Delhi Transport Corporation vs Mahesh Chand
2007 Latest Caselaw 229 Del

JUDGMENT

Shiv Narayan Dhingra, J.

1. By this writ petition, the petitioner has challenged the validity of order dated 23rd December, 2002 of Industrial Tribunal-II, Karkardooma, Delhi whereby the Tribunal dismissed the application under Section 33(2)(b) of the Industrial Disputes Act.

2. Briefly, the facts are that the respondent Mahesh Chand was working as a driver with the petitioner. On 20th March, 1991, he indulged into misconduct and following charges were levied against him:

1. On March 20, 1991 at about 1515 hours when Shri Harish Gupta, Depot Manager, Nand Nagri Depot and Shri P.K. Roy, Assistant Engineer were standing near a washing shed, you came along with S/Shri Om Prakash, driver, B. No. 5145, Ram Gopal, driver B. No. 6153, Bishan Singh, conductor B. No. 12112 and Md. Shahid, conductor B. No. 16813, and after giving a warning physically assaulted the Depot Manger, and said that "you suspended Om Prakash and did not put me on inside-duty, now see your fate."

2. You, with the help of your colleagues S/Shri Ram Gopal, driver B. No. 6153 and Om Prakash, driver B. No. 5145 physically assaulted the Depot Manager.

3. You, despite the presence of a large number of employees and the request of the depot manager to call the security guards, did not let anyone move from the place and threatened that you would kill anyone who moved from their respective places and challenged the employees in favor of the depot manger to come forward.

4. Later when the Depot Manager reached near the control room, you again physically assaulted hi, which was witnessed by Shri Tejpal, Assistant Traffic Inspector, T. No. 16035.

5. Because of your rowdy behavior, the discipline of the entire depot was broken and, not only this, the incident was widely publicised in the newspapers of March 22, 1991 due to which the image of the Corporation was lowered.

Your above said acts amounts to misconduct within the meaning of para 19(g) of the D.R.T.A. Regulations.

3. An enquiry was held into the charges and the respondent was given full opportunity to defend his case. The Enquiry Officer found all the charges, leveled in the charge-sheet, proved against the respondent and forwarded his report to the Disciplinary Authority. After considering the report of the Enquiry Officer and past record of the respondent, Disciplinary Authority issued show cause notice dated 4th December, 1991 directing the employee to show cause as to why he should not be removed from the service. The respondent submitted no reply to the show cause notice and Disciplinary Authority imposed a punishment of dismissal from service vide an order dated 13th January, 1992. The order reads as under:

  DELHI TRANSPORT CORPORATION
(A GOVT. OF INDIA UNDERTAKING)
SHAHDARA DEPOT - II, DELHI - 32
No. SHD-II/A.I.(T)/Gen-14/91/92/89               Dated : 13/1/92
 

Shri Mahesh Chand, s/o Sh. Rohtas Singh Sharma Driver, B. No. 11604, Pay Token No. 34705 failed to submit his reply in response to Show Cause Notice No. SHD-II/A.I.(T)/Gen-14/91/855 dated 4.12.91. Therefore, it is assumed that he has no representation to defend the charges levelled against him vide Charge Sheet No. SHD-II/A.I.(T)/Gen-14/91/341 dated 3.4.91. Hence the following penalty is imposed upon him.

He is removed from the services of the Corporation with immediate effect under Clause 15(2)(vi) of DRTA Rg. 1952.

An application under Sub-section (2)(b) of Section 33 of the Industrial Disputes Act, 1947 (14 of 1947) in the matter of reference No. S. No. 17 of 1938 has simultaneously being filed before the Industrial Tribunal-II, Delhi.

One month's wages payable to Shri Mahesh Chand, Driver B. No. 11684, Pay Token No. 34705, under Sub-section (2)(b) of Section 33 of the Industrial Disputes Act, 1947 has been sent to him on 13.1.1992 through money order.

