Jagdish Chander vs Delhi Transport Corporation
2013 Latest Caselaw 1657 Del

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*      IN THE HIGH COURT OF DELHI AT NEW DELHI
+      LPA 193/2013
       JAGDISH CHANDER                 ..... Appellant
                        Through: Mr. B.S. Mor with Mr. Neeraj Mor,
                                 Advs.
                 versus

       DELHI TRANSPORT CORPORATION              ..... Respondent
                    Through: Ms. Rashmi Priya, Adv.
       CORAM:
       HON'BLE THE CHIEF JUSTICE
       HON'BLE MR. JUSTICE V.K. JAIN
               ORDER

% 11.04.2013 The appellant before us was employed as a conductor with the respondent-DTC. On 6.3.1994, the Vigilance Team of the DTC found three ticketless passengers travelling in the bus in which the appellant was on duty. On inquiry, the said team found that though the passengers had paid Rs.13/- each as fare to the appellant, he had failed to issue the requisite tickets to them. The statements of the passengers were recorded in the presence of the appellant, who also signed the said statements, without any protest of qualification. Pursuant thereto, a charge-sheet was delivered to the appellant on 25.4.1994. He submitted a reply dated 16.5.1994. Since the respondent was not satisfied with the reply filed by the appellant, an inquiry in the matter was initiated. The Inquiry Officer submitted a report dated 25.11.1994, reporting that though the appellant had taken the fare from the passengers, he had no intention not to issue tickets. In taking this view, the

Inquiry Officer accepted the explanation of the appellant that he was about to issue tickets when the bus got out of order and on being called by the driver, he went to the front side to push the bus and as a result he could not issue tickets till the time of checking. The Disciplinary Authority did not agree with the finding recorded by the Inquiry Officer and, inter alia, took the following view:

"...The accused stating in his concluding remarks that due to some disorder in the bus he could not issue ticket does not seem true as this was given only in his concluding remarks given on 24.10.1994 and in the enquiry the driver had also said the same thing. If this was true then before preparation of the challan the conductor would have told the checking staff about it, he could also have given in the writing in the office about the same. This shows that this act of the conductor is his thought after the incident..."

2. He also passed order removing the appellant from the services of the respondent-DTC. The appellant raised the industrial dispute challenging his removal from service, which was referred to the Labour Court for adjudication. Vide award dated 18.1.2005, the Labour Court directed the reinstatement of the appellant with full back-wages, continuity of service and other consequential benefits. The award of the Labour Court was challenged by the respondent by way of W.P(C) No.11363/2006. The learned Single Judge, vide impugned order dated 12.2.2013, allowed the writ petition and set aside the award of the Labour Court. Being aggrieved from the order of the learned Single Judge, the appellant is before us by way of

this appeal.

3. Two contentions have been raised before us by the learned counsel for the appellant. The first contention is based upon the order dated 6.8.2004 whereby the Labour Court decided the preliminary issue. The contention is that since the said order dated 6.8.2004 setting aside the inquiry report was not challenged by the respondent, it could not have been questioned in the writ petition filed after passing of the award on 18.1.2005. The second contention of the learned counsel for the appellant was that there was no dishonest intention on the part of the appellant to misappropriate the fare collected from the passengers and it was for a bonafide reason that he could not issue tickets, by the time the bus was checked by the Vigilance staff of the DTC.

4. The first contention raised by the learned counsel for the appellant was negated by the learned Single Judge holding that the order dated 6.8.2004 being an order passed in the proceedings and having not culminated into an award could be challenged while assailing the final outcome of the proceedings in the form of an award of the Labour Court. In this regard, he placed reliance upon the principles enshrined in Section 105 of the Code of Civil Procedure which, inter alia, provides for that where a decree is appealed from, any error, defect or irregularity in any order, affecting the decision of the case, may be set forth as a ground of objection in the memorandum of appeal. The learned Single Judge in this regard also referred to grounds E to G taken by the respondent in the writ petition.

Admittedly, the order dated 6.8.1994 was not an award of the Labour Court. Consequently, the said order could not have been notified as an award of the Labour Court. It is only the order dated 19.1.2005 directing the reinstatement of the appellant with back-wages which amounted to award of the Labour Court and could be notified. Therefore, in our opinion, the intermediate order passed by the Labour Court on 6.8.2004 was capable of being challenged and set aside in the writ petition filed by the appellant against the award dated 18.1.2005.

5. Coming to the second contention, it is not in dispute that the appellant had received Rs.39/- from three passengers towards fare. This is also not in dispute that the appellant had not issued tickets to these passengers by the time the Vigilance Team checked the bus in which the appellant was on duty as a conductor. It is also not in dispute that that the statements of the passengers were duly recorded by the Vigilance Team in the presence of the appellant and he had also signed those statements. We may in this regard refer to the statement of Ram Kanwar, ATI, who specifically stated that when the passengers told them that the appellant had not issued tickets to them despite taking Rs.39/- towards fare, the appellant and those passengers were confronted with each other and the appellant admitted his mistake. He has further stated that the statements of the passengers were recorded in the presence of the appellant also who also signed those statements. Thereafter, the appellant was challened and copy of the said challan was given to him

under acknowledgment. During the cross examination of this witness, no suggestion was given to him that the appellant had told the Vigilance Team that he could not issue tickets because he had been called by the driver to help him. It would thus be seen that even at the time he was challened by the Vigilance Team, the appellant did not claim that he did intend to issue tickets but could not do so on account of the driver having called him to the front of the bus for his help. Similar statement was made by another witness Mr. Kanhiya Lal.

6. The appellant, on receipt of the Charge Memo submitted a reply dated 16.5.1994 denying the charges leveled against him and seeking an inquiry, but, he did not claim, in his reply, that he intended to issue tickets but could not do so on account of the driver having called him for his help. It was only at the fag end of the inquiry that the aforesaid plea was taken by the appellant. In these circumstances, the Disciplinary Authority, in our opinion, was fully justified in not accepting the finding recorded by the Inquiry Officer and holding the appellant guilty.

7. We are conscious that the finding recorded by the Labour Court should normally not be interfered by the writ Court, but, when the finding of the Labour Court is contrary to the material available before the Labour Court, such a finding would be a perverse finding which can certainly be interfered with in exercise of the writ jurisdiction. The learned Single Judge,

therefore, was fully justified in setting aside the award of the Labour Court.

For the reasons stated hereinabove, we find no merit in the appeal and the same is hereby dismissed. There shall be no order as to cost.

CHIEF JUSTICE

V.K. JAIN, J APRIL 11, 2013 rd