Sheo Raj Singh vs D.T.C. And Ors.
2007 Latest Caselaw 1974 Del

JUDGMENT

Mukundakam Sharma, C.J.

1. The appellant herein is aggrieved by the Award of the Presiding Officer, Labour Court, Karkardooma Courts, Delhi in Industrial Dispute No. 1825/94 and also by the judgment and order dated 1st September, 2006 passed by the learned Single Judge dismissing the writ petition.

2. The appellant herein was working as conductor with the Delhi Transport Corporation. He was placed under suspension and was charge sheeted on 23rd February, 1989. The charge sheet contained charges drawn against the appellant of misconduct of misappropriation of money by the appellant who was working as a conductor in a bus. The checking staff on 2nd February, 1989 carried out a surprise check in the bus in which the appellant was the conductor and on the said checking it was found that two of the six passengers who were deboarding from the said bus in which they were traveling without tickets. The said two passengers who were found to be without tickets on asking told the checking staff that they had paid the fare to the bus conductor but he did not issue any ticket to them. On the aforesaid allegation, charges were framed and charge sheet was issued. The appellant replied to the aforesaid show cause notice. The disciplinary authority was, however, not satisfied with the defense taken and accordingly ordered for holding a regular inquiry against the appellant. The Inquiry Officer was appointed who enquired into the charges and thereafter on completion of the inquiry he submitted his report holding the appellant guilty of charge. On the basis of the aforesaid report of the inquiry officer, the appellant was served a show cause notice dated 27th December, 1989 to show cause why he should not be dismissed from service. The appellant submitted is reply. On perusal of the entire records of the reply submitted by the appellant and the defense taken by him, the disciplinary authority issued an order of dismissal from service against the appellant dated 27th September, 1990.

3. Being aggrieved by the aforesaid order of dismissal from service, the appellant raised an industrial dispute which was referred for adjudication by the appropriate Government to the Labour Court, Karkardooma Courts, Delhi on the following terms:

Whether the removal from service of Shri Sheo Raj Singh is illegal and/or unjustified and if so, to what relief is he entitled and what directions are necessary in this respect?

4. The learned Labour Court framed a preliminary issue as to whether or not the inquiry conducted against the appellant was in a fair and appropriate manner by the management. The evidence was adduced by the parties on the aforesaid issue. Several pleas were taken in respect of the aforesaid preliminary issue and it was held that the aforesaid inquiry which was held against the appellant was legal and valid and full opportunity was given to the appellant to bring defense assistance for his defense, to bring his witnesses in defense, and also given full opportunity to cross-examine each and every witness of the management. It was held that the workman has failed to show how the inquiry conducted by the management was not fair and proper. Thereafter, the learned Labour Court proceeded to adjudicate upon the reference particularly with regard to the quantum of punishment to be imposed upon the workman. After considering the records it was held that the removal of appellant from his service was legal and justified and that the appellant-workman was not entitled to any relief.

5. Being aggrieved by the aforesaid order, the writ petition was filed by the appellant before the learned Single Judge which was also dismissed by the learned Single Judge after recording detailed reasons for such dismissal of the writ petition. The present appeal was filed as the appellant was still aggrieved on which we have heard the learned Counsel for the parties.

6. It was submitted before us by the counsel for the appellant that though there was no past history of the appellant showing that he was even punished by the respondent but while imposing the penalty of dismissal from service past records were considered and reference was made to a past incident where the appellant was punished. It was also submitted by him that the circular issued by the Corporation dated 3.1.1966 is binding and if reliance is placed on the same no punishment of dismissal from service was warranted. It was submitted that that it was the first incidence where charge was framed against the appellant for misconduct and there being only one incident of such misconduct the same should not have resulted in an order of dismissal from service.

7. The said contention are found to be without basis and not justified for various reasons. Firstly, the records of the appellant maintained by the respondent would indicate that he was punished by the respondent in the past. The appellant himself in his cross-examination dated 14.1.2005 admitted that punishment of cheating was imposed upon him in the past. He had also admitted that that incident pertained to September, 1987 for which he was also placed under suspension. He has also admitted that due to the same incident his increment was stopped as a punishment. The present charge, in which the petitioner was found to be involved and was also found guilty, was a charge relating to misappropriation of funds and commission of cheating by non-issuance of tickets after collecting fares. The charge was grave and he was found guilty of a major charge and, therefore, it cannot be said that some other punishment than the punishment of dismissal from service was called for.

8. Besides the aforesaid, notification issued on 3.1.1966 also enables the disciplinary authority to impose the extreme penalty of dismissal or removal from service in a case of repetition of punishment. We have already referred to one of the past incident where the appellant was given the punishment of stoppage of increment and, therefore, the offence of misconduct of misappropriation for which action is taken was in the nature of repetition of punishment and, therefore, the said circular does not in any manner come in assistance or protection of the appellant. We may also, at this stage, mention that there is a guideline issued by the corporation dated 26.5.2000 which justifies the quantum of punishment imposed on the appellant. In any case, the contention of the counsel appearing for the appellant that the quantum of punishment is disproportionate to the offence alleged against the appellant cannot be accepted. The punishment imposed keeping in view the offence cannot be called as shocking the judicial conscious of the court. It is not the quantum of the amount but the nature, type and character of the misconduct which is relevant and the determinative factor.

