Delhi Transport Corporation vs Kanwar Lal
2011 Latest Caselaw 2961 Del

          *IN THE HIGH COURT OF DELHI AT NEW DELHI

                                                Date of decision: 2nd June, 2011.

+                                 W.P.(C) 3288/2011

%      DELHI TRANSPORT CORPORATION                ..... Petitioner
                   Through: Ms. Saroj Bidawat, Advocate

                                      Versus
       KANWAR LAL                                               ..... Respondent
                           Through:      None.
CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1.     Whether reporters of Local papers may                  No.
       be allowed to see the judgment?

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 petition impugns the order dated 5th February, 2009 and the award

dated 1st April, 2010 of the Industrial Adjudicator deciding the following

reference:-

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

by directing the petitioner DTC to reinstate the respondent workman

without any back wages but with Rs.25,000/- as litigation expenses.

2. The respondent workman was employed with the petitioner DTC as a

conductor. The route on which he was posted was raided on 20 th March,

1995 and he was charged with having on board a woman passenger having

a ticket punched upward when the trip was downward and being in

possession of excess cash of Rs.108.95p. Departmental inquiry held found

the respondent workman guilty and the punishment of removal from service

was meted out to him.

3. Upon dispute being raised by the respondent workman, the Industrial

Adjudicator first vide order dated 5th February, 2009 held departmental

inquiry to be vitiated, not for the reason of proper opportunity having not

been given to the respondent workman but for the reason of the charge as to

the woman passenger being not meted out from the report of the raid and for

the reason of the excess cash being explained by the workman. The

workman had explained the excess cash by contending that the same was

towards the money which was to be returned to the passengers on board and

who had in this regard also filed a consumer complaint against the petitioner

DTC and which had been allowed. On similar grounds the award was also

made against the petitioner DTC.

4. The order/award is not found to be containing any error requiring

interference. The petitioner DTC in the present writ petition has not disputed

the factum of the passengers whose excess cash the respondent workman

claimed to be holding having filed the consumer complaint. If that

be the position, then the excess cash would stand explained and the

respondent workman cannot be said to be guilty of misconduct inviting the

extreme punishment of removal from service.

5. The counsel for the petitioner had on 16 th May, 2011 sought time to

verify the position with respect to the consumer complaint. Thereafter

adjournments were sought on 25th May, 2011 and 1st June, 2011. The

counsel for the petitioner DTC today states that no instructions have been

forthcoming. It is not necessary to keep the matter pending. There is no

reason to disbelieve the finding of the Industrial Adjudicator with respect to

the consumer complaint especially when the petitioner DTC in this writ

petition has not disputed the same on oath. Thus no error can be found with

the finding of the Industrial Adjudicator of the charge of excess cash in

possession of the respondent workman having not been made out.

6. The counsel for the petitioner has today invited attention to para 16 of

the impugned award where it is inter alia recorded that it is stood proved

that there was one passenger found travelling in down direction but the

ticket punched in the up direction and the respondent workman having

handed over a unpunched ticket. It is contended therefrom that the

respondent workman has been found guilty of causing loss to the petitioner

DTC and even if the said loss is to be of Rs.1/-, the petitioner is entitled to

have lost faith in the respondent workman and cannot be compelled to

reinstate him. However, in para 17 of the award, the Industrial Adjudicator

has held that the workman was charged with a woman passenger having a

stale ticket; that during the evidence, it was found that the person in

possession of the stale ticket was Shaffi Ahmad and not a woman passenger;

that the workman had not been charged with issuance of ticket punched in

the up direction to a passenger travelling in the down direction and thus the

said finding also was irrelevant.

7. It would thus appear that the Industrial Adjudicator has on the

appreciation of the evidence lead before him found no cause of misconduct

to have been established. This Court in exercise of power of judicial review

cannot revisit the evidence. All that can be said is that the findings are based

on some evidence and are thus not perverse or unreasonable. Reference in

this regard may be made to:

(i) Govt. of A.P. Vs. Mohd. Narsullah Khan (2006) 2 SCC 373.

(ii) Sub-Divisional Officer, Konch Vs. Maharaj Singh (2003) 9

SCC 191.

(iii) Union of India Vs. M/s Mustafa and Najibai Trading Co.

(1998) 6 SCC 79.

(iv) B.C. Chaturvedi Vs. UOI (1996) I LLJ 1231 SC.

(v) Poorna Singh Kain Vs. UOI MANU/DE/1292/2008.

(vi) Suresh Kumar Vs. The Management of Monsanto Enterprise

Pvt. Ltd. MANU/DE/8303/2007.

(vii) Ram Narain Jha Vs. T.M. Apartments Pvt. Ltd. 2007 (99) DRJ

724.

(viii) MCD Vs. Satish Kumar (2005) 81 DRJ 344 (DB)

8. The counsel for the petitioner has next contended that the past record

of the respondent workman is also bad. However, for this reason only, the

Industrial Adjudicator has denied back wages of nearly 11 years to the

respondent workman and thus the award on the said aspect is also reasoned

and no error is found therein.

9. Moreover, I am of the view that if the present petition is entertained,

the petitioner DTC would become liable for wages under Section 17B of the

Industrial Disputes Act, 1947. It is found that the petitioner is paying huge

amounts of public money towards 17B wages by filing writ petitions against

all awards irrespective of the merits thereof. For this reason also, it is not

deemed appropriate to entertain this petition.

The petition is therefore dismissed. No order as to costs.

RAJIV SAHAI ENDLAW (JUDGE) JUNE 02, 2011/gsr