Delhi High Court

Shri Om Kanwar vs Delhi Transport Corporation on 23 September, 2015

Author: I. S. Mehta

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

%       W.P.(C) No. 3587/2004


       SHRI OM KANWAR                                               ..... Petitioner
                   Through:                Mr. S.N. Sharma, Adv.

                             versus

        DELHI TRANSPORT CORPORATION                 .....Respondent
                     Through: Ms. Arati Mahajan Shedha and Manoj
                              Kumar, Advs.


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

                                      JUDGMENT

I. S. MEHTA, J.

1. The present petitioner, i.e., Shri Om Kanwar (hereinafter referred

to as the 'petitioner-workman') has preferred the present Writ Petition

under Articles 226 and 227 of the Constitution of India assailing the

validity of impugned Award dated 28.04.2003 passed by the Presiding

Officer, Labour Court No. IX, Karkardooma, Delhi (hereinafter referred

to as the 'learned Labour Court/Industrial Adjudicator') in I.D. No.

477/91 (old No. 477/91 - 64/89).

2. The brief facts as stated are that the petitioner-workman, i.e., Shri

Om Kanwar was appointed as conductor w.e.f 18.05.1975 at a monthly

salary of Rs 1300/- per month. The petitioner-workman was on duty in

bus No. DL-P-1064 plying on Machiwara-Delhi route. On 12.04.1984,

the checking officers of the respondent-management intercepted the said

bus at Ambala Cantt. at about 08.15 hours and detected a group of six

passengers alighting from the bus without tickets. It is alleged that the

said passengers had already paid the fare @ Rs 5.70 each to the

petitioner-workman but the petitioner failed to issue the tickets to them.

Similarly, it is further alleged that two more passengers had also paid the

fare @ Rs 16.90 each but they were also not issued tickets.

3. The petitioner-workman on being asked for an explanation denied

the allegations and stated them to be false. Thereafter, an enquiry was

entrusted to one Shri Ashcharj Lal, ATC of Okhla I Depot and the

respondent-management despite being given opportunity, failed to

examine the witnesses. Consequently, the enquiry officer exonerated the

petitioner-workman from the charge on 03.01.1986. The said order of the

enquiry officer was quashed by the G.M. (S) vide order dated 12.02.1987

who directed that de novo enquiry be conducted by Depot Manager,

Ambedkar Nagar Depot. Thereafter, a show cause notice was issued

against the petitioner-workman and the Depot Manager, Okhla proceeded

against the workman and passed the removal order dated 19.06.1987.

Consequently, the petitioner raised an industrial dispute vide

reference No. F.24(692)/89-Lab/675-61 dated 20.02.1989. After

completing the pleadings and evidence, the Presiding Officer, Labour

Court No. IX, Karkardooma, Delhi passed the impugned Award dated

28.04.2003 whereby the petitioner-workman was held not entitled to any

relief.

Aggrieved from the said Award, the petitioner-workman has

preferred the present Writ Petition.

4. The learned counsel appearing on behalf of the petitioner-workman

draws the attention of this Court to the enquiry proceedings, which

concluded on 03.01.1986, in which the respondent-management could not

prove the charge of misconduct against the petitioner-workman. The first

enquiry proceedings initiated against the petitioner-workman by the

management resulted in exoneration of the petitioner-workman by the

enquiry officer's report dated 03.01.1986 and subsequently, a de novo

enquiry was conducted without issuing the notice and the same is bad in

law.

The learned counsel for the petitioner-workman further pointed out

that in the instant case, the disciplinary authority was the Depot Manager,

and he himself acted as the enquiry officer while he was acting as the

disciplinary authority. So, the enquiry proceedings are bad in law.

The learned counsel for the petitioner-workman further pointed out

that if at all, the de novo enquiry was to be initiated against the workman,

then it was mandatory on the respondent-management to engage the

enquiry officer and file the enquiry report and only on the basis of that,

removal order could have been passed against the petitioner-workman.

The learned counsel for the petitioner-workman has further pointed

out that once the issue of enquiry is decided in favour of the workman

before the Industrial Adjudicator, there is no misconduct in the eyes of

law.

