Delhi District Court
Hon'Ble High Court In Dtc vs . Anoop Singh, 133 (2006) Dlt 148. on 20 April, 2010
BEFORE THE COURT OF SH A.S. JAYACHANDRA
PO : LABOUR COURT : KKD : DELHI
DATE OF REFERENCE : 17.06.1996
DATE OF RECEIPT : 25.07.1996
FIRST DATE BEFORE THIS COURT : 12.12.2008
ARGUMENTS CONCLUDED : 26.03.2010
DATE OF AWARD : 26.04.2010
ID No. 319/08/96
Unique ID No. 02402C0004261996
Delhi Transport Corporation
through its Chairman
IP Estate, New Delhi
...........Management
versus
Sh. Azad Singh
B. No. 12288
H. No. 211, Village and PO Qutab Garh
Delhi-39
..............Workman
AWARD
1.This reference dated 17.06.1996 was received vide No. 24 (1643)/96-Lab./32402-07 from the government 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 necessary in this respect? 1/12
2. The case of the workman as per the original claim statement is that he was employed with the DTC as a conductor in the year 1968. He was served with a charge sheet for not issuing tickets to four passengers after collecting fare and further that he refused to sign the statement of passengers written on plain paper. Workman contends that he was not given with the list of witnesses and list of documents. The workman denied the charges. The cash was not checked and the charges were totally baseless. He also relies on a circular dated 06.12.72 of DTC, which advises that in case the conductor refusing to sign the statement of the passengers, no cognizance is to be taken to such statements unless the passengers participated in the enquiry. Passengers have not participated in the enquiry. The findings of the enquiry Officer are perverse and not based on evidence. Workman further contends that he was not given a chance to explain regarding the past record. The Depot Manager has awarded highest penalty of removal of service by his order dated 03.07.95. Workman further contends that the penalty is disproportionate and uncalled for.
3. The management filed the reply to the original claim statement. It contends that the workman was appointed on monthly rate w.e.f. 02.02.79. Management denied the allegations except admitting the charge sheet and the charges framed. Management contends that all 2/12 the documents were supplied and the charges are supported by the evidence of checking staff. Management further admits that cash of the conductor was not checked and the passengers having been not examined during the enquiry. Management contends that the enquiry findings are based on legal evidence and fair and proper which have been arrived at after complying all the principles of natural justice. Workman has also filed the rejoinder denying the allegations found against him in the written statement.
4. Based on the pleadings my Ld. Predecessor had framed the following two issues on 10.12.1997.
a) Whether the domestic enquiry is not valid, fair and proper?
b) Whether the removal of workman from service is illegal and unjustified.
5. ISSUE NUMBER 1 : By a detailed order on issue no. 1 based on the evidence led on the aspect of enquiry, I have already answered the same in favour of the workman and against the management vide my order dated 27.02.2009.
6. Now I am to answer the issue no. 2 which would also cover the terms of reference. After answering issue no. 1 in favour of the workman, I allowed the management to lead management evidence to prove the case of management on merits. Consequently the 3/12 management has examined one K. C. Gupta as MW-2, the Depot Manager who relied on the documents already marked through the evidence of MW-1 Sh. S.K. Jacob. Management further examined MW-3 Kehar Singh who was one of the checking staff. The workman had examined himself in rebuttal. Heard the arguments on behalf of both the parties. With the available oral and documentary evidence, I am now to find out whether the misconduct against the workman is proved or not.
7. ISSUE NUMBER 2 : Prior to answering issue no. 2, it is pertinent to note the charges against the workman. Ex. WW 1/M-1 is the charge sheet. The charges are that :-
a) That group of the nine passengers had paid conductor Rs. 99/-
@ of Rs. 11/- each for tickets from Fatehabad to Hisar but he did not issue the tickets. Condutor admitted his guilt when the group leader was confronted to him and he gave nine unpunched tickets bearing no 001/08233 to 08261.
b) When the checking staff asked the complaint book, conductor refused to give the same and also refused to take the challan.
c) Workman also refused to sign on the statements of the passengers.
d) By the above irregularities, the workman had shown negligence 4/12 towards the duties and caused financial loss to the corporation.
8. The only witness to speak about the irregularities as per the charge sheet is MW-3. He testified that he checked the bus of the workman and found nine passengers without tickets. According to him the passengers told MW-3 that they paid Rs. 100/- to the conductor for traveling between Fatehabad to Hisar. The statement of passengers is marked through him at Ex. MW 3/1. The copy of the challan at Ex. MW 3/ 2 and the unpunched tickets given by the conductor admitting the guilt at Ex. MW 3/ 3. In the cross examination he admits that he is not the reporter and that the said report was prepared at ISBT in the absence of the workman. He denies a suggestion that the challan was also prepared in the absence of the workman. He admits that one J.R. Mishra prepared the challan who was one of the checking staff. He admits that no statement of other passengers was recorded to show that the conductor refused to sign the chalan and the passengers' statements. According to him MW-3 statement of the passengers was not recorded by the checking staff but by the passengers. He denies a suggestion that Ex. MW 3/ 3 the unpunched tickets were not surrendered voluntarily by the conductor. He is unable to say that the distance between Fatehabad and Aroha is 4-5 km and that 55 passengers had boarded the bus. He also admits the departmental 5/12 instruction that the statement of the passengers are to be recorded in the back of the challan. He also admits that they have not written on the challan or in the complaint book regarding the conductor not giving the complaint book to them. He admits that the cash was not checked since the bus was a running bus which might have caused inconvenience to the passengers.
