Delhi Transport Corporation vs Shri Attar Singh
2009 Latest Caselaw 2792 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

              +       W.P.(C.) No.s 743/2006 & 747/2006

%                  Date of Decision: 23rd July, 2009


# DELHI TRANSPORT CORPORATION              ..... PETITIONER
!             Through: Mr. Ataul Haque, Advocate.

                                      VERSUS

$ SH. ATTAR SINGH                             .....RESPONDENT

^              Through: Mr. S.S. Sisodia, Advocate.

CORAM:
Hon'ble MR. JUSTICE S.N. AGGARWAL

1. Whether reporters of Local paper 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

S.N.AGGARWAL, J (ORAL)

Both these writ petitions are proposed to be disposed of by this

common judgment because they both relate to removal of the

respondent from service of Delhi Transport Corporation w.e.f.

27.07.1993.

2. Briefly stated, the facts of the case relevant for the disposal of the

present writ petition are that the respondent was appointed as a

Conductor with Delhi Transport Corporation w.e.f. 01.10.1979. On

03.05.1993, when he was on duty on bus no. 8060 route no. 986 from

Jahangirpuri to Rohini Sector-9, his bus was checked by the checking staff

when it reached at 'Uttari Pitampura Bus Stand' and it was found that the

respondent had issued three re-sold tickets No. 559/75057-75059 of

denomination of Rs.2/- each and they were found punched in down

direction stage though the bus was going in up direction. The respondent

was charge-sheeted vide charge-sheet dated 17.05.1993, typed copy

whereof is at pages 35-37 of the Paper Book.

3. Domestic inquiry was held against the respondent and the Inquiry

Officer vide his report which is undated and is at pages 53-58 of the

Paper Book found the petitioner guilty of charges attributed to him. The

disciplinary authority after considering the report of the Inquiry Officer

agreed with his report and decided to remove the respondent from its

service and accordingly, the respondent was removed from the service of

DTC w.e.f 27.07.1993.

4. Since an industrial dispute relating to general demands raised by

the employees of DTC was pending adjudication before the Industrial

Adjudicator, the petitioner Corporation filed an application under Section

33(2)(b) of the Industrial Disputes Act, 1947 for approval of removal of

the respondent from its service and the said application was registered

before the Industrial Tribunal as OP No. 445/1993. The Industrial Tribunal

vide its order dated 19.12.2003 in OP No. 445/1993 declined to grant the

approval for removal of the respondent.

5. While the approval application of the petitioner under Section

33(2)(b) was pending before the Industrial Adjudicator, the respondent

also raised a separate industrial dispute with regard to his removal from

the service of DTC and that dispute was referred by the appropriate

Government for adjudication before the Industrial Tribunal and was

registered as ID No. 97/2001. The Industrial Tribunal vide its order dated

21.10.2003 decided the inquiry issue against the petitioner Corporation

holding that the inquiry conducted against the respondent was vitiated

for non-observance of principles of natural justice. Thereafter, the

Tribunal below vide impugned award dated 17.05.2005 held the removal

of the respondent from the service of the petitioner Corporation to be

illegal and directed the petitioner Corporation to reinstate him in its

service with full back wages.

6. Aggrieved by the impugned award dated 17.05.2005 passed by the

Industrial Adjudicator, the petitioner Corporation has filed these two writ

petitions seeking to challenge the order of rejection of approval dated

19.12.2003 and also the impugned award dated 17.05.2005 which direct

reinstatement of the respondent with full back wages.

7. Mr. Ataul Haque, learned counsel appearing on behalf of the

petitioner Corporation has argued that the Court below has committed an

error in declining approval for removal of the respondent on the ground

of non-examination of the passengers from whom re-sold tickets were

recovered at the time of checking of the bus in which the petitioner was

on duty at the time said bus was checked on 03.05.1993. He has relied

upon an earlier judgment delivered by this Court in DTC Vs. Shri Gyan

Chand 2009 II AD (Delhi) 571 wherein this Court had taken note of two

judgments of the Hon'ble Supreme Court in State of Haryana Vs.

Rattan Singh 1977 (1) SLR 750 and Cholan Roadways Limited Vs.

G. Thirugnanasambandam 2005 I AD (SC) 390 and had held that

non-examination of the passenger during the inquiry will not vitiate the

inquiry proceedings.

8. Mr. Ataul Haque, learned counsel appearing on behalf of the

petitioner has further argued that the charge of giving re-sold tickets to

the 3 passengers attributed against the workman (respondent herein)

was proved by the petitioner Corporation before the Inquiry Officer by

producing the A.T.I. who had checked the bus and, therefore, his

testimony cannot be faulted with to say that the respondent was not

guilty of the charge leveled against him.

