Delhi Transport Corporation vs Rajinder Parkash & Another
2009 Latest Caselaw 2123 Del

        IN THE HIGH COURT OF DELHI AT NEW DELHI

                WPC 16581/2004 & WPC 1198/2007


                                  Judgment reserved on: 20th March, 2009
                                  Judgment delivered on:19.05.2009

Delhi Transport Corporation                                 ......Petitioner

                                  Through Mr.Vinay Sabharwal, Adv

                                      Versus

Rajinder Parkash & Another                             ........ Respondents

                                  Through: Ms.Rekha Palli, Adv


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.

1. This order shall dispose of petitions bearing WPC 16581/2004 and

WPC No. 1198/2007.

2. By way of petition filed under Art. 226 of the Constitution of India,

the petitioner in WP (C) No. 16581/2004 seeks quashing of the order

dated 3.8.2001 whereby the application of the petitioner moved under

Section 33(2) (b) of the Industrial Disputes Act was dismissed and in

W.P. (C) No. 1198/2007 the petitioner therein seeks to challenge the

final Award dated 6.9.2006 whereby the order of the termination was

held illegal and unjustified.

3. The brief conspectus of the facts as set out in the petition is as

under:

The Workman Rajinder Prakash was working as a Conductor and

was deployed at Dushhera Maidan, Faridabad on advance booking

duty on 27.12.88. It was alleged that the checking team checked the

passengers and find that the workman had taken Rs.11/- from a lady

passenger and had issued her two tickets worth Rs.9/- only. On

checking the cash, it was found that the workman was having

Rs.17.50 in excess. The workman was challaned. He refused to sign

on the challan. It was alleged that an enquiry was conducted and the

workman was found guilty of the charges. The Depot Manager by

virtue of powers delegated to him after considering the report of the

enquiry officer, issued a show cause notice dated 10.11.1989 to the

workman to show cause as to why he should not be removed from the

services. He submitted his reply dated 12.12.89. After considering the

reply, it was not found to be satisfactory and therefore, the punishing

authority passed an order to remove the workman from services vide

order dated 16.03.1990. The workman challenged his removal from

the service taking a plea that he had not committed any misconduct

and the allegations leveled against him were false. The workman

further contended that no legal and valid enquiry was held and his

removal from the service was bad.

It was also alleged in the statement of claim that the

management had filed an approval application vide OP No.10/90

before the Industrial Tribunal II, and the enquiry conducted by the

Management was held to be vitiated. The workman was gainfully

employed since the date of his termination and he as well as his family

was suffering due to this wrong and illegal order of the Corporation.

The Management contested the claim of the workman and alleged

that a legal and valid enquiry was held by the management relating to

the misconduct of the workman and he was found guilty of the same.

The disciplinary authority passed the order of removal from service

after considering the reply to the show cause notice submitted by the

workman. The approval application filed by the management was

dismissed by the Industrial Tribunal II by holding that the enquiry was

vitiated.

4. Mr. Vinay Sabharwal & J.S. Bhasin counsel for the petitioner DTC

in WPC No. 16581/2004 and WPC No. 1198/2007, respectively,

contended that the petitioner DTC had made an application for

approval under S. 33 (2) (b) and during the pendency of the approval

application, the workman had also raised an independent industrial

dispute challenging termination of his services and in the said case

the tribunal passed the award against the management only on the

ground that approval had been declined to the management under S.

33 (2) (b) but without giving any independent finding on the

misconduct of the workman was given. The contention of the counsel

was that it is well settled that an industrial dispute cannot be decided

by the tribunal without giving independent findings on the merit of

the case merely on the ground that the approval has been declined.

The counsel relied on DTC vs. Ram Kumar - 1982 (II) LLJ 191 and

DTC vs. Rajbir Singh in WPC No. 18018/2005 decided by this

Court on 23/9/2008, in this regard. The counsel urged that the

tribunal erred in not appreciating that the domestic enquiry was

conducted and during the enquiry the Enquiry Officer had sent three

request letters to the concerned passenger for appearing as witness

in the enquiry but the passenger failed to appear before the enquiry

officer and also that the E.O. does not enjoy the power of summons

and without appreciating this decided to hold that the enquiry was

vitiated and misconduct of the respondent was not proved since the

passenger was not examined as a witness. The counsel contended that

a passenger is not a necessary witness both in enquiry and before the

tribunal and relied on decisions in Ishwar Singh vs. DTC in LPA No.