9. In the rebuttal evidence, the workman deposed in his affidavit at Ex. WW 1/B that he did not commit any mistake and that the unpunched tickets were taken away by the checking staff from the hand block forcibly. He testified that he had issued tickets to all the passengers who paid him the fare. He further refutes that he refused to sign the passenger statement. According to him he did not commit any misconduct and the allegations are false. Workman further testifies that the passengers had lodged a complaint against the high handed ness of the checking staff in the complaint book and that the statement of the passengers were obtained under threat. Workman relied on Ex. MW 1/B and MW 1/C. In the cross examination by the management certain suggestions were made which were denied concerning the irregularities. Workman volunteer to say that the statement was never recorded in his presence. He further admitted that there is no enmity between him and the checking staff and denies 6/12 the adverse entries in his past record.
10. With the above available evidence, now I am to find out whether the conductor who was on duty on 19.07.94 had committed the irregularities as found in the charge sheet or not. Ex. MW 1/ D is the extract of complaint book. The same was got marked during the course of evidence of MW-1 S.K. Jacob since MW-2 the disciplinary authority K.C. Gupta had stated on oath that he relies on the documents already marked, I can not ignore this document Ex. MW 1/D. This document is admitted by MW-1 in his cross examination recorded on 12.07.2000. This is an extract of complaint book which the management does not dispute. The author of this document is Ram Chander of Delhi. According to this document Ramchander, was also one of the commuters in the said bus on the date of checking. This document speaks that the conductor was in the process of issuing the tickets and the checking staff prevented the conductor from issuing the tickets who was still in the process of issuing the tickets.
11. The allegation of the management that the workman had not issued tickets to the group of the nine passengers, who had paid conductor Rs. 99/- @ of Rs. 11/- each for tickets from Fatehabad to Hisar but did not issue the tickets is not substantiated since MW-3 has not stated as to which was the stage to have completed the issuance 7/12 of tickets for the passengers boarding from Fatehabad. It is clear that the bus was intercepted at Amroha mode (Amroha crossing). The distance between Fatehabad and the stage by which the conductor ought to have completed the issuance of tickets is not forthcoming from the testimony of MW-3. The suggestions made to MW-3 in the cross examination plays a significant role in this context. MW-3 is unaware the distance between the place of checking and Fatehabad and that it is only 4-5 km. Though it is stated that in the interstate routes, the issuance of tickets is to be completed within 2 to 2 ½ km, it is denied by the MW-3 that the conductor was still in the process of issuing tickets. A suggestion was made to this witness that in the interstate buses, the conductor should complete issuance of tickets within 12 km from the starting point.
12. The MW-3 further admitted that the cash was not checked despite the request from the conductor. In the cases where the conductor had requested for tallying the cash, it was in the common prudence of such of the checking staff to find the cash and tally the same with the number of tickets issued. This is very (significant) especially when the conductor pleads that he has not caused any financial loss to the corporation, when is facing such a charge. Ex. MW 3/ 3 are perused. These documents consisting of nine unpunched 8/12 tickets (photocopies) will not conclusively establish that they were handed over by the conductor voluntarily when the challan was not signed by the conductor. The challan can not be believed without any corroborative evidence merely on the basis of the oral testimony of MW-3.
13. To impute and sustain a charge that the conductor refused to sign the statement of the passengers, it is safe to look into the statement of the passengers. Ex. MW 3/ 1 is the statement of the passengers can not be believed since the address of the passengers for all the nine passengers are not completely taken. Two addresses are made out, one resides in Kalupur, PO Achundi, Hisar Distt. Other address is that of Papu S/o Amir Chand, village and post office Mund Distt. Hisar and certain illegible writings perhaps signatures of four persons are found. If the entire group have traveled together who paid Rs. 100/-, it becomes very difficult to believe as to why this group traveled together who belonged to different villages. Furthermore Ex. MW 3/ 1 is not identified by MW-3 with the signatures of the author. MW-3 deposed that statements were written by passengers themselves. The verification part found on the passenger statement is not proved.
14. With the above short falls to believe the case of the management 9/12 regarding non issuance of tickets despite collection, the checking staff ought to have tallied the cash especially in the wake of ruling of our Hon'ble High Court in DTC vs. Anoop Singh, 133 (2006) DLT 148. Hence, the first charge falls to the grounds. Consequently the other charges also can not be believed in view of the complaint book for which the document at Ex. MW 1/D which I have already discussed. Since the misconduct is not proved, 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 despite best efforts and the same is so affirmed in Ex. WW 1/B, it is to be noted that in the original claim statement he simply stated that he is unemployed. He has not even stated that he made sincere efforts to get alternate employment. It is elicited in the cross examination that the workman has not mentioned as to where he has applied for jobs. 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 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 & 10/12 Service Society Ltd. vs. S. Kumar 2009-I-LLJ 328 SC, I have considered the past record. The workman had suffered stoppage of next increment in the year 1980. He was censured in the year 1985. He was warned several times. 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. 40,000/- ( Rs. Forty 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 continuity of service in the same post. No back wages are 11/12 awarded. The management shall pay a sum of Rs. 40,000/- ( Rs. Forty 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 12/12