Sh.Shish Ram vs Delhi Transport Corporation & ...
2011 Latest Caselaw 5468 Del

*                       THE HIGH COURT OF DELHI AT NEW DELHI

                                                     Judgment reserved on: 13.09.2011
%                                                    Judgment delivered on: 15.11.2011

+                               LPA No. 370/2002

SH. SHISH RAM                                                           ...... APPELLANT

                                                 Vs

DELHI TRANSPORT CORPORATION & ANR.                               ..... RESPONDENTS

Advocates who appeared in this case:

For the Appellant:      Ms Kittu Bajaj, Advocate
For the Respondent:     Ms Arati Mahajan, Advocate

CORAM :-
HON'BLE MR JUSTICE SANJAY KISHAN KAUL
HON'BLE MR JUSTICE RAJIV SHAKDHER

1.       Whether the Reporters of local papers may
         be allowed to see the judgment ?                        Yes
2.       To be referred to Reporters or not ?                    Yes
3.       Whether the judgment should be reported                 Yes
         in the Digest ?

RAJIV SHAKDHER, J

1. At the outset, we may record that the original appellant has already expired and

was substituted by his legal heirs. The appeal is presently sought to be prosecuted by

the legal heirs of the deceased-appellant. We are informed by the learned counsel for

the appellant that legal heirs now comprise only of children of the appellant which

includes three sons and three daughters of age varying between 27 to 45 years; the wife

having also passed away in the meanwhile. The male legal heirs are gainfully employed;

though without substantial income. Keeping in mind these factors we had called upon

the respondent to ascertain whether they would be willing to settle the matter by giving

some compensation to the legal heirs purely on compassionate grounds. We must

record that the respondent had come up with a figure, which the legal heirs were not

willing to accept. In these circumstances, we are left with no alternative but to decide

the matter on merits.

2. The captioned appeal has been preferred against the judgment of the learned

Single Judge dated 21.12.2001 passed in Civil Writ Petition NO. 6288/1999 and Civil

Writ Petition No. 7335/2000. The first writ petition was filed by the delinquent

employee, while the second writ petition was filed by the employer, i.e., Delhi

Transport Corporation (hereinafter referred to as the „DTC‟).

3. The captioned appeal has been filed in the background of the following facts:

The appellant, i.e., the delinquent employee was employed as a conductor with the

DTC. His employment commenced in the year 1967. Over the years the appellant

committed several transgressions whereby from time to time he was awarded some

punishment or the other. This aspect is important as this was one of the allegation

leveled in the chargesheet, which is the subject matter of the present proceedings.

3.1 Continuing with the narrative, the appellant on 08.11.1985 was on duty on route

no. 502, when he engaged in a fracas with a passenger, namely, Sh. Girdhari Lal Verma

travelling on the said bus bearing the said route number. The passenger evidently

boarded the said bus from the I.T.O. bus stop. The passenger for the purposes of buying

a ticket handedover a two rupee note to the appellant against a fare of forty (40) paise.

The passenger intended to terminate his journey at I.N.A. market. It appears that the

appellant for the reasons best known to him humiliated the said passenger. In this

process the two rupee note was returned to the passenger with the following remarks:

"Khulley peeshe ley ke ghar se nikda kar. Challa aaya babu ban ke". The

complainant appears to have thereafter demanded the return of the balance amount

against issuance of an appropriate ticket. The appellant handed over the ticket but not

without indulging in what the complainant termed as "indecent" "gesticulations".

Since, the balance amount had not been handed over to the complainant-passenger, he

waited to receive the said amount. This appears to have infuriated the appellant, who

thereupon appears to have remarked as follows: "SEAT PE JA KAR BAITH JA. TERE

PEESHE MEN NA RAKHOON." The complainant tried to prevail upon the appellant

to behave civilly towards him as he was in no hurry to receive the money. The

appellant at this point got up from his seat and raised his fists at the complainant as if he

would strike him. According to the complainant, at this point other passengers

intervened in the matter in order to pacify the appellant. The complainant thereupon

demanded the complaint book in order to register a complaint against the appellant.

The appellant, however, instead of handing over the complaint book purportedly made

the following remarks: "KEY KAR LEGYA. JA JA KAR DE COMPLAINT CHAIRMAN

SEY. KEY BIGAR LEGYA. BAHUT DEKHE MEN TERE JAISE".

3.2 It is in this background a complaint was lodged against the appellant pursuant to

which the appellant was put under suspension vide order dated 22.11.1985 w.e.f.

23.11.1985, pending inquiry into the matter. During the period of suspension the

appellant was paid subsistence allowance at the rates laid down in para 15(4)(A)(h) of

the D.R.T.A (Conditions of Appointment & Service) Regulations, 1952 (hereinafter

referred to as „Regulations‟).

