Harpal Singh, Conductor vs Delhi Transport Corporation
2010 Latest Caselaw 3118 Del

*           HIGH COURT OF DELHI : NEW DELHI

+                   W.P.(C) No. 8610/2007

%                             Pronounced on:    06.07.2010

HARPAL SINGH, CONDUCTOR                            ...Petitioner
                 Through:        Mr. Prashant Katara, Advocate.


                    Versus

DELHI TRANSPORT CORPORATION                   ....Respondent
                 Through:  Ms. Bhakti Pasrija, Advocate

Coram:
HON'BLE MR. JUSTICE MANMOHAN SINGH

1. Whether the Reporters of local papers may
   be allowed to see the judgment?                           No
2. To be referred to Reporter or not?                        Yes
3. Whether the judgment should be reported                   Yes
   in the Digest?

MANMOHAN SINGH, J.

1. The workman Harpal Singh has filed the present writ

petition seeking the direction for quashing of orders dated

18.5.2007 and 1.8.2007. Further prayer is made that the

petitioner be reinstated by the respondent in service and all the

back benefits such as arrears of salary, seniority and promotion be

granted to him.

2. The brief facts are that the petitioner/workman was

employed with the respondent as conductor in the year 1982. He

was chargesheeted on 5.8.1993 on the allegation that on

26.7.1993 when he was on duty on Bus No.9703 en-route Delhi to

Kutana, at about 11.35 hours when his Bus was checked by the

checking officials at Village Jaunmana it was found that four

passengers were travelling without tickets, though they had paid

fare @Rs.1.50/- each but the petitioner had not issued them

tickets, as a result of which he maligned the image of the

corporation, caused financial loss and violated the rules of the

corporation having caused misconduct under para 19(b)(f) and (h)

of Delhi Road Transport Authority.

3. On the basis of the said charges the petitioner was

removed from the service of the respondent vide order dated

14.6.1995. In 1997 the petitioner raised an industrial dispute

which was referred for adjudication to the Labour Court, Delhi. The

terms of the reference were whether the removal of petitioner

from service was illegal and/or unjustified, and if so, to what relief

was he entitled to.

4. The reference proceedings were conducted before the

Labour Court and after filing the statement of claim, the petitioner

took the plea that no fair and proper inquiry was conducted by the

respondent and the punishment imposed upon the petitioner by

the respondent was in violation of the respondent's own circular

dated 3.1.1966 in which it was stated that if the conductor was

held guilty of cheating for the first time, he would not be removed

from service. As per the petitioner, under the said circular there is

an obligation on the part of the respondent to follow the

instructions contained therein.

5. Vide order dated 18.5.2007, the Labour Court held that

the respondent had conducted a fair and proper inquiry and there

had been no violation of the principles of natural justice or any

perversity in the findings.

6. Thereafter, on 1.8.2007, the Labour Court held that the

punishment awarded to the petitioner was sufficient and no

interference in the inquiry was called for. Challenging both the

orders, the petitioner has filed the present writ petition.

7. The contention of the petitioner is that on the basis of

the charge sheet a domestic inquiry was conducted against him.

According to him, the same was in violation of the principles of

natural justice and the findings given by the inquiry officer were

perverse. His further contention is that punishment of removal

from service with effect from 25.10.1993 which was awarded to

him is in contravention of DTC circular dated 3.1.1966 and that he

has been unemployed from the date of termination.

8. The grounds raised in the petition for quashing the

orders dated 18.5.2007 and 1.8.2007 mainly are that the

respondent is under obligation to follow its own rules and

regulations and official orders which have the force of statute in

view of Section 4(e) of Delhi Road Transport Laws (Amendment)

Act, 1971 and the circular dated 3.1.1966 being statutory in nature

was bound to be considered by the respondent before passing the

removal order. Since it was the second case of the alleged

cheating of the petitioner, therefore, extreme punishment of

removal from the service could not have been awarded to the

petitioner as per the circular dated 3.1.1966. Another ground

taken by the petitioner is that the inquiry officer did not conduct

the inquiry free from bias, without prejudice and with open mind

and the findings of the same are in violation of the principles of

natural justice as the petitioner was not given full opportunity to

defend himself in front of the inquiry officer.

