Delhi High Court
Shri Kapoor Singh vs Delhi Transport Corporation And ... on 15 September, 2006
Author: M Goel
Bench: M Goel
JUDGMENT
Manju Goel, J.
1. This writ petition challenges the orders of the Industrial Tribunal dated 10.4.2002 and 1.5.2003 whereby the Industrial Tribunal granted approval under Section 33(2)(b) of the Industrial Disputes Act, 1947 (hereinafter referred to as the 'Act') to the respondent, Delhi Transport Corporation (in short 'DTC') to the action of removing the petitioner from service. The petitioner, as per the allegations of the respondent in the charge-sheet issued to him dated 22.1.1993, was found to have not issued tickets to the passengers when he was checked by the checking staff. In the charge-sheet there were other allegations of misconduct. The Industrial Tribunal framed a preliminary issue as to whether the respondent/DTC had held a legal and valid inquiry against the petitioner according to the principles of natural justice. This issue was decided vide order dated 10.4.2002 in favor of the DTC. The Industrial Tribunal thereafter went into the next issue as to whether one month's wages had been remitted to the petitioner as per the provisions of Section 33(2)(b) of the Act. This issue was also decided in favor of the respondent/DTC. Approval thereafter was accorded. In the writ petition the petitioner has challenged the order dated 10.4.2002. The petitioner says that the Inquiry Officer has arrived at a finding without there being any evidence before it and, as such, the report of the Inquiry Officer is perverse. Further he says that even before the Industrial Tribunal the Management had not led sufficient evidence to prove the misconduct of the petitioner. The petitioner has relied upon the judgment of the Punjab and Haryana High Court in the case of State of Haryana v. Bikar Singh 2002(2) SLR 341.
2. The petitioner has taken me through the evidence produced before the Inquiry Officer to show the discrepancies between the statements of the witnesses. Further it is pointed out that the checking staff had not recorded the statement of the passengers who had paid fare to the petitioner for which the petitioner had failed to issue tickets. Petitioner's counsel is aware of the judgments of the Supreme Court where it has been held that in such situations it is not necessary to produce the passengers in the inquiry and that the statement of the checking staff can prove the misconduct and misappropriation by the petitioner. Reference can be made to the judgments of the Supreme Court in the cases of Cholan Roadways Ltd. v. G. Thirugnanasambandam Delhi Transport Corporation v. Shyam Lal wherein it has been held that in such situations the passengers are not required to be examined and that the evidence of the checking staff before the Inquiry Officer was sufficient to establish the guilt of the charged employee.
3. What is contended by the petitioner's counsel is that the statement of the passengers should have been recorded by the checking staff and that statement should have been produced before the Inquiry Officer which could be considered by the Inquiry Officer whereas in the present case the checking staff entirely failed to take the statements of the passengers. It is difficult to agree with the contention of the counsel for the petitioner. The Inquiry Officer has, inter alia, remarked that the petitioner instigated the passengers not to disclose their identity and not to give any statement to the checking staff. Accordingly, it cannot be said that the statements of the passengers were required to be produced before the Inquiry Officer. Petitioner's counsel further raises the question about the propriety of the action of the checking staff by saying that the checking staff had not followed the instructions laid down in this behalf. Suffice it to say that it is not necessary to examine the conduct of the checking staff. What was inquired into was the conduct of the petitioner.
4. In paragraph-16 of the impugned order dated 10.4.2002 the Industrial Tribunal has observed that the petitioner (respondent before the Industrial Tribunal) had admitted that he had been given full opportunity to defend himself before the Inquiry Officer. It has further been observed in para-17 of the judgment that before the Inquiry Officer the petitioner had failed to cross-examine Mr. Ved Prakash Sharda, who had appeared before the Inquiry Officer to prove the allegations in the charge-sheet. As such, before the Inquiry Officer the management witness Mr. Ved Prakash Sharda went unchallenged.
5. There being unchallenged testimony of Mr. Ved Prakash Sharda, the Inquiry Officer's report based on that testimony cannot be said to be perverse. There may have been discrepancies in the statement of Mr. Ved Prakash Sharda and the other witnesses. However, not all discrepancies are fatal. This Court, and for that matter the Industrial Tribunal, could not have sat in appeal over the Inquiry Officer's report and arrived at an independent opinion in respect of the charge-sheet issued to the petitioner. All that was necessary to be seen by the Industrial Tribunal was whether a proper inquiry had been conducted and whether full opportunity had been given to the petitioner. The finding of the Inquiry Officer in this regard has not been challenged inasmuch as there is no allegation that the Inquiry Officer had not followed the principles of natural justice. The finding of the Inquiry Officer, as mentioned above, could not be said to have been perverse. Therefore, the order dated 10.4.2002 cannot be interfered with.
6. This order having been upheld, the second order granting approval followed almost as a matter of course. The petitioner has not raised any objection to this final order of the Industrial Tribunal.
7. It may be mentioned here that the petitioner did not challenge his order of removal from service by way of an appeal which was open to him. So far as the propriety of punishment of the petitioner on grounds of misappropriation of the funds of the employer is concerned, it will suffice to refer to the judgment in the case of U.P.S.R.T.C. v. Mahendra Nath Tiwari and Anr. , in which following remarks were made on the duties of a Conductor:
...A Conductor is duty bound to collect the fare from every passenger on behalf of his employer. Same is the position regarding unexplained 12 used tickets found in his possession. That prima facie suggest that there is room to doubt the honesty of the respondent (Conductor). He did not even try to explain the circumstances in that regard. The charges are such that they show a betrayal of the trust placed on the Conductor....
8. It is contended on behalf of the petitioner that the respondent Management has taken into account the past misconducts of the petitioner while ordering removal but in the notice to show cause issued to him there was no mention of any past service. In my opinion, this defect will not vitiate the order of termination. The misconduct of misappropriation of the funds of the employer was sufficient to terminate the service of the petitioner.
9. I find no merit in the writ petition and the same is, accordingly, dismissed.
