Delhi High Court

Delhi Transport Corporation vs Shri Subhash Chand on 9 December, 2010

Author: Indermeet Kaur

R-139
*    IN THE HIGH COURT OF DELHI AT NEW DELHI


%                  Judgment Reserved on: 07.12.2010
                  Judgment Delivered on: 09.12.2010

+                        RSA No.167/2003


       DELHI TRANSPORT CORPORATION       ...........Appellant
                Through: Mr.J.N.Aggarwal & Mr.Mayank Joshi,
                         Advocates.

                   Versus

       SHRI SUBHASH CHAND                        ..........Respondent
                Through: None.

       CORAM:
       HON'BLE MS. JUSTICE INDERMEET KAUR

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

     2. To be referred to the Reporter or not?             Yes

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

INDERMEET KAUR, J.

1. The present appeal has impugned the judgment and decree

dated 15.5.2003 which had endorsed the finding of the Trial Judge

dated 07.2.1996 whereby the suit of the plaintiff Subhash Chand

had been decreed in his favour.

2. The plaintiff had filed a suit for permanent and mandatory

injunction with a prayer that a declaration be passed declaring that

the order of punishment dated 16.8.1991 (whereby the plaintiff

was awarded punishment of reduction in his pay scale from

Rs.1130/- to his initial pay scale of Rs.950/-) be declared

unwarranted and void ab initio with a direction that the defendant

be directed to pay the salary of the plaintiff in terms of his pay

scale of Rs.1130/-.

3. Plaintiff was employed with the DTC as a conductor. He was

in the pay scale of Rs.950-20-1150. He was made a victim of the

malpractices of the checking staff. Plaintiff was performing his

duties honestly and diligently but due to the connivance of some of

the members of the checking staff of the DTC, false allegations had

been levelled against him pursuant to which a charge sheet had

been filed against the him. This was on 11.11.1997. Enquiry was

held which was not in accordance with the procedure established

by law and was in violation of the principles of natural justice. No

opportunity of fair hearing or to defend his case had been granted

to the plaintiff. He was not afforded proper assistance; he was

forced to sign on blank papers; the witnesses of the department

were tutored; report of the enquiry officer was illegal, unjust and

perverse. The punishment order dated 16.8.1991 is liable to be

set aside.

4. The written statement had disputed the allegations in the

plaint. It was stated that the suit was barred and liable to be

dismissed under Section 41(h) of the Specific Relief Act. The

plaintiff being a "workman" it was the "Labour Court alone which

had jurisdiction to try the present suit". The conduct of the

plaintiff even otherwise disentitled him to any relief.

5. On the pleadings of the parties, the following four issues

were framed:

1.Whether the plaintiff is entitled to decree for declaration alongwith consequential relief of decree for mandatory injunction as prayed for? OPP

2.Whether the suit of the plaintiff is liable to be dismissed in view of Section 41(h) of the Specific Relief Act and the plaintiff being workman labour court has the jurisdiction to try and entertain the grievance of the plaintiff as alleged in para 2 of the preliminary objection? OPD

(iii) Whether the suit of the plaintiff is also liable to be dismissed in view of Section 41(i) of the Specific Relief Act as alleged in para 3 o the preliminary objection in the written statement ?OPD

(iv) Relief.

6. The oral and documentary evidence was examined. It was

held that the Civil Court has jurisdiction whenever the Enquiry

Officer has acted beyond the scope of his power and there are

allegations of violation of principles of natural justice. It has come

on record that the delinquent had filed an appeal against the order

of his punishment but the appeal remained undecided; the enquiry

proceedings had taken unnecessarily long. The penalty was found

to be harsh and in violation of principles of the natural justice. Suit

of the plaintiff was accordingly decreed in his favour. It was

directed that that the original pay scale of Rs.1130/- be accorded to

the plaintiff with other consequential reliefs.

7. In appeal vide impugned judgment dated 15.5.2003 the order

of the Trial Court was upheld. Issue no.1 was dealt with in detail.

