Delhi District Court
Court In Ramesh Chand vs Dtc In Wp No. 14148 Of 2009 Dd : on 7 April, 2010
BEFORE THE COURT OF SH A.S. JAYACHANDRA
PO : LABOUR COURT : KKD : DELHI
DATE OF REFERENCE : 17.09.1996
DATE OF RECEIPT : 23.04.1996
Before this P.O 16.12.2008
ARGUMENTS CONCLUDED ON : 12.03.2010
AWARD PASSED ON : 07.04.2010
ID No. 256/08/96
Unique case no. 02402C0002811996
IN THE MATTER OF : -
Delhi Transport Corporation
through its Chairman-cum-Managing Director
IP state, New Delhi .........Management
versus
Sh. Ram Saran
B. NO. 22634
C/o Sh. B.L. Sharma
3612, Mori Gate
Delhi ............Workman
AWARD
1.The Govt. of NCT of Delhi has referred this dispute bearing reference number F.24(1250)/96-Lab./21521-26 dated 17.09.1996, in the above matter and the terms of reference is as under :
"Whether the removal of Sh. Ram Saran, from service 1/11 by the management is illegal and/or unjustified and if so, to what relief is he entitled and what directions are necessary in this respect?"
2. Case of the Workman: Workman contended that he was appointed with the management as a conductor in the year 1984. He was confirmed after probation on 12.10.1996. On 21.12.1992, he was served with a charge sheet. It was alleged that on 01.12.92, while he was on duty, four passengers were found without tickets in bus number 9068 from Delhi to Bullandshahar, checked at Kotkapul. Workman denied the allegations stating that no statement of passengers was recorded in the presence of the workman. Enquiry was conducted by one Navtej Singh Duggal. Neither the list of witnesses nor the list of documents were supplied to the workman. The workman was not given an opportunity to defend himself. It is further contended by the workman that on the basis of enquiry, the depot Manager passed the order of removal on 03.10.1994, which is invalid and illegal since the depot Manager had no powers. Hence, this reference. Workman is unemployed since removal. Therefore, he seeks reinstatement along with back wages and attendant benefits.
3. Case of the Management : Management filed the reply to the claim statement. It is contended that when the workman 2/11 was on duty in bus number 9068, the bus was checked by the checking staff and the checking staff detected a group of four passengers traveling without tickets. Workman admitted his fault. There is no perversity in the findings of enquiry. Under the circumstances, the management had prayed for the dismissal of the claim, justifying the order of removal passed by it.
4. Rejoinder is filed by the workman. Based on the pleadings, my Ld. Predecessor had framed the following two issues on 29.10.1999 :
a) Whether the management has not conducted a fair and proper enquiry in accordance with the principles of natural justice ?
b) As per terms of reference.
5. Evidence led on enquiry issue : The workman examined himself on enquiry issue and closed the side. There is no management evidence on enquiry issue, since the management has confronted all the documents to the workman pertaining to the enquiry.
6. Findings on Enquiry Issue: After hearing both the sides, I had decided the enquiry issue and held that the enquiry is bad in law by an order dated 15.07.2009. An opportunity was 3/11 granted for the management to lead the evidence on misconduct.
7. Evidence on merits: The management had examined MW1 Om Prakash and MW 2 V.K. Gautam, to prove their case on merits. Rebuttal evidence was closed since the workman was not examined despite opportunities.
8. Contention of the parties: On the conclusion of the evidence, I have head the Ld. AR on both the sides. Mr. G.S. Charaya, appearing for the workman submitted that the order of removal is highly unjustified for the reasons that the past record of the workman is very clean. In the written arguments certain points are raised by the workman. It is submitted that the evidence on merits do not support the misconduct as the cash was not checked.
It is further argued that the workman protested the manner and high handedness of the checking staff in implicating him by writing a protest letter within 72 hours. It is also argued that the checking staff themselves had taken Rs. 16/- from the passengers and issued them the tickets. Workman has not committed any misconduct.
9. On the other hand in the written arguments filed by the Ld. AR for the management, it is contended that the workman having admitted the interception of the bus by the checking staff, could not give any sufficient reason as to how he was challaned. 4/11 Further management argues that surrendering the unpunched tickets itself is sufficient to hold the misconduct. It was argued that this is not a case where the workman not issuing tickets after collecting fare but it is only a case where the conductor intentionally had not asked the passengers for tickets and not completing the way voucher. It was further argued by the management that there were many adverse entries in the service book of the workman. Therefore it was argued that the claim of the workman be dismissed.
10. Coming to the charges against the workman as per the charge sheet at Ex. WW 1/M-3, the first charge is that there were four passengers without tickets. Second charge is that the passengers informed that they were traveling from Dadri to Sikandrabad and that the conductor had never asked those passengers to purchase the tickets and the passengers were not in a position to identify the conductor. It is alleged in the charge sheet that the passengers were confronted to the workman and a sum of Rs. 16/- was made to be paid to the conductor and the conductor admitting his fault has given the unpunched tickets bearing no. 000/68816 to 68819. The third charge is that the workman had kept the way voucher in complete with an intention to cheat the corporation. The charge sheet further says that the above acts 5/11 amounted to misconduct as per 19 (b) (h) & (m) of the Conduct Rules under the standing orders.
11. The management examined MW-1 Om Prakash who is the reporter. He deposed that he along with Raghunath had checked the bus. He has spoken to about the charges. In the cross examination he admits that they do make challans against the passengers traveling without tickets. He further admits that there is no statement of the passengers. Further in the cross examination MW-1 admitted that the report was made in the office and in the absence of the conductor.