2269/2006 decided on 19/1/2007; DTC vs. N.L. Kakkar - 2004

(2) CLR 489 (Del) and State of Haryana vs. Ratan Singh - 1977

(34) FLR 264 (SC), in this regard. The counsel submitted that the

jurisdiction of the tribunal under S. 33 (2) (b) of the ID Act is limited

and confined only to examine prima facie case. If prima facie

misconduct of the employee is made out then approval has to be

granted. The counsel urged that in the instant case the checking staff

had been duly examined as witness, both during the enquiry, as well

as before the Industrial tribunal, who supported the charges and thus,

there was sufficient evidence to grant approval. In this regard he

relied on DTC vs. Ram Kumar - 1982 (II) LLJ 191 and Martin

Burn Ltd. vs. Banarjee - 1958 (I) LLJ 255. The counsel averred

that this court cannot re-appreciate evidence and come to its own

conclusion. Counsel further submitted that the settled legal principles

were not followed by the tribunal and the tribunal passed the award

against the management only on the ground that the passenger was

not examined as a witness. The counsel also urged that the

workman's past record is also blemished as he was habitual in over

charging the passengers and pocketing money thereby cheating the

petitioner Corporation.

5. Per contra, Ms. Rekha Palli, counsel for the respondent contended

that the petitions are barred by delay and laches and same should be

dismissed forthwith. The counsel also urged that the Learned Tribunal

having arrived at factual findings based on appreciation of facts duly

proved by leading evidence and based on that the Court came to the

conclusion that there was no misconduct on the part of the

respondent and there being nothing to show that the findings of the

tribunal are perverse, it would be in the interest of justice that no

interference is made in the award. The counsel relied on DTC vs.

Maya & Ors. - 2007 V AD (Delhi) 739; MCD vs. Satyakar Singh

& Anr. - in CW No. 6685/2001 decided on 30/9/2002 and Amrit

Vanaspati Co. Ltd. vs. Khem Chand & Anr. - JT 2006 (6) SC 436

in this regard. The counsel maintained that the judgments relied upon

by the counsel for the petitioner are not applicable in the facts of the

case as it was found by the Ld. Tribunal that neither the lady

passenger was produced or confronted by the checking staff, nor the

checking staff obtained signatures of an independent person on the

complaint of the passenger. The counsel submitted that the past

record of the respondent has been good except for one stoppage of

increment with cumulative effect of an alleged incident dated

12.1.1986, which the respondent could not challenge due to paucity of

resources. The counsel also relied on the decision of the Apex Court in

Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd. vs. Sh. Ram Gopal

Sharma & Ors. - AIR 2002 SC 643, to contend that when approval

is not granted for removal of a workman by the industrial tribunal

then it is deemed that the order of dismissal or discharge was never

passed and the workman is deemed to have continued in service and

thus the order on approval application does not suffer from any

infirmity. The counsel also relied on decision of this court in DTC vs.

Surender Pal - (2007) 142 DLT 595 to contend that findings on

application u/s. 33 (2) (b) given by the tribunal cannot be reversed by

the tribunal in subsequent proceedings under S. 11 A of the ID Act as

the same would amount to sitting in appeal against earlier findings

and would amount to judicial impropriety.

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

record.

7. Matter was admitted and Rule was issued in the instant case vide

order dated 24/8/2006 in writ petition bearing WPC No. 16581/2004,

therefore, the issue of delay and laches does not deserve indulgence

at this stage.

8. Before dealing with the issues raised in the present petitions, it

would be relevant to discuss the legal position. It is now a well-settled

principle of law that the principles of the Evidence Act have no strict

application in a domestic enquiry and the standard of proof both in

civil cases and in departmental enquiries is the same being

preponderance of probabilities. In this regard the Hon'ble Apex court

has observed as under in Cholan Roadways Ltd. v. G.

