Om Prakash vs Delhi Transport Corporation
2016 Latest Caselaw 1397 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                                               Reserved on 21.01.2016
                                               Decided on: 22.02.2016

+      LPA 194/2013 & C.M.No.8393/2013
       OM PRAKASH                                        ..... Appellant
                         Through:     Mr.Vikas Singh, Sr. Adv. with
                                      Mr.Aman Panwar and Mr.Mudit
                                      Gupta, Advocates
                         versus
       DELHI TRANSPORT CORPORATION                       ..... Respondent

Through: Ms.Saroj Bidawat, Advocate

CORAM:

HON'BLE MR. JUSTICE S. RAVINDRA BHAT HON'BLE MS. JUSTICE DEEPA SHARMA

MS. JUSTICE DEEPA SHARMA (JUDGMENT) %

1. This appeal has been filed by the appellant/workman against the order

of the learned Single Judge dated 07.02.2013 whereby the learned Single

Judge set aside the award of the Industrial Tribunal and held that the denial

of approval to the respondent/DTC under Section 33 (2) (b) of the Industrial

Disputes Act (hereinafter referred as "the ID Act") was bad in law.

LPA No.194/2013 Page 1

2. The brief facts of the case are that the petitioner was in the

employment of the respondent and was working as a Conductor. While he

was on duty on Bus No. 9096 on Route No. 467 on 14.10.1991, the checking

staff consisting of ATI Om Prakash and Kishan Lal boarded the bus at 6:15

hours at Yamuna Bazar. They found that there were 16 passengers in the

bus and although the fare was collected, tickets were not issued to any of

them. They formed two groups of those 16 passengers of 5 and 11 and

recorded the statement of one from each group. They also seized 16

unpunched tickets from the petitioner. On the basis of their report, an

enquiry for the alleged misconduct was held against the petitioner. The

charge-sheet was issued which was duly replied by the petitioner. During

the enquiry, the petitioner was given the assistance of a coworker and on his

request, the enquiry was conducted in the presence of Labour Welfare

Officer. The statement of the witnesses was recorded and they were duly

cross-examined by the petitioner/workman. The petitioner/workman also

examined one witness in his defence. The enquiry officer held him guilty.

After issuing show-cause notice and considering his reply, an order of

dismissal from service dated 22.07.1992 was passed against the workman.

Since an undated dispute raised by the Union was pending adjudication, the

LPA No.194/2013 Page 2 management filed an application under Section 33(2)(b) before the Industrial

Tribunal seeking approval.

3. The Tribunal framed a preliminary issue covering validity of the

disciplinary enquiry. The record shows that the Tribunal had asked the

respondent to lead evidence to prove the enquiry report, but it failed to

examine the enquiry officer. After closing the management's evidence on

the preliminary issue, the Tribunal set aside the enquiry by its order dated

04.07.1996 on the ground that there was no evidence to prove that the

enquiry conducted was valid and legal.

4. Thereafter, the management was given an opportunity to prove the

allegations of misconduct against the workman and an issue to this effect

was framed. Both the parties led their evidences before the Tribunal. The

Tribunal, however, dismissed the application of respondent seeking approval

by its order dated 06.11.2000 on the ground that the evidence on record was

insufficient to prove the misconduct. This order was impugned by the

management before the learned Single Judge and learned Single Judge after

discussing the scope of Section 33 (2) (b) of the ID Act and after

considering the materials on record, concluded that there was sufficient

evidence on record to prove the misconduct. The learned Single Judge relied

LPA No.194/2013 Page 3 on the judgment of Supreme Court in Lalla Ram vs. D.C.M. Chemical

Works ltd. and another, 1978(3) SCC 1. He also noticed that the finding of

the Industrial Tribunal was contrary to the settled proposition of law as held

in State of Haryana vs. Rattan Singh AIR 1977 SC 1512 and DTC vs.

N.L.Kakkar, Presiding officer and Others 2004(73) DRJ 568. Learned

Single Judge has held as under:-

9. In the case in hand, there is no finding of the Tribunal that there was victimization or an unfair labour practice meted out. The Tribunal re-appreciated the evidence and came to the conclusion that since the passengers were not summoned, there was no corroboration to the statement of the checking official AW1, the statements of the two passengers were not counter signed by the Conductor, if Respondent No. 1 could sign the challan under protest he could have also signed the statements of the passengers under protest and thus held that the mis-conduct was not proved. Thus the learned Tribunal travelled into the realm of appreciation of evidence which it could not have done. This was not a case of no evidence as according to the Tribunal AW1 stated about the case of the Petitioner however, there was no corroboration to the said evidence.

