D.T.C. vs Ved Prakash & Ors.
2018 Latest Caselaw 6420 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI
%                                   Judgment Reserved on: 07.09.2018
                                    Date of Judgment: 25.10.2018

+                          WP (C) 7536/2002

        D.T.C.                                   ..... Petitioner
                           Through: Ms.Manisha Tyagi, Advocate.

                           versus

        VED PRAKASH & ORS.                 ...Respondents
                     Through: Mr.Vinay Sabharwal, Advocate.


        CORAM:
        HON'BLE MR. JUSTICE VINOD GOEL

VINOD GOEL, J.

1. The impugned order dated 27th March, 2002 passed by the learned Presiding Officer, Industrial Tribunal-II, Karkardooma Courts, Delhi (Tribunal) is the subject matter of challenge in this Civil Writ Petition filed by the petitioner under Article 226/227 of the Constitution of India. By the impugned order, Tribunal has rejected the application filed by the petitioner under Section 33 (2) (b) of the Industrial Disputes Act, 1947 (ID Act) seeking approval of its action to remove the respondent from service.

2. Admittedly, the respondent No.1 was appointed as an Assistant Fitter with the petitioner on 7th April, 1978. He was confirmed

as Fitter on 1st July, 1983. On 03.08.1992 Shri Harendra Singh Yadav, the Foreman, under whose supervision the respondent No.1 was working, reported to the petitioner that the respondent No.1, who has been deputed in general shift from 07:30 to 16:00 hours to look after the maintenance of generators installed in the Depot, is in the habit of missing from his duty after getting marked his attendance. He was advised verbally so many times but he does not take care of it. He does not take interest in the work and challenge that nobody can stop him for leaving the Depot unauthorisedly. On that day i.e. 03.08.1992 Shri Ved Parkash, Fitter got marked his attendance and ran away from the Depot at 13:30 hours without his permission and did not turn up upto 16:00 hours. Shri Yadav requested to take necessary action.

3. On receiving this information, the Depot Manager, Rohini-2 issued a charge-sheet (Ex.AW1/1) to the respondent No.1. The respondent No.1 in his reply dated 3rd September, 1992 denied being absent from duty. He pleaded that he was cleaning the generators in the generator room and nobody came there to check on him.

4. The petitioner got conducted an inquiry. Ms. Anu Kumar was appointed as the Inquiry Officer. Based on the enquiry report submitted by her, a show cause notice dated 11th December, 1992 (Ex.AW3/1) was issued to the respondent No.1. The

Disciplinary Authority on 07.01.1993 passed an order to remove the respondent No.1 from the service of Delhi Transport Corporation with immediate effect under Clause 15 (2) (vi) of DRTA, (Conditions of Appointment and Service) Regulations, 1952. Alongwith the order of removal, one month's salary amounting to Rs.2094/- was also remitted to respondent No.1. Simultaneously, an application under sub-section 2 (b) of Section 33 of ID Act was filed before the Tribunal for approval on 07.01.1993.

5. During the course of arguments, it was submitted by the learned counsel for the parties that an industrial dispute with regard to the general demands for implementation of the recommendations of the 4th Pay Commission was pending before the Tribunal, which led the petitioner to seek approval under Section 33 (2) (b) of the ID Act.

6. On 07.02.1994, the Tribunal framed a preliminary issue "whether just and fair inquiry was held". After both the parties adduced their respective evidence, the Tribunal vide its order dated 15th November, 1997 decided the issue on inquiry by holding that "on the facts and circumstances it cannot be said that there was violation of principle of natural justice or that the respondent was not given full opportunity to defend himself in the inquiry." However, the Tribunal found the findings of the Enquiry Officer to be perverse and decided the issue against the

petitioner. The Tribunal observed "The respondent's statement that he was working in the Generator Room after 1:00 PM on 3.08.92 and that nobody had come to see him therefore stood unchallenged because of no cross examination. The enquiry officer however simply brushed aside the respondent's statement stating that the same was not acceptable in the absence of solid proof and no reason whatsoever was given by the enquiry officer for rejecting the unchallenged statement of the respondent."

7. Consequent upon the setting aside of the departmental inquiry, the Tribunal framed the following issues on 29th January, 1998:-

"1. Whether the respondent committed the misconduct for which he was charge-sheeted?

