Delhi Transport Corporation vs Sh. Gian Chand (Ex-Conductor)
2010 Latest Caselaw 5433 Del

*            HIGH COURT OF DELHI : NEW DELHI

+                   W.P (C) No. 10967 of 2005

Delhi Transport Corporation                            ......Petitioner
                     Through:               Mr. J. S. Bhasin, Adv.

                      Versus

Sh. Gian Chand (Ex-Conductor)                     ......Respondent
                    Through:                Mr. Prashant Katara, Adv.

                                  AND

+                   W.P (C) No. 10965 of 2005


Delhi Transport Corporation                            ......Petitioner
                     Through:               Mr. J. S. Bhasin, Adv.

                      Versus

Sh. Gian Chand (Ex-Conductor)                     ......Respondent
                    Through:                Mr. Prashant Katara, Adv.

                                 Judgment reserved on   : 21.09.2010
%                                Judgment pronounced on: 30.11.2010

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
           in the Digest?                                           Yes

MANMOHAN SINGH, J.

1. The brief facts of both the cases are that in the year 1968

respondent was appointed as R/C conductor on daily rates with the

petitioner Corporation and w.e.f. 01.11.1969, he was brought on monthly

rate. On 08.06.1993 the respondent was on duty on bus No. 9922 on

interstate route Baijnath/Delhi and at Nargota when the inspecting staff

checked the bus they found that the respondent even after taking the

travel fare from two of the passengers did not issue tickets to them and

when he was enquired about the same he admitted his mistake. Therefore

the respondent was issued a challan under his signatures.

2. A checking report dated 08.06.1993 was submitted on the

basis of which chagesheet dated 24.06.1993 was issued to the respondent

and an oral enquiry was held.

3. The enquiry officer submitted his report dated 12.11.1993 in

which he found all the charges against the respondent fully proved. In

view of the said enquiry report the respondent was issued a show cause

notice dated 09.12.1993 by the petitioner. Instead of replying to the said

show cause notice the respondent moved this court by writ petition

bearing No. 5597/93 which was dismissed in limine and the respondent

was given four weeks time to file reply to the show cause notice dated

09.12.1993.

4. As respondent failed to file the reply to the show cause notice,

therefore, vide order dated 07.07.1994 he was removed from the service

by the petitioner. Simultaneously, the petitioner filed an application dated

07.07.1994 under Section 33 (2) (b) of the Industrial Disputes Act, 1947

(hereinafter referred to as the Act) before the Industrial Tribunal II, Delhi.

5. The respondent filed his written statement dated 24.4.1995 to

the application alleging inter alia that the entire proceedings of enquiry

were liable to be vitiated, therefore approval of action taken by the

petitioner was not maintainable. In the rejoinder, the petitioner denied the

allegation made by the respondent in the written statement. Mr. S.K.

Jacob who was the Enquiry Officer filed his affidavit dated 5.8.1996 in

support of the application under Section 33(2)(b) of the Act.

6. The respondent in January 1998 also raised an industrial

dispute before the conciliation officer, the disputes could not be settled

and the same was thus referred by the Secretary Labour, Government of

NCT of Delhi for adjudication with the following terms of reference :

" Whether the removal from services of Sh. Gian Chand is illegal and/or unjustified by the management and if so, to what relief is he entitled and what directions are necessary in this respect ? "

7. In the statement of claim filed on 8.5.1998, the respondent

denied all the allegations made in the chargesheet dated 24.6.1993

levelling against him that he had taken Rs.21/- being Rs.10.50 each from

two passengers who were travelling from Palampur to Kangra and he did

not issue tickets to them. The respondent had also denied that he had

admitted his mistake that he issued two unpunched tickets No. 799920

and 921. It was contended in the statement of claim that despite of reply,

an enquiry was conducted against the principles of natural justice and

therefore, prayer was made in the statement of claim that he be reinstated

with full back wages, continuity of service and all the other benefits.

8. The petitioner filed the written statement dated 26.2.1999

alleging that the enquiry was conducted in accordance with the principles

of natural justice in which charges were established against the

respondent and the said report proved and he was rightly removed from

the service.

