Delhi Transport Corporation vs Tej Pal
2007 Latest Caselaw 14 Del

JUDGMENT

Shiv Narayan Dhingra, J.

1. By this writ petition the petitioner has challenged the validity of order of the Industrial Tribunal-II, Delhi dated 9.8.2002 whereby the application of the petitioner under Section 33(2)(b) of the Industrial Disputes Act was dismissed.

2. Briefly the facts are that the respondent was working as a conductor. He was on duty at Bus No. DEP 9949 on 15.8.1989. His bus was checked by the checking staff at Uchana while the passengers were getting down from the bus. Ten passengers were found getting down from the bus without tickets. When they were asked why they were without ticket, they reported that they had paid a fare of Rs. 2/- each to the conductor, but the conductor did not issue ticket. They were confronted with the conductor and the conductor admitted his guilt and gave 10 unpunched tickets to the checking staff. The checking staff recorded the statement of passengers and asked the conductor to countersign but he did not countersign the statement of passengers. Since the bus was to go further, the checking staff also boarded the bus, prepared the challan and gave it to the respondent, who received it under protest. He also incited the passengers sitting in the bus who misbehaved with the checking staff. He himself abused the checking staff.

3. A charge-sheet was served upon the conductor to the following effect:

You were on duty on 15.8.89 in bus No. DEP-9949 on Sangrur-Delhi route. The checking staff checked at Uchana at 7-10 and found passengers coming out of your bus. While checking 10 passengers of two group (7+3) were found without tickets. On enquiry the leaders of both of the group stated that all of them took the bus from Narvana to Uchana and had paid Rs. 2/- per passenger as fare on the demand of the conductor but he did not issue any ticket against fare. The statement of passenger were taken in your presence, you failed to sign on the same. You incited the passengers against the checking staff, misbehaved with them and used filthy language against them.

An enquiry was conducted into the charges. The Enquiry Officer found the charges proved. The disciplinary authority considering the enquiry report and the representation of the conductor imposed penalty of removal looking into the past conduct of the respondent. The past conduct of the respondent was as under:

 

DETAILS OF PAST RECORD OF CONDUCtor/DRIVER
 

Sh. Tej Pal B. No. 17340/T. No. 36764 S/o Sh. Malkhan Singh Place of Appointment 19.4.83
 S. No. Order of the Authority  Reasons                                         Form of Fine
1     ODI/AI/D/84/C11         Not issued tickets after getting due fare and   Warned
                              cash short by .50 paisa on 10.9.84
2     IPD/SP41/S/CS-102       Suspended from 7.6.88 as on 29.5.88 he issued   Suspended
      /88/752 DT. 6.6.88      half ticket against collecting of full fare
                              of luggage
3     IPDSP/Y/CS-102/         Suspension is revoked w.e.f. 17.6.88 case under Suspension
      88/837 dt. 17.6.88      consideration                                   revoked
4     IPD/S/Y/CS-147/88       Suspended w.e.f. 13.7.88 as on 11.7.88 did      Suspended
      /1135 dt. 29.7.88       not issue tickets on Delhi-Dehradoon after
                              collecting fare from 5 passengers.
5     IPD/S/Y/CS-147/         Suspension revoked w.e.f. 18.8.88               Suspension
      88/1692                 case under consideration.                       revoked
6     IPD/AIT/CS-92/          Stoppage of his next due one increment
      88/2156 dt. 14.10.88    with cumulative effect for not                  Stoppage of his
                              issuing tickets                                 next one
                                                                                increment
7     IPD/AIT/CS-259/         Suspended from 15.12.88 as on 24.11.88          Suspended
      88/2570 dt. 14.12.88    on the Dehradoon route did not issue ticket
                              after collecting fare from two passengers.
                              Challan was torn and thrown on face of the
                              checking staff.
8     IPD/AIT/CS-259          Keeping case under consideration                 Suspension
      /88/8528 dt. 30.12.88                                                    revoked
9     IPD/AIT/CS-102/         Stoppage of his next due increment with          Stoppage of his
      88/89 dt. 5.4.89        cumulative effect for issuing less               next one
                               denomination of ticket, instigated the           increment
                              passengers and refused to sign challan.
10    IPD/AIT/CS-147/         Stoppage of his next due three increments        Stoppage of his
      88/89                   with cumulative effect for not issuing           next three
                              ticket on 11.7.88                                increments.
11    IPD/AIT/CS-137/         Suspended w.e.f. 1.9.89 as on 15.8.89 on the     Suspended
      89/7752                 Sangrur route did not issue ticket to ten
                              passengers of two group (7+3) despite
                              collecting due fare and refused to sign on
                              the challan and instigated the passengers
                              agaisnt the  checking staff.
12    IPD/AIT/CS-137          Suspension is revoked w.e.f. 7.11.89 keeping      Suspension
      /89/2525 dt. 6.11.89    the case under consideration                      revoked.
 