Thirugnanasambandam,(2005) 3 SCC 241:

16. In Maharashtra State Board of Secondary and Higher Secondary Education v.

K.S. Gandhi5 it was held: (SCC p. 748, para 37)

"37. It is thus well-settled law that strict rules of the Evidence Act, and the standard of proof envisaged therein do not apply to departmental proceedings or domestic tribunal. It is open to the authorities to receive and place on record all the necessary, relevant, cogent and acceptable material facts though not proved strictly in conformity with the Evidence Act. The material must be germane and relevant to the facts in issue. In grave cases like forgery, fraud, conspiracy, misappropriation etc. seldom direct evidence would be available. Only the circumstantial evidence would furnish the proof. In our considered view inference from the evidence and circumstances must be carefully distinguished from conjectures or speculation. The mind is prone to take pleasure to adapt circumstances to one another and even in straining them a little to force them to form parts of one connected whole. There must be evidence direct or circumstantial to deduce necessary inferences in proof of the facts in issue. There can be no inferences unless there are objective facts, direct or circumstantial from which to infer the other fact which it is sought to establish. ... The standard of proof is not proof beyond reasonable doubt 'but' the preponderance of probabilities tending to draw an inference that the fact must be more probable. Standard of proof cannot be put in a straitjacket formula. No mathematical formula could be laid on degree of proof. The probative value could be gauged from facts and circumstances in a given case. The standard of proof is the same both in civil cases and domestic enquiries."

9. Also, it is neither in doubt nor in dispute that the jurisdiction of the

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

Act is a limited one. The jurisdiction of the Industrial Tribunal under

Section 33(2)(b) cannot be equated with that of Section 10 of the

Industrial Disputes Act. The scope of adjudication in a proceeding

under Section 33(2)(b) of the Industrial Disputes Act is limited and

while granting approval it does not sit as a court of appeal

reappreciating the evidence for itself but has to examine the findings

of the enquiry officer on the evidence adduced in the domestic

enquiry to ascertain whether a prima facie case had been made out on

the charges levelled or the findings are perverse. In this regard the

Hon'ble Apex court has observed as under in Cholan Roadways Ltd.

(Supra):

18. The jurisdiction of the Tribunal while considering an application for grant of approval has succinctly been stated by this Court in Martin Burn Ltd. v. R.N. Banerjee6. While exercising jurisdiction under Section 33(2)(b) of the Act, the Industrial Tribunal is required to see as to whether a prima facie case has been made out as regards the validity or otherwise of the domestic enquiry held against the delinquent, keeping in view the fact that if the permission or approval is granted, the order of discharge or dismissal which may be passed against the delinquent employee would be liable to be challenged in an appropriate proceeding before the Industrial Tribunal in terms of the provision of the Industrial Disputes Act. In Martin Burn case6 this Court stated: (AIR p.

85, para 27)

"A prima facie case does not mean a case proved to the hilt but a case which can be said to be established if the evidence which is led in support of the same were believed. While determining whether a prima facie case had been made out the relevant consideration is whether on the evidence led it was possible to arrive at the conclusion in question and not whether that was the only conclusion which could be arrived at on that evidence. It may be that the Tribunal considering this question may itself have arrived at a different conclusion. It has, however, not to substitute its own judgment for the judgment in question. It has only got to consider whether the view taken is a

possible view on the evidence on the record. (See Buckingham & Carnatic Co. Ltd. v. Workers of the Company7.)"

10. There is no dispute to the legal position that in matters where the

conductor is accused of having misappropriated the fare by not

issuing ticket it is not necessary to call the passenger and the

statement of the checking staff would suffice to prove the misconduct.