3.3 Pursuant to a preliminary inquiry held into the matter in issue, a chargesheet was

served on the appellant on 05.12.1985, whereby the appellant was asked to explain why

action under clause 15(2) of the Regulations read with Road Transport Act, 1950 and

the Delhi Transport Law (Amendment) Law, 1971 ought not to be taken against him.

The essence of the charge was communicated to the appellant. The appellant was,

based on the complaint lodged against him, called upon to show cause, why action

ought not to be taken against him qua the allegations leveled against him, as it had

resulted in tarnishing the image of the DTC, at a public place, and that his conduct

tantamounted to a misconduct within the meaning of paragraph 19(b), (j), (h) and (m) of

the Standing Orders governing the conduct of DTC employees. The statement of

allegations and a copy of the report, on which the chargesheet was based, was enclosed

for perusal of the appellant. Importantly, in the chargesheet a specific mention was

made with regard to the fact that while passing final orders the appellant‟s past conduct

would be taken into consideration.

3.4 Pertinently, the chargesheet also adverted to the fact that the response of the

appellant to the chargesheet should reach to the concerned authority (respondent no. 2)

within ten days of the receipt of the chargesheet; and that the appellant is at liberty to

inspect any relevant documents on which reliance was placed and were available on

record. For this purpose the appellant was directed to report to the concerned authority

(respondent no. 2) within 24 hours of receipt of the chargesheet. The appellant was put

to notice that any failure on his part to report to respondent no. 2 for inspection of

documents within 24 hours and non-submission of explanation to the chargesheet within

the requisite ten (10) days would result in an assumption that the appellant had no

explanation to furnish qua the chargesheet. The appellant was also put to notice that

further action thereon would follow in accordance with the Regulations in place without

any further reference to him.

3.5 It is not in dispute that the appellant did not file any reply to the chargesheet.

However, on 05.08.1986 the order of suspension was revoked. On completion of

inquiry a show cause notice was issued to the appellant on 13.07.1987. By virtue of the

said show cause notice, the appellant was called upon to respond as to why the proposed

penalty of removal from service ought not to be imposed on him. It is not in dispute

that the appellant, once again, for the reasons best known to him did not furnish a

response to the said show cause notice.

3.6 Thus, after due consideration of the inquiry report the Disciplinary Authority

passed an order dated 18.09.1991 directing removal of the appellant from the services of

DTC.

4. In view of the fact that a dispute between the employees at large and the DTC,

pertaining to implementation of the 4th pay commission, was pending resolution before

the Industrial Tribunal (hereinafter referred to as „Tribunal‟), an application was filed by

DTC under Section 33(2)(b) of the Industrial Disputes Act, 1947 (in short „I.D. Act‟)

before the Tribunal by way of abundant caution seeking approval with regard to action

taken against the appellant for removal from service. This application was filed by the

DTC on 18.09.1991 itself. Alongwith the application a copy of the inquiry report and

the entire inquiry record was filed with the Tribunal. The DTC also dispatched one

month‟s wages to the appellant by way of money order on the very same day, i.e.,

18.09.1991.

4.1 In response to the said application filed by the DTC, a reply was filed by the

appellant, which was followed by a rejoinder of the DTC. The Tribunal based on the

pleadings filed, framed the following preliminary issue:- (i) Whether the

applicant/DTC held a legal and valid inquiry against the respondent, according to the

principle of natural justice?

4.2 As regards the aforesaid issue, the Tribunal by an order dated 28.02.1998, came

to the conclusion that the inquiry conducted against the appellant was unfair and

improper and, hence proceeded to decide the said preliminary issue against the DTC. It

is important to note, however, that this order dated 28.02.1998 of the Tribunal, inter

alia, alludes to the following:

(i) the fact that DTC had filed the record of the inquiry (albeit photocopies) before

it and that the same was marked as exhibit AW1/3;

(ii) the appellant examined only himself in support of his challenge to the validity of

the inquiry; and

(iii) that there was no dispute between the parties that the appellant had been served

with chargesheet dated 05.12.1985.

4.3 What appears to have persuaded the Tribunal to come to the conclusion, which it

did, in its order dated 28.02.1998, was that the management/ DTC did not examine any

witness before the inquiry officer, and that the defence witness, i.e., the appellant, was

put into the witness box for examination prior to any witness being examined by the

management/DTC. The Tribunal construed this as both an unfair and improper

procedure for the reason that, according to it, all that the inquiry officer had before her

was, the material, which formed part of the preliminary inquiry and, those documents,

which "might" have been forwarded to the inquiry officer. The Tribunal took umbrage

of the fact that any document which was not produced during the course of inquiry

could not have been relied upon by the inquiry officer to come to the conclusion that the

appellant was guilty of the charges as framed against him. The Tribunal, further

observed that neither the statement recorded in the preliminary investigation was

produced in the inquiry nor did the concerned passenger affirm having made the

statement during preliminary investigation.

4.4 It is because of the aforesaid order, the Tribunal proceeded to give an

opportunity to the DTC to prove its case on merits by framing the following issues:

(i) Whether the respondent (appellant herein) committed misconduct for which he

was chargesheeted?