2. Relief."

8. The petitioner examined its Foreman Shri H.S. Yadav as AW2 who proved his report dated 3rd August, 1992, detailed above (Ex.AW2/A). In his cross-examination, AW2 stated that he along with the Assistant Foreman Shri Bhupender Singh found the respondent No.1 to be absent from the premises of the depot between 1 pm to 4 pm. He denied the suggestion that the respondent No.1 was present in the Generator Room between 1 pm to 4 pm on 3rd August, 1992. He stated that prior to 3rd August, 1992 he had never made any written complaint against the respondent regarding his lack of interest in the work or

otherwise. He denied the suggestion that the respondent did not commit any misconduct.

9. To rebut the case of the petitioner, the respondent No.1 examined himself as RW1 by tendering his affidavit in evidence (Ex.RW1/B) to the effect that he was not absent from duty on 3rd August, 1992 and that no person had visited the Generator Room where he was working on the said date. He deposed that it was wrongly alleged that he left the depot premises after 13:00 hours and that the complaint made by Shri H.S. Yadav (AW2) is incorrect. He denied the petitioner's suggestion that on 3rd August, 1992 he left his duty at 1 pm after marking his presence in the register or that he was not present in the office between 1 pm to 4 pm or that he used to remain absent during his duty hours.

10. The Tribunal concluded that the petitioner failed to establish that the respondent No.1 committed the misconduct for which the charge-sheet was issued. However, under issue No.2, the Tribunal found that when the respondent No.1 was removed from service on 07.01.1993, one month's wage amounting to Rs.2094/- was remitted to him by money order. In view of the findings on issue No.1, the Tribunal by impugned order dated 27th March, 2002 rejected the application of the petitioner to grant the approval for removal of the respondent No.1 from service.

11. I have heard the learned counsel for the parties. I also have gone through the written submissions.

12. The learned counsel for the petitioner argued that AW2 Shri H.S. Yadav proved his said report dated 3rd August, 1992. In its written submissions filed on 18.05.2018, the petitioner has relied upon a judgment of the Hon'ble Supreme Court in Apparel Export Promotion Council Vs. A.K. Chopra 1999 (1) SCC 759 to urge that the disciplinary authority is the sole Judge of facts and the Tribunal is not to sit as an Appellate Authority over the factual findings recorded during the departmental proceedings and substitute its own conclusions with regard to the guilt of the delinquent. Reliance is also placed on the judgment in B.C. Chaturvedi v. Union of India 1995 (6) SCC 749 wherein the Apex Court observed that "A review of the above legal position would establish that the disciplinary authority, and on appeal the appellate authority, being fact-finding authorities have exclusive power to consider the evidence with a view to maintain discipline. They are invested with the discretion to impose appropriate punishment keeping in view the magnitude or gravity of the misconduct. The High Court/Tribunal, while exercising the power of judicial review, cannot normally substitute its own conclusion on penalty and impose some other penalty. If the punishment imposed by the disciplinary authority or the appellate authority

shocks the conscience of the High Court/Tribunal, it would appropriately mould the relief, either directing the disciplinary/appellate authority to reconsider the penalty imposed, or to shorten the litigation, it may itself, in exceptional and rare cases, impose appropriate punishment with cogent reasons in support thereof."

13. In the case of Messrs Bharat Iron Works Vs. Bhagubhai Balubhai Patel and Ors.1976 (1) SCC 518 relied upon by the petitioner, the Hon'ble Supreme Court has held that "when an application under Section 33 whether for approval or for permission is made to a tribunal it has initially a limited jurisdiction only to see whether a prima facie case is made out in respect of the misconduct charged. This is, however, the position only when the domestic enquiry preceding the Order of dismissal is free from any defect, that is to say, free from the vice of violation of the principles of natural justice. If on the other hand, there is violation of the principles of natural justice, the Tribunal will then give opportunity to the employer to produce evidence, if any, and also to the workman to rebut it if he so chooses. In the latter event the Tribunal will be entitled to arrive at its own conclusion on merits on the evidence produced before it with regard to the proof of the misconduct charged, and the Tribunal then will not be confined merely to consider whether a prima facie case is established against the employee. In other words, in such an event, the employer's findings in the

domestic enquiry will lapse and these will be substituted by the independent conclusions of the Tribunal on merits."