In this connection decision of the Supreme Court in State of

Haryana v. Rattan Singh reported in (1977) 2 SCC 491 is worth

noting, which is as under:

''It is well settled that in a domestic enquiry the strict and sophisticated rules of evidence under the Indian Evidence Act may not apply. All materials which are logically probative for a prudent mind are permissible. There is no allergy to hearsay evidence provided it has reasonable nexus and credibility. It is true that departmental authorities and administrative tribunals must be careful in evaluating such material and should not glibly swallow what is strictly speaking not relevant under the Indian Evidence Act. For this proposition it is not necessary to cite decisions nor text books, although we have been taken through case law and other authorities by counsel on both sides. The essence of a judicial approach is objectivity, exclusion of extraneous materials or considerations and observance of rules of natural justice. Of course, fair play is the basis and if perversity or arbitrariness, bias or surrender of independence of judgment vitiate the conclusions reached, such finding, even though of a domestic tribunal, cannot be held good. However, the courts below misdirected themselves, perhaps, in insisting that passengers who had come in and gone out should be chased and brought before the tribunal before a valid finding could be recorded. The 'residuum' rule to which counsel for the respondent referred, based upon certain passages from American Jurisprudence does not go to that extent nor does the passage from Halsbury insist on such rigid requirement. The simple point is, was there some evidence or was there no evidence -- not in the sense of the technical rules governing regular court proceedings but in a fair commonsense way as men of understanding and worldly wisdom will accept. Viewed in this way, sufficiency of evidence

in proof of the finding by a domestic tribunal is beyond scrutiny. Absence of any evidence in support of a finding is certainly available for the court to look into because it amounts to an error of law apparent on the record. We find, in this case, that the evidence of Chamanlal, Inspector of the flying squad, is some evidence which has relevance to the charge levelled against the respondent. Therefore, we are unable to hold that the order is invalid on that ground.''

11. As for the legal position regarding whether grant or refusal of

permission by the Industrial Tribunal under Section 33 (2)(b) is not an

adjudication and the industrial adjudication comes only when the

matter is referred under Section 10 of the Labour Court. The issue is

no more res integra as the same has been put at rest by Division

Bench judgment of this Court in DTC Vs. Ram

Kumar and Anr. (1982) II LLJ 191, which has been followed by this

court in DTC vs. Rajbir Singh in WPC No. 18018/2005 decided by

this Court on 23/9/2008. The relevant portion of the Division Bench

judgment is as under:

6. That the jurisdiction under S. 33 of the Act is only to impose a ban on the right of the employer and the only thing that the authority is called upon to do is to grant or withhold the permission, i.e., to lift or maintain the ban. See Automobile : Products of India v. Rukmaji Eala, [1955-I L.L.J. 346]. That case also emphasised the limited nature of the jurisdiction under Section 33. With regard to the scope of enquiry under S. 33 of Industrial disputes Act it is now well settled that "The Tribunal before whom an application is made under that section has not to adjudicate upon any Industrial dispute arising between the employer and the workman but has only got to consider whether the ban which is imposed on the employer in matter of altering the conditions of employment to the prejudice of the workman or his discharge or punishment whether by

dismissal or otherwise during the pendency of the proceedings therein referred to should be lifted. A prima facie case has to be made out by the employer for the lifting be such ban an the only jurisdiction which the Tribunal has is either to give such permission or to refuse it provided the employer is not acting mala fide or is not resorting to any unfair practice of victimization. "See Laxmi Devi Sugar Mills v. Pt. Ram Sarup, [1957-I L.L.J. 17] withstanding this clear law an effort was again made before the Supreme Court to urge that a decision given while approving or refusing permission for dismissal would amount to rest judicata in subsequent adjudication when a reference is made under S. 10. This plea was however, again negative in G Makenzie and Co. Ltd. v. Its Workmen [1959-I L.L.J. 285] wherein it was held that proceeding under Section 33 does not confer any jurisdiction on a Tribunal to adjudicate on a dispute but it merely empowers the Tribunal to give or withhold permission to the employer during the pendency of an industrial dispute to discharge or punish a workman concerned in the industrial dispute'. The plea of rest judicata was unmistakably rejected when the Court further observed as follows :

"As the purpose of S. 33 of the Act is merely to give or withhold permission and not to adjudicate upon an industrial dispute, any finding under S. 33 would not operate as rest judicata and bar the raising of an industrial dispute'.

