Delhi High Court

Delhi Transport Corporation vs Shish Pal Singh on 23 December, 2015

        *       IN THE HIGH COURT OF DELHI AT NEW DELHI
+                                       Judgment delivered on: December 23, 2015


%       W.P.(C) No.6414/2004

       DELHI TRANSPORT CORPORATION             ..... Petitioner
                    Through: Mr. Sarfaraz Khan and Mr. Atul Rahman,
                             Advocates.

                               versus

        SHISH PAL SINGH                                              .....Respondent
                      Through:               Mr. Prashant Singh, Advocate.


        CORAM:
        HON'BLE MR. JUSTICE I.S.MEHTA

                                        JUDGMENT

I. S. MEHTA, J.

1. The present petitioner, i.e., Delhi Transport Corporation

(hereinafter referred as the 'petitioner-management')

has preferred the present Writ Petition under Articles 226 of the

Constitution of India for quashing and setting aside the impugned orders

dated 07.02.2003 and 03.06.2003 passed by the Presiding Officer,

Industrial Tribunal-II, Karkardooma Courts, Delhi (hereinafter referred

to as the 'learned Labour Court/Industrial Adjudicator') in O.P. No.

313/94 under Section 33(2)(b) of Industrial Disputes Act, 1947.

2. The brief facts of the case as alleged by the petitioner-management

are that the respondent-workman, i.e., Shri Shish Pal was appointed as

retainer crew conductor vide letter No. PLD (2)/78/8271 dated

07.07.1978. On 08.01.1993 while the respondent-workman was on

official duty on bus No. 9649 on route No 305, he was checked by the

checking staff of the petitioner-management at „Fatehpuri‟ and it was

found that:

(i) he received full fare from passengers but issued tickets of

lesser denomination,

(ii) the sold tickets were found from his hand block of tickets,

(iii) on physical checking, cash was found in excess by Rs. 14.25

3. Consequently, on the basis of the report received by the checking

officials, the respondent-workman, i.e., Shri Shish Pal was served with a

charge-sheet dated 03.02.1993. The then disciplinary authority on not

finding any satisfactory reply initiated an enquiry against him through the

enquiry officer, i.e., Shri A.S. Bains, who held the respondent-workman

guilty of the charges levied against him and forwarded the case to the

Depot Manager for punishing the respondent-workman. It was found that

the irregularities so committed by the respondent-workman amounted to

misconduct within the meaning of paras 19 (b), (f), (h) and (m) of the

Standing Orders governing the conduct of Delhi Transport Corporation

(D.T.C.) employees. The disciplinary authority removed the respondent

from service vide order dated 30.09.1994 and remitted full one month‟s

wages to him by way of money order vide receipt No. 1453 and 1454

dated 30.09.1994. The petitioner-management, i.e., D.T.C. filed an

application under Section 33(2)(b) of the Industrial Disputes Act, 1947

before the Industrial Adjudicator for approval of its action against the

respondent-workman. However, the respondent-workman denied the

allegations so put forward against him.

4. On the pleadings before the Industrial Adjudicator, the preliminary

issue, i.e., "Whether the applicant held a legal and valid enquiry against

the respondent according to principles of natural justice?(OPA)" was

framed and after giving fair opportunities to both the parties, the said

issue was decided in favour of the respondent-workman and against the

petitioner-management on 07.02.2003.

5. The learned Industrial Adjudicator thereafter on the basis of the

pleadings of the parties further framed three issues, i.e.,

"(1) Whether the respondent committed the misconduct as alleged against

him?

(2) Whether the petitioner remitted full one month's wage to respondent

at the time of his dismissal from service?

(3) Relief"

and the leaned Industrial Adjudicator after giving fair opportunity of

evidence on the aforesaid issues to both the parties passed the impugned

order dated 03.06.2003. Hence, giving rise to the present Writ Petition.