9. In May 2001 the respondent filed his evidence by way of an

affidavit marked as Ex. WW1/A and proved letter of removal Ex.WW1/1.

In his cross-examination he admitted that he filed the writ petition

No.5597/1993 before this Court which was dismissed. It was admitted

by him that he did not file the reply to show cause notice and he had

received the copy of the charge-sheet Ex.WW1/M5. It was not denied

by him that he was issued censors, warnings and reprimands as per detail

of Ex.WW1/M6. The respondent also did not deny the fact that the

tickets were checked up by the checking staff when he was available in

the bus. The detail of the record is stated in Ex.WW-1/M-9.

10. On behalf of the petitioner an affidavit of Sh. Sushil Jacob,

enquiry officer was filed on 20.9.2000 in which he stated that a fair

enquiry was conducted into the charges levelled against the respondent

and full opportunity and principle of natural justice was followed as per

rules. An affidavit of Sh. Chander Parkash, Traffic Manager, was also

filed on behalf of the petitioner in which it was stated that at that time he

was working as depot manager and was aware of the detailed facts and

circumstances of the present case.

11. By order dated 18.12.2002, the preliminary issued framed on

5.8.1996 i.e. "whether the applicant held a proper inquiry against the

respondent"; was decided against the petitioner holding that the inquiry

stands vitiated. It was also held that the inquiry was not conducted

properly.

12. Subsequently, by order dated 1.7.2003, the application of

approval filed under Section 33(2)(b) of the Act filed by the petitioner

was dismissed by the same Presiding Officer.

13. In view these orders, the request was made on behalf of the

respondent informing the learned Tribunal that as an approval application

of the management was dismissed by the Court, the respondent be

reinstated. It was argued that the effect of rejection of the application is

that the dismissal of the respondent from the service rendered to be non

est in view of the order passed by the Apex Court in Jaipur Zila

Sahakari Bhoomi Vikas Bank Ltd. Vs. Ram Gopal Sharma & Ors.,

AIR 2002 SC 643.

14. The Presiding Officer, Labour Court No.VII, Delhi, by award

dated 3.3.2004 held that in view of the settled law, since the workman is

deemed to be in continuous service by virtue of dismissal of approval

application of the petitioner, thus the service of the respondent was

terminated illegally and he is entitled to be reinstated with the

management with full back wages and continuity of service.

15. The petitioner DTC has challenged the order dated

18.12.2002, 1.7.2003 passed in O.P. No.108/1994 and the award dated

3.3.2004 in I.D. No.65/98 passed by the Presiding Officer, Labour Court

No.VII, Delhi, by filing the present two writ petitions against the

respondent Sh. Gian Chand/workman seeking following directions:

"In W.P. (C) No.10965/2005

(a) Issue a writ in the nature of certiorari quashing the impugned order dated 18.12.2002 and 1.7.2003 in O.P. No.108/94; passed by Sh. P.S. Teji, Presiding Officer, Industrial Tribunal-II, Karkardooma Courts, Delhi.

(b) Approve the order dated 7.7.94 of removal of the respondent from service by issuance of writ of certiorari or any other writ order or directions.

In W.P. (C) No.10967/2005

(a) Issue a writ in the nature of certiorari quashing the award dated 3.3.2004 in I.D. No.65/98; passed by Sh. C.K. Chaturvedi, Presiding Officer, Labour Court No.VII, Delhi.

(b) Approve the order dated 7.7.1994 of removal of the respondent from service by issuance of writ of certiorari or any other writ order or directions."

16. First of all, let me examine the order dated 18.12.2002

wherein Presiding Officer, Industrial Tribunal-II, Karkardooma Court,

Delhi, came to the conclusion that the enquiry was vitiated on the main

ground that the enquiry was not conducted properly as none of the

passenger travelling in the bus appear as witness before the Enquiry

Officer.

17. It appears from the enquiry report that Sh. Jagdish Chandra,

Assistant Traffic Inspector, deposed and stated that he had done the

checking along with other checking staff of bus No.9922, Route Baijnath

to Delhi and upon inspection it was found that the group of two

passengers travelling from Palampur to Kangra gave Rs.21/- to the

conductor for tickets but the conductor did not issue the tickets to them.