7. Thus the law is well-settled that S. 33 only imposes a ban. An order of dismissal or discharge passed even with the permission or approval of the Tribunal can form the subject of a dispute and as such referred for adjudication. See Workmen of Fire-stone Tyre and Rubber Co. v. Management. [1973-I L.L.J. 278]. The mainth rust of the argument of Mr. Malhotra, however, seems to rest on the observations made in Bengal Bhatdee Coal Co. v. Ram Prabesh Singh. [1963-I L.L.J. 291]. In that case while disposing of an appeal against the dismissal of a workman which was referred under S. 10 of the Act challenge was made that no finding had been given by the Tribunal that the enquiry was proper and this vitiated the award and that the dismissal was mere victimization. In rejecting this the Supreme Court observed that the Tribunal had apparently held that the enquiry was proper though it has not said so in so many words in its award, nor did it find that the finding of the enquiry officer were perverse or baseless". It, however, also added "that it could hardly be otherwise as it had already approved of the action taken on an application made under S. 33(2)(b) of the Act and if the enquiry had not been proper the Tribunal would not have approved of the dismissal." Mr. Malhotra says that this observation means that if an approval has been given under S. 33(2)(b) is incompetent, because that is the real effect of acceptance of this argument. But this would be against the

settled law laid down by various Supreme court decisions both before and after the decision in the Bengal Bhatddes case that notwithstanding the approval obtained under S. 33(2)(b) for the dismissal of an employee, this dispute can form the subject of a dispute and of a reference under S. 10 for adjudication.

12. Thus, it is manifest from the aforesaid decision of the Division

Bench that grant or refusal of permission by the Industrial Tribunal

under Section 33(2)(b) is not an adjudication and the industrial

adjudication comes only when the matter is referred under Section 10

of the Labour Court to the Tribunal. Thus, an award should be passed

on merits of the case and the case of the management should not be

dismissed merely on the premise that application under S. 33 (2) (b)

of the ID Act was dismissed.

13. In the instant case, the tribunal has observed in para 16 of the

award that the entire case of the management revolves around the

written complaint in the hand writing of the lady passenger who was

not examined before the enquiry officer as well as before the tribunal,

and also since the checking staff was not an eye-witness to the said

incident, therefore, the enquiry proceedings stand vitiated.

14. However, it is established from the records that the aforesaid

passenger who made the complaint was sought to be produced in the

inquiry proceeding and summons were issued to her. But the said

passenger did not appear in the inquiry nor did she send any

information. Clearly, every effort was made by the management and

the inquiry officer to examine the aforesaid passenger witness but

despite best efforts, the passenger witness did not appear in the

inquiry proceeding to depose and establish the allegations made by

her. It is, however, an admitted position that the three checking staff

members were examined during the enquiry proceedings and out of

them since two had expired; only one was examined before the

tribunal and as discussed above, the statement of the checking staff

would suffice to prove the misconduct. Also, there is no evidence on

record to show that any of them had any animosity against the

respondent at any stage. There is no reason as to why any of the said

witnesses would depose falsely against the respondent.

15. The essence of a judicial approach lies in objectivity, exclusion of

extraneous materials or considerations and observance of rules of

natural justice. Undoubtedly, fairplay is the basis of a decision and if

perversity or arbitrariness, bias or surrender of independence of

judgment vitiates the conclusions reached, such finding even though

of a domestic tribunal, cannot be held good. However, the Court

below misdirected itself, perhaps, in insisting that passenger who had

come in and gone out should be chased and brought before the

tribunal before a valid finding could be recorded.

16. In view of the aforesaid legal position, I feel that the court below

erred in passing the award in writ petition bearing WPC No.

16581/2004 against the management only on the ground that the

passenger had not been examined as a witness.

17. Also, as discussed above, the award which is not a judgment on

merits cannot stand the test of judicial scrutiny and the impugned

award in writ petition bearing WPC No. 1198/2007 is, therefore, set

aside.

18. The judgments relied upon by the counsel for the respondent

are not applicable in the facts of the present case in view of the

foregoing discussion.

19. In view of the aforesaid, both the petitions are allowed and

the order dated 3/8/2001 in writ petition bearing WPC No.

16581/2004 and award dated 6/9/2006 in writ petition bearing WPC

No. 1198/2007 are hereby quashed and W.P (C) No. 1198/2007 is

remanded back to the Tribunal for fresh adjudication of reference on

its merits.

May 19 ,2009                            KAILASH GAMBHIR, J