Delhi Transport Corporation vs The P.O.I.T. No.Ii And Anr.
2015 Latest Caselaw 9456 Del

R-67
*      IN THE HIGH COURT OF DELHI AT NEW DELHI


                                   Date of Decision: December 18, 2015


+      W.P.(C) 5715/2002
       DELHI TRANSPORT CORPORATION            ..... Petitioner
                    Through: Ms. Avnish Ahlawat &
                             Ms. Latika Chaudhary, Advocates

                          versus

       THE P.O.I.T. NO.II AND ANR.              ....Respondents
                        Through: Mr. Puneet Bajaj, Advocate for
                                 R-2

       CORAM:
       HON'BLE MR. JUSTICE SUNIL GAUR

                         JUDGMENT

% (ORAL)

Impugned order of 23rd March, 2001 rejects petitioner's application under Section 33(2)(b) of the Industrial Disputes Act, 1947 (herein after referred to as 'I.D. Act') seeking approval for removal of respondent -a safai karamchari from service. Consequent upon a departmental inquiry, respondent was removed from service vide order of 14 th May, 1990. The misconduct attributed to respondent -workman was that on 4th May, 1989 he had committed theft of 5 or 6 kgs of aluminum sheets at 14:30 hours and tried to cause financial loss to the employer. According to the petitioner, respondent -workman was caught red-handed with the theft

articles by the checking officials of petitioner. Thus, according to petitioner, respondent had misconducted himself in performing his duty. Impugned order reveals that a preliminary issue was framed regarding departmental inquiry being held in accordance with the principles of natural justice. This issue was decided against petitioner vide order of 14th September, 1999 as petitioner had not led evidence to show that the inquiry was validly conducted. Since petitioner had sought permission to lead evidence on misconduct, trial court had allowed petitioner to get examined Security Guard -Des Raj and Security Officer -Manohar Lal. Trial Court in the impugned order after appreciating the evidence of these witnesses had found that from the evidence of these two witnesses it is evident that petitioner along with another safai karamchari had made bundle of aluminum sheets but those bundles still lying in the petitioner's depot and it is not the case of petitioner that respondent-workman had tried to take away of those bundles from the depot or had admitted so, nor was caught doing so. Trial court had relied upon the evidence led by petitioner to conclude that respondent -workman was directed by the officials of petitioner to clean the depot and so, on directions, the depot was being cleaned and since the aluminum sheets were lying in the open space in the depot, therefore no case of theft or attempted theft is made out and so, no misconduct has been committed by respondent-workman.

At the hearing, learned counsel for petitioner had drawn the attention of this Court to the evidence of Manohar Lal, Security Officer and Des Raj, Security Guard to point out that a prima facie case is made out and the scope of scrutiny in application under Section 33(2)(b) is

quite limited. To contend so, reliance was placed upon an Apex Court decision in Cholan Roadways Ltd. vs. G. Thirugnanasambandam 2005 (3) SCC 241 wherein it has been reiterated that the jurisdiction under Section 33(2)(b) of the I.D. Act is limited one and cannot be equated with jurisdiction under Section 10 of the I.D. Act. Thus, quashing of the impugned order is sought.

On behalf of respondent-workman, it was submitted that impugned order does not suffer from any infirmity as the alleged misconduct is not proved. It was pointed out that respondent-workman had sought pardon from the Security Guard because he was caught urinating in petitioner's depot and neither the case of theft nor of attempted theft was admitted. Reliance was placed upon a decision in Calcutta Port Shramki Union vs. The Calcutta River Transport Association and Ors. AIR 1988 SC 2168 to submit that there should not be any interference by the higher courts in the Award passed by the Tribunal on hyper technical grounds. Thus, dismissal of this petition is sought by learned counsel for second respondent.

After having heard learned counsel for the parties and on perusal of impugned order, material on record and the decisions cited, I find that jurisdiction under Section 33(2)(b) of the I.D. Act is limited one and cannot be equated with the jurisdiction under Section 10 of the I.D. Act and while considering the application under Section 33(2)(b) of the I.D. Act, it has to be seen as to whether a prima facie case is made out or not. I have gone through the evidence of Security Officer as well as that of the Security Guard got examined by petitioner and has also perused the

admission made by respondent-workman and thereafter, I find no reason to take a different view than the one taken by trial court in the impugned order. Such a view is being taken because from the evidence led by petitioner, it cannot be said whether respondent-workman had committed theft of the aluminum sheets or had admitted attempted to do so. Dismissal of respondent-workman from service on the basis of the evidence led by petitioner is wholly unjustified. Trial court has rightly rejected petitioner's application under Section 33(2)(b) of the I.D. Act.

Consequently, finding no palpable error in the impugned order, this petition is dismissed while leaving the parties to bear their own costs.

(SUNIL GAUR) JUDGE DECEMBER 18, 2015 rb