Delhi Transport Corporation vs Shri Rajbir Singh
2016 Latest Caselaw 1124 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI
+                                       Judgment delivered on: February 12, 2016


%     W.P.(C) No. 1063/2004

       DELHI TRANSPORT CORPORATION                 ..... Petitioner
                    Through: Mr. Akshay Bhardwaj and Mr. Manish
                             Garg, Advocates.


                           versus

       SHRI RAJBIR SINGH                                    .....Respondents
                      Through:           Ms. Rashmi Singh and Ms. Neelam
                                         Tiwari, Advocates.


       CORAM:

       HON'BLE MR. JUSTICE I.S. MEHTA


                                    JUDGMENT

I. S. MEHTA, J.

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

(hereinafter referred to as the 'petitioner-management') has preferred the

present Writ Petition under Article 226 read with Article 227 of the

Constitution of India for issuance of Writ of Certiorari, Mandamus or any

other Writ, order or orders for quashing the impugned order dated

02.06.2003 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. 35/91.

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

Rajbir Singh was in the employment of the petitioner-management as a

conductor, B. No. 10384. On 11.08.1984, while the respondent-workman

was on duty in bus No. DEP-8572 on Vrindavan - Delhi route, the

checking officials, i.e., Shri Raj Singh, T.I. and Shri Kanya Lal, A.T.I., of

the petitioner-management intercepted the said bus at Kossi City at about

0830 hours and found the following irregularities:-

(i) Respondent-workman had not issued

tickets to a group consisting of three

passengers after collecting due fare from

them.

(ii) Way-voucher was found incomplete.

(iii) Respondent-workman deliberately kept

counter foil of ticket No. 07987 blank and

one ticket No. 07988 was found missing

from the counter foil.

(iv) Respondent-workman deliberately did not

stop the bus at the proper stand of Kossi

on the signal of the checking officials,

which shows malafide intention on his

part.

and the abovementioned irregularities of the respondent-workman

tantamount to misconduct within the meaning of paras 7 and 20 of the

executive instructions, duties of a conductor read with para 19 (a), (b) and

(m) of the standing orders governing the conduct of Delhi Transport

Corporation employees.

3. On the basis of the report of one of the checking officials, i.e., Shri

Raj Singh, T.I., the respondent-workman was served with a charge-sheet

dated 16.08.1984 and an inquiry was conducted wherein the inquiry

officer found the respondent-workman to be guilty of the charge.

Consequently, the inquiry officer forwarded the case to Depot Manager,

i.e., appointing authority, for appropriate punishment. The Depot

Manager issued a show cause notice to the respondent-workman and after

going through the reply and thoughtful consideration passed the removal

order dated 30.08.1991 and thereafter the appropriate petition under

Section 33(2)(b) of the Industrial Disputes Act, 1947 was filed by the

petitioner-management in presence of an industrial dispute pending

between the parties and remitted one month wages vide money order No.

4768 dated 30.08.1991.

4. On the pleadings before the learned 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 03.04.2002.

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

pleadings of the parties, further framed the following issues:

"(1) Whether the respondent had been exonerated from the

charges in the enquiry conducted against him in the year 1987?

If so, its effect?OPW

(2) Whether the DTC could not have taken action against the

respondent after his reinstatement in service which was earlier

terminated due to participation in the strike of the workers in the

year 1988?OPW

(3) Whether the respondent committed the misconduct for which

the chargesheet dated 16.8.84 was issued to him?OPM

(4) Whether the petitioner remitted one month's wage to the

respondent at the time of his removal from service?OPM

(5)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 02.06.2003. Hence, giving rise to the present Writ Petition.

6. The learned counsel for petitioner-management has submitted that

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

Industrial Adjudicator has to adopt the summary procedure to see whether

a prima-facie case is made out against the respondent-workman without

adoption of unfair labour practice or victimisation on the part of

petitioner-management.

7. The learned counsel for the petitioner-management has further

submitted that in the present case there is neither victimisation nor unfair

labour practice on the part of the petitioner-management against the

respondent-workman. It is the respondent-workman who misconducted

himself by not issuing tickets to a group consisting of three passengers

after collecting due fare from them.

8. The learned counsel for the petitioner-management has further

submitted that the respondent-workman deliberately did not stop the bus

on the signal of the checking officials and diverted the bus to a different

route and on finding the irregularities committed by the respondent-

workman, a challan, i.e., Challan No. 58695, was issued against the

respondent-workman at the spot.