12. MW-2 V.K. Gautam in his affidavit deposed that he is the disciplinary authority and he found that the way voucher was incomplete as per the report received by him. The earlier Depot Manager Yash Pal Minocha ordered for the enquiry. MW-2 issued the show cause notice of removal.
13. In the cross examination he admits that he has not passed the final order. He denies a suggestion that he did not read the file while issuing the show cause notice.
14. After considering the entire evidence, it becomes very difficult to agree with the report and the evidence of MW-1 Om Prakash that the passengers were traveling without tickets for the 6/11 following reasons:-
a) The checking team did not record the statement of passengers. According to MW-1, the passengers refused. The same is found in the cross examination.
b) If the passengers had refused to give the statement atleast the checking team should have noted down the names of those passengers and their addresses. The same was not done.
c) The checking team comprised of MW-2 and Raghunath. The another witness Raghunath having not been
examined, the evidence of MW-2 remains un-corroborated.
d) MW-1 had produced the incomplete way voucher which is at Ex. MW 1/ 4. The charge is that the same was left incomplete with an intention to cheat the corporation.
e) The intention to cheat the corporation is not coupled with the overt acts. If the conductor had done something in pursuant to the way voucher, it could have had the effect of an attempt to show the intention of cheating the corporation. In the absence of such overt acts, the mere allegation of an intention to cheat the corporation can not be treated as misconduct.
f) Admittedly the management has not suffered any loss in this case since the management admits that this not a case of 7/11 cheating.
15. In view of the above, it was expected of the management to have considered the entire aspect in a positive sense. It is to be kept in mind that the standing orders provide for treating misconduct under Rule 19. The relevant provisions are as under:-
a) Wilful insubordination or disobedience by an employee individually or in combination with others, to any official order of a superior employee.
b) Theft, fraud or dishonesty in connection with the authority business or property. Authority means Delhi road Transport authority.
h) Habitual negligence of duties and lack of interest in the authority's work.
m) Any other activity not specifically covered above, but which is prima-facie detrimental to the interest of the organization.
16. The available evidence does not fall under Rule 19 (b) since this rule deals with theft fraud or dishonesty. 19 (h) deals with habitual negligence towards duty and lack of interest in the authority's work. In order to find the misconduct under this head with the evidence, I do not find any material for MW-1 did not state 8/11 in his evidence as to the details of not completing the way voucher like the destination points and the stage by which the way vouchers ought to have been completed to the particular extent. Therefore, I do not find any misconduct under 19(h). Further the evidence falls short to impute the lack of interest on the part of the workman.
17. Rule 19 (m) deals with any other activity not specifically covered above but which prima-facie detrimental to the interest of the organization. I do not find that mere non issuance of tickets that too not proved on record could be held as an act detrimental to the interest of the corporation. Suffice it to say that the evidence led by the management does not call for invoking misconduct under Rule 19 (b), (h) and (m) of the standing orders. Thus the workman is entitled for reinstatement.
18. I have considered the grant of back wages in this case. The workman in his original statement of claim had stated that he is unemployed from the date of termination. He has not stated that he made efforts to secure alternate employment. I have considered the past record of the workman in this case for grant of the back wages which is at Ex. MW 2/1. He was warned once in the year 1988. A major penalty of stoppage of next two increments is passed against him in the year 1990. He was censured and also 9/11 one more major penalty of stoppage of next increment twice in the year 1991 is seen. The past record is not favourable to grant him the back wages. Furthermore, in the recent ruling of our Hon'ble High Court in Ramesh Chand v/s DTC in WP No. 14148 of 2009 DD :
23.02.2010, held that "therefore, there as a long gap of 13 years and due to this gap the petitioner should have led a positive evidence to plead and prove that he was not gainfully employed after the date of his termination. In the absence of any evidence led by the petitioner, I do not find that the finding given by the Ld. Labur Court denying the back wages to the petitioner can be held to be perverse or illegal.' The grant of back wages is a matter of mere discretion. I am also aware of the rulings in 2009 LLR page no. 1, UP State Electricity Board Vs. Laxmi Kant Gupta and Rajasthan Lalit Kala Academy Vs. Radhey Shyam , 2008-III, LLJ 562, Talwara Co-op. Credit & Service Society Ltd. vs. S. Kumar 2009-I-LLJ 328 SC. in 2009 LLR page no. 1, UP State Electricity Board Vs. Laxmi Kant Gupta and Rajasthan Lalit Kala Academy Vs. Radhey Shyam , 2008-III, LLJ 562, Talwara Co-op. Credit & Service Society Ltd. vs. S. Kumar 2009-I-LLJ 328 SC. In the light of the above rulings and more particularly in this case, I am of 10/11 the opinion that the workman is not eligible for back wages. At the same time, I find that the workman is eligible to litigation expenses which I calculate at Rs. 75,000/- (Rs. Seventy five thousands only).
Thus, I pass the following award :
AWARD The claim of the workman is allowed. The management is directed to reinstate the workman with continuity of services for the purposes of seniority and pension, gratuity and other benefits. The management is further directed to pay a sum of Rs. 75,000/- (Rs. Seventy five thousands only) to the workman as litigation expenses. The workman be reinstated within 30 days after publication of this award. Back wages are not granted. If the amount is not paid in time as above the workman is eligible to recover the same along with interest @ 18% per annum from the date of award till realization.
Reference is answered accordingly.
Let a copy of this award be sent to the appropriate government for publication.
File be consigned to RR.
07th April, 2010 (A.S. JAYACHANDRA) PO : LABOUR COURT - XVII, DELHI 11/11