Delhi Transport Corporation vs Shri Pale Ram
2016 Latest Caselaw 887 Del

        *       IN THE HIGH COURT OF DELHI AT NEW DELHI
+                                       Judgment delivered on: Feburary 05, 2016


%       W.P.(C) No. 8185/2004

     DELHI TRANSPORT CORPORATION                  .....Petitioner
                    Through: Ms. Arati Mahajan Shedha and Mr.
                             Manoj Kumar, Advocates.

                               versus

     SHRI PALE RAM                                                  .....Respondent
                               Through:       Mr. Sanjoy Ghose and Mr. Vikramaditya,
                                              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 Articles 226 of the Constitution of India for

issuance of Writ of Certiorari for quashing/setting aside the impugned

order dated 27.05.2003 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. 260/94.

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

Pale Ram was in the employment of the petitioner-management as a

conductor, B. No. 18555. On 14.07.1991, while the respondent-workman

was on duty in bus No. 9032 on Patiala-Delhi route, the checking

officials, i.e. , Shri Jagdish Chander, A.T.I., Shri Rajeev Wedhera, T.S.,

Shri Attar Singh, T.I., Shri Gulshan Kumar, T.I. and Shri Nathu Ram,

T.I., of the petitioner-management intercepted the said bus and found the

following irregularities:-

                         (i)      Respondent-workman had not issued

                                  tickets to 15 passengers after collecting

                                  due fare.

                         (ii)     An amount of Rs. 560.65 was found short

                                  in the possession of the respondent-

                                  workman.

                         (iii)    Respondent-workman refused to give the

                                  complaint book.

                         (iv)     Respondent-workman refused to sign on

                                  the passenger statement.

                         (v)      Respondent-workman had stopped at

                                  Samana      Bahu   hotel   where   it   was

                                  prohibited.

and the abovementioned irregularities of the respondent-workman

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

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

Jagdish Chander, A.T.I., P.T. No. 18079, 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 09.09.1994 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 orders No.

3638 & 3639 dated 09.09.1994.

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

23.09.2002.

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 in the charge sheet?OPP

(2) Whether the petitioner has remitted one month's salary as

required U/s 33(2)(b) of I.D. Act?OPP

(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 27.05.2003. Hence, giving rise to the present Writ Petition.

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

that the finding given by the learned Industrial Adjudicator is not correct.

It is further submitted that there is sufficient evidence placed on record by

petitioner-management. The petitioner-management has already

examined inquiry officer, i.e. Shri Sunit Mudgal and the complainant, i.e.,

Shri Jagdish Chander, A.T.I, who was the witness to the incident and

placed the material evidence on record. It is further submitted that the

learned Industrial Adjudicator misread the evidence and reached to wrong

conclusion and the impugned order dated 27.05.2003 is liable to be set

aside.

7. The learned counsel for petitioner-management further submitted

that non examination of the passenger witnesses ipso facto cannot be the

ground to negate the case in hand. It is further submitted that the

statements of 4 passenger witnesses were duly recorded on the spot but it

was the respondent-workman who refused to sign the same and relied

upon the judgments in the cases of Karnataka State Road Transport vs.

B.S. Hulikatti, JT 2001 (2) SC 72, Regional Manager RSRTC vs.

Ghanshyam Sharma, JT 2001 (10) SC 12 and Subhash Chander vs.

P.O. Labour Court, 2013 (138) FLR 281.

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

has submitted that this Court has no jurisdiction to go into the merits of

the case and the evidence appreciated by the learned Industrial

Adjudicator is the final, as he is the master of his own opinion, unless

perversity is demonstrated in existence or an error apparent on the face of

the record. It is further submitted that the judgment rendered by the Apex

Court in the case of State of Haryana and Anr. vs. Rattan Singh, AIR

1977 SC 1512 is not the mantra to say that under no circumstance the

passenger need not be examined.

9. The allegation of the misconduct on the part of the respondent-

workman is alleged to be that on 14.07.1991, while he was on official

duty, his bus was intercepted by the checking officials of the petitioner-

management and following irregularities were found:

1) Respondent-workman had not issued tickets to 15

passengers after collecting due fare.

