supreme Court refused to interfere with the order of the Division Bench. This case also, in our view, cannot help the appellant. Here the charges of misconduct have not been proved as the appellant has not able to lead evidence to show that the respondent had in fact collected Rs. 36 from the four passengers.

16. We may add here that we may not be understood as holding that in every such case the passengers will have to be examined as witnesses. We are aware that it may not always be possible to examine the passengers themselves. We are also conscious of the decision of the Hon'ble Supreme Court in this regard in State of Haryana v. Rattan Singh . But, surely, there are other forms of evidence which can go to prove that fare charges were collected without tickets being issued. For instance, it should have been possible for the checking staff to tally the cash in the conductor's hand with the tickets issued and record this contemporaneously in writing in any known and acceptable form which can be proved in the enquiry by the author of the document. This is only one possible method, there might be others too. We are, in the facts of this case, unable to accept the plea of the learned Counsel for the appellant that there is enough evidence on record to prove the guilt of respondent. Accordingly, we see no reason to interfere with the award of the Tribunal or the impugned order of the learned Single Judge.

17. The appeal is, accordingly, dismissed with no orders as to costs.