Delhi Transport Corporation vs Jagdish Prashad
2015 Latest Caselaw 9579 Del

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*       IN THE HIGH COURT OF DELHI AT NEW DELHI

                                              Date of decision: 23rd December, 2015

+                              W.P.(C) 6181/2013

        DELHI TRANSPORT CORPORATION                     .... Petitioner
                      Through: Mr N.K. Singh proxy counsel for Ms
                               Avnish Ahlawat, Advocate

                               Versus


        JAGDISH PRASHAD                                         ..... Respondent
                      Through:              Mr Rupesh Tyagi, Advocate along with
                                            respondent in person


CORAM:
HON'BLE MS. JUSTICE SUNITA GUPTA

                                     JUDGMENT

: SUNITA GUPTA, J.

1. Challenge in this writ petition under Article 226 of the Constitution of India is to the award dated 30th April, 2013 passed by the Presiding Officer, Labour Court-X, KKD, Delhi in DID No.475/09 whereby the respondent/workman was granted the relief of back wages w.e.f. the date of termination of service, i.e., 6th December, 2006 till the date of his superannuation along with continuity of service and consequential benefits.

2. The respondent (hereinafter referred to as „workman‟) was working as a conductor in Delhi Transport Corporation (hereinafter referred to as „corporation‟). He was terminated on 6th December, 2006 on the allegations that on 20th June, 1994 when he was on duty on bus No.9792, Ajmeri Gate-Sohna

Route, his bus was checked by the checking staff. He had issued tickets of less denomination to two passengers after having accepted full fare from them. On 10th July, 1994, the workman was served with the charge sheet dated 7th July, 1994 to which he submitted his reply. After holding an inquiry, the workman was terminated from his services.

3. The workman filed a direct statement of claim before the Labour Court alleging, inter alia, that he was terminated illegally on 6th December, 2006 by the Corporation on the allegations of issuing tickets of less denomination to two passengers. He was served with the charge sheet on 10th July, 1994 to which he submitted a reply. However, along with charge sheet, neither the list of witnesses nor the list of documents nor the copy of preliminary investigation were supplied to him. After a lapse of 11 years, the management conducted an inquiry into the charges levelled against him where he was not given full opportunity to defend himself. The inquiry was conducted in violation of the instructions issued by the Corporation. He had demanded the documents from the inquiry officer vide his representation dated 11th October, 2004 which were not supplied on the pretext of the same being old. The findings of the Inquiry Officer dated 30th January, 2006 are perverse and not based on evidence. On 1st March, 2006, he received a show cause notice dated 27th February, 2006 which was replied by him but without applying a judicious mind, the disciplinary authority kept the matter pending for long and at last passed the order of removing the petitioner from service on 6th December, 2006. Hence, he claimed reinstatement with full back wages along with consequential benefits.

4. The claim was contested by the Corporation, inter alia, on the grounds that the inquiry was conducted against the workman according to the principles of natural justice and full opportunity was given to him to defend his case. The workman was involved in many cheating cases and he was also removed

previously and after re-employment he again committed misconduct. It was further stated that on 20th June, 1994, on checking the bus, the checking staff found that the workman collected Rs.7/-from two passengers but issued two tickets of Rs.5/-. He admitted his fault and handed over two un-punched tickets of Rs.2/- each. The statement of passenger was recorded which was not signed by the workman, as such, a charge sheet was issued to him and was removed after conducting due inquiry. The workman was removed from the services of the management in another cheating case where he was reinstated as per award dated 24th April, 2002. At that time, the present case was pending and no action was taken as the workman was removed in the other case. Thereafter, the present case was re-opened and the inquiry was initiated wherein workman was given full opportunity to defend his case. It was admitted that the workman demanded some documents but the same could not be supplied as the documents were auctioned being more than 2 years old. However, other documents were supplied to him. After considering the report of the inquiry officer and past record of the workman, he was removed from the service. As such, the claim was liable to be dismissed.

