Shri Raj Singh vs Delhi Transport Corporation
2011 Latest Caselaw 4385 Del

            *IN THE HIGH COURT OF DELHI AT NEW DELHI

                                       Date of decision: 8th September, 2011
+                              W.P.(C) 5540/2008

         SHRI RAJ SINGH                                 ..... Petitioner
                       Through:   Mr. G.S. Charya, Adv.
                              versus

         DELHI TRANSPORT CORPORATION             ..... Respondents
                     Through: Mr. J.B. Malik, Adv.
                                      AND
                              W.P.(C) 6124/2008

         DELHI TRANSPORT CORPORATION               ..... Petitioner
                     Through: Mr. J.B. Malik, Adv.
                                      versus
    SHRI RAJ SINGH                         ..... Respondents
                  Through: Mr. G.S. Charya, Adv.
CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1.       Whether reporters of Local papers may       Not necessary
         be allowed to see the judgment?

2.       To be referred to the reporter or not?            Not necessary

3.       Whether the judgment should be reported           Not necessary
         in the Digest?




W.P.(C)5540&6124/2008                                         Page 1 of 12
 RAJIV SAHAI ENDLAW, J.

1. Both, employer DTC and the workman earlier employed with DTC

as conductor, challenge the award dated 17th April, 2008 of the Industrial

Adjudicator on the following reference:-

"Whether the removal of Shri Raj Singh from service is illegal and/or unjustified, and if so, to what relief is he entitled and what directions are necessary in this respect?"

and though holding the departmental inquiry (preceding the order of

removal from service) held by the DTC to be not valid, fair and proper and

DTC having failed to prove before the Industrial Adjudicator the

misconduct alleged and thus the removal from service to be illegal and

unjustified, granting relief to the workman of payment of lump sum

compensation of `75,000/- in lieu of reinstatement and back wages.

2. While the workman in his writ petition avers that the Industrial

Adjudicator after having held the removal from service to be illegal ought

to have granted the relief of reinstatement with full back wages and

continuity of service and the compensation awarded of `75,000/- is too

meager and inadequate, DTC in its writ petition contends that, (i) relying

on the judgment of a Single Judge of this Bench in DTC v. Surender Pal

(2007 (IX) AD Delhi 594 contends that the removal from service being

after obtaining permission under Section 33(2)(b) of the ID Act, the

Industrial Adjudicator could not have held the removal to be bad and

illegal; (ii) that the finding of the Industrial Adjudicator of the misconduct

having not been proved is erroneous.

3. Notices of both petitions were issued. Pleadings have been

completed; record of the Industrial Adjudicator been requisitioned and the

counsels have been heard.

4. The counsel for the workman at the outset relies on the judgment of

the Division Bench reported in 152 (2008) DTC 671 in Surender Pal's

case setting aside the judgment of the Single Judge relied upon by DTC

and holding that notwithstanding the permission accorded under Section

33(2)(b) of the Act, it is open to the workman to raise an industrial dispute

under Section 10 of the Act and the findings recorded regarding legality

and validity of inquiry in proceedings under Section 33(2)(b) of the

Industrial Disputes Act would not operate as res judicata. I have also in

DTC v. Rishi Prakash (2010) IV AD (Delhi) 399 intra court appeal being

LPA No.508/2010 whereagainst was dismissed on 10th February, 2011.

DTC v. Shyam Lal ILR (2010) V Delhi 43, DTC v. Nihal Singh 169

(2010) DLT 727 and W.P.(C) 10800/2005 titled DTC v. Sudan Pal

decided on 18th April, 2011 had occasion to discuss the interplay between

Section 33(2)(b) and Section 10 of the Act. The challenge by the DTC to

the award for the reason of the application under Section 33(2)(b) earlier

having been allowed thus cannot be sustained.