He is requested to deposit all the D.T.C. articles with D.M. SHD-II, in his possession within 24 hrs of the receipt of this memo. Non deposit of the D.T.C. articles by him in accordance with the instructions contained in office order No. 2 dated 27.1.54 will render him liable to pay a penalty of Rs. 2/- per day for the days he keeps any of the D.T.C. articles in his possession after the specified period of 24 hours.

(Sd/-) DEPOT MANAGER Shri Mahesh Chand S/o. Sh. Rohtas Singh Sharma Driver B. No. 11694 Pay Token No. 34705 F-45, Ganga Vihar, Delhi-94

Copy to : -

Cashier, SHD-II PBC/PFC (BR) Along with the case file containing ____ pages All G.M.s R.M.s (OP), R.Ms. (tech.) Liver Officer All DMs Convenor allotment board Hindi Officer Acctt./PF/BF/HQ Secy. to C.M.D.

O.S. (Disc. Cell) HQ./All RAO/Sr. Vigilance Officer A.O. (R&M)/Dy. CAO(E)/&I.S./Chief Security Officer T.I. (sch)./I/C ATI C&A, Audit Clerk, A.I.(T) Settlement Clerk SHD-II.

4. The respondent raised an issue that the enquiry held by the petitioner was not in accordance with the principles of natural justice. This was treated as a preliminary issue and the Industrial Tribunal vide its order dated 31st July, 2002 came to the conclusion that the enquriy conducted was legal and valid and it was not a perverse enquiry. Principles of natural justice had been followed. However, the Tribunal had also framed an issue whether the petitioner remitted one month's wages at the time of his removal. The Tribunal vide its order dated 23rd December, 2002 came to the conclusion that though one month's wages were sent to the respondent by Money Order but the same were sent at the old address of the respondent and not at the new address of the respondent which was given by the respondent and hence there was non-compliance of the provisions of Section 33(2)(b) and considering this the application under Section 33(2)(b) was dismissed.

5. It has come in evidence that the respondent had been facing enquiry since March, 1991. The enquiry had been concluded and a show cause notice was issued to the respondent on 4th December, 1991. He had not filed any reply to the show cause notice and consequently an order of his removal was passed on 13th January, 1992. The respondent's stand is that he had intimated his new address on 9th January, 1992 to the petitioner by making an application on 9th January, 1992. This application was received by somebody in DTC office. In this application the respondent had stated that he was on leave from 23rd December, 1991 to 8th January, 1992 and on 1st January, 1992 he had vacated house No. F-45, Ganga Vihar, Delhi which was his earlier address (a rented house) and he had started living with his brother at B-34, West Jyoti Nagar, Shahdara, Delhi-110094 and therefore, future correspondence be made with him at his new address. One of the petitioner's witnesses had admitted that this application was received in the petitioner's office. The Tribunal concluded that since the Money Order for one month's wages was not remitted at the new address, furnished by the respondent therefore, this remittance was not in compliance with the provisions of Section 33(2)(b) of the Industrial Disputes Act.

6. The Supreme Court in Strawboard Manufacturing Company Limited, Sharanpur v. Govind 1962 (1) LLJ 420 had held that:

The proviso to Section 33(2)(b) contemplates the three things mentioned therein namely,

(i)Dismissal or discharge;

(ii)Payment of wages; and

(iii)Making of an application for approval,

to be simultaneous and to be part of the same transaction so that the employer, when he takes an action under Section 33(2) by dismissing or discharging any employee should immediately pay him or offer to pay him wages for one month and also make an application to the Tribunal for approval at the same time.

7. It was further held by Supreme Court that the employer's conduct should show that three things contemplated under proviso were part of the same transaction i.e. at the same time when the action was taken. This would be the question of fact depending upon the circumstances of each case. Supreme Court reiterated this view in Kalyani (P.H.) v. Air France, Calcutta 1963(1) LLJ 679.