5. As regards the inquiry conducted by the corporation vide order dated 12th January, 2010, the same was held to be vitiated by the Labour Court primarily on the ground that the workman was not supplied with the documents as demanded by him ostensively on the ground that the documents were auctioned. Non supply of the relevant documents caused prejudice to the workman. Moreover, the inquiry was not initiated by the management for 11 years but later on, the said charge sheet was made the basis of dismissal of the workman, therefore, it was incumbent upon the management to preserve those documents. As such, the issue pertaining to inquiry was decided against the corporation and in favour of the workman.

6. As regards the allegation of misconduct on the part of the workman in having taken Rs.7/- from two passengers travelling from Pahar Ganj to Gurgaon,

same was held to be not proved on the ground that :-

(i) The names of the alleged two passengers have neither been mentioned in the report dated 20th June, 1994 of MW1-Jawahar Singh, the member of the checking team in the charge sheet nor the factum of recording the statements of two passengers in the complaint book has been proved.

(ii) Allegation regarding handing over two un-punched tickets by the workman was also not proved. Even the original un-punched tickets were not placed on record as only the photocopies were filed. Issuance of two un-punched tickets of Rs.5/- and recovery of 2 un-punched tickets of Rs.2/- were not proved in the absence of relevant seizure memo allegedly bearing signatures of the complainant, passengers or any independent witnesses. There is no corroboration to the testimony of MW1-Jawahar with respect to the alleged incident of misconduct.

(iii) The passengers were not examined by the Corporation. The cash of the workman was not checked by the checking party.

(iv) The complaint book was not produced before the Court wherein allegations were made against the checking party.

(v) MW1-Jawahar Singh admitted in his cross-examination that the workman had informed him that he was not issued uniform by the department. That being so, the charge of not wearing uniform was not proved. The allegations of misconduct were not proved by the corporation.

(vi) The plea of workman that he remained unemployed after the termination was not challenged by the corporation.

(vii) During the pendency of the proceedings, the workman attained the age of superannuation, as such, he could not be granted the relief of reinstatement, therefore, he was awarded relief of back wages w.e.f. the date of his termination till superannuation along with continuity of service

and consequential benefits.

7. Feeling aggrieved by the award, the present writ petition has been filed by the Corporation.

8. Learned counsel for the petitioner submitted that the workman was appointed as conductor with DTC on 25th May, 1977. While performing his duties as conductor, he was found indulging into various incidents of issuing tickets of lesser denomination to the passengers. He was thrice issued warning and was also awarded with punishment of withholding three increments with cumulative effect. In another inquiry conducted for not issuing tickets his services were terminated on 21st October, 1994. However, the respondent was reinstated in service after the Tribunal in its award dated 24th April, 2002 directed reinstatement in service with full back wages. He was reinstated in service on 26th June, 2003 and was paid wages to the tune of Rs.5,50,246/-. The inquiry earlier instituted against the respondent on a charge sheet issued on 7th July, 1994 which was kept in abeyance because of the dismissal, was re-opened. A full-fledged inquiry was conducted and thereafter he was terminated from service. The counsel further submits that in order to prove the misconduct, the management produced Sh. Jawahar Singh, Assistant Traffic Inspector, one of the member of the Checking Staff and also the reporter of the incident MW-1 and Sh. G.D.Srivastava, Regional Manager of the management and also Disciplinary Authority as MW-2. Both the witnesses proved the copies of punched and un-punched tickets of the denomination of Rs.5/- and Rs.2/- along with copy of the statement of the concerned passengers. It was submitted that the workman has failed to show that any prejudice has been caused to him by not providing some documents which were already weeded out. Moreover, non-production of the complaint book did not cause any prejudice to the workman because he only wanted to show that some passengers had written against the checking staff. The photocopies of the documents were duly proved

