Delhi High Court
Harish Chander vs D.T.C. & Anr. on 27 September, 2022
$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Reserved on: 25.08.2022
Pronounced on: 27.09.2022
+ W.P.(C) 5431/2003
HARISH CHANDER ..... Petitioner
Through: Mr. G. S. Charya, Advocate
versus
D.T.C. & ANR. ..... Respondents
Through: Mr. Uday N. Tiwari and
Ms. Saloni Singh, Advocates
+ W.P.(C) 5892/2003 & CM No. 30791/2021
D.T.C. ..... Petitioner
Through: Mr. Uday N. Tiwari and
Ms. Saloni Singh, Advocates
versus
HARISH CHANDER,CONDUCTOR
& ANR. ... Respondents
Through: Mr. G. S. Charya, Advocate
CORAM:
HON'BLE MR. JUSTICE GAURANG KANTH
JUDGMENT
GAURANG KANTH, J.
1. Both these writ petitions are heard together and disposed of by
this common judgment. These writ petitions arise out of the
Awards dated 12.10.2001 and 20.05.2002 passed by the learned
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Presiding Officer, Labour Court-IV, Karkardooma Courts,
Delhi.
2. W.P.(C) 5431/2003 is preferred by Petitioner/Sh. Harish
Chander for setting aside the Award dated 20.05.2002 passed by
the learned Presiding Officer, Labour Court-IV, Karkardooma
Courts, Delhi whereby the learned Presiding Officer granted
reinstatement to the petitioner with 50% backwages. Sh. Harish
Chander (herein after referred to as „the delinquent‟) has filed
the present writ petition for granting full backwages with
continuity in service. W.P.(C) 5892/2003 is preferred by the
Petitioner/ D.T.C. for setting aside the Awards dated 12.10.2001
and 20.05.2002 passed by the learned Presiding Officer, Labour
Court-IV, Karkardooma Courts, Delhi whereby Sh. Harish
Chander was granted reinstatement in service with 50%
backwages.
FACTS OF THE CASE
3. The facts borne out of the records leading to the present petition
are that the Petitioner was brought on monthly rates of pay with
effect from 23.05.1977. On 21.10.1983, petitioner along with his
two other associates entered the office of Mr. K. K. Berry, Depot
Manager, DTC and during the discussion, the petitioner used
abusive language and assaulted the Depot Manager. Mr. K. K.
Berry, Depot Manager submitted a report dated 10.10.1983 to
the Assistant General Manager (Traffic). Pursuant to the report
of Sh. K. K. Berry under order of Assistant General Manager,
the delinquent was placed under suspension in contemplation of
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disciplinary proceedings. On 21.10.1983, the delinquent was
served with a charge-sheet. The delinquent filed a reply against
the allegations levelled against him in the Charge-sheet.
However, the competent authority was not satisfied with their
reply and a regular enquiry was initiated against the delinquent.
The enquiry officer submitted his report dated 10.11.1987
wherein the delinquent was found to be guilty of all the charges
levelled against him. On 15.12.1987, the Disciplinary Authority
agreed with the finding of the Enquiry Officer and issued a show
cause notice with proposal of removal from services. On
15.01.1988, the delinquent was removed from his services w.e.f.
16.01.1988. Against the termination order, the delinquent raised
an Industrial Dispute which was referred to the learned Labour
Court, Delhi for adjudication. The learned Labour Court vide its
Award dated 12.10.2001 decided the preliminary issue of
validity of enquiry in favour of the delinquent. Thereafter, the
learned Labour Court passed an Award dated 20.05.2002
directing reinstatement of the delinquent with 50% backwages.
Against the impugned Awards dated 12.10.2001 and 20.05.2002
passed by the learned Presiding Officer, Labour Court-IV,
Karkardooma Courts, Delhi the present writ petitions have been
filed.
SUBMISSIONS ON BEHALF OF DTC
4. Mr. Uday N. Tiwari, learned counsel appearing on behalf of
DTC contended that the Awards dated 12.10.2001 and
20.05.2002 passed by the learned Presiding Officer, Labour
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Court-IV, Karkardooma Courts are liable to be set aside as they
are based on conjecture and surmises ignoring the material
evidence on record. Learned counsel further contended that the
learned Labour Court erred in passing the impugned Awards
dated 12.10.2001 and 20.05.2002 against the delinquent as the
learned Labour Court has failed to take into consideration the
testimony of Mr. K. K. Berry, who was duly cross-examined by
the delinquent and proves that the delinquent used abusive
language and physically assaulted Mr. K. K. Berry.