On the re-examination of the oral and documentary evidence, the

Court returned a fact finding that the Enquiry Officer was biased

and influenced by the checking staff; the finding of the Enquiry

Officer that the act of the delinquent in handing over an un-

punched ticket to the checking staff amounted to an admission of

guilt was an incorrect finding; there was no evidence before the

Enquiry Officer to return a finding. The impugned judgment had

noted that the departmental appeal had been filed by the

delinquent on 25.09.1991 but even till the filing of the suit i.e. up

to 25.8.1993 the same had not been disposed of. The enquiry had

also remain pending for four long years, during which period the

delinquent was placed under suspension. The judgment of the

Trial Court was upheld.

8. This is a second appeal. After its admission on 25.10.2004,

the following substantial questions of law were formulated; they

inter alia read as follows:

"1.Whether the civil suit filed by the Respondent, a workman within the meaning of Section 2(S) of the Industrial Disputes Act, 1947, was maintainable?

2. Whether the report dated 10th August, 1990 passed by the Inquiry Officer could have been set aside by the Civil Court?"

9. The respondent had been served but in spite of service he

has chosen not to appear. It is noted in the record.

10. Appellant has placed reliance upon a judgment of the Apex

Court reported in (2008) 2 SCC 350 Chief Engineer, Hydel Project

& Ors. Vs. Ravinder Nath & Ors. to substantiate his submission

that the present being a case of an "industrial dispute" the

jurisdiction of the Civil Court was barred. It is submitted that in

the case reported in (2005) 7 SCC 447 Rajasthan SRTC Vs. Zakir

Hussain the Apex Court had clarified the nature of the reliefs

which would fall within an "industrial dispute" barring the

jurisdiction of the Civil Court. Applying the ratio of the said

judgment, the jurisdiction of this court is barred; the dispute raised

by the delinquent is an "industrial dispute".

11. It is a well settled that a Court will not normally sit in appeal

over the findings arrived of by the Enquiry Officer; the Court is not

to examine or re-examine the evidence adduced before the Enquiry

Officer. It is only in exceptional cases when the findings of the

Enquiry Officer are perverse or opposed to the principles of natural

justice that an interference is warranted by the Civil Courts.

12. The pleadings before the Civil Court as is evident from the

plaint were that the Enquiry Officer had violated the rules of

natural justice; no opportunity of fair hearing has been granted to

the delinquent; there was no evidence before the Enquiry Officer to

draw a finding of guilt against the delinquent; all this was done

with the active connivance of the officers of the checking staff of

the DTC pursuant to which the delinquent had been victimized and

fallen a prey to them. The punishment of reduction of his pay scale

of Rs.1130/- to the initial pay scale of Rs.950/- was unwarranted

and disproportionate to the charge levelled against the delinquent

which was to the effect that delinquent in his capacity as a

conductor had not issued tickets to the travelling passengers.

The Supreme Court in the case of Delhi Transport Corporation Vs.

DTC Mazdoor Congress & Ors. reported in AIR 1991 SC 101 had

held as follows:

"It is now well settled that the „audi alteram partem‟ rule which is essence, enforces the equality clause in Article 14 of the Constitution is applicable not only to quasi-judicial orders but to administrative orders affecting prejudicially the party-in-question unless the application of the rule has been expressly excluded by the Act or Regulation or Rule 1 Rules of natural justice do not supplant but supplement the Rules and Regulations.

The rights of the Government Companies and Public Corporations which are State instrumentalities within meaning of Article 14 and their employees cannot be governed by the general principle of master and servant, and the management cannot have unrestricted and unqualified power of terminating the services of the employees."

13. The two fact finding Courts have returned a positive finding

that the principles of natural justice have been violated; the orders

of the Enquiry Officer were perverse; based on no evidence; the

impugned judgment had noted that there was no evidence in the

nature of the testimony of a passenger or a co-passenger who could

state that the delinquent was not issuing tickets.

14. The Supreme Court in the case of Chief Engineer, Hydel

Project (supra) had held that where a dispute is an "industrial

dispute" arising out of right or a liability under the general

common law and not under the Industrial Disputes Act, the

jurisdiction of the Civil Court is in alternative leaving it to the

election of the suitor concerned to chose his remedy for the relief