Delhi Transport Corporation vs Sh. Jai Pal Singh & Others
2010 Latest Caselaw 867 Del

*               IN THE HIGH COURT OF DELHI AT NEW DELHI


+                            W.P.(C) No. 3119/2007



%                                     Judgment delivered on: 16.02.2010



Delhi Transport Corporation                                ...... Petitioner

                                  Through: Mr. Vinay Sabharwal
                                           Ms. Neha Sabharwal, Advocates
                               versus

Sh. Jai Pal Singh & others                               ..... Respondents

Through: Mr. Bandaua Shukla and Ms. Ruchi Sindhwani, Advocate for R-2 and Mr. Ranjan Kumar, Advocate for R-1.

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. Oral:

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

of India, the petitioner seeks to challenge the award dated 10.08.2006

passed by the Labour Court No. XXI, Delhi, whereby the punishment

of termination awarded to the respondent workman was reduced to

stoppage of two increments with cumulative effect and grant of 50%

back wages with consequential benefits.

2. Brief facts relevant for deciding the present petition are that

the respondent no.1 workman was working as a conductor in the

petitioner corporation and on 26.3.93 he was on duty in Bus No.6383,

Route No. 373/2A where he was involved in eve teasing of a lady

passenger because of which he was suspended from duty vide

suspension order dated 13.4.93. Thereafter a chargesheet was issued

to respondent no.1 on 23.4.93 which was duly replied by the

respondent no.1. An enquiry was conducted by the petitioner

corporation and the lady passenger, Ms. Rashmi Kataria, appeared as

a witness and narrated the sequence of events happened in the Bus.

The enquiry officer in his report found the charges leveled against the

respondent no.1 to be correct and proved. Thereafter, a show cause

notice dated 15.10.93 was issued to the respondent no.1 proposing to

impose the punishment of removal of service to which the respondent

no.1 duly replied. Vide order dated 5.7.94 the punishment of removal

from service was imposed on respondent no.1 which was challenged

by the respondent no.1 by raising an industrial dispute in ID No.

44/06/98. The Labour Court vide order dated 10.8.06 while holding

that the enquiry conducted was valid and proper but found the

punishment of removal of service as disproportionate to the gravity of

misconduct and granted him reinstatement with 50% backwages and

consequential benefits with stoppage of two increments with

cumulative effect. Feeling aggrieved with the said order, the

petitioner has filed the present petition.

3. Mr. Vinay Sabharwal, counsel for the petitioner, strongly

contended that looking into the gravity of the charges leveled against

the respondent conductor, he deserves no leniency or concession and

in any case the interference under Section 11 A of the I.D. Act by the

Tribunal cannot be justified unless the punishment is shockingly or

grossly disproportionate to the gravity of the misconduct. The

contention of the counsel for the petitioner is that the charges against

the respondent conductor were grave and serious in nature and

therefore he deserved the maximum punishment and the discretion

exercised by the Ld. Labour Court u/s 11 A of the I.D. Act is arbitrary

and injudicious and against the well established principles of law.

Counsel further submitted that the gravity of the misconduct is not to

be measured in golden scales and while deciding on the quantum of

punishment it is only the gravity of misconduct which has to be taken

into consideration. Therefore, to compare the same with the award of

the punishment and interference by the Labour Court would arise

only if the punishment awarded is so disproportionate that it shakes

the conscious of the court, the counsel contended. In the facts of the

present case, the counsel submitted, that the respondent conductor

faced a serious charge of outraging the modesty of a lady passenger

in the bus and any leniency with such a kind of person would not

only further bring disrepute to the petitioner but would encourage

such deleterious elements besides rendering travel by females in

public transport totally unsafe and insecure. Counsel for the

petitioner thus urged that the interference by the Tribunal in reducing

the punishment is illegal and perverse and the same cannot stand the

test of well established principles of law.

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

counsel for the respondent, on the other hand, submitted that the

respondent was falsely charged by the petitioner as he was never

involved in outraging the modesty of any female passenger. Counsel

further submitted that even the complainant never raised any such

allegation against the respondent attributing any such act on his part

which could be treated as outraging the modesty of the female

passenger. Counsel for the respondent further submitted that no

fault can be found with the reasoning given by the Ld. Labour Court

as it found that the act of misconduct committed by the driver and the

conductor were of similar degree and therefore different punishments

could not have been awarded to both of them. It is an indisputable

fact, the counsel contended, that Chander Pal, driver of the bus also

faced the same charge and was also tried by the Criminal Court for

the same offence but was given the punishment of "reduction of two

stage lower in time scale of driver for two years" but to the

respondent conductor, the punishment of removal was awarded.

