Upendra Dutt vs Union Of India (Uoi) And Ors.
2008 Latest Caselaw 103 Del

JUDGMENT

Mukundakam Sharma, C.J.

1. These appeals are filed by the appellant against the judgment and order dated 6th September, 2006 passed by the learned Single Judge in WP(C) No. 6314/2004 and WP(C) No. 394/2005 whereby the learned Single Judge has allowed the appeal filed by the respondent Corporation and set aside and quashed the award dated 6th December, 2003 in ID case No. 234/1995.

2. Since the issues involved in these appeals are identical, we propose to dispose of these appeals by this common judgment and order.

3. The appellant was working as a Conductor with the respondent Corporation. On 21st September, 1992 while the appellant was performing his duty on bus No. 9791 on route No. 344, the said bus at about 10.35 a.m. was checked by the checking staff who found that the appellant had failed to issue tickets to three passengers even after collecting due fare from them and also cash with him was short. Thereafter, the appellant also misbehaved with the checking staff.

4. Subsequently, respondent Corporation issued a charge sheet dated 14th October, 1992 pursuant to which an inquiry was conducted. The inquiry officer found the respondent guilty of all the charges mentioned in the charge sheet and forwarded the inquiry report to the Depot Manager. The Depot Manager who was the disciplinary authority issued a show cause notice dated 13th May, 1993 to the appellant and after finding the reply of the appellant to be unsatisfactory and considering the fact that even on earlier occasions the appellant has been punished several times with punishments of different gravity for similar charges and no improvement has been shown by the appellant in spite of repeated corrective and punitive measures, the Depot Manager passed an order for removal from service vide memo dated 30th September, 1994. Thereafter, the respondent Corporation filed an application under Section 33(2)(b) of the Industrial Disputes Act, 1947 seeking approval of the Tribunal of its decision taken for removal of the appellant from service.

5. By order dated 7th July, 2003 the learned Tribunal dismissed the application filed by the respondent Corporation under Section 33(2)(b) of the Industrial Disputes Act stating that there was gross error in contravention of principles of natural justice, order of removal from service was passed without taking care of the legal effects and implications of statutory provisions and rules and regulations of the Delhi Transport Corporation and also without taking care of the circumstances of the present case causing irreparable loss and injury to the appellant.

6. During the pendency of the said approval application the appellant raised an industrial dispute against his termination, which was referred to the Industrial Tribunal for adjudication on 4th September, 1995. By order dated 6th December, 2003 the Industrial Tribunal passed an order in favor of the appellant on the ground that the approval application filed by the respondent Corporation has been dismissed and also directed reinstatement of the appellant with full back wages.

7. Aggrieved by the aforesaid order the respondent Corporation filed two writ petitions before this Court, one challenging the order dated 7th July, 2003 in OP No. 531/1993 and the other challenging award dated 6th December, 2003 in ID No. 234/1995. The learned Single Judge after examining the records and analysing the legal position quashed the said order and the award holding that the approval was wrongly not granted and the guilt of the appellant was proved in the inquiry proceedings and, therefore, the Labour Court was apparently not justified in setting aside the order of termination.

8. Aggrieved by the said order, the appellant preferred the present appeals on which we have heard the learned Counsel appearing for the parties.

9. It was contended by the appellant that the termination was illegal as no proper inquiry was conducted. One of the pleas taken by the appellant was that the driver of the bus who was produced as a defense witness was not cross examined and also that the passengers who were present in the bus have also not been cross examined. Reliance has been placed on the order of the learned Industrial Tribunal wherein it has been concluded that non-examination of the passengers and non-consideration of the statement of the driver has vitiated the inquiry proceedings and the finding itself.

10. It was contended by the respondent Corporation that the Industrial Tribunal could not have re-appreciated the evidence led in the inquiry and also that the passengers are not at all required to be examined. It was also submitted that the appellant was given full opportunity to defend and the same was duly availed by the appellant.

11. The law regarding production and examination of passenger witnesses in such cases is well settled by the Supreme Court and also by this Court in various judgments. We may conveniently refer to the decision of this Court in Shyam Sunder v. Delhi Transport Corporation (CWP No. 922/1976, decided on 5th February, 1996), wherein 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 domestic inquiry was not vitiated for not recording statement of passenger witnesses in the inquiry proceeding. The aforesaid decision of this Court as also the decision of the Supreme Court in State of Haryana v. Rattan Singh reported as 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 an absolute mandate. 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.