It was stated in the enquiry report that the chargesheet was read over and

the respondent was asked whether he accepted the charges levelled

against him or not. However, he refused to accept the charges and also

refused to take the help of any worker. In the enquiry report it was

mentioned that the petitioner tried to call the bus passenger as witness,

however, the witness did not appear for enquiry.

18. As regard the examination of the passenger as a witness is

concerned, the law in this regard is pretty settled. It is not in dispute that

the management examined checking staff during the enquiry proceedings

to prove the allegations against the workman.

19. The Supreme Court has already settled the law on the issue of

non-examination of passenger witnesses in State of Haryana Vs. Rattan

Singh, 1977 (2) SCC 491 wherein it was held that in a domestic inquiry

the strict and sophisticated rules of evidence are not applicable and all

material which are logically probative for a prudent mind are permissible.

The court had said that it is not expected of an employer to chase

passengers and record their depositions in support of charges levelled in

domestic inquiry proceedings. The sufficiency of material has to be

viewed in the context of given facts of each case and even hearsay

evidence cannot be ruled out if it was otherwise probable.

20. The Supreme Court in the case of Karnatka State Road

Transport Corporation Vs. B.S. Kullikatti, (2001) 2 SCC 574, held in

similar circumstances that the act was either dishonest or was so grossly

negligent that the respondent therein was not fit to be retained as a

conductor. It was also held that in such cases there is no place for

generosity or misplaced sympathy on the part of the judicial forums and

thereby interfere with the quantum of punishment.

21. The Apex Court in the case of Regional Manager RSRTC

Vs. Ghanshyam Sharma, (2001) 10 JT SC 12 has held that the order of

dismissal could not be interfered. Jurisdiction is to be exercised

judiciously. It has held:

"Though under Section 11(A), the labour court has jurisdiction and powers to interfere with the quantum of punishment, however, the discretion has to be used judiciously. When the main duty or function of the conductor is to issue tickets and collect fare and then deposit the same with the road transport corporation and when a conductor fails to do so, then it will be misplaced sympathy to order his reinstatement instead of dismissal."

22. Thus, the finding in the order dated 18.12.2002 of the

Presiding Officer are without any discussion of the settled law on the

issue involved as it appears from the order.

23. Let me now discuss the order dated 1.7.2003 passed by the

same Presiding Officer wherein the petitioner‟s application under Section

33(2) (b) of the Act for approval of its action to remove the respondent

from service was dismissed while discussing the issues framed in the

matter.

24. The following issues were framed:

1. Whether the respondent committed the misconduct as alleged against him?

2. Whether the petitioner remitted full one month‟s wage to respondent at the time of his removal from service?

3. Relief.

25. As regard the issue No.1 is concerned, the Presiding Officer

decided the said issue against the petitioner for the reason that since the

petitioner did not produce any passenger or independent witness in

support of its case, therefore, the petitioner had failed to prove the alleged

misconduct of the respondent.

26. The Apex Court in the case of Lalla Ram Vs. Management of

DCM Chemical Works Ltd. & Anr., AIR 1978 SC 1004 has clearly laid

down the proceedings under Section 32(2)(b) of the Act under which the

application for approval of action taken by the management

(dismissal/termination for misconduct) is moved before the Industrial

Tribunal, the jurisdiction of the Tribunal is confined to the enquiry as to

(i) Whether a proper domestic enquiry in accordance with the relevant

rules/standing orders and principle of natural justice has been held (ii)

