Delhi Transport Corporation vs Nem Singh & Ors.
2009 Latest Caselaw 787 Del

*                 IN THE HIGH COURT OF DELHI AT NEW DELHI

+                        WP (C) Nos. 3754/2003


%                                      Judgment delivered on: 12.03.2009


Delhi Transport Corporation                        ...... Petitioner
                    Through: Ms. Saroj Bidawat, Advocate

                         versus


Nem Singh & others                               .... Respondents
                               Through: Mr. Ms. Rashmi B. Singh, Advocate

CORAM:
HON'BLE MR. JUSTICE KAILASH GAMBHIR

1.        Whether the Reporters of local papers may
          be allowed to see the judgment?                         Yes

2.        To be referred to Reporter or not?                      Yes

3.        Whether the judgment should be reported
          in the Digest?                                          Yes


KAILASH GAMBHIR, J. (Oral)

*

By way of this writ petition filed under Articles 226 and

227 of the Constitution of India the petitioner seeks to challenge the

impugned award dated 12.7.2002 passed by the Labour Court No.VII,

Delhi.

Brief facts relevant for deciding the present petition are as

under:-

The respondent workman was appointed as Conductor by

the petitioner Management on 15.12.1988. On 16.8.1993 while

performing his duty as a conductor with bus No. DBP-6538 on inter-

state route from Delhi to Farukhabad he was caught by the checking

staff for non-issuing ticket to a passenger after collecting less fare.

As per the petitioner management this act of the workman

tantamounts to mis-conduct of dis-obeying the rules of the

Corporation showing negligence to his duty and put the corporation to

loss and lack of interest in the Corporation work. Due to the

aforesaid misconduct of the respondent the petitioner management

decided to hold the domestic enquiry. On 10.9.1993 chargesheet was

issued to him with the allegations that he did not issue the ticket to

the passenger after collecting the lesser fare. The enquiry officer

conducted the enquiry and the workman defended his

case. The enquiry officer found the respondent guilty and submitted

the report to the Depot Manager for further action who in turn issued

show cause notice vide memo dated 3.1.1994 to the respondent

workman. The workman did not submit any explanation to the show

cause notice and the Disciplinary Authority after fully considering the

case found him guilty and passed an order of removal from services.

After removal from the service, the workman filed statement of claim

before the Conciliation Officer who referred the dispute for

adjudication to the Labour Court where the following issue was

framed :-

"Whether the domestic enquiry was not conducted according to the principles of natural justice and therefore not valid or proper?"

The Labour Court vide order dated 22.7.2000 held that a

fair and proper enquiry was not conducted against the workman in

accordance with the principles of natural justice and the issue was

decided in favour of the workman which resulted in the passing of an

award dated 12.7.2002 wherein the workman has been reinstated

with continuity of service and full back wages. Aggrieved with the

said order and award the management has preferred the present

petition.

Ms. Saroj Bidawat counsel for the petitioner submits that

the respondent/workman had misconducted himself by not issuing the

ticket to the passenger and he was caught red handed by the checking

staff. Counsel for the petitioner submits that the Labour Court has

not believed the petitioner management on the ground that the

passenger from whom fare was collected but ticket was not given was

not examined by the petitioner before the Inquiry Officer as well as

before the Labour Court. The contention of the counsel for the

petitioner is that as per the settled law there is no necessity of

examining the passenger to prove misconduct on the part of the

conductor as the passenger cannot be forced to give evidence and

suffer the harassment of coming before the Enquiry Officer or before

the Court. Counsel thus contends that the previous conduct of the

respondent workman was sufficient enough to show that earlier also

he had mis-conducted himself and taking in to view the totality of the

circumstances the Labour Court ought to have upheld the findings of

the Enquiry Officer.

