Delhi Transport Corporation vs Chandi Ram
2009 Latest Caselaw 659 Del

*               IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         W.P.(C) NO. 15765/2006

%                                             Reserved on : 22.01.2009
                                          Date of Decision : 26.02.2009


DELHI TRANSPORT CORPORATION                           .... Petitioner

                       Through: Mr. G.S. Chaturvedi, Advocate

                                 Versus

CHANDI RAM                                            .... Respondent

                       Through: Nemo.


HON'BLE MR. JUSTICE V.K. SHALI

1.    Whether reporters of Local papers may be
      allowed to see the judgment?           NO
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. This is a writ petition filed by the petitioner/DTC against the

impugned award dated 10th April, 2006 passed by Ms. Nisha Saxena,

Presiding Officer, Labour Court-XXI, Karkardooma Courts, Delhi in ID

No. 335/06/96 in the case titled Chandi Ram Vs. M/s Delhi Transport

Corporation by virtue of which the learned Labour Court has held that

the facts of the case did not warrant the extreme punishment of

dismissal and directed the reinstatement of the respondent/workman

with 50% of the back wages, though no punishment in lieu of the

dismissal was given.

2. That briefly stated, the facts of the case are that the

respondent/workman was employed as a driver with the

petitioner/DTC. The respondent/workman was charge sheeted on 9th

June, 1993 because of his allegedly having interfered in the challan of

the Conductor and for pleading the case of the Conductor and against

the checking staff. It is also alleged that the respondent/workman

asked the Conductor not to sign his statement recorded by the checking

staff. The respondent/workman was also alleged to have assaulted the

checking staff.

3. A domestic enquiry was conducted. The disciplinary authority

after the enquiry came to the conclusion that the respondent/workman

had misconducted and accordingly he was directed to be removed from

service by the General Manager.

4. The respondent/workman challenged his removal before the

appropriate Government which accordingly made a reference in the

following terms of the learned Labour Court:

"Whether the removal of Sh. Chandi Ram from service by the Management is illegal and/or unjustified, and if so, what relief he is entitled and what directions are necessary in respect?"

5. The parties have adduced their respective evidence and thereafter

the learned Labour Court came to a finding that although there was no

infirmity in the conduct of the enquiry, however, the punishment which

was imposed on the petitioner was disproportionately heavy and

excessively harsh and was not proportionate with the gravity of the

offence charged. While arriving at such a finding, the learned Labour

Court noted that in cases so far as the allegations of bribery,

misappropriation of public funds, theft of public property etc. are

concerned, they constitute a class in themselves and in such cases

there is no room for showing leniency or compensation as that would be

detrimental to the public interest and in such cases, accordingly, if the

punishment of dismissal or removal is imposed, that would be justified.

6. But in the instant case, it was opined by the learned Labour

Court that as there was no allegation of financial irregularity and the

respondent/workman had rendered 13 years of service without any

blameworthy conduct of a similar nature during this period, therefore,

the charges proved against the delinquent do not warrant imposition of

extreme penalty of dismissal or removal from service. It was also

observed by the learned Labour Court that the past record of the

respondent/workman showed that he was guilty of minor misconduct

in the past also, and therefore, the past conduct was also of such a

nature that it warranted only imposition of lesser punishment in the

present case. Accordingly, the learned Labour Court set aside the

punishment of removal and directed the reinstatement of the petitioner

with 50% of the back wages.

7. So far as the question of payment of the back wages is concerned,

the learned Labour Court noted two Supreme Court Judgments in the

case titled Hindustan Motors Ltd. Vs. Tapan Kumar Bhattacharya

and Anr. 2002 (6) SCC 41 and Chief Conservator of Forest and Anr.

Vs. Rahmat Ullah 2003 (10) SCC 92 and observed that where there is

no evidence brought on record by the petitioner/management to show

that the respondent/workman was gainfully employed elsewhere

during the long interregnum period of his dismissal to the date of the

decision by the learned Labour Court, he was entitled to the back

wages.

8. I have heard the learned counsel for the parties. The learned

counsel for the petitioner/management has essentially challenged the

impugned award dated 10th April, 2006 passed by the learned Labour

Court on the ground that it has exceeded his jurisdiction by not only

setting aside the punishment which was imposed by the

petitioner/management but has also fallen into an error by not referring

the matter back to the disciplinary authority for consideration of

imposition of punishment afresh in the light of the observation passed

by the Court.

9. It was also contended by the learned counsel for the petitioner

that assuming though not admitting the learned Labour Court was well

within its right to set aside the punishment on the ground of being

excessively harsh, the learned Labour Court ought to have imposed

some punishment in lieu thereof which has not been done in the

instant case. On the contrary, the punishment of the removal has

been simply set aside directing the reinstatement of the

respondent/workman with 50% back wages for no rhyme or reasons.

10. As against this, the respondent/workman has supported the

order passed by the learned Labour Court by contending that the

learned Labour Court was well within its jurisdiction and has rightly set

aside the order of removal on account of the fact that the punishment

which was imposed on the petitioner was admittedly excessively harsh

as petitioner has rendered 13 years of service and in these years of

service there was no such incident where he would have been alleged to

have misbehaved with the checking staff except once. It was urged by

the learned counsel that while imposing the punishment on the

delinquent, the disciplinary authority must also keep in mind the

number of years of service which the delinquent employee has rendered

with the organization so is not to throw him out on the slightest

provocation which will result in deprivation of his benefits which may

accrued to him on completion of certain minimum of years of service.