Whether a prima facie case for dismissal issued on legal evidence

adduced before the domestic tribunal is made out (iii) Whether the

employer had come to a bonafide conclusion that the employee was guilty

and the dismissal did not amount to unfair labour practice and was not

intended to victimize the employee regard being had to the position set

aside by the Supreme Court that though generally speaking the award of

punishment for misconduct under the Standing Order is a matter for the

management to decide and the tribunal is not required to consider the

propriety or adequacy of the punishment or whether it is excessive or too

severe yet an inference of malafides may in certain cases be drawn from

the imposition of unduly harsh, severe, unconscionable or shock legally

disproportionate punishment; (iv) Whether the employer has paid or

offered to pay wages for one month to the employee and (v) Whether the

employer has simultaneously or within such reasonably short time as to

form part of the same transaction applied to the authority before which

the main industrial dispute is pending for approval of the action taken by

him. If these conditions are satisfied, the Industrial Tribunal would grant

the approval which would relate back to the date from which the

employer had ordered the dismissal. If, however, the domestic enquiry

suffers from any defect or infirmity, the Labour Authority will have to

find out on its own assessment of the evidence adduced before it whether

there was justification for dismissal and if it so finds it will grant

approval of the order of dismissal which would also relate back to the

date when the order was passed provided the employer had paid or

offered to pay wages for one month to the employee and the employer

had within time applied to the authority before which the then industrial

dispute is pending for approval of the action taken by him.

27. In the case of Banglore Woolen, Cotton and Silk Mills

Company Ltd. Vs. Dassappa (B) (Binny Mills Labour Union) & Ors.,

1960 II LLJ 39 the Supreme Court has held that the settle position in law

is that permission under Section 33 of the Industrial Dispute Act, 1947

should be refused if the Tribunal is satisfied that the management‟s

action is not bonafide or that the principles of natural justice have been

violated or that the materials on the basis on which the management

came to a certain conclusion could not justify any reasonable person in

coming to such a conclusion as regards the workman‟s misconduct that

the management has not acted bonafide. A finding that the

management has acted bonafide will ordinarily not be reached if the

materials are such that a reasonable man could not have come to the

conclusion which the management has reached. In every case,

therefore, it would be proper for the tribunal to address itself to the

question, after ascertaining, that the principles of natural justice have not

been violated whether the material on which the management has reached

a conclusion adverse to the workman, a reasonable person could reach

such a conclusion. In such a case the Industrial Tribunal is not called

upon to decide whether in its opinion the evidence given by the witness

was true but only whether when the enquiring officer (domestic

enquiry) stated that he considered such evidence creditable he had

acted like a reasonable man. The Industrial Tribunal could not examine

the evidence on record to come to a better view, regarding the guilt of the

concerned workman nor could it examine the evidence to decide as to

whether the evidence on record conclusively proved the guilt of the

concerned workman. In the instant case the refusal by the Industrial

Tribunal to grant the permission asked for by the employer was held

unjustified.

28. The reference made under Section 10(1)(c) and 12(5) of the

Act is the full fledged adjudicatory jurisdiction of the authority, under

which the Tribunal has the power to review/re-open the findings of the

domestic enquiry, the question of adequacy or sufficiency of the evidence

and to examine each and every document/material and witnesses on

record.

29. Further, in the case of Firestone Tyre and Rubber Company

of India (Private) Ltd. Vs. Management and others, 1973 (1) SCC 813,

the labour court has now been clothed with the power of re-appreciating

the evidence in the domestic enquiry and satisfy itself whether the said

evidence relied on by an employer establishes the misconduct alleged

against the workman.

30. It is settled law that when the reference is made under Section

10(1)(c) of the Act to the labour court/industrial tribunal, the tribunal has

the power to determine the legality and justification for termination of

service and has the jurisdiction to grant appropriate relief.

31. To invoke Section 11-A of the Act, it is necessary that an

industrial dispute of the type mentioned therein should have been referred

to an Industrial Tribunal for adjudication. The Supreme Court has

already laid down that what is done under S. 33 (2) is not adjudication.

That S. 11-A has not enhanced the power of the Tribunal while dealing

with an application under Section 33 was also emphasized by the

Supreme Court. The Supreme Court after referring to various cases has

denied the scope of industrial tribunal jurisdiction over application made

under Section 33 (2) (b) of the Act for approval of workman‟s dismissal,

in the case of Cholan Roadways Ltd. Vs. G. Thirugnanasambandam,

(2005) 3 SCC 241 and observed that the lower fora misdirected

themselves in law by not posing unto themselves the correct questions.

The Tribunal did not apply the principle of res ipsa loquitur which was

relevant for this case. It also took into consideration, an irrelevant fact

namely, non examination of passengers of the bus- which was not

germane for determining the issue. The tribunal also failed to apply the

correct standard of proof namely „preponderance of probability‟ but (on

the contrary) applied the standard of proof required for a criminal trial.

