Delhi District Court
In Ramesh Chand vs Dtc In Wp No. 14148 Of 2009 Dd : ... on 6 April, 2010
BEFORE THE COURT OF SH A.S. JAYACHANDRA
PO : LABOUR COURT : KKD : DELHI
ID No. 255/08/97
Unique case no. 02402C0002771997
DATE OF REFERENCE : 18.03.97
DATE OF RECEIPT : 25.03.97
FIRST DATE BEFORE THIS COURT : 18.12.08
ORDERS ON ENQUIRY ISSUE : 20.03.09
ARGUMENTS CONCLUDED : 19.03.2010
DATE OF AWARD : 06.04.2010
IN THE MATTER OF :
Delhi Transport Corporation
Through its Chairman
IP Estate, New Delhi.
...........Management
versus
Sh. Shyam Singh S/o Sh. Lal Singh
R/o Village & PO Acharya Khera,
Distt. Meerut, U.P.
..............Workman
AWARD
1.This reference dated 18.03.1997, was received from the government vide No. F.24 (6295)/96-Lab./8072-76 is as under :
Whether the removal of Sh. Shyam Singh, from service is illegal and/or unjustified and if so, to what relief is he entitled and what directions are necessary in this respect ?
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2. The case of the workmen :- as per the claim statement is that he was working as a conductor and was served with a charge sheet dated 06.05.1992. The charges against him is that he has not issued the tickets to two passengers after collecting fare from them. The case of the workman is that list of documents and the witness was not supplied, the reply is given to the charge sheet is not considered, enquiry was defunct, that no preliminary report was given to him, that the charges are vague and that the passengers were not examined. The checking staff also did not close the number of hand block. The enquiry report is termed as perverse by the workman and further the order of the Depot Manager to remove the workman from the services w.e.f 07.06.1995 is illegal.
3. Case of the Management:- Management contends that the enquiry is held by complying all the formalities and by following the principles of natural justice. Full opportunity was given to the workman during the enquiry.
On merits, the management contends that the workman was appointed by the Asst. Personnel Officer and the allegation made in the written statement are denied. It is contended that the passengers were called at the request of the workman and the passengers did not attend. There is no perversity in the findings of the enquiry officer. The workman was removed after following the rules and after complying the principles of natural justice. Workman is employed in the private bus services. The order of removal is justified by the management.
4. Rejoinder is filed by the workman.
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5. Based on the pleadings my Ld. Predecessor had framed the following two issues on 16.09.1998 as under :
a) Whether the enquiry was not held in accordance with the principles of natural justice?
b) As per the terms of reference ?
6. On the point of preliminary enquiry, the workman examined himself as WW 1 and filed his affidavit at Ex. WW 1/A. His evidence was closed after examining himself. The management has not examined any witness on the point of enquiry. By a separate order dated 20.03.2009, the enquiry issue is held in favour of the workman and against the management.
7. Management was given an opportunity to lead evidence on merits. On merits management examined MW-1 Hanuman Prasad and MW-2 Prem Chand 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 20.03.09, I have held the issue no. 1 in favour of the workman and against the management.
ISSUE NO. 2.
9. MW-1 Hanuman Prasad in his affidavit at Ex. MW 1/A deposed that he was the member of the checking team and checked the bus of the workman at Gurukul Faridabad, Haryana and found two passengers without tickets. 3/8 According to this witness, the passengers told that they paid Rs. 2/- each to the conductor but he did not issue tickets. The conductor admitting his fault handed over two unpunched tickets. The cash was checked. Rs. 4.05 paise was found short. This witness relied on the documents Ex. WW 1/M-1 and Ex. MW 1/1 and MW 1/ 2. Ex. WW 1/M-1 is the challan. Ex. MW 1/1 is the report and Ex. MW 1/ 2 is the unpunched tickets. I have noted while marking Ex. MW 1/ 2, that the original when compared, the ticket number was not found on the originals in one of the tickets.
10. This witness was cross examined by the workman. MW-1 deposed that he is not the reporter. He denies a suggestion that they have taken away two tickets from the handblock forcibly. He further denies that the conductor never admitted the fault and that the conductor told them that the passengers did not pay the fare to him. He admits that the checking staff had written the statements of the passengers and the thumb mark were taken on the statements.
