Virender Singh Conductor B.No. ... vs Delhi Transport Corporation
2009 Latest Caselaw 1461 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI
6.

+     LPA 1189/2007


      VIRENDER SINGH CONDUCTOR B.NO. 21473       ..... Appellant
                     Through: Mr. T.K. Samanta, Adv.

                  versus


      DELHI TRANSPORT CORPORATION           .....Respondent
                    Through: Mr. Hanu Bhaskar, Adv.


      CORAM:
      HON'BLE THE CHIEF JUSTICE
      HON'BLE MR. JUSTICE NEERAJ KISHAN KAUL


                         ORDER

% 18.04.2009

The appellant was employed with the respondent DTC since July,

1984 as a Conductor. On 5th July, 1994, he was issued a charge-sheet

for not issuing tickets to the passengers, for not signing the statement

of passengers and for misbehaving with the checking staff. Thereafter,

a domestic inquiry was conducted against him pursuant to which, he

was removed from services on 6th June, 1996. As against the said

order, the appellant filed an appeal which came to be dismissed by the

appellate authority by a speaking order communicated to the appellant

vide memo dated 11th September, 1996. The appellant then raised an

industrial dispute which came to be referred to the Labour Court.

Keeping in view the rival contentions, the following issues were framed

by the Labour Court:

"(a) Whether the management has not conducted a fair and proper inquiry in accordance with the principles of natural justice?

(b) As per terms of reference."

2. By the order dated 23rd October, 2004, the first issue which was

LPA 1189/2007 Pg.1 treated as the preliminary issue was decided in favour of the

respondent and it was held that the report of the Inquiry Officer was

neither perverse nor did the same appear to be in violation of the

principles of natural justice. Finally, the award dated 7th April, 2006

was passed whereunder the punishment awarded to the appellant was

held to be commensurate with the charges of misconduct committed

by him and was appropriate in view of his past conduct which was

found to be unsatisfactory. Being aggrieved, the appellant filed a writ

petition which came to be disposed of by the learned single Judge by

order under appeal.

3. Learned counsel appearing for the appellant strenuously

contended that the appellant was not given an opportunity to engage a

co-worker as Defence Assistant, thereby violating the mandate of the

Circular dated 12th December, 1973, wherein it was provided that on

each date of the proceedings, the workman shall be asked about his

need for Defence Assistant and that in the present case, the workman

was given no such opportunity. It was urged that the inquiry was held

on 17th January, 1996, 26th February, 1996 and 4th April, 1996, but the

assistance of a co-worker was not given to the appellant on each date

of the enquiry. It was further urged that though on the first date of

enquiry, the appellant was asked whether he would like to be assisted

by a co-worker as Defence Assistant, but merely because the appellant

had refused such assistance on the first date did not mean that the

Inquiry Officer could dispense with the requirement of asking him on

every hearing as to whether he required the assistance of any other

co-worker.

4. The contention is devoid of any merit. A similar contention was

LPA 1189/2007 Pg.2 rejected by a Division Bench of this Court in Ramesh Chand v. DTC

in LPA No. 289/2007 decided on 29th May, 2007. In that case, relying

upon its earlier judgment in Dharampal v. DTC, LPA No.

2290/2006, the Court held as under:

"6. We have considered all the submissions in the light of the records. So far as the first ground taken before us which pertains to violation of the mandates of the circular dated 12.12.1973 is concerned, a similar issue was raised before us in the LPA No.2290/2006 titled as Dharam Pal Vs. Delhi Transport Corporation. In the said case also, the aforesaid contention was rejected. Such a contention was also a subject matter of consideration before this Court in writ petition being CWP No.1420/2002 title as DTC Vs. Shyam Singh and Anr. The said writ petition was disposed of by judgment and order dated 29th September, 2004 and the Court held as under:-

'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.'

7. Therefore, we are not inclined to accept the aforesaid contention raised by the counsel appearing for the appellant...."

5. It is thus seen that the Circular on which the appellant is seeking

to place reliance merely incorporates a rule of prudence and is not

mandatory in nature. In the inquiry report, it has been clearly

recorded that the appellant was asked whether he would like to be

assisted by a co-worker as Defence Assistant, but he refused the same.

It is also seen from the records that the appellant had even cross-

examined some witnesses at length and therefore the argument of the

LPA 1189/2007 Pg.3 appellant that it was incumbent on the part of the Inquiry Officer to

offer Defence Assistance to the appellant on every enquiry date has to

be rejected.

6. The next contention of the appellant's counsel is that the

documents demanded by the appellant were not supplied and thus the

enquiry is vitiated by violation of principles of natural justice.

This contention is equally without any merit and is without any

foundation. It is seen from the record that the appellant himself wrote

a letter dated 7.7.1994 to the Depot Manager, asking for certain

documents and stating that before filing the reply to the charge sheet,

the said documents are required by him so as to file an effective reply.

In response to the letter dated 7.7.1994 of the appellant, the Depot

Manager vide letter dated 26.7.1994 provided copies of the documents

as demanded by him and all the documents have been received by the

appellant. Under the circumstances, the argument that the enquiry is

vitiated by violation of principles of the natural justice must be

rejected.

7. In the result, the appeal fails and the same is accordingly

dismissed.

                                         CHIEF JUSTICE



                                         NEERAJ KISHAN KAUL, J
APRIL 18, 2009
pk




LPA 1189/2007                                                      Pg.4