5. Learned counsel for the petitioner further contended that the
learned Labour Court failed to appreciate that the delinquent was
unduly delaying the enquiry proceedings on one pretext or the
other by repeatedly remaining absent or by raising illegitimate
demands. Learned counsel further contended that the enquiry
officer accepted all the requests made by the delinquent on
various occasions during the enquiry proceedings, only with an
object of following the principles of natural justice. He further
contended that taking into account the demeanor of the
delinquent in delaying the enquiry proceedings, the observation
of learned Labour Court with regard to not following the
principles of natural justice by the learned Labour Court is
uncalled for and perverse.
6. He further contended that the testimony of Mr. Dhan Singh is
contradictory to the stand taken by the delinquent and as such no
reliance can be placed on the testimony of Mr. Dhan Singh.
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7. Learned counsel further contended that the learned Labour Court
erred in ignoring the testimony of eyewitness, Mr. V. K. Singh
and the statement of Sh. K. K. Berry, Depot
Manager/complainant made before the Enquiry Officer which
clearly proved the guilt of the delinquent. Learned counsel
concluded his argument by contending that the learned Labour
Court erred in not appreciating that physically assaulting and
using abusive language against a superior officer tantamounts to
a grave misconduct for which the punishment of removal is just
and proper.
SUBMISSION ON BEHALF OF MR. HARISH CHANDER (THE
DELINQUENT)
8. Mr. G. S. Charya, learned counsel appearing on behalf of
Mr.Harish Chander (the delinquent) contended that no
interference in the impugned Award dated 20.05.2002 is called
for by this Court except for the grant of full back wages. He
further contended that despite observing that the enquiry
proceedings were vitiated and have been proceeded without
following the principles of natural justice, the learned Labour
Court erred in not granting full backwages to Mr. Harish
Chander.
9. He further contended that it was proved on record that
Mr.Harish Chander was not employed during the intervening
period from the date of his termination to the date of
reinstatement and as such he was entitled for grant of full
backwages.
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10. He further contended that the learned Labour Court correctly
observed that the principles of natural justice have not been
followed by the enquiry officer and not providing a sufficient
opportunity to cross-examine Mr. V. K. Singh, Assistant
Accounts Officer and Mr. K. K. Berry, Depot Manager,
tantamounts to declaring the enquiry proceedings unlawful and
vicious.
LEGAL ANALYSIS
11. This Court has gone through the documents placed by both the
parties on record and have also heard the respective counsels
with regard to perversity in the Impugned Awards. At the
outset, this Court deems it appropriate to recapitulate the
observations made by the learned Labour Court vide its Award
dated 12.10.2001 by which the learned Labour Court held that
the enquiry proceedings are bad in law and sufficient
opportunity has not been given to the delinquent to prove his
innocence. Relevant portion of Award dated 12.10.2001 reads
as under:-
"These proceedings are liable to be set aside on the
following grounds:-
(i) The charge-sheet dated 21.10.1983 is wholly vague for
want of proper particulars; averments contained in
the charge-sheet were, self-contradictory.
(ii) It was extremely unreasonable, improper, unjust to
record ex-parte evidence on 8.9.87 as the concerned
workman was sick and he could be present. Principles
of natural justice warranted that the ex-parte
proceedings dated 8.9.87 should have been recalled
and proper and adequate opportunity ought to have
been given to the workman, to crossexamine Sh.
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V.K. Singh. This had been denied with a pre-
meditated move because Enquiry Officer has all along
been recorded proceedings under the influence of
superior officials. He had not acted in a fair and
impartial manner.
(iii) That the findings recorded by the Enquiry Officer are
altogether perverse and contrary to legal evidence.
No legal sanctity can be attached to the said
proceedings
(iv) The proceedings of enquiry initiated vide charge
sheet dt.21.10.1983 are barred under principles of
latches, under delay and waiver etc. The proceedings
were initiated in 0cut,1983 and there was no
justification to prolong the proceedings for more than
4 years, especially when Sh. Lacchman Dass had
once concluded the proceedings and none had
appeared. Even otherwise there was no justification
to keep the matter pending for such a long time.
XXXX XXXX XXXX
20. In this case, the delinquent workman was charge-
sheeted on 21.10 83 and the enquiry proceedings started in May
1987 and it is after a period of three and half years and the
management has taken, a long time for initiating the enquiry
proceedings against the delinquent workman but they have not
acceeded to the request of the delinquent workman for calling
Sh. V.K. Singh, Assistant Accounts Officer for cross
examination and the request of the delinquent workman was
turned down by the enquiry officer for crossexamining him. It is
clear that the management has not given the opportunity to cross
examine the management witness namely Sh. V.K.Singh and the
management has also, not given any reason why they have not
examined Sh. Dhan Singh in the enquiry proceedings. The
management has violated the principles of natural justice by not
allowing the delinquent workman to crossexamine the
management witness Sh. V.K. Singh.
