Delhi High Court
Delhi Transport Corporation vs Shri Ram Kumar, Ex. Driver on 25 November, 2014
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 25.11.2014
+ LPA 358/2014
DELHI TRANSPORT CORPORATION ..... Appellant
Through: Ms. Arati Mahajan Shedha, Adv.
versus
SHRI RAM KUMAR, EX. DRIVER ..... Respondent
Through: Ms. Rashmi B. Singh, Adv.
CORAM:
HON'BLE MR. JUSTICE KAILASH GAMBHIR
HON'BLE MR. JUSTICE NAJMI WAZIRI
NAJMI WAZIRI, J. (Oral)
1. This appeal is against an order of the learned Single Judge dated
12.11.2013, whereby the award dated 23.9.2003 passed by the Labour
Court in ID No.87/1993 was upheld; the latter had directed grant of full
backwages to the respondent/workman. The appellant contends that there
could be no such entitlement for the period the workman was out of service.
2. The facts of the case are that on the basis of a newspaper report
regarding misbehaviour with a college going female student by a DTC
driver and a conductor, the appellant had initiated action against the
respondent/driver and the conductor of the bus. These two were identified
on the basis of schedule of various buses plying on the route concerned.
The appellant's complaint was registered and both were arrested. However,
after the test identification, they were let off because the aggrieved female
student concerned failed to identify them in the first Test Identification
Parade (TIP). In the subsequent TIP, she did not participate. Subsequently,
the respondent/driver and the conductor were discharged on account of
insufficiency of evidence.
3. In the departmental enquiry, the respondent was found guilty and as a
consequence he was removed from service. In view of the pendency of
certain other disputes between the appellant and its workmen, the matter
was referred to the Industrial Tribunal, Delhi for its approval while a
month's wages were remitted to the respondent through money order. In
his evidence, the respondent had denied knowledge of any such incident
having occurred in his bus or of his having misbehaved with the college
going female student. After appreciating the evidence, the Industrial
Tribunal found that the respondent could not be held guilty of the alleged
misconduct in the absence of proof, particularly because the alleged student
could not be produced for evidence nor was there any other eye-witness to
depose about the alleged incident. The newspaper report was not found
sufficient to prove the allegation. Accordingly, the Tribunal held that the
termination of the respondent/workman from service was illegal and
unjustified, therefore, he would be deemed to be in continuous service from
the date of termination and was entitled to full backwages along with
consequential benefits and continuity of service. The Award took note of
the Supreme Court dicta in Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd.
vs. Sh. Ram Gopal Verma & Ors., AIR 2002 SC 643 which held that the
non-approval of an order of dismissal under Section 33(2)(b) of the
Industrial Disputes Act, renders the dismissal inoperative and it becomes
ineffective from the date it was passed, hence, the employee becomes
entitled to wages from the date of dismissal to the date of disapproval.
In dismissing the appellant's writ petition against the said Award, the
learned Single Judge was conscious of the aforesaid judgment in Jaipur Zila
(Supra) and was of the view that "if approval is not given, nothing more is
required to be done by the employee as it will have to be deemed that the
order of discharge or dismissal had never been passed............." and "that the
employee would be deemed to have continued in service entitling him to all
benefits available". The learned Single Judge found the reliance of the
appellant on DTC vs. Virender Singh, 116 (2005) DLT 266 was misplaced
because the facts of the present case were different. It was also held that the
standard of proof in a criminal trial was different from that in a domestic
enquiry. However, for a person to be found guilty of an offence, at least some
evidence was required to be brought on record. There being no evidence by
the complainant nor by any other person travelling in the bus concerned,
therefore, there was no justification or basis to hold the respondent/workman
guilty of the allegation. The learned Single Judge further observed that merely
on the basis of the newspaper report, where neither the name of the driver nor
the number of the bus was mentioned, it could not be concluded that the
incident had ever taken place in the bus or that the respondent/workman
concerned was involved in such a misbehaviour as was alleged. Therefore,
even the principle of preponderance of probabilities, which would be the
standard in domestic enquiry, was not met. The standard of proof of it being
beyond reasonable doubt would obviously not be applicable in the present case
but even the lesser requirement of proof by way of preponderance of
probabilities was not met.
4. We have heard the learned counsel for the parties.
5. The appellant has relied upon its internal enquiry apropos the scrutiny
of the driver's memo on the date concerned and by inductive reasoning,
concluded that the respondent/workman was involved in the alleged
misconduct. The departmental inquiry had concluded that the
respondent/workman was guilty. This Court is of the view that in the absence
of any proof being brought on record either through the aggrieved student or
any eye-witness or any corroborating witness about the alleged incident in a
bus whose number was neither identified nor were the alleged workmen i.e.,
either the bus conductor or the present respondent, there was no justification or
basis for the dismissal or termination of the respondent from service.
Newspaper reports do not constitute evidence for it to be taken cognizance of
in any departmental proceedings. Allegations would need to be verified
through proper evidence or corroborative facts, neither of which was done in
the present case. Dismissal of an employee merely on the basis of sketchy
facts or a mere allegation or allusion to misconduct in a newspaper would not
be sufficient ground or proper justification. In the absence of any direct or
corroborative evidence of the said employee's involvement in the alleged
misconduct, his termination from service cannot be sustained. In situations
where the right of a workman to continue in employment is sought to be
infracted, an inductive reasoning cannot be employed because it would tend to
arrive at a general conclusion of guilt or misconduct from unfounded facts.
The right of a workman cannot be trifled with on the basis of mere
conjectures. When the workman's right to continue in employment is sought
to be infracted it would have to be based upon substantive evidence warranting
such infraction in law. In Rajinder Kumar Kindra v. Delhi Administration,
(1984) 4 SCC 635, the Supreme Court held as under:
"It is equally well settled that where a quasi-judicial tribunal
or arbitrator records findings based on no legal evidence and
the findings are either his ipse dixit or based on conjectures
and surmises, the enquiry suffers from the additional infirmity
of non-application of mind and stands vitiated. The Industrial
Tribunal or the arbitrator or a quasi-judicial authority can
reject not only such findings but also the conclusion based on
no legal evidence or if it is merely based on surmises and
conjectures unrelated to evidence on the ground that they
disclose total non-application of mind."
6. There was no basis for termination of the respondent's employment.
The Industrial Tribunal had rightly refused to grant permission for the
respondent's removal from service under Section 33(2)(b) of the Industrial
Disputes Act, 1947. As a consequence thereof, the learned Single Judge
was also right in not entertaining the appellant's writ petition. This Court
finds no reason to interfere with the impugned order. This appeal is without
merit and is accordingly dismissed.
NAJMI WAZIRI, J
KAILASH GAMBHIR, J
NOVEMBER 25, 2014/ak
