Delhi Transport Corporation vs Sh. Ram Kishan (Ex-Driver)
2009 Latest Caselaw 3138 Del

*            THE HIGH COURT OF DELHI AT NEW DELHI

+                    Writ Petition (Civil) No.8676/2005

                                     Date of Decision : 12.08.2009

Delhi Transport Corporation                       ......Petitioner
                          Through:         Ms. Rashmi Priya for Mr.
                                           J.S. Bhasin, Advocate

                                 Versus

Sh. Ram Kishan (Ex-Driver)                         ......Respondent
                         Through:          Nemo.

CORAM :
HON'BLE MR. JUSTICE V.K. SHALI

1.    Whether Reporters of local papers may be
      allowed to see the judgment?                    YES
2.    To be referred to the Reporter or not ?         YES
3.    Whether the judgment should be reported
      in the Digest ?                                 YES

V.K. SHALI, J.

1. The petitioner by virtue of present petition has challenged

the order dated 10th June, 1998 and the award dated 2nd

December, 2003 passed in ID No.371/1994 by the learned

Labour Court. Briefly stated, the facts leading to the filing of the

present writ petition are that the petitioner had engaged one,

Ram Kishan as a Driver for its fleet of buses in 1982. He was

allotted a badge No.11102 and a pay token No.33119 and was

the permanent employee of the petitioner. His last posting was

at Dichaon Kalan Depot. On 3rd September, 1990 he was given a

memo which was followed by a chargesheet wherein it was

alleged that he had assaulted and used filthy language against

Asstt. Engineer Kharak Singh who was sitting on the date of the

incident in the office of the Depot Manager at about 8.20 P.M. It

is alleged that on the said date, nearly 15-16 employees of the

petitioner had barged into the room of the Depot Manager, where

the complainant Kharak Singh was sitting, both from in and exit

gates and thereafter the incident took place. As a consequence of

this, the chargesheet having been given on 14th September, 1990,

the respondent/workman had denied the charges and given his

defence. One Smt. Anu Kumar was appointed as an Inquiry

Officer to conduct inquiry. The Inquiry Officer recorded the

statements of Kharak Singh, the complainant, one Balwan Singh,

Duty Officer, Bhagat Ram, Asstt. Fitter and Jagbir Singh,

Security Staff.

2. The workman in support of his case examined Om Prakash,

and Risal Singh, Drivers, apart from getting his own statement

recorded. The learned Inquiry Officer after analyzing the

evidence and hearing the arguments gave a finding that the

charges of misconduct against the petitioner are established and

accordingly directed his removal from the service. The removal of

petitioner was challenged by him before the appropriate

Government which made a reference in the following terms to the

learned Labour Court vide order dated 2nd May, 1994 :

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

3. On the basis of the aforesaid references, the learned Labour

Court raised two preliminary issues;

1) whether the inquiry conducted by the management was free and fair ? and

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

4. The learned Labour Court after examining the evidence and

hearing the arguments came to the conclusion that the inquiry

which was conducted against the respondent/workman was not

free and fair as the principles of natural justice were not followed

and accordingly issue No.1 was decided in favour of the

workman.

5. So far as issue No.2 was concerned, the learned Labour

Court directed the reinstatement of the workman. This order of

the learned Labour Court dated 10th June, 1998 was not

challenged by the petitioner/management before the High Court

and therefore this order had become final and binding on the

parties. So far as the reference dated 2nd May, 1994 is

concerned, the learned Labour Court answered the said reference

also against the petitioner/management. This reference which

was answered by the learned Labour Court in favour of the

workman was primarily based on the fact that the Presiding

Officer of the Labour Court earlier way back on 16 th October,

1998 had held in the preliminary issue that the inquiry which

was conducted against the respondent/workman was not free

and fair and therefore liable to be set aside. By virtue of the

present award, the learned Labour Court observed that as a

necessary consequence, the removal of the respondent/workman

was illegal and unjustified in the light of earlier finding dated 16 th

October, 1998 and accordingly directed his reinstatement with

payment of 50% of back wages with continuity of service and

other legal benefits by virtue of the impugned award dated 2 nd

December, 2003.