9. The inquiry proceedings Ex.WW1/M-3 show that the

petitioner was given the opportunity to take the help of his co-

worker but he declined the same. It is also recorded that the

charges had been read over and explained to the petitioner and he

had admitted the charges. The statement of witnesses Sh. Tej Pal,

Sh. Balbir Singh and Sh. Zile Singh were recorded in the presence

of the petitioner and he cross-examined all the witnesses. In his

defence, he examined Sh. Khem Chand and Ishwar Singh. In the

cross-examination, he had admitted that he had received the copy

of the chargesheet along with the report which are Ex.WW1/M-1

and Ex.WW1/M-2.

10. As per the record and the copy of the inquiry

proceedings which is Ex. WW1/M-3, he admitted that he had cross-

examined the management's witnesses and received a copy of the

show cause notice as well as the inquiry report. As far as his

contention about the violation of rules is concerned, he was unable

to show any violation of the procedural rule before the inquiry

officer or before the Labour Court. The petitioner has referred the

circular dated 3.1.1966 which reads as under:

"i) In case of commission of irregularity involving cheating for the first time, the Inquiry Officer should take corrective action by sending for the employee and personally cautioning him to avoid the recurrence of such a nature in future;

ii) In case the offence involving cheating in the manner indicated above is committed for the second time, any of the penalties out of warning, reprimand or censure be imposed keeping in view the extent of the gravity of the offence committed;

iii) In case the offence is repeated for the third time, more severe action of stoppage of increment with or without cumulative effect, keeping in view the seriousness of the offence committed by accused employee, be taken;

iv) In case the corrective action and the imposition of penalties, as mentioned in sub-paras 1 to 3 above have not yielded the desired results and there is repletion of commission of irregularity involving cheating the question of imposition of extreme penalty of removal or dismissal from the services of the undertaking will be considered provided the case stands fully established against the employee concerned."

11. His contention is that his case is of second time cheating

and not third time, therefore, the order of his termination is in

violation of the above mentioned circular.

12. Before dealing with the circular, it is appropriate to refer

the provision of Section 4(e) of Delhi Road Transport Laws

(Amendment) Act, 1971 which reads as under:

"All rules, regulations, appointment, notification, bye- laws, schemes orders, standing orders and forms relating to transport services, whether made under the Delhi Road Transport Authority Act 1950 or under the Delhi Municipal Corporation Act, 1957, and in force immediately before such establishment, shall, in so far as they are not inconsistent with the provisions of this Act, continue to be in force and be deemed to be regulations made by the new Corporation under section 45 of the Road Transport Corporations Act, 1950, unless and until they are superseded by regulations made under that section."

13. A mere reading of the provision of Section 4(e) of the

Act shows that it does not say anything about the circulars issued

by the respondent having force of law. I am of the view that the

circular is merely advisory in nature and, therefore, directory and

not binding in nature. The said circulars are not framed under

some statutory rule making powers.

14. In the case of State of Haryana vs. Rattan Singh,

(1977) 2 SCC 491 and Mahavir Singh vs. D.T.C., 139 (2007) DLT

569, the Courts have not accepted these circulars having force of

law. Therefore, the contention of the petitioner has no force that

the said circular being statutory in nature, the respondent is under

an obligation to follow the said circular.

15. From the record of the trial court it appears that the

inquiry officer had conducted a fair and proper inquiry against the

petitioner in accordance with the principles of natural justice.

Therefore, the submission of the petitioner is without any

substance. It is pertinent to mentioned that the petitioner had

admitted his guilt as a second case of cheating.

16. With respect to the contention that the inquiry must

stand vitiated for the reason that the passengers were not

examined as witnesses, the case of D.T.C. vs. N.L. Kakkar,

W.P.(C) No.1485/1979 decided on 17 th March, 2004 can be referred

to wherein after considering previous judgments it was held that

production of passengers either in a domestic enquiry or before

the Labour Court is not at all necessary and in most cases would

be highly impractical.

17. The Supreme Court recently in UP State Corporation

vs. Suresh Chand Sharma in Civil Appeal No.3086/2007 decided

on 26.5.2010 has held that on a charge of corruption, the

punishment of dismissal should always follow.

18. Considering the overall facts and circumstances in the

present case, I am of the considered view that no case of

interference in the orders dated 18.5.2007 and 1.8.2007 is made

out.

19. Writ petition is dismissed with no order as to costs.

MANMOHAN SINGH, J.

JULY 06, 2010 Jk/dp