D.T.C. vs Amarjeet Singh & Anr.
2014 Latest Caselaw 2006 Del

$-R-4
*     IN THE HIGH COURT OF DELHI AT NEW DELHI

                                                    Date: April 22, 2014

+                         W.P.(C) 400/2003

      D.T.C.                                           ..... Petitioner
                          Through      Mr.Adesh Kumar Gill, Advocate.

                          versus

      AMARJEET SINGH & ANR.                  ..... Respondents
                   Through  Mr.Atul T.N., Advocate.

      CORAM:
      HON'BLE MR. JUSTICE JAYANT NATH

JAYANT NATH, J. (Oral)

1. The present writ petition is filed seeking to quash the impugned order

dated 18.03.2002 passed by the Industrial Tribunal dismissing the petition of

the petitioner under Section 33(2)(b) of the Industrial Disputes Act, 1947 by

which petition the petitioner sought approval for its directions for removal of

the respondent from service.

2. The basic facts which lead to filing of the present petition are that the

respondent was employed as a Conductor by the petitioner. On 04.05.1989

the respondent was performing his duty as a Conductor on the route of New

Delhi-Bulandshahr. Members of the Ticket Checking Staff of the petitioner

inspected the Bus. It was found that two passengers were travelling in the

Bus on the tickets of less denomination of Rs.2.50/- each valid from

Sikandrabad to Dadri. These two passengers had boarded the Bus at

Sikandrabad for going to Ghaziabad. The two passengers told the Checking

Staff that they had paid fare charges of Rs.5.00/- per ticket to the Conductor

whereas they were issued tickets only of the denomination of Rs.2.50. On

the basis of the report of the Checking Staff, the Manager of the concerned

Depot i.e. BBM Depot, issued charge-sheet dated 15.05.1989 to the

respondent for causing financial losses to the employer and for committing

irregularity and misconduct within the meaning of Executive Instructions

regarding the duties of a Conductor and the Standing Orders governing the

conduct of DTC employees. An enquiry was conducted into the charges.

The Enquiry Officer found the charges proved. The Manager, BBM Depot

acted as the Disciplinary Authority and issued a show cause notice on

25.07.1989 to the respondent with proposed punishment of removal from

service. The Disciplinary Authority passed the order to confirm punishment

of removal from service of the respondent on 29.05.1990 and on the same

day remitted one month's salary by way of Money Order and an appropriate

petition under Section 33(2)(b) of the Industrial Disputes Act was also filed

before the Industrial Tribunal.

3. The Industrial Tribunal framed a preliminary issue on 06.03.1991

which reads as under:-

"Whether the applicant held a legal and valid enquiry against

the respondent according to principles of natural justice?"

4. Vide order dated 29.03.2001 the issue was decided against the

petitioner as the Report of the Enquiry Officer was found perverse inasmuch

as the Enquiry Officer admitted that letter Ex.RW-1/2 was received from

one of the defaulting passengers before he submitted his findings. This letter

was written in response to summons issued to the said passengers by the

Enquiry Officer. While finalising his report the Enquiry Officer did not take

into consideration the communication received from the said passenger. The

said communication states that the said passenger had asked the Conductor

to issue him a ticket only till Dadri. He states that he had informed the

Checking Team that he had slept and hence could not get off at his

destination point. He has said that the Checking Officer insisted upon him to

disclose his address and he had complied with his request. He got down

from the Bus at Ghaziabad and the Conductor was not at fault. As the said

document was not dealt with at all by the Enquiry Officer despite receipt of

the same, the report was held to be perverse.

5. On 29.03.2011 the following additional issues were framed by the

Industrial Tribunal

"1) Whether the respondent committed the misconduct as mentioned in the petition and alleged in the charge sheet, issued by the petitioner?

2) Whether the petitioner remitted one month's wage to the

respondent at the time of his removal from service?

3) Relief."

6. The parties led their evidence. The petitioner filed evidence of

Mr.Sanjay Saxena, Depot Manager Shahdara-I, Delhi, the Enquiry Officer

AW-1, Mr.Inder Pal Singh, AW-2 and Mr.Kanhaiya Lal, AW-3. Respondent

filed his own evidence being RW-1.

7. The Tribunal held issue No.1 against the petitioner. The impugned

order relies upon communication dated 19.06.1989 being RW-1/2 which

was received from passenger Ranvir Singh. In the said letter the said

passenger has stated that he had asked the Conductor to give a ticket only till

Dadri. He had gone to sleep and hence could not get off at the right stand

and realised this when Checking Officer entered the Bus. These facts as

contained in the said letter were at variance with the statement recorded on

the back of the challan of the said two passengers by the Inspecting Team.