6. The petitioner/management feeling aggrieved by order

dated 16th October, 1998 as well as by the award dated 2nd

December, 2003, the cumulative effect of which is that the

inquiry which had been held against the respondent/workman

has been declared to be violative of principles of natural justice

and as a necessary consequence directing the reinstatement of

the workman with payment of 50% of back wages.

7. I have heard the learned counsel for the petitioner as well

as the learned counsel for the respondent. I have also gone

through the record. A perusal of the order sheet shows that the

petitioner/management had at some point of time made up its

mind not only to re-employ the respondent/workman provided

they found the respondent/workman to be fit to drive the vehicle,

but they felt aggrieved on account of the 50% of the back wages

which have been directed to be paid to the respondent/workman

by the learned Labour Court. On merits in the writ petition, the

petitioner has assailed both the order as well as the award on the

ground that the preliminary issue which has been decided by the

learned Labour Court was in violation of the Supreme Court

judgment in The Cooper Engineering Ltd. Vs. P.P. Mundhe

1975 (2) SCC 661 wherein it has been held that the question as

to whether the domestic inquiry has violated the principles of

natural justice essentially pertains to procedural aspects of the

domestic inquiry and not to the merits or to the quantum of

punishment and therefore the said aspect of the matter even if

decided in favour of the respondent/workman only impairs the

procedural aspect and not the substance of the inquiry. On

merits, the learned counsel for the petitioner has contended that

the learned Labour Court has literally sat as a Court of Appeal

and gone into the question of finding of fact, as to whether the

respondent/workman had misconducted by assaulting the

complainant, Kharak Singh, AE on the date of incident or not

and substituted its own finding after re-appreciating the

evidence. The learned counsel has observed that the learned

Labour Court has grossly erred in doing so and it has placed

reliance on Vest Bokaro Colliery (TISCO Ltd.) Vs. Ram Pravesh

Singh (2008) 1 SCC (L&S) 890, Workmen Represented by

Hindustan V.O. Corpn. Ltd. Vs. Hindustan Vegetable Oils

Corporation Ltd. & Ors. (2009) 9 SCC 534, M.P. Electricity

Board Vs. Jagdish Chandra Sharma (2005) 3 SCC 401 and

Mahindra & Mahindra Ltd. Vs. N.B. Narawade 2005(2)

SCALE 302.

The third point which has been raised by the learned

counsel for the petitioner is that the respondent/workman had

earlier also misconducted and indulged in acts of

insubordination and misbehavior with the staff on account of

which in his short career from 1982 to 1994 or so he had been

visited by departmental punishment on as many as 10 occasions,

and therefore to that extent the respondent/workman was an

obdurate and this was the only method to deal with him by

removing him from the service.

8. I have carefully considered the respective submissions. I

feel that there is absolutely no merit in any of the submissions

which have been made by the learned counsel for the petitioner.

The first question which arises for consideration is that it is

settled legal proposition that the High Court in exercise of its

power of judicial review will not sit as a Court of Appeal and re-

appreciate the entire evidence. The Court is not to see the

quality of decision, but the only aspect, which is to be seen by

the Court, is as to how the said decision has been arrived at and

if the decision which has been arrived at by the learned Labour

Court happens to be in violation of principles of natural justice or

some provisions of act or rule or regulation, then it can interfere

with the orders or the award passed by the learned Labour Court

and not otherwise. In the instant case, the learned counsel for

the petitioner has not been able to point out any such violation

which may permit this Court to exercise its power of judicial

review and set aside the order dated 16th October, 1998 or the

award dated 2nd December, 2003.