9. The learned counsel for petitioner-management has further

submitted that the petitioner-management has adduced material witnesses

before the learned Industrial Adjudicator and the learned Industrial

Adjudicator despite having sufficient evidence on the record rejected the

approval application under Section 33(2)(b) of the Industrial Disputes

Act,1947 filed by the petitioner-management, which is liable to be set

aside and has relied on the following judgments, i.e., Delhi Transport

Corporation Vs. The P.O., Industrial Tribunal No. II and Anr.,

MANU/DE/1054/2014, Delhi Transport Corporation vs. Madan Gopal,

MANU/DE/0478/2011, Delhi Transport Corporation vs. Sh. Rishi

Prakash, 2010 (126) FLR 468 and Delhi Transport Corporation vs.

Shyam Lal, MANU/DE/1634/2010.

10. On the other hand, the learned counsel for the respondent-

workman has submitted that the petitioner-management failed to

discharge the onus to prove that the inquiry carried out against the

respondent-workman was fair and proper after following the due

principles of natural justice.

11. The learned counsel for the respondent-workman has further

submitted that witness examined before the learned Industrial Adjudicator

was not witness to the incident and do not inspire confidence. Therefore,

the learned Industrial Adjudicator has rightly rejected the approval

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

sought by the petitioner-management.

12. Instant is a case where the allegation qua against the respondent-

workman is of committing the misconduct while on duty by non-issuing

tickets to a group consisting of three passengers after collecting due fare

from them at the spot, i.e., Kossi city on 11.08.1984.

13. Consequently, the inquiry was initiated against the respondent-

workman and the inquiry officer found the respondent-workman guilty of

the charge and the competent authority passed the removal order, for

which the petitioner-management sought approval of its action by the

learned Industrial Adjudicator.

14. It is pertinent to note that the said inquiry initiated was not

approved by the learned Industrial Adjudicator vide order dated

02.06.2003. The petitioner-management did not challenge the said order

before the competent Court. Consequently, the petitioner-management

preferred to adduce the evidence before the learned Industrial Adjudicator

and examined AW1, i.e., Shri Devender Saroop, Depot Manager.

15. The material witnesses were Shri Raj Singh, T.I. and Shri Kanya

Lal, A.T.I., who were the checking officials and were the witnesses to the

incident.

16. There is an allegation that the respondent-workman did not stop the

bus after receiving signals from the checking officials and further there is

an allegation that the bus was diverted to a different route. The aforesaid

allegation along with the main allegation qua against the respondent-

workman dispels the petitioner-management's documents, i.e., Challan

No. 58695, on which the respondent-workman does not accept the

allegation to be true and signs on the same.

17. The evidence adduced by the petitioner-management by examining

AW1 does not inspire confidence for want of personal knowledge of the

incident and its relevance to the subject matter.

18. Consequently, the learned industrial Adjudicator has rightly

rejected the approval application under Section 33(2)(b) of the Industrial

Disputes Act, 1947 filed by the petitioner-management.

19. The judgement relied upon by the petitioner-management, i.e.,

Delhi Transport Corporation Vs. The P.O., Industrial Tribunal No. II

and Anr. (Supra) is not applicable in facts of the present case as it

pertains to the first order, i.e., the issue of inquiry, whereas instant is the

case where the petitioner-management who themselves preferred to prove

the misconduct before the learned Industrial adjudicator and had

examined AW1, i.e., Shri Devender Saroop, Depot Manager. Further, the

judgment relied by the petitioner-management, i.e., Delhi Transport

Corporation vs. Madan Gopal (Supra) is in the context of absence of

victimization qua against the respondent-workman. However, it is the

general principle in law to prove the prima facie allegation of the

misconduct qua against the respondent-workman by the petitioner-

management to inspire confidence. Mere absence of victimization qua

against the respondent-workman ipso facto does not entitles the

petitioner-management to obtain approval of its action under Section

33(2)(b) of the Industrial Disputes Act, 1947, as such the same is not

applicable in the present case. So far as the judgment Delhi Transport

Corporation vs. Shyam Lal (Supra) is concerned, it is stated that the

passenger witnesses are not sine qua non to be examined during the

proceedings, but the same could be dispensed with if the checking

officials are examined. Instant is a case where the checking officials were

witnesses to the incident and have not been examined. Therefore, the

aforesaid judgment loses its significance in this context. The judgment

relied upon by the petitioner-management, i.e., Delhi Transport

Corporation vs. Sh. Rishi Prakash (Supra) is not applicable in the

present facts and circumstances of the case.

20. As discussed above, this Court while exercising its power of

judicial review under Article 226 of the Constitution of India finds no

illegality and perversity in the impugned order dated 02.06.2003.

Consequently, the present Writ Petition is dismissed. The Lower

Court record be sent back with a copy of this Judgment. No order as to

costs.

I.S.MEHTA, J

FEBURARY 12, 2016 j