Delhi Transport Corporation vs The P.O., Industrial Tribunal No. ...
2014 Latest Caselaw 2090 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI
                                                 Decided on April 28, 2014
+                            W.P.(C) 1187/1999


DELHI TRANSPORT CORPORATION                                  ..... Petitioner

                    Represented:        Mr.Sarfaraz Khan, Advocate with
                                        Mr.Amanullah, Advocate

                    versus

THE P.O., INDUSTRIAL TRIBUNAL NO. II AND ANR.

                                                     .... Respondents
                    Represented:        Mr.K.C.Dubey, Advocate

CORAM:
HON'BLE MR. JUSTICE V.KAMESWAR RAO
V.KAMESWAR RAO, J. (Oral)

1. The challenge in this writ petition by the Delhi Transport Corporation is to the orders dated January 03, 1998 and June 03, 1998 passed by the Industrial Tribunal, whereby the Industrial Tribunal, vide the first order, has inter alia, held the inquiry conducted by the petitioner, to be not fair and set aside the same. Vide the second order, the Industrial Tribunal held that the petitioner has failed to establish that the respondent No. 2 (respondent, in short) had committed a misconduct for which, he was charge sheeted and thereby, dismissed the approval application under Section 33(2)(b) of the Industrial Disputes Act, 1947 (Act, in short) for removing the respondent.

2. Some of the relevant facts are that the respondent was employed as a daily rated Conductor with the petitioner-Corporation. He was

brought on monthly rates of pay w.e.f. August 04, 1983. A charge sheet was issued to the respondent on January 17, 1991, wherein, it was alleged as under:

"That on 15.12.1990, when you were performing duty on route Ghaziabad to Delhi on bus No. 9685, then about, 2045 hours your bus was checked by checking officials at Loni Road crossing and your way voucher was found incomplete. On enquiry and on tallying your way voucher with counter foil, it was found that 6 tickets in a counter foil from No. 456-29070-29075 were left blank to defraud the Corporation of revenue".

3. The respondent, in his reply to the charge sheet dated March 18, 1991 denied the contents of the charge sheet and asked for way vouchers and the counter foils from the Depot Manager. The Inquiry Officer, vide his report dated June 26, 1991, held the charges against the respondent, as 'proved'. The Disciplinary Authority, after seeking the reply of the respondent on the report of the Inquiry Officer by way of a show cause notice, proposed a punishment of removal of the respondent from the services of the petitioner-Corporation. Simultaneously, an application was filed by the petitioner-Corporation under Section 33(2)(b) of the Act on November 29, 1991 seeking approval of the Tribunal in effecting the order of removal. Suffice to state that the respondent filed a reply to the application filed by the petitioner-Corporation wherein he had challenged the competency of the Depot Manager to impose penalty of removal on the respondent. That apart, he had stated that the Inquiry Officer has not conducted the inquiry in accordance with law and rules as he was deprived with the copy of the documents, despite a written

request.

4. A preliminary issue "whether the applicant held a legal and valid enquiry against the respondent according to the principles of natural justice" was framed by the Tribunal. The finding of the Tribunal in its order dated January 03, 1998 on the preliminary issue is as under:

"I find that the respondent in his letter (Ex.AW-1/8) addressed to the management after receiving the charge sheet dated 17.1.91 (Ex.AW-1/2) had asked the management to supply him a copy of the way voucher, which as per the charge sheet had been found to be incomplete at the time of checking of his bus on 15.12.90, as also the relevant counterfoils alleged to have been found blank at the time of checking of the bus on 15.12.90. The respondent had also written in that letter that these documents should be supplied to him to enable him to prepare his defence. Ex.AW 1/7 is a copy of the order passed by the management for holding enquiry against the respondent. A perusal of this order shows that while directing holding of the enquiry the concerned official of DTC who passed that order had also written that information copies of way voucher and counterfoils could not be supplied to the delinquent employee but he could inspect the same. This document also confirms that the respondent had asked the management for supplying him the documents so that he could prepare his defence. This document also shows that those documents sought for by the respondent were

not supplied to him. The management has not led any evidence and in fact has not even pleaded that the respondent had been informed about this order or that he had been allowed inspection of the relevant documents. Therefore, there was definitely a denial of proper opportunity to the respondent to put forth his defence. The documents sought for by the respondent were definitely relevant documents and have also been relied upon by the enquiry officer in his report dated 25.6.91 (Ex.AW-1/9) for holding the respondent guilty. Therefore the enquiry conducted by the applicant is liable to be set aside".

