Delhi High Court

The Management Of M/S Delhi ... vs Shri Puran Chand on 3 February, 2016

Author: I. S. Mehta

        *       IN THE HIGH COURT OF DELHI AT NEW DELHI
+                                      Judgment delivered on: February 03, 2016


%       W.P.(C) No.198/2004

     THE MANAGEMENT OF
     M/S DELHI TRANSPORT CORPORATION                .....Petitioner
                     Through: Ms. Arati Mahajan Shedha and
                              Mr. Manoj Kumar, Advocates.

                              versus

     SHRI PURAN CHAND                                              .....Respondent
                   Through:                  Mr. Saurabh Ahuja, 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 to as the 'petitioner-management') has preferred the

present Writ Petition under Articles 226 and 227 of the Constitution of

India whereby seeking the quashing of the impugned order dated

26.05.2003 passed by the Ld. Presiding Officer, Industrial Tribunal-II,

Karkardooma Courts, Delhi (hereinafter referred to as the 'learned

Labour Court/Industrial Adjudicator') in O.P. No. 109/94 being totally

illegal, arbitrary, unreasonable, perverse and unjustified order.

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

Puran Chand was in the employment of the petitioner-management and

he was on duty in bus No. 9069 on route No.46. On 15.07.1993, while the

respondent-workman was on duty in the aforesaid bus, the checking

officials, i.e., Shri Ram Kishan, A.T.I, Shri Rajvir Singh, T.I and Shri

Ram Phool, A.T.I of the petitioner-management intercepted the said bus

at Paharganj and found the following irregularities:-

(i) Respondent-workman had not issued

tickets to a group of 15 passengers after

collecting due fare.

(ii) Respondent-workman had surrendered 15

unpunched tickets of Rs.2/- denomination

each in a half punched position.

(iii) An amount of Rs. 27.50 was found short

in the possession of the respondent-

workman.

and the abovementioned irregularities of the respondent-workman

tantamount to misconduct within the meaning of para 19 (a), (b), (h) and

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

Corporation employees.

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

Ram Kishan, A.T.I, P.T. No. 18074, the respondent-workman was served

with a charge-sheet 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 after thoughtful consideration passed the

removal order dated 07.07.1994 and thereafter an 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 orders No.

2453 & 2454 dated 07.07.1994.

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?(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

16.08.2002.

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 26.05.2003. Hence, giving rise to the present Writ Petition.

6. However, during the pendency of the present Writ Petition, the

respondent-workman was deputed on school bus duty on bus no. 0314. A

complaint was received from the school management stating therein that

the respondent-workman during the official duty was found in drunken

condition. The petitioner-management filed an application, being CM No.

776/2011 for necessary action. Consequently, this Court passed an order

dated 21.01.2011, giving liberty to the petitioner-management to take

necessary action against the respondent-workman. The petitioner-

management proceeded with the inquiry and the inquiry officer found the

respondent-workman guilty of the charge of misconduct.

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

attention of this Court to the existence of the challan No. 59365, i.e., Ex.

AW-1/3, on record which is been proved by the complainant, i.e., Shri

Ram Kishan, A.T.I(AW1) and submitted that sufficient evidence, which

is required under the law, has already been led by the petitioner-

management whereas the learned Industrial Adjudicator misread the

evidence on the record and reached to the wrong conclusion.

8. The learned counsel for the petitioner-management further

submitted that the respondent-workman further committed the

misconduct while on duty. A complaint from the school authority finding

the respondent-workman in drunken condition in school was received and

further inquiry was initiated against him in which inquiry officer found

him guilty of the charge. This Court in C.M. No. 77/2011 gave liberty to

the petitioner-management to proceed with the matter as per law. Further,

the petitioner-management relied upon the judgment rendered by the

Hon'ble Supreme Court in the case of State of Haryana and Anr. vs.

Rattan Singh, AIR 1977 SC 1512 and the judgment rendered by this

Court in the case of Delhi Transport Corporation vs. N. L. Kakkar &

Anr., 110 (2004) DLT 493.

9. On the other hand, the learned counsel for the respondent-workman

has submitted that the finding given by the learned Industrial Adjudicator

is correct and there is no evidence qua against the respondent-workman

neither at the inquiry level nor before the learned Industrial Adjudicator.

Therefore, the present Writ Petition finds no substance either on facts or

on law and the same is liable to be dismissed. It is further submitted that

the inquiry conducted by the petitioner-management was found to be

illegal and erroneous vide order dated 16.08.2002, to which the

petitioner-management did not prefer to challenge the said order before

this Court. It is further submitted that the petitioner-management failed

to prove the misconduct before the learned Industrial Adjudicator and,

therefore, the argument of the management qua against the respondent-

workman that he misconducted is baseless. In support of the arguments,

the learned counsel for the respondent-workman has relied upon the

judgment rendered by this Court in the case of Delhi Transport

Corporation vs. Ashok Kumar And Ors, W.P. (C) 1387/2003 & W.P. (C)

15508/2006 decided on 10.04.2015 and an order rendered by the Division

Bench of Delhi High Court in Delhi Transport Corporation vs. Ashok

Kumar, LPA 632/2015 & LPA 637/2015, decided on 21.09.2015.