5. I may further note that though the aforesaid plea has been taken by

the DTC but neither has the DTC along with its writ petition filed the order

dated 5th September, 2000 of the Industrial Adjudicator in 33(2)(b)

proceedings on the validity of the inquiry nor does a perusal of the record

of the Industrial Adjudicator shows the DTC to have produced the same in

the proceedings under Section 10 of the Act. Without DTC even producing

before the Industrial Adjudicator the orders in the earlier proceedings

under Section 33(2)(b) of the Act, it could not possibly have taken the plea

of res judicata. The said ground taken in the writ petitions is thus even

otherwise untenable.

6. The workman joined the employment of the DTC as a conductor in

the year 1979; he was on 16th March, 1992 charge sheeted while being on

duty on 19th February, 1992 not issuing tickets to 15 passengers after

collecting due fare from them and of refusing to hand over the way-bill and

declining to sign the statement of the passengers; the departmental inquiry

found him guilty of the charge and the Disciplinary Authority punished

him vide order dated 1st July, 1992 with dismissal from service.

7. The Industrial Adjudicator vide order dated 28th March, 2007 held

the departmental inquiry to be not valid, fair and proper inter alia on the

ground that though it was mentioned in the charge sheet that un-punched

tickets had been collected from the workman but the inquiry record

contained 15 punched tickets and which were indicative of the tickets

having been checked and sold; it was thus held that no proper inquiry was

conducted and there was no material before the Inquiry Officer to come to

the conclusion that it was the workman who got the tickets punched in

connivance with the other officials; it was further held that the Inquiry

Officer recorded only one witness and did not call the other witness and

called one of the witnesses after closure of the inquiry proceedings and to

fill up lacunas in the case of the management; it was thus held that there

was perversity in the report of the Inquiry Officer in as much as there was

no explanation for the conclusions reached.

8. DTC sought to prove the misconduct before the Industrial

Adjudicator. However the Industrial Adjudicator in the award has held that

though the witnesses of the management had stated that un-punched tickets

were handed over to them but on record were punched tickets falsifying

the case of the DTC; the charge of the workman having refused to sign the

statement of the passengers was not proved; that it was incumbent upon

DTC to produce evidence to prove as to how the tickets got punched when

the case of the DTC was of un-punched tickets having been taken from the

workman; that there was insufficient evidence of DTC to prove that the

workman refused to give way-bill or documents to the checking officials;

there was no corroborative evidence to prove the allegations against the

workman; the statements of the passengers did not bear the signatures of

the workman and there was no allegation of the workman having refused

to sign the statement.

9. The Industrial Adjudicator however after holding the removal of the

workman from service to be illegal and unjustified, further held that DTC

had not led any evidence that the workman had been gainfully employed;

however since more than 15 years had elapsed since the order of the

removal of the workman and further since the record showed 15 adverse

entries against the workman including number of entries regarding non-

issuance of tickets to the passengers after collecting fare and of

manipulation or alteration of official records, held it would not be

appropriate to impose the workman in whom the DTC had lost confidence

on the DTC; thus relief of compensation of Rs.75,000/- was award.

10. As far as the challenge by DTC to the findings aforesaid of the

Industrial Adjudicator is concerned, DTC has in its petition not taken any

ground that the said factual findings are not based on any evidence or are

such which no reasonable person could have reached. It is settled position

in law that this Court in exercise of powers of judicial review is not to

exercise appellate powers and is not to interfere in the findings of fact

unless shown to be perverse i.e based on no material at all or such which

no reasonable person on the basis of evidence on record could have

reached. The conclusion by the Industrial Adjudicator that DTC had failed

to prove the misconduct is thus inassailable.

11. Similarly, no ground had been taken by the DTC in its writ petition

as to the illegality of the order dated 28th March, 2007 of the Industrial

Adjudicator holding the departmental inquiry conducted to be bad. In fact

DTC in its writ petition has not even bothered to file the copy of the said

order.