5. Moreover the judgment of the learned Tribunal is also contrary

to the decisions in State of Haryana vs. Rattan Singh (supra) and Delhi

Transport Corporation (supra) which held that examining passenger

witnesses would be impracticable. In Rattan Singh (supra) it was held:

"3. The principal ground on which the courts below have declared the termination bad is that none of the 11 passengers have been examined at the domestic enquiry. Secondly, it has

LPA No.194/2013 Page 4 been mentioned that there is a departmental instruction that checking inspectors should record the statements of passengers, which was not done in this case. The explanation of the State, as borne out by the record, is that the inspector of the flying squad had said that they had paid the fares but they declined to give such written statements. The third ground which weighed with the courts was, perhaps, that the co-conductor in the bus had supported with this evidence, the guiltlessness of the respondent.

4. It is well settled that in a domestic enquiry the strict and sophisticated rules of evidence under the Indian Evidence Act may not apply. All materials which are logically probative for a prudent mind are permissible. There is no allergy to hearsay evidence provided it has reasonable nexus and credibility. It is true that departmental authorities and Administrative Tribunals must be careful in evaluating such material and should not glibly swallow what is strictly speaking not relevant under the Indian Evidence Act. For this proposition it is not necessary to cite decisions nor text books, although we have been taken through case-law and other authorities by counsel on both sides. 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. However, the courts below misdirected themselves, perhaps, in insisting that passengers who had come in and gone out should be chased and brought before the tribunal before a valid finding could be recorded. The "residuum‟ rule to which counsel for the respondent referred, based upon certain passages from American Jurisprudence does not go to that extent nor does the passage from Halsbury insist on such rigid requirement. The simple point is, was there some evidence or was there no evidence -- not in the sense of the technical rules governing regular court proceedings but in a fair commonsense way as men of understanding and worldly wisdom will accept. Viewed in this way, sufficiency of evidence in proof of the finding by a domestic tribunal is beyond scrutiny. Absence of any evidence in

LPA No.194/2013 Page 5 support of a finding is certainly available for the court to look into because it amounts to an error of law apparent on the record. We find, in this case, that the evidence of Chamanlal, Inspector of the Flying Squad, is some evidence which has relevance to the charge levelled against the respondent. Therefore, we are unable to hold that the order is invalid on that ground."

6. It is argued that the appellant would be gravely prejudiced if the

impugned judgment is not set aside. Learned senior counsel urged that the

appellant would be compelled to seek remedies under Section 10 against the

wrongful dismissal after 21 years of the event; he is now 66 years old. Mr.

Vikas Singh, learned senior counsel next submits that the impugned

judgment is in error inasmuch as it overlooked the fact that the Tribunal had

appreciated the circumstances about a complete lack of evidence with

respect to the allegations against the employee. The management was

afforded an opportunity to adduce independent evidence but could not

establish the charges. The management in fact relied only on the domestic

enquiry and did not lead convincing evidence, though it could have. In these

circumstances, the learned Single Judge should not have interfered with the

order declining approval under Section 33(2)(b).

7. It is argued that the DTC's Circular dated 06.12.1972 prescribed the

procedure to be followed by checking officials in the case of short collection

LPA No.194/2013 Page 6 or non-collection of fare from the passengers. That procedure was not

followed. Consequently, the findings of the domestic enquiry could not be

sustained.

8. It was submitted on behalf of the DTC that evidence was led in the

form of depositions that were considered by the Tribunal. These included

the 16 unpunched tickets as well as the deposition of one witness. The

documents included the challans issued by the checking staff to the

workman, Ex.AW-1/9. The learned Single Judge, it was argued, was

justified in concluding that the facts on record could not have led to the

dismissal of the application seeking approval. Learned counsel highlighted

that it is not essential to produce the primary witnesses or even their signed

statements given that in departmental proceedings, the standard of proof is

not one 'beyond reasonable doubt' but 'preponderance of probabilities'. As

long as there is some material to establish the finding, the penalty order can

be sustained. Reliance was placed upon Ratan Singh (supra) in this regard.

