Delhi District Court
Vide Order No. ... vs Gopal Shukla Ca No. 2038/12 on 5 January, 2016
IN THE COURT OF SHRI UMED SINGH GREWAL
PO:LCXVII, ROOM NO. 22 : KKD COURTS :DELHI
ID No.330/08/96.
Unique ID No.02402C0004211996.
M/s. Delhi Transport Corporation
Through its ChairmancumManaging Director,
I.P. Estate, New Delhi.
............. Management
Versus
Sh. Rambir Singh,
Bade No. 15223,
R/o B381, Gali No. 17,
Bhajanpura, Shahdara, Delhi.
..............Workman
DATE OF INSTITUTION : 28.11.1996.
DATE ON WHICH AWARD RESERVED : 16.12.2015.
DATE ON WHICH AWARD PASSED : 05.01.2016.
A W A R D :
1.Vide Order No. F.24(5110)/96Lab./5246468 dated 15.11.96, issued by Government of NCT of Delhi, a reference was sent to this Court with the following terms: "Whether the removal of Sh. Rambir Singh from service is illegal and/or unjustified and ID No.330/08/96 1/16 if so, to what relief is he entitled and what directions are necessary in this respect?
2. Claimant's case is that he joined the management as a Conductor in 1979. A chargesheet dated 14.07.1992 based upon false facts that when his bus No. DBP6503, plying on Delhi - Shikhohabad route, was checked by the checking staff on 23.06.1992 at Ram Pur Bridge at 7.40 p.m, three passengers were found without tickets though he had collected due fare from them at the rate of Rs.27.50 per passenger, was issued to him. He denied those charges vide letter dated 17.07.1992. As a matter of fact, a group of passengers had boarded the bus from Firozabad for whom the tickets were to be prepared on blank ticket book. The number of passenger was about 35 - 38. When the checking officers boarded the bus, he was still issuing the tickets to the passengers and was on the rear portion of the bus. The checking officials started checking the bus from the front portion. The passengers who were found without tickets had given Rs.100/ to the checking officials for purchasing the tickets. The checking officers had passed on Rs.100/ note to him and asked him to make a refund of Rs.17.50 which he did. They did not record the statement of the ID No.330/08/96 2/16 passengers. As there was no occasion of any misconduct, the passengers got down at Aligarh. When the bus reached Agra, the checking officers prepared a false challan. The management was not satisfied with his explanation and hence appointed Mr. Sunit Mudgal as Enquiry Officer, who did not supply him list of documents and witnesses. The Enquiry Officer conducted the proceedings on 19.10.1992 and recorded the statement of ATIs, namely, Keher Singh and Jagdish. In the meantime, the claimant was transferred to Yamuna Vihar Depot. The enquiry was assigned to an Enquiry Officer Mr. Jagdish Sharma, who did not examine the passengers. Moreover, he did not issue summons to the passengers because their addresses were not available. All the allegations against him were totally false, despite it, the management issued him a showcause notice on 22.04.1993 accompanied by enquiry report asking why the punishment of removal from services be not inflected. The Enquiry Officer had not found him guilty completely. He was found guilty only on some charges. In response to showcause notice, he made a representation dated 27.04.1993 seeking some clarifications and documents. That representation was not considered by the Depot Manager and proceeded to terminate the service vide order dated ID No.330/08/96 3/16 07.05.1993.
3. Written statement is to the effect that the claimant was working as a Conductor on bus No. DBP6503 plying on Delhi - Sikhohabad route when it was checked by the checking staff on 23.06.1992 near Ram Bagh Bridge and three passengers were found travelling without tickets. On enquiry, they told that they had paid due fare of Rs.27.50 per passenger totalling to Rs.82.50 to the Conductor, but he had not issued them tickets. The domestic enquiry was conducted as per the principles of natural justice and sufficient opportunities were given to the claimant to defend his case. Before passing the order of removal from service, the Depot Manager had gone through the findings of Enquiry Officer and after considering the gravity of the charges, the punishment of removal was inflicted.