32. The Division Bench of this Court in the case of Delhi

Transport Corporation Vs. Ram Kumar & Anr., (1982) 2 LLJ 191

has clearly distinguished the scope of Section 33 (2) (b), Section 10 and

Section 11-A of the Act, held that where the employer has not sought

an opportunity to adduce evidence, where domestic enquiry is vitiated,

there is duty cast upon the Tribunal, suo-moto to call upon the employer

to adduce additional evidence to substantiate the charges.

33. Similar view was taken by another Division Bench of this

Court in the case of Surender Pal Vs. Management of DTC, 152 (2008)

DLT 671. It was held :

11. Notwithstanding this clear position of law, an effort was again made before the Supreme Court to urge that a decision given while approving or refusing permission for dismissal would amount to res judicata in subsequent adjudication when a reference is made under Section 10. This plea was expressly negatived in Lakshmi Devi Sugar Mills Ltd. v. Ram Sarup and Ors.; (1957)ILLJ17SC.

12. In G. Mckenzie & Co. Ltd. v. Its Workmen and Ors. (1959)ILLJ285SC, the Supreme Court expressly rejected the argument that the findings of the State Industrial Tribunal in proceedings under Section 33 of the Act which were confirmed by the Labour Appellate Tribunal barred the right of the management of the appellant company to start a fresh enquiry in respect of the same incident which formed the subject matter of the previous enquiry. The Court observed thus:

16. ...There is no force in this contention, which seems to be based on a misapprehension as to the nature and scope of proceedings under Section 33. That section does not confer any jurisdiction on a Tribunal to adjudicate on a dispute but it merely empowers the Tribunal to give or withhold permission to the employer during the pendency of an industrial dispute to discharge or punish a workman concerned in the industrial dispute. And in deciding whether permission should or should not be given, the Industrial Tribunal is not to act as a reviewing tribunal against the decision of the management but to see that before it lifts the ban against the discharge or punishment of the workmen the employer makes out a prima facie case. The object of the section is to protect the workmen in pending industrial disputes against intimidation or victimisation. As said above principles governing the giving of permission in such cases are that the employer is not acting mala fide, is not resorting to any unfair labour practice, intimidation or victimisation and there is no basic error or contravention of the principles of natural justice. Therefore when the Tribunal gives or refuses permission it is not adjudicating an industrial dispute, its function is to prevent victimisation of a workman for having raised an industrial dispute. The nature and scope of proceedings under Section 33 shows that removing or refusing to remove the ban on punishment or dismissal of workmen does not bar the raising of an industrial dispute when as a result of the permission of the Industrial Tribunal the employer dismisses or punishes the workmen. Atherton West & Co. Ltd. Kanpur, v. Suti Mill Mazdoor Union:

(1953)IILLJ321SC ; (1957)ILLJ17SC .

18. As the purpose of Section 33 of the Act is merely to give or withhold permission and not to adjudicate upon an industrial dispute, any finding under Section 33 would not operate as res judicata and bar the raising of an industrial dispute nor is there anything in the section itself or in the findings arrived at by the Industrial Tribunal in Section 33 proceedings dated 6th June, 1954 or of the Labour Appellate Tribunal dated 29th March, 1955 which would debar the appellant company from holding the second enquiry or dismissing the workmen

provided the principles above set out are complied with.

13. Our attention is also drawn to the Division Bench judgment of this Court in Delhi Transport Corporation v. Ram Kumar and Anr. (1982) IILLJ191Del, where the Division Bench after an exhaustive consideration of the relevant decisions of the Supreme Court rejected the argument that the findings recorded under Section 33(2)(b) of the Act would operate as res judicata in industrial dispute raised by the workman under Section 10 of the Act.