6. The learned counsel Shri Sarfaraz Khan appearing on behalf of the

petitioner-management, i.e., D.T.C. has submitted that the learned

Industrial Adjudicator while passing the order under Section 33(2)(b) of

the Industrial Disputes Act, 1947 exceeded in its jurisdiction. The power

under Section 33(2)(b) of the aforesaid Act is very limited and the learned

Industrial Adjudicator while deciding the petition under Section 33(2)(b)

of the Act, acted as if he was dealing with a reference under Section 10 of

the Industrial Disputes Act, 1947. The order dated 07.02.2003 is a cryptic

and non-speaking order. The learned Industrial Adjudicator while writing

the order dated 07.02.2003 has not given any independent finding, which

manifests that the order itself is cryptic in nature. The learned counsel has

further submitted that the petitioner-management while holding the

enquiry against the respondent-workman has duly followed the principles

of natural justice. The learned counsel has further pointed out that the

non-supply of the copy of the statement of passenger witnesses will not

benefit the respondent-workman at this stage as the same was not asked at

the stage of enquiry carried out against him and further during the cross-

examination, his admission to the extent that the statement was not

recorded at the back of the challan ipso facto does not give any benefit to

the respondent-workman. The respondent-workman‟s non-examination of

the passenger witnesses during the enquiry proceedings also does not go

against the petitioner-management as the passenger witnesses do not hold

the good permanent address. Despite the best efforts of the petitioner-

management, the passenger witnesses could not be examined. However,

the misconduct could be proved through documentary evidence.

7. Instant is the case where the documentary evidence was available

before the enquiry officer. Moreover, the complete file of the enquiry

proceedings was well before the learned Industrial Adjudicator and he

was duty bound to look into the same particularly where carrying out of

the enquiry proceedings is not being disputed by the respondent-

workman. The petitioner-management relied upon the following

judgments:

(a) Assistant Commissioner, Commercial Tax Department, Works

Contract & Leasing, Kota vs. Shukla &Brothers, (2010) 4 SCC 785.

(b) State of Haryana and Another vs. Rattan Singh, (1977) 2 SCC 491.

(1977) 2 SCC 494.

8. On the other hand, the learned counsel on behalf of the respondent-

workman denied the allegations and submitted that the respondent-

workman has not misconducted himself during his official duty and is

falsely implicated by the concerned officials and relied upon the

following judgments:

(a) State of Haryana vs. Rattan Singh, 1977 (1) SLR 750.

(b) Lalla Ram vs. Management of DCM Chemical Works & Anr.

(1978) 3 SCC 1.

9. The facts on record alleges that the inspecting team, i.e., Shri Prem

Prakash Goyal, Shri Karan Singh and Shri Harishankar Gupta intercepted

the bus No. 9649 on 08.01.1993 at „Fatehpuri‟ and while checking, the

inspecting team found that the respondent-workman, i.e., Shri Shish Pal

(i) has collected full fare and issued tickets of lesser denomination of

Re.1 each, (ii) found 13 tickets in hand block and (iii) cash was found in

excess by Rs. 14.25 and when he was asked to sign on the inspecting

report at the spot, he refused. On that account, Shri Meher Chand, badge

No.16906 was substituted against the respondent-workman. The said

report resulted into the charge-sheet and enquiry proceedings were

initiated against him by the enquiry officer Shri A.S. Bains who found

him guilty of misconduct.

10. The alleged misconduct of the respondent-workman was that:

(i) the respondent-workman did not issue tickets properly to the

passengers,

(ii) the respondent-workman was in possession of the hand block of

tickets, and

(iii) on calculating the fare, Rs. 14.25 was found in excess and on

his refusal to sign the report, he was deboarded from the bus

and was replaced by Shri Meher Chand, badge No. 16906.

12. The facts as alleged shows that Shri Prem Prakash Goyal, Shri

Karan Singh and Shri Harishankar Gupta were witnesses to the incident.

