Delhi Transport Corporation vs Shri Mehar Singh And Others
2009 Latest Caselaw 4783 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                       W.P.(C) No. 578/2004

%               Date of Decision: 23rd NOVEMBER, 2009


# DELHI TRANSPORT CORPORATION               ..... PETITIONER
!             Through: Ms. Mini Pushkarna, Advocate.

                                 VERSUS

$ SHRI MEHAR SINGH & OTHERS           .....RESPONDENTS

^             Through: Mr. R.D. Sharma, Advocate for
                       respondent No. 1.

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

1. Whether reporters of Local paper may be allowed to see the judgment? NO

2. To be referred to the reporter or not? NO

3. Whether the judgment should be reported in the Digest? NO

S.N.AGGARWAL, J (ORAL) This writ petition is taken up for final disposal by a consent order

because counsel for both the parties have agreed for passing of a

consent order in the matter.

2. The writ petition filed by the DTC is directed against an order dated

29.03.2003 in O.P. No. 202/94 declining approval to the petitioner under

Section 33(2)(b) for removal of the respondent from its service w.e.f.

03.08.1994. The respondent was employed as a Conductor with the

petitioner w.e.f. 14.03.1986. He was served with a charge sheet dated

21.09.1992, which is at page 20 of the paper book. There were two

charges against the respondent. The first charge against him was that

after collecting the due fare of Re.1/- from a passenger, he had not

issued ticket to him. The second charge against him was that on

checking of his cash, excess cash of Rs.3.20/- was found from his cash

bag. Domestic inquiry was held by the petitioner against the respondent

in which he was found guilty of both the charges. The inquiry report

which is Annexure 'G' is at pages 22-24 of the paper book. The

petitioner, on the basis of the inquiry report and after taking into account

his service record, removed the respondent from its service w.e.f.

03.08.1994.

3. Since on the date of removal of the respondent from the service of

the petitioner, an earlier industrial dispute with regard to general

demands of the employees of DTC was pending adjudication before the

tribunal, the petitioner filed an application under Section 33(2)(b) for

approval of the tribunal for removal of the respondent from its service.

This approval application of the petitioner has been dismissed by the

tribunal vide impugned order dated 29.03.2003 on the sole ground that

the passenger from whom the respondent had taken Re.1 fare and had

not issued the ticket to him was not examined by the petitioner in the

domestic inquiry.

4. Ms. Mini Pushkarna, learned counsel appearing on behalf of the

petitioner, has taken me through some judgments of this Court and also

of the Hon'ble Supreme Court wherein it is held that non-examination of

the passenger cannot be a ground to vitiate the inquiry proceedings held

against the delinquent employee. Reference in this regard can be made

to the judgments in Delhi Transport Corporation Vs. Sewa Ram &

Another, 114 (2004) DLT 215; Delhi Transport Corporation Vs. N.L.

Kakkar & Another, 110 (2004) DLT 493 and State of Haryana and

Another Vs. Rattan Singh, AIR 1977 SC 1512.

5. On going through the material available on record which was also

available before the Court below, I am satisfied that there was sufficient

evidence to form a prima facie view regarding misconduct alleged

against the respondent in the charge sheet. It cannot be said to be a

case of victimization. Even the statement of the passenger from whom

the due fare of Re.1/- was collected by the respondent without issuing

ticket to him was there before the tribunal and has also been placed

before this Court which is at page 17 of the paper book. The statement

of the passenger was exhibited before the tribunal as Ex.AW-1/1.

6. Under the circumstances, approval under Section 33(2)(b) ought to

have been granted by the tribunal to the petitioner. At this stage,

Mr. R.D. Sharma, learned counsel appearing on behalf of respondent no.

1 workman, on instructions from his client present in the Court, submits

that the Court may allow the writ petition and set aside the impugned

order. Mr. Sharma has consented for granting approval under Section

3(2)(b) to the petitioner for removal of respondent no. 1 workman from

the service of the petitioner w.e.f. 03.08.1994. However, Mr. Sharma,

counsel appearing on behalf of respondent no. 1, submits that his client

may be given liberty to raise an industrial dispute under Section 10(4) of

the Industrial Disputes Act, 1947 in regard to removal of the respondent

from the service of the petitioner without prejudice to his rights and

contentions as per law. Needless to say that as and when any such

industrial dispute is raised by the respondent workman, the same will be

adjudicated by the Labour Court/Industrial Tribunal in accordance with

law without being influenced by any observation contained in the order

granting approval to the petitioner for removal of the respondent. In

case, the Labour Court/Tribunal finds that the removal of the petitioner

was bad, then it may consider grant of appropriate relief to the

respondent keeping in mind the long delay that has elapsed between the

date of his removal and the date of reference.

7. In view of the foregoing, the impugned order dated 29.03.2003 in

O.P. No. 204/1994 is hereby set aside. This writ petition is allowed.

Liberty is reserved for the respondent to raise an industrial dispute with

regard to his removal from the service of the petitioner in accordance

with law.

The Registry is directed to release the amount deposited by the

petitioner pursuant to Court order dated 10.09.2004 in favour of the

petitioner along with interest accrued thereon, if any.

LCR be sent back.

NOVEMBER 23, 2009                                     S.N.AGGARWAL, J
'MA'