Delhi High Court
Delhi Transport Corporation vs Sh. Vinod Kumar on 20 January, 2010
Author: Kailash Gambhir
IN THE HIGH COURT OF DELHI AT NEW DELHI
W.P. (C ) NO. 1763/2001
W.P. (C ) No. 8530/2005
Judgment delivered on :20 January, 2010
Delhi Transport Corporation ......Petitioner
Through: Mr.Rupesh Tyagi, Advocate
Versus
Sh. Vinod Kumar ..... Respondent
Through: Mr. Mohit Bhandari,Advocate
CORAM:
HON'BLE MR. JUSTICE KAILASH GAMBHIR:
1. Whether the Reporters of local papers may Yes
be allowed to see the judgment?
2. To be referred to Reporter or not? Yes
3. Whether the judgment should be reported Yes
in the Digest?
KAILASH GAMBHIR, J. (ORAL)
1. This order shall dispose of two separate writ
petitions filed by the petitioner Delhi Transport Corporation
under Article 226 and 227 of the Constitution of India for setting
aside the order dated 03.08.2000 of the Ld. Industrial Tribunal -
II, Delhi in O.P. No. 90/91, whereby the Hon'ble Tribunal
rejected the approval application under Section 33 (2) (b) of
I.D.Act of the petitioner, and also for setting aside the award
dated 26.07.2004 passed by the Industrial Tribunal-II, in I.D. No.
327/2001 directing reinstatement of the workman with full
back wages and continuity of service.
2. The factual matrix of the case is that the
respondent/workman was appointed by the petitioner
management on the post of driver as Daily Wager w.e.f.
19.06.1981 and his services were confirmed as driver on
19.12.1981. The services of the respondent workman were
terminated on 08.11.1991 on the ground that
respondent/workman while performing his duties as driver with
bus No. 6424 on route from Delhi to Chandigarh was found by
the checking officials to be driving the vehicle with lights inside
the bus switched off and was also to have alighted three
passengers without ticket. The respondent workman also
misbehaved with the checking officials and had also refused to
hand over the driver memo and to accept the Challan. As per
the petitioner DTC, the respondent committed mis-conduct
within the meaning of para 18 (h) and (m) of the standing
orders governing the conduct of the DTC employees. An
enquiry was conducted into the said mis-conduct of the
respondent and the enquiry officer found him guilty. Based on
the enquiry report, show cause notice dated 26.09.1991 was
issued to the respondent by the Disciplinary Authority and after
finding the reply submitted by the respondent workman to be
not satisfactory, the Disciplinary Authority vide orders dated
8.11.1991 directed the removal of the respondent from his
service. After taking the said decision, the petitioner DTC had
filed an application under Section 33 (2) (b) of the I.D. Act to
seek approval of their decision which was dismissed vide order
dated 3.8.2000. On the other hand the respondent raised an
industrial dispute under Section 10 of the Industrial Disputes Act
challenging the said action of removal by the petitioner.
3. I have heard learned counsel for the parties.
4. The application of the petitioner under Section 33
(2) (b) of the I.D. Act was dismissed by the Industrial Tribunal
as the only witness produced by the petitioner management i.e.
AW 1 Sh. Sri Krishan failed to prove mis-conduct on the part of
the respondent and rather gave strength to the defence of the
respondent workman. The Tribunal also found the evidence
adduced by the respondent workman far more convincing
which was also duly corroborated by the statement of the
conductor RW 1. Amazingly the said witness AW 1 Sh. Sri
Krishan was not aware of the fact as to whether the respondent
at the relevant time was employed as a driver or conductor.
Counsel appearing for the petitioner has failed to satisfy this
court as to how the order passed by the Ld. Tribunal can be
termed as illegal or erroneous when the petitioner itself failed to
prove the mis-conduct on the part of the respondent/workman
by adducing any cogent evidence. The petitioner DTC failed to
lead any evidence to prove the preliminary issue with regard to
the legality and validity of the enquiry set up by the petitioner
against the respondent/workman. I, therefore, do not find any
illegality or perversity in the said order passed by the Tribunal
while rejecting the application of the petitioner under Section 33
(2) (b) of the I.D. Act.
5. The position with regard to I.D. No. 327/2001 is also
no way better so far as the petitioner is concerned. Here also
the petitioner management failed to prove any of the issues
framed by the Tribunal. On issue No.1 the tribunal found that
the findings given by the enquiry officer were perverse as the
same did not establish any linkage with the alleged misconduct.
The Tribunal also found that the enquiry officer failed to give
any weightage to the deposition of witnesses produced by the
respondent/workman who gave evidence in support of the
workman. With regard to issue No.2, on the alleged mis-
conduct of the respondent, the tribunal found that the witness
produced by the management failed to prove the alleged mis-
conduct against the respondent workman. On issue No.3,
concerning the punishment, the Tribunal held that since the
enquiry itself was found to be vitiated therefore consequential
punishment imposed by the management upon the workman
was clearly illegal and unjustified. The tribunal thus ultimately
came to the conclusion that the punishment imposed by the
petitioner cannot sustain and accordingly directions were given
for the reinstatement of the respondent workman along with
back wages. Counsel for the petitioner has failed to point out
any illegality or perversity in the reasoning of the Tribunal and
rightly so when the petitioner itself has failed to prove the
alleged mis-conduct on the part of the respondent/workman or
the correctness of the findings of the enquiry officer.
6. It is a settled legal position that the Labour Courts
are the final courts of finding of facts and this court while
exercising jurisdiction under Article 226 of the Constitution of
India will not sit over to re-appreciate the finding of the Labour
Court unless such findings are either not tenable in the eyes of
law or the same are perverse on the very face of it. It would be
pertinent to reproduce the relevant para from the judgment of
the Apex Court in Madurantakam Coop Sugar Mills Ltd. Vs.
Vishwanathan (2005)3 SCC 193.
"12. Normally, the Labour Court or the Industrial
Tribunal, as the case may be, is the final court of
facts in these type of disputes, but if a finding of fact
is perverse or if the same is not based on legal
evidence the High Court exercising a power either
under Article 226 or under Article 227 of the
Constitution of India can go into the question of fact
decided by the Labour Court or the Tribunal. But
before going into such an exercise it is necessary
that the writ court must record reasons why it
intends reconsidering a finding of fact. In the
absence of any such defect in the order of the Labour
Court the writ court will not enter into the realm of
factual disputes and finding given thereon. A
consideration of the impugned order of the learned
Single Judge shows that nowhere he has come to the
conclusion that the finding of the Labour Court is
either perverse or based on no evidence or based on
evidence which is not legally acceptable. Learned
Single Judge proceeded as if he was sitting in a court
of appeal on facts and item after item of evidence
recorded in the domestic enquiry as well as before
the Labour Court was reconsidered and findings
given by the Labour Court were reversed. We find no
justification for such an approach by the learned
Single Judge which only amounts to substitution of
his subjective satisfaction in the place of such
satisfaction of the Labour Court."
7. The counsel for the petitioner DTC in both the cases has
failed to satisfy this court as how the findings of the Tribunal
can be termed as illegal or perverse. I do not find any merit in
the present petition. The same is hereby dismissed.
January 20, 2010 KAILASH GAMBHIR,J
pkv
