Delhi High Court
Sh. Satish Chander vs Delhi Transport Corporation on 17 May, 2019
IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment Reserved On:19.09.2017.
Judgment Pronounced On:17.05.2019
W.P.(C) 2357/2012
SH. SATISH CHANDER .....Petitioner
Through: Mr. Atul T.N., Advocate.
Versus
DELHI TRANSPORT CORPORATION ..... Respondent
Through: Mr. Uday N. Tiwary and Mr. Sunil K.
Ojha, Advocates.
CORAM:
HON'BLE MS. JUSTICE ANU MALHOTRA
JUDGMENT
ANU MALHOTRA, J.
1. The petitioner Sh. Satish Chander, who joined the Delhi Transport
Corporation on 13.08.1998 as a Retainer Crew Conductor at its Rohini
Depot-I, Delhi, vide this present petition assails the impugned award dated
12.03.2010 of the Presiding Officer, Labour Court-VII, Karkardooma
Courts, Delhi in ID No.275/2004 vide which the claim petition filed by the
petitioner/workman herein seeking the setting aside of his termination of
services and seeking reinstatement with consequential benefits in the
respondent corporation,- was dismissed.
2. Notice of the petition was issued to the respondent who was put in
appearance and contested the petition.
3. It is undisputedly brought forth that the services of the petitioner were
dispensed with immediate effect under Para 4(XIV) of the Executive
Instructions regarding the employment of the Retainer Crew of the Delhi
Transport Corporation vide Order No..../AI(T)/CS-47/03/04/972 dated
05.04.2004. Para 4(XIV) of the Executive Instructions regarding the
employment of Retainer Crews relates to the terms and conditions of the
employment and the Retainer Crews of which terms and conditions are as
follows:-
".......
.......
.......
(xiv) The services of the retainer crews can be dispensed with
by the Undertaking without notice and without assigning any
reason. Further their services can also be dispensed with if
they fail to turn up at the Units or perform duty as laid down
in these instructions for five days continuously, without
permission of the officer under whom they are working and
without adequate reasons.
.....
....."
4. As per letter No.PLD-III/cond./Apptt/98/2747 dated 12.08.1998, the
petitioner amongst others was appointed as R/C/Conductor with the
respondent w.e.f. 13.08.1998, pending medical examination by DTC
Medical Board with it having been stated categorically that the appointment
is purely on temporary basis subject to the physical fitness to be adjudged by
the Medical Board of the Corporation, in due course.
5. It was specifically stipulated therein that the persons so appointed
including the petitioner at serial no.47 would be paid wages at the prescribed
rate for the period they actually performed the duty and that the terms and
conditions of their appointment as Retainer Crew Conductor would be those
as embodied in the DRTA (Conditions of Appointment & Service)
Regulations, 1952 as may be amended by the DTC and would also be
governed and bound by all other rules and regulations framed by the DTC.
6. The facts brought forth through the impugned award reflect that on
20.07.2003, the petitioner was on duty on Bus No.3396 enroute from
Sambhal to Delhi and the bus was stopped for checking at 6.25 hours at
Saiyad Nangloi when it was found by the checking staff comprising of
Sh.Mahabir Singh ATI, T No.20367, Sh. Jaipal Singh ATI, T No.20238, Sh.
Om Prakash ATI, T No.12587 who were on checking duty and boarded the
bus at the Saiyad Nangloi stand found a passenger in the bus with a ticket of
Rs.9/-, which was from Saiyad Nangloi to Hasanpur and on inquiring from
the ticket holder/passenger he stated that he boarded in this bus from
Sambhal to Hasanpur and handed over Rs.16/- to the conductor but the
conductor had given a ticket to the passenger when he saw the ticket team.
The conductor i.e. the petitioner herein is stated to have been confronted
with the passenger and the conductor/petitioner accepted his fault and that he
had given a blank ticket No.16734 worth Rs.9/- but he had collected Rs.18/-
from the passenger and had issued a ticket worth Rs.9/- only and the
passenger's statement was recorded in the presence of the conductor by Sh.
Jai Pal Singh, ATI on the back of the challan, which was signed by the
conductor. The passenger was stated to be illiterate and has thus, only signed
on the back of the challan and a copy of the challan No.37641 was issued to
the conductor i.e. the petitioner after receiving his signatures.
