Delhi District Court
Prudent Enough To Have Verified The Cash ... vs . Anoop Singh, on 26 April, 2010
BEFORE THE COURT OF SH A.S. JAYACHANDRA
PO : LABOUR COURT : KKD : DELHI
ID No. 287/08/96
Unique case no. 02402C0006431996
DATE OF REFERENCE : 17.06.96
DATE OF RECEIPT : 25.07.96
FIRST DATE BEFORE THIS COURT : 03.12.08
ORDERS ON ENQUIRY ISSUE : 02.06.09
ARGUMENTS CONCLUDED : 26.03.2010
DATE OF AWARD : 26.04.2010
IN THE MATTER OF :
Delhi Transport Corporation
Through its Chairman
IP Estate
New Delhi-110002 ...........Management
versus
Azad Singh
B. No. 16113
S/o Puranmal
R/o Vill. & PO Mandaura, the. & Distt. Sonepat
Haryana ...........Workman
AWARD
1.This reference dated 17.06.1996, was received from the government vide No. F.24 (1641)/96-Lab./32390-95 is as under :
Whether the removal of Sh. Azad Singh, from service is illegal and / or unjustified and if so, to what relief is he entitled and what directions are 1/9 necessary in this respect ?
2. CASE OF THE WORKMAN : The case of the workman as per the claim statement is that he was employed as a conductor in the year 1982. On 12.11.1992, he was served with a charge sheet for not issuing tickets to the passengers after realising the money and also for having refused to sign the statement of passengers written on a plain paper. The charges were denied by the workman. However, the enquiry was ordered despite an explanation by the workman. The enquiry was not conducted in accordance with the principles of natural justice. No proper opportunity was given to him for cross-examining the passengers. The enquiry findings are perverse. There was no evidence before the enquiry to have arrived at the findings. The statement of passengers who were not subjected to cross- examination by the workman was relied and hence the same is a lopsided enquiry. Hence, he seeks reinstatement with full back wages and other consequential benefits on the ground that he is unemployed since the date of his illegal termination. The punishment accorded to the workman is highly disproportionate and uncalled for since there is no misconduct by the workman.
3. CASE OF THE MANAGEMENT : The management filed the written statement. It contended that the workman was guilty of cheating during his course of employment. Management replying on merits had 2/9 contended that he was appointed as a RC conductor w.e.f. 03.07.1982 by the Assistant Personnel Manager and brought on a monthly rate w.e.f. 03.01.1983. The enquiry was conducted as per the principles of natural justice, after issuing the charge sheet. The charges were that the conductor did not issue the tickets after collecting the fare from the passengers. Further the conductor refused to sign the statement of passengers. The other allegations made in the claim statement are denied. Management contends that it served all the copies. Management justifies the order of removal. The conductor initially had admitted his guilt by handing over the unpunched tickets and therefore, there was no necessity to check the cash. The conductor was given all the opportunities and the principles of natural justice have been clearly followed. Rejoinder was filed by the workman to the WS.
4. Based on the pleadings my Ld. Predecessor had framed the following issues on 10.12.1997:
1) Whether the domestic enquiry is not valid, fair and proper ?
2) Whether the removal of the workman from service is illegal and unjustified ?
5. On the point of preliminary issue of enquiry, workman and the management had examined one witness each on their side and closed their side. I have heard the arguments on both the sides. By a separate order 3/9 dated 02.06.09, the enquiry issue is held in favour of the workman and against the management.
8. Management was given an opportunity to lead evidence on merits. On merits management examined MW-1 & MW -2 and closed its side. In rebuttal workman examined himself and closed his side. Heard the arguments. With the available oral and documentary evidence, I proceed to answer the issues as under:-
ISSUE NO. 1.
8. By an order dated 02.06.09, I have held the issue no. 1 in favour of the workman and against the management.
ISSUE NO. 2.
9. The charges against the workman which is the basis to the dismissal is necessary to be kept in mind before looking into the evidence. The charges as per Ex. WW 1/M-2 are are that on 28.10.92 when the workman was on duty in bus no. 9245, Ex. Delhi to Panipat, the same was checked near Gannaur. The checking staff found that one passenger was found ticketless getting down from the bus, who informed that he paid Rs. 3/- from Murthal to Gannaur to the conductor and the workman has not given ticket to him. The passenger was confronted to the workman. Admitting the guilt, the workman has handed over one unpunched ticket bearing no. 63085.