Further, the learned counsel for the petitioner-workman submitted

that the present case is a case of 'no evidence'. The statement of Shri

Nirmal Singh ipso facto is not sufficient to prove the charges against the

workman in absence of the passenger-witnesses and other witnesses and

placed reliance on the judgement of the Apex Court in the case of Sher

Bahadur v. Union of India and Ors., AIR 2002 SC 3030.

On the other hand, the learned counsel appearing on behalf of the

respondent-management, i.e., Delhi Transport Corporation, has pointed

out that the management examined Sh. Nirmal Singh as MW-1, as the

author of the complaint, consequently, there is no perversity or illegality

in the impugned Award dated 28.04.2003.

5. Misconduct as per the Oxford English Dictionary, Vol 1, 6th

Edition, is improper or wrong behaviour. However, in legal parlance, it

implies failure to act honestly and reasonably either according to ordinary

and natural standard, or a conduct in violation of a definite rule of action.

It otherwise means failure to do what is required of a person to be done

even though the person has not acted wilfully or maliciously against the

institution/management to which he belongs.

6. In the instant case, the incident took place on 12.04.1984 in Bus

No. DL- P-1064 which was intercepted at Ambala Cantt. at 08:15 hours,

by Shri Nirmal Singh and Shri Harbhajan Singh, TIs, i.e., the checking

officials of the respondent-management, and six passengers alighting

from the bus were found without tickets who had already paid fair @ Rs.

5.70 each to the petitioner-workman and the petitioner-workman failed to

issue tickets to them and similarly, two more passengers had also paid

fare @ Rs. 16.90 each but they were also not issued tickets by the

petitioner-workman.

7. The plea taken by the petitioner-workman, i.e., first enquiry

proceedings initiated against the petitioner-workman resulted in

exoneration of the petitioner-workman by the enquiry officer's report

dated 03.01.1986 and the de-novo enquiry was conducted without issuing

the notice and the same is bad in law, is not helpful to the petitioner-

workman as the first enquiry report dated 03.01.1986 was set-aside by

G.M. (S) vide order dated 12.02.1987 who directed a fresh enquiry. The

petitioner-workman after receiving the notice participated in the enquiry

proceedings before Shri Mohd. Yusuf, i.e., enquiry officer, who found the

petitioner-workman to be guilty of charge and the Depot Manager of

Okhla Depot - I passed the order of removal dated 19.06.1987. Therefore,

the plea taken by the petitioner-workman that the disciplinary authority

and the enquiry officer are the same person is factually incorrect.

8. It is open to the Labour Court to assess the domestic enquiry and

reach to a different conclusion in the event of the enquiry being vitiated

or the same being found perverse. It is then open to the Industrial

Adjudicator to give the management an opportunity to lead evidence in

order to prove the charges/misconduct before the Industrial Adjudicator.

The reliance is placed on the judgment rendered by this Court in the case

of D.T.C vs. Sukhbir Singh and Ors., 2015 LLR 741.

9. The contention raised by the learned counsel for the petitioner-

workman that the present case is a case of 'no evidence' does not seem to

be correct. The petitioner-workman has not disputed the fact that he was

on duty on 12.04.1984 in Bus No. DL-P-1064, at 08:15 hrs at Ambala

Cantt. It is not the case of the petitioner-workman that the checking

officials namely Shri Nirmal Singh and Shri Harbhajan Singh, TIs, did

not board the aforesaid bus and they were not checking the passengers,

rather, the plea taken by the petitioner-workman before the Industrial

Adjudicator is that while the petitioner-workman was issuing the tickets,

the checking staff boarded the bus and snatched from his hand the hand-

blocks of tickets as well as the way bill and gave unpunched tickets to the

passengers. The checking officials gave him a challan at Pipli Bus Stand

after stopping over there. The statement recorded before the Industrial

Adjudicator is of complainant-eyewitness, i.e., Shri Nirmal Singh, TI,

who himself is a material witness to the incident and he is not the enquiry

officer in the instant case nor is his statement is based on superficial

documentary or hearsay evidence which is not connected to the incident.

Therefore, the statement of Shri Nirmal Singh, TI being a witness to the

incident is a direct material evidence of the incident qua against the

workman in the instant case. Reliance is placed on the judgment rendered

by the Hon'ble Supreme Court of India in the case titled as Sher Bahadur

vs. Union of India and Ors., AIR 2002 SC 3030.