5. It appears, an opportunity was sought by the petitioner- Corporation in the application for adducing evidence before the Tribunal to establish the misconduct of the respondent in the event the preliminary issue being decided against it. On January 09, 1998, which is after the order of January 03, 1998 was passed, the following issues were framed:

1. Whether the respondent committed the misconduct for which he was charge sheeted?

2. Relief.

6. It is also noted that a witness was produced by the petitioner- Corporation. The Tribunal, in its order dated June 03, 1998 has held that the petitioner-Corporation has failed to establish that the respondent had committed a misconduct for which he was charge sheeted and thereby, declined the approval application.

7. Mr. Sarfaraz Khan, learned counsel for the petitioner-Corporation

would submit that the Tribunal has misdirected itself both on facts and law inasmuch as the inquiry, which was conducted against the respondent, was fair and reasonable opportunity was given to the respondent to defend himself. He would further state that the finding of the Tribunal that despite the respondent asking the petitioner- Corporation, documents for preparing his defence, the same were not supplied to him, is not correct. The Tribunal's view that the decision of the Authority to allow the respondent to inspect the documents was not even conveyed to him, is also not correct. Mr. Sarfaraz Khan, during the course of his submission, has drawn my attention to the Lower Court record at page 173, which is a letter dated May 01, 1991 written by the respondent to the Depot Manager, wherein, the respondent admitted that the documents, which he had asked for, have been given and he has seen those documents very carefully. According to him, despite such letter being on record, even though not exhibited has been overlooked by the Tribunal. Had the document been considered by the Tribunal, there was no occasion for it to come to a conclusion that the relevant documents have not been supplied to the respondent. According to him, if the inquiry had not been vitiated, then, no occasion would have arisen for the Tribunal to even call for evidence and to further hold that misconduct has not been committed by the respondent. In fact, he would state that in exercise of its jurisdiction under Section 33(2)(b) of the Act, the Tribunal was only required to see whether the provision has been followed, enquiry has been held in a fair and reasonable manner in accordance with the principles of natural justice and it is not a case of victimization. In other words, his submission is that the Tribunal would not have called for the petitioner to prove the charge before it. He would

further state that the Inquiry Officer having proved the charge against the respondent, the Tribunal was only to see that the employer has made a prima facie case for removal of the employee on the basis of the evidence. He would rely upon the following judgments in support of his contention:

i) AIR 1978 SC 1004, Lalla Ram Vs. Management of DCM Chemical Works Ltd. and Anr. to contend that in proceedings under Section 33 (2)

(b) of the Act, the jurisdiction of the Tribunal is confined to the inquiry as to whether a proper domestic inquiry in accordance with the relevant rules and standing orders, and principles of natural justice have been held; whether a prima case for dismissal based on legal evidence adduced before the domestic Tribunal is made out; whether the employer had come to a bona fide conclusion that the employee was guilty and the dismissal did not amount to unfair labour practice, and was not intended to victimize the employee.

ii) AIR 1958 SC 79, Martin Burn Ltd. Vs. R.N. Banerjee to contend that the Tribunal while exercising jurisdiction under Section 33(2)(b) of the Act has to determine on the basis of the material whether a prima facie case has been made out by the employer for termination of the employee. A prima facie case does not mean, a case proved to the hilt. It is only to ensure relevant consideration, whether on the evidence led, it was possible to arrive at a conclusion and not whether that was the only conclusion which would be arrived at on that evidence.

8. He would also draw support from the judgment of the Supreme Court in the case reported as AIR 2005 SC 570, Cholan Roadways Ltd. Vs. G.Thirugnanasambamdam wherein, the Supreme Court has relied upon its own judgment in Martin Burn Ltd.‟s case (supra). He would

further rely upon the judgment of the Division Bench in the case reported as 2006 I AD (Delhi) 436, Vijay Kumar Vs. DTC and Anr. wherein, the Division Bench has reiterated the principles which would govern the jurisdiction of the Tribunal in an application under Section 33(2)(b) of the Act, as has been held by the Supreme Court in Martin Burn Ltd.‟ s case (supra). He also relies upon the judgment of the Single Judge of this Court reported as ILR (2010) V Delhi 431, Delhi Transport Corporation Vs. Shyam Lal, wherein the learned Single Judge has held that the validity of the domestic enquiry under Section 33(2)(b) is different from the one before the Industrial Tribunal under Section 10 of the Act.

