Delhi Transport Corporation vs Sh. Kishan Dev Mishra
2009 Latest Caselaw 882 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                      WP (C) Nos. 4632/2003

                                  Judgment reserved on: 18.03.2009

Delhi Transport Corporation                   ...... Petitioner
                    Through: J.B. Malik, Adv.

                       versus


Sh. Kishan Dev Mishra                          ..... Respondent
                    Through: Mr. Rakesh Kumar with Mr. Suwarn
                             Rajan, Advs.

CORAM:
HON'BLE MR. JUSTICE KAILASH GAMBHIR

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

2.    To be referred to Reporter or not?                  Yes

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

KAILASH GAMBHIR, J. (Oral)

*

1. By this writ petition filed under Article 226 of the Constitution of

India, the petitioner seeks to challenge the impugned order dated

1.8.2002.

2. Brief facts of the case as set up by the petitioner in the present

case are:-

That the respondent was employed as a conductor on 19.5.1984,

having badge No. 21243, T.No. 47043. On 5.6.1992 the respondent

was on duty driving bus No. 9007 which was on route from Delhi to

Shimla and was intercepted at Pipli 13:15 hours by checking staff

consisting of Ved Prakash A.T.I. and Jai Bhagwan, A.T.I. They found

four passengers boarded the bus from Panipat to Pipli to whom the

respondent charged Rs. 58/- but issued only three tickets of Rs. 43

and thus committed misconduct as envisaged under para 19(h),(b)

and (m) of the standing orders governing the conduct of the DTC

employee. On the basis of report of the checking staff the respondent

was suspended on 11.6.92. The respondent was issued the

chargesheet dated 17.6.1992 and thereafter the order for detail

inquiry was passed. The inquiry officer examined the case thoroughly

by examining the checking staff whose statement was recorded and

the respondent was given full opportunity who cross examined the

witnesses during the inqury. The inquiry officer gave his findings and

held him guilty of the charge and submitted his report to the

authority. The depot manager on the basis of the inquiry and the

detailed investigation conducted in the case issued the show cause

notice dated 31.7.92 as to why the respondent should not be

punished for his misconduct. The respondent was given due

opportunity to defend himself and therefore as per the petitioner

principles of natural justice were duly observed by the Enquiry

Officer. The depot manager found reply of the respondent not

satisfactory and after considering the case of the respondent and his

past record, imposed punishment of reduction in initial stage in time

scale of conductor vide NO. BBMD-1/AT(T)/92/3273 dated 12.8.92.

The respondent aggrieved with the punishment awarded by the depot

manager filed an appeal to the regional manager on 1.9.92. The

regional manager after perusing the inquiry report, past record and

the reply filed by the respondent dismissed the appeal on 28.10.92.

The respondent filed another appeal to the Chairman of DTC on

9.11.92. The Chairman not agreeing with the plea of the respondent

dismissed the appeal on 22.1.93. The respondent filed a petition to the

labour commissioner, who forwarded the same to the labour court.

The Labour Court passed the order dated 1.8.02 in favour of the

respondent and against the petitioner thereby setting aside the

punishment. and also directed the petitioner to pay the differences in

wages within one month of the publication of this award otherwise the

management will be liable to pay interest @ 9% per annum. The

respondent filed the execution to claim the arrears of the pay scale

from the beginning as he was not punished by the Labour Court. The

S.D.M. Darya Ganj gave directions to recover the execution amount

by way of attachment. Aggrieved by the said order the petitioner

preferred the present writ petition.

3. Counsel for the petitioner submits that respondent had cheated

the petitioner as he had taken Rs. 58 from the group of passengers of

four persons but he had issued tickets only to three persons for Rs.

43.50 and the tickets were issued from Pipli to Shahabad though the

same should have been issued from Nilokheri to Shahbad. It is further

case of the petitioner that the respondent workman did not permit

checking officials to record the statement of the concerned

passengers. Counsel further submits that due to the said misconduct

of the respondent the enquiry was conducted against him in which the

respondent did not lead any evidence in defence and on the

completion of the enquiry a show cause notice was issued to him

proposing the punishment of reduction of the respondent to the initial

stage at the time scale for the post of conductor. Contention of

counsel for the petitioner is that the said punishment was imposed

upon the respondent keeping in view his serious misconduct of

cheating the petitioner by deliberately not issuing the tickets to the

four passengers and also for issuing the ticket from Pipli instead of

Nilokheri. Counsel further contends that due opportunity was granted

to the respondent workman during the enquiry proceedings and the

guilt of the respondent workman was duly established by the enquiry

officer, but still the Tribunal ignored the findings of the enquiry

officer and the punishment imposed upon him and interfered with the

order of the punishment by setting aside the same without there being

any justifiable reasons. Counsel thus submits that the impugned order

passed by the Tribunal is illegal, perverse and the same is liable to be

set aside.

4. Refuting the submissions of the counsel for the petitioner,

counsel for the respondent submits that finding of the fact as arrived

by the Tribunal need not be interfered with by this Court. Counsel for

the respondent further submits that the Tribunal has reached to the

conclusion that there was no deliberate attempt on the part of the

respondent workman to cheat the petitioner. Counsel further submits

that even the enquiry officer has not given any finding that fourth

ticket was deliberately not issued by the respondent workman.

5. I have heard learned counsel for the parties and perused the

record.

6. It is not in dispute that as per the past record there was no other

case in which the respondent was found to have been involved and

that was the first case and as per the circular of the petitioner dated

4th March, 1997 in the case of commission of irregularity in the case

of cheating for the first time the enquiry officer was required to take

corrective action so as to avoid any kind of reoccurrence of such

nature in future. The Tribunal after taking into consideration the

report of the enquiry officer came to the conclusion that the case of

the respondent was not a case of deliberate cheating and, therefore,

as per the guidelines issued by the petitioner itself the said

punishment could not have been imposed upon the workman. Taking

into account the said finding of the Tribunal, I do not find that there is

any illegality and perversity and, therefore, I am not inclined to

interfere with the impugned order.

7. Dismissed.

March 18, 2009                                KAILASH GAMBHIR, J.
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