Delhi District Court
Sh. Mehar Singh (No. 2252) vs Delhi Transport Corporation on 14 October, 2016
IN THE COURT OF SHRI UMED SINGH GREWAL
POLCXVII ROOM NO. 22 :KKD COURTS: DELHI
LC 1934/16 (Old No. DID 18/10).
Unique ID No. 02402C0044692010
Sh. Mehar Singh (No. 2252)
S/o Sh. Babu Ram,
R/o B178, New No. 326, Near Bijli Ghar,
New Ashok Nagar, Delhi110096
............. Workman
Versus
Delhi Transport Corporation
Through Regional Manager East,
Inderprastha Estate,
New Delhi.
..............Management
DATE OF INSTITUTION : 15.02.2010.
DATE ON WHICH AWARD RESERVED : 14.10.2016.
DATE ON WHICH AWARD PASSED : 14.10.2016.
A W A R D :
1. This is a direct industrial dispute filed by the
workman under Section 10(4A) of the Industrial Disputes Act,
1947 (hereinafter referred as "the Act") for reinstatement with
continuity of service and full back wages.
2. Claimant's case is that he had joined the management
as "conductor" on 04.03.1986. On 14.09.1992, his duty was on
LC 1934/16 1/18
Bus No. 8754 plying on route no. 319 from Noida to Shahdara.
The bus was checked by checking staff and he was charge sheeted
wrongly on the ground that he had not given ticket to one
passenger after collecting due fare from him and that he was in
possession of excess cash of Rs.3.20. The raiding team members
compelled him to accept the guilt and to issue unpunched ticket
no. 90350630. He was forced to sign the statement of passenger
in token of acceptance of guilt. He was threatened by the checking
staff that if he did not obey their order he would have to face dire
consequences. He was suspended on 16.09.1992 pending
domestic enquiry. Chargesheet dated 21.09.1992 under Rule 19
(b), (f) and (h) was served upon him which he replied vide letter
dated 30.09.1992. The departmental enquiry was conducted by a
biased man as he did not follow the principles of natural justice.
He was not given proper opportunity to contest the case. The
passenger was not examined before the Enquiry Officer. He was
not given opportunity to crossexamine the material witnesses.
Preliminary investigation report was not supplied to him. He was
not given opportunity to file his response to the preliminary
investigation report. List of documents and witnesses was not
supplied to him. The enquiry report is perverse. The Depot
Manager issued a show cause notice dated 20.05.1993 for the
proposed punishment of termination of service. His reply to the
LC 1934/16 2/18
show cause notice was not properly considered and he was
removed from job vide order dated 03.08.1994. The management
had filed a petition U/s 33 (2) (b) of Industrial Disputes Act, 1947
for seeking approval of the Court to terminate his services. A
preliminary issue regarding genuineness of enquiry was framed
which was decided in his favour by POIT vide order dated
24.08.2002 and the approval application was finally dismissed on
29.03.2003 against which the management had filed WP (C)
578/2004 which was allowed by the Hon'ble High Court of Delhi
with his consent.
3. Written statement is to the effect that claimant was
appointed as Retainer Crew Conductor on 14.03.1985 and he was
brought on monthly rates w.e.f 14.03.1986. He had not issued
ticket to one passenger after taking due fare of one rupee from him
on 14.09.1992 when his duty was on Bus No. 8754. The said
passenger had boarded the bus from Atta Crossing for Shahdara.
The bus was checked by the raiding team members at 11.07 a.m in
Sector 10. The claimant was found in possession of excess cash of
Rs. 3.20 (Rs. Three and Twenty Paisa). It is further mentioned that
statement of the passenger was recorded in the presence of the
claimant which was signed by him in token of admission of guilt.
He handed over unpunched ticket of Rs. 1/ to the checking staff.
He was challaned and the same was signed by the claimant. The
LC 1934/16 3/18
enquiry was conducted as per the principles of natural justice. The
claimant refused to take assistance of coworker. He had cross
examined all four witnesses produced by the management before
the Enquiry Officer. He was asked whether he wanted to examine
any witness in defence or to produce any document but he refused.