7. A preliminary enquiry was held by the respondent in relation to the
misconduct of the petitioner in which he participated. The Enquiry Officer
vide its preliminary findings concluded to the effect that the charges imposed
by the checking team on the daily wage conductor, B.No.25565 of collecting
full fare and issued a ticket of less denomination were both true.
8. The petitioner herein has admittedly participated in the said
preliminary enquiry and has made a statement also on 20.07.2003, stating
that the checking team forcibly entered into the bus and when the conductor
i.e. the petitioner herein objected to it, the checking team forcibly asked the
passenger to say that he had got in the bus from Sambhal to go to Hassanpur
and had given Rs. 18/- to the conductor who handed over a ticket worth
Rs.9/- and during the enquiry, the petitioner stated that the checking team
had written nothing in the Challan and had in fact given a blank Challan
signed by the passenger, which statements of the petitioner were found to be
contrary.
9. The respondent vide its written statement that had been submitted
before the learned Labour Court-VII, has stated that on the preliminary
enquiry having been conducted, it was found that the petitioner was involved
in acts not befitting of his employment and that he was not a fit person to be
retained for deployment and that it was a case of discharge of simplicitor and
not termination of services. The respondent also submitted that the petitioner
had not completed 240 days of service in any year and no retrenchment
notice was required to be given and that the provisions of Section 25G &
25H of the Industrial Disputes Act, 1947 were not applicable.
10. As observed at the outset, the letter dated 05.04.2004 issued to the
petitioner indicates that his services were dispensed with immediate effect
under Para 4(XIV) of the Executive Instructions regarding the employment
of Retainer Crews.
11. The petitioner has contended that his services were terminated vide
order dated 05.04.2004 without assigning any valid reason and that he was
not even given salary for the month of March, 2004 and that he had
completed 240 days of service in every year and no compensation such as
retrenchment or notice pay was offered to be paid to him and that no charge
sheet was ever given to the workman and no opportunity of being heard was
afforded to him.
12. The respondent through the written statement that had been submitted
before the learned Labour Court-VII, has submitted that there was no
relationship of an employer-employee between the parties as a pre-requisite
for the purpose of Industrial Dispute and that the petitioner was appointed as
retainer crew conductor on terms and conditions as stated in the letter dated
04.08.1998, in which it was made clear that he would be paid wages as per
the days of his actual performance of duty and that he was a temporary crew
employee and his services were dispensed with as he was found guilty of
misconduct.
13. The impugned award reflects that no rejoinder was filed by the
petitioner to the written statement of the respondent that has been submitted
before the learned Labour Court-VII.
14. The learned Labour Court framed the following issues:-
"1. Whether the workman is entitled to reinstatement
with all consequential benefits with full back wages?
2. Relief."
and considered the testimonies of WW-1 workman i.e. the petitioner herein
and the witnesses MW-1 Sh.Des Raj, Enquiry Officer & MW-2 Sh.Mahabir
Singh, ATI produced by the respondent herein. The learned Labour Court-
VII on a consideration of the testimonies of the petitioner herein examined as
WW-1 and of the witnesses of the respondent/management observed as
follows:-
"11. To appreciate the arguments of Ld. A.R. for the parties, a
look has to be made to the testimony of Workman Shri Satish
Chander WW.1 as well as Shri Des Raj, MW.1, Enquiry
Officer and Mahabir Singh, MW.2.
Firstly, the testimony of Workman Shri Satish Kumar
WW.1 is looked into, it is notices that he was appointed as
Conductor on temporary period as per Ex.WW1/5. He has
admitted in his cross-examination that he was not a
permanent employee of the Management and engaged for as
daily wager/casual worker for a particular period. To quote
from his testimony:
"It is correct that I was not permanent employee of the
Management.
Further,
"It is also correct that I was daily wager/casual worker
and was being paid accordingly."
12. He has further made admissions regarding the enquiry in
his cross-examination. Again to quote from his testimony:
"It is correct that a preliminary enquiry was held and I had
participated in the enquiry."
Further,
"It is correct that enquiry proceedings bear my signatures at
point A and B."
13. Now, the testimony of Management witnesses viz., Shri
Des Raj, MW.1 and Shri Mahabir Singh, MW.2 is taken up. If
a look is made to the testimony of Shri Des Raj, MW.1, it is
noticed that he has admitted that no chargesheet was issued to
the Workman and the Workman was not given an opportunity
to cross-examine the prosecution witnesses. Though he has
admitted this, but he has reasoned out that since the
Management held preliminary enquiry, there was no
procedure to give an opportunity to Workman to cross-
examine the prosecution witnesses. He has also clarified that
the Workman was a temporary/ daily wages employee.
