Delhi High Court
Mahavir Singh vs Delhi Transport Corporation on 7 February, 2007
Author: S N Dhingra
Bench: S N Dhingra
JUDGMENT
Shiv Narayan Dhingra, J.
1. By this writ petition, the petitioner has challenged the validity of award dated 5th September, 2006 passed by Labour Court XXI, Karkardooma, Delhi whereby the reference was answered against the petitioner.
2. Brief facts are that the petitioner was working as a conductor with the respondent. On 9th September, 1993 he was on duty at bus No. 9867 from Delhi to Sharanpur. His bus was checked at 6.20 PM at Jalalabad by the ATIs Sohan Lal, Zile Singh and Balbir Singh. Two passengers were found getting down the bus without tickets. They were held up for being without tickets. They told that they had paid Rs. 20/- to the conductor for issuance of tickets. The conductor had taken the fare but not issued tickets. The conductor was confronted with the passengers and the conductor admitted his guilt and gave 2 unpunched tickets to the ticket checkers. The ticket checkers recorded the statements of passengers and obtained the signature of conductor. They boarded the bus and in the running bus, they prepared challan and gave it to conductor. They also checked rest of the passengers who were found having tickets. A charge sheet was issued to the conductor on 22nd October, 1993 and an inquiry was conducted for not issuing tickets to the passengers after receiving fare from them. In the inquiry he was found guilty and he was removed from service by the disciplinary authority. He raised an industrial dispute which was referred to the Labour Court in following terms:
Whether the removal of Shri Mahavir Singh from service by the management is illegal and/or unjustified, and if so, to what relief is he entitled and what directions are necessary in this respect?
3. The Labour Court framed an issue about the fairness of inquiry and after considering the entire evidence came to conclusion that the inquiry was conducted in a fair and proper manner. Learned Labour Court thereafter came to conclusion that the punishment awarded to the petitioner was not disproportionate to the misconduct.
4. The petitioner has challenged the award on the ground that during inquiry the respondent had not appointed any presenting officer and it was the inquiry officer who examined the witnesses. Thus the inquiry officer acted as prosecutor as well as the judge and there was violation of principles of natural justice. The other ground taken is that as per circular of DTC, the inquiry officer was supposed to ask the workman on each date of hearing if he needed assistance of a co-worker. This question was not asked on each date of hearing and because of this, the enquiry was vitiated. The third ground is that the passengers who made statement about non issuance of tickets were not examined before the inquiry officer. It is also submitted that the Labour Court wrongly relied on DTC v. Ishwar Singh 2005 LLR 469. This ruling was not applicable in view of the circular dated 13th October, 1965. In case of passengers not coming forward, the inquiry officer should have gone to their address. It is alleged that the inquiry was conducted in a partial manner and the petitioner could not get reasonable opportunities since he was not conversant with the rules.
5. The plea of the petitioner that the non-examination of passengers vitiated the inquiry, is not tenable. In a catena of judgments, Supreme Court and this Court has held that passengers were not the essential witnesses in a domestic inquiry and non examination of the passengers will not vitiate the inquiry. The landmark judgment of the Supreme Court in this respect is State of Haryana v. Rattan Singh 1997 2 SCC 1991. The Supreme Court considered the situation of non examination of passengers in a similar case and held that in a domestic enquiry, the enquiry officer can take into consideration all material logically probative for a prudent mind and there was no bar on considering hearsay evidence provided it was reasonable and credible. The passengers were not required to be chased and brought before the domestic Tribunal. What is to be seen is that there was some evidence and it was not a case of no evidence. As long as there was some evidence in proof, the findings of the domestic Tribunal, was beyond scrutiny. After the decision of the Supreme Court in Rattan Singh, a Division Bench of this Court had dealt with a similar situation in DTC v. Industrial Tribunal 1979 XVI DLT 220. The Division Bench held that the principles of natural justice are not violated if passenger witnesses are not examined or produced for cross examination. The Court took judicial notice of the fact that checking of conductors on bus of appellant was a salutary practice and its genuineness cannot be defeated by technicalities. When the misconduct is proved by a common sense standard before an enquiry officer, the legal ingenuity and technicalities should not be allowed to impinge. In State of Harayana v. Rattan Singh , it has been held by the Supreme Court that even if the passenger witnesses are not examined and if there was enough evidence to prove misconduct of employee, the enquiry is not vitiated.
6. In Rattan Singh's case(Supra), the Supreme Court had considered the applicability of circulars and had observed that the circulars of DTC do not have the force of law. It is settled law that only those rules have statutory force, that are framed under the authority of a statute. Those rules and circulars that are framed without an authority of statute, have no force of law. The circulars of DTC are n the form of advise to the employees. They do not have mandatory character and force of law unless they are framed under some statutory rule-making powers.
7. The plea of the workman that he was not given the assistance of co-worker is belied from the record. The workman himself refused the assistance of a co-worker and took responsibility of conducting his proceedings himself before the inquiry officer. He cannot take the plea that he was not allowed the assistance of co-worker at any point of time and that his request of co-worker was turned down.
8. The plea that enquiry officer acted both as prosecutor and judge has no force. There is no rule that an enquiry cannot proceed without a presenting officer. The witness can depose before an enquiry officer of their own, without the help of a presenting officer. There is no violation of principles of natural justice, if no presenting officer is appointed or present. If a request of allowing presenting officer or defense assistance is declined by the enquiry officer without just cause, a grievance can be made. The party who alleges violation of principles of natural justice has to show how his/her case got prejudiced by alleged violation. Petitioner has failed to show how non appointment of presenting officer prejudiced his case.
9. In view of the my above discussion, I find no perversity in the award. The writ petition is hereby dismissed. No orders as to costs.
