Inder Sain vs Delhi Transport Corporation
2012 Latest Caselaw 282 Del

      IN THE HIGH COURT OF DELHI AT NEW DELHI

                             Judgment reserved on: 13.10.2011
                             Judgment delivered on: 16.01.2012

                            W.P.(C) 5186/2007

INDER SAIN                                      ......Petitioner

                        Through: Mr.A.K. Mishra, Adv.

                                  Vs.

DELHI TRANSPORT CORPORATION ......Respondent

                        Through: Mr. J.S. Bhasin, Adv.


CORAM:

HON'BLE MR. JUSTICE KAILASH GAMBHIR

KAILASH GAMBHIR, J.

*

1. By this petition filed under Article 226/227 of the

Constitution of India, the petitioner seeks to challenge the

order dated 8.12.2005 passed by the learned Labour Court in

answering the reference against the petitioner whereby the

Court refused to interfere with the punishment awarded by

the respondent management directing removal of the

petitioner workman from his service keeping in view the

gravity of the charges and the previous record of the

petitioner.

2. The brief facts relevant for deciding the present

petition are that the petitioner was working as driver with

the respondent DTC since 1979 with last drawn wages as

Rupees 3,000/- per month. A charge sheet dated 11.12.91

was issued by the concerned Depot Manager against the

petitioner concerning an incident which had occurred on

30.10.1991 wherein it was alleged that two ladies who were

mother and daughter were standing at the Ashram Bus Stop

to board the bus which was being driven by the petitioner

and when the old lady who was accompanying her daughter

tried to board the bus from the front gate while the daughter

was in the process of boarding the bus from the conductor

side (rear gate), the petitioner driver did not allow the old

lady to enter the bus from the front gate and when she was

about to board the bus from the rear gate the petitioner

drove the bus despite the daughter requesting him to stop

the bus. A complaint was lodged by the said ladies to Mr.

Ishwar Chand ATI and the said ATI when enquired from the

petitioner about the said matter, the petitioner starting

abusing the ATI and rather manhandled him at the public

place, report of which was lodged by the ATI at Faridabad

Kotwali vide D.D.No. 12 dated 30.10.91 and such act was

construed as misconduct on the part of the petitioner within

the meaning of Clause 19(a) (g) (h) and (n) of the Standing

Orders governing the conduct of DTC employees. An

enquiry was set up by the disciplinary authority against the

petitioner and based on the enquiry report filed by the

enquiry officer, Disciplinary Authority awarded the

punishment of removal of the petitioner from his service in

terms of Rule 15(2) of Delhi Road Transport Authority

(Condition of Appointment & Service) Regulation, 1952.

Feeling aggrieved with the said order of the punishment, the

petitioner raised an industrial dispute under Section 10 of the

Industrial Disputes Act. It is not in dispute between the

parties that so far issue no.1 regarding the enquiry

conducted by the respondent management was concerned,

the same was treated as a preliminary issue and vide order

dated 26.8.2004, the learned Labour Court had decided the

said issue in favour of the respondent management and

against the petitioner. The said finding of the learned Labour

Court was also upheld by this court vide order dated 6.4.2005

in W.P.(C) No. 5652/2005, preferred by the petitioner

challenging the said findings on the preliminary issue. The

only grievance raised by the petitioner in the present

petition to be decided by this court is on the legality and

validity of the quantum of punishment awarded by the

Disciplinary Authority, which punishment was later upheld by

the learned Labour Court vide impugned award dated

8.12.2005.

3. Arguing for the petitioner, learned counsel Mr.

A.K. Mishra, very fairly submitted that so far the finding of

the Labour Court on the preliminary issue regarding the

enquiry had attained finality with the dismissal of the writ

petition bearing W.P.(C) No. 5652/2005 preferred by the

petitioner. Assailing the findings of the learned Tribunal,

whereby the award of punishment of removal was upheld,

counsel submitted that the Disciplinary Authority at the

time of the passing of the order of punishment did not take

into consideration the past record of the petitioner while the

Tribunal had referred to the past record of the petitioner

where fifteen adverse entries were found against him.

Learned counsel also submitted that even the Management

did not refer to the said adverse entries before the

Disciplinary Authority at the time of the passing of the

punishment order but yet the Industrial Tribunal had referred

to those fifteen adverse entries and that too in a very cavalier

fashion without even having gone into the circumstances

leading to registration of the said adverse entries against the

petitioner. Learned counsel for the petitioner also submitted

that since the petitioner has reached the age of

superannuation, this Court may take a lenient view by

reducing the quantum of punishment of the petitioner so that

at least the petitioner can get his retirement benefits.

4. Mr. J.S. Bhasin, learned counsel for the

respondent/DTC, states that there is a concurrent finding

against the petitioner and, therefore, this Court, in the

exercise of writ jurisdiction, may not re-appreciate the

finding of facts arrived at by the Court below and the

Disciplinary Authority.