The impugned order further holds that the petitioner had the residential

address of the two passengers in their possession. The passengers could have

been summoned to make their statement before the Tribunal and to clarify

the correct position. Needful was not done and no request was made to

summon the said passengers. Therefore, the facts as presented by the

petitioner were held to be completely at variance with the un-rebutted

statement of the passenger as contained in letter dated RW-1/2. As it was

for the petitioner to establish the facts, the impugned order concludes that

the petitioner had failed to do the needful. Based on these facts, the Tribunal

concluded that the petitioner has not been able to establish the charges that

the respondent/Conductor collected fare charges of Rs.5.00/- from two

passengers for their journey from Sikandrabad to Ghaziabad and then issued

them a ticket of Rs.2.50/- each for their journey from Sikandrabad to Dadri.

8. On Issue No. 2, the impugned order had held in favour of the

petitioner.

9. In view of the finding on issue No.1, the necessary approval as sought

by the petitioner was not given for its action of removal of respondent from

service under Section 33(2)(b) of the Industrial Disputes Act and the petition

of the petitioner was rejected.

10. Learned counsel appearing for the petitioner has strenuously urged

that the finding in the impugned order is entirely misconceived. He relies

upon the judgment of the Supreme Court in the case of State of Haryana &

Anr. vs. Rattan Singh, (1977) 2 SCC 491 and Divisional Controller,

KSRTC (NWKRTC) vs. A.T.Mane, (2005) 3 SCC 254 to state that in similar

facts the Supreme Court has taken the view that the evidence of a ticketless

passenger is not necessary for the petitioner to prove the type of charges that

were levelled against the respondent.

11. On the other hand, learned counsel appearing for the respondent

submits that firstly there is no challenge in the present writ petition by the

petitioner to the order dated 29.03.2001 where the preliminary issue was

decided against the petitioner and the report of the Enquiry Officer was held

to be perverse. Hence, it is submitted that the said order has attained

finality.

12. Regarding the impugned order he submits that the judgments cited by

the learned counsel for the petitioner can easily be distinguished on the facts

of the present case inasmuch as in the present case there was evidence on

record before the Enquiry Officer to show that one of the two passengers on

the basis of whose statement Checking Team had made a report, had sent a

written communication pointing out that the Conductor was not at fault and

that the passenger had asked him for a ticket which was given to him by the

Conductor. This fact clearly falsifies the statement of the Checking Team

and there is no basis to disregard the findings recorded by the impugned

order. He also relies upon the judgment of the Division Bench of this High

Court in the case of DTC vs. Anup Singh, 2006 (133) DLT 148 (DB) where

this Court had in somewhat similar facts pointed out that though it may not

be possible in every case for the passenger to be examined as witnesses,

especially keeping in view the judgment of the Supreme Court in the case of

State of Haryana & Anr. vs. Rattan Singh (supra) but other forms of

evidence can certainly be placed on record to prove that the fare charges

were collected without tickets being issued. For instance it should have been

possible for the Checking Staff to tally the cash in the Conductor's hand

with the tickets issued etc. He also relies upon the judgment of Constitution

Bench in the case of Jaipur Zila Sahakari Bhoomi Vikas Bank Limited

vs. Ram Gopal Sharma & Ors., AIR 2002 SC 643 to submit that when a

permission under Section 33(2)(b) of the Industrial Disputes Act is declined,

a necessary consequence would be that the employee continues to be in

service as if order of discharge or dismissal has never been passed and the

employee would be deemed to have continued in service and entitled to all

consequential benefits. However, he submits that his client has spent a lot of

time in litigation and that he has instructions from the respondent who is

present in court, to submit that his client would be willing to accept 50% of

back wages as a gesture to try and sort out the matter, apart from re-

instatement.

13. The only ground on the basis of which the impugned order has been

challenged by the petitioner is that the version as given by the Checking

Staff has been disbelieved by the impugned order on the basis of the fact

that evidence of the two passengers was not led. The Checking Staff has on

the challan, which is a small piece of paper, recorded statements of the two

passengers claiming that they had paid a sum of Rs.5.00/- but they had been

issued a ticket for Rs. 2.50/- (Ex.AW-3/3).

The evidence that has been led by the petitioner is of Mr.Sanjay Saxena,

AW-1, the Depot Manager of Shahadara Depot who conducted the enquiry

and has proved the enquiry proceedings. AW-2 Mr. Inder Pal Singh has

proved the dispatch of one month's salary to the respondent by means of

Money Order. The third witness is AW-3 Kanhiya Lal.

14. AW-3 is the relevant witness regarding the issue urged by the

petitioner. AW-3 Kanhiya Lal was a member of the Vigilance Squad which

checked the Bus along with another traffic inspector on 04.05.1989. The

said witness has proved the challan which was issued to the respondent as

AW-3/1, the statement of passengers which is AW-3/2, tickets AW-3/3

(colly.) and the report that was prepared pursuant to the checking is

exhibited as AW-3/4. Ex.AW-3/2 i.e. the statements of the passengers noted

on the reverse of AW-3/1 reads as follows:-

" (Translated)

I boarded the bus from Sikandrabad for Ghaziabad and gave Rs.5 to the conductor. The ticket given to me had ticket no. 69134.