9. I have given my anxious consideration to the above argument

advanced on behalf of the petitioner but I could not persuade myself to

agree with any of his submissions. The judgment in Gyan Chand's case

(supra) relied upon by the petitioner's counsel is not applicable to the

facts of the present case. Each case has to be decided on the merit of its

own case. In Gyan Chand's case, there was overwhelming evidence

before the Inquiry Officer to record finding of guilt against the delinquent

conductor, which is missing in the present case. It is no doubt true that

non-examination of the passenger, either during the course of domestic

inquiry or before the Industrial Adjudicator, will not be fatal to the inquiry

held against the delinquent workman in case the charges leveled against

him are otherwise proved from evidence produced before the Inquiry

Officer. In the present case, the inquiry file has been placed before me

and I have gone through the same with the assistance of the counsel

appearing on behalf of DTC.

10. Mr. Ataul Haque, learned counsel appearing on behalf of the

petitioner Corporation does not dispute that the only evidence produced

before the Inquiry Officer was that of T.I. Shri Daulat Ram, whose

testimony is annexed along with WP(C) No. 743/2006 and is at pages 44-

45 of the Paper Book. Except this testimony of Shri Daulat Ram, there

was no other evidence produced by the petitioner management before

the Inquiry Officer. A bare perusal of the Inquiry Report would show that

the inquiry held against the petitioner is vitiated for non-observance of

principles of natural justice. The inquiry report is at pages 53-58 of the

Paper Book of WP(C) No. 743/2006.

11. As per the case of the petitioner Corporation, the report regarding

incident of 03.05.1993 was put up before the concerned authorities of the

petitioner Corporation by T.I. Shri Dalel Singh Rana. He submitted his

report after two days of the checking of the bus on 05.05.1993. His

report, which he gave to the concerned authorities of the petitioner

Corporation, is at pages 32-33 of the Paper Book of WP(C) No. 743/2006.

T.I. Shri Dalel Singh Rana who allegedly checked the bus did not state in

his report dated 05.05.1993 that T.I. Shri Daulat Ram was also with him

at the time of checking of the bus. T.I. Shri Dalel Singh Rana was not

examined by the petitioner Corporation either before the Tribunal below

or before the Inquiry Officer.

12. Counsel on behalf of the petitioner Corporation says that Shri Dalel

Singh Rana was not examined either before the Tribunal below or before

the Inquiry Officer as he had retired from the service of the petitioner

Corporation. There is nothing on record to suggest as to when Shri Dalel

Singh Rana retired from the service of the petitioner Corporation. I am of

the view that even if T.I. Dalel Singh Rana had retired still he could have

been called by the management and examined before the Inquiry Officer

as he was the vital witness to prove the alleged misconduct against the

respondent.

13. T.I. Daulat Ram, the sole witness examined by the management

before the Inquiry Officer, does not say in his statement that T.I. Shri

Dalel Singh Rana was also with him at the time of checking of the bus.

However, despite this, the Inquiry Officer has taken into consideration the

report of Shri Dalel Singh Rana dated 05.05.1993 into consideration

without his being produced for his evidence before him. The contents of

the report of Shri Dalel Singh Rana dated 05.05.1993 have been taken

into account by the Inquiry Officer without giving an opportunity to cross-

examine and test his veracity to the delinquent workman. Is it not

violative of principles of natural justice?

14. I am of the view that the bread and butter of a man should not be

snatched by relying upon adverse material against him at his back

without giving an opportunity to him to prove the genuineness of such

material. Such a procedure followed by the Inquiry Officer apparently is

violative of principles of natural justice. In my considered opinion, the

charge of selling of used tickets by the respondent to the passengers has

not been proved by the petitioner Corporation by way of satisfactory

evidence on this aspect.

15. For the foregoing reasons, the removal of the respondent from the

service of the petitioner Corporation by no means can be held to be

justified. For that reason, the impugned orders do not call for any

interference by this Court in exercise of its extraordinary discretionary

writ jurisdiction under Article 226 of the Constitution of India.

16. The necessary consequence of affirming the impugned orders will

be that the respondent will be deemed to be continuing in the

employment of the petitioner Corporation right from the date he was

removed from its service w.e.f. 27.07.1993. About 16 years have now

passed since the date of removal of the respondent. During all these

years, he did not do any work with the petitioner Corporation presumably

because he was not allowed to resume duties despite award of the

Industrial Adjudicator directing the petitioner Corporation to reinstate

him. This leaves the Court to decide the question of back wages to which

the respondent may be entitled in law.

17. Mr. S.S. Sisodia, learned counsel appearing for the respondent, on

instructions from his client present in Court, says that his client will be

satisfied in case he is awarded only 25% back wages for the period

intervening between the date of his removal and the date of his

reinstatement.

18. This concession given by the counsel for the respondent is most

reasonable. The respondent is, therefore held entitled to 25% back

wages for the period from the date of his removal, i.e. 27.07.1993 till

today and he will be entitled to full wages/salary henceforth. The

petitioner is directed to allow the respondent to join his duties with it

tomorrow itself so that the petitioner may not have to pay for no work

done by him. Needless to say that the respondent will be entitled to all

consequential benefits including continuity of service, seniority, notional

promotion, etc. which he otherwise would have got but for the impugned

removal.

19. In view of the above, both these writ petitions stand disposed of.

JULY 23, 2009                                  S.N.AGGARWAL, J
'ma/bsr'