Counsel further submitted that the respondent workman was also

acquitted by the Criminal Court vide order dated 17.01.2001 and this

order of acquittal was not before the Disciplinary Authority when the

punishment of removal was imposed upon him and therefore also Ld.

Labour Court correctly reduced the punishment similar to the one as

awarded to the driver in exercise of its powers under Section 11-A of

the I.D. Act.

5. I have heard counsel for the parties at considerable length

and perused the records.

6. Before I deal with the rival contentions of both the parties,

it would be relevant to reproduce the charges faced by the

respondent/workman which are as under:-

"CHARGE SHEET You are hereby called upon to give you explanation as to whether disciplinary proceedings not be conducted against you under Delhi Road Transport Procedure (Amendment) Regulations 1971 read with Delhi Road Transport Authority (Appointment and Conditions of Service) Rules 1952, Section 15(2), for the following irregularities:

That on 26.03.1993 your duty was on bus No. 6383 Route No. 373/2- A, when you committed the following repeated irregularities:

1. That you indulged in eve teasing with a femal passenger in the bus.

2. You were arrested by the Kalkaji Police Station U/s 354/34 IPC vide FIR No. 117/93 dated 26.03.1993 and the case was registered against you.

3. That you concealed the facts of the aforesaid incident.

4. That you tarnished the image of D.T.C.

Your aforesaid acts amount to misconduct within the meaning Para No. 19(f)(g)(k)(m) of Standing Orders governing the conduct of DTC Workers.

A copy of the report of Reporter sh. Ved Pal Singh, T.I. is enclosed. At the time of taking final decision in the matter your past record shall be kept in view. Your explanation should reach the undersigned within 10 days of the receipt of this letter. In case you wish to inspect any relevant documents relied upon available on record, you should report to the undersigned within 24 hours of the receipt of this charge sheet. In case you fail to report to the undersigned within 24 hours for inspection of documents or in any case fail to submit your explanation to the charge sheet within 10 days thereafter, it shall be presumed that you have no explanation to offer and in the pending matter further proceedings shall take place in accordance with the Rules without any further intimation to you.

Sd/-

Depot Manager."

7. It is not in dispute that the respondent workman was

deployed as a conductor and was on his duty in bus No. 6383 on route

No. 373/2A. The complainant of the incident, Ms. Rashmi Katariya

appeared as a witness in the domestic enquiry and in her deposition

she narrated the incident that on 26.03.1993 at 5.30 p.m. she boarded

the said bus from Pragati Maidan and at that time there were 15-20

passengers in the bus. By the time the bus reached Kailash Colony,

substantial number of passengers got down and only two girls and

three boys were left along with the driver and the conductor of the

bus. The boys inside the bus started behaving indecently with the

girls and one of the girls jumped out of the bus when the driver had

mildly applied the brakes and thereafter despite the girls shouting

and yelling, neither the driver of the bus stopped the bus nor the

respondent workman came to the rescue of the girls. During the

scuffle the complainant gave a bite on the palm of the boy and when

the bus slowed down she also jumped out of the moving bus resulting

in causing injuries on her right foot. Thereafter, FIR of the incident

was lodged by the complainant and she also got herself medically

examined at AIIMS hospital.

8. The respondent workman duly replied to the said charge

sheet and fully participated in the enquiry proceedings. Based on the

findings of the enquiry officer the punishment of removal was imposed

upon the respondent/workman by the petitioner management and the

said order of the management was challenged by the workman in the

Industrial Dispute bearing no. ID NO. 44/06/98. So far the findings

of the Labour Court on Issue No.1 with regard to enquiry are

concerned, the Labour Court found that the management conducted a

fair and proper enquiry against the workman after due observance of

the principles of natural justice. However, on issue No.2, the Ld.

Labour Court found the punishment disproportionate to the

misconduct and accordingly reduced the punishment of removal to the

punishment of stoppage of two increments with cumulative effect and

with the award of 50% of back wages with consequential benefits.