Anil Kumar s/o Shri Ram Kumar c/o House No. 232, Mauhalla Sabji Vada, Sikandrabad Bulandshahr

I boarded the bus from Sikandrabad for Ghaziabad. I gave Rs. 5 to the conductor and he gave me ticket bearing number 69132.

Ranvir Singh c/o Village & PO Bilas Pur Dist. Bulandshahr"

15. In contrast to the above evidence, the communication that was

received from the passenger, Ranvir Singh which is RW-1/2 reads as

follows:-

      "                      (Translated)
      To,
      Delhi Transport Department
      Indraprastha Depot

      Date: 19.06.89
      Sir,

I am writing in response of your letter no. E.O (I-A)..... dated 12.06.89. As enquired by you in your letter stated above, it is true that I travelled in your bus on 4.05.89. I asked the conductor to give me a ticket for Dadri and took back the rest of the money. A little ahead of Dadri the Checking Team came and asked me for my ticket. I showed them my ticket to which they asked as to why I have travelled beyond Dadri. I told them that I suddenly fell asleep and the conductor at that time was doing some work and was sitting in the front seat of the bus. I asked them to issue me a ticket till Ghaziabad, but they did not do so. The Checking Team started enquiring and I had to give my address to them. The bus dropped me off at Ghaziabad. The conductor is at no fault here and I request you to not take any action against him.

Thanking You, Yours Faithfully, Ranvir Singh Village Bilaspur District Bulandshahr Uttar Pradesh."

The respondent RW-1 who tendered the said letter RW-1/2 has not

been cross-examined on the same by the petitioner.

16. Considering the two conflicting statements, the impugned order

records a finding disbelieving the version of the petitioner and hence holds

that the petitioner has not been able to establish the charges against the

respondent.

17. In my view there is no perversity in the said conclusion drawn by the

impugned order. The appreciation of evidence is within the domain of

Tribunal. The findings of fact recorded by a fact-finding authority duly

constituted for the said purpose cannot be disturbed for the reason of having

been based on materials or evidence not said to be sufficient by the Writ

Court as long as the findings are based on some materials on record which

are relevant for the said purpose. Merely because another view was possible

would not be a ground to set aside the said findings. The petitioner failed to

show as to why the finding recorded by the Tribunal is liable to be set aside.

18. The judgments relied upon by the learned counsel for the petitioner

pertaining to the case of State of Haryana & Anr. vs. Rattan Singh (supra)

and Divisional Controller, KSRTC vs. A.T.Mane (supra), would not apply

to the facts of the present case. It is true that in this case also there is

evidence of the inspecting staff which carried out the checking to show that

two of the passengers had been given tickets of less denomination. Yet in

the present case one of the passengers has written a communication to the

petitioner clearly pointing out that he had been issued a ticket which he had

requested for and the conductor did nothing wrong. This evidence of the

passenger has gone un-rebutted. There is nothing on record to show that the

statement of the passenger was obtained under any influence. In the light of

this evidence, the statement of the Inspecting staff cannot be unequivocally

accepted.

19. The judgment of the Division Bench of this High Court on the facts of

this case would be applicable to the present case, i.e., the judgment in the

case of DTC vs. Anup Singh (supra). That case also pertains to an employee

of the petitioner who was working as a Conductor. Four persons were found

to be travelling in the Bus without tickets. In those facts this court in para

16 held as follows:-

"16. We may add here that we may not be understood as holding that in every such case the passengers will have to be examined as witnesses. We are aware that it may not always be possible to examine the passengers themselves. We are also conscious of the decision of the Hon'ble Supreme Court in this regard in State of Haryana v. Rattan Singh (1977) 2 SCC 491. But, surely, there are other forms of evidence which can go to prove that fare charges were collected without tickets being issued. For instance, it should have been possible for the checking staff to tally the cash in the conductor's hand with the tickets issued and record this contemporaneously in writing in any known and acceptable form which can be proved in the enquiry by the author of the document. This is only one possible method, there might be others too. We are, in the facts of this case, unable to accept the plea of the learned Counsel for the appellant that there is enough evidence on record to prove the guilt of respondent. Accordingly, we see no reason to

interfere with the award of the Tribunal or the impugned order of the learned Single Judge."

20. The present petition is without merit and is dismissed. The order of

the Tribunal dated 18.03.2002 is upheld. However, in case the petitioner

implements the order of the Tribunal dated 18.03.2002 within three months

from today, the respondent shall remain bound by the statement made by the

learned counsel, namely, that he will be satisfied in case 50% of back wages

plus relief of re-instatement is given to him.

21. All interim orders stand vacated. Any money deposited in the Court

by the petitioner pursuant to any interim orders shall be released to the

respondent.

JAYANT NATH (JUDGE) APRIL 22, 2014 rb