9. He would also rely upon the judgment of the Supreme Court reported as AIR (2002) SC 1241, State of UP and Ors. Vs. Ramesh Chandra Mangalik to contend that in the absence of any prejudice being shown because of non-supply of documents, the Tribunal could not have vitiated the inquiry.

10. On the other hand, Mr. K.C.Dubey, learned counsel for the respondent would support both the orders passed by the Tribunal. According to him, after the receipt of the charge sheet, the respondent had asked the Depot Manager to supply him the way vouchers and the relevant counter-foils which were said to be blank. Despite asking for the same, he was not supplied, which caused grave prejudice to the respondent as he could not put forth an effective reply to the charge sheet. He states that at no point of time, did the petitioner-Corporation conveyed its decision to the respondent for inspecting the documents. He would also state that even though the petitioner-Corporation had filed letter dated May 01, 1991 of the respondent addressed to the Depot

Manager, acknowledging the fact that he has received all the documents, but was not rightly considered by the Tribunal in arriving at a conclusion in its order dated January 03, 1998 as the same was not proved in accordance with law. He would also state that this Court would not like to consider the said document, which was neither proved/exhibited nor considered by the Tribunal. He would state that the Tribunal has rightly come to a conclusion that the said document(s) should have been supplied to the respondent which resulted in a denial of a proper opportunity to him. Further, he submits that it was at the request of the petitioner-Corporation that the Tribunal has allowed the petitioner- Corporation to adduce evidence before it to establish the alleged misconduct. He states that since the petitioner-Corporation has failed to examine any of the checking officers, who has checked the bus on 15th December, 1990 and the officials on whose report, charge sheet was issued to the respondent, the Tribunal was justified in holding that petitioner could not establish the misconduct which was the subject matter of the charge sheet. The learned counsel for the respondent has relied upon the following judgments in support of his contention:

1) 1960-II LLJ 39, Bangalore Woolen , Cotton and Silk Mills Company Ltd. Vs. Dasappa (B) (Binny Mills Labour Union) & Ors.

2) 1962 SCR 684, M/s. Bharat Sugar Mills Ltd. Vs. Sh. Jai Singh & Ors.

3)1961 SCR 204, the Lord Krishna Textile Mills Vs. Its Workmen.

4) 1971 1 LLJ SC 543, Mysore Steel Works Vs. Jitendea Chandra Kar and Others

5) 1972 1 LLJ Supreme Court 501, Air India Corporation Bombay Vs. V.A.Rebellow and Anr.

6) AIR 1972 Supreme Court 1031, Delhi Cloths and General Mills Co. Vs. Ludh Budh Singh

7) AIR 1979 Supreme Court 1652, Sankar Chakravorty Vs.

Britannia Bicuit Co. Ltd.

8) 1982 (2) LLJ 191, DTC Vs. Ram Kumar and Ors.

9) 1983 Lab. I.C. 1697, Shambhu Nath Goyal Vs. Bank of Baroda & Ors.

10) 1993 Lab. I.C. 1298, Cominco Binani Zinc Ltd. Vs. K.N.Mohanan and Anr.

11) 2001 9 SCC 523, Pepsu Road Transport Corporation Vs. Lacchman Dass Gupta and Anr.

12) 1965 1 LLJ Hind Construction and Engineering Co. Ltd. Vs. Their Workmen

13) 1982 1 LLJ 64, Shri J D Jain Vs. The Management of SBI and Anr.

14) 1993 1 LLJ 605, Vijaya Mohini Vs. Industrial Tribunal and Ors.