Refuting the submissions of the counsel for the petitioner,

counsel for the respondent submits that vide detailed order dated

22.7.2000 passed by the Labour Court it was held that a fair and

proper inquiry in strict observance of the principles of natural justice

was not conducted against the respondent/workman. Counsel for the

respondent further submits that after the said findings on the

preliminary issue, the petitioner management was afforded fresh

opportunity to establish the misconduct on the part of the respondent

but yet the petitioner failed to avail the number of opportunities

granted by the Court. Counsel thus urges that once the petitioner

management itself had failed to prove the charges of mis-conduct

against the respondent/workman therefore the labour court rightly

gave the directions for his reinstatement with continuity of service

and full back wages .

I have heard counsel for the parties and gone through the

record.

Perusal of order dated 22.7.2000 clearly shows that the

Labour Court had taken into consideration the findings given by the

Enquiry Officer wherein it has observed that the conduct of the

respondent workman is apparent that he asked the passenger to pay a

sum of Rs.7.50 which was a due fare and at that point of time the raid

was conducted. The stand of the respondent workman before the

Enquiry Officer was that due fare amount of Rs.7.50 was payable by

the passenger and not Rs.5/- and therefore the same was not accepted

by him and when he was demanding the said amount of Rs.7.50, the

raid was conducted and it was assumed as if the respondent workman

had refused to give the tickets to the passenger. Labour Court also

observed that the passenger witness was not produced before the

Enquiry Officer and even no record was produced before the Court to

show that as to what steps were taken by the petitioner management

to summon the said witness before the Enquiry Officer. Taking non-

appearance of the said passenger before the Enquiry Officer as

adverse, the Tribunal found that in the absence of the testimony of

the passenger, the version given by the respondent workman has to

be accepted as correct. Another important factor which was taken

into consideration by the Labour Court was that the management had

duly admitted in their reply to the statement of claim that due to

shortage of time the cash with the respondent workman could not be

checked. It was also admitted by the management during the cross-

examination of WW1 that the workman was not given the list of

witnesses and the documents along with the charge sheet. Taking

into consideration the totally of these circumstances, the labour court

found that domestic enquiry was not conducted by the petitioner

management in accordance with the principles of natural justice. It

is well settled that the procedure at the enquiry must be consistent

with the principles of natural justice and the principles of natural

justice demand that the deligent workman should be given full

opportunity to defend himself and for that purpose the relevant

documents and list of witness should have been supplied to him. In

this regard, it is no more res integra that a copy of the document

which has not been relied upon in the course of the departmental

enquiry, is not required to be supplied to the delinquent workman, but

those documents whereupon reliance has been placed by the

department management is required to be supplied. In this regard

the relevant para of judgment of the Apex Court reported in State of

U.P. Vs. Shatrughan Lal - (1998) 6 SCC 651 is as under :

"4. Now, one of the principles of natural justice is that a person against whom an action is proposed to be taken has to be given an opportunity of hearing. This opportunity has to be an effective opportunity and not a mere pretence. In departmental proceedings where charge-sheet is issued and the documents which are proposed to be utilised against that person are indicated in the charge-sheet but copies thereof are not supplied to him in spite of his request, and he is, at the same time, called upon to submit his reply, it cannot be said that an effective opportunity to defend was provided to him. (See: Chandrama Tewari v. Union of India1; Kashinath Dikshita v. Union of India2;

State of U.P. v. Mohd. Sharif3.)

No doubt that it is not essential to examine the passenger to prove

misconduct of the conductor. But there has to be some evidence to

hold the delinquent conductor guilty of misconduct. In the instant

case, even after the said findings on the issue No.1, the petitioner

management failed to adduce any evidence to substantiate the

charges of mis-conduct against the respondent workman. The labour

court after taking into consideration the fact of the respondent being

unemployed gave the direction for his reinstatement with full back

wages. I do not find that there is any illegality or perversity in the

impugned award. There is no merit in the present petition. The same

is hereby dismissed.

March        12, 2009                    KAILASH GAMBHIR, J.
pkv