Tej Singh vs President Service Institute
2013 Latest Caselaw 596 Del

$~11.
*     IN THE HIGH COURT OF DELHI AT NEW DELHI

+                        Date of Decision: 07.02.2013

%      W.P.(C) 13851/2009

       TEJ SINGH
                                                                ..... Petitioner
                              Through:   Mr. G.K. Srivastava, Advocate.

                     versus

       PRESIDENT SERVICE INSTITUTE
                                                           ..... Respondent
                              Through:   Mr. R.V. Sinha & Mr. R.N. Singh,
                                         Advocates.

       CORAM:
       HON'BLE MR. JUSTICE VIPIN SANGHI

VIPIN SANGHI, J. (ORAL)

1. The petitioner workman assails the order dated 14.05.2009 and the award dated 15.07.2009 passed in I.D. No.456/05 by Labour Court-VII, Karkardooma Courts, Shahdara, Delhi, whereby the Labour Court has held the petitioner guilty of the first two charges out of the three charges levelled against him (by the order dated 14.05.2009), and the penalty imposed upon the petitioner of removal from service has been held to be not disproportionate by the award dated 15.07.2009.

2. The petitioner was serving as a Driver with the respondent/President Service Institute, Air Force Station, New Delhi. He was driving a PSI Welfare Bus in April 2005. On 20.04.2005, the bus being run by the

petitioner, bearing registration No. 4919 Tata Coach, was checked at about 1855 hrs. by two officers, namely Sgt. K.V. Rathi KV IAF (P) of 412 AF Station and Cpl Vijay Raj B IAF (P), at Mayur Vihar turning. One passenger Sh.Devinder Sahu was found travelling in the bus without any valid pass/ticket. It was found that he was travelling from Air HQ (VB) to Noida. However, when the bus moved, it was noticed through the rear side glass that there was one more person travelling on the bus. The bus was followed and on re-checking it was found that one lady approximately 40 years was concealing herself behind the rear seat. She was found to have boarded the bus from Noida.

3. The respondent employer issued a charge-sheet to the petitioner on the following charges:

" Article-1

1. Shri Tej Singh, Driver and Shri Santosh Roy, Conductor, employed in SI Welfare Bus Service.

2. On 20 April, 2005, at about 1600 hrs, 626515 Sgt. K.V. Rathi KV IAF (P) of 412 AF Station was detailed to carry out the check of NOIDA PSI Welfare Buses. He along with Cpl Vijay Raj B IAF (P) went out to NOIDA route to carry out the said check. At about 1855 hrs, when Sgt. K.V. Rathi checked the second bus regn No. 4919 Tata Coach, at Mayur Vihar turning. On giving indication to stop, the bus stopped. On checking he found that one passenger Shri Devinder Sahu is available in the bus without valid pass/ticket. On further inquiry, it was revealed that Shri Devinder Sahu had also travelled in SI Welfare bus from AIR HQ (VB) to NOIDA without any valid pass or ticket.

3. Shri Tej Singh Driver and Shri Santosh Roy, Conductor, have, by the above act, committed an act of unbecoming a Non-

Public fund employee and thereby violated Rule 16(2) of terms and conditions NPF employees.

ARTICLE-2

1. Shri Tej Singh, Driver and Shri Santosh Roy, Conductor, employed in SI Welfare Bus Service.

2. On 20 Apr 05, at about 1855 hrs, 626515-G Sgt. Rathi K.V. IAF (P) along with Cpl Vijay Raj B IAF (P) checked the PSI bus of NOIDA Route, which was driven by Shri Tej Singh, and Shri Santosh Rai was a conductor. He checked the bus and found one passenger named Shri Devender Sahu without valid pass or ticket. However, when the bus had moved, he could see through the rear side glasses fitted with bus that some more passengers were also travelling. On having doubt the bus was followed. On the way the bus was stopped by police staff and again a thorough check was carried out. This time it was found that a lady aged approximately 40 years named Mamta Khan was concealing herself behind the rear seat. On inquiry, it was found that she got inside the bus from NOIDA. She stated that she earns her livelihood by doing unsocial things for which she got inside the bus.