14. Shri Mahabir Singh, MW.1 has stated in his
examination-in-chief that on 20.07.2003, on checking bus
No.3396, a passenger was in the possession of Ticket
No.16733 for a sum of Rs.9/-, while the actual fare for the
travel was Rs.18/- from Sambhal to Hasan Pur. He has
reiterated the same in his cross-examination that the
passenger was having the ticket of less denomination. No
suggestion has been put by Ld. A.R for the Workman that the
passenger was not having the tickets of less denomination."
and thus, concluded to the effect:-
"15. From the above two things come out, firstly, the
Workman was engaged on temporary basis as admitted in his
cross-examination (also discussed in the above part of the
judgment) and as per his appointment letter Ex.WW1/5.
Secondly, a preliminary enquiry was held into the Misconduct
in which the Workman participated as admitted by him in his
cross-examination. Since the Workman has admitted that he
was temporary employee of the Management and he
participated in the preliminary enquiry, now he cannot take
the plea that a full-fledged enquiry should have been
conducted into the Misconduct.
16.Thus, the fact remains that services of the Workman have
been dispensed with due to the Misconduct for issuing tickets
to the passenger for less denomination. No doubt, there is no
distinction between a permanent and temporary Workman,
but the Hon'ble High Court of DELHI was faced with
similar problem/question of retainer crew driver in Sajjan
Kumar (Supra), where it held that his dispensation was said
to be not arbitrary and it was for the Management/DTC to
say that the employee was suitable to continue or not. Here
also, since the Workman was retainer crew conductor and on
checking on 20.07.2003, he was found having issued ticket to
the passenger for less denomination, the dispensation of
services for this Misconduct, it was for the Management/DTC
to see whether the services of the Workman were suitable to
continue or not having regard to the nature of his duty.
17.Since the Management has made assessment on the basis
of his having issued ticket to the passenger for less
denomination and his nature of job was temporary one, it
cannot be said that dispensation of services by holding a
preliminary enquiry was illegal one. Therefore, this issue
goes against the Workman and in favour of the
Management."
15. Written submissions have also been submitted on behalf of either side
apart from the oral submissions having been made on behalf of the petitioner
by learned counsel Mr. Atul T.N., Advocate and on behalf of the respondent
by learned counsels Mr. Uday N. Tiwary and Mr. Sunil K. Ojha, Advocates.
16. Reliance was placed on a catena of verdicts on behalf of either side.
Reliance was placed on behalf of the petitioner on the verdict of the Hon'ble
Supreme Court in Central: Inland Water Transport Corporation v. Borjo
Nath Ganguly 1986 3 SCC 156, Delhi Transport Corporation v. DTC
Mazdoor Congress AIR 1991 SC 101. M/s Hindustan Tin Works Pvt. Ltd.
Vs. The Employees of M/s Hindustan Tin Works Pvt. Ltd. and Ors. (1979)
2 SCC 80, M.C.D. v. Praveen Kumar Jain and Ors. (1998) 9 SCC 468, and
on the verdict of this Court in Sajjan Kumar Vs. D.T.C. 2006 (3) AD (Delhi)
73.
17. It is however, essential to observe that each case is to be determined
on its own facts. The facts of the instant case clearly bring forth that the
petitioner was employed with the respondent as a Retainer Crew
Conductor on temporary basis to be paid wages at the prescribed rates
for the days that he actually performed the duty.
18. As rightly contended on behalf of the respondent/Corporation whilst
placing reliance on the verdict of the Hon'ble Supreme Court in "Bhavnagar
Municipal Corpn. V. Jadeja (2014) 16 SCC 130, the burden of proof that
the petitioner had continuously worked for a period of 240 days in a year is
undoubtedly on the petitioner which the petitioner chose not to discharge in
as much as the petitioner even did not file the rejoinder to the written
statement that the respondent filed before the learned Labour Court-VII. The
other aspect that cannot be overlooked is, as laid down by this Court in
"Rakesh Muni Tyagi Vs. DTC" 2013 (139) FLR 24, which petition is based
on the same appointment letter as that of the petitioner herein and in which
case the petitioner thereof was also employed as a Retainer Crew Conductor,
vide the same appointment letter dated 04.08.2008 and to whom the
Executive Instructions for employment of a Retainer Crew were applicable
and it was categorically observed by this Court in the said verdict vide
paragraphs 9, 10, 11 & 12 to the effect:-
"9. The Executive Instructions above extracted show that the
Retainer Crew is not engaged on a monthly basis. The
engagement is only as a daily wager their services being
utilized only in the event of the deployed Driver/Conductor
being absent. That is why they are distinguished from monthly
rated Drivers & Conductors.