11. MW-2 Prem Chand examined to sustain the charges is the Depot Manager who issued the show cause notice to the workman. He deposed in his affidavit that Kishan Lal and his team inspected the bus and Kishan Lal is the reporter. The charge sheet was issued consequent to the report by the then Depot Manager. An enquiry was conducted. After the receipt of the enquiry, MW-2 issued the show cause notice after considering the past record. Workman did not reply the show cause notice. Therefore the removal order was passed by him. The past record and the removal order are at Ex. MW 2/1 and 4/8 MW 2/2. In the cross examination, he denies that the show cause notice was issued in a mechanical manner.
12. In the rebuttal evidence workman Shyam Singh admits that the bus was checked and the checking staff had collected all the documents from him. He denies that two passengers paid him Rs. 2/- each and he did not issue the tickets. He further deposes that he did not admit the mistake and gave the unpunched tickets but the unpunched tickets were forcibly taken away by the checking staff. He refuted the recording of the statements of the passengers. He further deposed that he received the challan by making a noting of UP on the challan under protest. This witness was cross examined by the management. All the suggestions made by the management were denied. He also denies the checking of the cash.
13. I had given careful thought to the charges against the conductor. Ex. WW 1/M-2 shows that when the bus was checked on 24.04.92 at Gurkul stop where two passengers got down without tickets, told the checking staff that they paid Rs. 2/- each but the conductor did not issue the tickets. I have also perused Ex. WW 1/M-1 that the challan bears the signature of the workman and there is a writing of UP on it. According to the documents at Ex. MW 1/1 the report, workman had handed over two unpunched tickets bearing no. 89103 and 89104. The unpunched tickets are maintained in the original file by the management. One unpunched ticket not have the number in the original, as noted by me while recording the evidence on 23.01.2010. Unpunched tickets on the face of it is for 5/8 a denomination of Rs. 1.50/-. Management has not produced the way voucher to confirm the ticket no. 89104 was being issued for a value of Rs. 2/- so that the same be taken for granted as the unpunched tickets given by the workman in lieu of the money collected by him from the passengers for whom he has not issued the tickets. Therefore the documentary evidence at Ex. MW 1/ 2 the unpunched tickets is not only doubtful but also improper as the value of denomination found thereon are not compatible with the charges. Further more, MW-1 Hanuman Prasad admitted that there is a noting of UP on the passengers statements, the same is found on the challan. In the deposition of Hanuman Prasad MW-1, there is no clear cut say with regard to who recorded the statements of the passengers. Only in the cross examination it is found that the checking staff themselves wrote the statements of the passengers as they were illiterate. the workman made a suggestion to MW-1 that he was calling the passengers to take the tickets which was denied. After careful scrutiny of the documents and the evidence it would be highly unsafe to sustain the charges especially when the unpunched tickets give rise to a doubt and the workman having protested the challan. Therefore the rebuttal evidence throws a probability as against the probabilities of the case of the management. Therefore the misconduct as per the charges is not proved. Workman is entitled for reinstatement.
14. I have considered the grant of back wages in this case. The workman in his original statement had stated that he is unemployed from the date of termination. He has not stated that he made efforts to secure his employment in 6/8 the claim statement. However in the rebuttal evidence he had stated so. To the suggestion made by the management that he is gainfully employed, workman denied the same. I have considered the past record of the workman in this case for grant of the back wages. The past record of the workman is also a relevant factor for the grant of the back wages. The same is at Ex. MW 2/1. He was cautioned in the year 1985 and later he was advised to be careful as he has committed certain irregularities. Such incidents have repeated thrice after the cautioning and the advises, the workman was again imposed with a major penalty of stoppage of next two increments in the year 1991 for having not issued tickets after collection of full fare. In the above un-controverted facts, regarding the service antecedents, I am of the opinion that the workman is not eligible for grant of 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 7/8 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 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. 25,000/- (Rs. Twenty 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. 25,000/- (Rs. Twenty 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.
Reference is answered accordingly.
Let a copy of this award be sent to the appropriate government for publication.
File be consigned to RR.
th 06 April, 2010 (A.S. JAYACHANDRA) PO : LABOUR COURT - XVII, DELHI 8/8