Delhi High Court
Delhi Transport Corporation vs Ram Saran on 28 May, 2012
Author: Rajiv Sahai Endlaw
*IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 28th May, 2012
+ LPA No.987/2011
DELHI TRANSPORT CORPORATION ..... Appellant
Through: Mrs. Avnish Ahlawat & Ms. Urvashi
Malhotra, Advs.
Versus
RAM SARAN ..... Respondent
Through: Mr. G.S. Charya, Advs.
CORAM :-
HON'BLE THE ACTING CHIEF JUSTICE
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
RAJIV SAHAI ENDLAW,J
1. This Intra-Court appeal impugns the order dated 13 th July, 2011 of the
learned Single Judge dismissing in limine W.P.(C) No.4838/2011 preferred
by the appellant DTC impugning the order dated 15 th July, 2009 and an
award dated 7th April, 2010 of the Industrial Adjudicator directing the
appellant DTC to reinstate the respondent workman without any back wages
but with Rs.75,000/- as litigation expenses. On the arguments of the counsel
for the appellant DTC that the respondent workman earlier employed as a
conductor had been out of service for almost 20 years and that in these
circumstances relief of reinstatement should not have been allowed and
instead lump-sum compensation would have met the ends of justice, notice
of the appeal was issued and the impugned award stayed. Though the
respondent workman has also made an application under Section 17B of the
Industrial Disputes Act, 1947 but with the consent of the counsels the appeal
has been finally heard.
2. The respondent workman joined the employment of the appellant
DTC as a conductor w.e.f. 13 th April, 1985. He was charged for having on 1st
December, 1992 allowed four passengers to travel from Delhi to
Bulandshahar without issuing tickets. Inquiry was held and the order dated
3rd October, 1994 of removal from service passed and which resulted in the
industrial dispute aforesaid.
3. The Industrial Adjudicator vide order dated 15 th July, 2009 held the
inquiry to be bad in law for the reason of the findings therein being perverse.
An opportunity was granted to the appellant DTC to prove the misconduct
before the Industrial Adjudicator and which opportunity was availed of. The
Industrial Adjudicator vide award aforesaid held the appellant DTC to have
been unable to prove the charge for the reason of i) the checking team
having not only not recorded the statement of the passengers found
travelling without ticket but having also not noted down their names and
addresses or that they had refused to give statement; ii) all the members of
the checking team having also not been examined as witnesses before the
Industrial Adjudicator; iii) there was nothing to show that the intention of
the respondent workman was to cheat the appellant DTC; and, iv) the
appellant DTC having not suffered any loss. The Industrial Adjudicator
however, considering the past record of the respondent workman denied
back wages to the respondent workman.
4. The learned Single Judge refused to entertain the writ petition
observing that the appellant DTC had already reinstated the respondent
workman and the objection urged was only to the legal cost of Rs.75,000/-.
5. It is the case of the appellant DTC in the memorandum of appeal and
not disputed by the respondent workman that the learned Single Judge erred
in assuming that the respondent workman had been reinstated in compliance
of the award. It is the stand of DTC that in view of the past adverse service
record of the respondent workman of as many as eleven adverse entries in
seven years of service from 1985 till being suspended in 1992, the appellant
DTC is not desirous of reinstating the respondent workman.
6. The counsel for the appellant DTC invites our attention to judgment
dated 19th January, 2007 of Division Bench of this Court in LPA
No.2269/2006 titled Ishwar Singh v. DTC to contend that the appellant
DTC cannot be compelled to take back a conductor in whom it has lost faith
and whose integrity is doubtful.
7. Per contra, the counsel for the respondent workman has argued that
there was no plea of loss of confidence and no copy of past record was
supplied to the respondent workman and thus the said ground cannot be now
urged.
8. However what we find is that the Industrial Adjudicator on
examination of the material produced has concluded the past service record
of the respondent workman to be not good with adverse entries as aforesaid
and has denied back wages to the respondent workman on that ground only
and which part of the award has not been challenged by the respondent
workman. The respondent workman cannot thus be permitted to urge that
the past record was wrongly perused.
9. In view of the past service record of the respondent workman, we tend
to agree with the argument of the appellant DTC on which notice of the
appeal was issued that the present was not a fit case for directing
reinstatement and even if the findings of the Industrial Adjudicator on
misconduct are not to be interfered with in exercise of supervisory powers,
the present is a fit case for modifying the direction for reinstatement with
that of payment of lump-sum compensation. We even otherwise find that the
respondent workman having not worked with the appellant for the last more
than two decades, ought not be now thrust back on the appellant DTC for a
few years prior to his age of superannuation and the same if allowed would
also adversely affect the discipline in the work force of the appellant DTC.
Moreover the possibility of the respondent workman, who in the past as
many as on eleven occasions has been found guilty not only of not issuing
tickets to the passengers but also for taking the bus on a wrong route,
collecting fare but not issuing tickets, misbehavior with the passengers etc.,
again indulging in such actions cannot be ruled out. The appellant DTC
cannot be expected to trust the respondent workman with its property viz.
the bus and with the collection and proper accounting of the fare from the
passengers. The Supreme Court in Divisional Manager, Rajasthan S.R.T.C.
V. Kamruddin (2009) 7 SCC 552 has reiterated that Transport Corporation
cannot be forced to retain dishonest conductors. We also find that Supreme
Court in U.P. State Road Transport Corporation V. Nanhe Lal Kushwaha
(2009) 8 SCC 772 considering such misconduct by a conductor, in the past
even though the misconduct in the instant case had not been proved had set
aside the order of reinstatement.
10. The next question is of the amount of lump-sum compensation in lieu
of reinstatement to be awarded to the respondent workman. Having regard to
the adverse entries in the service record, the failure of the appellant DTC to
prove the charge before the Industrial Adjudicator being not necessarily
indicative of the innocence of the respondent workman in as much as there is
no plea of being targeted or vindictiveness, as also the number of years for
which the respondent workman has served the appellant DTC, we are of the
opinion that lump-sum compensation of Rs.5 (Five) lacs inclusive of the
amount of Rs.75,000/- awarded by the Industrial Adjudicator would be
appropriate. We therefore partly allow this appeal by substituting the relief
of reinstatement with legal costs of Rs.75,000/- granted by the Industrial
Adjudicator with that of lump-sum compensation of Rs.5 (Five) lacs in lieu
of all claims of the respondent workman against the appellant DTC. The said
amount of Rs.5 (Five) lacs be paid within four weeks of today. Costs of
litigation have already been paid.
11. The appeal is disposed of in the aforesaid manner.
RAJIV SAHAI ENDLAW, J
ACTING CHIEF JUSTICE
MAY 28, 2012
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