2) An amount of Rs. 560.65 was found short in the

possession of the respondent-workman.

3) Respondent-workman refused to give the

complaint book.

4) Respondent-workman refused to sign on the

passenger statement.

5) Respondent-workman had stopped at Samana

Bahu hotel where it was prohibited.

10. The whole question arises whether there is sufficient evidence qua

against the respondent-workman to hold respondent-workman guilty of

the alleged misconduct?

The answer is NO.

11. The petitioner-management examined Shri Jagdish Chander, A.T.I.

as AW1, who has stated in his affidavit dated 29.01.2003 that he along

with Shri Rajeev Wedhera, T.S., Shri Attar Singh, T.I., Shri Gulshan

Kumar, T.I. and Shri Nathu Ram, T.I. intercepted the bus No. 9032 on

Patiala-Delhi route and found the aforesaid irregularities on the part of the

respondent-workman.

12. During the cross examination, AW1, i.e. Shri Jagdish Chander, has

specifically stated that he is unable to identify the signature of the

respondent-workman on the challan, i.e., challan No. 125310. Further, his

affidavit dated 29.01.2003 does not state that the challan was signed by

the respondent-workman. However, it is stated that the statements of the

passenger witnesses were recorded on the spot to which the respondent-

workman refused to sign the same.

13. The petitioner-management during the cross-examination of the

respondent-workman did not put forth any suggestions that his bus No.

9032 on Patiala-Delhi route was intercepted by the checking officials of

the petitioner-management.

14. The petitioner-management further did not put forth any suggestion

that the following persons, namely, Shri Jagdish Chander, A.T.I., Shri

Rajeev Wedhera, T.S., Shri Attar Singh, T.I., Shri Gulshan Kumar, T.I.

and Shri Nathu Ram, T.I., were the checking officials.

15. The petitioner-management further did not put forth any suggestion

that the respondent-workman did not issue tickets to alleged 15

passengers after collecting due fare from them.

16. The petitioner-management also did not put forth any suggestion

that the statements of passenger witnesses were recorded at the back of

the challan and that the respondent-workman refused to sign the same.

17. The petitioner-management, on the one hand, is alleging that the

respondent-workman has committed misconduct, but at the same time the

petitioner-management is avoiding to put forth the same questions to the

respondent-workman who is the true replier of the said facts.

18. As per the statement of AW1, i.e., Shri Jagdish Chander, A.T.I.,

the traffic superintendent, i.e., Shri Rajeev Wedhera, was present at the

place where the said bus was intercepted but the statements of the

passenger witnesses were not attested by the aforesaid traffic

superintendent.

19. The sole ocular evidence of AW1, i.e., Shri Jagdish Chander,

A.T.I., in the aforesaid circumstances, does not inspire confidence to

discharge the onus on the part of the petitioner-management to say that

the respondent-workman on 14.07.1991, while on official duty, did not

issue tickets to the alleged 15 passengers after collecting due fare from

them unless there is such corroboration from the other independent

corners.

20. In the present case, the petitioner-management failed to examine

the remaining members of the checking staff, i.e., Shri Rajeev Wedhera,

T.S., Shri Attar Singh, T.I., Shri Gulshan Kumar, T.I. and Shri Nathu

Ram, T.I. or the passenger witnesses to strengthen the statement of AW1.

21. In these circumstances, the learned Industrial Adjudicator was right

in not holding confidence in the statement of AW1, i.e. Shri Jagdish

Chander, A.T.I., and rejected the approval application under Section

33(2)(b) of the Industrial Disputes Act, 1947 filed by the petitioner-

management. The judgements relied upon by the petitioner-management,

i.e., Karnataka State Road Transport vs. B.S. Hulikatti (Supra),

Regional Manager RSRTC vs. Ghanshyam Sharma (Supra) and

Subhash Chander vs. P.O. Labour Court (Supra) are not helpful as the

sole ocular statement of AW1 does not inspire confidence.

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

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

merit in the present Writ Petition and there is no illegality or perversity in

the impugned order dated 27.05.2003. Consequently, the same is

dismissed.

The Lower Court record be sent back along with one copy of this

Judgment. No orders as to costs.

I.S. MEHTA, J

FEBURARY 05, 2016 j