8. There is no doubt that in the present case all the three acts were simultaneously done by the employer in the order of dismissal itself. It is mentioned in the order that the wages of one month had been sent to the respondent and an application under Section 33(2)(b) be made to the Industrial Tribunal. The employer's conduct, therefore, shows that all the three things contemplated under the proviso were meticulously followed. The only question is whether sending of the Money Order at the last recorded address as per service record of the respondent fulfillled the obligation in view of the application made by the respondent on 9th January, 1992.

9. The wages were remitted to the respondent, by Money Order, since the respondent was not coming to office from 23rd December, 1991 onwards. It is obvious that the Money Order was to be sent by the Accounts Branch only at the address of the respondent available on service record. Although, it is argued by the petitioner counsel that the application dated 9th January, 1992 was a manipulation since, it was allegedly made just a working day before the order of dismissal. It is observed that 11th and 12th January, 1992 were holiday and 10th January, was the only intervening working day and there is no mention on the application who, received this application and there is no stamp of department on the application. However, considering that the application was given in the office of the petitioner, the application would not have resulted into change of the address of the respondent into service record immediately. Service record of an employee is a very crucial & important record and cannot be changed by any clerk on an application. Proper orders are required to be made by Head of Department for bringing any change in the service record, be it change of address or change of qualifications. In order to get the service record changed, the application of the respondent had to go through Personnel Department and a proper order was required to be passed by the Personnel Department and then administrator of Head of Department for changing the address in the service record and thereafter the service record of the respondent could have been corrected. Since making of an application or leaving an application at the office by the respondent would not have resulted into immediate change of the address of the respondent into the service record, no fault, therefore can be found with the petitioner in sending the Money Order at the address which was recorded in the service record. The Court has to see that the three acts as mentioned above were done by the petitioner simultaneously and the petitioner had all intentions to perform all the three acts and there was no deliberate intention on the part of the petitioner to not comply with the law. The Supreme Court has observed that compliance has to be seen according to the facts and circumstances. In this case, the Tribunal ignored the fact that the respondent had not made application for change of address, when he actually shifted the residence, but allegedly make it just a day or two before the order, dated 13th January, 1992 and Money Order was sent at the address given in service record.

10 The Counsel for respondent had raised an issue that non tendering of the one month's wages was a finding of fact and this Court should not interfere in this finding of fact while exercising writ jurisdiction. In Municipal Council, Sujanpur v. Surinder Kumar , Supreme Court has laid down as under:

The High Courts jurisdiction to issue a writ of certiorari though is limited, a writ of certiorari can be issued if there is an error of law apparent on the face of the record. What would constitute an error of law is well known. In Judicial Review of Administrative Action, IV th Edn., pp. 136-37, S.A. de Smith has summed up the position:

The concept of error of law includes the giving of reasons that are bad in law or (if there is a duty to give reasons) inconsistent, unintelligible or, it would seem, substantially inadequate. It includes also the application of a wrong legal test to the facts found, taking irrelevant considerations into account and failing to take relevant considerations into account, exercising a discretion on the basis of any other incorrect legal principles, misdirections as to the burden of proof, and wrongful admission of exclusion of evidence, as well as arriving at a conclusion without any supporting evidence.

11. The Tribunal's order is in ignorance of the office procedure normally followed for change of the address in the service record of an employee. Service record is a very crucial and important record of the employee and any change in it has to be made under the orders of the Head of Department of the establishment.

12. The Court cannot adopt a hyper technical approach to defeat the very purpose of the law. An employee, who takes law into his own hands and thrashes the Depot Manager was sought to be dismissed in this case after holding proper enquiry. The entire exercise cannot be brought to null and void merely because the petitioner had not sent Money Order of one month's salary at an address which the employee left in an application in the office of the petitioner a day or two before.

13. I, therefore, allow this writ petition. The order of the Tribunal dated 23rd December, 2002 is hereby set aside. The application under Section 33(2)(b) of Industrial Disputes Act is allowed.