15) 1993 1 LLJ 50, Bajrang Mica Co. Pvt. Ltd. Vs. PO LC Bukaro Steel City and Another

16) AIR 2001 Supreme Court 2309, MD Tamil Nadu STC Vs. Neethvilangan

17) AIR 2002 Supreme Court 643, Jaipur Zila Shakari Bhoomi Vikas Bank Ltd. Vs. Ram Gopal Sharma

11. That apart, he would rely upon the judgment of the Supreme Court in the case of State of UP and Anr. Vs. Ram Gopal Shukla, AIR 1981 SC 1041 to contend a new plea cannot be allowed to be taken at the time of hearing of the appeal in the Supreme Court. On similar lines, he also relies upon the judgment of this Court reported as 2000 (56) DRJ (Suppl) 129, Essee Courier Vs. Sushil Kumar Sharma & Anr. He would further rely upon the judgment of the learned Single Judge of this Court reported as 2013 VIII AD (Delhi) 477, Rajbir Singh Vs. DTC, to contend that merely because prosecution witnesses had deposed in a particular way, their version has been accepted, the petitioner guilt cannot be said to have been proved. He also relies upon the following judgments:

(i) 2011 (126) DRJ 639, Krishan Kumar Nagar Vs. Management of DTC to contend that an allegation that a bus conductor received fares from the

passengers but did not issue the tickets, has been contradicted by the fact that he was found short of cash by Rs. 8.50/-, and thus, the misconduct cannot be said to have been proved; &

(ii) 133 (2006) DLT 148 (DB), Delhi Transport Corporation Vs. Anup Singh which is also on the similar lines as the judgment of this Court in Krishan Kumar Nagar‟s case (supra).

12. Before I deal with the submissions made by the learned counsel for the parties, a word on the legal position, insofar as the scope of jurisdiction of the Tribunal while considering an application under Section 33(2)(b) of the Act. The earliest of the judgment of the Supreme on this issue is Martin Burn Ltd‟s case (supra), wherein the Supreme Court has held as under:

"The Labour Appellate Tribunal had to determine on these materials whether a prima facie had been made out by the appellant for the termination of the respondent‟s service. A prima facie case does not mean a case proved to the hilt but a case which can be said to be established if the evidence which is led in support of the same were believed. While determining whether a prima facie case had been made out the relevant consideration is whether on the evidence led it was possible to arrive at the conclusion in question and not whether that was the only conclusion which could be arrived at on that evidence. It may be that the Tribunal considering this question may itself have arrived at a different conclusion. It has, however, not to substitute its own judgment for the judgment in question. It has only got to consider whether the view taken is a possible view on the

evidence on the record.

The Labour Appellate Tribunal in the instant case discussed the evidence led before it in meticulous detail and came to the conclusion that no prima facie case was made out by the appellant for the termination of the service of the respondent. It applied a standard of proof which having regard to the observations made above was not strictly justifiable. If the matter had rested there it may have been possible to upset the finding of the Labour Appellate Tribunal. But if regard be had to the evidence which was actually led before it, there is such a lacuna in that evidence that it is impossible to come to the conclusion that even if the evidence was taken at its face value a prima facie was made out by the appellant".

13. On similar lines, the Supreme Court in Bangalore Woollen, Cotton and Silk Mills Co. Ltd.'s case (supra) has held as under:

"The matter was again considered in Martin Burn Ltd. Vs. R.N.Banerjee, where this Court observed, after setting out the materials on the record in that case:

„The Labour Appellate Tribunal had to determine on these materials whether a prima facie had been made out by the appellant for the termination of the respondent‟s service. A prima facie case does not mean a case proved to the hilt but a case which can be said to be established if the evidence which is led in support of the same were believed. While determining whether a prima facie case had been made out the relevant consideration is whether on the

evidence led it was possible to arrive at the conclusion in question and not whether that was the only conclusion which could be arrived at on that evidence‟. The settled position in law therefore is that permission should be refused if the Tribunal is satisfied that the management‟s action is not bona fide or that the principles of natural justice have been violated or that the materials on the basis of which the management came to a certain conclusion could not justify any reasonable person in coming to such a conclusion. In most cases it will happen where the materials are such that no reasonable person could have come to the conclusion as regards the workman‟s misconduct that the management has not acted bona fide. A finding that the management has acted bona fide will ordinarily not be reached if the materials are such that a reasonable man could not have come to the conclusion which the management has reached. In every case therefore it would be proper for the Tribunal to address itself to the question, after ascertaining that the principles of natural justice have not been violated, whether the materials on which the management has reached a conclusion adverse to the workman, a reasonable person could reach such a conclusion".

