Rani Devi And Ors vs D.T.C. And Anr.
2013 Latest Caselaw 3747 Del

$~18

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

+      W.P.(C) 6749/2012

                                               Decided on 26th August, 2013

       RANI DEVI AND ORS                                ..... Petitioners
                     Through          : Mr. Sudhansu Palo, Adv.


                         versus

       D.T.C. AND ANR.                                 ..... Respondents
                      Through         : Ms. Manisha Tyagi, Adv.

CORAM:
HON'BLE MR. JUSTICE A.K. PATHAK

A.K. PATHAK, J. (ORAL)

1. Petitioners are legal representatives of Late Shri Mam Chand

workman, who was working as a Bus Conductor with the respondents right

from 1976. Workman died during the proceedings before Labour Court and

the petitioners were brought on record.

2. Workman raised an industrial dispute with the labour department,

which was referred to Labour Court by the Secretary (Labour), Government

of N.C.T. of Delhi with the following terms of reference:-

"Whether the punishment order of removal of Sh. Mam Chand from his service imposed by the

management vide order dated 1.7.92 is illegal and unjustified and if so, to what relief is he entitled and what directions are necessary in this respect?"

3. Workman was removed from service vide order dated 1st July, 1992

passed by the respondents, after holding an enquiry on the charges that on

14th September, 1991, while working as Conductor, workman had collected

fare from 21 passengers but did not issue tickets to them. During the raid,

21 passengers were found travelling in bus without ticket. Workman alleged

that he had unblemished record of service and was removed from service

illegally. Enquiry was not conducted in a fair manner, inasmuch as

principles of natural justice were violated. Enquiry Officer was subordinate

to the competent authority and had acted mechanically with a biased mind.

Only interested witnesses were examined, who were not competent to

depose about the incident. No independent witness, much less the

passengers was examined. He was charge-sheeted on the basis of a false

story fabricated by the checking staff.

4. In the written statement, respondents denied averments made in the

statement of claim. It was stated that on 14th September, 1991 checking staff

found 21 passengers travelling without ticket in the bus on which workman

was on duty as a Conductor. Workman was charge-sheeted rightly for his

misconduct. Enquiry was conducted in a fair and proper manner, wherein

workman was given full opportunity to defend himself.

5. Industrial Adjudicator framed following issues on 9 th November,

2001:-

"(i) Whether a proper and fair enquiry was not

conducted in accordance with principles of natural

justice?

(ii) As per terms of reference."

6. Vide order dated 14th September, 2006 Industrial Adjudicator decided

first issue in favour of respondent. It was held that enquiry was conducted

in a fair and proper manner, inasmuch as, principles of natural justice were

duly followed. Workman was afforded full opportunity to defend himself.

Accordingly, vide Award dated 4th October, 2006 it was held that workman

was not entitled to any relief. It was held that workman was found guilty of

allowing about 21 passengers to travel in the bus without ticket after

collecting the fare from them.

7. I do not find the view taken by the Industrial Adjudicator to be

perverse or suffering from any error of law or jurisdiction. Findings of facts

returned by the Industrial Adjudicator are not based on no evidence. There

is no gainsaying that scope of interference in the award passed by the

Industrial Adjudicator by the High Court in exercise of its power of judicial

review under Article 226 of the Constitution of India, is limited. High Court

has not to re-appreciate the evidence to take a view other than what has

already been taken by the Industrial Adjudicator upon scrutiny of evidence.

In case award is based on no evidence, the High Court would step in. High

Court will also interfere with an award in case it is shown that it suffers from

manifest error of law. An award based on same evidence cannot be

interfered. Industrial Adjudicator has returned a categorical finding that

there was no violation of principles of natural justice. Workman was given

ample opportunity to defend himself. During the enquiry, he was asked to

avail assistance of his co-workers but he declined. Witnesses examined by

the respondents, were duly cross-examined by the workman. His closing

statement was also taken separately. Shri Raj Singh, Traffic Inspector has

categorically stated that there were 21 passengers found travelling without

ticket and they told that they had paid full fare to the Conductor. Other

witnesses had also corroborated this statement. Workman had also failed to

specify any document, if any, supplied to him. By placing reliance on Delhi

Transport Corporation vs. N.L. Kakkar &Anr. 2004 LLR 449, Delhi High

Court, it was held that examination of passengers in such cases is not

necessary as it is highly impractical to trace them during the enquiry.

Industrial Adjudicator negated the plea of workman that enquiry was

vitiated, since it was held by a subordinate officer to the competent

authority. Reliance was placed on Divisional Manager, Plantation Division,

Andaman & Nicobar Islands vs. Munnu Barrick and Others, 2005 I LLJ,

Supreme Court 557. The misconduct was serious in nature. It was his duty

to issue tickets, collect fare from the passengers and deposit the same with

respondent. Petitioner violated the trust reposed in him by the respondent,

thus, misconduct was grave in nature thus, punishment of removal was

justified and was not disproportionate to the misconduct of workman.

Reliance was placed on Divisional Conroller, N.E.K.R.T.C. vs. H. Amaresh,

2006 VII AD (SC) 474 and Regional Manager, U.P.S.R.T.C., Etawah &

Ors. Vs. Hoti Lal & Anr. 2003 LLR 344, to conclude that punishment was

not disproportionate to the misconduct of workman.

8. I do not find any perversity in the view taken by the Industrial

Adjudicator. Merely because Enquiry Officer was subordinate to the

competent authority by itself would not be sufficient to vitiate the enquiry in

absence of any specific allegation of bias against him. As regards to non-

production of passengers, the same is also of no consequence. Traffic

Inspector was duly examined. Findings returned by the Industrial

Adjudicator cannot be said to be based on no evidence nor the petitioner's

counsel could point of any error of law or jurisdiction. Workman was

found guilty of misappropriation of funds of the respondents and his

misconduct is serious in nature. Thus, it cannot be said that the punishment

of termination was disproportionate to his misconduct.

9. In Regional Manager, RSRTC vs. Ghanshyam Sharma, (2002) 10

SCC 330, it was held that the proved acts of misconduct either to a case of

dishonesty or of gross negligence by bus conductors who by their actions

and inactions cause financial loss to the Corporation ought not to be retained

in service. In Karnataka SRTC vs. B.S. Hullikatti (2001) 2 SCC 574, it was

held that misappropriation of funds to the tune of `360.95 by the delinquent

employee was found to be sufficient to impose punishment of termination

from service. In Divisional Controller, KSRTC (NWKRTC) vs. A.T. Mane

(2005) 3 SCC 254, the Supreme Court held thus, "when a person is found

guilty of misappropriating the Corporation's funds, there is nothing wrong in

the Corporation losing confidence or faith in such a person and awarding

punishment of dismissal." In Hoti Lal's case (supra), it was held that

penalty of dismissal from service of a Conductor was found justifiable facts

as he allowed 16 passengers to travel without ticket after receiving fare from

them.

10. In the light of the above discussions, I do not find any merits in this

writ petition and the same is dismissed.

A.K. PATHAK, J.

AUGUST 26, 2013 rb