14. It is thus a settled law that notwithstanding the permission accorded by the Industrial Tribunal, it is open for the workman to raise an industrial dispute under Section 10 of the Act with regard to the termination of the services for which approval had already been obtained from the Industrial Tribunal under Section 33(2)(b) of the Act. Therefore, the findings recorded in a proceeding under Section 33(2)(b) of the Act cannot operate as res judicata. The interpretation adopted by the learned single Judge would make the whole exercise of industrial adjudication under Section 10 of the Act futile and meaningless. The scope of Section 33 of the Act is extremely limited and all that is done under Section 33 of the Act is to give or refuse permission and there is no industrial adjudication by the Tribunal in those proceedings. The Tribunal is called upon to adjudicate the industrial dispute only when the matter is referred under Section 10 of the Act to the Tribunal."

34. The law being that notwithstanding the permission accorded

by the Tribunal an Industrial Dispute can be raised, it is not understood

by what logic it can be suggested that any finding given under Section

33 (2) (b) would be barred on the principles of res-judicata in

adjudication under Section 10. Thus, the findings of the Tribunal are

sustainable in law.

35. As regard the finding of issue No.2 that there was no

compliance of Section 33(2)(b) of the Act as the payment of one month‟s

wage is an essential mandate and has not been followed by the petitioner

in the present case is concerned, the learned counsel for the respondent

has referred the decision of the Apex Court in the case of S. Ganapathy

and Ors. Vs. Air India & Anr., (1993) 3 SCR 1006 wherein it was held

that the proviso to Section 33(2)(b) mandates two steps, that unless the

workman is paid wages for one month and an application as contemplated

is made by the employer to the tribunal for approval of his action, no

such workman can be discharged or dismissed. The intention of the

legislature in providing such a contingency was to soften the rigor of

unemployment that the workman will face, against whom an order of

discharge or dismissal has been passed.

36. The case of the petitioner is that the petitioner produced AW-4

Smt. Kusum Sharma before the trial court who filed her affidavit dated

19.2.2003 in which she deposed that one month‟s salary of Rs.3368/- was

sent to the respondent by money order along with removal letter dated

7.7.1994. The petitioner also proved the documents as Ex.AW4/1 to

AW4/5.

37. The petitioner has not disputed the fact that the salary was

received back as the said money order was undelivered and the same was

re-deposited with the cash section in Naraina Depot. In the cross-

examination of AW4 Smt. Kusum Sharma, the respondent only gave a

suggestion regarding the non-payment of one month‟s wages. It is also

pertinent to mention that when the application under Section 33(2)(b) was

filed before the Industrial Tribunal-II, in para 12 of the application a

specific statement was made by the petitioner that the petitioner remitted

one month‟s wages by money order dated 7.7.1994 as required under the

said provision. In the written statement, the respondent has not

specifically denied the said compliance. Merely, a casual statement was

made by the respondent that the application filed by the petitioner was not

in compliance with the said provision and contrary to law. In the

evidence filed on behalf of the respondent there is no specific statement

that the petitioner has not sent the one month‟s wages to the respondent.

Rather in the cross-examination, it was admitted by the respondent that he

did not receive one month salary as he was out of station.

38. No doubt, the said compliance was necessary in view of the

specific provision of law and the respondent under these circumstances is

entitled for one month‟s salary.

39. Therefore, the findings of the Presiding Officer made in both

the orders dated 18.12.2003 and 1.7.2003 passed in O.P. No.108/1994

are quashed.

40. In view of the above discussions, I would say that propositions

and legal situations which have been canvassed before this Court have not

been considered and discussed by Tribunal as it is evident from orders

passed. There is nothing on record to show that as to whether the

Tribunal was inferred about the legal scenario and more specifically the

decisions of the Supreme Court as referred by the counsel before this

Court, otherwise the Tribunal might have arrived at a different conclusion.

41. Consequently, the subsequent order in industrial dispute

No.65/98 which was passed on 3.3.2004 by the Presiding Officer, Labour

Court No.VII on the basis of the dismissal of the application for approval

of the petitioner is also quashed.

42. Therefore, without hesitation, I deem it appropriate to state

that impugned orders suffer from legal infirmities and the same are

quashed. The matter be placed before the same Tribunal for

reconsideration in the light of the discussion referred above. These writ

petitions are accordingly disposed of. No costs.

43. List the matter on 11.01.2011 before the Tribunal. L.C.R. be

also sent along with this order.

MANMOHAN SINGH, J.

November 30, 2010 jk