14. Similarly in Mysore Steel Works‟ case (supra), the Supreme Court has held as under:

"The scope of the Tribunal‟s jurisdiction in an application under Section 33(2)(b) is limited and it does not sit as an

appellate court on the findings of fact. If the domestic enquiry is not vitiated by principles of natural justice, it has to see whether there is a prima facie case made out by the employer for the dismissal of the employee and whether the employer has bona fide come to the conclusion that the employee was guilty of misconduct, in other words, that there was no unfair labour practice or victimization. It would then grant approval. If the enquiry is defective for any reason, the Tribunal would have to consider for itself the evidence adduced before it for finding out as to whether the dismissal was justified. If on the evidence so adduced it finds that the dismissal was justified, it would grant approval. If the enquiry was defective employer must let in evidence for obtaining approval in the manner in which evidence would be normally let in before the Tribunal, i.e. by examining witnesses and not by tendering the evidence laid before the domestic enquiry, unless such a procedure is resorted to by consent of parties and the assent of the Tribunal. When the domestic enquiry is not defective by reason of violation of principles of natural justice or when the findings are not perverse or there is no unfair labour practice, the Tribunal has only to be satisfied that there is a prima facie case for dismissal".

15. In Lalla Ram‟s case (supra), the Supreme Court has held as under:

"The extent of jurisdiction exercisable by an appropriate authority under Section 33(2)(b) of the Industrial Disputes Act is very limited. In proceedings under Section 33(2)(b)

the jurisdiction of the Industrial Tribunal is confined to the inquiry as to (1) whether a proper domestic enquiry in accordance with the relevant rules/Standing Orders and principles of natural justice has been held; (2) whether a prima facie case for dismissal based on legal evidence adduced before the domestic tribunal is made out; (3) whether the employer had come to a bona fide conclusion that the employee was guilty and the dismissal did not amount to unfair labour practice and was not intended to victimise the employee regard being had to the position settled by the decision of this Court that though generally speaking the award of punishment for misconduct under the Standing Orders is a matter for the management to decide and the Tribunal is not required to consider the propriety or adequacy of the punishment or whether it is excessive or too severe yet an inference of mala fides may in certain cases be drawn from the imposition of unduly harsh, severe, unconscionable or shockingly disproportionate punishment; (4) whether the employer has paid or offered to pay wages for one month to the employee and (5) whether the employer has same transaction applied to the authority before which the main industrial dispute is pending for approval of the action taken by him. If these conditions are satisfied the Industrial Tribunal would grant the approval which would related back to the date from which the employer had ordered the dismissal. If however, he domestic enquiry suffers from any defect or infirmity, the

labour authority will have to find out on its own assessment of the evidence adduced before it whether there was justification for dismissal and if it so finds it will grant approval of the order of dismissal which would also relate back to the date when the order was passed provided the employer had paid or offered to pay wages for one month to the employee and the employer had within the time indicated above applied to the authority before which the main industrial dispute is pending for approval of the action taken by him".

16. Recently, the learned Single Judge of this Court in the case of Shyam Lal‟s case (supra) has held as under:

"15. In my view, the Industrial Adjudicators should insist on the complete record/report of domestic inquiry and the disciplinary authority to be produced along with an application under Section 33(2)(b). Thereafter, the pleadings should be perused minutely to see whether any case of victimization is made out. If the workman has not pleaded a case of victimization owing to pendency of an earlier dispute or has not made out a case of action of which approval is sought having been taken against him to settle scores with him in the earlier dispute or to deprive unfair advantage in the earlier dispute, or if the pleadings in this respect are vague and without particulars, no further inquiry by the Industrial Adjudicators is needed and the application under Section 33(2)(b) should be allowed immediately. Even if pleas are taken by the workman of the

domestic inquiry having been conducted in violation of the Standing Orders/Rules or the principles of natural justice, but the same is not attributable to victimization as aforesaid, such pleas ought not to be adjudicated in Section 33(2)(b) proceedings but should be left to be adjudicated in the industrial dispute if raised under Section 10 of the Act. The earlier industrial dispute owning whereto Section 33 (2)(b) application is necessitated, in a large number of cases is not of the individual workman against whom application under Section 33(2)(b) is filed but has been raised by all workmen of the establishment or their union and with respect to their general service conditions. In such cases, the management/employer generally cannot be said to have taken the action of which approval under Section 33(2)(b) is sought, by way of victimization, unless it is shown that such workman was responsible for initiating/instigating or pursuing the earlier dispute".

