Delhi Transport Corporation vs Om Kanwar
2014 Latest Caselaw 6350 Del

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

                          Judgment delivered on: December 01, 2014

+                                 W.P.(C) 2578/2011


       DELHI TRANSPORT CORPORATION               ..... Petitioner
                    Represented by: Mr.Karunesh Tandan, Adv.


                            Versus


       OM KANWAR                                       ..... Respondent
                            Represented by: Mr.R.R.Ahlawat, Adv.


CORAM:
HON'BLE MR. JUSTICE SURESH KAIT

SURESH KAIT, J.

W.P.(C) No. 2578/2011

1. Vide the present petition, the petitioner has assailed the award dated 13.04.2010, whereby the learned Tribunal has held the workman deemed to be in continuous services of the Management from the date of his removal. His termination from service becomes illegal. Therefore, he is entitled for reinstatement with consequential benefits.

2. The reference before the Tribunal was that "whether the removal of Sh. Om Kanwar from service is illegal and/or unjustified and, if so,

to what relief is he entitled and what directions are necessary in this respect".

3. The claim of the respondent/workman was that he was appointed by the Management in 1985 on the post of Conductor. He was issued charge-sheet for not issuing tickets to passengers after collecting full fare. The enquiry was conducted without following the Principles of Natural Justice. After the Enquiry, a show-cause notice dated 28.05.1993 was served upon the respondent and thereafter his services were terminated. The respondent challenged the enquiry on various grounds such as Enquiry Officer examined one passenger-witness and after recording his examination-in-chief, the Enquiry Officer himself cross-examined the said witness. The passenger-witness was neither cross-examined by the representative of the Management nor was any opportunity granted to the respondent/workman.

4. The case of the Management before the Tribunal was that the respondent/workman was issued charge-sheet on 18.01.1993 for not issuing tickets to the five passengers after collecting full fare of Rs.60/. The respondent/workman filed reply to the charge-sheet, which was not satisfactory and enquiry was ordered to be conducted.

5. On the pleadings of the parties, the following issues were framed:

"(i) Whether the Management has not conducted a fair and proper inquiry in accordance with the Principles of Natural Justice?

       (ii)    As per the terms of Reference."



 6.     The respondent/workman examined himself as WW-1.              He

reiterated the pleas taken by him in his statement of claims in his evidence by way of affidavit Ex.WW-1/A. He also relied upon documents Ex.WW-1/1 to WW-1/3, i.e., circular of DTC dated 12.02.1973, circular dated 13.10.1965 and another circular of DTC dated 28.05.1980.

7. The petitioner/Management examined Sh. Sushil Jacob, Enquiry Officer as MW-1, who proved his affidavit as Ex.MW-1/A, whereby stated that the Workman was suspended from the services on the basis of the charge-sheet and checking report Ex.MW-1/1 to Ex.MW-1/5. The witness MW1 also got exhibited waybills as Ex.MW-1/6 to MW- 1/8 and copy of charge-sheet as Ex.MW-1/9.

8. The learned Tribunal noticed that the passenger, namely, Phafu Ram was cross-examined by Enquiry Officer himself and not by the representative of the Management. Even no opportunity was given to the workman after the said passenger was cross-examined by the Enquiry Officer. The Enquiry Officer conducted the cross- examination of the passenger on behalf of the Management thus he acted as a Prosecutor for the Management. Moreover, he has also deprived the workman of the opportunity to cross-examine the witness, thereby violated the Principles of Natural Justice. Accordingly, the learned Tribunal observed that the proceedings conducted by the petitioner / Management were vitiated. Moreover, the learned Tribunal recorded that the application for approval of the termination of the

services sought under Section 33(2)(b) of the Industrial Disputes Act, 1948, has been dismissed by another Tribunal, therefore, the learned Tribunal allowed the claim petition filed by the respondent/workman.

9. In view of the facts recorded above; and that the connected W.P.(C) No.759/2011 filed by the petitioner has been dismissed vide even date's order, the present petition is also dismissed with no order as to costs.

SURESH KAIT (JUDGE)

DECEMBER 01, 2014 mr/sb