21. In this case the management witness Sh. Dhan
Singh has appeared as a defence witness on 02.12.1987 and he
has supported the version of the delinquent workman and said
Dhan Singh in his statement also stated that the management got
recorded a written statement from him in their favour by using
pressure and coercion. Perusal of the enquiry report reveals that,
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the enquiry officer has not properly appreciated/considered the
statement of Sh. Dhan Singh who has deposed in favour of the
delinquent workman. The enquiry officer in his report stated that
no effect can be given to the testimony of Sh. Dhan Singh since he
has retired from the management and he appeared as a defence
witness though he was cited as the prosecution witness i.e. the
witness of the management and his testimony is not reliable.
From this it is amply clear that the enquiry officer has not
appreciated the evidence fairly and he has resorted to surmises
and conjecture in order to come to his conclusion."
12. The learned Labour Court based its decision for granting
reinstatement to the delinquent on the grounds mentioned above.
Core of the above mentioned grounds are as under:
(a) That the contents of charge-sheet are vague.
(b) That the enquiry officer did not give an opportunity to the
delinquent to cross-examine Mr. V. K. Singh and enquiry
proceedings have been carried out under the pressure of the
superior officers.
(c) That there was a delay of 4 years to culminate the
departmental proceedings.
(d) That the enquiry officer failed to consider the testimony of
Mr.Dhan Singh in correct perspective.
13.With regard to the contentions raised by both parties, it is
relevant to peruse the Enquiry Officer's report dated 10.11.1987.
The relevant portion of the enquiry report dated 10.11.1987 is as
under:-
"....On 4.6.86, during the enquiry Shri Harish Chander
Conductor Batch No. 9520 refused to accept the charge as
leveled in the charge sheet and also to have the assistance of an
employee in the enquiry. This was confirmed by Shri K.K.Beri,
Regional Manager (East) in his statement and Shri Harish
Chander was given the opportunity to put question in his
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defence. On this he raised objection that the enquiry be
conducted in Hindi. Allowing his request the enquiry was started
on 3.9.86 in Hindi. On this the accused has raised objection that
he has not brought his co-employee with him, so the case be
adjourned to some other date. Keeping the interest of the
accused in mind the same was accepted and the inquiry was
again started on 7.5.87, in which the accused did not appear in
the enquiry without and valid reason or permission. Thus the
statement of Shri K.K. Beri (Officiating Manager (East) was
recorded before Shri B.L.Patney (Labour Welfare Officer) (S), in
which he confirmed his report. Because vide letter
No.ANL)/Vig/CR-103/84/87/2491 dated 27.4.87 he was informed
that without any valid reason or permission, the enquiry will be
continue in his presence.
On 1.6.87 the enquiry was again started before the Labour
Welfare Officer. Shri Harish Chander Conductor Batch No.
9529 was asked to take the assistance of his co-employee Shri
Deen Dayal , Conductor, Batch No. 10530, which was allowed.
But when the Enquiry Officer asked Mr. V.K. Singh, Asstt.
Account Officer for recording his statement, then Shri Harish
Chander raised the objection that Shri K.K.Beri may be called
for inquiry in front of him.', His request was accepted. Shri
Harish Chander conductor, Batch No. 9529 was directed that for
any reason he does not appear in the enquiry, the enquiry will
continue.
On 27.7.87 during the enquiry, the accused has put
questions on Shri K. K.Beri in his defence.
On 8.9.87, the enquiry was again started, in which the
accused did not appear. While vide letter No.AND/Vig/CR-
103/84/87/4857 dated 27.8.87 the accused was informed that
without any valid reason or permission, the enquiry will be
continue in his absence. So the statement of Shri V.K. Singh
was recorded before the Labour Welfare Officer (S), wherein he
has confirmed the incident of misbehaviour and beating with
Shri K.K.Beri.
The accused was informed for the next date to his closing
statement and to produce his witnesses. He was informed vide
letter No.AND/Vig/CR-103/84/87/5114 dated 10.9.87 for the
enquiry but the accused tried to delay the enquiry proceeding on
one pretext or the other. On 6.11.1987 the accused was given
final opportunity to produce his witness and his closing statement
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but he moved an application to re-call Mr. V.K.Singh and also
on the ground of illness of the Assistant employee asked for next
date. While the request to re-call Mr. V.K. Singh in the enquiry
was rejected, as the accused was informed vide letter
No.AND/Vig/CR-103/84/87/5317 dated 22.9.87 the accused was
already informed and thus the accused has tried to delay the
matter without any reason which cannot be accepted. So far the
question of the illness of the Co-Assistant is concerned which
was proved wrong that he is ill, as is revealed from the Depot
Manager, Sarojini Nagar Depot.