As a matter of fact, a perusal of the order dated 16 th

October, 1998 clearly shows that the learned Labour Court has

very critically analysed the entire evidence adduced before the

Inquiry Officer and arrived at a finding that even if the testimony

of Kharak Singh, AE, who is purported to have been assaulted by

the respondent/workman, is taken to be as correct, even then it

cannot be made a basis of proof of allegation of misconduct

against the respondent/workman for the simple reason that the

identity of the workman who had actually assaulted Kharak

Singh, AE itself is full of doubt and contradictions. In this

regard, the learned Labour Court has referred to the testimony of

Kharak Singh, AE himself wherein he has stated that the mob

which had attacked him on the date of incident in the office of

the Depot Manager perhaps consisted of the

respondent/workman. This clearly shows that even the

complainant was not sure whether Ram Kishan, the

respondent/workman formed the part of that unruling mob or

not. The next is the contradiction with regard to the victim being

rescued. The victim, namely Kharak Singh, has stated that he

was rescued by Balwan Singh, Duty Officer and Bhagat Ram,

Asstt. Fitter while as both Balwan Singh and Bhagat Ram do not

support the version of the Kharak Singh, complainant. Balwan

Singh, in fact, states that it was Jagbir Singh, Security Officer

who had saved Kharak Singh while as Jagbir Singh says that he

did not come to the rescue of Kharak Singh, AE and it was

Balwan Singh. Therefore, there is not only a doubt about that

identity of the assailant, namely the respondent/workman, but

there is also a doubt about the incident actually having taken

place not because the witnesses are giving different versions but

they are giving contradictory versions which, in fact, raise a

doubt as to whether any such incident of assault of Kharak

Singh, AE had taken place at all or not.

9. The learned Labour Court while analyzing the testimonies

of these witnesses have come to a finding that the inquiry against

the respondent/workman conducted by the

petitioner/management was not free and fair in a detailed

reasoned order after considering all the pleas raised by the

respondent and this order was passed way back on 10th June,

1998. The said order is being assailed only in the year 2005 by

the petitioner and thus there is a grossly inordinate delay in

assailing the said order and in other words, it can conveniently

be said that the petitioner having not chosen to assail the said

order has accepted the same to be correct and therefore no

infirmity can be found with the award dated 2nd December, 2003

where the first issue with regard to the legality and validity of the

removal of the respondent/workman gets decided ipso facto in

favour of the respondent/workman on the basis of the decision

dated 16th October, 1998.

10. The second issue which arises for consideration is that the

what relief the respondent/workman is entitled to in the light of

first issue having been decided in his favour. Here the learned

Labour Court has balanced the equities and granted the

respondent/workman not only reinstatement with benefit of

continuity of service but 50% of back wages. The learned Labour

Court ought to have directed the parties to adduce evidence as to

whether the respondent/workman was employed during the

pendency of the proceedings or not. Both the petitioner and the

respondent have not adduced any evidence as there is no

discussion about the same. The fact that the

respondent/workman was working as a Driver with the

petitioner/management and therefore was a skilled person, it is

hard to believe that even this long period from 14th September,

1990 till the award having been passed on 2nd December, 2003,

he would have remained idle, especially when there is great

demand of the drivers to drive the vehicle especially in big cities.

Therefore, it is safe and reasonable to presume that the

respondent/workman must have been gainfully employed as a

Driver even during this period and he cannot be permitted to

take advantage of the pendency of the proceedings before the

Court and get a substantial amount of public money without

having worked. No work no pay should be the rule. I therefore

feel that although that will be an ideal situation if the rule of no

work no pay is followed, but the facts of the present case are

such that the respondent/workman was not able to discharge

the work of a Driver with the petitioner/management only on

account of the acts of omission and commission on the part of

the petitioner/management. Therefore, depriving him of the

entire benefit of back wages would be also too harsh on him.

11. Under these circumstances, I feel that he deserves to be

granted some amount of percentage of wages from the date of

removal till the date of reinstatement. I accordingly direct the

petitioner to pay to the respondent/workman 25% of the back

wages from the date of his removal till the date of his

reinstatement within a period of eight weeks from today, failing

which the said amount shall further carry an interest @ of 9%

from the date of removal till the date of his reinstatement.

12. With this modification of the award dated 2nd December,

2003, the writ petition is treated as disposed of.

V.K. SHALI, J.

August 12, 2009 skw