4. An application under Section 33(2)(b) was made by the petitioner before the Industrial Tribunal immediately after removal of the respondent and the Tribunal framed preliminary issue about the validity of enquiry. The Tribunal decided this issue against the petitioner vide order dated 30.4.2001 and thereafter the Tribunal gave opportunity to the petitioner to lead evidence to prove the misconduct. The petitioner led evidence before the Tribunal. However, the Tribunal observed as under:

Apart from the evidence available on record, it is matter of fact that at the time of deciding the preliminary issue my Predecessor has categorically observed that in the absence of supporting statement of passengers the statement of checking staff was not sufficient to hold the respondent guilty of collecting the fare and not issuing of the tickets. I endorse the view of my predecessor and consequently I am of the considered opinion that the applicant has failed to bring the sufficient material on the record to establish the misconduct of the respondent.

After holding so, the Tribunal dismissed the application under Section 33(2)(b).

5. The Counsel for the petitioner has relied upon State of Haryana v. Rattan Singh whereunder, the Supreme Court observed that non recording of statement of passengers does not make an enquiry bad. The Counsel for the respondent has relied upon DTC v. Anup Singh wherein a Division Bench of this Court upheld the order of Single Judge that the petitioner had failed to prove that the respondent had collected Rs. 36/- from the passengers. The explanation given by the checking staff that they could not check cash in moving bus was not accepted. However, in this judgment also the Division Bench observed that they were aware that it may not be possible to examine passengers themselves and they are conscious of the decision of the Supreme Court in State of Haryana v. Rattan Singh (supra).

6. In the present case, the petitioners had examined the checking staff before the Enquiry Officer as well as before the Industrial Tribunal. The checking staff had categorically proved that they had checked the passengers getting down from the bus when it reached Uchana Stand. They were already there at Uchana bus stand for checking. The passengers were without tickets and told they were not issued tickets despite collecting fare. They were confronted with the conductor and the conductor admitted non issuance of tickets despite collecting fare and gave unpunched tickets to the checking staff. There can be no other method of checking, which can be adopted by the checking staff for checking without ticket passengers at bus stops and to see if tickets were being issued in the bus by the conductor or not. A checking staff is supposed to check as many buses as possible & to keep check on the rampant corruption which is prevalent in DTC. It is, therefore, always advisable for the checking staff to stand at the bus stand and check the passengers who are getting down from the bus. The statement of the checking staff that the passengers told that they had paid fare to the conductor and were not issued tickets cannot be considered as inadmissible. Even if, it is hearsay evidence, in terms of Supreme Court judgment in State of Haryana v. Rattan Singh (supra) there should be no allergy in accepting hearsay evidence if, hearsay evidence is relevant and cogent. The passengers who travel in inter-state buses of DTC need not be of Delhi and may be of different places far-away from Delhi. They cannot be expected to come to Delhi and participate in an enquriy where one is called time and again before enquiry officer and then before Tribunal because of the attitude which is prevalent these days in Courts and Enquiries. This would be too much to expect. There is no reason why the checking staff should not be believed. If, there are two statements one given by the conductor in his own support and other given by the checking staff, the Enquiry Officer has to chose which of the two statements is more reliable. Conductor is the person who is facing charges and is interested to save himself while the checking staff are the officers of the petitioner on duty, who perform their duty in order to see that the employees of the petitioners do not misappropriate the money of the petitioner and do not cause loss to the petitioner. Unless there are allegations of personal enmity or malafides made against the checking staff and malafides or enmity is proved by the errant and delinquent conductor, there is no reason to disbelieve the statement of the checking staff. The Courts must keep in mind that the principle 'Let hundred guilty go scot free lest one innocent may be punished' is not applicable in enquiries and proceedings before the Tribunal. The principles of criminal law are to be kept out of mind and are not to be applied in case of service and labour matters more so when the conviction rate is hardly 6%. In a country where there is lot of unemployment and educated and sincere persons are available in plenty for jobs, an employer should not be compelled to keep with him a person with doubtful integrity or whose conduct is not above board. Over protectionism must be avoided. Over protectionism in service matters and Labour matters has resulted into a work culture in public offices where nothing moves without bribe. The corruption level of India is so high that India is among top ten in the list of most corrupt countries. The over protectionism has contributed to rise of India's place in this graph. It is a well known fact that while DTC suffers huge losses every year, which is borne the public exchequer, other private transporters are able to run transport at same fare structure with reasonable profits. The private owners, who were allowed to run buses on DTC routes by charging license fee, were happy to run their buses as they made huge profits, while DTC continued to run in losses.