(ii)     Relief?

4.5      The Tribunal, by an order dated 20.05.1999 decided even the aforementioned

issues against the DTC. In this second order, the Tribunal noticed the fact that his

predecessor, who was then presiding over the Tribunal, had decided the preliminary

issue against the DTC vide order dated 28.02.1998. The Tribunal‟s conclusion in this

round was premised on the fact that the DTC had been given ample opportunity to lead

evidence by way of affidavit or otherwise in support of its stand of misconduct by the

appellant; it failed to do so. The Tribunal, also noticed the fact that the appellant in

turn, had already orally submitted that he did not wish to lead any evidence as the onus

with regard to the said issue was placed on the management/DTC. The brief reasons

recorded in this order of the Tribunal are as follows:

"Issue No. 1.

The petitioner has failed to lead any evidence to establish that the

respondent while performing duties as conductor on bus no. 1298 of route

no. 502, refused to give the passenger balance and complaint book on his

demand and that he misbehaved and tried to manhandled the passenger.

The respondent was chargesheeted for the above misconduct. The

concerned passenger has not been produced into the witness box nor his

affidavit has been filed. In the absence of evidence from the side of the

petitioner in support of the issue, the issue is decided against the

petitioner.

Relief.

Since the petitioner has failed to establish the misconduct on the

part of the respondent for which he was chargesheeted and as mentioned

in the petition, therefore, the petitioner is not entitled for any relief. The

application filed under Section 33(2)(b) of the I.D. Act is rejected."

5. Since the DTC did not reinstate the appellant, the appellant was constraint to file

a writ petition under Article 226 of the Constitution of India; being: CWP No.

6288/1999. Pleadings in this writ petition were completed upon orders passed by the

learned Single Judge of this court. In the meanwhile, DTC being aggrieved by the

aforementioned orders of the Tribunal also, filed a writ petition in this court, being:

CWP No. 7335/2000.

5.1 The learned Single Judge of this court vide the impugned judgment disposed of

the aforementioned writ petition, as noticed hereinabove.

6. The appellant, being aggrieved by the impugned judgment passed by the learned

Single Judge, preferred the captioned appeal. The instant appeal came to be tagged

erroneously with a batch of writ petitions which were disposed of by a Division Bench

of this court on 21.09.2002. The DTC, being aggrieved with the order of the Division

Bench filed a Special Leave Petition with the Supreme Court. The Supreme Court after

granting leave in the civil appeal passed an order dated 28.11.2003, whereby it

remanded the matter to the Division Bench of this court for a fresh adjudication as the

issue involved in other appeals before the Division Bench was not same as that which

arose in the present appeal. In the batch of writ petitions, which were disposed of by the

earlier Division Bench vide order dated 21.09.2002, broadly related to cases where

employees were removed from service for being absent without leave. In that

judgment, the Division Bench examined the aspect as to whether an order of removal

could be sustained where a delinquent-employee had been granted leave without pay or

his leave had been regularized before imposition of such a punishment.

7. It is in this background that the aforesaid appeal was heard by us. Before us,

arguments were addressed by Ms Kittu Bajaj on behalf of the appellant, while on behalf

of the DTC arguments were advanced by Ms Arati Mahajan, Advocate.

7.1 Ms Bajaj submitted that this was a case of no evidence as none had been placed

before the inquiry officer. The charges, as framed, had not been proved. As a matter of

fact it was submitted that the inquiry stood vitiated and hence the management, i.e., the

DTC, could not rely upon the inquiry proceedings and/or the report generated thereon.

It was further submitted that the management-DTC had failed to lead any evidence in

the matter, as recorded by the Tribunal in its order dated 20.05.1999, and therefore the

conclusion arrived at by the Tribunal, both in the order dated 28.02.1998 and

20.05.1999, ought to be sustained. Ms Bajaj laid great stress on the fact that in the writ

petition filed by DTC, the order passed by the Tribunal qua the preliminary issue, had

not been challenged and, therefore, the said order had attained finality. Ms Bajaj, also

submitted that the learned Single Judge in the impugned judgment had re-appreciated

the evidence based on the observations made in the preliminary inquiry report. Ms

Bajaj also raised cavil with respect to the observations of the learned Single Judge that

the Tribunal had insisted with the management-DTC to lead evidence to prove the case

on merits. It was contended that the averments made in paragraph 13 of the application

for approval, filed by the management-DTC, would demonstrate to the contrary. In

nutshell, Ms Bajaj submitted that the Tribunal had correctly adverted to the procedural

defects in the conduct of the inquiry which is apparent from the following:

(i) the statement of the defence witness, i.e., the appellant, was taken before the

Management-DTC placed its case before the inquiry officer;

(ii) the findings of the inquiry officer which are based on the preliminary report

were not supplied to the workman;

(iii) no evidence was placed by the management-DTC before the inquiry officer

during the course of the inquiry proceeding;

(iv) there was no evidence in the form of statement of the complainant/ witness; and

(v) lastly, the testimony of the driver was not considered by the inquiry officer.

