Ramesh Kumar vs Dtc
2007 Latest Caselaw 984 Del

JUDGMENT

Sanjiv Khanna, J.

1. The appellant-Mr. Ramesh Kumar was working as a Conductor in DTC.

2. On 14th October, 1991 checking staff of four persons found that ten passengers had paid Rs. 10/- to the appellant but the appellant had not issued them any ticket. It was also found that the said passengers had been short-charged by Rs. 5/-. Statements of the passengers were recorded in writing. When confronted, the appellant admitted his mistake and gave ten unpunched tickets of value of Rs15/- to the ticket checking staff. The checking staff also tried to verify the cash available in the bag of the Conductor but the conductor threw some money out of his bag.

3. On the basis of the reports submitted by the checking staff, departmental proceedings were initiated. The Enquiry Officer in his report dated 3rd January, 1992 held that all the charges against the appellant stood proved. The Enquiry Officer also referred to the past record of the appellant that he had earlier twice accepted money from the passengers but had failed to issue the tickets. By Order dated 5th February, 1992, the appellant was removed from service. Simultaneously, an application under Section 33(2)(b) of the Industrial Disputes Act, 1947 (hereinafter referred to as the Act, for short) was filed.

4. The Industrial Tribunal vide its Order dated 26th July, 2001 held that the respondent had failed to establish that the appellant had committed any misconduct and dismissed the application under Section 33(2)(b) of the Act. Order dated 26th July, 2001 of the Industrial Tribunal was made subject matter of Writ Petition No. 1937/2003 filed by the respondent herein.

5. The appellant herein also filed a Writ Petition before this Court which was registered as Writ Petition (Civil) No. 5073/1998. This Writ Petition was filed by the appellant against the award passed by the Industrial Tribunal dated 26th August, 1996 in Industrial Dispute No. 368/1994. By the said Award, it was held that the Order of termination dated 20th October, 1991 passed by the respondent was just and fair. The enquiry proceedings and order of removal passed was therefore upheld.

6. There are, therefore, two conflicting orders of the industrial adjudicators. By award dated 26th August, 1996, the order dated 26th October, 1991 terminating services of the appellant has been upheld. It has been further held that the enquiry conducted by the respondent herein was just and fair and the order of punishment of removal from service was appropriate. This Order, it has been held by the learned Single Judge would operate as res judicata in so far as the contentions and issues raised in the said award, were also subject matter of the application under Section 33(2)(b) of the Act filed by the respondent seeking permission to terminate the service of the appellant. However, it appears that neither the respondent nor the appellant brought the award dated 26th August, 1996 to the notice of the industrial adjudicator deciding the application under Section 33(2)(b) of the Act. Thus, the two industrial adjudicators have given contradictory findings on the same subject matter and on similar issues.

7. In view of the conflicting decisions of industrial adjudicator, the learned Single Judge examined both the decisions and held that the learned industrial adjudicator while deciding the application under Section 33(2)(b) of the Act had failed to appreciate the scope of his jurisdiction under the said provision, which is limited. It was held that the industrial adjudicator could not weigh the evidence as if it was deciding a criminal case. Accordingly, the Writ Petition No. 1937/2003 filed by the respondent was allowed and the Writ Petition No. 5073/1998 filed by the appellant was dismissed.

8. Aggrieved the appellant has approached this Court by way of the present Letters Patent Appeal. The contention of the appellant before us is that the findings recorded by the industrial adjudicator while deciding the application under Section 33(2)(b) of the Act were justified and proper. Our attention was drawn to para 17 onwards of the Order dated 26th July, 2001 passed by the industrial adjudicator. Learned Counsel for the appellant relied upon the decision of the Supreme Court in the case of Narinder Mohan Arya v. United India Insurance Company Ltd and Ors. reported and submitted that the departmental proceedings are quasi-criminal in nature and therefore failure to examine passenger witnesses in the enquiry proceedings was fatal.

9. Learned Counsel for the appellant also drew our attention to alleged written note of one of the passengers stating that they had dropped the tickets while alighting from the bus and as they were asked to pay fine or give statements in writing, they made the statement in writing that the conductor had failed to issue tickets inspite of payment, which was incorrect and the conductor-appellant herein was not at fault. It was stated in this letter that whatever the said passengers had stated earlier was false.

10. Learned Counsel for the respondent, on the other hand, drew our attention to the decision of the Supreme Court in the case of State of Haryana v. Rattan Singh and other decisions of this Court following the said judgment in which it has been, inter alia, held that examination of passenger witnesses in a domestic enquiry is not mandatory and vital, if there is sufficient evidence to show and establish that the passengers were not issued tickets and the amount paid by the passengers was misappropriated.

