Gaje Singh vs Union Of India & Another
2009 Latest Caselaw 2012 Del

*            THE HIGH COURT OF DELHI AT NEW DELHI

+                 Writ Petition (Civil) No.16784/2006

                                         Reserved on : 18.3.2009
                                     Date of Decision : 13.5.2009

Gaje Singh                                         ......Petitioner
                                   Through : Ms. Kadambri Puri,
                                             Advocate.

                               Versus

Union of India & Another
                                                ...... Respondents
                                   Through : Mr. J.B. Malik,
                                             Advocate.

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        YES
      in the Digest ?

V.K. SHALI, J.

1. This is a writ petition filed by the petitioner for quashing of

the orders dated 5th November, 2005 and 21st July, 2004 passed

by the Industrial Tribunal, Karkardooma Courts, Delhi in ID No.

130/94 as well as the orders dated 30th May, 2001 and 21st

November, 2001 passed by the learned Labour Court on the

application filed by the respondent/management under Section

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

for the imposition of punishment of removal of the

petitioner/workman from the post of Conductor.

2. Briefly stated facts of the case are that the petitioner was

employed as a Conductor with the respondent/management on

19th January, 1979. The petitioner was on duty on bus no.

9458 route no. 828. The bus of the petitioner was checked by

the checking staff headed by TI Shiv Narain at Kher Khari Jatmal

about 8.00 AM. It was noticed that three passengers alighted

from the bus but they were not having valid tickets. On checking

the passengers, it was learnt that the Conductor had collected

the due fair of Rs. 1.50 paisa from them but had not issued them

tickets. The cash of the respondent was found in excess by Rs.

132.85 paisa. On the basis of the report of the checking staff,

the Depot Manager of D.K. Depot issued chargesheet dated 30th

April, 1991 to the respondent for committing misconduct within

the meaning of para 4(ii) & 19 (b, h & m) of the Standing Orders

governing the conduct of the DTC employees.

3. An inquiry was held and the petitioner was given a full

opportunity to defend himself. The inquiry was conducted

according to the rules and regulations and the principles of

natural justice and the report of the Inquiry Officer held that the

petitioner has misconducted himself. The petitioner was

thereafter visited with the punishment of removal.

4. By virtue of the order dated 30th May, 2001 the learned

Industrial Tribunal-II upheld the validity of the inquiry on the

ground that the same was in accordance with principle of natural

justice and full opportunity was given to the petitioner to defend

himself. The petitioner was visited with the punishment of

removal. The removal of the petitioner was approved by the

learned Industrial Tribunal under Section 33(2)(b) of the

Industrial Disputes Act, 1947 holding that there was a ground

for imposition of punishment of removal and the management

had complied with the statutory provision by dispatching a

monthly salary also to the petitioner.

5. Simultaneously, the petitioner had also on account of

removal got a reference made to the learned Labour Court on the

following terms:

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

6. This reference was decided after framing of issues and so

far as the management is concerned, it simply approved the

earlier order of the Industrial Tribunal holding the inquiry to be

inconsonance of the principles of natural justice, and

accordingly, it came to the conclusion that the domestic inquiry

was fair and proper in accordance with the principles of natural

justice. It decided the reference against the petitioner in favour

of the management vide order dated 21st July, 2004 in ID No.

130/94. In the same ID the quantum of punishment of removal

was also challenged.

7. On this reference also the learned Labour Court-II on 5th

November, 2005 upheld the imposition of punishment of removal

of the petitioner.

8. Feeling aggrieved by the aforesaid impugned orders/award

the petitioner has challenged the same by way of present writ

petition.

9. I have heard the learned counsel for the parties and

perused the record.

10. The first contention of the learned counsel for the petitioner

has been that merely on account of the fact that the cash was

found in excess by Rs.132.85 did not mean that the petitioner

had misconducted himself by not issuing the tickets, and

therefore, the learned Industrial Tribunal as well as the learned

Labour Court have faltered on this score.

11. I do not agree with this contention of the learned counsel

for the petitioner that the petitioner has not misconducted on

account of cash being found in excess. The question which

arises for consideration is whether the finding of the cash in

excess with the petitioner constitutes misconduct as has been

held by the learned Labour Court. It is not open to this Court to

sit as Court of appeal to go into this aspect of the matter and

reassess the evidence and come to its own conclusion, which if

contrary to the one arrived by the Labour Court below and then

substitute the same. The parameters of the judicial review are

that the quality of decision is not to be seen but only the process

in which it is arrived is to be seen.

12. Secondly, the very fact that cash was found in excess and

on spot enquiry the checking staff had given a report that three

of the passengers had alighted without ticket who had admitted

having paid a fair and yet not got the ticket is sufficient to

establish that the petitioner had misconducted himself,

therefore, this contention of the learned counsel for the petitioner

does not have any merit.

13. Another contention which has been made by the learned

counsel for the petitioner is to the effect that the punishment

which has been imposed on the petitioner is grossly

disproportionate to the proved misconduct. The learned counsel

for the petitioner also referred to the same judgments which have

been cited before the learned Labour Court and dealt with in the

order dated 5th May, 2005.

14. I have gone to the said authorities. I do not find that any

straight jacket formula can be laid down with regard to the

imposition of punishment especially in cases where there are

allegations of financial bungling, embezzlement, defalcation of

accounts, breach of trust and misuse of the cash handed over to

a delinquent employee. It is not a question of quantum of money

which may have been defalcated, misused or collected on behalf

of the management yet not of unaccounted for. It is the factum

of loss of trust which has been imposed by the management in

the delinquent which warrants very stringent punishment so that

not only it is deterrent to the delinquent employee but also to

others who handle public money, that public money cannot

swindled by persons by misusing their position. The Hon'ble

Supreme Court in AP SRTC Vs. Raghuda Siva Sankar Prasad

AIR 2007 SC 152 has held that having admitted the guilt before

the inquiry officer and having returned the property would not

warrant showing of sympathy to the delinquent in the matter of

punishment. What is important in such cases is not the value of

the article, which is the subject matter of theft but the question

of loss of confidence by the employer, and accordingly, the

removal of the workman was not interfered with.

15. Keeping in view this principle, this Court feels that the

punishment of removal which has been imposed on the petitioner

in the instant case where he was acting in a capacity of

Conductor and was issuing tickets he was supposed to issue

tickets on collection of money, but by misusing the same position

and by collecting the money and yet not issuing the tickets he

has breached the faith reposed in him by the employer. He

deserves a stringent punishment which has been imposed on

him and this Court, accordingly, feels that punishment which

was imposed on the petitioner is not shockingly disproportionate.

16. Keeping in view the facts of the case, accordingly, this

Court feels that there is no merit in the writ petition so far as the

challenge of the orders/awards dated 5th November, 2005, 21st

July, 2004, 30th May, 2001 and 21st November, 2001,

accordingly, the writ petition is dismissed as being without merit.

No order as to costs.

V.K. SHALI, J.

MAY 13, 2009 KP