11. I have carefully considered the submissions made by the learned

counsel for the parties and perused the record. The question of

jurisdiction of the Labour Court under Section 11A of the Industrial

Disputes Act, 1947 is not in dispute. The observations passed by the

learned Labour Court to the effect that in cases of misconduct where

there are allegations of bribery, misappropriation of public funds, theft

of public property etc., they are a class in themselves where there is no

room for showing leniency to the delinquent employee, irrespective of

the quantum of amount which is involved, is correct. There is a loss of

confidence in the employee by the management, and therefore, the

cessation of relationship of master and servant should be permitted to

come into existence in case the management decides to bring it so. But

it is totally wrong on the part of the learned Labour Court to assume

that it is only the cases where there is misappropriation of public funds,

defalcation of accounts, theft of public property which warrant the

imposition of extreme penalty of dismissal/removal by the management.

There is no straight jacket formula which can be evolved by the Courts

where only these punishments ought to be imposed. In a given case,

an act of insubordination by the delinquent like use the filthiest

possible language against his superiors, acts of commission and

omission or physical assault on superior officials or even fellow

colleagues which undermine the chain of command or has the potential

of spoiling the overall discipline in the organization, are also cases

which may warrant the imposition of extreme penalty of

dismissal/removal or compulsory retirement in the wisdom of the

management. There are cases where the proved misconduct of the

delinquent had the charges other than defalcation of accounts or theft

of public property, yet the delinquent had been visited with the extreme

penalty of dismissal or removal. To have an illustration, in Mahindra

and Mahindra Ltd. Vs. N.B. Navaraje AIR 2005 SC 1993 the

dismissal of the delinquent was upheld by the Hon'ble Supreme Court,

where the proved allegations against the delinquent were only use of

filthiest possible language against his superior officers.

12. Apart from this, the Apex Court has repeatedly observed that the

imposition of punishment on the delinquent is primarily job of the

disciplinary authority and the tribunal or the Courts should not tinker

with the same unless and until the same is grossly disproportionately to

the proved misconduct or excessively harsh. Even in cases where the

High Court finds it to be so (and not the tribunal), the general

observations of the Apex Court is that the matter should be remanded

back to the disciplinary authority so as to enable it to consider the

imposition of punishment afresh in the light of what the High Court has

observed. Reliance in this regard can be placed on Union of India Vs.

B.C.Chaturvedi (1995) 6 SCC 497 wherein it was observed as under:

"18. A review of the above legal position would establish that the disciplinary authority, and on appeal the appellate authority, being fact-finding authorities have exclusive power to consider the evidence with a view to maintain discipline. They are invested with the discretion to impose appropriate punishment keeping in view the magnitude or gravity of the misconduct. The High Court/Tribunal, while exercising the power of judicial review, cannot normally substitute its own conclusion on penalty and impose some other penalty. If the punishment imposed by the disciplinary authority or the appellate authority shocks the conscience of the High Court/Tribunal, it would appropriately mould the relief, either directing the disciplinary/appellate authority to reconsider the penalty imposed, or to shorten the litigation, it may itself, in exceptional and rare cases, impose appropriate punishment with cogent reasons in support thereof."

13. Coming back to the facts of the present case the learned Labour

Court has first of all committed a grave error by observing that the

misconduct of the respondent/workman is not a misconduct which was

so serious as to warrant the imposition of punishment of dismissal from

service on him. The conduct of the appellant of which he was charged

was not only acts of commission and omission against the checking

staff but also the incitement of the Conductor not to sign papers as well

as the physical assault on the checking staff. The only inference which

a reasonable person would draw under the aforesaid circumstances

would be that the Conductor did not want the checking staff to check

the distribution of tickets and collection of money perhaps the

Conductor must have been indulging in some kind of malpractices.

Even if this is not inferred the very fact he physically assaulted the

checking staff and incited the Conductor not to sign the papers of

checking staff, create a ruckus only had a potential of marring the

discipline in the organization. Further, this was not an isolated

instance and there have been 13 instances in the past also where the

delinquent respondent/workman not only cautioned, warned or

censured but also visited with the monetary penalty as well as the

stoppage of one increment. One of these instances is also pertaining to

quarrelling with the checking staff and misbehavior. This past conduct

of having almost 13 instances in a span of 13 years or so of service

clearly show the proclivity of the respondent/workman to be

unnecessarily aggressive, obdurate and not submitting himself to the

discipline of the organization. Such conduct of the driver could not be

countenanced. In the light of these facts and circumstances and the

factum of the present incident, it could, by no stretch of imagination, be

said that the conduct of the respondent/workman did not warrant the

imposition of punishment of removal. The learned Labour Court has

grossly erred and exceeded its jurisdiction in holding it to be so and

setting aside the punishment of dismissal.

14. Another illegality and impropriety which the learned Labour

Court has committed is that the punishment which was imposed on the

respondent/workman was set aside on the ground of being excessively

harsh and disproportionate; the learned Labour Court ought to have

remanded the matter back to the disciplinary authority for imposition of

punishment afresh on the delinquent, but the learned Labour Court

has neither remanded the matter back to the disciplinary authority nor

it chose to impose any lesser punishment itself, which it deemed fit,

under the facts and circumstances of the case and commensurate with

the proved misconduct on the respondent/workman. On the contrary,

the respondent/workman has been directed to be reinstated simply

with 50% of the back wages after setting aside the punishment which

order is not sustainable in the eyes of law.

15. For the reasons mentioned above, I am of the considered opinion

that the learned Labour Court has exceeded its jurisdiction and has

passed the award dated 10th April, 2006 in ID No. 335/06/96 which is

not sustainable in the eyes of law and accordingly the same is set aside

and the punishment of removal imposed by the petitioner is restored on

the respondent/workman.

No order as to costs.

FEBRUARY 26, 2009                                   V.K. SHALI, J.
KP