12. Though the counsel for the DTC relying on State of Haryana v.

Rattan Singh 1997 (2) SCC 491 has sought to argue that sufficiency of

evidence cannot be gone into but the present is not a case of the Industrial

Adjudicator having set aside the departmental inquiry proceedings for the

reason of evidence not being sufficient. The present is a case where the

departmental inquiry was held to be invalid and it was held that DTC had

failed to prove the misconduct before the Industrial Adjudicator.

13. On the contrary, the counsel for the workman has urged that the

reasons given by the Industrial Adjudicator for not granting the relief of

reinstatement in service with back wages to the workman is erroneous. It is

contended that the Industrial Adjudicator ought not to have considered the

past record of the workman; that the said past record is relevant only when

charge is proved and to decide the punishment to be imposed and not when

the charge itself is not proved. It is contended that Section 11A of the ID

Act empowering the Industrial Adjudicator to interfere in the punishment

imposed is an exception to the normal rule and such exception has been

provided only in situations where the charge is proved.

14. On enquiry, it is informed that the workman if had been reinstated

and had continued in the employment of DTC, would have superannuated

in the year 2016 and would also become entitled to retiral and pensionary

benefits.

15. I am however of the view that the workman cannot be reinstated

now after 19 years of having not served the DTC. Reinstating him at this

stage for the balance period till his superannuation would not allow DTC

to reap any benefit from the service. I am also of the opinion that it is not

just and equitable to impose the liability of retiral benefits and pension of

an employee who instead of serving the employer for the full period to be

entitled to pension, has served the employer for less than even half or 1/3 rd

of the said period. I also find that though the workman was removed from

service as aforesaid on 1st July, 1992 but he is found to have raised the

industrial dispute only in the year 1996. There is no explanation for the

delay of four years from 1st July, 1992 till 1996 when the dispute was

raised and of which the reference aforesaid dated 22nd August, 1997 was

made. The said delay of four years is enough to disentitle the workman

from the relief of reinstatement.

16. However considering that the workman prior to his termination had

served DTC for 12 years and further considering that the workman at the

time of the award had about nine years of service left, and further in view

of the finding of the Industrial Adjudicator of the workman having

remained unemployed since the date of his termination, the award of lump

sum compensation of `75,000/- is found to be inadequate. Compensation

in lieu of reinstatement and back wages has to bear proportionality to the

relief of reinstatement and back wages and cannot be grossly un-

proportionate to the liability which would have accrued to the employer

had the relief of reinstatement been awarded. I however do not agree with

the contention of the counsel for the workman that while awarding the said

compensation, the past record of the workman is not to be seen. Even if

DTC failed to prove the misconduct before the Industrial Adjudicator, the

said past record can definitely be indicative of the likelihood of the

workman even if had been reinstated committing some other misconduct.

17. I have in another writ petition being W.P.(C) 1353/2008 titled

Ashok Kumar Verma v. DTC also listed today and where the workman

had served as a driver for 11 years and had attained the age of

superannuation during the pendency of the writ petition and where the past

record was clean, awarded compensation of Rs.4,25,000/- Considering that

the petitioner was a conductor as distinct from a driver and his past record

has number of adverse entries and further considering the four years still

remaining of employment of the workman, the compensation of Rs.4 lacs

is found to be apposite in the present case.

18. Accordingly, W.P.(C) 6124/2008 preferred by the DTC is dismissed

and W.P.(C) 5540/2008 preferred by the workman is partly allowed; the

compensation awarded by the Industrial Adjudicator of `75,000/- to the

workman is enhanced to `4 lacs. DTC is directed to pay the said

compensation of `4 lacs within eight weeks of today failing which the

same shall incur interest at 10% per annum till the date of payment. The

amount of `75,000/- deposited in this Court in W.P.(C)6124/2008 together

with interest accrued thereon is directed to be released in favour of the

workman. The amount so received be deducted from the compensation of

`4 lacs awarded and directed to be paid to the workman.

No order as to costs.

RAJIV SAHAI ENDLAW (JUDGE) September 8th , 2011/pp