9. Although the said incident was of the year 1993 but even today

one cannot ignore the reality that an overwhelming majority of women

in Delhi do not feel safe. One does not need hard hitting statistics to

prove this, but a daily scan of the newspapers would give a reality

check as to how many women face violence in the city on roads, buses

or at market places. The core issue that this case has brought forth is

the safety of women in public transport. It is common knowledge that

most of the women rely on public transport especially buses for day to

day travel due to their vast reach. It is often seen that the females feel

threatened not only from antisocial and gross elements traveling in

the bus but equally from persons manning the bus. The drivers and

conductors who are supposed to act as saviours of the passengers are

often found themselves indulging in acts of indecency if they get such

an opportunity of finding lone female passenger in the bus. Hence,

due to such sexual abuse and harassment that is rampant on these

buses, their mobility is challenged thus intimidating women transit

riders resulting in their avoiding certain transit modes or using them

only during specific hours or only when they are accompanied. The

menace of eve-teasing is on the rise and it is a typical type of social

crime where victims are ordinary females. However, these types of

crimes go unreported as women feel embarrassed to report such kind

of crimes as the general perception is that there is not much that will

culminate by reporting it. Chanakya in the Arthashastra while

defending the rule of Chandragupta Maurya wrote:

"The eyes of the man who accosts a woman with evil intentions will be extracted"

And now almost 2000 years later also we find that the woman is not

spared the evil intentions of men. The immeasurable damage that eve

teasing does to a woman's self-esteem and the subsequent avoidance

of public places by single women could hardly take us on the way to

achieving gender equality.

10. The case at hand exemplifies the irresponsible and pathetic

behaviour of the employees of the public transport department. Had

the driver immediately applied the brakes and halted the bus, the

entire gruesome situation could have been avoided. The Conductor,

who is otherwise considered to be the main person manning the

passengers inside the bus, owns a more responsible duty towards the

passengers to see that no passenger is unnecessarily harassed,

manhandled or coaxed or insulted by the co-passenger and no female

passenger is teased by any person or faces any kind of indecency or

immorality. But here , in the instant case, both the conductor and the

driver not only failed in their duty but were hand in glove with the

boys who were indulging in behaving indecently with the female

passengers. A civilized society cannot afford to ignore such an

incident and decency and morality in public life can be promoted and

protected only if we deal strictly with those who violate the basic right

of dignity of women. Hence, award of any lesser punishment to the

conductor will be a source of encouragement to such others, and

therefore, the respondent conductor does not deserve grant of any

lesser punishment than the removal of service and hence looking into

the gravity of the misconduct, the punishment awarded to him is

neither disproportionate nor imbalanced and rather any reduction in

his punishment would shock the conscious of this Court. The only way

to eradicate this venomous practice, in my view, is to have an

informed and sensitive citizenry. More so, the employees of the public

transport corporation, especially conductors and drivers, should be

sensitized towards issues relating to gender violence and women

security on a regular basis and a periodic monitoring of the behaviour

of those employees against whom there are complaints in the nature

of eve teasing, sexual abuse or molestation should be done keeping

them on check so that women are not harassed by hoodlums ensuring

a safe and secure environment in the buses. To avoid recurrence of

such incidents in the national capital , let the Principal Secretary,

Department of Transport, Government of NCT of Delhi and the

Chairman, DTC file an affidavit spelling out the steps taken by them in

this direction and if not, then what mechanism do they propose to

have in place to ensure complete safety of female passengers

travelling in DTC and other buses under the control of Government of

NCT of Delhi. Affidavit be filed within one month from the date of this

order.

11. With the above directions, the impugned Award so far it reduced

the punishment to stoppage of two increments with cumulative effect

alongwith 50% backwages with consequential benefits is set aside and

the punishment of removal as directed by the Disciplinary Authority is

upheld.

12. It is also directed to the petitioner DTC that it should take

steps to revive the case of the driver, Chander Pal, after following due

process of law. Affidavit in compliance be filed by the petitioner in

this regard within a period of one month.

13. With the above directions, the present petition is

accordingly allowed.

14. Copy of this order be sent to the Principal Secretary,

Department of Transport, Government of NCT of Delhi and the

Chairman, DTC.

15. List the matter for compliance and further directions on

7.4.2010.

February 16, 2010                       KAILASH GAMBHIR,J