On 20.11.87, the accused again asked to re-call
Mr.V.K.Singh in the enquiry which was rejected and the
accused was asked to make his closing statement but the
accused has requested for time upto 2.12.87 and in the interest
of justice the enquiry was postponed.
On 2.11.87 the accused, in his defence has produced one ex-
driver Shri Dhan Singh B. No. 2251 in the enquiry. He has stated
his statement that on 10.10.83 his vehicle was standing in front of
the Workshop Store and he was getting the vehicle repaired. At
about 1655 the peon Phool Singh came near to me and said that
the vehicle is required by the Depot Manager. After 2-4 minutes
he started the vehicle and parked it adjacent to the room of the
Manager. After parking the vehicle he went to the room of Depot
Manager and he told to go for the office. On reaching the office,
Shri Kamal Sahab (who was AGMT (T) asked to go I.P
Headquarters. On reaching the I P Headquarter he was made to
sit in the room and a pen and paper was given and asked to write
on it. Whatever he written was turned off and thereafter what they
dictated he written. Because they were his officers. He knew that
whatever was written is totally false. In his closing statement the
accused told that the charges are baseless and false.
The whole matter and the statements of witnesses were
examined in accordance with the rules of the Corporation. Shri
K.K.Beri Regional Works Manager (East) has confirmed the
report in his statement. Shri Harish Chander has not asked any
valid question from Shri K.K.Beri in his defence. Shri V.K.
Singh ,Asstt. Accounts Officer has also stated in his statement
about the misbehaviour and beating of Shri K.K. Ben. In this
matter one witness who had been retired from the service of the
Delhi Transport Corporation, so there is not purpose to call him.
Shri K.K.Beri Regional Works Manager (East) has confirmed the
report in his statement. Shri Harish Chander has not asked any
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valid question from Shri K.K.Beri in his defence. Shri V.K. Singh,
Asstt. Accounts Officer has also stated in his statement about the
misbehaviour and beating of Shri K.K. Bery. Shri Harish
Chander, Conductor, Batch No. 9529 has requested in his
application to re-call Mr. K.K. Beri in the enquiry, which is
rejected, because he has tried to delay the enquiry/ without any
valid reason and he has been informed vide office letter NO.
AND/SP/CR-103/84/87/5318 dated 22.9.1987, that the ground of
illness of his Colleague is false and on that account he has made
successful attempt to delay the enquiry because his colleague has
taken leave for marriage, and a true copy of his leave application
is enclosed with the file, while the accused is telling that he is ill.
The statement of Ex. Driver Dhan Singh B. No. 2251 is not to
be accepted because if Dhan Singh had written under influence,
the he should have immediately informed his senior officers. In
this case Shri Dhan Singh was the witness of the prosecution but
after retirement he came as witnesses for the defence side. This
clearly shows that the accused got his evidence as hostile witness,
therefore his evidence has got no meaning. In his concluding
statement the accused has not stated any strong point."
14. Before the Enquiry Officer, the Management/DTC has produced
Sh. K. K. Berry (Depot Manager), Sh. V. K, Singh (Assistant
Accounts Officer) and Mr. Mohd. Yusuf (Enquiry Officer) as
Management witnesses. Sh. K. K. Berry, Depot Manager, during
his statement before the enquiry officer deposed as under:-
(Translated by Translation Branch, High Court of Delhi)
"On 10.10.1983, I was busy in work at Sarojini Nagar
Depot. At about 04.40 PM, Sh. Mahendra Singh, Driver, B.No.
7834, Dharamvir, Driver, B.No. 6865 and Harish Chandra,
Conductor, B.No. 9529 entered my room and asked to talk on
some issues.
The very first matter they raised was that of the disallowing
the leaves. The second issue was excessive deduction on account
of damage from the Drivers while the third matter was that of
seniority wise duty of the Drivers at workshop. On this, I told
them that only those leaves are disallowed which are given late as
it creates hindrance in the operation. Even if it is felt that
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somebody is subjected to injustice, his matter may be
reconsidered on being produced. As far as the recovery of
damage is concerned, such cases are dealt with according to the
merit. And if in any case, somebody feels that injustice is caused
to him, he may appeal before the AGM (T). And as far as the
matter of seniority wise deployment of Drivers in Workshop is
concerned, the matter is under consideration and will be decided
soon.
