Virender Singh vs Dtc And Anr.
2007 Latest Caselaw 1323 Del

JUDGMENT

Hima Kohli, J.

1. The present petition is filed against the order dated 23rd October, 2004 and the Award dated 7th April, 2006 passed by the learned Presiding Officer, Labour Court whenunder it was held that the report of the Inquiry Officer was not in violation of principles of natural justice and that the punishment imposed on the petitioner workman did not deserve to be interfered with and also that removal of the petitioner from the services of the respondent was legal and justified.

2. Briefly stated, facts of the case are as follows. The petitioner was employed with the respondent DTC since July 1984 as a Conductor. On 5th July 1994, he was issued a charge-sheet for not issuing tickets to the passengers, for not signing the statement of passengers and for misbehaving with the checking staff. Thereafter, a domestic inquiry was conducted against him pursuant to which he was removed from services on 6th June, 1996. As against the said order, the petitioner filed an appeal on 24th June, 1996 on which date the Appellate Authority passed a speaking order communicated to him vide memo dated the 11th September, 1996 rejecting his appeal and upholding the penalty. Aggrieved by the order of the Appellate Authority, the petitioner raised an industrial dispute which was referred to the Labour Court on 1st September, 1997 in the following terms of reference:

Whether the removal of Sh. Virender 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 petitioner filed a statement of claim and the management in its written statement submitted that the petitioner had admitted his fault at the time of Challan and had surrendered two unpunched tickets to the checking staff. It was stated that he was removed from service only after considering his past record along with the established charges in the findings of the Inquiry Officer coupled with the gravity of the offence. Keeping in view the pleadings of the parties, following issues were framed by the Labour Court:

(a) Whether the management has not conducted a fair and proper inquiry in accordance with the principles of natural justice

(b) As per terms of reference.

4. Thereafter evidence was recorded and by the impugned order dated 23rd October 2004, the first issue which was treated as a preliminary issue was decided in favor of the respondent and it was held that the report of the Inquiry Officer was neither perverse, nor did the same appear to be in violation of principles of natural justice. Finally, the impugned award dated 7th April 2006 was passed whereunder, the punishment awarded to the petitioner was held to be commensurate with the offence committed by him and was appropriate in view of his past conduct which was also found to be unsatisfactory. The order of removal of the petitioner from the service of the respondent was thus held to be legal and justified.

5. By way of the present petition, the petitioner seeks to challenge the aforesaid impugned order dated 23rd October, 2004, as well the final award dated 7th August, 2006 passed by the Labour Court.

6. Learned Counsel appearing for the petitioner has mainly raised two contentions, the first being that the petitioner was not given an opportunity to engage a co-worker as defense Assistant, thereby violating the mandate of a Circular dated 12th December 1973, wherein it was provided that on each date of the proceedings, the workman shall be asked about his need for defense assistance and that in the present case the workman was given no such opportunity. It is stated that that the inquiry was held on the 17th January, 1996, 26th February, 1996, and 4th April, 1996, but the assistance of a co-worker was not given to the petitioner on each date of the enquiry. It is further stated that though on the first date of enquiry, the petitioner was asked whether he would like to be assisted by a co-worker for defense Assistance, but merely because the petitioner had refused such assistance on the first date did not mean that the Inquiry Officer could dispense with the requirement of asking him on every hearing as to whether he required the assistance of any other co-worker.

7. The second ground on which the petitioner has sought to challenge the award is that on 7th July 1994, the petitioner demanded certain copies of documents which were not given to him and therefore the same resulted in violation of principles of natural justice.

8. Counsel for the respondent who appears on advance notice, supports the impugned order and the award and counters the arguments of the petitioner on the ground that the Circular on which the petitioner has sought to place reliance merely incorporates a rule of prudence and is not mandatory in nature. Attention of the court is drawn to the inquiry report wherein it was clearly recorded that the petitioner was asked whether he required the assistance of a co-worker but he refused the same.

9. I have heard to counsels for the parties and have perused the material placed on record including the impugned order and the award of the Labour Court. The Departmental Circular dated 12th February, 1973 on which the petitioner has placed reliance provides certain instructions which can only be held to be instructions of prudence and not rules that bind the Inquiry Officer or vitiate the inquiry. Reliance in this regard can be placed on the judgment of the Supreme Court in the case of State of Haryana v. Rattan Singh reported at . Support is also drawn from a recent judgment dated 29th May, 2007 rendered by a Division Bench of this Court in L.P.A. No. 289/2007 entitled Ramesh Chand v. Delhi Transport Corporation wherein the Court while considering the same Circular dated 12th of February 1973, placed reliance on its earlier judgments in LPA No. 2290/2006 entitled Dharampal v. DTC and held as under:

6. We have considered all the submissions in the light of the records. So far as the first ground taken before us which pertains to violation of the mandates of the circular dated 12.12.1973 is concerned, a similar issue was raised before us in the LPA No. 2290/2006 titled as Dharam Pal v. Delhi Transport Corporation. In the said case also, the aforesaid contention was rejected. Such a contention was also a subject matter of consideration before this Court in writ petition being CWP No. 1420/2002 title as DTC v. Shyam Singh and Anr. The said writ petition was disposed of by judgment and order dated 29th September, 2004 and the Court held as under:

Reliance placed by the learned Tribunal on the circular dated 12th February, 1973 is also misplaced. The circular requires the Enquiry Officer to ask a delinquent, on each date of the proceedings, whether he needs the assistance of any other workman. This circular merely incorporate a rule of prudence and not a mandatory direction, non-compliance of which would invalidate an inquiry. In a case such as the present, the respondent-workman, a literate conductor refused to take the assistance of a co-worker in the very first hearing. This being the position, the Enquiry Officer cannot be expected to ask him in every hearing whether he requires the assistance of any other worker.

7. Therefore, we are not inclined to accept the aforesaid contention raised by the counsel appearing for the appellant

10. Even otherwise a perusal of the records shows that the petitioner was given an opportunity to engage a defense Assistant and he had himself refused such assistance. The records of the enquiry proceedings also reveal that the petitioner had even cross-examined some witnesses at length. Hence the plea of the petitioner that it was incumbent on the part of the Inquiry Officer to offer defense Assistance to the petitioner on each enquiry date is unacceptable. It cannot be held in the facts of the present case that principles of natural justice have been violated during the enquiry proceedings or that the petitioner has been deprived of an opportunity to engage a defense Assistant.

11. So far as the second plea of the counsel for the petitioner as regards non supply of documents to him is concerned, no satisfactory reply is received from the counsel for the petitioner as to which documents were not supplied to him. In such circumstances in the absence of any details whatsoever, a mere bald averment of the petitioner cannot be sustained.

12. In view of the aforesaid facts and circumstances of the present case and in light of the position of law as discussed above, no case is made out for this Court to interfere either with the impugned order dated 23rd October, 2004 or with the impugned award dated 7th April, 2006. The petition is dismissed being devoid of merits.