Delhi High Court
Jagdish Prasad vs Delhi Transport Corporation on 4 February, 2013
Author: V. K. Jain
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ LPA 791/2012
JAGDISH PRASAD ..... Appellant
Through Mr. Anil Mittal and Mr. S.B. Sharma,
Advocates
versus
DELHI TRANSPORT CORPORATION ..... Respondent
Through Mr. (Name not given)
CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE V.K. JAIN
ORDER
% 04.02.2013
The facts relating to filing of this appeal were noted in our order dated
01.12.2012 as under:-
"2. The appellant was employed as a conductor with the
respondent DTC since 23rd February, 1985. He was on 14th
August, 1992 charged with, (i) having not issued tickets after
collecting due fare; (ii) issuing tickets of lesser denomination
after collecting due fare; and, (iii) of being in possession of
excess cash. A departmental enquiry was held in which one of
the passengers was examined, who deposed in favour of the
appellant. The Enquiry Officer however found the appellant
guilty of the charge and the Disciplinary Authority of the
respondent/DTC after issuing a show cause notice to the
appellant, on 8th October, 1993 imposed the punishment of
removal from service on the appellant. However, since at that
time a dispute between DTC and its workmen was pending
consideration, application under Section 33(2)(b) of the
Industrial Disputes Act, 1947 was necessitated and filed.
3. It appears that the said application under Section 33(2)(b)
remained pending for long and which led the appellant to, in or
about the year 1997, raise an industrial dispute which was also
referred for adjudication.
4. The Industrial Adjudicator before whom the application
under Section 33(2)(b) was pending consideration, framed an
issue as to the validity of the departmental enquiry held by the
respondent DTC and vide order dated 9th September, 2002
decided the said issue against the respondent DTC. The
Industrial Adjudicator thereafter gave opportunity to the
respondent DTC to prove misconduct. The respondent DTC
however only proved the proceedings of the Enquiry Officer
and his report as evidence and did not lead any other evidence.
The Industrial Adjudicator, holding the same to be no evidence
of misconduct and the respondent DTC having failed to prove
the misconduct, vide order dated 27th May, 2003 rejected the
application under Section 33(2)(b).
5. As far as the industrial disputes raised by the appellant
workman was concerned, the Industrial Adjudicator vide Award
dated 10th September, 2004, held the same to be infructuous,
since the application under Section 33(2)(b) had been rejected
and relying on Jaipur Sila Sahkari Bhoomi Vikas Bank Ltd.
Vs. Ram Gopal Sharma (2002) 2 SCC 244 held the appellant
to be continuing in service.
6. The respondent DTC filed W.P.(C) No. 195/2006
impugning the orders on the validity of enquiry and of
dismissal of the application under Section 33(2)(b). W.P.(C)
No. 351/2006 was filed by the respondent DTC impugning the
Award in the industrial dispute.
7. The learned Single has disposed of both the aforesaid
petitions vide common judgment dated 16th August, 2012. As
far as the dismissal by the Industrial Adjudicator of the
application of the respondent DTC under Section 33(2)(b) is
concerned, the learned Single Judge, with reference to State of
Haryana Vs. Rattan Singh (1977) 2 SCC 491 and Delhi
Transport Corporation Vs. Shree Kumar (2004) V AD (Delhi)
597, held that it was not necessary for the respondent DTC to
examine the passengers in a domestic enquiry and thus set aside
the order of the Industrial Adjudicator of dismissal of the
application under Section 33(2)(b)."
LPA 780/2012 which the appellant had filed against the order of
learned Single Judge setting aside the order of the Industrial Tribunal
dismissing the application of the respondent DTC under Section 33(2)(b) of
the Industrial Disputes Act, was dismissed by us vide order dated
04.2012.2012.
As noted earlier by us, the learned Single Judge vide impugned order
dated 16.08.2012, set aside the award of the Tribunal whereby the removal
of the appellant from service was set aside and restored the order removing
him from service. The learned Single Judge could not have restored the
order of removal of the appellant from service, merely because of his
allowing the application of the respondent under Section 33(2)(b) of the Act.
The industrial dispute which the appellant had raised against the order of his
removal from service was required to be adjudicated by the Tribunal on
merits, after considering the evidence produced in the proceedings initiated
by way of raising the aforesaid industrial dispute. In those proceedings, the
Tribunal is required to decide, independently of proceedings under Section
33(2)(b) of the Act, as to whether removal of the appellant from service vide
order dated 08.10.1993 was justified or not. For this purpose, the Tribunal is
required to give opportunity of leading evidence to the appellant as well as
to the respondent.
For the reasons stated hereinabove, the appeal is allowed and the
order of learned Single Judge to the extent she directed the restoration of the
order removing the appellant from service is set aside. The matter is
remanded back to the Tribunal which shall render finding in the industrial
dispute raised by the appellant against the order removing him from service
after giving opportunity to both the parties to lead evidence in this regard.
The Tribunal shall pass a fresh order in terms of this direction within three
months of the parties appearing before him, in compliance of this order.
CHIEF JUSTICE
V.K. JAIN, J
FEBRUARY 04, 2013
'raj'