by the Assistant Traffic Inspector. Same were never disputed by the workman. No malafide intention on the part of the checking staff was attributed by the workman at any stage. Moreover, the workman had been indulging in these activities on many occasions, therefore, it was not a case to grant him continuity in service when he was not in service since 1994 to 2003 and then from 2006 till the date of superannuation. Moreover, the workman was not entitled for full back wages at the most he could have been paid some lumpsum amount. He had already received approximately a sum of Rs.6 lacs and he was not working for almost 15-16 years. The workman is a habitual cheater. He was facing two departmental inquiries only on the ground of non-issuance of tickets. Earlier also, he was punished for the same type of charges. By giving him full back wages he gets unjust enrichment without working for almost 18 years.

9. On the other hand, learned counsel for the workman submitted that the management had failed to prove misconduct as only two witnesses were examined by the management. MW-2 was the Disciplinary Authority who had no personal knowledge of the incident and his evidence in this regard was hear say. MW-1 was a member of the Checking Staff who admitted that the cash of the workman was not checked despite the fact that the bus was detained at Gurgaon Depot for 1/1½ hours. He also admitted that the workman‟s alleged refusal to sign the challan was not recorded on the challan despite the column for recording this fact. Complaint book was in the custody of the management but the same was not produced. As regards the charge of not wearing uniform, he admitted that the workman had informed him that the same was not issued by the department. No passenger or any other independent witness was cited or examined. Original documents were not produced by the management to prove the misconduct. Since the inquiry was conducted after a lapse of 11 years of the alleged incident, the defence of the workman was seriously prejudiced. The driver who had deposed favourably in inquiry had since died. The passengers who were examined by the

workman had also shifted and, therefore, could not be examined. As such, it was submitted that the award does not suffer from any infirmity which calls for interference. As such, the petition is liable to be dismissed.

10. It is not in dispute that on 20th June, 1994, the workman was on duty on bus No.9792, Ajmeri Gate to Sohna route when the bus was checked by the checking staff. The challan was prepared against the workman on the allegations that the workman who was working as a conductor issued tickets of less denomination to two passengers and he was also not wearing uniform while performing duty. On these allegations, a charge sheet dated 7th July, 1994 was served upon the workman to which he submitted a reply. The inquiry was, however, kept in abeyance as in the interregnum the workman was terminated from service pursuant to an inquiry initiated against him for which the workman raised an industrial dispute. Vide award dated 24th April, 2002, the workman was ordered to be reinstated in service with full back wages, as such, he was reinstated in service on 20th June, 2003 and paid back wages to the tune of Rs.5,50,246/-.

11. Thereafter inquiry initiated against the respondent on the basis of charge sheet issued on 7th July, 1994 which was kept in abeyance was re-opened. It is not in dispute that during the course of inquiry, the workman demanded various documents, however, some of the documents were not supplied to him on the ground that the same being old record, has been auctioned. On behalf of the management, MW1, Sh.G.D. Srivastava was examined whereas the workman in his defence had examined the driver Chhida Singh who deposed in favour of the workman by stating that on 20th June, 1994, when the bus was checked, no irregularity was found. The checking staff took tickets from two passengers and got the bus vacated. There was altercation with the passengers as the passengers were demanding back their tickets but the checking staff did not hand over the same to them. Thereafter the passengers were boarded in another bus. The

conductor was challaned on the pretext of not wearing uniform which was a wrong challan as during the year 1994, no uniform was provided to drivers or conductors. He also examined two persons Sh. Anil Kumar and Sh. Rakesh Kumar who deposed that they had travelled on the bus route No. 9792 and they boarded the bus from Dhaula Kuan to Gurgaon and were given tickets of Rs.5/- by the conductor. The conductor had returned Rs.2/- to them and for the balance amount of Rs.3/- he had given in writing that same be taken later on. The checking staff boarded the bus from Kapashera and got the bus stopped at Gurgaon bus stand. Their tickets were taken by the checking staff. When they demanded back, the same were not given to them. The balance amount of Rs.3/- was returned by the conductor to them. They had mentioned about the incident in the complaint book. A perusal of the inquiry report reveals that absolutely there is no discussion about the testimony of the driver or the two witnesses examined by the workman and the workman was held guilty of the charges. During the course of inquiry, the workman was not provided with the material documents and, as such, he was prejudiced in his defence. That being so, the inquiry was held to be vitiated by the learned Labour Court and rightly so. No fault can be found in this finding of the Labour Court.