14. In Lalla Ram Vs. The Management of D.C.M. Chemical Works Ltd. & Ors. 1978 (3) SCC 1 the Hon'ble Supreme Court after discussing various case laws concluded that in proceedings under Section 33 2(b) of the Act, the jurisdiction of the Industrial Tribunal is confined to the inquiry as to (i) whether a proper domestic inquiry in accordance with relevant rules/standing orders and principle of natural justice has been held; (ii) Whether a prima facie case for dismissal based on legal evidence adduced before the domestic tribunal is made out; (iii) whether the employer had come to a bonafide conclusion that the employee was guilty and, the dismissal did not amount to unfair labour practice and was not intended to victimise the employee; (iv) whether the employer has paid or offered to pay wages for one month to the employee and (v) whether the employer has simultaneously or within such reasonable short time as to form part of the same transaction applied to the authority before which the main industrial dispute is pending for approval of the action taken by him. The Hon'ble Supreme Court further noted that "if these conditions are satisfied the Industrial Tribunal would grant: the approval of the order of dismissal which would relate back to the date from which the employer had ordered the dismissal. If however, the domestic inquiry suffers from any defect or infirmity, the labour

authority will have to find out on its assessment of the evidence adduced before it whether there was justification for dismissal and if it so finds it will grant approval of the order of dismissal which would relate back to the date when the order was passed provided the employer had paid or offered to pay wages for one month to the employee and the employer had within the time indicated above applied to the authority before which the main industrial dispute is pending for approval of action taken by him"

15. In the case at hand, the Tribunal did not find any violation of the principles of natural justice on the part of the management in conducting the inquiry, however, the inquiry report was set aside by the Tribunal as perverse on the ground that the statement of the workman to the effect that on 3rd August, 1992 he was cleaning the generator after 1 pm in the generator room and nobody came there to see him went unrebutted and unchallenged but the inquiry officer concluded her report only on the evidence of the reporting officer Shri H.S. Yadav. The findings of the Tribunal vide order dated 15th November, 1997 on the issue of inquiry were never assailed by the petitioner and have thus attained finality.

16. On 29th January, 1998, the Tribunal framed additional issues to give opportunity to the management to adduce evidence to establish the alleged misconduct. In support of its case the

management examined only Shri H.S. Yadav, who tendered a very short affidavit to the effect that "I submitted the report dated 3rd August, 1992 on the basis of record which bears my signature and copy of the same is Ex.AW2/A."

17. Admittedly, the report Ex.AW2/A is witnessed by Shri Bhupender Vashisht, Assistant Foreman, who was not examined by the petitioner. The workman has examined himself as RW1 inter alia testifying that he was not absent from duty on 3rd August, 1992 and no person had visited the generator room where he was working on the said date and he left the duty after completion of the duty hours at 16:00 hours. The Tribunal after appreciating the evidence and material available on record by impugned order dated 27th March, 2002 concluded that "even if Shri Bhupinder Singh would have been examined then the petitioner would have been able to corroborate the statement of Shri Yadav at the same time, the respondent would have been in a position to bring out the material contradictions from the testimonies of two AWs to support his defence. In the absence of any corroborate evidence it is not possible to believe that the solicitor statement of Shri Yadav and to discard the statement of the respondent. For this reason, the Tribunal concluded that the management has not been able to establish that the respondent committed the misconduct for which the charge sheet was issued to him." As observed in Messrs Bharat Iron Works (supra),

the findings of the Enquiry Officer stand replaced by the findings of Tribunal recorded in the impugned order.

18. The management has assailed the impugned order dated 27 th March, 2002 under Article 226/227 of the Constitution of India which confers on this Court a very limited jurisdiction, the parameters whereof have been laid down by the Hon'ble Supreme Court in various cases. A constitution bench of the Hon'ble Supreme Court in Sayed Yakoob Vs. K.S. Radhakrishnan & Ors. AIR 1964 SC 477 has held that a writ of certiorari can be issued for correcting errors of jurisdiction committed by the inferior court. The para No.7 and 8 of the judgment reads as under:-

