D.T.C. vs Krishan Kumar
2007 Latest Caselaw 1714 Del

JUDGMENT

Hima Kohli, J.

1. The present writ petition has been filed by the petitioner Delhi Transport Corporation (DTC) praying inter alia for issuance of a writ of certiorari for quashing the award dated 5th December, 2003 passed by the Labour Court whereunder directions have been issued to the petitioner DTC for reinstating the respondent workman with continuity of service, full back wages and other consequential benefits and also for quashing of order dated 31st March, 1998, whereby the enquiry proceedings held by the petitioner, were held to be vitiated.

2. The undisputed facts of the case are that the respondent workman was appointed as a Retainer-crew-conductor vide letter dated 30th March, 1978. After completion of probation period, he was confirmed as a Conductor w.e.f. 19th January, 1980. On 13th April, 1987, the petitioner DTC checked the locker of the respondent workman physically and on verification, found the DTC bus tickets/passes worth Rs. 466/- missing there from, which were not accounted for by the respondent workman to the petitioner DTC. Pursuant thereto, the services of the respondent workman were terminated by the petitioner DTC, as against which the respondent workman raised an industrial dispute, which was referred for adjudication to the Labour Court in the following terms of reference:

Whether the removal of Shri Krishan Kumar from service is illegal and/or unjustified and if so, what directions are necessary in this respect?

3. The workman filed his statement of claim to which the management filed its written statement. On the basis of the pleadings of the parties, following issues were framed:

1. Whether the enquiry conducted by the management was fair and proper?

2. To what relief, if any, is the workman entitled in terms of reference?

Issue No. 1 in respect of the enquiry conducted by the petitioner DTC was decided to be treated as a preliminary issue.

4. The case of the petitioner DTC was that on discovery of the alleged misconduct, the respondent workman was issued a charge sheet dated 1st June, 1987. It was stated that enquiry proceedings were initiated but since the respondent workman had admitted his guilt before the enquiry officer, so there was no need to hold an enquiry against him, and evidence was not required to be produced. Accordingly, the Labour Court observed that the question that needed to be addressed in the case was that whether the statement recorded by the respondent workman before the enquiry officer was an admission of his guilt of misconduct as alleged or not. On going through the material placed on record including a copy of the charge sheet, the Labour Court concluded that the statement of the respondent workman before the enquiry officer was only to the effect that when the locker was checked, his wife was seriously ill for which reason he did not know how the tickets were short, as he was mentally disturbed, and that the statement of the respondent workman could not be taken as an admission of guilt on his part with regard to the missing passes, allegation of theft and misappropriation as mentioned in the charge sheet. Vide order dated 31st March, 1998 it was held that the statement of the respondent workman before the enquiry officer did not amount to admission of charges mentioned in the charge sheet. It was further held that the enquiry officer should have recorded the evidence of the parties and then ought to have given findings with regard to the charges and misconduct alleged against the workman, which having not been done in the present case, the enquiry proceedings conducted by the petitioner management were held to be invalid.

5. Thereafter, the petitioner DTC was granted an opportunity to prove the charges before the Labour Court, for which evidence was led. After having heard both the parties and perusing the material placed on the record, the Labour Court found that no notice was given to the respondent workman before inspecting his locker and no independent person joined in the said search and therefore held the allegations levelled against the respondent workman in the charge sheet did not stand proved. By way of the impugned award dated 5th December, 2003, the Labour Court concluded that the actions taken by the petitioner DTC were unfair, illegal, unjustified and against the principles of natural justice. Thus the respondent workman was held entitled to reinstatement with continuity of service along with full back wages and other consequential benefits. Aggrieved by the said award and the order dated 31st March, 1998, the petitioner DTC has filed the present writ petition.

6. Counsel for the petitioner DTC submitted at the very outset that the Labour Court ought not to sit in appeal over the findings of the enquiry officer, and ought not to substitute its views for that of the enquiry officer. Reliance in this respect was placed on the following judgments:

(i) Horam Singh v. Delhi Transport Corporation 2006(7) AD(Delhi) 642

(ii) U.P. State Road Transport Corporation, Dehradun v. Suresh Pal

7. It was stated that the impugned award was erroneous for the reason that the Labour Court failed to appreciate that there was categorical admission of his guilt by the respondent workman not only during the course of enquiry but also in the reply dated 25th September, 1987 to the show cause against proposed action to be taken.

8. It was further submitted that the Labour Court failed to appreciate that strict procedure of evidence need not be followed in enquiry proceedings. It was stated that the impugned award is bad as the very basis on which it was passed was misconceived. Reference was made to the written statement filed by the petitioner DTC before the Labour Court to point out that a specific averment was made therein that the locker of the respondent workman was checked in accordance with the provision contained in Para No. 7 of Traffic Manual No. 4, dated 29th October, 1974, by a duly appointed committee consisting of representative from security, Accounts, Traffic and I/C Ticket Section and that except for one of the members of the committee, all the rest were above the grade of workman. Reference was also made to the evidence by way of affidavit tendered by K.C.Lohia, who was the Traffic Supervisor/Duty Officer at the relevant time and Kamal Singh, who was a Security Guard at the relevant time, both of whom confirmed the presence of the said officials at the time of inspection of the locker. It was averred that the procedure laid down in the said Traffic Manual was strictly adhered to and therefore the question of any malafide did not arise at all.