On this, Sh. Harish Chandra, Conductor, B. No. 9529 and
his both colleagues said, "You do not do anything for our
Union, we will deal you alternatively." While saying this, they
started to beat me. Sh. V.K. Singh, AAO who was present there
in my office and Sh. Dhan Singh, Driver, B.No. 225 came in my
rescue and ousted the three from the room."
15. Sh. K.K. Berry, Depot Manager was cross-examined by the
delinquent before the Enquiry Officer and Sh. K.K. Berry during
his cross-examination deposed as under:-
(Translated by Translation Branch, High Court of Delhi)
"Q. You are the officer of which department? Traffic, Engineering
or Accounts?
A. I am an officer of the Engineering Department.
Q. What is your current designation?
A. Regional Manager (Technical)
Q. What is the designation of the Inquiry Officer?
A. This question may be asked to the Inquiry Officer.
Q. Who are your witnesses?
A. I have stated their names in my statement.
Q. Who used to file the ACR of your witness?
A. Whoever was his Senior Officer.
Q. Did you not use to file the ACR of Sh. V.K. Singh?
A. You can refer to the records regarding this.
Q. Did you not have a Peon at the time?
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A. I don‟t remember but there was a Peon.
Q. Why did you not make him your witness?
A. I don‟t recall if he was present there at the time or not.
Q. As stated by you, "he had come to discuss some issues regarding the
depot". Was an appointment sought to meet you?
A. No appointment was sought as he was a staff of the depot. Therefore,
I did not consider an appointment to be necessary and decided to listen
to him and resolve the matter, if significant.
Q. What happened next?
A. I resolved whatever issues he raised.
Q. But you stated that he fought with you? Is it true?
A. After listening to my reply, which was quite satisfactory in my
opinion, he fought with me.
Q. Is there a remark in the Duty Officer register regarding this
altercation?
A. I do not know about this. Refer to the records.
Q. Is there a remark in the Security Office regarding this?
A. I had only reported to the AGM (T).
Q. Are incidents of fighting only reported to the AGM (T) or is any
action taken at the depot?
A. I considered reporting to the AGM (T) appropriate.
Q. Why did you not report to the Police?
A. I did not consider it necessary.
Q. At what time did the fight take place?
A. I have mentioned the time in my statement.
Q. Where was Harish Chandra, 9529 posted at that time?
A. Refer to the records.
Q. Were you familiar with Harish or did anyone mention his name to
you?
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A. Yes, I was familiar with him"
16. Mr. Dhan Singh, Driver during his examination in chief before
the enquiry officer deposed as under:-
(Translated by Translation Branch, High Court of Delhi)
"On reaching I.P. Headquarter, I was made to sit in room and
given a paper and pen and asked to write on it. Whatever I had
written on it, was torn down. Thereupon I continued to write
whatever he had told me. I wrote whatever he had told me
because he was my Officer and I was his Driver, I had known that
whatever he had made me to write was completely false"
17. During cross-examination by the delinquent Sh. Dhan Singh
deposed as under:-
(Translated by Translation Branch, High Court of Delhi)
"Question: When you entered the room, where was the Peon?
Answer: When I entered, he was standing at the gate of the room.
Question: Whether you had brought the Depot Manager from there
by yourself or somebody else was also sitting there?
Answer: No third person was there apart from me and Depot
Manager.
Question: When you entered the room then whether the Depot
Manager was alone in the room or somebody else was also present
in the room?
Answer: The Depot Manager was alone in the room.
Question: What are the threats given to you while you were made
to write the statement?
18. Sh. V.K. Singh, Assistant Accounts Officer's deposition before
the enquiry officer reads as under:-
(Translated by Translation Branch, High Court of Delhi)
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"On 10.10.1983, at about 16.30 Hrs., I was present at the office of
Sh K.K. Berry, Depot Manager for official work. Meanwhile, three
employees entered the office of Sh. K.K. Berry, Depot Manager.
The Depot Manager asked them for the reason of their presence
and for what work they had come. The three employees told that
they had to talk to me. On this, the Depot Manager asked them as
to what the matter was. Thereupon they told that the duty of the
Drivers at workshop should be according to seniority and a lot of
damage is shown in the name Drivers. On this Sh. K.K. Berry
replied that if heavy damage is made on somebody, he may appeal
to the Higher Authority. The applications of Drivers and
Conductors are dismissed. Whereupon Sh. K.K. Berry said that
"the application which are filed late, are automatically dismissed
as the absence in the Depot is increasing." Thereupon, the three
employees stated that you did not want to do any work for our
Union. We will see you." And while saying this, they, the three,
started beating him. I immediately left my seat and tried to
extricate them and they ran from the room at once. The Matador
Driver Dhan Singh, came there to put signatures on his Log Book.