"7. The question about the limits of the jurisdiction of High Courts in issuing a writ of certiorari under Article 226 has been frequently considered by this Court and the true legal position in that behalf is no longer in doubt. A writ of certiorari can be issued for correcting errors of jurisdiction committed by inferior courts or tribunals: these are cases where orders are passed by inferior courts or tribunals without jurisdiction, or is in excess of it, or as a result of failure to exercise jurisdiction. A writ can similarly be issued where in exercise of jurisdiction conferred on it, the Court or Tribunal acts illegally or properly, as for instance, it decides a question without giving an opportunity, be heard to the party affected by the order, or where the procedure adopted in dealing with the dispute is opposed to principles of natural justice. There is, however, no doubt that the jurisdiction to issue a writ of certiorari is a supervisory jurisdiction and the Court exercising it is not entitled to act as an appellate Court. This limitation necessarily

means that findings of fact reached by the inferior Court or Tribunal as result of the appreciation of evidence cannot be reopened or questioned in writ proceedings. An error of law which is apparent on the face of the record can be corrected by a writ, but not an error of fact, however grave it may appear to be. In regard to a finding of fact recorded by the Tribunal, a writ of certiorari can be issued if it is shown that in recording the said finding, the Tribunal had erroneously refused to admit admissible and material evidence, or had erroneously admitted inadmissible evidence which has influenced the impugned finding. Similarly, if a finding of fact is based on no evidence, that would be regarded as an error of law which can be corrected by a writ of certiorari. In dealing with this category of cases, however, we must always bear in mind that a finding of fact recorded by the Tribunal cannot be challenged in proceedings for a writ of certiorari on the ground that the relevant and material evidence adduced before the Tribunal was insufficient or inadequate to sustain the impugned finding. The adequacy or sufficiency of evidence led on a point and the inference of fact to be drawn from the said finding are within the exclusive jurisdiction of the Tribunal, and the said points cannot be agitated before a writ Court. It is within these limits that the jurisdiction conferred on the High Courts under Article 226 to issue a writ of certiorari can be legitimately exercised (vide Hari Vishnu Kamath v. Syed Ahmad Ishaque [(1955) 1 SCR 1104] Nagandra Nath Bora v. Commissioner of Hills Division and Appeals Assam [(1958) SCR 1240] and Kaushalya Devi v. Bachittar Singh [AIR 1960 SC 1168]

8. It is, of course, not easy to define or adequately describe what an error of law apparent on the face of the record means. What can be corrected by a writ has to be an error of law; but it must be such an error of law as can be regarded as one which is apparent on the face of the record. Where it is manifest or clear that the

conclusion of law recorded by an inferior Court or Tribunal is based on an obvious mis-interpretation of the relevant statutory provision, or sometimes in ignorance of it, or may be, even in disregard of it, or is expressly founded on reasons which are wrong in law, the said conclusion can be corrected by a writ of certiorari. In all these cases, the impugned conclusion should be so plainly inconsistent with the relevant statutory provision that no difficulty is experienced by the High Court in holding that the said error of law is apparent on the face of the record. It may also be that in some cases, the impugned error of law may not be obvious or patent on the face of the record as such and the Court may need an argument to discover the said error; but there can be no doubt that what can be corrected by a writ of certiorari is an error of law and the said error must, on the whole, be of such a character as would satisfy the test that it is an error of law apparent on the face of the record. If a statutory provision is reasonably capable of two constructions and one construction has been adopted by the inferior Court or Tribunal, its conclusion may not necessarily or always be open to correction by a writ of certiorari. In our opinion, it is neither possible nor desirable to attempt either to define or to describe adequately all cases of errors which can be appropriately described as errors of law apparent on the face of the record. Whether or not an impugned error is an error of law and an error of law which is apparent on the face of the record, must always depend upon the facts and circumstances of each case and upon the nature and scope of the legal provision which is alleged to have been misconstrued or contravened."

19. After adverting to its earlier decisions, the Hon'ble Supreme Court in Surya Dev Rai Vs. Ram Chander Rai 2003 (6) SCC 675 summarized various circumstances under which the High

Court can exercise its jurisdiction under Article 226/227 of the Constitution. The para No.38 of the judgment reads as under:-

"38. Such like matters frequently arise before the High Courts. We sum up our conclusions in a nutshell, even at the risk of repetition and state the same as hereunder:

(1) Amendment by Act 46 of 1999 with effect from 1-7- 2002 in Section 115 of the Code of Civil Procedure cannot and does not affect in any manner the jurisdiction of the High Court under Articles 226 and 227 of the Constitution.

(2) Interlocutory orders, passed by the courts subordinate to the High Court, against which remedy of revision has been excluded by CPC Amendment Act 46 of 1999 are nevertheless open to challenge in, and continue to be subject to, certiorari and supervisory jurisdiction of the High Court.

