Shri Brij Pal Singh vs Presiding Officer & Ors
2010 Latest Caselaw 3008 Del

                 *IN THE HIGH COURT OF DELHI AT NEW DELHI

                                                    Date of decision: 1st July, 2010.

+                             W.P.(C) No.4772/1996

%

SHRI BRIJ PAL SINGH                                              ..... Petitioner
                              Through: Mr. U.S. Choudhary, Advocate.

                                         Versus

PRESIDING OFFICER & ORS.                                         ..... Respondents
                   Through:               Mr. J.N. Aggarwal, Advocate.

CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1.       Whether reporters of Local papers 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                No
         in the Digest?

RAJIV SAHAI ENDLAW, J.

1. The petitioner workman by this writ petition impugns the award dated 22nd

July, 1996 of the Labour Court holding the departmental/domestic inquiry

conducted prior to the termination of services of the petitioner workman by the

respondent no.2 DTC to be valid and legal and in accordance with the principles

of natural justice and further finding the punishment of dismissal from service

meted out to the petitioner workman to be not disproportionate to the misconduct

with which he was charged and found guilty and accordingly holding the

petitioner workman to be not entitled to any relief.

2. The petitioner workman was employed as a Driver with the respondent no.2

DTC since the year 1973. He was suspended on 7th February, 1984 and

chargesheeted on 23rd February, 1984 for refusal to outshed the bus which he was

to drive and/or directed to drive and with disorderly behavior and use of abusive

language in the premises of the respondent no.2 DTC while on duty. The Inquiry

Officer found the petitioner workman to be guilty and the Disciplinary Authority

of the respondent no.2 DTC accepted the report of the Inquiry Officer and inter

alia in view of the past conduct of the petitioner workman, of 20 adverse entries

during the service record of 12 years of public complaints, accidents, misbehavior,

manhandling and further in view of the petitioner workman on two earlier

occasions, having been censured, on yet other two occasions having been

reprimanded and on yet an other occasion in the past having been punished with

stoppage of two increments with cumulative effect, ordered the dismissal of the

petitioner workman from service. The petitioner workman raised an industrial

dispute and on which, reference was made to the Labour Court. The Labour Court

framed a preliminary issue of validity of the domestic inquiry preceding the

punishment and vide award impugned in this petition found no infirmity in the

inquiry and held the petitioner workman to be not entitled to any relief.

3. The respondent no.2 DTC has in its counter affidavit to the writ petition

also mentioned about the past complaints and punishments meted out to the

petitioner workman. The petitioner workman in his rejoinder to the counter

affidavit has generally denied the paragraph of the counter affidavit containing the

said averments and further pleaded that he was never asked to explain or heard

before the said punishments were meted out to him and the same being made

behind his back are of no consequence. The petitioner workman however did not

raise any dispute regarding the said earlier adverse entries in his record and/or the

punishments earlier meted out to him. The only conclusion is that the past conduct

of the petitioner workman, notice whereof has been taken by the Disciplinary

Authority of the respondent no.2 DTC while meeting out the punishment of

dismissal from service to the petitioner workman, is undisputed. The counsel for

the petitioner workman during the hearing also did not challenge the same.

4. Yet another factor found relevant may be noted. It was informed by the

counsel for the respondent no.2 DTC and not rebutted by the counsel for the

petitioner workman that the retirement/superannuation age for drivers in DTC is

55 years and the petitioner workman has since attained the same.

5. The only question for adjudication in this writ petition is whether the

finding of the Labour Court of there being no infirmity in the departmental inquiry

preceding the order of termination of the petitioner workman requires interference

by this Court.

6. The main thrust of the arguments of the counsel for the petitioner workman

was that though the respondent no.2 DTC had filed a written statement before the

Labour Court and contested the claim of the petitioner workman but subsequently

failed to lead any evidence; the evidence before the Labour Court was led only by

the petitioner workman and who was not even cross examined by the respondent

no.2 DTC. It is contended that in the absence of contravention by the respondent

no.2 DTC of the ex parte evidence of the petitioner workman of the inquiry being

defective, the Labour Court ought not to have decided against the petitioner

workman. In this context, it is also pointed out that the Labour Court has

erroneously treated the onus of the inquiry being defective to be on the petitioner

workman. Attention is invited to the order dated 8th August, 1989 of the Labour

Court framing issue no.1 as under:-

"Whether the domestic inquiry held by the management against the workman is improper and invalid?"

It is contended that subsequently on 29th September, 1993, the following

issue was framed:-

"Whether proper inquiry was held by the management before terminating the workman?"

It is contended that the award is perverse for this reason only.

7. Merely because a party is proceeded against ex parte, does not

automatically entitle the other party to relief. As far as the inconsistency of onus in

the issue framed twice as aforesaid is concerned, in my view, the difference in

placing the onus while framing issues twice is of no significance. The present was

not a case of the management/employer pleading that an inquiry was conducted

and the workman denying the same. If that be the state of pleadings, the onus to

prove that an inquiry was held would certainly be on the management/employer

only. In the present case, the petitioner workman in his claim petition admitted

that he was chargesheeted and compelled to face the inquiry proceedings. He also

cross examined the witnesses of the respondent no.2 DTC and examined his own

witnesses before the Inquiry Officer. His challenge to the inquiry proceedings was

for the reason of having not been supplied the necessary documents and important

questions having been disallowed at the instance of the Inquiry Officer and/or

certain statements being not taken on record and for the reasons of his request for

change of Inquiry Officer having been declined and the Inquiry Officer having

taken up the job both, of a judge as well as of a prosecutor and of the report of the

inquiry proceedings having not been supplied to him. In the face of the said

pleadings, the onus was upon the petitioner workman to prove the infirmities

averred in the claim statement qua the record of the inquiry proceedings. The

record of inquiry proceedings was placed before the Labour Court and which was

not in dispute. No perversity can be found in the award on the said ground.