I asked him as to who those three employees were who had
quarreled there. At which, he disclosed that those employees were
Sh. Harish Chandra, Conductor, B.No. 9829, Sh. Mahendra Singh,
Driver, B.No. 7834 and Sh. Dharamvir, Driver, B.No. 6865. I do
not wish to say anything else."
19. Sh. V.K. Singh, Assistant Accounts Officer deposition before
the learned Labour Court reads as under:-
"I have filed my affidavit Ex. MW2/A in support of my evidence. It
bears my .signatures at point A and B. I rely on documents Ex -
MW2/2 and Photostat copy of statement of Shri V.K. Singh Asstt.
Accounts Officer is Ex MW2/1.
XXXX by AR for the workman
It is correct that the designation of then Depot Manager Shri K.K.
Berry was higher than mine and I was working under him
administrative control. I do not know whether any police report
was made regarding this incident. I had come to the room of Depot
Manager to discuss an account problem. It is incorrect to suggest
that I was not present therein the room of Depot Manager at that
time. It is wrong to suggest that I made the report due to the
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pressure of Shri K.K. Berry under whom I was working. I do not
know whether there is any remark regarding this incident in the
security register. Filing of police report and giving remark in the
security register is an administrative matter. It is taken care by the
Depot Manager. I had given the report of this incident toAGMD
and CMD in Headquarter. It is wrong to suggest that the said
incident did not takeplace and that I had made a false report
under the influence of Shri K.K. Berry. It is wrong to suggest that
a wrong report is made because the workman is the vice president
of the Union. It is correct that I had known the workman Shri
Harish Chander before this incident had happened. It is wrong to
suggest that I am deposing falsely."
20. Mr. V.K Singh, Assistant Account officer was not produced
before the Enquiry Officer. Mr. K.K Berry, Depot Manager was
not produced before the learned Labour Court. Learned Labour
Courtheld that by not producing these Witnesses, the
Management/DTC has trimmed down the chances of the
Workman to prove his innocence by cross-examining these two
witnesses. However, this Court examined the proceedings before
the Enquiry Officer in detail. It appears that the Enquiry Officer
has acceded to all the requests made by the delinquent. On
various occasions adjournment have been sought by the
delinquent on one pretext or the other and the requests of the
delinquent have been acceded to by the Enquiry Officer.
a. On 04.06.1986, the delinquent demanded that the enquiry
proceeding be conducted in Hindi which was acceded to and the
enquiry was adjourned to 03.09.1986.
b. On 03.09.1986, he again sought an adjournment on the ground
that he has not brought his colleague and the enquiry was
adjourned to 07.05.1987.
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c. On 07.051987, the delinquent failed to appear before the enquiry
officer and the enquiry was adjourned after recording of
evidence of Sh. K. K. Berry, Depot Manager and the delinquent
was intimidated about the next date of enquiry vide letter dated
27.04.1987.
d. On 01.06.1987, when the delinquent was asked to make his
deposition, he refused and demanded for cross-examination of
Sh. K.K. Berry, Depot Manger which was acceded to and the
enquiry was adjourned.
e. On 27.07.1987, the delinquent cross-examined Sh. K.K. Berry,
Depot Manager and the enquiry was re-notified.
f. On 08.09.1987, the delinquent failed to appear despite being
informed vide letter dated 27.08.1987 which was duly served
upon the delinquent and on that date, statement of Sh. V.K.
Singh, Assistant Accounts Officer was recorded.
g. Vide letter dated 10.09.1987, the delinquent was notified about
the next date of hearing which was duly served upon him but he
failed to appear.
h. He was again called to appear before the Enquiry Officer on
06.11.1987 but he did not appear and moved an application for
adjournment citing the ill health of his colleague.
(The excuse of ill health of the colleague of the delinquent was
found to be untrue by the Depot Manager, Sarojini Nagar which
was recorded in the proceedings.)
i. On 20.11.1987, the delinquent appeared and sought the presence
of Sh. V.K. Singh, Assistant Accounts Officer which was
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already rejected by the Enquiry Officer and hence he was asked
to submit his final statement. The delinquent again sought time
and the enquiry was adjourned.
j. On 02.12.1987, the delinquent produced Mr. Dhan Singh, Driver
in his defense and cross-examined him after recording of his
examination-in-chief. The final statement of Mr. Harish
Chander was also recorded on that date.
21. It is evident from the enquiry records that Sh. K. K. Berry,
Depot Manager deposed before the Enquiry Officer and the
delinquent has cross-examined Sh. K.K.Berry, Depot Manager.