(3) Certiorari, under Article 226 of the Constitution, is issued for correcting gross errors of jurisdiction i.e. when a subordinate court is found to have acted (i) without jurisdiction -- by assuming jurisdiction where there exists none, or (ii) in excess of its jurisdiction -- by overstepping or crossing the limits of jurisdiction, or

(iii) acting in flagrant disregard of law or the rules of procedure or acting in violation of principles of natural justice where there is no procedure specified, and thereby occasioning failure of justice.

(4) Supervisory jurisdiction under Article 227 of the Constitution is exercised for keeping the subordinate courts within the bounds of their jurisdiction. When a subordinate court has assumed a jurisdiction which it does not have or has failed to exercise a jurisdiction which it does have or the jurisdiction though available is being exercised by the court in a manner not

permitted by law and failure of justice or grave injustice has occasioned thereby, the High Court may step in to exercise its supervisory jurisdiction.

(5) Be it a writ of certiorari or the exercise of supervisory jurisdiction, none is available to correct mere errors of fact or of law unless the following requirements are satisfied: (i) the error is manifest and apparent on the face of the proceedings such as when it is based on clear ignorance or utter disregard of the provisions of law, and (ii) a grave injustice or gross failure of justice has occasioned thereby.

(6) A patent error is an error which is self-evident i.e. which can be perceived or demonstrated without involving into any lengthy or complicated argument or a long-drawn process of reasoning. Where two inferences are reasonably possible and the subordinate court has chosen to take one view, the error cannot be called gross or patent.

(7) The power to issue a writ of certiorari and the supervisory jurisdiction are to be exercised sparingly and only in appropriate cases where the judicial conscience of the High Court dictates it to act lest a gross failure of justice or grave injustice should occasion. Care, caution and circumspection need to be exercised, when any of the abovesaid two jurisdictions is sought to be invoked during the pendency of any suit or proceedings in a subordinate court and the error though calling for correction is yet capable of being corrected at the conclusion of the proceedings in an appeal or revision preferred thereagainst and entertaining a petition invoking certiorari or supervisory jurisdiction of the High Court would obstruct the smooth flow and/or early disposal of the suit or proceedings. The High Court may feel inclined to intervene where the error is such, as, if not corrected at that very moment, may become incapable of correction at a later stage and refusal to

intervene would result in travesty of justice or where such refusal itself would result in prolonging of the lis.

(8) The High Court in exercise of certiorari or supervisory jurisdiction will not convert itself into a court of appeal and indulge in reappreciation or evaluation of evidence or correct errors in drawing inferences or correct errors of mere formal or technical character.

(9) In practice, the parameters for exercising jurisdiction to issue a writ of certiorari and those calling for exercise of supervisory jurisdiction are almost similar and the width of jurisdiction exercised by the High Courts in India unlike English courts has almost obliterated the distinction between the two jurisdictions. While exercising jurisdiction to issue a writ of certiorari, the High Court may annul or set aside the act, order or proceedings of the subordinate courts but cannot substitute its own decision in place thereof. In exercise of supervisory jurisdiction the High Court may not only give suitable directions so as to guide the subordinate court as to the manner in which it would act or proceed thereafter or afresh, the High Court may in appropriate cases itself make an order in supersession or substitution of the order of the subordinate court as the court should have made in the facts and circumstances of the case."

20. The findings of the Tribunal cannot be re-appreciated by this Court by travelling outside its jurisdiction. This Court in exercise of its writ jurisdiction is not to sit over the findings of Tribunal as an Appellate Court. Findings are rendered against the petitioner by the Tribunal for want of corroborative evidence of Bhupinder Vashisht, Assistant Foreman to support AW2 H.S. Yadav which cannot be interfered with. The adequacy or

sufficiency of evidence to prove misconduct and inference to be drawn on the findings are within the exclusive domain of the Tribunal and such points cannot be agitated before the Writ Court. The power of interference under Article 226/227 of the Constitution of India is to be kept to the minimum to ensure that the wheels of justice do not come to a halt and the fountain of justice remains pure and unpolluted in order to maintain public confidence in the functioning of the tribunals and courts subordinate to the High Court. Therefore, the impugned order dated 27th March, 2002 based on an appreciation of evidence by the Tribunal cannot be set aside. There is no merit in the writ petition and the same is dismissed with no order as to costs.

(VINOD GOEL) JUDGE OCTOBER 25th, 2018 "sandeep"