He was found guilty by the Enquiry Officer and he was issued a
show cause notice. Ultimately he was removed from job. The
management had filed an approval application which was
dismissed by Ld POIT but the same was allowed by the Hon'ble
High Court of Delhi.
4. Following issues were framed on 10.09.2010:
(a) Whether the workman proves that the enquiry conducted
against him was not fair, valid and proper?
(b) Whether the termination pleaded is justified in the
circumstances?
(c) What relief.
5. In order to get declared the enquiry proceeding
invalid, the claimant tendered his affidavit in evidence Ex
WW1/A mentioning all the facts stated in statement of claim. He
relief upon following documents:
(i) Mark W1 the statement of passenger.
(ii) Mark W2 is copy of challan.
(iii) Mark W3 is copy of Janch report.
LC 1934/16 4/18
(iv) Mark W4 is copy of way bill.
(v) Mark W5 is suspension letter dated 16.09.1992.
(vi) Mark W6 is copy of chargesheet.
(vii) Mark W7 ( Ex WW1/M1) is reply dated 30.09.2002 of the
claimant.
(viii) Mark W8 is copy of showcause notice dated 20.05.1993.
(ix) Mark W9 is reply dated 17.06.1994.
(x) Mark W10 is removal from service order.
(xi) Mark W11 is copy of application U/s 33 (2) (b) of I.D.
Act, 1947 vide which the management had sought an
approval of the court to terminate the service of the
claimant.
(xii) Mark W12 is order dated 24.08.1992 of the then POITII
Sh. P.S.Teji vide which enquiry issued framed in approval
application was decided in favour of claimant.
(xiii) Mark W13 is order dated 29.03.2003 of the then POITII
Sh. P.S.Teji vide which approval application was rejected.
6. The management examined its Enquiry Officer Mr.
Vrajendra Trivedi as MW1. He deposed that chargesheet dated
21.09.1992 was issued to the claimant due to non issuance of ticket
to one passenger after collecting due fare of Rs.1/ from him. His
reply was not satisfactory and hence he was given the job of
probing the charge against him. The enquiry was initiated and
concluded on 25.01.1993 and 28.01.1993 respectively. First of all,
he had asked the claimant whether he wanted assistance of co
LC 1934/16 5/18
worker but he spurned the offer. He recorded statements of TI
Roop Chand, TI Roshan Lal and Supervisor Hari Singh and ATI
Rampal in the presence of claimant and all witnesses were cross
examined by him. In the last, he was asked whether he wanted to
produce any witness or documents in defence but he denied. The
second day of enquiry was 28.01.1993 and on that day the
claimant was told and that the passenger could not appear due to
lack of complete address. The claimant himself refused to bring
any witness in defence and submitted his final statement. The
enquiry was closed on the same day. On the basis of material on
record and statement of the witnesses, MW1 deposed, he held
claimant guilty. He relied upon following documents:
(i) Ex. MW1/1 is the copy of chargesheet.
(ii) Ex. MW1/2 are the copies of enquiry proceedings along
with final statement.
(iii) Ex. MW1/3 is the copy of findings / report of Enquiry
Officer.
(iv) Ex. MW1/4 is the copy of challan.
(v) Ex. MW1/5 is the copy of passenger statement which is
recorded on the back of challan.
(vi) Ex. MW1/6 is the copy of report of checking staff.
(vii)Ex. MW1/7 is the copy of unpunched tickets.
(viii) Ex. MW1/8 is the copy of waybill.
LC 1934/16 6/18
(ix) Ex. MW1/9 is the copy of reply to chargesheet.
Issue No. a:
7. This issue has already been decided in favour of
management and against claimant by this court vide order dated
06.09.2016 by holding that the Enquiry Officer had not violated
any principle of natural justice and that his report is not suffering
from any infirmity.