7.2 In support of her submissions, Ms Bajaj relied upon the following judgments:

Bharat Iron Works vs Bhagubhai Balubhai Patel & Ors. 1976 (32) FLR 72(SC); K.N.

Baruah vs Management of Budla Beta T.E. & Anr. 1967 (15) FLR 40; Karnataka State

Road Transport Corpn. Vs Lakshmidevamma (Smt.) & Anr. (2001) 5 SCC 433; State of

U.P. vs Mohd. Sharif (dead) through L.Rs AIR 1982 SC 937; Kashinath Dikshita vs

UOI & Ors. AIR 1986 SC 2118 and DTC vs Anup Singh 133 (2006) DLT 148 (DB).

8. Ms Mahajan, on the other hand, placed reliance on the impugned judgment.

The learned counsel further contended that in proceedings under Section 33(2)(b) of the

I.D. Act the Tribunal was only required to examine whether or not there exists a prima

facie case against the delinquent workman. If a prima facie case is made out, the

approval has to be granted. In support of this submission reliance was placed on the

judgment in the case of DTC vs Ram Kumar 1982 II LLJ 191. Learned counsel further

contended that the contours of what the courts would consider, as the ingredients of a

prima facie case, are spelled out in Martin Burn Ltd. vs R.N. Banerjee 1958 I LLJ 247.

Based on the aforesaid, learned counsel submitted that all that the Tribunal was required

to examine was whether the evidence placed before it, was sufficient to establish that it

was possible to arrive at the conclusion, which the management had arrived at, and not,

that there was a possibility of arriving at a different conclusion based on the same

evidence. Taking the aforesaid contention further, the learned counsel submitted that it

was not the function of the Tribunal to sit in appeal over the findings of the inquiry

officer. Ms Mahajan also found fault with the Tribunal‟s conclusion which was

premised on the fact that neither the complainant-passenger and nor were other

passengers examined as a witnesses before the inquiry officer. It was contended that

courts by way of various judicial pronouncements have repeatedly held that passengers

were not material witnesses in such like cases. In support of this proposition the learned

counsel relied upon the following judgments: State of Haryana vs Rattan Singh 1977

(347) FLR 264; Delhi Transport Corporation vs N.K. Kakkar & Ors. 2004 (II) CLR

489 (Delhi); Delhi Transport Corporation vs Om Pal & Ors. 2004 (II) CLR 366

(Delhi).

REASONS

9. After hearing learned counsels for the parties, in our view, from the perusal of

the record and submissions made before us, the following quite clearly emerges:

(i) A preliminary inquiry was conducted in the matter on 22.11.1985. At the stage

of holding a preliminary inquiry, the statement of the complainant was recorded

wherein, the complainant tendered his oral deposition with regard to the allegations

made in the complaint filed.

(ii) At this stage, i.e., the preliminary inquiry stage, the appellant - delinquent

employee, was also given an opportunity to make a submission. The appellant,

however, in his submission conveyed that he had tendered a written statement in Hindi

on 20.11.1985, which ought to be treated as his submission in the preliminary inquiry.

He went on to say that he had nothing further to add to the written statement already

made by him on 20.11.1985. By this statement the appellant while seeking to place the

blame on the complainant-passenger does not dispute the fact that a fracas erupted on

the date of the alleged incident.

(iii) Importantly, on a question being put by the inquiry officer at this (preliminary)

stage, as to whether the complainant was the very same person (i.e., the passenger), who

had lodged the complaint in issue and threatened him; was answered in the affirmative

by the appellant.

(iv) A chargesheet dated 05.12.1985, was admittedly served on the appellant.

(v) Eventhough, the chargesheet was received by the appellant, no reply had been

filed to the same.

(vi). The appellant was given several opportunities to appear before the inquiry

officer in the subsequent domestic enquiry. The appellant chose not to appear before

the inquiry officer, including on the date fixed for making a final statement.

(vii) On conclusion of the domestic inquiry, a show cause notice dated 13.07.1987,

was served on the appellant with regard to the proposed punishment of removal from

service. The appellant did not file his response to the same.

(viii) Lastly, on twenty one (21) occasions in the past the appellant‟s conduct had been

found at fault with by the management-DTC. Out of 21 occasions on 11 occasions the

appellant had been found guilty of the charge of non-issuance of ticket after collecting

due fare and on two occasions had refused to refund the balance money to the passenger

after adjusting the fare.