5. I have heard learned counsel for the parties and

given my thoughtful consideration to the arguments

advanced by them.

6. The principal grievance raised by the counsel for

the petitioner was that the learned Tribunal had referred to

the past record of the petitioner without even examining the

circumstances which led to previous adverse entries against

the petitioner and has thus committed illegality in upholding

the punishment awarded by the disciplinary authority. The

grievance raised by the counsel for the petitioner is primarily

based on hope to convince this Court to take a lenient view

by reducing the said punishment of removal from service to

some lesser punishment as the petitioner has already been

superannuated from his service.

7. The legal position to interfere with the quantum of

punishment under Article 226 of the Constitution of India is

well settled. It is only in a case where the punishment

inflicted against a delinquent employee is grossly unjust and

shocks the conscious of the Court, that the Court in exercise

of its jurisdiction under Article 226 of the Constitution of

India r/w Section 11 of the Industrial Disputes Act may

interfere to reduce the quantum of punishment. The question

for consideration is whether the punishment of dismissal

awarded by the Disciplinary Authority was so

disproportionate to the act of the workman that would

convince this court to interfere with the punishment

awarded. The Apex Court in various cases has discussed the

importance of discipline at workplace and it would be

relevant here to refer to the judgment in case of Hombe

Gowda Educational Trust v State of

Karnataka (2006)ILLJ1004SC wherein it was held as

under:-

"This Court has come a long way from its earlier viewpoints. The recent trend in the decisions of this Court seek to strike a balance between the earlier approach to the industrial relation wherein only the interest of the workmen was sought to be protected with the avowed object of fast industrial growth of the country. In several decisions of this Court it has been noticed how discipline at the workplace/industrial undertakings received a setback. In view of the change in economic policy of the country, it may not now be proper to allow the employees to break the discipline with impunity."

It is also a settled legal position that the quantum of

punishment cannot be interfered with on compassionate

grounds or on irrational or extraneous factors. Physically or

verbally abusing another employee is a misconduct which

does not deserve anything less than removal. Here it would

be useful to refer to the judgment of the Apex Court in the

case of Mahindra and Mahindra Ltd. vs. N.B.

Narawade (2005)ILLJ1129SC where the Court held that:-

"As noticed herein above atleast in two of the cases cited before us, i.e. Orissa Cement Ltd. (supra) and New Shorrock Mills (supra), this Court held: "punishment of dismissal for using of abusive language cannot be held to be disproportionate." In this case all the forums below have held that the language used by the workman was filthy. We too are of the opinion that the language used by the workman is such that it cannot be tolerated by any civilized society. Use of such abusive language against a superior officer, that too not once

but twice, in the presence of his subordinates cannot be termed to be an indiscipline calling for lesser punishment in the absence of any extenuating factor referred to herein above."

8. In the aforesaid legal background and looking into

the facts of the case at hand, the question that arises is that

whether the punishment awarded by the disciplinary

authority directing removal of the petitioner from his service

can be construed as shockingly disproportionate or in any

manner unjust or harsh? As per the facts of the case, the

petitioner was on his duty as a driver driving the DTC bus

when an old lady wanted to board the bus from the front

gate. It is a pertinent fact that prior to introduction of Metro

in Delhi, commuting was defined by public transport alone

and largely it was only the buses being run by the DTC. For

the old, disabled and infirm especially, it was a grueling task

to board a DTC bus and it was also quite routine that they

were always permitted to enter the bus from the front gate.

The present petitioner instead of lending a helping hand to

the old lady to allow her to board the bus from the front gate

instructed her to board the bus from the rear gate and

without even affording her sufficient time to reach to the

rear gate suddenly started the bus. The petitioner driver did

not stop the bus despite the fact that the daughter of the old

lady kept requesting him. The callousness of the petitioner

did not come to end there as ultimately the ATI became the

victim of his tempestuous behaviour. On the intervention of

the ATI, the petitioner had the audacity to physically assault

him besides using foul and filthy language for the said ladies

and the ATI in such circumstances had to lodge a police

report against the petitioner. This riotous, inhumane and

atrocious conduct of the petitioner certainly does not in any

manner sway this Court to reduce his punishment from the

removal of service to some other lesser punishment, as a

civilized society cannot tolerate such people who even do

not have the basic decency and regard for the elders and

when they are advised to discipline themselves they rebound

with more savagery and barbarism. So far as the plea raised

by the counsel for the petitioner that his past conduct was

unjustly taken into account to award the said punishment is

concerned, it would be suffice to mention that the said

misconduct of the petitioner as was proved on record by the

enquiry officer was sufficient enough to award the said

punishment and therefore reference to his previous conduct

by the Tribunal becomes inconsequential.

9. In the light of the above, there is no merit in the

present petition and the same is hereby dismissed.

January 16, 2012                      KAILASH GAMBHIR, J
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