Issue No .b:
8. Ld. ARW argued that the claimant was wrongly
chargesheeted on the ground that he had not given ticket to one
passenger after collecting due fare from him and that he was in
possession of excess cash of Rs.3.20. He next submitted that the
raiding team members compelled him to accept the guilt and to
issue unpunched ticket. He was forced to sign the statement of
passenger. He next submitted that the claimant is the sole bread
earner of his family. He has to maintain wife, two sons of 25 and
16 years and father of 86 years. His previous service record is neat
and clean. He had served management for 8 years.
On the other hand, Ld. ARM argued that claimant was
appointed as Retainer Crew Conductor on 14.03.1985 and he was
brought on monthly rates w.e.f. 14.03.1986. He had not issued
ticket to one passenger despite taking due fare of one rupee from
LC 1934/16 7/18
him on 14.09.1992. At that time, his duty was on bus no. 8754
which was checked at 11.07 a.m. in Sector10. Due to that
misconduct, challan Ex.MW1/4 was prepared and statement
Ex.MW1/5 of passenger was recorded to the effect that despite
collecting due fare from him, the claimant had not issued ticket.
He further submitted that unpunched tickets Ex.MW1/7 were
handed over to raiding team members by claimant as token of
confession of the guilt. The management has proved the
misconduct of the claimant with the help of above documents. He
lastly argued that amount of misappropriation is totally irrelevant
to decide the punishment as even a small amount can make a man
dishonest. He had gloomy service record.
9. In Jantha Bazar (South Kanara Central Co
operative Wholesale Stores Ltd.) And Others Vs. The Secretary,
Sahakari Noukara Sangh and Others, (2000) 7 SCC 517, the
allegations against the workmen were of breach of trust and
misappropriation and following was held by the Apex Court :
"6.... Once act of misappropriation is
proved, may be for a small or large
amount, there is no question of showing
uncalled for sympathy and reinstating
the employees in service. Law on this
point is well settled. (Re.: Municipal
Committee, Bahadurgarh v. Krishnan
Behari and Ors.) In U.P. State Road
LC 1934/16 8/18
Transport Corporation Vs. Basudeo
Chaudhary and Anr. this Court has set
aside the judgment passed by the High
Court in a case where a conductor
serving with the U.P. State Road
Transport Corporation was removed
from service on the ground that alleged
misconduct of the conductor was attempt
to cause loss of Rs.65/ to the
Corporation by issuing tickets to 23
passengers for a sum of Rs.2.35 but
recovering @ Rs.5.35 per head and also
by making entry in the waybill as having
received the amount of Rs.2.35, which
figure was subsequently altered to
Rs.2.85. The Court held that it was not
possible to say that Corporation
removing the conductor from service has
imposed a punishment which is
disproportionate to his misconduct.
Similarly in Punjab Diary Development
Corporation Ltd. and Anr. v. Kala Singh
and Ors., this Court considered the case
of a workman who was working as a
Diary HelpercumCleaner for collecting
the milk from various centres and was
charged for the misconduct that he
inflated the quantum of milk supplies in
milk centres and also inflated the quality
of fat contents where there were less fat
contents. The Court held that "in view
of proof of misconduct a necessary
consequence will be that Management
has lost confidence that the workman
would truthfully and faithfully carry on
LC 1934/16 9/18
his duties and consequently the Labour
Court rightly declined to exercise the
power under Section 11A of the I.D. Act
to grant relief with minor penalty.
7. In view of the aforesaid settled legal
position, the High Court materially erred
in confirming the directions given by the
Labour Court in reinstating the
respondent - workmen with 25% back
wages. For giving the aforesaid directions, the Labour Court considered that there is no evidence regarding past misconduct by the employees and, therefore, it can be observed that they have rendered several years of service without any blemish and to some extent, there was lapse on the part of the management.
8. In case of proved misappropriation, in our view, there is no question of considering past record. It is the discretion of the employer to consider the same in appropriate cases, but the Labour Court cannot substitute the penalty imposed by the employer in such cases."
