Ramesh Chand vs Delhi Transport Corporation
2007 Latest Caselaw 1109 Del

JUDGMENT

Mukundakam Sharma, C.J.

1. This appeal has been preferred by the appellant being dissatisfied with the judgment and order dated 29th August, 2006 passed by the learned single Judge as also the award passed by the Labour Court, Delhi.

2. The appellant herein was working as a conductor in the Delhi Transport Corporation. While he was working as such he was served with a charge sheet dated 15.5.1991 on the allegation that the appellant was not issuing tickets to the passengers and also misbehaving with the checking staff. Departmental enquiry was held and on completion thereof the petitioner was dismissed from service. Being aggrieved of the aforesaid order of 'removal from service' the appellant raised a dispute which was referred for adjudication to the Labour Court by the appropriate Government on the following terms:

Whether removal from service of Shri Ramesh Chand is illegal and/or unjustified and, if so, to what extent is he entitled to and what directions are necessary in this respect.

3. The learned Labour Court received the evidence adduced by the parties and thereafter passed an award holding that neither the removal of the workman from service is illegal nor unjustified and that he is not entitled for any relief. In the award, the learned Labour Court held that the enquiry conducted against the appellant was just and proper and the same was conducted in accordance with the principles of natural justice. A bare perusal of the order passed by the learned Labour Court would also indicate that what was argued before the learned Labour Court was regarding the quantum of the punishment awarded to the appellant/workman. After appreciating the records, the learned Labour Court has held that the allegation of misappropriation of Government money and misbehavior with the checking staff has been proved and, therefore, the punishment awarded is justified. In coming to the aforesaid conclusion, the learned Labour Court also referred to the ratio of the judgment of the Supreme Court in the case of Municipal Committee Bahadurgarh v. Krishan Behrai and Ors. wherein the Supreme Court has urged that even if the amount misappropriated is small, the act of misappropriation is relevant and hence, the order of dismissal was justified. To the similar effect was the decision of the Supreme Court in Tika Ram and Sons Ltd. v. Their Workman (1960) 1 LLJ 524 (SC). In the said decision the Supreme Court held that act of dishonesty or fraud would constitute misconduct of serious nature warranting punishment of dismissal. There is another case decided by the Supreme Court titled as U.P. State Road Transport Corporation v. Basudev Chaudhary and Anr. wherein the Supreme Court has upheld removal of a Conductor from service on the ground that the misconduct was an attempt to cause loss of Rs. 65/- to the corporation by issuing tickets to 23 passengers for a sum of Rs. 2.35 but recovering higher amounts. The Supreme Court held that it cannot be said that the Corporation's action of framing charge sheet and removing the conductor from service was bad and that the punishment was disproportionate. After taking notice of the ratio of the aforesaid decisions of the Supreme Court, the learned Labour Court held that no interference is called for in respect of the punishment awarded to the appellant.

4. Being aggrieved by the aforesaid award passed by the learned Labour Court, the appellant filed a writ petition in this Court which was heard by the learned single Judge. Before the learned single Judge only a few issues were raised as delineated in para 2 of the judgment. One of the contentions that was raised was that the Labour Court failed to follow the mandate in the circular issued by the respondent dated 12.12.1973 wherein it was provided that on each date of proceedings, the workman shall be asked about his need for an assistance in as much as in the present case the workman was not given such an opportunity. The aforesaid grounds mentioned in the writ petition was also noticed by the learned single Judge and on consideration of the records rejected all the aforesaid contentions and dismissed the writ petition by order dated 29th August, 2006. As against the aforesaid judgment the present appeal is preferred on which we have heard the learned Counsel appearing for the parties.

5. The learned Counsel appearing for the appellant/workman has mainly raised two issues. The first submission that was made was that the workman was not given an opportunity to engage a co-worker as defense assistant and thereby violating the mandate of the circular dated 12.12.1973. The second contention that was raised before us is that the inquiry officer in the present case acted both as a prosecutor and as a judge which was not permissible and, therefore, the entire proceeding was vitiated. Incidentally, it was also submitted by the learned Counsel appearing for the appellant that in the present case no presenting officer was appointed by the DTC and, therefore, the entire enquiry got vitiated. The last submission made before us was that the disciplinary authority should have considered the past record of the appellant/workman before taking the decision of awarding major penalty on the appellant/workman like 'removal from service'.

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. Even otherwise on perusal of the records, we find that the appellant was given the opportunity to engage a defense assistant and the said opportunity was refused by the appellant stating that he would himself cross-examine the witnesses. In fact, the records indicate that he had himself cross-examined the witnesses produced. Therefore, the aforesaid contention raised regarding denial of opportunity is misconceived and is rejected.

8. The records also proved and established that the appellant was given an opportunity to produce evidence which opportunity was refused. He was asked to give his statement and he stated in the proceedings that he would give his final statement which was recorded by the inquiry officer. The records also do not indicate that the inquiry officer acted both as a prosecutor and as a judge as alleged by the appellant. In our considered opinion, the inquiry officer acted legally while conducting the enquiry and we hold that the enquiry was not vitiated on any count.

9. A plea was also raised that the enquiry was vitiated for absence of the presenting officer. No such contention was ever raised by the appellant either before the learned Labour Court or before the learned single Judge. The counsel for the appellant submitted that he can raise such an issue at any stage as it relates to the records of the case. The plea raised is factual and no foundation for raising the said plea is made. A plea of such a nature cannot be allowed to be raised at the stage of argument of the appeal. The charge drawn up against the appellant regarding misappropriation and misbehavior of the appellant with the checking staff has been proved in the proceedings. There was a detailed enquiry conducted against the appellant. The allegations made, therefore, cannot be accepted. In Workmen in Buckingham and Carnatic Mills, Madras v. Buckingham and Carnatic Mills, Madras reported in 1970 (1) LLJ 26 SC it has been held by the Supreme Court that principles of natural justice are not violated when the Presiding Officer asks questions, elicits answers and clarifications from witnesses. So far the last submission regarding consideration of the past record is concerned, we are unable to accept the said contention as well. So far the issue with regard to consideration of the past record by the disciplinary authority before passing of the award of the punishment is concerned, we are of the considered opinion that the punishment was awarded in the light of the allegations made which is based on the charges of misappropriation and misconduct. The Supreme Court decisions which were relied upon and referred to by the learned Labour Court itself negate the contention raised before us. The appeal, therefore, has no merit and the same is dismissed. No costs.