3. Shri Tej Singh, Driver and Shri Santosh Roy, Conductor were well aware that Ms. Mamta Khan had boarded the bus and concealed herself behind the rear seats of the bus. However, Shri Tej Singh did not inform police team about Ms. Mamta Khan when she could not be traced out by police team in first attempt as stated in Article-1 to imputation of charges.

4. Shri Tej Singh, Driver and Shri Santosh Roy, Conductor have, by the above act, committed an act of unbecoming of a Non-Public fund employee and thereby violated Rule 16(2) of terms and conditions of NPF employees.

ARTICLE-3

1. Shri Tej Singh, Driver and Shri Santosh Roy, Conductor employed in SI Welfare Bus Service.

2. On 20 Apr 05, at about 18:55 hrs, the bus No.4919 of NOIDA route was checked by Sgt. Rathi K.V IAF (P) along with Cpl Vijay Raj B IAF at about 18:55 hrs between NOIDA and Air HQ (VB). On checking it was found that Ms. Mamta Khan and Shri Devender Sahu were travelling without valid pass or ticket and involved in immoral and unsocial activity. Even after seeing this happening, Shri Tej Singh, Driver and Shri Santosh Roy, Conductor failed to object it and they were freely doing such activities which they were not supposed to do while travelling in Air Force Welfare Bus.

3. Shri Tej Singh, Driver and Shri Santosh Roy, Conductor have, by the above act, committed an act of unbecoming of a Non-Public fund employee and thereby violated Rule 16(2) of terms and conditions of NPF employees."

4. A departmental inquiry was conducted by the respondent, which found the petitioner guilty of all the charges. On 15.06.2005, the petitioner was removed from service by the respondent management. After serving a legal notice raising his demand on the respondent, the petitioner raised the industrial dispute challenging his termination. Apart from framing the issue

- whether the petitioner is entitled to reinstatement with consequential benefits, vide order dated 12.07.2006, the Labour Court framed a preliminary issue on 01.03.2007 with regard to the legality of the inquiry conducted by the respondent. The Labour Court vide order dated 19.05.2007 held that the inquiry conducted by the respondent was irregular and illegal. Consequently, the Labour Court proceeded to record evidence to give the parties the right to prove/defend the aforesaid charges against the petitioner. After the evidence was led by the parties, the Labour Court vide detailed order dated 14.05.2009 held that Articles 1 & 2 of the charge, as aforesaid, stood established against the petitioner. However, Article 3 was

held not to have been established. The Labour Court then proceeded to consider the aspect of proportionality of the punishment imposed upon the petitioner, and again, by detailed award came to the conclusion that Articles 1 & 2 of the charge are sufficient to warrant punishment on the petitioner of removal from service. Consequently, it was concluded that the punishment could not be said to be disproportionate to the misconduct committed by the petitioner.

5. The first submission of learned counsel for the petitioner is that the petitioner was driving the bus and it was the obligation of the conductor Sh. Santosh Roy to ensure that the passengers in the bus were travelling with valid pass/ticket. He further submits that the petitioner did not know that apart from Sh. Devinder Sahu, there was another lady passenger hiding behind the rear seat, who was travelling without ticket. .

6. Learned counsel submits that since Article 3 of the charge has not been proved - which was the most serious charge, the punishment imposed upon the petitioner was highly disproportionate. Learned counsel further submits that the Labour Court has relied upon the evidence recorded in the departmental inquiry even though the said departmental inquiry has been set aside. In this regard reliance is placed upon the decision of the Supreme Court in Neeta Kaplish v. Presiding Officer, Labour Court & Anr., (1999) 1 SCC 517.

7. Learned counsel for the respondent on the other hand, submits that the Labour Court has, upon appreciation of evidence led afresh before it, come to the findings of guilt, which on account of lack of any infirmity should not

be interfered with by this Court.

8. Having heard learned counsels for the parties, perused the records of the case and the findings arrived at in the impugned order and the consequent award of the Labour Court, I find no merit in this petition.