10. In Municipal Committee, Bhahadurgarh Vs. Krishan Behari and Ors. (1996) 2 SCC 714, the allegations against the claimant were of misappropriation of sum of Rs.1548.78p by falsifying the accounts. The Apex Court ruled that in a case of such nature - indeed, in cases involving corruption there cannot be any punishment than dismissal. Any sympathy LC 1934/16 10/18 shown in such cases is totally uncalled for and opposed to the public interest. The amount misappropriated may be small or large, it is the act of misappropriation that is relevant.
11. In U.P. State Road Transport Corporation Vs. Basudeo Chaudhary, (1997) 11 SCC 370, allegations against the workman were that he had charged Rs.5.35 per head from 23 passengers. In the waybill, he had entered as having received the sum of Rs.2.35 from each of them. The Apex Court held as under : "4. Having regard to the findings that have been recorded by the Labour Court, it is evident that this is a case where the petitioner had tried to fabricate the record regarding recovery of fare to show that the passengers had travelled for a lesser distance from Khalilbad to Gorakhpur although they had actually travelled from Basti to Gorakhpur. The misconduct that was found established was thus serious in nature and the Labour Court has rightly upheld the punishment of removal from service that was imposed on the petitioner. The High Court was in error in interfering with the award of the Labour Court and in substituting the penalty of censure for removal from service on the view that there was only an attempt to cause loss of Rs.65 to the Corporation and the action of the Corporation terminating LC 1934/16 11/18 the services of the petitioner was not justified .
5. The learned counsel for the petitioner has invited our attention to the decisions of the Court in Bhagat Ram v. State of H.P. (1983) 2 SCC 442 and Gulzar Singh v. State of Punjab 1968 Supp SCC 738 and has submitted that in the facts of this case the High Court was right in taking the view that the penalty of termination of services was disproportionate to the misconduct found established. We are unable to agree. The facts in the cases aforementioned were very different and they can have no application to the present case. Having regard to the misconduct that has been found established against the petitioner, it is not possible to say that the Corporation, in removing the petitioner from service, has imposed a punishment which is disproportionate to the misconduct. We are, therefore, unable to uphold the judgment of the High Court."
12. In Rustom & Harnsby Ltd. Vs. T.B. Kadam, 1976 SCR (1) 119, the allegations against the workman were that he had removed the Fluroscent Tube from the guard room and was caught when he was carrying away from the factory. The Apex Court upheld the punishment of the dismissal.
13. In Depot Manager, A.P.S.R.T.C Vs. Raghuda Siva LC 1934/16 12/18 Sankar Prasad, (2007) 1 SCC 222, the allegation against the workman was that he had stolen a new tube of 900X20 size. Following was held by the Apex Court : "19. Learned Judges of the High Court have also failed to appreciate that once an employee lost the confidence of employer, it would not be safe and in the interest of the Corporation to continue the employee in the service. The punishment, imposed by the management in the facts and circumstances of the case, is not disproportionate and that the punishment of removal from service is the just and reasonable and proportionate to the proved misconduct. In our view, the theft committed by the respondent amounts to misconduct and, therefore, we have no hesitation to set aside the orders passed by the learned Single Judge and also of the Division Bench and restore the order of removal of the respondent from service. When the Labour Court has proved the charge, no interference by the learned Single Judge or by the Division Bench of the High Court was called for. In the instant case, the jurisdiction vested with the Labour Court has been exercised judiciously and fairly. In our opinion, the conclusion arrived at by the High Court in ordering reinstatement; continuity of service was shockingly disproportionate to the nature of charges already proved which is in the nature of LC 1934/16 13/18 theft.