9. Reliance was placed on the aforesaid Para No. 7 of Traffic Manual No. 4 to point out that no notice was required to be given to the concerned conductor before inspecting his locker, as element of surprise in the checking would be lost if prior notice was to be given and therefore the findings of the Labour Court to the effect that in absence of such notice being given to the respondent workman, the action of the petitioner DTC was vitiated and illegal for violation of the principles of natural justice, was erroneous. Attention of the Court was also drawn to the fact that 113 tickets were found to be unaccounted for, totaling to an amount of Rs. 466 being misappropriated by the respondent workman.

10. Lastly, it was argued that since ten long years have passed since the dispute was raised by the respondent workman and that since he has survived for such a long time, an inference ought to be drawn against the respondent workman to the effect that he must be gainfully employed elsewhere, and therefore back wages ought not to be granted. It was submitted that back wages with continuity of service ought not to be granted automatically on the termination being found to be illegal, and reliance in this regard was placed on the following judgments:

(i) U.P. State Brassware Corpn. Ltd. and Anr. v. Uday Narain Pandey

(ii) J.K. Synthetics Ltd. v. K.P. Agrawal and Anr. 2007 III AD (S.C.) 52

11. Per contra, counsel for the respondent workman strongly supported the impugned award. It was submitted the stand taken by the petitioner DTC before the Labour Court that since the respondent workman had admitted his guilt before the enquiry officer therefore there was no need for recording any evidence or for following detailed enquiry procedure, was without any basis as the statement given by the respondent workman before the enquiry officer that when the locker was checked his wife was seriously ill for which reason he did not know how the tickets were short, as he was mentally disturbed, could not be deemed to be an admission of guilt. It was stated that assuming but not conceding that there was an admission, still it has to be unequivocal in order to close the right of hearing, and support was sought to be drawn from the following judgments of the Supreme Court:

(i) Aghnoo Negesia v. State of Bihar

(ii) Chikkam Koteswara Rao v. Chikkam Subbarao and Ors.

12. It was also contended on behalf of the respondent workman that the presence of the conductor at the time of inspecting the locker was necessary in view of the procedure prescribed in para 7 of the Traffic Manual No. 4 and in his absence, it is the Depot Manager who ought to be present, and neither of the conditions were fulfillled in the case of the respondent workman. It was stated that the purpose of framing such a procedure was to remove the scope of any mischief, and that by not following the procedure as laid down, the very object remained unfulfilled and was frustrated. It was further pointed out that the Traffic Manual No. 4 was not placed before the Labour Court and nor was any order placed before this Court to show that the Depot Manger had constituted the committee of the five persons and authorized them to inspect the locker in his place. It was also argued that out of the five witnesses who were the members of the inspection committee, only 2 were produced before the Labour Court, thereby depriving the respondent workman of his right to cross-examine them, resulting in a violation of the principles of natural justice and in prejudicing his rights.

13. In rejoinder, counsel for the petitioner DTC submitted that out of the five members of the committee, except for one, all others held the rank of officers and on the issue of only two members of the committee having tendered evidence before the Labour Court, it was stated that the remaining three members stood superannuated because of which they could not be made witnesses.

14. I have heard the counsels for the parties and have also perused the material placed on record, including the lower court records.

15. The first issue that needs to be addressed is with regard to the validity of the enquiry report. A perusal of the impugned order dated 31st March, 1998 shows that the ground on which the enquiry proceeding was held to be vitiated was that the statement of the respondent workman as recorded on 22nd July 1987, before the enquiry officer did not amount to admission of guilt of the charges mentioned in the charge sheet, and under these circumstances, the enquiry officer was wrong in holding the workman guilty without affording him an opportunity to lead evidence. The aforesaid statement recorded by the respondent workman before the enquiry officer is reproduced as under:

Statement of Sh.Krishan Kumar, Conductor, 12186

He stated that when the locker was checked my wife was seriously ill for which I do not know how these tickets were short, as I was mentally disturb. I have nothing more to add.

After recording the aforesaid statement, the enquiry officer dispensed with further proceedings and submitted his report.

16. It is settled law that an admission should be clear, conclusive, precise, unambiguous and free from doubt and that if an admission is capable of two interpretations, an interpretation unfavorable to the person making it should not be put on his admission. Reliance in this respect can be placed on the following judgments:

(i) Paresh Nath Mohanty v. Ghasiram Mohanty and Ors. .