9. Reliance placed upon the decision of the Supreme Court in Neeta Kaplish (supra) by learned counsel for the petitioner is entirely misplaced. In the said decision, it was observed by the Supreme Court at Para 24 that "in all cases where enquiry has not been held or the enquiry has been found to be defective, the Tribunal can call upon the management or the employer to justify the action taken against the workman and to show by fresh evidence that the termination or dismissal order was proper. If the management does not lead any evidence by availing of this opportunity, it cannot raise any grouse at any subsequent stage that it should have been given that opportunity, as the Tribunal, in those circumstances, would be justified in passing an award in favour of the workman. If, however, the opportunity is availed of and the evidence is adduced by the management, the validity of the action taken by it has to be scrutinised and adjudicated upon on the basis of such fresh evidence". In the present case, though the departmental enquiry has been set aside, the Labour Court has recorded the testimonies of the parties afresh and then proceeded to pass the impugned order and consequent award. Therefore, the said decision, if at all, defeats the stand of the petitioner, much less advance it.

10. The Bus was fitted with the hydraulic door, the control whereof was with the petitioner driver. To defend himself, and to claim that he could not

control the boarding of the bus by the lady named in the charge, and that he was not aware of her boarding the bus, the submission of the petitioner was that the hydraulic door system was not functional. According to the „Charter of Duty‟ (Exhibit MW 2/1), one of the two major duties of the driver is that, first, he should not allow any unauthorised person to travel in the bus and, second, that he should report to the manager any defect in the bus. In this regard, the petitioner workman, in his cross-examination before the Labour Court, admitted that: he had signed the said charter duty; the role and responsibilities of the drivers and conductors were explained on regular briefings and; he did not report the alleged non-functioning of the Hydraulic operated door, which was in his control, in writing to the Manager.

11. On the basis of the aforesaid duties and admissions of the petitioner workman, the Labour Court considered whether the petitioner workman had allowed Shri Devender Sahu and Ms. Mamta Khan to travel in the bus without any ticket or pass.

12. In his cross-examination before the Labour Court, the petitioner workman admitted to have noticed the presence of Shri Devender Sahu in the bus at Mayur Vihar. As regards Ms. Mamta Khan, the petitioner workman stated that he did not notice that she was travelling in the bus. He, however, stated that on the first checking, Ms. Mamta Khan was not found by the police party and that the bus was not stopped after its first checking. He also admitted that the lady was not picked up into the bus at the instance of the conductor.

13. The management witness MW-1 in his examination-in-chief stated

that the petitioner workman had not only allowed Ms. Mamta Khan to board the bus but also suggested her to hide behind the rear seats of the bus when the bus was being checked by the police party. It was stated that the bus conductor and bus driver concealed the presence of Ms. Mamta Khan in the bus. No suggestion was put to the witness by the workman to counter the said statement. Further, MW-3, in his cross-examination re-affirmed that it was the petitioner workman who suggested Ms. Mamta khan to hider herself behind the rear seat.

14. Bared upon the aforesaid testimonies, the Labour Court came to the conclusion that the petitioner workman allowed Shri Devinder Sahu & Ms.Mamta Khan to travel without a valid ticket and pass and that he told Ms.Mamta Khan to hide herself when the bus was checked by the police party. Accordingly, the Labour Court vide the impugned order held the petitioner workman guilty of having committed the misconduct alleged in charges 1 & 2.

15. The Labour Court while upholding the punishment of dismissal of the petitioner workman from the service of the respondent observed that the punishment imposed by the respondent management upon the workman was not disproportionate to the misconduct committed by him in as much as, firstly, such punishment was provided for in Rule 19 of the No-Public Fund (NFP) Employees and, secondly, the misconduct was committed in the PSI welfare bus which was serving the defence personnel, wherein the presence of unauthorised persons would pose a threat to the security.

16. The aforesaid conclusion and the consequent punishment imposed by

the Labour Court, considering the aforesaid evidence on record, cannot be said to be disproportionate, arbitrary or otherwise patently illegal. The same, for the reasons and findings drawn by the Labour Court, do not warrant any interference by this Court in exercise of jurisdiction under Article 226 of the Constitution of India.

17. Accordingly, the present petition is dismissed leaving parties to bear their respective costs.

VIPIN SANGHI, J.

FEBRUARY 07, 2013 BSR