10. It is in the background of the aforesaid that the Tribunal found fault with the

proceedings of the inquiry officer. As noticed by us hereinabove, the error which the

inquiry officer had committed, according to the Tribunal, was that it had examined the

defence witness prior to any evidence having been led by the management-DTC. It is

pertinent to note that the Tribunal in its first order dated 28.02.1998 (wherein it came to

the conclusion that the inquiry conducted by the management-DTC was both unfair and

improper) has in no uncertain terms observed that the entire inquiry record had been

placed before it and proved. The said document was decidedly marked as exhibit AW-

1/1. It is thus clear that in so far as the management-DTC was concerned it was relying

upon the proceedings which were conducted at the preliminary inquiry stage, wherein

admittedly, the statement of the complainant-passenger was recorded. At that stage the

appellant, i.e., the delinquent employee, chose not to record his statement but relied

upon the written statement submitted on 20.11.1985. It is only before the inquiry

officer that the appellant seems to have changed his mind, and thus, proceeded to make

a statement in support of the defence raised by him before the inquiry officer. In these

circumstances, in our view, for the Tribunal to come to the conclusion that there was a

procedural breach of a substantive nature, which resulted in prejudice being caused to

the appellant-delinquent employee, is to say the least, an erroneous appreciation of the

circumstances which obtained in the said case. As a matter of fact the chargesheet itself

put the appellant to notice as to what could follow in case, if he did not respond to the

allegations leveled against him. The chargesheet clearly adverts to the fact that a

statement of allegations stood enclosed therewith. Furthermore, the chargesheet also

adverted to the fact that the report, i.e., the preliminary inquiry report, which preceded

the issuance of the chargesheet, stood enclosed with it. Therefore, for the Tribunal to

come to the conclusion that the proceedings were unfair and improper, in our view,

loses sight of the aforementioned crucial facts which obtained in this case, which

includes the fact (as noticed by us hereinabove) that even in respect of the show cause

notice dated 13.07.1987, whereby the appellant was put to notice of the proposed

punishment; no reply had been filed by him. The principles of natural justice have been

crafted and shaped by judicial dicta over the years to ensure at the end of the day that

there is fair play in action. The purpose being to forge together an amalgam of the

requirement of, the strict letter of the law and those which further the cause of good

conscious and equity. One of the modes of obtaining this hallowed objective is by

teethering the concerned authority to the norm of fairness qua substantive procedure.

[See State Bank of Patiala vs S.K. Sharma (1996) 3 SCC 364]. In our opinion no

known principle of natural justice was violated by the inquiry officer which would

include his action of recording the statement of appellant prior to the management-DTC

being called upon to lead evidence in the matter. The technical rules of the Evidence

Act, 1872 are not applicable to a domestic inquiry. The appellant was accorded a fair

opportunity to defend himself. The management-DTC on its part as is obvious had only

relied upon the material placed on record at the preliminary stage. The report thus

generated was proved before the inquiry officer. The management-DTC did not wish to

add to the material on record. It was, therefore, incumbent on the Tribunal to ascertain

whether it met the test of having established a prima facie case.

10.1 In our view, what the Tribunal lost focus of, was the scope and extent of the

inquiry which it was required to make under Section 33(2)(b) of the I.D. Act. In order

to sustain an application for approval for discharge or removal from service under the

aforementioned provision, all that the Tribunal, is required to discover is the existence

of a prima facie case as set by the employer against the delinquent employee. It would

have to be borne in mind that an approval of an application under section 33(2)(b) of the

I.D. Act does not rule out the possibility of taking recourse the provisions of section 10

of the I.D. Act. (see ITC Ltd. Vs. Government of Karnataka [1985] 1 LLJ 227, [1985]

2 LLJ 430 (Karnataka) (DB), Hindustan General Electric Corporation Vs. State of

Bihar [1965] 2 LLJ 97 (Pat.) (DB) and Navalbhai Karsanbhai Chanhari Vs. Shri

Digvijay Woollen Mills Ltd. [1988] 2 LLJ 101 & 108. As to what is the scope of the

expression "prima facie case" in the context of a domestic inquiry, one can do no better

than quote the observations made by the Supreme court in Martin Burn (supra):

"....A prima facie case does not mean a case proved to the hilt but a case

which can be said to be established if the evidence which is led in

support of the same were believed. While determining whether a prima

facie case had been made out the relevant consideration is whether on the

evidence led it was possible to arrive at the conclusion in question and

not whether that was the only conclusion which could be arrived at on

that evidence. It may be that the Tribunal considering this question may

itself have arrived at a different conclusion. It has, however, not to

substitute its own judgment for the judgment in question. It has only got to

consider whether the view taken is a possible view on the evidence on the

record. (See Buckingham and Carnatic Co., Ltd. Case 1952 L.A.C. 490.

The Labour Appellate Tribunal in the instant case discussed the evidence

led before it in meticulous detail and came to the conclusion that no prima

facie case was made out by the appellant for the termination of the service

of the respondent. It applied a standard of proof which having regard to

the observations made above was not strictly justifiable...."

(emphasis is ours)

10.2 In the case of Cholan Roadways Ltd. Vs G. Thirugnanasambandam (2005) 3

SCC 241 the Supreme Court has cited with approval the principle enunciated in Martin

Burn (supra) case in addition it reiterates the principle of law which govern such an

enquiry. The relevant parts are extracted hereinbelow:

"....15. It is now a well-settled principle of law that the principle of

Evidence Act have no application in a domestic enquiry.