4. Following issues were framed on 09.01.1998:
(i) Whether the domestic enquiry is fair and valid as per principles of natural justice?
(ii) As per terms of reference.
ID No.330/08/96 4/16
5. In order to prove the enquiry invalid, the claimant tendered his affidavit in evidence as Ex. WW1/A mentioning all the facts which he had stated in the statement of claim.
6. The management examined its Enquiry Officer Mr. Sunit Mudgal as MW1. He deposed that chargesheet was issued to the claimant on 14.07.1992 on the report of ATIs Kehar Singh and Jagdish. The claimant had replied the chargesheet which was not satisfactory and domestic enquiry was assigned to him. He conducted enquiry on 19.10.1992, in which the claimant had participated. At the very outset, the chargesheet was explained and read over to him in vernacular language, but he denied the charges. He further deposed that the claimant was asked if he wanted to take help of any coworker, but his reply was in negative. Thereafter, he examined the witness produced by the management. He did not examine the passengers because their addresses were not available. The enquiry was concluded on 18.12.1992 by Mr. Jagdish Sharma. He further deposed that Mr. Jagdish Sharma had already retired. He relied upon enquiry proceedings as Ex. MW1/8 and enquiry report as Ex.MW1/9.
ID No.330/08/96 5/16
7. After decision on enquiry issue in favour of management, the claimant tendered his affidavit in evidence on merit as Ex.WW1/B wherein he deposed that he had not conducted any misconduct of non issuance of tickets to any passenger on 23.06.1992 after collecting due fare from them as alleged in chargesheet dated 17.07.1992. Statement of passenger was not recorded in his presence by the raiding team members and due to that reason, the enquiry officer had not found him guilty of charges. His cash was not checked by the inspecting team. The checking staff had themselves taken the ticket blocks from him and took the unpunched tickets to implicate him falsely.
8. On misconduct, the management examined its thethen Depot Manager / Disciplinary Authority Sh. Lalit Kumar Singh as MW1. He deposed that checking staff comprising of ATI Sh. Kehar Singh and TI Sh. Jagdish Singh had given report against claimant for committing cheating, sitting idle on the seat and non issuing of tickets to three passengers after taking full fare from them. He had refused to sign on the statement of the passenger. He further deposed that claimant had handed over three unpunched ID No.330/08/96 6/16 tickets to the checking staff and it amounts to admission of guilt. Challan was prepared at spot and the staff gave its preliminary enquiry report to the manager. On the basis of report, thethen Depot Manager Sh. V.K. Gautam had issued the chargesheet dated 14.07.1992 against the claimant. It was replied by the claimant on 20.07.1992. Enquiry officer found him guilty partially. The disciplinary authority was not fully satisfied with the report and that is why, he issued the claimant a showcause notice. After considering the enquiry report and past record of the claimant, he purposed a punishment of removal. A Showcause notice dated 22.04.1993 was issued to him. His reply to that notice was considered but it was unsatisfactory and hence punishment was confirmed. He relied upon following documents:
(i) Copy of challan prepared at the spot as Ex.MW1/1.
(ii) Copy of report of reporters as Ex.MW1/2.
(iii) Copy of statement of passengers as Ex.MW1/3.
(iv) Copy of front and back side of three unpunched tickets as Ex.MW1/4.
(v) Copy of chargesheet dated 14.07.1992 as Ex. MW1/5.
(vi) Copy of showcause notice dated 22.04.1993 as Ex.MW1/6.
(vii) Copy of removal letter dated 07.05.1993 as Ex.MW1/7. ID No.330/08/96 7/16
(viii) Copy of previous record dated 04.01.1993 as Ex.MW1/8.
(ix) Copy of judgment dated 23.12.2010 vide which order of the Labour Court u/s 332(b) of I.D. Act was set aside by the Hon'ble High Court.