17. Having considered the rival submissions of the learned counsel for the parties, I note that in the charge sheet issued to the respondent, the Disciplinary Authority has given liberty to the respondent to inspect any of the relevant documents of reliance/available on record. In reply to this charge sheet as submitted by the learned counsel for the respondent, the respondent sought physical copies of the documents, like way vouchers and counterfoils. Even though, in the subsequent communications, the respondent has taken a stand that the documents have not been given to him, it is noted from the letter dated May 01, 1991 as found on the record of the Labour Court which is written by the

respondent to the Depot Manager/Disciplinary Authority, he concedes to the fact that he has admitted that the documents he has asked for, have been given to him and he has seen those documents very carefully. It is noted that even though the said letter was on record, it appears the same could not be proved and as such exhibited. During the course of the submissions before this Court, this letter was put to the respondent, who was present in Court. The respondent has admitted that he has written the said letter. Be that as it may, I find that the Disciplinary Authority while imposing the penalty and issuing order dated November 29, 1991 has enclosed therewith a speaking order in respect of the removal of the respondent from service of the Corporation. From the perusal of the Lower Court record, it transpires that the speaking order was filed by the petitioner-Corporation along with its application under Section 33(2)(b) of the Act at page 43 of the Lower Court record. The speaking order is in the following manner:

"On the receipt of the report from Shri Kehar Singh, A.T.I., B.No. 16973, Shri Vijay Kumar, Conductor, B.No. 18936, P.T.No. 40711 was charge sheeted vide no. WPD- 3/AI(T)/Ct.-1/91/211 dated 17.1.91 on the following charges:

1. That on 15.12.90, while you were performing your duty on bus No. 9685 on route Ghaziabad to Delhi, at about 2045 hours. your bus was checked by the Checking Officials at Loni Road Xing and found that you way voucher was incomplete. On enquiry and tallying your way voucher with the counter foils and found that 6 tickets bearing nos. 456-29070-29075 were left blank in your counter foils to defrauding the revenue of the corporation.

Your above action is tantamount to misconduct the meaning of para 19(b)(h) & (m) of the Standing Orders governing the conduct of DTC employees.\ Since the reply to the charge sheet was not found

satisfactory, the matter came up for oral and detailed enquiry and investigations. As a result of the enquiry, the charges were held to be proved. While agreeing with the findings of the Enquiry Officer, the defaulter was served with show cause notice no. WPDI/AI(T)/Ch- 52/91/4414 dated 8.11.91 asking him to show cause as to why he should not be removed from the services of this corporation. It was indicated in this notice that any representation which the defaulter may make in this connection shall be taken into consideration before passing the final order in the case. In his representation dated 13.11.1991 to the show cause notice, which is under consideration, the defaulter has put forth the following points for consideration.

1. He was not given full opportunity to inspect the records.

2. He was not supplied the copy of the Checking Report.

3. He was not supplied a copy of Voucher and relevant Counter Foils.

4. He denied the charges levelled against him.

The points raised by the defaulter are dealt here under in seriatum:

1. He was given full opportunity to submit his reply to the charge sheet. He was informed to inspect the case file and relevant documents vide memo no. WID- 3/AI(T)/Ch-1/91/2264 dated 29.4.1991 & he availed the opportunity on 1.5.91.

2. He was supplied a copy of Checking Report along with the Charge Sheet under his signature dated 17.1.1991.

3. He was allowed to inspect the Way Voucher and relevant Counter foils vide letter dated 29.4.91 for which he availed the opportunity on 1.5.91.

4. & 5. During the course of checking it was found his Way Voucher incomplete and 6 tickets were left blank in his counter foils by the conductor.

On the basis of the facts and evidence on record, the charges framed against the defaulter stand conclusively proved.