It is also not open to the Tribunal and Courts to substitute their subjective opinion in place of the one arrived at the domestic Tribunal. In the instant case, the opinion arrived at by the Corporation was rightly accepted by the Tribunal but not by the Court. We, therefore, hold that the order of reinstatement passed by the Single Judge and the Division Bench of the High Court is contrary to the law on the basis of a catena of decisions of this Court. In such cases, there is no place for generosity or sympathy on the part of the judicial forums for interfering with the quantum of punishment of removal which cannot be justified. Similarly, the High Court can modify the punishment in exercise of its jurisdiction under Article 226 of the Constitution only when it finds that the punishment imposed is shockingly disproportionate to the charges proved Interfering therefore with the quantum of punishment of the respondent herein, is not called for. In our opinion, the respondent has no legal right to continue in the Corporation. As held by this Court, in a catena of judgments that the loss of confidence occupies the primary factor and not the amount of money and that sympathy and generosity cannot be a factor which is permissible in law in such matters. When the employee is LC 1934/16 14/18 found guilty or theft, there is nothing wrong in the Corporation losing confidence or faith in such an employee and awarding punishment of removal. In such cases, there is no place of generosity or place of sympathy on the part of the judicial forums and interfering with the quantum of punishment."
14. On the small amount of stolen property, the Hon'ble Madras High Court held following in Prasad Film Laboratories Vs. Presiding Officer, 2001 (89) FLR 135 (Madras High Court): "20. As pointed out by the counsel for the petitioner, this Court on several occasions would hold that the property stolen may be small or large but it is the act of theft that is relevant for imposing penalty and that any sympathy shown in such cases is totally uncalled for and is opposed to public interest.
21.The workman was employed in the petitioner company, where the confidence of the customers is paramount for the success of the business and the same cannot be disputed. The effect of the continuation of employment of such person, who had lost the confidence of the employer will be very serious. The reinstatement of the persons like the second respondent, who had patently duped his employer by committing theft of the film entrusted by LC 1934/16 15/18 the customers would certainly harm the reputation of the petitioner company.
23. In my view the act of the theft committed by the second respondent is a grave misconduct and when the said misconduct is grave in nature, the gravity of the said act warrants the penalty of dismissal.
24.When a person is proved to have committed theft of the property of the company showing his lack of integrity and dishonesty, the Tribunal or the Court cannot direct the company to reinstate that workman, as it would amount to doing injustice to the institution like the petitioner company which has got a reputation."
In Divisional Controller, KSRTC (NWKRTC) Vs. A.T. Mane, 2004 LLR 1105, the Apex court held that it is not the amount of money misappropriated that becomes a primary factor for awarding punishment.
15. The allegations against the claimant are that he had not issued ticket to one passenger from Atta more to Sector12 after taking due fare from him. When his cash was checked, it was found excess of Rs.3.20. In this way, he had caused wrongful gain to himself and wrongful loss to the management. The claimant was working as conductor. If he is allowed to work with the LC 1934/16 16/18 management, he would again come in contact with money which would always create apprehension in the mind of management that he would again misappropriate the cash. His service record is not good. Previously, he was given punishment of warning on three occasions.
16. In view of above discussion, it is held that management had not committed any illegality or unjustifiably in terminating the service of the claimant. The punishment handed down to him is not disproportionate to the proved misconduct. This issue is decided in favour of management and against claimant.
Issue No. c:
17. The management's case is well covered by UPSRTC Vs. Gopal Shukla CA No. 2038/12, decided by the Apex Court on 01.09.2015. In the cited case, the allegations against the bus conductor that 25 passengers were without tickets, were found proved. The Apex Court held that he had caused financial loss to the corporation despite the fact that he was holding post of trust. In that capacity, he was expected to behave with discipline, loyalty and also to maintain fiscal sanctity. The Apex Court held that he did not deserve leniency. Order of dismissal from service was upheld. To the same effect are the facts of the case in hand.
LC 1934/16 17/1818. In view of above discussion, it is held that claimant is not entitled to any relief. Statement of claim is dismissed. Parties to bear their own costs. Reference is answered accordingly. Award is passed accordingly.
19. The requisite number of copies of the award be sent to the Govt. of NCT of Delhi for its publication. File be consigned to Record Room.
Dictated to the Steno & announced (UMED SINGH GREWAL) in the open Court on 14.10.2016. POLCXVII/KKD, DELHI.
LC 1934/16 18/18