9. On merit, the management examined Mr. Kehar Singh as MW2 who was one of the raiding team members. Initially, he deposed that he was not knowing about this case. He might have checked the bus of claimant but he cannot identify the signature on the checking report. On the request of ARM, he was declared hostile and was crossexamined by ARM. Checking report Ex.MW1/2 was put to him and he admitted his signature at point A but he could not identify the signature at point B. He admitted it correct that ATI Sh. Jagdish was with him on 23.06.1992 at 7.40 AM when they had checked the DTC bus. He deposed that report Ex.MW1/2 was written by Sh. Jagdish and was signed by him (MW2). He made it clear that whatever they observed at the spot, the same was written in Ex.MW1/2. He further deposed that challan Ex.MW1/1 was prepared by Sh. Jagdish, ATI. It was Jagdish who had recorded the statement Ex.MW1/3 of the passenger and that statement was bearing his (MW2) signature at ID No.330/08/96 8/16 point A. Issue No. 1.
10. That issue has already been decided in favour of claimant and against management by this court vide order dated 22.09.2015 by holding that disciplinary authority had not acted as per the principles of natural justice.
Issue No. 2.
11. Ld. ARW argued that only one witness has been produced by management and he/MW2 could not recollect the facts properly. There is no corroboration of his statement. On the other hand, it has been argued by ARM that the incident of misconduct has taken place in the year 1992 and MW1 had entered into the witnessbox in the year 2015 i.e. after 23 years and elapse of that much time is sufficient to wipe out the facts from his memory. He further submitted that after going through the record, MW2 had recollected all the facts.
MW2 was declared hostile because he was resiling from his previous statement in writing dated 23.06.1992. In cross examination by ARM, he admitted his signature at point A on ID No.330/08/96 9/16 checking report Ex.MW1/2. He deposed that ATI Sh. Jagdish was with him on 23.06.1992 at 7.40 AM when they had checked a DTC bus. He identified the handwriting of Sh. Jagdish, ATI on report Ex.MW1/2 and that is why he deposed that the same was written by Sh. Jagdish. In the same vein, he deposed that challan Ex.MW1/1 was prepared by Sh. Jagdish, ATI and that statement Ex.MW1/3 of a passenger were recorded by Sh. Jagdish, ATI. It is true that MW2 did not support the case of the management in examination in chief but he fully supported the management's version in cross examination by ARM. The sole reason of not recollecting the facts is the elapse of long 23 years as the incident had taken place in 1992 and he was examined in 2015. This witness was able to refresh his memory when the documents were shown to him. So, it cannot be said that MW2 could not recollect facts. Plea of corroboration of statement of MW2 cannot be upheld because summons sent to other raiding team member, ATI Jagdish were received back unserved and it becomes clear from ordersheet dated 05.11.2015 that a person namely Sh. Pardeep Kumar, claiming himself to be the son of Sh. Jagdish, told the serving official that his father had expired 56 years ago. Summons of this witness were given dasti also. Dasti summons were received back with the ID No.330/08/96 10/16 death certificate of Sh. Jagdish in which it is mentioned that Sh. Jagdish died on 17.05.2009 itself. So, the management had tried to examine other raiding team member but the witness was not available due to death.
12. Ld. ARW argued that MW2 is not eyewitness to the incident of dishonesty. The management did not examine any independent eyewitness and statement Ex.MW1/3 of the passenger is fabricated one as no such statement was made by the passenger. On the other hand, it has been argued by Ld. ARM that it has been deposed by MW2 that statement Ex.MW1/3 of the passenger was recorded by Sh. Jagdish. He admitted the incident of dishonesty was not taken in presence of MW2 but that fact can be gauged from statement Ex.MW1/3 of the passenger. He further submitted that testimony of MW2 is duly corroborated by documents and hence there was no need for the management to examine independent witnesses.