16. In Maharastra State Board of Secondary and Higher Secondary

Education v. K.S. Gandhi and Ors. : [1991] 1 SCR 773, it was held:

"37. It is thus well settled law that strict rules of the Evidence

Act, and the standard of proof envisaged therein do not apply

to departmental proceedings or domestic tribunal. It is open

to the authorities to receive and place on record all the

necessary, relevant, cogent and acceptable material facts

though not proved strictly in conformity with the Evidence

Act. The material must be germane and relevant to the facts

in issue......

.........The standard of proof is not proof beyond reasonable

doubt but the preponderance of probabilities tending to draw

an inference that the fact must be more probable. Standard of

proof, however, cannot be put in a strait-jacket formula. No

mathematical formula could be laid on degree of proof. The

probative value could be gauged from facts and

circumstances in a given case. The standard of proof is the

same both in civil cases and domestic enquires."

17. There cannot, however, be any doubt whatsoever that the principle of

natural justice are required to be complied with in a domestic enquiry. It

is, however, well-known that the said principle cannot be stretched too

far nor can be applied in a vacuum.

18. The jurisdiction of the Tribunal while considering an application for

grant of approval has succinctly been stated by this Court in Martin

Burn Ltd. v. R.N. Banerjee : (1958) I LLJ 247 SC. While exercising

jurisdiction under Section 33(2(b) of the Act, the Industrial Tribunal is

required to see as to whether a prima facie case has been made out as

regard the validity or otherwise of the domestic enquiry held against the

delinquent; keeping in view the fact that if the permission or approval is

granted, the order of discharge or dismissal which may be passed

against the delinquent employee would be liable to be challenged in an

appropriate proceeding before the Industrial Tribunal in terms of the

provision of the Industrial Disputes Act. In Martin Burn's case (supra)

this court stated:

"A prima facie case does not mean a case proved to the hilt

but a case which can be said to be established if the evidence

which is led in support of the same were believed. While

determining whether a prima facie case had been made out

the relevant consideration is whether on the evidence led it

was possible to arrive at the conclusion in question and not

whether that was the only conclusion which could be arrived

at on that evidence. It may be that the Tribunal considering

this question may itself have arrived at a different conclusion.

It has, however, not to substitute its own judgment for the

judgment in question. It has only got to consider whether the

view taken is a possible view on the evidence on the record.

(See Buckingham & Carnatic Co. Ltd. v. The Workers of the

Company (1952) LAC 490(F)....."

19. It is further trite that the standard of proof required in a domestic

enquiry vis-a-vis a criminal trial is absolutely different. Whereas in the

former 'preponderance of probability' would suffice; in the latter, 'proof

beyond all reasonable doubt' is imperative.

20. The tribunal while exercising its jurisdiction under

Section 33(2)(b) of the Industrial Disputes Act was required to bear in

mind the aforementioned legal principles. Furthermore, in a case of this

nature the probative value of the evidence showing the extensive

damages caused to the entire left side of the bus; the fact that the bus

first hit the branches of a tamarind tree and then stopped at a distance of

81 ft therefrom even after colliding with another bus coming from the

front deserved serious consideration at the hands of the tribunal. The

nature of impact clearly demonstrates that the vehicle was being driven

rashly or negligently.

21. Res ipsa loquitur is a well-known principle which is applicable in the

instant case. Once the said doctrine is found to be applicable the burden

of proof would shift on the delinquent. As noticed hereinabove, the

enquiry officer has categorically rejected the defence of the Respondent

that the bus was being driven at a slow speed.

22. xxxx

23. xxxx

24. In A.T. Mane (supra), this Bench observed:

"5...Learned counsel relied on a judgment of this Court in

support of this contention of his in the case of Karnataka

State Road Transport Corpn. v. B.S. Hullikatti (2001) 2 SCC

574. That was also a case where a conductor concerned had

committed similar misconduct 36 times prior to the time he

was found guilty and bearing that fact in mind this Court held

thus:-

"Be that as it may, the principle of res ipsa loquitur,

namely, the facts speak for themselves, is clearly

applicable in the instant case. Charging 50 paise per

ticket more from as many as 35 passengers could only

be to get financial benefit, by the Conductor. This act

was either dishonest or was so grossly negligent that

the respondent was not fit to be retained as a

Conductor because such action or inaction of his is

bound to result in financial loss to the appellant

corporation."

6. On the above basis, the Court came to the conclusion that

the order of dismissal should have been set aside. In our

opinion, the facts of the above case and the law laid down

therein applies to the facts of the present case also......"

11. Applying the dictum laid out in the aforementioned case by the Supreme court,

we are of the opinion that the Tribunal went beyond its jurisdiction while examining the

inquiry report. As a matter of fact the second order vide which the Tribunal proceeded

to decide the matter on merits, adverts very vaguely to some documents being placed

before the inquiry officer which the inquiry officer ought not to have taken into account.

