Delhi Transport Corporation vs Suresh Kumar
2011 Latest Caselaw 2394 Del

           *IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                         Date of decision:   4th May, 2011

+                         WP(C) NO.2929/2011

DELHI TRANSPORT CORPORATION                    ..... Petitioner
                 Through: Mr. Manish Garg, Advocate

                                     Versus

SURESH KUMAR                                                  ..... 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 award dated 20th September, 2010 of the

Industrial Adjudicator on the following reference:

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

and granting the relief to the respondent workman of reinstatement

with continuity of service and lumpsum compensation of Rs.50,000/- only in

lieu of back wages etc.

2. The respondent workman was working as a Conductor with the

petitioner DTC w.e.f. 9th August, 1984 as a permanent employee. He was on

17th February, 1992 charged with, having reached the depot late by one hour

for duty on 31st January, 1992, having shouted and abused the ATI Mr. Sher

Singh when he refused to mark the attendance of the respondent workman;

having picked up quarrel with Mr. Sher Singh and having provoked other

persons and having threatened Mr. Sher Singh. The said acts of the

respondent workman were stated to be acts of indiscipline and misconduct as

per Rule 19 (g) & (m) of the DTC Code of Conduct for the Employees. An

Inquiry Officer was appointed who submitted a report finding the respondent

workman guilty of the charges. The Disciplinary Authority of the petitioner

DTC on 29th September, 1992 imposed the punishment of removal from

service on the respondent workman.

3. The record reveals that an application under Section 33 (2)(b) of the

ID Act was preferred by the petitioners DTC seeking approval of its action

of removal of respondent workman from service. In the said proceedings the

inquiry held against the respondent workman was held to be valid.

4. The respondent workman also raised a dispute and on which the

reference aforesaid was made. In the trial of the said reference also, a

preliminary issue as to the validity and legality of the inquiry, was framed. It

appears that at one stage, on the basis of order in Section 33(2)(b)

proceeding holding the inquiry to be valid, the inquiry was held to be valid,

in the Section 10 reference proceedings also; however the said order was

recalled, the scope of reference under Section 10 being wider than that of a

proceeding under Section 33(2)(b).

5. The Industrial Adjudicator vide order dated 30th October, 2009, also

impugned in the present writ petition, held the ex parte inquiry and the

findings in the inquiry report to be violative of the principles of natural

justice for the reason of the petitioner DTC having not taken care to even

serve the charge sheet on the respondent workman.

6. Opportunity was availed by the petitioner DTC to prove misconduct

before the Industrial Adjudicator. The Industrial Adjudicator, after

consideration of the evidence so led, has held that the charges/misconduct

alleged was not proved. It was also held that even if the workman had

abused in filthy language, the same did not warrant the extreme punishment

of dismissal/removal from service and the ends of justice would be met by

restricting the claim for backwages from 29 th September, 1992 when the

respondent workman was removed from service and till the date of the

award i.e. 20th September, 2010 i.e. for 18 long years to Rs.50,000/- only.

7. Being not satisfied the present petition has been preferred.

8. The counsel for the petitioner DTC has contended that the strict and

sophisticated Rules of Evidence as have been followed by the Industrial

Adjudicator are not applicable to domestic inquiries. Reliance in this regard

is placed on State of Haryana v. Rattan Singh (1977) 2 SCC 491. Attention

is invited to the cross examination of the workman before the Industrial

Adjudicator where he has admitted that the registered letter through which

the charge sheet was sent bore his correct address and also that he had

knowledge of the inquiry conducted against him.

9. The finding as to whether the charge sheet was served on the

respondent workman or not, is a finding of fact, not ordinarily interfereable

in exercise of powers of judicial review under Article 226 of the

Constitution, unless shown to be perverse, unreasonable or based on no

evidence at all. Else even wrong conclusions on appreciation of evidence do

not call for exercise of power of judicial review. See:

(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)

laying down that repetition of re-appreciation of evidence is not

permissible in exercise of power under Article 226. Also see:

(a) Kirloskar Brothers Ltd. Vs. The Presiding Officer,

Labour Court ILR (1976) 1 Del 565.

(b) DTC Vs. Delhi Administration ILR (1973) 1 Del 838.

               (c)     Jawahar     Singh     Vs.     Financial    Commissioner

               MANU/DE/8396/2007.

               (d)     Kishan Chand Bhatia Vs. UOI MANU/DE/0265/2005

holding that a finding of fact even if erroneous would not

form the basis for judicial review.

10. The Industrial Adjudicator has in the order dated 30th October, 2009

held that the petitioner DTC had the benefit of serving the charge sheet

personally on the respondent workman through the depot where the

workman was working but which had not been done; that there was no

noting by the Inquiry Officer also in the proceeding that the charge sheet

was served on the respondent workman by registered post AD; that the only

evidence of the charge sheet having been served was the bare statement of

witnesses of the petitioner DTC to the said effect.

11. As far as the cross examination of the respondent workman before the

Industrial Adjudicator to which attention has been invited as aforesaid is

concerned, the respondent workman therein has also stated that he went to

the Inquiry Officer to attend the inquiry but no inquiry was conducted; the

workman also clarified that he merely had the intimation and knowledge of

the pendency of the inquiry. The same in my view cannot be a substitute for

the requirement of service of the charge sheet and the findings of the

Industrial Tribunal on which aspect are found to be plausible finding and

which by no means can be said to be perverse or unreasonable.

12. As far as the proof of misconduct before the Industrial Adjudicator is

concerned, the Industrial Adjudicator in the award dated 20th September,

2010 has held that though the charge against the respondent workman was of

use of foul language but neither was the said language repeated in verbatim

nor the details of foul language deposed by any witness; that there was

conflicting evidence of the respondent workman having manhandled his

colleague and immediate superior-with some witnesses saying that the

respondent workman had merely threatened to manhandle his immediate

superior Mr. Sher Singh; that there was no record to show that the

respondent workman had come late and no rule to the effect that the

workmen coming late were not allowed to mark their attendance was shown.

The Industrial Adjudicator on appreciation of said evidence held that the

only thing which can be said with certainty from the evidence was of the

respondent workman having argued with his immediate superior Mr. Sher

Singh. It was further held that no complaint of manhandling was made at the

relevant time and no medical evidence produced.

13. Attention of the counsel for the petitioner has been invited to the

recent judgment of the Division Bench of this Court in Krishan Pal v UOI

178(2011) DLT 521 where also the charge was of use of abusive language.

It was held that persons, in that case Jawans, do speak street language while

communicating with each other and liberally spice queries with abuses in

their language and notice of the same has to be taken by the Courts. Mention

may also be made of Rama Kant Misra v State of UP

MANU/SC/0194/1982 also holding that the punishment of dismissal was

excessive where the employee was found to have uttered indecent words and

used abusive language. The same view was reiterated recently in J.K.

Synthetics Ltd. v. K.P. Agrawal (2007) 2 SCC 433.

14. In the circumstances, no error capable of interference can be found in

the order of Industrial Adjudicator. It is felt that the award restricting the

backwages / emoluments for 18 years to Rs.50,000/- only is punishment

enough for the aberration on the part of the respondent workman.

The writ petition is accordingly dismissed with no order as to costs.

RAJIV SAHAI ENDLAW (JUDGE) MAY 4, 2011 M (corrected and released on 18 th May, 2011)