Delhi Transport Corporation vs Presiding Officer Industrial ...
2006 Latest Caselaw 1633 Del

JUDGMENT

Shiv Narayan Dhingra, J.

1. By this writ petition petitioner has challenged the validity of the order dated 4.10.2001 of Industrial Tribunal No. III, Delhi, whereby the Tribunal has held that the enquiry held by the petitioner was not valid, proper, fair and as per principles of natural justice.

2. Briefly the facts are that the respondent No. 2 was working with the petitioner as a conductor. He indulged into a misconduct on 7.2.91 at about 00.15 hours. The charge against him was that on 7.2.1991 at about 00.15 hours he along with Anil Kumar, Conductor and Ram Swaroop, driver, came to the depot in drunken state and then had a quarrel with each other and also abused his senior officers.

3. An enquiry was conducted into the matter and charges against the respondent were found proved. On receipt of the enquiry report, Disciplinary Authority heard the respondent No. 2 on the question of penalty. The Disciplinary Authority after considering the enquiry report and the charges imposed a penalty of removal from services. An application under Section 33(2)(b) of the Industrial Disputes Act, 1947 ( for short the Act) was made by the petitioner for approval of the removal of the respondent No. 2 from the services. This application was dismissed by the Tribunal by impugned order.

4. A perusal of the order of the Tribunal shows that Tribunal re-appreciated the entire evidence recorded by the Enquiry Officer and ultimately came to the conclusion that the enquiry was not valid and fair and in accordance with principles of natural justice. In Pure Drinks (Private) Limited v. Kirat Singh Maungatta and Anr. 1961(II) LLJ SC 99, Supreme Court held that jurisdiction of an industrial Tribunal in dealing with a domestic enquiry was of a limited nature. Industrial Tribunal could not examine the evidence and come to its own conclusion by merely stating that enquiry was not bona fide or there was basic error of fact. Industrial Court is entitled to enquire whether the impugned order has been passed with malafide and improper motive or is the result of desire to victimize the workman. If the answer to the question is in favor of the workman, the Tribunal can and should set aside the order. However, if proper charge has been framed and proper enquiry has been held by the employer, the Tribunal can interfere with the findings or conclusion of the Enquiry Officer only if the conclusion is not supported by any evidence or if the enquiry is conducted in violation of principles of natural justice. It is not open to industrial Tribunal to sit in appeal over the conclusion of facts recorded by the domestic enquiry. In Bharat Iron Works v. Bhagubhai Balubhai Patel and Ors. 1976 Lab. I.C 4 SC, observed that Tribunal should have two fold approach, first it should see if there was a defect in the procedure of holding domestic enquiry into the charges of misconduct. The Tribunal can interfere if the the principles of natural justice have not been followed and the workman has not been afforded opportunities. Secondly Tribunal can interfere only if there is no legal evidence at all recorded in the domestic enquiry against the concerned employee with reference to the charges or if no reasonable person can arrive at the conclusion or guilt on charges leveled against him. The Tribunal must keep in mind that it does not sit as a Court of appeal or re-appreciate the evidence for itself but only examined the findings of the Enquiry Officer on the evidence in domestic enquiry.

5. In State of Haryana and Anr. v. Rattan Singh , Supreme Court has observed that in a domestic enquiry the strict and sophisticated rules of evidence under the 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. Supreme Court further observed that the 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. In Divisional Manager, Plantation Division, Andaman and Nicobar Islands v. Munnu Barrick and Ors. 2005 (Vol-I) LLJ SC 557, the Supreme Court has observed that the principles of natural justice cannot be put to a straight jacket formula. It must be viewed with flexibility. In a given case where a deviation takes place as regards the compliance of principles of natural justice, the Court may insist upon the proof of prejudice before setting aside the order impugned before it. ( See Bar Council of India ).

6. A perusal of the order of the Tribunal shows that Tribunal stepped out its jurisdiction and acted as a Court of appeal. It re appreciated the evidence and held that the medical examination of the employee was not carried out and no reasons have been given why medical examination was not carried out, therefore, it could not be said that the charges of being intoxicated against the workman stood proved. In domestic enquiry the standard of proof is not same as in a criminal case. Of the two versions only more probable version of the incident is to be believed by enquiry officer. There was sufficient evidence on record to show that on that night the complainant had made a report that the respondent was found in intoxicated condition and abused not only his colleagues but also his senior officials. Being in a drunken state on duty, is not a minor indiscipline.

7. In view of the above discussion, I consider that the order of the Tribunal is liable to be set aside. Accordingly, the writ petition is allowed and the order of the Tribunal dated 4.10.2001 is hereby set aside. The Application of the petitioner under Section 33(2)(b) of the Act also stands allowed.