As per chargesheet Ex.MW1/5 dated 14.07.1992, the allegations against the claimant are that he had collected Rs. 82.50/ in all from three passengers from Firojabad to Aligarh and had not issued them tickets. Further allegations are that the checking staff ID No.330/08/96 11/16 had recorded the statement of a passenger in his presence but he refused to sign the same. It is correct that there is no mention in statement Ex.MW1/3 that the claimant had refused to sign on the same but that fact does not invalidate the statement because that fact is mentioned in enquiry report Ex.MW1/2. It is pertinent to mention that enquiry report Ex.MW1/2 was prepared by the checking staff after completion of proceedings at the spot. Moreover, it has been deposed by MW2 that statement Ex.MW1/3 of the passenger was recorded by Sh. Jagdish, ATI and it was bearing his signature (MW2) at point A. So, the management has successfully proved that the raiding team members recorded the statement of one of the passengers to the effect that claimant had collected Rs.82.50/ from them @ Rs. 27.50/ per passenger and had not issued them tickets. It is correct that those passengers were neither examined during enquiry proceedings nor before this court but their examination is not necessary in view of the law lay down by the Apex Court in Ratan Singh's Case.
13. Ld. ARW argued that his defence is that a group of passengers had boarded the bus from Firozabad for whom the ID No.330/08/96 12/16 tickets were prepared on blank ticket book. At that time, the number of passengers in the bus was about 35 38. When the checking officials boarded the bus, he was still issuing tickets to the passengers in the rear portion of the bus. The checking officials started checking the bus from front portion. Three passengers, who were found without tickets, had given Rs. 100/ to the checking officials for purchasing tickets. The checking officials had passed on Rs. 100/ note to the claimant asking him to make a refund of Rs. 17.50/ which he did.
The defence of the claimant is not more than a bald statement. If compared with the version of the management, the defence stands nowhere because the management's case is corroborated by the documents which were prepared by raiding team members at the spot.
14. Last argument is that the cash of the claimant was not checked.
Definitely, a big dent has been caused to the case of the management by not checking the cash of the claimant. But that dent has been rectified to some extent by production of three unpunched tickets Ex.MW1/4 by the management. Each ticket is ID No.330/08/96 13/16 of Rs. 27.50/. It is pertinent to mention that the claimant had collected Rs. 27.50/ from three passengers and had not issued them tickets. When he was caught red handed, he was handed over checking staff members three unpunched tickets.
15. In, UPSRTC Vs. Gopal Shukla CA No. 2038/12, decided by the Apex Court on 01.09.2015, the bus conductor was found carrying 25 passengers without tickets. 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. That citation squarely covers the case of the management.
In Regional Manager, U.P.S.R.T.C., Etawah & Ors. Vs. Hoti Lal & Anr. 2003 LLR 344, the allegations against the conductor was that he was carrying 16 passengers without tickets and he issued them tickets hurriedly. Some used tickets were also found in his possession which he intended to use them again. In the case in hand also, the claimant had not issued tickets to three passengers even after collecting due fare of Rs. 27.50/ from each. ID No.330/08/96 14/16 In the cited case, termination from service of the claimant was upheld by the Apex court. Taking cue from that citation, it is held that termination of service of the claimant is neither illegal nor unjustifiable.
16. His previous service record Ex.MW1/8 shows that once he was reprimanded, he was given warning twice and once punishment of Censorship passed against him. Present one is the fifth misconduct.
In view of above discussion, it is held that there is no illegality and unjustifiability in termination of service of the claimant by the management. This issue is decided in favour of management and against claimant.
Relief
17. Consequent to decision of issues no. 2, it is held that claimants are not entitled to any relief. Statement of claim is dismissed. Parties to bear their own costs. Reference is answered accordingly. Award is passed accordingly.
ID No.330/08/96 15/16
18. The requisite number of copies be sent to the Govt. of NCT of Delhi for publication of the award. File be consigned to Record Room.
Dictated to the Steno & announced (UMED SINGH GREWAL) in the open Court on 05.01.2016. POLCXVII/KKD, DELHI. ID No.330/08/96 16/16