9. The next contention of the learned Counsel appearing for the appellant was that the Inquiry Officer has himself acted as the Presenting Officer and, therefore, the entire inquiry stood vitiated. A similar contention was also raised before the learned Labour Court. In the light of the records and on appreciation thereof the learned Labour Court came to a finding that the inquiry proceedings were conducted in accordance with law and that there was no violation of the principles of natural justice. The said findings are findings of fact and cannot be re-opened before this Court. The learned Labour Court has held that the appellant in his cross-examination admitted that he attended the inquiry proceedings, knows Hindi script and that he can also read and sign in Hindi. He also admitted that he was asked to have assistance of a co-worker, Labour Welfare Officer and Labour Welfare Inspector and that he was also given an opportunity to cross-examine the witnesses of the management which he availed and appellant was given an opportunity to bring any witness in his defense. In that view of the matter, and the inquiry having been conducted by the Inquiry Officer legally and validly and there being no violation of the principles of natural justice, the contentions raised, on the face of it, are without any merit.

10. So far the issue with regard to cross-examination of passenger witnesses is concerned, the Labour Court has held that the workman himself has not given any reasons as to why he could not summon those passenger witnesses in his defense. Some of the checking staff were also examined. It is also settled law that guilt can be established if the checking staff is examined and the said evidence is unimpeachable. In this connection we may refer to a decision of the Supreme Court in State of Haryana v. Rattan Singh . In the said decision, three contentions were raised which are as follows:

(1) None of the passengers traveling without tickets were examined in the domestic inquiry.

(2) the checking inspectors had violated a departmental instruction by not recording the statements of the passengers.

(3) the co-conductor in the bus had affirmed the innocence of the conductor.

11. In paragraph 4 of the said judgment the Supreme Court had held that a domestic inquiry can take into consideration all materials logically probative for a prudent mind and that there is no allergy to hearsay evidence, provided it has reasonable nexus and credibility. It was also held in the said decision that passengers are not required to be chased and brought before the domestic tribunal. On the scope of permissible interference with the conclusions in a domestic inquiry, the Supreme Court said in the same paragraph that what has to be seen is whether there was some evidence or was it a case of no evidence. The Supreme Court further held that as long as there was some evidence, sufficiency thereof in proof of a finding by a domestic tribunal is beyond scrutiny. The Supreme Court found that there was some evidence before the inquiry officer and, therefore, the order passed in the domestic inquiry was not invalid. The following passage from the decision of the Supreme Court is worth quoting which is as under:

It is well settled that in a domestic inquiry 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, fair play 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.

12. In Shyam Sunder v. Delhi Transport Corporation (CWP No. 922/1976, decided on 5th February, 1996), this Court held that since the inquiry officer had based his findings on the examination of the checking staff, there was independent evidence to link the petitioner with the charges levelled against him, and consequently it was held that the statement of the passengers, not being the sole material against the petitioner, the domestic inquiry was not vitiated. The aforesaid decision of this Court as also the decision of the Supreme Court in Rattan Singh (supra) and many other decisions were noticed by this Court in the decision in Delhi Transport Corporation v. N.L. Kakkar and Anr. reported as 110 (2004) DLT 493. After noticing all the judgments, this Court held that consistent view of the courts over the last few years has been that non-production of passenger witnesses is not fatal to the domestic inquiry and that findings of fact arrived at in a domestic inquiry should not be interfered with so long as they are based on some evidence. In the said judgment this Court also noted the law laid down by some other High Courts and on such consideration it was held that production of passengers either in a domestic inquiry or before the Labour Court in an industrial dispute is not at all necessary. This Court was of the view that in most cases this would be highly impractical because it would mean that passengers would have to be traced out, chased and brought before the inquiry officer or the Labour Court causing them unnecessary inconvenience. We are of the considered opinion that all the aforesaid decisions are fully applicable to the facts and circumstances of the present case.

13. Reference can be made to the decision of Delhi Transport Corporation v. Sree Kumar and Anr. , which was also decided almost on similar lines.

14. We may also refer to the decision of the Supreme Court in the case of Cholan Roadways Ltd. v. G. Thirugnanasambandam reported as . In paragraph 31 of the said decision, the Supreme Court has observed that the lower fora had misdirected themselves in law. It was held that the Tribunal had wrongly failed to apply principle of res ipsa loquitur, which was relevant for the purpose of that case and that it took into consideration irrelevant facts not germane for determining the issue.

15. In the present case, there was enough evidence and material before the inquiry officer to establish the guilt of the appellant. The checkers had no personal axe to grind and were independent witnesses. We are of the considered opinion that the learned Tribunal had appreciated the issues in the right perspective and on proper interpretation of law had arrived at a correcting finding.

16. In that view of the matter, the contentions raised by the appellant are found to be without any merit. In the light of the aforesaid conclusions arrived at by us, we find no merit in the appeal and the same is dismissed accordingly.