Shyam Singh vs D.T.C.
2007 Latest Caselaw 2114 Del

JUDGMENT

Mukundakam Sharma, C.J.

1. We have heard the learned Counsel appearing for the appellant on this appeal which is filed against the order dated 29th September, 2004 passed by the learned Single Judge whereby the learned Single Judge allowed the writ petition filed by the respondent-Delhi Transport Corporation. By the said order, the orders passed on 23.4.1999 and 15.3.2001 by the Industrial Tribunal were set aside. The writ petition was filed by the appellant being aggrieved by the aforesaid two orders passed by the Tribunal. By the impugned order dated 23.4.1999, the Tribunal held that the domestic inquiry conducted against the workman was vitiated due to the failure of the Enquiry Officer to comply with the principles of natural justice. By the second order dated 15.3.2001, the application filed by the Delhi Transport Corporation for approval under Section 33 of the Industrial Disputes Act, 1947 was rejected.

2. The appellant herein was a bus conductor working with the Delhi Transport Corporation. On the allegation of misconduct committed on 6.6.1993, departmental proceedings were initiated against the appellant. It was alleged that a routine checking party had found four passengers traveling without tickets in the bus wherein the appellant was working as the conductor. On inquiry by the checking staff, the said passengers stated that although they had paid the due fares, yet the workman-bus conductor had not issued tickets to them. The statements of the four passengers were recorded and a challan was prepared. The workman-conductor of the bus signed the challan as well as the statements of all the four passengers. He also handed over four unpunched tickets of the requisite denominations to the checking staff. A way bill was also prepared by which the respondent-workman deposited the entire cash amount, including that covered by the unpunched tickets.

3. Pursuant to the issuance of aforesaid charge-sheet, in the regular departmental inquiry the appellant was found to be guilty of misconduct. The Enquiry Officer submitted his report in which he chose to disbelieve the two passenger witnesses who had appeared as defense witnesses. The Enquiry Officer relied upon the evidence adduced by the other witnesses and held that the appellant was guilty of the charges. The Disciplinary Authority went through the records including the report of the Enquiry Officer and on being satisfied, passed an order removing the workman from service. The Delhi Transport Corporation thereupon filed an application under Section 33(2)(b) of the Industrial Disputes Act seeking approval from the learned Tribunal of the action taken by the Corporation in removing the workman from service.

4. The Tribunal framed a preliminary issue as the whether or not the departmental inquiry was conducted legally and validly against the workman and in accordance with the principles of natural justice. The Tribunal, however, went to the merits of the case and held that the Enquiry Officer should not have disbelieved the two passenger witnesses who were examined before the Enquiry Officer inasmuch as it is unbelievable that the passengers would have paid the fare without obtaining tickets for the journey. The Tribunal also held that as per the circular dated 12th February, 1973, the workman should have been asked at each hearing before the Enquiry Officer whether he required assistance of a defense assistant. For the aforesaid reasons, the Tribunal set aside the order passed by the Corporation. Similar observations and findings have been recorded by the Tribunal in second order dated 15th March, 2001 rejecting the application under Section 33(2)(b) of the Act. The said orders were challenged by filing a writ petition which was allowed by the learned Single judge by giving reasons for his decision. Since the writ petition was allowed and the orders passed by the Tribunal were set aside, therefore, the present appeal is filed by the workman before this Court.

5. Upon going through the records, we are satisfied that the grounds on which the learned Tribunal set aside the dismissal order passed by the Corporation are illegal and unjustified. Time and again this Court has held that the aforesaid circular dated 12th February, 1973 is only an administrative circular. The same circular came up for consideration of this Court in the case of DTC v. Shyam Singh and Anr. CWP No. 1420/2002 decided on 29th September, 2004 wherein we have held as follows:

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....

6. In this view of the matter, the aforesaid findings arrived at by the learned Tribunal is without jurisdiction and illegal and therefore, the learned Single judge was justified in rejecting the aforesaid findings.

7. In so far as the other part of the findings recorded by the learned Tribunal to the effect that evidence of the other passenger witnesses should have been discarded, are also erroneous in view of the fact that the Tribunal while exercising jurisdiction under Section 33(2)(b) of the Act sat over the findings recorded by the disciplinary authority in the inquiry proceedings and thereby discharged the functions of an appellate authority, which could not have been so discharged while hearing an application under Section 33(2)(b) of the Act. The two passenger witnesses had made statements against the appellant-workman and the said evidence adduced could not have been re-appreciated on merits as an appellate forum by the learned Tribunal while disposing of an application under Section 33(2)(b) of the Act. Learned Single Judge has referred to the material and evidence relied upon against the appellant. The learned Single Judge was, therefore, right in holding that the role played by the Tribunal in the matter by way of re-appreciating the evidence was not the role which is envisaged while deciding an application under Section 33(2)(b) of the Act.

8. On going through the records, we are satisfied that the order passed by the learned Single Judge does not suffer from any infirmity, he has considered the entire records and thereafter has passed the order. However, before parting with the case, we would observe that the appellant could have exercised his right to seek for a reference in terms of the provisions of Section 10 of the Industrial Disputes Act. Despite the fact that the aforesaid application under Section 33(2)(b) of the Act by the Corporation is upheld, it shall be open to the appellant to make such a prayer before the appropriate government which shall be considered in accordance with law.

9. We, however, dismiss this appeal making it clear that the observations made herein as also by the learned Single Judge should be considered to be observations and views expressed for the purpose of deciding the petition under Section 33(2)(b) of the Act.