11. Nature of enquiry proceedings under the service law is quite distinct and separate from the proceedings under the Criminal law. The two proceedings cannot be equated. In criminal law an accused is entitled to benefit of doubt and the charge against an accused must be proved and established beyond all reasonable doubt. The reason is obvious. Question of liberty of the individual is involved. Civil proceedings or enquiry proceedings are decided on the basis of preponderance of possibilities. In Rattan Singh (supra) it has been held by the Supreme Court that domestic enquiry should take into consideration materials logically probative to a prudent mind and there is no allergy to even hear-say evidence provided it has reasonable nexus and credibility. In this context it was pointed out that failure to examine passenger witnesses will not vitiate the domestic enquiry or make it null and void. We cannot forget that it would be virtually impossible for an enquiry officer to compel the passenger witnesses to appear for cross-examination by the respondent or the workman. It may be relevant to state here that the statements of the passenger witnesses were recorded by the checking staff at the time of the incidence itself. The statements were made immediately after alighting from the bus. The checking staff were produced before the Enquiry Officer as well as the Industrial Adjudicator. They have repeated their statements before the Enquiry Officer as well as the industrial adjudicator, inter alia, stating that on enquiry from ten lady passengers they were informed that the tickets were not issued to the lady passengers though they had paid Rs. 10/-. The said lady passengers thereafter paid Rs. 5/- which was short-charged and the conductor gave ten unpunched tickets of Rs. 1.5/- each. It is also an admitted fact that the appellant has signed the challan. The checking staff did not have any personal grudge and ill-will towards the appellant. No such evidence has been produced. The checking staff are independent persons and there is no reason or cause to disbelieve their statements. There was no reason for the checking staff to falsely implicate the appellant. The purported written communication signed by one of the lady passengers cannot be relied upon and was rightly ignored by the Enquiry Officer. In the said statement, a lady passenger admits having earlier made a statement in writing that the tickets had not been issued and had alleged that the earlier written statement was false.

12. While dealing with this aspect in the case of Rattan Singh (supra), the Supreme Court has observed as under:

4. It is well settled that in a domestic enquiry the strict and sophisticated rules of evidence under the Indian Evidence Act may not apply. All materials which are logically probative for a prudent mind are permissible. There is no allergy to hearsay evidence provided it has reasonable nexus and credibility. It is true that departmental authorities and Administrative Tribunals must be careful in evaluating such material and should not glibly swallow what is strictly speaking not relevant under the Indian Evidence Act. For this proposition it is not necessary to cite decisions nor text books, although we have been taken through case-law and other authorities by counsel on both sides. The essence of a judicial approach is objectivity, exclusion of extraneous materials or considerations and observance of rules of natural justice. Of course, fairplay is the basis and if perversity or arbitrariness, bias or surrender of independence of judgment vitiate the conclusions reached, such finding, even though of a domestic tribunal, cannot be held good. However, the courts below misdirected themselves, perhaps, in insisting that passengers who had come in and gone out should be chased and brought before the tribunal before a valid finding could be recorded. The 'residuum' rule to which counsel for the respondent referred, based upon certain passages from American Jurisprudence does not go to that extent nor does the passage from Halsbury insist on such rigid requirement. The simple point is, was there some evidence or was there no evidence - not in the sense of the technical rules governing regular court proceedings but in a fair commonsense way as men of understanding and worldly wisdom will accept. Viewed in this way, sufficiency of evidence in proof of the finding by a domestic tribunal is beyond scrutiny. Absence of any evidence in support of a finding is certainly available for the court to look into because it amounts to an error of law apparent on the record. We find, in this case, that the evidence of Chamanlal, Inspector of the Flying Squad, is some evidence which has relevance to the charge levelled against the respondent. Therefore, we are unable to hold that the order is invalid on that ground.

13. The said decision has been subsequently followed in the case of Regional Manager, U.P.S.R.T.C., Etawah and Ors. v. Hoti Lal and Anr. . In this case the Supreme Court while upholding the order of dismissal from service on the ground that the conductor was guilty of non-issue of tickets worth Rs. 16/- and therefore caused loss to the State Exchequer had observed:

10. It needs to be emphasized that the court or tribunal while dealing with the quantum of punishment has to record reasons as to why it is felt that the punishment was not commensurate with the proved charges. As has been highlighted in several cases to which reference has been made above, the scope for interference is very limited and restricted to exceptional cases in the indicated circumstances. Unfortunately, in the present case as the quoted extracts of the High Court's order would go to show, no read sons whatsoever have been indicated as to why the punishment was considered disproportionate. Reasons are live links between the mind of the decision taken to the controversy in question and the decision or conclusion arrived at. Failure to give reasons amounts to denial of justice. [See Alexander Machinery (Dudley) Ltd. v. Crabtree 1974 ICR 120 (NIRC)] A mere statement that it is disproportionate would not suffice. A party appearing before a court, as to what it is that the court is addressing its mind. It is not only the amount involved but the mental set-up, the type of duty performed and similar relevant circumstances which go into the decision-making process while considering whether the punishment is proportionate or disproportionate. If the charged employee holds a position of trust where honesty and integrity are inbuilt requirements of functioning, it would not be proper to deal with the matter leniently. Misconduct in such cases has to be dealt with iron hands. Where the person deals with public money or is engaged in financial transactions or acts in a fiduciary capacity, the highest degree of integrity and trustworthiness is a must and unexceptionable. Judged in that background, conclusions of the Division Bench of the High Court do not appear to be proper. We set aside the same and restore order of the learned Single Judge upholding the order of dismissal.

14. Similar view has been taken by this Court in Delhi Transport Corporation v. Om Pal and Ors. and Delhi Transport Corporation v. N.L. Kakkar and Ors. reported in 110 (2004) DLT 493.

15. It may be relevant to state here that any industrial adjudicator while dealing with the question of domestic enquiry under Section 33(2)(b) of the Act has limited jurisdiction. Scrutiny by the industrial adjudicator is confined to ensuring that the action of the management is not malafide, on account of vindictiveness and on account of extraneous reasons due to unfair labour practice. The said provision requires approval in case of the "concerned workmen" when a dispute under the Industrial Disputes Act is already pending. The industrial adjudicator is to ensure that there is no perversity or arbitrariness.

16. While examining an application under Section 33(2)(b) of the Act, the Industrial Adjudicator is required to take a prima facie view about the validity of domestic enquiry keeping in view the limited purpose and object of the said Section. If approval is granted the "concerned workman" ceases to be an employee from the date of termination of his services by the employer. If approval is not granted under Section 33(2)(b) by the industrial Adjudicator, the "concerned workman" remains in service as if no order terminating his services was passed. If approval under Section 33(2)(b) of the Act is granted, the workman has option to challenge the discharge or dismissal in an appropriate proceeding before the Industrial Tribunal under the Industrial Disputes Act. If an Industrial Dispute is raised, the Industrial Adjudicator is required to answer the reference inspite of the fact that an approval was earlier granted under Section 33(2)(b) of the Act. Surprisingly, in the present case the Industrial Adjudicator has dismissed reference of the workman under Section 10 of the Act and upheld the order terminating his services but another Industrial Adjudicator has dismissed application of the management for approval under Section 33(2)(b) of the Act. It may also be noticed here that order rejecting reference under Section 10 was passed by Industrial Adjudicator on 26.08.1996, i.e., prior to the order passed by the Industrial Adjudicator rejecting approval application of the management under Section 33(2)(b) of the Act which was passed on 26.07.2001.

17. The Supreme Court in case of Cholan Roadways Ltd. v. G. Thirugnanasambandam, has held that the jurisdiction of the Industrial Adjudicator under Section 33(2)(b) of the Industrial Disputes Act is restricted and it cannot be compared to jurisdiction under Section 10 of the Industrial Disputes Act. The Supreme Court in this case observed as under:

While exercising jurisdiction under Section 33(2)(b) of the Act, the Industrial Tribunal is required to see as to whether a prima facie case has been made out as regards the validity or otherwise of the domestic enquiry held against the delinquent, keeping in view the fact that if the permission or approval is granted, the order of discharge or dismissal which may be passed against the delinquent employee would be liable to be challenged in an appropriate proceeding before the Industrial Tribunal in terms of the provision of the Industrial Disputes Act. In Martin Burn case (AIR 1958 SC 79) this Court stated: (AIR p.85, para 27)

A prima facie case does not mean a case proved to the hilt but a case which can be said to be established if the evidence which is led in support of the same were believed. While determining whether a prima facie case had been made out the relevant consideration is whether on the evidence led it was possible to arrive at the conclusion in question and not whether that was the only conclusion which could be arrived at on that evidence. It may be that the Tribunal considering this question may itself have arrived at a different conclusion. It has, however, not to substitute its own judgment for the judgment in question. It has only got to consider whether the view taken is a possible view on the evidence on the record. (See Buckingham & Carnatic Co. Ltd. v. Workers of the Company 1952 Lab AC 490.)

18. In view of the above, we do not find any merit in the present Appeal and the same is dismissed. However, in the facts and circumstances of the case, there will be no order as to costs.