10. Clause (vii) of the Executive Instructions extracted above
shows that the Retainer Crew may not be put on duty on a
given date and, in that eventuality, he would not earn the
wages as prescribed in clauses (v) & (vi) in the said
instructions. He is paid nominal retainer allowance, subject to
the compliance of the conditions mentioned in clause (vii).
11. Clause (xiv) explicitly states that the services of the
Retainer Crew can be dispensed with by the undertaking
without notice and without assigning any reason. Their
services can also be dispensed with if they fail to turn up at
the Units or perform the duty as laid down in these
instructions for five days continuously, without permission of
the officer under whom they are working and without
adequate reasons. Retainer Crew are absorbed on monthly
rated temporary establishments of Drivers and Conductors in
order of merit, seniority, conduct and performance.
12. A perusal of the aforesaid instructions as well as clauses 5
and 6 of the appointment letter dated 04.08.1998 issued to the
petitioner offering the post of retainer crew driver for a
temporary period leaves no manner of doubt that the
termination of the services of the petitioner has been
undertaken under a stipulation in that behalf contained in the
conditions applicable to the petitioners appointment. The
termination of the petitioners service, therefore, does not
tantamount to retrenchment as defined in section 2(oo) of the
Act since it is covered by the exception carved out in clause
(bb) thereof. The mere completion of 240 days of service in
the year preceding the petitioners termination does not vest
the petitioner with the right to claim compensation under
section 25F of the Act, since the terms of appointment in no
uncertain terms made it clear that: i) The appointment was as
a daily rated conductor and not a monthly rated conductor; ii)
It was not necessary for the respondent to take from the
petitioner, even when he offered himself for service, on any
given day and all that he was entitled to, subject to fulfillment
of certain conditions was retainer allowance; iii) The services
of retainer crew conductor could be dispensed with without
notice and without assigning any reason; iv) The absorption
of the retainer crew conductor in the monthly rated
establishment was dependant upon, inter alia, the conduct
and performance of the conductor while working as a retainer
crew. Therefore, the conduct and performance of the
petitioner was under watch i.e. he was on probation for being
considered to be placed as a monthly rated temporary
establishment conductor."
19. As laid down in "Rakesh Muni Tyagi Vs. DTC" (supra), the
provisions of Section 2(oo)(bb) of the Industrial Disputes Act, 1947 come
into play in the instant case which specify that retrenchment means the
termination by the employer or of the service of a workman, but does not
include:-
"(a).......
(b).........
(bb) termination of the service of the workman as a result of the non-
renewal of the contract of employment between the employer and the
workman concerned on its expiry or of such contract being terminated
under a stipulation in that behalf contained therein; or]
......"
20. Furthermore, the letter dated 05.04.2004 issued by the respondent
which merely dispensed with immediate effect the services of the petitioner
and makes no allegations in relation to any enquiry report. Taking the totality
of the circumstances into account, in as much as vide clause 4(XIV) of the
Executive Instructions regarding the employment of a Retainer Crew issued
by the respondent, it is apparent that the services of the petitioner could be
dispensed with as and when the respondent chose without assigning any
reason, Section 2(oo)(bb) of the Industrial Disputes Act, 1947 clearly comes
into play.
21. The verdict of the Hon'ble Supreme Court in "Champaklal
Chimanlal Vs. UOI" AIR 1964 SC 1854 relied upon on behalf of the
respondent makes it clear that the order of dispensation of services of the
petitioner by the respondent dated 05.04.2004 does not fall within the ambit
of an order inflicting any punishment of dismissal or removal from the
services of the respondent and thus, non-supply of a charge sheet to the
petitioner is of no avail to the petitioner. Furthermore, the observations of the
learned Labour Court-VII in the instant case holding to the effect that the
petitioner was engaged on a temporary basis as per his appointment letter
EX.WW1/5 and that he participated in the preliminary enquiry and that the
services had been dispensed with due to mis conduct for issuing tickets to the
passengers of a lesser denomination and the management having found that
the petitioner was not suitable to continue in the services of the
management/Corporation, the findings of the learned Labour Court that the
dispensation of the services of the petitioner by upholding the preliminary
enquiry were not illegal, cannot be faulted.