(ii) Chikkam Koteswara Rao (supra)

17. In the facts of the present case, the Labour Court, after going through the short statement made by the respondent workman before the enquiry officer, rightly held that in his statement the respondent workman only referred to the fact that his wife was ill because of which he was mentally upset and did not know how the tickets fell short, and stated nothing so far as the charges leveled against him with regard to missing DTC passes or allegation of theft or misappropriation were concerned. The said statement was therefore not in the nature of an admission, and even it was an admission of sorts, it was certainly not unambiguous, unequivocal, clear or free from doubt as to visit the respondent workman with such grave civil consequences as removal from service. In this view of the matter, it was rightly held by the Labour Court that the enquiry officer should not have dispensed with the requirement of holding an enquiry in view of the so called 'admission' but should have instead given an opportunity to the parties to lead evidence and should then have recorded his findings with regard to the charges leveled against the respondent workman.

18. In light of the above discussion, the arguments advanced by the counsel for the petitioner DTC that no strict rules of evidence need to be followed in enquiry proceedings and that the Labour Court ought not to interfere with findings of the enquiry officer, cannot be sustained. There is no quarrel with either of the propositions of law, but the fact remains that while strict procedure of evidence may be dispensed with in enquiry proceedings, the same cannot not be at the cost of dispensing with the principles of natural justice. Similarly, though ordinarily the Labour Court ought not to interfere with the findings of facts as arrived at by the enquiry officer, and substitute its own view for that of the enquiry officer, such interference by the Labour Court is warranted in case of breach of the principles of natural justice. In the present case, the respondent workman was wrongly held to be guilty of charges levelled against him by the petitioner DTC, without holding a valid enquiry and giving him an opportunity of leading evidence and defending himself, on the basis of an `admission', which itself does not stand the scrutiny of law to be held as a valid admission. Hence, the Labour Court was well within in right to interfere with the findings of the enquiry officer, and vitiating the enquiry. The conclusion of the Labour Court that the enquiry proceedings conducted by the management were invalid and vitiated, is upheld.

19. Reliance placed by the counsel for the petitioner DTC on the reply dated 25th September, 1987, to the show cause notice issued by the petitioner DTC, to state that the respondent workman had not only admitted his guilt before the enquiry officer but also in the aforesaid letter, is misconceived. The said letter was written by the respondent workman to the petitioner DTC in reply to the Memorandum dated 8th September, 1987, issued to him to show cause against the action proposed to be taken against him, consequent to the enquiry officer having found him guilty of the charges leveled against him. The enquiry proceedings itself having been held as illegal and invalid, there is no occasion for this Court to examine documents subsequent to the enquiry so as to conclude if the same were in the nature of an admission of guilt or not.

20. The second limb of the arguments advanced by the counsel for the petitioner was that there was no illegality or irregularity in the procedure adopted in checking the locker of the respondent workman. She relied heavily on para 7 of the Traffic Manual No. 4 in support of her plea that there was no need to issue any notice to the respondent workman before inspecting his locker. The relevant extract of the Traffic Manual No. 4 is reproduced hereunder for ready reference:

7. Issue of locker (with lock and key) to the conductor:

Every conductor will be provided with a locker Along with a lock and key for the safe custody of his ticket box when he is not on active duty. Acknowledgment for the receipt of the lock and key will be obtained from the conductor in a register to be maintained for the purpose. The locker will be liable to be opened, if required for the verification of tickets. However, this will be done either in the presence of the conductor himself, or if he is absent in the presence of Depot Manager. The duplicate keys of the lockers will remain in the custody of the Depot Manager.

21. It is pertinent to note that while only a reference was made to the provisions of the aforesaid Traffic Manual during the proceedings before the Labour Court, a copy of the same was not placed before it. Even if this Court takes note of the provisions of the said Traffic Manual at this stage, it still does not come to the aid of the petitioner DTC. A bare perusal of the same makes it manifest that the prescribed procedure mandates that a locker may be opened for verification of tickets, but the same is to be done either in the presence of the conductor himself, or in the presence of the Depot Manager. There is no denial to the fact that in the present case, neither the respondent workman, i.e., the conductor concerned, not the Depot Manager was present during the inspection of the locker. Also, there is nothing placed on record to show that the committee comprising five members that inspected the locker was formed by the Depot Manager or under his authority. Though the counsel for the petitioner DTC rightly contended that the said Traffic Manual does not require a notice to be given to the conductor before opening his locker, but when the said procedure specifically lays down that the locker is to be opened in the presence of the conductor concerned or the depot manager, then the same could not be ignored or overlooked for the reason that it served a particular purpose of not causing any prejudice to the conductor concerned and at the same time, foreclosed any allegation of malafide action by the petitioner DTC. Since, in the present case, neither the conductor not the Depot Manager was present during the inspection of the locker, the action of the petitioner DTC was rightly held by the Labour Court to be illegal, unjustified and against the principles of natural justice.

22. In the light of facts and circumstances of the case and the aforesaid discussion, no grounds have been made out by the petitioner DTC warranting interference with the impugned award dated 5th December, 2003, as also the impugned order dated 31st March, 1998. For the reasons stated hereinabove, the writ petition is dismissed being devoid of merits with no order as to costs.