9. The settled proposition of law is that when an industrial dispute is

pending, the management cannot punish any workman in its establishment

whether by dismissal or otherwise the workman unless he has been paid one

month's wages and approval of the action has been sought by the

LPA No.194/2013 Page 7 management through an application before the authority, before whom the

proceedings are pending. The DTC moved an application under Section

33(2)(b) seeking approval of the dismissal order dated 22.07.1992. From

the order of the Industrial Tribunal, it is apparent that it declared the

domestic enquiry invalid, and ultimately refused approval, solely on the

ground that the applicant had failed to adduce any evidence to prove that a

valid and legal enquiry was held. The scope of Section 33 (2) (b) of

Industrial Disputes Act and the jurisdiction of the Tribunal therein has been

elaborately discussed in Lallu Ram (supra).

10. The Labour Court, to begin with, is required to enquire if a proper,

valid enquiry was conducted: whether order of the dismissal based on legal

evidence adduced before domestic tribunal and is not based on extraneous

considerations and the order of dismissal is not an act of victimization or

unfair labour practice. In order to reach to a conclusion as regards validity

of the domestic enquiry, the Labour Court has to analyze the enquiry

proceedings placed on record alongwith the application. The insistence on

formal proof of enquiry proceedings runs contrary to the rules of evidence

governing the proceedings before Labour Courts. The Industrial Disputes

Act empowers the Labour Court to formulate its own procedure with the

LPA No.194/2013 Page 8 object to do justice. The Labour Court can examine any document produce

in his Court without its formal proof (where genuiness of document is not

disputed).

11. This Court has also in the case of Vijay Kumar Tiwari vs. Lt.

Governor & Ors, LPA 394/2002 held as under:-

6. "It is trite law that strict rules of evidence are not applicable to the proceedings before the Industrial Tribunal/Labour Court and they are free to devise rules of procedure in accordance with principles of natural justice. Thus in an application under Section 33(2)(b) ID Act, it is not the requirement of law that the Tribunal will insist proof of the enquiry conducted in accordance with Indian Evidence Act by examining the Inquiry Officer and exhibiting the report. Suffice it is that the enquiry report and the proceedings conducted by the Inquiry Officer are produced before the Industrial Tribunal/Labour Court. The Constitution Bench in JT 2010 (5) 553 Union of India Vs. R. Gandhi, President, Madras Bar Association noting the distinction between a Court and Tribunal held that while Courts are governed by detailed statutory procedural rules, in particular the Code of Civil Procedure and Evidence Act requiring an elaborate procedure in decision making, Tribunals generally regulate their own procedure applying the provisions of the Code of Civil Procedure only where it is required, and without being restricted by the strict rules of Evidence Act."

12. The order of the Tribunal of holding the enquiry invalid solely on the

ground that the DTC failed to examine the Enquiry Officer to prove the

enquiry report, vitiates its order and the said order was liable to be set aside

on this ground alone. The Tribunal ought to have examined the Enquiry

LPA No.194/2013 Page 9 Report to see, whether there was any procedural violation and whether the

principles of natural justice were followed or not during enquiry before

reaching to the conclusion that the enquiry was vitiated.

13. On the issue, if the appellant had committed any misconduct, the

Tribunal felt that the statement of Om Prakash, ATI, was insufficient to

prove the charge of misconduct and that non examination of the passengers

as a witness was fatal and concluded that the respondent had filed to prove

the misconduct.

14. The facts of this case reveal that when the checking staff, boarded the

bus on which the petitioner was the conductor, they found 16 persons

without ticket who told the checking staff that they boarded the bus from

Kalka mandir to ISBT and that the tickets were not issued by them by the

conductor although they had paid the fare. The checking staff divided the

passengers into two groups and the statement of one person from each group

was recorded by the said staff at the spot itself on the time sheet in the

presence of the Petitioner who was apprehended by ATI Kishan Lal. The

Charge-sheet was not issued to the appellant solely on the statement of the

checking staff but its report which was supported by the statements of the

passengers recorded at the spot. The fact that the statement of these persons

LPA No.194/2013 Page 10 was recorded at the spot is proved by AW1-ATI Om Prakash ,Token No.

22359 in his deposition, yet the Tribunal felt that his evidence was

insufficient and the DTC ought to have examined the passengers.