4/9
10. To substantiate the above charge, one Chander Prakash MW-2 was examined on merits. He is not the part of the checking staff. MW-2 Chander Prakash is the disciplinary authority.
11. One witness by name Sant Lal was examined who was one of the checking staff. He deposed that in the bus checked by MW-3 Sant Lal, the workman was the conductor and he found one passenger alighting without ticket. The passenger was confronted to the conductor and the conductor gave the unpunched ticket to MW-3. It is further testified that the passenger's statement was recorded by him which is at Ex. MW 1/M and the unpunched tickets at Ex. MW 3/1. I have gone through the statement of passenger and the cross examination of MW-3. In the cross examination MW-3 admits that one Samunder Singh who was also one of the checking staff had verified the passenger. To a suggestion that there was no passenger without ticket, MW-3 denied the same. The unpunched ticket is at Ex. MW 3/1.
12. Though the statement of the passenger is not discredited in the cross examination, the unpunched ticket bearing no. 571 is produced by the management. According to the charge sheet, the number of unpunched ticket collected is 571-63085. The number 63085 is not seen except the number 571. It seems a half counter foil. A suggestion was made to MW-3 that the checking staff themselves had taken away the ticket from the hand 5/9 block of the conductor which was denied.
13. In the rebuttal the workman testifies in his affidavit that the challan is false and he made a representation on 30.10.92, the same is at mark-W'a'. According to him the cash was not checked and there was no independent witness. The checking staff themselves had taken the unpunched tickets and the workman never admitted his guilt. According to the conductor, he was issuing the tickets. The checking staff entered the bus at Kurar about 2- 2 ½ km from Murthal. There was no ticketless passenger in his bus. The workman further deposed that he remained unemployed from the date of termination. In the cross examination the workman had admitted his signature on the passengers statement but under force. It is further found that he made a complaint within 72 hours.
14. From the evidence adduced, the statement of passenger is not discredited. The signature of the conductor found on the statement is stated to have been obtained under force, for which the conductor alleges that he made a complaint against the checking staff. The said protest is dated 30.10.92. According to him he was new on the route and he was issuing the tickets after verifying the fare table. Mark -W'a' shows that the passenger was ticket-less who got down. Workman contended within 72 hours of checking he made a complaint and that the passenger alighting did not pay him the money. Though the statement of the passenger is not 6/9 discredited and the conductor having protested the challaning him, the only point that crops up is whether the passenger alighting from the bus had paid the fare to the conductor or not. In such circumstances it would have been prudent enough to have verified the cash as held in DTC vs. Anoop Singh, 133 (2006) DLT 148. In the absence, the rebuttal evidence of the workman that he was still in the process of issuing tickets and that he issued tickets to all such passengers who paid fare to him is also seemingly possible. Therefore, the charge that the workman has collected Rs. 3/- and intentionally did not issue the tickets to the passenger is not proved and the charge remains doubtful. Consequently the workman is entitled to be reinstated.
15. I have considered the grant of back wages in this case. Though the workman had pleaded that he remained unemployed, he did not state in his claim statement that despite best efforts he remained so. He simply stated that he is unemployed. It is elicited in the cross examination that he worked in a General Store and he is earning about Rs. 800/- to 1,000/- per month. In view of the above it can not be said that the workman is only earning Rs. 1,000/- per month but must be reasonably earning a fare sum after the cessation of service. Granting of back wages is purely a matter discretion which is to exercised dependent on several factors including the nature of employment, past record, duration of service, etc. Having gone through the 7/9 law as reported 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, I have also considered the past record. The workman was once given a penalty of stopping of next two increments for issuing lesser denomination of tickets. Therefore it can not be said that the past record of the workman is clear. Furthermore, in the recent ruling of our 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.'
16. After having given careful thought to the entire facts of the case, I am of the opinion that the workman is not entitled for back wages but litigation expenses of Rs. 20,000/- ( Rs. Twenty thousands only ) payable by the management. Accordingly, I pass the following award :-
AWARD The removal of the workman from service is held as unjustified. Consequently the management is directed to reinstate the workman with 8/9 continuity of service in the same post. No back wages are awarded. The management shall pay a sum of Rs. 20,000/- ( Rs. Twenty thousands only) to the workman towards litigation expenses.
Reference is answered accordingly. Let requisite number of copies of this award be sent to the appropriate government for publication.
File be consigned to record room.
26th April, 2010 (A.S. JAYACHANDRA) POLC/KKD/DELHI/XVII 9/9