7. The strict rules of evidence as laid down in Evidence Act are not applicable in case of enquiries and proceedings before the Tribunal. The Tribunal or the Labour Courts have only to see that there was some evidence, on the basis of which a prudent man would have come to the conclusion as arrived at by the Enquiry Officer. An enquiry can be considered perverse if and only if it is based on no evidence or is contrary to the evidence on record. The sufficiency of evidence, inadequacy of evidence or credibility of the witnesses is not the area where the Tribunal or the Court can travel into. The appreciation of evidence can be done only by the Enquiry Officer or not by the Tribunal or the Court.

8. The checking staff cannot be treated like Police officials in a Criminal Court. The status of the statements of passengers recorded by the checking staff is not the same as statement of witnesses recorded by a Police officials in criminal trial which is hit by Section 161 of Cr.PC. The statement of the passengers which are recorded by the checking staff can be proved by the checking staff before the Enquiry Officer and can be relied upon by the Enquiry Officer and cannot be brushed aside by the Tribunal or Labour Court. It is not necessary for the passengers to appear in person to prove their statements. The status of their statement is not that of hearsay evidence and the checking staff who recorded the statement cannot be disbelieved, unless it is shown that there were some extraneous reasons to record false statements of the passengers.

9. The argument advanced by the respondent that the checking staff had not seen the passengers making payment of the fare is a base argument. The checking staff checked the bus at the bus stop where passengers were getting down. The checking staff was not acting like a secret agent, disguising in the bus, watching the conductor, so that they could see the passengers making payment of the fare to the conductor and could give evidence. The checking staff could give evidence only to the fact which happened in their presence and what happened in the presence was that ten passengers got down from the bus without tickets. They disclosed that they had paid fare but were not given tickets. They were confronted with the conductor and the conductor issued unpunched tickets to the checking staff. It is not necessary that there has to be corroborative evidence in every case. Corroboration is a rule of prudence and not a rule of evidence. The statement of one single witness, who is considered reliable, is sufficient even in a criminal trial to convict a person. Here, we are dealing with an enquiry and there is no reason, given by the Tribunal, as to why the checking staff was unreliable. If the checking staff was not shown to be enimical, it has to be considered reliable. Once the checking staff has deposed against the delinquent and answered all questions in cross examination, the presence of checking staff is not doubted, there is no necessity of further corroborative evidence. Counting of cash of conductor and finding extra cash is not a sine qua non for holding that he did not issue tickets after taking fare. If it is so held then every corrupt conductor will employ another person with him to travel in bus, who will carry extra cash collected by him. It happened in Delhi Courts where a corrupt Ahlmad employed outsiders to work for him on payment. The Court has also to consider the practical difficulty. Normally, the cash available with the conductor is in coins or notes of small denominations which are not stacked in order and arranged properly. Moreover, in a moving bus full of passengers, it is practically very difficult to lay down cash of small coins and notes on some place and arrange them and count them. This can be done only by stopping the bus and then counting the cash at a convenient place. It would imply that all the passengers in the bus would have to be delayed for quite sometime. If this attitude is adopted, the passengers would get irritated because everybody wants to reach his place in time, somebody has to mark his presence in the office somebody has to go to hospital to see patients. The conductor thus would gets a chance to instigate and provoke passengers against the checking staff.

10. In U.P.S.R.T.C v. Suresh Pal , the Supreme Court observed as under:

The petitioner was a conductor and holding the position of trust. If incumbent like the petitioner starts misappropriating the money by not issuing a ticket and pocketing the money thereby causing loss to the Corporation then this is a serious misconduct. It is unfortunate that the petitioner was appointed in 1988 and in the first year of service he started indulging in malpractice then what can be expected from him in the future. If this is the state of affair in the first year of service and if such persons are allowed to let off to the light punishment then this will be a wrong signal to the other persons similarly situated. Therefore, in such cases the incumbent should weed out as fact as possible and same has been upheld by the Labour Court. We are firmly of the view that such instances should not be dealt with lightly so as to pollute the atmosphere in the Corporation and other co-workers.

11. I consider that the Tribunal gravely erred in holding that the enquiry was vitiated because of non-examination of passengers and passing an award against the petitioner on this ground. The Tribunal should have looked into the past conduct of the conductor and compared his reliability with the reliability of the checking staff, since, the Tribunal has taken upon it the responsibility of considering misconduct. But it seems the Tribunal could not get out of the mindset of a criminal court seeking proof beyond reasonable doubt.

12. I find the order of the Tribunal perverse and is hereby set aside. The writ petition is allowed.