12. As regards the misconduct on the part of the workman, the entire evidence was considered by the Labour Court for arriving at the conclusion that the corporation has failed to prove the misconduct on the part of the workman as except the testimony of MW-1 Jawahar Singh, there was no corroborative piece of evidence. MW-2 was the disciplinary authority and was not a member of the raiding party, therefore, his testimony was merely hearsay in this regard. No doubt in view of State of Haryana vs. Ratan Singh (1982) 1 LLJ 46, it is not necessary on the part of the corporation to examine the passengers but at the same time, at least the names of the passengers should have been mentioned in the challan and their statements should have been annexed with the same. However,

the challan does not bear the name of any passenger and there is photocopy of statement of one Rakesh Kumar, S/o Baijnath.

13. Furthermore, although it is stated that two unpunched tickets of Rs. 2/- were handed over by the workman but even the original unpunched tickets were not placed on record.

14. Even cash of the conductor was not checked and the explanation given by Sh. Jawahar Singh was that the bus had broken down and the passengers had got irritated and, therefore, they had no time to check the cash. However, it was admitted that the bus was detained at Gurgaon bus stand for about 1½ hour because of the breakdown of the bus. He also admitted that there is a provision in DTC that on finding any irregularity on the part of the conductor of the bus, the said bus conductor can be detained and other bus conductor can be sent on the bus. He also admitted that on the Gurgaon bus terminus, spare bus conductor was available. That being so, there was ample opportunity for the checking staff to check the cash of the conductor in order to ascertain as to whether he had charged more from the passenger and gave tickets of less denomination. In DTC vs. Anup Singh 133 (2006) DLT 148 (DB) the explanation given by the checking staff that it was not possible to check the cash in a moving bus was not accepted.

15. It is the case of the workman that the passengers had written against the checking staff in the complaint book but even the complaint book was not preserved or produced by the corporation. Moreover, the witness admitted that the workman had informed him that he was not issued uniform by the department. That being so, he was not wearing the uniform. Under the circumstances, the testimony of MW1-Jawahar Singh did not find corroboration from any independent witness. The mere statement of one of the member of the raiding party in the absence of any of the corroborative evidence cannot be considered as

"some evidence" in terms of the judgment of Supreme Court in Rattan Singh (supra). In this case, Hon‟ble Supreme Court observed that the essence of a judicial approach is objectivity, exclusion of extraneous materials or considerations and observance of rules of natural justice. Of course, fairplay is the basis and if perversity or arbitrariness, bias or surrender of independence of judgment vitiate the conclusions reached, such finding even though of a domestic tribunal, cannot be held good.

16. Again in Roop Singh Negi vs. Punjab National Bank & Ors., AIR 2008 SC (Supp) 921, Hon‟ble Supreme Court observed:-

"The materials brought on record pointing out the guilt are required to be proved. A decision must be arrived at on some evidence, which is legally admissible. The provisions of the Evidence Act may not be applicable in a departmental proceeding but the principles of natural justice are. As the report of the Enquiry Officer was based on merely ipse dixit as also surmises and conjectures, the same could not have been sustained. The inferences drawn by the Enquiry Officer apparently were not supported by any evidence. Suspicion, as is well known, however high may be, can under no circumstances be held to be a substitute for legal proof."

17. In the instant case, except for the statement of one of the member of the checking party there is no other evidence to connect the workman of the alleged misconduct of receiving more money from the passenger and issuing tickets of less denomination. In view of the aforesaid evidence available on record, it cannot be said that the findings of the learned Labour Court are in any manner perverse which calls for interference.