On the day of recording evidence of Sh. V. K. Singh, Assistant
Accounts Officer, Labour Welfare Officer was present and the
evidence of Sh. V.K. Singh has been recorded in his presence.
However, the delinquent in order to delay the proceedings did
not appear before the learned Labour Court on the date of
recording the statement of Mr. V.K. Singh despite him being
served with letter dated 27.08.1987. It is also evident from the
record that the Enquiry Officer came to a conclusion that the
reason for non-appearance of the delinquent on the day of
recording evidence of Sh. V. K. Singh was intentional as despite
service of notice informing him about the next date of hearing
before the Enquiry Officer, the delinquent adverted to non-
compliance of the directions passed by Enquiry Officer.
22. It is imperative to observe that the testimony of Mr. V.K. Singh
was recorded in the presence of Labour Welfare Officer. Hence
the allegation of the delinquent with regard to non-adherence of
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principles of natural justice does not hold ground. No negative
hypothesis can be casted with regard to enquiry proceedings
being prejudicial to the cause of the delinquent as the same has
been supervised by the Labour Welfare Officer who is a neutral
officer. Moreover, the record further depicts that the delinquent
was delaying the departmental proceedings on one pretext or the
other. Moreover, the learned Labour Court failed to take into
consideration the testimony of Sh. V.K. Singh, Assistant
Accounts Officer was recorded by the Labour Court and he was
duly cross-examined by the Authorized Representative of the
delinquent. The learned Labour Court before passing the
impugned Awards ignored this crucial fact that Sh. V.K. Singh
testified before the Labour Court and was also cross-examined.
The reasoning given by the learned Labour Court with regard to
non-application of the principles of natural justice in relation to
non cross-examination of Sh. V.K. Singh before the Enquiry
Officer is untenable in law as he appeared before the learned
Labour Court and was cross-examined by the authorized
representative of the delinquent. Mr. V.K. Singh corroborated
his earlier testimonies before the learned Labour Court. As such
the observation made by the learned Labour Court with regard to
non cross-examination is perverse and arbitrary.
23. Learned counsel for the delinquent contended that Sh. K.K.
Berry, Depot Manager was not produced before the learned
Labour Court for recording his evidence. It has come on record
that during recording of evidence of witness by the learned
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Labour Court, Sh. K. K. Berry, Depot Manager got retired. The
Management/DTC has undertaken efforts to bring Sh. K. K.
Berry, Depot Manager in the witness box before the learned
Labour Court but they failed to produce him before the learned
Labour Court. An employee who has retired cannot be forced to
appear before the Court/Tribunal as a witness. In the present
case, Sh. K.K. Berry appeared before the learned Labour Court
in the case against the co-delinquent i.e. Mahinder Singh and
deposed in conformity with his statement recorded by the
Enquiry Officer. However, in the present case he showed his
inability to appear and did not depose before the learned Labour
Court. This Court is of the view that non production of the Sh.
K. K. Berry, Depot Manager shall not vitiate the enquiry
proceedings or the proceedings before the learned Labour Court
as he has already deposed before the Enquiry Officer and put to
cross-examination by the delinquent itself.
24. The statement/complaint made by Sh. K.K. Berry before the
Assistant Manager (Traffic) and also the testimony of Sh. K.K.
Berry recorded by the Enquiry Officer are corroborative and
unimpeachable with his own previous statements as well as with
the statement of other witnesses who were produced by the
Management/DTC. It is a trite law that in a domestic enquiry the
strict and sophisticated rules of evidence may not apply. The
essence of a judicial approach is impartiality and observation of
principles of natural justice. It was not a case of no evidence
before the Enquiry Officer to support his findings. The learned
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Labour Court had committed a manifest error in holding that the
enquiry proceedings were perverse. The learned Labour Court
should have subjected the testimonies of the witnesses to a
careful scrutiny in the light of other mitigating circumstances
before drawing the conclusion of setting aside the enquiry
report. As such, the observation made by the learned Labour
Court in relation to non-production of Mr. K. K. Berry, Depot in
the witness box before the learned Labour Court and also not
giving an opportunity to the delinquent to cross-examine Mr. V.
K. Singh, Assistant Accounts Officer and not following the
principles of natural justice does not hold any ground.
25. As regards reliance placed by the delinquent on the testimony of
Mr. Dhan Singh, is concerned, perusal of the aforementioned
testimony of Mr. Dhan Singh depicts that he was made to write
on a piece of paper which was torn down. During cross-
examination, he deposed that there was no other person except
Sh. K. K. Berry, Depot Manager. However, the testimony of Sh.