12. It may be also relevant to state here that any industrial adjudicator while dealing with the question of domestic inquiry 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 industrial adjudicator is to ensure that there is no perversity or arbitrariness. The Supreme Court in the case of Central Bank of India Ltd. v. Prakash Chand Jain while determining the nature and extent of the inquiry permissible under Section 33(2)(b) referred to the law laid down in the case of Lord Krishna Textile Mills v. Workmen wherein it was held that:

In view of the limited nature and extent of the enquiry permissible under Section 33(2)(b) all that the authority can do in dealing with an employer's application is to consider whether a prima facie case for according approval is made out by him or not. If before dismissing an employee the employer has held a proper domestic enquiry and has proceeded to pass the impugned order as a result of the said enquiry, all that the authority can do is to enquire whether the conditions prescribed by Section 33(2)(b) and the proviso are satisfied or not. Do the standing orders justify the order of dismissal? Has an enquiry been held as required by the standing order? Have the wages for the month been paid as required by the proviso? and, has an application been made as prescribed by the proviso?

The court further held that the Tribunal exceeds its jurisdiction when it attempts to enquire if the conclusions of fact recorded in the inquiry were justified on the merits. The court further referring to the cases of Martin Burn case and Buckingham and Carnatic Co. Ltd. v. Workers of the Company 1952 Lab AC 490 observed that 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 is it possible to arrive at the conclusion in question and not whether the Court would have arrived at a different conclusion on that evidence. The Tribunal considering the question should not 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.

13. So far as the award dated 6th December, 2003 is concerned after perusal of the same prima facie it can be said that the same has been passed in favor of the appellant only on the ground that the permission under Section 33(2)(b) has been refused by the Industrial Tribunal. Thus, the learned single judge has rightly held that since the very basis of the said Award is now quashed, the Award also deserves to be quashed.

14. So far as the quantum of punishment is concerned there are a catena of judgments where the Hon'ble Supreme Court and also this Court have observed that the punishment of removal/dismissal is the appropriate punishment for an employee found guilty of misappropriation of funds; and the Courts should be reluctant to reduce the punishment on misplaced sympathy for a workman. That, there is nothing wrong in the employer losing confidence or faith in such an employee and awarding punishment of dismissal. That, in such cases, there is no place for generosity or misplaced sympathy on the part of the judicial forums and interfering with the quantum of punishment. In one of such very recent judgment in the case of U.P. State Road Transport Corporation v. Vinod Kumar (Appeal (civil) 5660 of 2007 decided on 06th December, 2007) the Supreme Court referred and relied on its earlier judgment in the case of Divisional Controller, N.E.K.R.T.C. v. H. Amaresh, reported as , wherein it was held that:

In the instant case, the mis-appropriation of the funds by the delinquent employee was only Rs. 360.95. This Court has considered the punishment that may be awarded to the delinquent employees who mis-appropriated the funds of the Corporation and the factors to be considered. This Court in a catena of judgments held that the loss of confidence is the primary factor and not the amount of money mis-appropriated and that the sympathy or generosity cannot be a factor which is impermissible in law. When an employee is found guilty of pilferage or of mis-appropriating the Corporation's funds, there is nothing wrong in the Corporation losing confidence or faith in such an employee and awarding punishment of dismissal. In such cases, there is no place for generosity or misplaced sympathy on the part of the judicial forums and interfering therefore with the quantum of punishment. The judgment in Karnataka State Road Transport Corporation v. B.S. Hullikatti (2001) 2 SCC 574 was also relied on in this judgment among others. Examination of the passengers of the vehicle from whom the said sum was collected was also not essential. In our view, possession of the said excess sum of money on the part of the respondent, a fact proved, is itself a mis-conduct and hence the Labour Court and the learned Judges of the High Court misdirected themselves in insisting on the evidence of the passengers which is wholly not essential. This apart, the respondent did not have any explanation for having carried the said excess amount. This omission was sufficient to hold him guilty. This act was so grossly negligent that the respondent was not fit to be retained as a conductor because such action or inaction of his was bound to result in financial loss to the appellant irrespective of the quantum.

15. During the course of arguments we were also appraised with the fact that a sum of Rs. 7,15,000/- has already been paid to the appellant by the respondent corporation. As the issue of quantum of compensation payable if any was not raised by any of the parties either in the writ petition or in this appeal, therefore, we are not commenting on merits of the same.

16. In view of the findings and aforesaid legal position, we find no merit in the present appeals and the same are accordingly dismissed.