22. Reliance was also placed on behalf of the respondent on the verdict of
this Court in Karambir Vs. Presiding Officer, Labour Court No.1 & Ors.
and Delhi Transport Corporation Vs. Delhi Administration and Ors. in WP
(C) 774/1997 and 809/2001, Praveen Kaushik Vs. A.S. Yadav & Ors. in
Writ Appeal No.497/2001, to contend that the termination of the services of
the petitioner by the respondent was illegal.
23. The present petition has been filed under Article 226 & 227 of
the Constitution of India. As laid down by the Hon'ble Supreme Court in
"Syed Yakoob Vs. K.S. Radhakrishnan and Ors." AIR 1964 SC 477,
though 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 in excess of it,
or as a result of failure to exercise jurisdictions, a writ can similarly be issued
where in exercise of jurisdiction conferred on it, the Court or Tribunal acts
illegally or improperly, as for instance, it decides questions without giving
an opportunity to 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. However, as observed by the Hon'ble Supreme Court in the
said verdict vide para 7 thereof, though, a writ of certiorari is a supervisory
jurisdiction and the Court exercising it is not entitled to act as an appellate
Court and this limitation necessarily means that findings of fact reached by
the inferior Court or Tribunal as a result of the appreciation of evidence
cannot be reopened or questioned in writ proceedings and 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 and that 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
and 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 and
that a Court must always bear in mind that a finding of fact recorded by the
Tribunal cannot be challenged in proceedings by 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 and the
adequacy or sufficiency of evidence led on a point and the inferences 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 and that 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.
24. It was further observed by the Hon'ble Supreme Court vide para 8 of
the said verdict, which reads to the effect:-
"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."
25. The verdict of this Court in "Parshuram Shah Vs. Govt. of NCT of
Delhi and Anr." 2008 LLR 256" also likewise observes to the effect:-
"7. The arguments advanced on behalf of the petitioner
workman, if entertained, would amount to interfering
with the findings of facts as arrived at by the Labour
Court after due appreciation of evidence. Law is well
settled in this respect that the Labour Court is the final
court of facts and it is not appropriate for this Court,
while exercising jurisdiction under Article 226 of the
Constitution, to reappreciate evidence or to interfere
with the findings of facts as arrived at by the Labour
Court. The jurisdiction exercised by the writ court under
Article 226 is supervisory and not appellate in nature.
Reappraisal of evidence without sufficient reason in
law, to arrive at a finding of fact contrary to those
arrived at by the Subordinate Court, is not the intent of
exercising the powers of judicial review. Reliance in this
regard can be placed on the following judgments of the
Supreme Court:
(i) Harbans Lal v. Jagmohan Saran AIR 1986
SC 302
(ii) B.C. Chaturvedi v. Union of India (1996) 1
LLJ 1232 SC
(iii) Indian Overseas Bank v. I.O.B. Staff Canteen
Workers Union AIR 2000 SC 1508
(iv) P.G.I. of Medical Education and Research
Chandigarh v. Rajkumar (2001) 2 SCC 54.
(v) Municipal Corporation of Delhi v. Asha Ram
and Anr. 117 (2005) DLT 63."
and thus, in that case where it was observed that that findings of the Labour
Court were based on an appreciation of the material placed on the record
which findings were neither perverse nor arbitrary nor capricious, it was held
that it did not warrant any interference.
26. In the circumstances of the instant case thus, it is apparent that there is
no merit in the prayer made by the petitioner seeking the setting aside of the
impugned award in as much as the services of the petitioner cannot be held
to have been illegally terminated nor can the petitioner be held to be
reinstated with full back wages taking into account the factum that the
services of the petitioner were themselves engaged on a temporary basis and
the services of the petitioner were terminated at the will of the respondent,
coupled with the factum that the order of dispensation of the services of the
petitioner per se made no observations on the allegations of misconduct
under the preliminary enquiry held against him, and dispensed with his
services simplicitor.
27. In the circumstances, it is held that there is no infirmity in the
impugned award of the learned Labour Court-VII and the petition is thus,
declined.
ANU MALHOTRA, J.
MAY 17th , 2019/NC