8. One of the challenges of the petitioner workman to the inquiry proceedings

was on the ground of non supply of documents. The petitioner workman in his ex

parte evidence also deposed that in the inquiry proceedings he had been asking for

documents in support of his defence but to no effect and because of the non-supply

of the said documents he could not effectively defend himself in those

proceedings. He proved the copies of the representations/requests for documents

as Exhibit WW1/3 to 20.

9. The Labour Court has found on perusal of the inquiry proceedings and the

inquiry report that no objection of non-supply of documents along with

chargesheet was taken by the petitioner workman in the proceedings conducted on

18th December, 1984; on the other hand he had cross examined the witnesses. The

Labour Court further held that the evidence of the petitioner workman before the

Labour Court also was not of non supply of annexures of the chargesheet - the

emphasis was in respect of the documents related to his defence. With respect to

Exhibit WW1/3 to 20, the Labour Court held that some of the representations were

of dates subsequent to the inquiry proceedings and none of the said

letters/representation were addressed to the Inquiry Officer but were addressed to

the Depot Manager who was not the Inquiry Officer. The petitioner workman has

before this Court contended that the Depot Manager was also the Inquiry Officer

and thus Exhibit WW1/3 to 20 were in fact addressed to the Inquiry Officer. The

signatures which appear on the report of the Inquiry Officer and on the order of

termination of service issued by the Depot Manager as the Disciplinary Authority,

are different. There is no challenge that none of the Exhibits WW1/3 to 20 were

addressed to the Inquiry Officer. In the circumstances, the view taken by the

Labour Court of the demand for documents being made to the Depot Manager and

not to the Inquiry Officer as was required to be made is a possible view incapable

of interference in judicial review under Article 226 of the Constitution. The said

finding of the Labour Court is not such a finding which no reasonable person

could have reached and/or which is based on no material whatsoever.

10. The petitioner workman has also raised a grievance about non supply of

record of the inquiry proceedings and the inquiry report. The Labour Court has

held that the position in law at that time was not such as to require the supply of

the inquiry report to the delinquent officer. The said reasoning of the Labour Court

has neither been controverted by the petitioner workman nor anything to the

contrary cited. Thus the award does not require any interference on the said

ground also.

11. The counsel for the petitioner workman has also sought to challenge the

inquiry by contending the same to be vitiated for the reason of the Inquiry Officer

and the Disciplinary Authority having not given due weightage to the deposition

of the witnesses examined by the petitioner workman before the Inquiry Officer.

However, the said contention is beyond the domain of judicial review at this stage.

Moreover, the finding of the Labour Court is of a valid inquiry having been held.

The Supreme Court in Delhi Cloth and General Mills Co. Vs. Ludh Budh Singh

AIR 1972 SC 1031 has held that if the inquiry is found to be valid, the question of

going into the findings of the said inquiry does not arise.

12. The counsel for the petitioner workman has next contended that the

petitioner workman had before the Labour Court also moved an application for

production of documents and of which certain documents were directed to be

produced but which the respondent no.2 DTC failed to produce. It is contended

that the Labour Court ought to have held against the respondent no.2 DTC for this

reason alone.

13. The documents sought to be produced before the Labour Court were the

same as the documents with respect whereto Exhibit WW1/3 to 20 were written.

Upon the failure of the respondent no.2 DTC to produce the said documents before

the Labour Court, the Labour Court had observed that adverse inference shall be

drawn against the respondent no.2 DTC for the same. However, the Labour Court

having found as aforesaid with respect to demand for documents before the

Inquiry Officer, the question of / the occasion for drawing such adverse inference

against the respondent no.2 DTC for non production of the documents did not

arise.

14. The counsel for the petitioner workman has also urged that the charge

against him of not outshedding the bus is false and fictitious. It is contended that

the then Depot Manger was inimical towards him and had framed him. The bus

was defective and could not be plied. However, the same was falsely got reported

as having been repaired. It is urged that the spareparts required for repairing the

defect in the bus were not then available with the Depot and hence the question of

bus being repaired did not arise and the respondent no.2 DTC also failed to

produce before the Labour Court the documents requisitioned in this regard.

15. The aforesaid contentions of the counsel for the petitioner workman would

also be on the merits of the findings of the Inquiry Officer and not qua the validity

of the inquiry. The procedure adopted in the inquiry having been found to be valid

and the inquiry having been found to be in accordance with the principles of

natural justice, all the said questions did not arise for consideration.

16. The counsel for the respondent no.2 DTC has drawn attention to the

counter affidavit filed in this Court wherein it is stated that inspection of all the

documents was given on 28th September, 1984 and all the documents were also

supplied under cover of the letter dated 28th January, 1986. It is also urged that the

petitioner workman failed to even reply to the chargesheet and thus in any case is

not entitled to take the said grounds.

17. The petitioner workman has thus not been able to make out any case for

interference with the award impugned in the petition.

The writ petition is dismissed.

No order as to costs.

RAJIV SAHAI ENDLAW (JUDGE) 1st July, 2010 pp