18. While exercising writ jurisdiction under Article 226 of the Constitution of India, the settled position of law in respect of interference by writ courts under Article 226 of the Constitution of India is that a writ court exercises its power of judicial review well within certain parameters. A series of judgments

rendered by the Supreme Court in Sadhu Ram vs. DTC, (1983) II LLJ 383 SC; Harbans Lal vs. Jagdish Saran,(1985) 4 SCC 333, Atlas Cycle (Haryana) Ltd. vs. Kitab Singh (2013) 12 SCC 573, KVS Ram vs. Bangalore Metropolitan Transport Corporation AIR 2015 SC 998 reiterates this legal position.

19. The legal position which emerges from the above mentioned judgment is that the High Court should not interfere with the award of the Industrial Tribunal on mere technicalities. Interference is permissible only if the order of Industrial Adjudicator suffers from an error of jurisdiction, breach of principles of natural justice or is vitiated by a manifest or apparent error of law. Re-appraisal of evidence without sufficient reason in law to arrive at a finding contrary to that arrived at by the Industrial Adjudicator is not the intent of exercising judicial review. The finding of fact recorded by a fact finding authority duly constituted for the purpose cannot be interfered with so long as they are based upon some material relevant for the purpose or even on the ground that there is yet another view which can reasonably and possibly be taken. In the case in hand, there was sufficient material before the Labour Court for recording its finding. Not only are the findings reasonable but the same have been arrived at after proper appreciation of the evidence on record. That being so, so far as the finding regarding holding the termination to be illegal, the same does not warrant any interference.

20. However, as regards the relief granted to the workman, according to the corporation, the workman is a habitual cheater. He faced two departmental inquiries only on the ground of non-issuance of tickets. While performing his duties as a conductor, he was found indulging in issuing tickets of lesser denomination to the passengers with the result he was issued warnings thrice and was also imposed the punishment of withholding three increments with cumulative effect. In another inquiry conducted for not issuing tickets, his services were terminated on 21st October, 1994, however, since the termination

was set aside by the Labour Court by award dated 24th April, 2002 and he was ordered to be reinstated in service with full back wages, he was reinstated in service on 26th June, 2003 and was paid wages to the tune of Rs.5,50,246/-. Under the circumstances, awarding him full wages with all consequential benefits when he had not worked with DTC initially from 1994 to 2003 and thereafter from 2006 till the date of his superannuation would tantamount to unjust enrichment without working for almost 18 years. Reliance in this regard was placed on Delhi Transport Corporation vs. Ram Saran, LPA 987/2011: MANU/DE/2205/2012. That was also a case where the findings of the Industrial Adjudicator of misconduct were not interfered with in exercise of supervisory power. However as regards the relief granted to the workman of reinstatement with full back wages, the Division Bench of this court took note of the fact that on 11 occasions, the workman was found guilty not only of not issuing tickets to the passengers but also on different counts. As such, a lump sum compensation of Rs.5,00,000/- was awarded to the workman in lieu of reinstatement and legal cost of Rs.75,000/- granted by the industrial adjudicator.

21. Following the ratio of this case, keeping in view the fact that the conduct of the workman was not unblemished and it is the case of the corporation that he had been indulging into issuing tickets of lesser denominations to the passengers, and was therefore, issued warnings thrice and his three increments were withheld with cumulative effect, in one inquiry, his services were terminated, however, he was reinstated. Thereafter, a sum of Rs.6,00,000/- approximately was paid to him towards back wages. Now w.e.f. 2006, he is no longer in the employment of the corporation, as such, ends of justice will be met if a lump sum compensation is awarded to him. Accordingly, award is modified by granting a lump-sum compensation of Rs.5,00,000/- to the workman. The same be paid to him within a period of eight weeks.

22. With this modification, the writ petition stands disposed of.

(SUNITA GUPTA) JUDGE DECEMBER 23, 2015/rs