We are quite clueless as to which were those documents which the Tribunal found fault

with and, therefore, evidently based on these documents the inquiry officer came to the

conclusion that the appellant, had engaged in misconduct as charged.

12. The contention of the learned counsel for the appellant, Ms Bajaj that the

management-DTC in its writ petition had not laid a challenge to the first order of the

Tribunal, i.e., order dated 28.02.1998, is also not quite correct. A perusal of the writ

petition and the prayer clause, in particular prayer clause III, would show that the

management-DTC had raised a cavil in respect of the order of the Tribunal dated

28.02.1998. In any event, in our view, the order dated 28.02.1998 stood merged in the

subsequent order dated 20.05.1999 passed by the Tribunal, which was, squarely

challenged in the writ petition filed on behalf of the management-DTC. Therefore, the

argument of Ms Bajaj, even on this score is misconceived both in law and on facts.

13. The other submission of the learned counsel for the appellant that the copy of the

preliminary report was not supplied to the workman is, according to us, not quite

accurate, in view of the fact that the chargesheet itself adverts to the statement of

allegations and the report. It is not disputed before us that a preliminary inquiry was

conducted and a report generated thereupon. Ordinarily, a prudent man, when faced

with this situation where documents adverted to in the chargesheet are not made

available, would respond by stating so, at the very initial stage. The fact that no reply

was filed to the chargesheet would make it abundantly clear that this is a desperate plea

made on behalf of the appellant to shore up his stand in the case. We have already

noticed hereinabove that the chargesheet itself adverted to the fact that the appellant was

free to inspect the record qua the documents on which reliance was placed by the

management-DTC is plea, in our view is plea made to create prejudice which

unfortunately does not find resonance in the record of the courts below.

14. As regards the submission of Ms Bajaj that the inquiry officer did not give due

weight to the testimony of the driver, we have examined the report of the inquiry

officer. A perusal of the report would show that on appreciation of the testimony he

came to the conclusion that it could not be relied upon. One of the reasons for this

conclusion was that at the relevant time the driver was at the head of the bus whereas

the incident involving the appellant and the complainant occurred at the rear end of the

bus. In our opinion the appreciation of evidence is within the domain of the inquiry

officer. The inquiry officer having done so, we would not disturb it in these

proceedings without being shown as to how it falls foul of any known principle of law

or that of prudence.

15. Before we part with the judgment, let us also deal with the judgments cited by

the appellant. The first judgment in a series of judgments cited by the learned counsel

for the appellant is the judgment of the Supreme Court in the case of Bharat Iron

Works (supra). The principle laid down in this judgment has been followed both in the

earlier judgments of the Supreme Court as well as those which have followed the said

case. Briefly, in this case the delinquent employees were charged with the misconduct

of having assaulted newly appointed temporary workers, while returning from a hotel in

close proximity to the factory where they had their mid-day meal. The delinquent

employees allegedly were in the company of certain outsiders when the assault took

place. The apparent cause for assaulting temporary workers was that while the

delinquent employee had struck work, the temporary workers had joined the factory for

work. Pursuant to an enquiry, an order of dismissal was passed. Since certain other

industrial disputes were pending adjudication between the management and its

employees, an application under Section 33(2) and 33(3) of the I.D. Act was filed.

15.1 Despite the fact that the Tribunal had returned a finding that there was no defect

in the conduct of the domestic inquiry, it proceeded to dismiss the application for grant

of approval, on the ground that the "findings of the inquiry officer were perverse and

not bonafide". The Tribunal also held that the plea of victimization advanced by the

delinquent-employees was made out in the case. The matter travelled to the Supreme

Court. The Supreme Court observed in the said judgment that even though there was no

defect in the domestic inquiry, the Tribunal was entitled to examine the evidence to find

out whether a prima facie case was made out or, that the findings returned by the

inquiry officer were perverse. The Supreme Court after examining the evidence placed

on record, came to the conclusion that the Tribunal‟s finding were manifestly perverse

in holding that there was not even a prima facie case made out against the workman and

that the findings of the inquiry officer were not bonafide. Accordingly, the appeal of

the management was allowed. It is evident that the facts obtaining in the said case are

completely distinguishable from those in the present case. As a matter of fact the

judgment does not even remotely, advance the case of the appellant.

15.2 K.N. Baruah (supra): In this case the delinquent employee was charged with

having assisted certain persons in entering the factory premises and attempting to

decamp with a certain quantity of untreated tea leaves lying on the floor of the sorting

room of the factory. Since the factory assistant accompanied by another employee,

arrived at the scene, the delinquent employees ran away with their accomplices leaving

behind the tea. An inquiry was conducted. An order of removal from service was

passed thereupon. The management filed an application under Section 33(2) of the I.D.