V. K. Singh, Assistant Accounts Officer and Sh. K.K. Berry,
Depot Manager are corroborative in nature. They both averred
on the same lines that the delinquent alongwith other two
officials entered the office of the Depot Manager and after some
discussion abused and assaulted the Depot Manager. The
delinquent has not brought any evidence proving his plea of
alibi. As per the Indian Evidence Act, the burden to prove his
innocence shifts on to the delinquent when the delinquent takes a
plea of alibi. He states that he never visited the office of Sh. K.
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K. Berry, Depot Manager but no cogent evidence has been
brought on record by the delinquent to prove that he never went
to the office of Depot Manager on the date of incident and it was
a concocted story in order to falsely implicate him in the matter.
No explanation has been rendered by Mr. Dhan Singh as to why
he did not make a complaint before the higher authorities about
engaging him in writing false statement by Sh. K. K. Berry,
Depot Manager. This Court is of the view that the conduct of the
defence witness does not inspire confidence and cannot be relied
upon ignoring the impregnable and corroborative testimony of
Mr. V. K. Singh, Assistant Account Officer and Mr. K.K. Berry,
Depot Manager. There is no reason to disbelieve the testimonies
of Mr. V. K. Singh and Mr. K. K. Berry. Accordingly, this court
cannot give any credence to the testimony of Mr. Dhan Singh.
26. It is settled principle of law that assaulting a superior officer at
workplace is un-ignorable and such indiscipline could not be
exonerated on the excuse of emotions and feeling of workmen.
In the case of Hombe Gowda Educational Trust and Anr. v.
State of Karnataka and Ors. reported as (2006) ILLJ 1004 SC,
the Hon'ble Supreme Court has held as under:-
"30. This Court has come a long way from its earlier viewpoints.
The recent trend in the decisions of this Court seek to strike a
balance between the earlier approach to the industrial relation
wherein only the interest of the workmen was sought to be
protected with the avowed object of fast industrial growth of the
country. In several decisions of this Court it has been noticed how
discipline at the workplace/industrial undertakings received a
setback. In view of the change in economic policy of the
country, it may not now be proper to allow the employees to
break the discipline with impunity. Our country is governed by
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rule of law. All actions, therefore, must be taken in accordance
with law. Law declared by this Court in terms of Article 141 of
the Constitution, as noticed in the decisions noticed supra,
categorically demonstrates that the Tribunal would not normally
interfere with the quantum of punishment imposed by the
employers unless an appropriate case is made out therefore....
."
(emphasis supplied)
27. Similarly in the case of The Management of Tournamulla
Estate v. Workmen reported as (1973) IILLJ 241 SC, the
Hon'ble Supreme Court while considering the denial of gratuity
to a dismissed workmen held that:-
"If a workman is guilty of a serious misconduct such as acts of
violence against the management or disorderly behavior in or
near the place of employment, which though not directly
causing damage, is conducive to grave indiscipline, then his
gratuity can be forfeited in its entirety."
(emphasis supplied)
28. From the facts narrated hereinabove and the ratio laid down by
Hon'ble Supreme Court, this Court is of the view that even
under the gravest of provocation, no employee can be allowed to
use abusive language or assault its superior. The courts cannot
allow employees to break the discipline with impunity. The
learned Labour Court by condoning an act of physical violence
has undermined the discipline in the organization. In the above
factual backdrop, it can never be said that the learned Labour
Court could have exercised its authority to interfere with the
punishment of dismissal. Substituting the order of dismissal in
such a case by granting reinstatement with 50% back wages, in
view of this Court is wholly disproportionate to the gravity of
misconduct and is unsupportable and unsustainable.
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29. Accordingly, the Awards dated 12.10.2001 and 20.05.2002
passed by the learned Labour Court are hereby set aside. The
appeal filed by the DTC is allowed and appeal filed by Sh.
Harish Chander is dismissed alongwith pending applications.
30. Since, Sh. Harish Chander has attained the age of
superannuation. It is further clarified that the proceedings under
Section 17-B of the Industrial Disputes Act, 1947 are
independent proceedings and not dependent upon the final order
passed in the main proceedings. Hence, in view of the law laid
down by the Hon'ble Supreme Court in Dilip Mani Dubey Vs
M/s SIEL Limited & Anr. reported as 2019(4) SCC 534, it is
clarified that the payment already made by the
Petitioner/Management to the Respondent/Workman under
Section 17-B of the Industrial Disputes Act, 1947 is not
recoverable.
31. Parties to bear their own costs.
GAURANG KANTH, J.
SEPTEMBER 27, 2022
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