The alleged termination was effected as a result of the report of the

checking staff, i.e., Shri Prem Prakash Goyal, Shri Karan Singh and Shri

Hrishankar Gupta. The very foundation of the termination of the

respondent-workman is the accusation as alleged aforesaid, which puts

the petitioner-management under legal obligation under Section 33(2)(b)

of the Industrial Disputes Act, 1947 for approval of their action being

valid under the provisions of law.

13. The learned Industrial Adjudicator has given due opportunity to

prove the enquiry proceedings carried out by the petitioner-management

against the respondent-workman, but despite the opportunity given to the

petitioner-management, none of the witnesses of the incident, i.e., Shri

Prem Prakash Goyal, Shri Karan Singh, Shri Harishankar Gupta and Shri

Meher Chand were examined, but the petitioner-management examined

AW1, i.e., Shri Qamar Alam, who is not a witness to the incident or

having no personal knowledge and it was because of this point that the

learned Industrial Adjudicator lost confidence in the enquiry proceedings.

Consequently, the learned Industrial Adjudicator has given an opportunity

to the petitioner-management to prove the misconduct in his presence.

14. The judgement relied upon by the petitioner-management in the

cases of, Assistant Commissioner, Commercial Tax Department, Works

Contract & Leasing, Kota vs. Shukla &Brothers (Supra), State of

Haryana and Another vs. Rattan Singh (Supra) and K.K. Shrivastava

and Ors vs. Bhupendra Kumar Jain and Ors (Supra) are not helpful to

the petitioner-management as they themselves did not prefer to challenge

the said order dated 07.02.1993. Rather, they preferred to participate in

proving the misconduct of the respondent-workman before the learned

Industrial Adjudicator. Moreover, the burden of proving the enquiry

always rests on the petitioner-management under Section 33(2)(b) of the

Industrial Disputes Act, 1947.

15. The contention of the learned counsel for the petitioner-

management that the impugned order dated 07.02.1993 is a cryptic and

non-speaking order and the learned Industrial Adjudicator has not given

independent findings loses its significance as it was the petitioner-

management who actively participated in the proceedings before the

learned Industrial Adjudicator for proving the misconduct committed by

the respondent-workman on 08.01.1993 without challenging the prior

order dated 07.02.1993 passed by the learned Industrial Adjudicator

independently.

16. Further, the learned Industrial Adjudicator framed issues on

07.02.1993 and gave opportunity to the parties to prove the alleged

misconduct in his presence. The petitioner-management further preferred

to examine the same person, i.e., Shri Qamar Aalam to be witness on

behalf of the petitioner-management who himself was not a witness to the

incident nor had personal knowledge of the same. There is no explanation

on the record as to why the witnesses of the incident even being the

department officers, i.e., Shri Prem Prakash Goyal, Shri Karan Singh and

Shri Harishankar Gupta had not been examined on both the occasions.

Consequently, on both the occasions before the learned Industrial

Adjudicator, the petitioner-management failed to prove the misconduct

against the respondent-workman for want of evidence.

17. The contention of the learned counsel of the petitioner-

management that the learned Industrial Adjudicator exceeded in its

jurisdiction while dealing with the petition under Section 33(2)(b) of the

Industrial Disputes Act, 1947 is without force.

18. Instant is the case where the petitioner-management failed to

discharge the onus of bringing the substantive evidence qua against the

respondent-workman. The statement of AW1, i.e., Shri Qamar Alam

loses confidence in presence of his own admission that he has got no

personal knowledge nor he was a witness to the incident, ultimately

resulting in zero evidence qua against the respondent-workman for the

purposes of the incident, i.e., misconduct dated 08.01.1993 and the said

admission of Shri Qamar Alam is reproduced as under:

"...It is correct that I do not have any personal knowledge about the allegations levelled against the respondent. It is also correct that I do not have personal knowledge with regard to sending of one month's salary through the money order...."