Act. Before the Tribunal it was contended that the principles of natural justice were not

adhered to in the domestic inquiry as no opportunity was given to the delinquent

employee to cross-examine the management witness. The Tribunal came to the

conclusion that the management witness was not examined in the presence of the

delinquent-employee and hence, principles of natural justice were breached.

Thereupon, the Tribunal considered the management‟s case on merits. The matter

reached the Supreme Court. The Supreme Court observed that once the Tribunal held

that the domestic inquiry was conducted in violation of principles of natural justice, it

was incumbent upon the Tribunal to consider the matter based on the evidence adduced

before it. At that stage, the Tribunal was not to consider, as to whether there was only a

prima facie case for dismissal.

15.3 Once again it is not the principle in issue but the application of the principle to

the facts of this case. In the facts of the present case, we have already held that no

known principle of natural justice was violated and, therefore, the test to be applied by

the Tribunal in coming to the conclusion whether or not approval ought to be granted to

the application filed under Section 33(2)(b) of the I.D. Act was one of, establishment of,

a prima facie case.

15.4 The third judgment cited before us is once again a judgment of the Supreme

Court rendered in Karnataka State Road Transport (supra). This is a Constitution

Bench judgment where two concurring judgments were rendered. The Constitution

Bench was called upon to consider the decision rendered in Shambhu Nath Goyal vs

Bank of Baroda (1983) 4 SCC 491. The question which came up for consideration

before the Bench was the stage at which the employer can seek leave of the court to lead

additional evidence in a proceeding under Section 10 or Section 33 of the I.D. Act.

Two judges concurring with the view taken in Shambhu Nath Goyal (supra), came to

the conclusion that the employer can seek leave to lead additional evidence at the stage

"when it files a statement of claim or written statement or makes an application seeking

either permission to take certain action or seeking approval of the action taken by it".

The other two judges who passed a separate but a concurring judgment held that the

management should seek leave from the Court/Tribunal to lead additional evidence in

the written statement itself, but at the same time, it should not be understood as placing

fetters on the powers of the Court/ Tribunal requiring or directing parties to lead

additional evidence including production of documents at any stage of the proceedings

before they are concluded if, in the given facts and circumstances such a course is

deemed just and necessary in the interest of justice. The object being: to avoid

multiplicity of proceedings. The judgment in our view only re-establishes the right of

the management to seek leave to lead additional evidence to justify its action. In the

instant case, in our view, the stage did not arise because the management-DTC

continued to contend that its action did not violate principles of natural justice.

15.5 The fourth case cited before us is the judgment of the Supreme Court rendered in

the case of Mohd. Sharif (supra). In this case the court sustained the decision to quash

a departmental inquiry on the ground that in the chargesheet framed and served on the

delinquent-employee crucial particulars like the date and time of the alleged incident

and the situs of the incident were not adverted to. In addition, the court sustained the

plea of breach of natural justice on the ground that the preliminary statements recorded

in the preliminary inquiry, which preceded the disciplinary inquiry, were neither

supplied nor was any opportunity given to inspect the file pertaining to the preliminary

inquiry. As noticed above, the facts obtaining in the present case are diametrically

opposite to those referred to in the said judgment. The judgment has no applicability to

the instant case.

15.6 The judgment in the case of Kashinath Dikshita (supra) proceeds on the same

basis where copies of statement of witness examined at the stage of preliminary inquiry

preceding the commencement of a domestic inquiry and the documents relied upon

were not furnished. This case is also distinguishable.

15.7 The last case referred to by the learned counsel for the appellant is the judgment

of the Division Bench of this court in the case of Anup Singh (supra). This was a case

where the delinquent-employee was charged with the misconduct of having pocketed

the fare furnished by the passengers without issuing them tickets. In the inquiry the

management examined the Assistant Ticket Inspector (in short „ATI‟), who had

evidently boarded the bus on which the said incident was supposed to have occurred.

The Division Bench, on examining the evidence on record, came to the conclusion that

that there was no evidence available on record, whereby it could be established that the

delinquent-employee had collected the cash from the passengers and not furnished the

tickets. In coming to this conclusion the court held that the testimony of the ATI was

based on hearsay. The explanation given by the ATI that he had not checked the cash

available with the delinquent-employee as there was no norm to check cash in a moving

bus, was not accepted. The court came to the conclusion that the evidence led, did not,

prove the charge leveled against the delinquent-employee. It is, however, to be noticed

that the Division Bench in paragraph 16 of the judgment did observe that it may not be

possible to examine the passengers in all such like case, and in this regard noticed the

judgment of the Supreme Court in the case of State of Haryana vs Rattan Singh (1977)

2 SCC 491.

16. In view of the aforesaid, we find no error in the judgment of the learned Single

Judge. Accordingly, the appeal is dismissed. There shall, however, be no orders as to

cost.

RAJIV SHAKDHER, J

SANJAY KISHAN KAUL, J NOVEMBER 15, 2011 kk