10. The whole case hinges around whether in the instant case there is

sufficient evidence on record to prove the misconduct qua against the

respondent-workman?

The answer is YES.

11. The allegation qua against the respondent-workman is that on

15.07.1993 while the respondent-workman was on duty in bus No.9069

on route No.46, the checking officials, i.e. , Shri Ram Kishan, A.T.I., Shri

Rajvir Singh, T.I. and Shri Ram Phool, A.T.I. of the petitioner-

management intercepted the said bus at Paharganj and following

irregularities were found:-

(i) Respondent-workman had not issued

tickets to a group of 15 passengers after

collecting due fare.

(ii) Respondent-workman had surrendered 15

unpunched tickets of Rs.2/- denomination

each in a half punched position.

(iii) An amount of Rs. 27.50 was found short

in the possession of the respondent-

workman.

12. The petitioner-management examined the checking official, i.e.,

Shri Ram Kishan, A.T.I. as AW1, who filed his affidavit dated

04.12.2002 stating therein that he along with Shri Rajvir Singh, T.I. and

Shri Ram Phool, A.T.I. were on checking duty and intercepted the said

bus at about 0630 hours at Paharganj wherein it was found that the

respondent-workman had collected fare from a group of 15 passengers

but had not issued the tickets. On checking the cash, the same was found

in short of Rs. 27.50 and further the respondent-workman had also signed

on the challan, i.e., Ex. AW-1/3.

13. The challan No. 59365 is exhibit as Ex. AW-1/3 which is duly

signed by all the members of the checking staff, i.e., Shri Ram Kishan,

A.T.I., Shri Rajvir Singh, T.I. and Shri Ram Phool, A.T.I. and including

the respondent-workman himself. The allegation alleged in the charge-

sheet is same as mentioned in challan No. 59365, i.e., Ex. AW-1/3, which

is duly signed on the spot at the time of interception and there was no

occasion for bringing a false allegation against the respondent-workman.

14. The respondent-workman neither during the cross-examination to

AW1, i.e., Shri Ram Kishan has disputed that he did not signed on the

challan No. 59365, i.e., Ex. AW-1/3, nor he has ever disputed his

signature not been made on the aforesaid challan in its reply or the

proceedings carried out before the learned Industrial Adjudicator. The

respondent-workman during the argument too did not deny that the

signature on the challan, i.e., Ex. AW-1/3, belonged to him.

15. The challan No. 59365, i.e., Ex. AW-1/3, is an independent

document and even if the passenger witnesses could have been examined

the same would be saying so and not otherwise unless the respondent-

workman takes otherwise plea of his signature on the aforesaid challan.

Therefore, the complainant's, i.e., Shri Ram Kishan, ocular statement

along with the signed challan by the respondent-workman on the record

constitute sufficient evidence to show the misconduct as alleged on the

part of the respondent-workman in the instant case. In this regard,

reliance could be placed on the judgment in the case of State of Haryana

and Anr. vs. Rattan Singh (Supra) and in the case of Delhi Transport

Corporation vs. N. L. Kakkar & Anr (Supra), wherein the passenger

witnesses were not examined, however, the statement of the checking

officials were recorded.

16. While going through the challan, i.e., Ex. AW-1/3, which bears the

signature of the respondent-workman, and the respondent-workman

thereafter not taking any defence qua against the contents thereof, nothing

else brings to the mind of this Court to believe that the contents therein

are true and believable to be true, particularly in the presence of the

ocular supportive statement of Shri Ram Kishan, A.T.I. The judgment

relied upon by the respondent-workman, i.e., Delhi Transport

Corporation vs. Ashok Kumar And Ors, W.P. (C) 1387/2003 & W.P. (C)

15508/2006 and an order in Delhi Transport Corporation vs. Ashok

Kumar, LPA 632/2015 & LPA 637/2015, loses its significance in

presence of the documentary evidence, i.e., Ex. AW-1/3, and the ocular

evidence of Shri Ram Kishan, A.T.I.

17. Therefore, the act of the respondent-workman is apparent on the

face of the record that he has misconducted himself by not issuing the

tickets after collecting due fare from the passengers on 15.07.1993 while

he was on official duty as conductor in bus No. 9069 on route No.46.

18. Consequently, the present Writ Petition along with the approval

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

filed by the petitioner-management are allowed resulting in setting aside

of the impugned order dated 26.05.2003 passed by the Ld. Presiding

Officer, Industrial Tribunal-II, Karkardooma Courts, Delhi in O.P. No.

109/94.

19. So far as the contention of the learned counsel for the petitioner-

management that the respondent-workman has further misconducted

while on school duty is concerned, the same is not arising out of the

alleged date of incident, i.e., 15.07.1993. Therefore, the petitioner-

management is at liberty to deal with the alleged misconduct as per law

independently.