15. The learned Single Judge has relied on the proposition of law, settled

by Supreme Court in Rattan Lal (supra) which held that non-examination of

passengers is not fatal if there is other material on record to prove the

misconduct. The principle of 'Res ipsa loquitur' was also made applicable

to the proceedings before the Labour Court.

16. While applying the principle of 'Res Ipsa Loquitur' the Supreme

Court in Cholan Roadways Limited Vs. G. Thirugnanasambandam, (2005)

3 SCC 241, has held under :

34. This decision also has no application to the facts of the present case. In the instant case the Presiding Officer, Industrial Tribunal as also the learned Single Judge and the Division Bench of the High Court misdirected themselves in law insofar as they failed to pose unto themselves correct questions. It is now well-settled that a quasi-judicial authority must pose unto itself a correct question so as to arrive at a correct finding of fact. A wrong question posed leads to a wrong answer. In this case, furthermore, the misdirection in law committed by the Industrial Tribunal was apparent insofar as it did not apply the principle of Res ipsa loquitur which was relevant for the purpose of this case and, thus, failed to take into consideration a relevant factor and furthermore took into consideration an irrelevant fact not germane for determining the issue, namely, the passengers of

LPA No.194/2013 Page 11 the bus were mandatorily required to be examined. The Industrial Tribunal further failed to apply the correct standard of proof in relation to a domestic enquiry, which is "preponderance of probability" and applied the standard of proof required for a criminal trial. A case for judicial review was, thus, clearly made out.

17. The materials on record by way of award show that the Tribunal was

unduly influenced only by the evidence of the workman who deposed on

oath. Furthermore, the Tribunal doubted the statement on behalf of the DTC

by its witness that the checking staff found only 16 passengers in the bus

without ticket. These, in the opinion of the Tribunal, were insufficient

evidence to establish guilt. The Tribunal also based its findings on the

submission of the workman that if he could sign the challan under protest

then he could have also put signatures on the statement of the passengers by

mentioning that it was " under protest". The absence of these and the fact

that the DTC examined only one witness was held to be insufficient to bring

home the charge.

18. The management's witness had deposed that the passengers were

divided into two groups - as noted earlier. One passenger from each of these

groups - 5 and 11 respectively, had stated in writing that money had been

collected from the passengers but the appellant did not issue them tickets.

Copies of those statements were produced as Ex.AW-1/R1 and AW-1/R2.

LPA No.194/2013 Page 12 The challan too was exhibited as Ex.1/19. There were 16 other documents;

besides, there were 16 unpunched tickets, Ex.AW-1/1 to exhibit AW-1/16.

The checking staff's report dated 14.10.1991 is also on the record. The

management witness clearly stated during the course of his deposition

before the Tribunal that 16 passengers had boarded the bus from Kalkaji

temple and that they had not been issued tickets despite having paid for

them. There were two members of the checking staff, i.e. Kishan Lal Saluja,

ATI and Om Prakash, ATI (not to be confused with the appellant, who was a

conductor). Om Prakash, ATI deposed in the course of the proceedings

under Section 33(2)(b).

19. Given the clear enunciation of law in Rattan Singh (supra) that the

Court has to be alive to the realities in certain circumstances (and not insist

upon the strict rules of evidence and procedure which govern other Court

proceedings) the conclusion of the Tribunal that misconduct had not been

proved, in our opinion, could not have been sustained. As held in Vijay

Kumar Tiwari (supra), under Section 33(2)(b), the Tribunal could not have

insisted on strict proof of facts - much less insisted upon production of the

original passengers. The checking staff had clearly deposed in the

proceedings and another member of the checking staff had clearly deposed

LPA No.194/2013 Page 13 in the domestic enquiry. The appellant did not attribute mala fides on the

part of members of the checking staff. Furthermore, this Court notices that

the appellant had previously been cautioned repeatedly and even censored.

Apparently, on more than one occasion, disciplinary proceedings were

initiated for similar charges.

20. Having regard to all these circumstances, this Court is of the opinion

that the conclusion of the learned Single Judge that the Tribunal fell into

error in refusing the approval, cannot be found fault with. The appeal

consequently fails and is dismissed with no order as to costs.

DEEPA SHARMA (JUDGE)

S. RAVINDRA BHAT (JUDGE)

FEBRUARY 22nd 2016 sapna

LPA No.194/2013 Page 14