Now, the points for determination is as to whether the punishment proposed to be imposed is harsh. Keeping in view the gravity of charges and the Past Performance which bears one entry of same nature i.e. None issue of tickets after collecting due fare on 20.6.85. I am unable to persuade myself to show any leniency. I, therefore, confirm the provisional decision taken by the me for removing Shri Vijay Kumar, Conductor, B.No. 18936, P.T.No. 40711 from the services of this Corporation and I order accordingly.

Sd/-

DISCIPLINARY AUTHORITY DEPOT MANAGER: WPD-I

18. On a perusal of the above speaking order, I note that the respondent had taken a specific plea that he has not been given full opportunity to inspect the records apart from stating that he has not been given a copy of the checking report and way vouchers and counterfoils. The Disciplinary Authority deals with all the points wherein he refers to the fact that the respondent was given full opportunity to submit his reply. It is also mentioned that he availed the opportunity of inspection of documents on May 01, 1991. That apart, the Disciplinary Authority also states that the respondent was supplied a copy of the checking report along with the charge sheet. From the conclusion of the Disciplinary Authority, it can be seen that the stand that was taken by the respondent before the Tribunal was an incorrect one. Suffice to state, inspection of documents instead of giving of physical documents, is a sufficient compliance of principles of natural justice. This conclusion of the Disciplinary Authority has not been even challenged by the respondent in his reply to the application under Section 33(2)(b) of the Act. If that being the position, the conclusion of the Tribunal that non-supply of

these documents has resulted in denial of reasonable opportunity to the respondent, is not sustainable. Since no other issue was raised before the Industrial Tribunal except this and the Tribunal has vitiated the enquiry only on this issue, which conclusion has been held to be unsustainable, the order of the Tribunal vitiating the enquiry vide its order dated January 3, 1998 need to be set aside. I hold that a fair and reasonable opportunity was given to the respondent during the inquiry and principles of natural justice have been complied with. If there is no infirmity in the conduct of the inquiry proceedings against the respondent, which resulted in the order of the removal and the respondent has not pleaded victimization, the Tribunal should have granted approval for removing the respondent from the services of the Corporation.

19. Since I have held that the order dated January 03, 1998 is unsustainable, there was no occasion nor it is permissible under law in view of the position narrated above for the Tribunal to allow the petitioner to adduce evidence in support of the charge framed against the respondent and the order dated June 03, 1998 denying the approval is consequential to the order dated January 03, 1998, I hold that this order also need to go. I accordingly set aside the order dated June 03, 1998 as well.

20. Now, coming to the judgments as referred to by the learned counsel for the petitioner, suffice to state that my conclusion is based on the peculiar facts of this case and the judgments more particularly, Anup Singh‟s case (supra) & Krishan Kumar Nagar‟s case (supra), are those cases where the Courts have gone into the merit of the charge to hold that the misconduct is not proved. Similarly, insofar as the Sushil Kumar

Sharma‟s case (supra) is concerned, there is no dispute on the proposition of law that fresh material cannot be permitted to be placed on record. Neither, it is such a case, nor my conclusion is based on a fresh material. As is clear from above, my conclusion is based on a speaking order of the Disciplinary Authority filed before the Tribunal wherein the Disciplinary Authority has dealt with the objection of the respondent that he has not been given the documents nor a fair opportunity.

21. Insofar as the judgments relied upon by the counsel for the respondent which have been listed in para 10 above are concerned, the same deal with scope of jurisdiction of the Industrial Adjudicator while dealing with the application under Section 33(2)(b) of the Act. Even though, I have culled out the scope of jurisdiction of Industrial Adjudicator, while deciding the application under Section 33(2)(b), strictly speaking, the said proposition would not be applicable in this case as I have set aside the initial orders of the Tribunal on facts.

22. Insofar as the judgment of the Supreme Court in Ram Gopal Shukla‟s case (supra), the same is not applicable in the facts of this case. Similarly, Rajbir Singh‟s case (supra) is also not applicable as I have not dealt with the merit of the charge framed against the respondent and the conclusion of the Inquiry Officer thereon.

23. In view of the above as I have held the orders dated January 03, 1998 and June 03, 1998 are unsustainable on facts and set aside them, the writ petition is allowed. The application of the petitioner-Corporation under Section 33(2)(b) of the Act is also allowed and the approval for removing the respondent in terms of order dated November 29, 1991 of the Disciplinary Authority is granted.

24. No costs.

(V.KAMESWAR RAO) JUDGE

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