Delhi High Court
D.T.C. vs Ranbir Singh on 19 November, 2015
Author: Sunil Gaur
I-3 &4
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: November 19, 2015
+ W.P.(C) 16065/2004
D.T.C. ..... Petitioner
Through: Mr. Manish Garg & Mr. Hitesh
Kumar, Advocates
versus
RANBIR SINGH ..... Respondent
Through: Mohd. Taiyab Khan, Advocate
with respondent in person
+ W.P.(C) 16346/2004
D.T.C. ..... Petitioner
Through: Mr. Manish Garg & Mr. Hitesh
Kumar, Advocates
versus
RANBIR SINGH ..... Respondent
Through: Mohd. Taiyab Khan, Advocate
with respondent in person
CORAM:
HON'BLE MR. JUSTICE SUNIL GAUR
JUDGMENT
% (ORAL)
In the above captioned first petition, the challenge is to impugned
order of 13th September, 2002, vide which it has been held that the
departmental inquiry initiated against respondent stood vitiated. Vide
impugned order of 3rd March, 2003, petitioner's application under Section
W.P.(C) 16346/2004
33 (2) (b) of The Industrial Disputes Act, 1947 stands rejected by the trial
court while holding that the alleged misconduct does not stand proved.
In the above captioned second petition, challenge is to the
impugned Award of 16th July, 2003, which directs reinstatement of
respondent with 50% of back wages.
With the consent of learned counsel for parties, the above
captioned two petitions were taken up for hearing together, as the
challenge to impugned orders in the above captioned two petitions is on
identical ground and so, by this common judgment, the above captioned
two petitions are being disposed of.
The factual matrix of this case, as highlighted during the course of
hearing, is that respondent was appointed as Conductor by petitioner in
August, 1983 and in January, 1994 respondent was on duty in petitioner's
bus from Delhi to Jammu and on the way, four passengers had boarded
the bus and respondent had purportedly collected the fare from the said
passengers but had issued the tickets of less denominations and it was so
detected by the check staff near Samba.
A departmental inquiry was conducted by Shri Sushil Jacob. In the
inquiry proceedings, Transport Inspector- Hari Singh deposed about this
incident and Assistant Transport Inspector- Ranbir Singh had also
deposed in support of the charges framed against respondent. The Inquiry
Officer held that the charges stood proved against respondent. Acting
upon the Inquiry Report, penalty of removal from service was inflicted
upon respondent. The statutory appeal preferred by respondent was
dismissed and thereafter, petitioner had raised an industrial dispute
regarding the illegality of removal from service and before the trial court,
W.P.(C) 16346/2004
the Inquiry Officer as well as the Transport Inspector - Hari Singh had
deposed. Trial court vide impugned order of 13th September, 2002 held
that the checking staff had not recorded the name and statements of
passengers from whom the respondent had collected the full fare but had
issued tickets of lesser denominations and the inquiry stood vitiated for
lack of legal evidence.
Vide impugned order of 3rd March, 2003, it was held that the
misconduct attributed to respondent does not stand proved due to lack of
evidence of the passengers, which was crucial to prove the charges
against respondent. Thus, petitioner's application seeking approval of the
penalty of removal from service was rejected by the trial court vide
impugned Award of 16th July, 2003. It has been held that due to non-
approval of respondent's removal from service, the domestic inquiry
stood vitiated and hence, reinstatement of respondent with 50% back
wages has been ordered.
At the hearing, learned counsel for petitioner had assailed the
impugned order by contending that the sufficiency of evidence is not
required to be gone into and there was no justification for the trial court to
have disbelieved Transport Inspector, who had deposed before the trial
court. It was asserted that for not examining the passengers, the
Transport Inspector- Hari Singh had given a plausible answer of
respondent threatening the passengers not to depose and so, in such a
situation it cannot be said that the principles of natural justice have been
violated or the inquiry has been vitiated. To contend so, reliance was
placed upon Apex Court's decision in State of Haryana Vs. Rattan Singh
1977 (2) SCC 491 and decisions of Coordinate Benches of this Court in
W.P.(C) 16346/2004
Vikram Kumar Vs. Delhi Transport Corporation 2015 SCConline Del
10880 and Subhash Chander Vs. Presiding Officer Labour Court 2013
SCConline Del 1275. Lastly, it was submitted that it has come on record
that respondent was having some land and so, trial court was not justified
in granting 50% of the back wages. Thus, quashing of the impugned
order and restoration of penalty order was sought by petitioner.
Learned counsel for respondent had supported the impugned order
and submitted that petitioner had ten years of service and there was no
adverse entry in his service record and that the charge levelled against
respondent is baseless and does not stand proved at all and the trial court
has rightly held that neither the misconduct stands proved nor the inquiry
was fairly conducted and so, both these petitions deserve dismissal.
Upon hearing and on perusal of the impugned orders, material on
record and the decisions cited, I find that Transport Inspector- Hari Singh
in his evidence has stated that respondent did not permit him to record the
statement of passengers. To say the least, Transport Inspector- Hari Singh
did not require any permission from respondent to record the statements
of passengers. In the absence of crucial evidence of passengers, the
misconduct alleged against respondent does not stand proved. Trial court
has rightly declined approval to the removal of respondent from service.
In the absence of legal evidence, the inquiry stood vitiated. Reliance
placed by petitioner's counsel upon Apex Court's decision in State of
Haryana Vs. Rattan Singh (supra) does not advance the case of petitioner
because in the said decision, it has been declared that in domestic inquiry,
strict and sophisticated rules of evidence under the Indian Evidence Act
are not applicable. However, the crucial evidence to prove the charge has
W.P.(C) 16346/2004
to be led.
In the instant case, petitioner has failed to get the preliminary
evidence of passengers recorded. In Vikram Kumar (supra), not only the
statements of passengers were recorded but even the said statement was
got signed by the Transport Inspector. In Subhash Chander (supra), it
has been held that zero tolerance is to be shown to dishonest conduct of
the employees. There is no doubt about it but there has to be basic and
preliminary evidence to prove the charge of misconduct. So far as
quantum of sentence is concerned, decision in Subhash Chander (supra)
would apply but not to a case like the instant one, which lacks evidence.
It is true that the initial burden is on the employee to prove that he
was not gainfully employed during period in question. In the instant case,
learned counsel for respondent, on instructions from respondent who is
present in the Court, apprised this Court that respondent owns just two
bighas of land in Gohana (Haryana) and is merely earning `25,000/- per
annum from the agricultural land and has two handicapped children to
support and there is no other source of income. In such a situation,
awarding of 50% of the back wages is fully justified. In the considered
opinion of this Court, impugned orders do not suffer from any
irrationality nor disclose any palpable error. Finding no substance in the
above captioned two petitions, they are dismissed, while leaving the
parties to bear their own costs.
(SUNIL GAUR)
JUDGE
NOVEMBER 19, 2015
r
W.P.(C) 16346/2004
