Delhi High Court
Delhi Transport Corporation vs Sh. Sukhbir Singh on 6 December, 2006
Author: Manju Goel
Bench: Manju Goel
JUDGMENT Manju Goel, J.
1. This writ petition is directed against the award dated 9.11.2004 in ID No. 235/96 passed by the Presiding Officer, Labour Court No. 7, Delhi. The industrial dispute was raised by Sh. Sukhbir Singh. The reference to the Labour Court was in the following terms:
Whether the removal of the Shri. Sukhbir Singh from service by the management is illegal and/or unjustified and if so, to what relief is he entitled and what directions are necessary in this respect?
2. The respondent/workman was working as a conductor with the petitioner/DTC. He was served with a charge sheet dated 15.7.1994. The allegation against him was that while he was on duty on bus No. 9696 plying between Baprola to Delhi, his bus was checked and one passenger who had paid Rs. 35 was found without ticket. An enquiry was held and thereafter the respondent was removed from service. The respondent alleged in his statement of claim filed before the Labour Court that the enquiry was improper and the findings were perverse. The petitioner-management took the stand that the workman had collected the due fare from the passengers and had not issued ticket, that the reply to the charge sheet was not found satisfactory, that during the enquiry the workman accepted the charges without any pressure and accordingly he was removed from service. The Labour Court framed two issues as under:
(i) Whether the management conducted a fair and proper enquiry?
(ii) As per terms of reference.
3. The first issue was treated as preliminary issue. On 3.3.2004 the Labour Court held that the enquiry had not been held in accordance with the principles of natural justice and that the workman had not been given any opportunity to defend himself. It was further observed that there was no challenge to the testimony of the workman. Consequently, the enquiry was set aside and the issue was decided in favor of the workman. In the award dated 9.1.2004 the Labour Court observed that since the workman had been terminated without holding a proper and valid enquiry the workman was entitled to reinstatement. Further he was given full back wages and other consequential benefits as the management failed to produce evidence of gainful employment of the workman. In the writ petition the finding of the Labour Court in the order dated 3.3.2004 is challenged. The grounds for challenge are as under:
(1) The respondent gave in writing before the enquiry officer that he admitted his charge. (2) Had the enquiry been not proper workman would have applied for reopening the same. (3) The workman had not given any defense in order to prove that the charge was false. (4) All the documents had been supplied to the workman and the workman had given his signatures in receipt of the documents. (5) Non-examination of passenger witness was not a ground for passing the impugned order in view of catena of judicial precedents. (6) The workman was given full opportunity to defend himself.
(7) The respondent workman had been punished on 11 earlier occasions which has been ignored by the Labour Court. (8) The workman could not give reason why the management would falsely implicate him in any case.
4. The respondent has refuted all the grounds taken by the petitioner. It is contended that the petitioner management never sought an opportunity to prove the misconduct in Court and, therefore, the Labour Court having found that the enquiry was vitiated cannot now be given any opportunity to prove the misconduct before this Court. It is further contended that the workman was not supplied with the copies of the documents relied upon by the management on the false pretext that he was trying to delay the proceedings. The workman/respondent reiterated that the passenger involved in the charge of misconduct has not been examined. The respondent does not deny having admitted the charge but says that he was allured to admit the charge by a promise that if he did so, the enquiry officer would recommend his reinstatement. Further the punishment of removal from service has been alleged to be disproportionate to the charge. He also denies that he was punished 11 times and says that in this respect the record produced is misleading. On merit also the workman denies that there was any occasion for him to decline to issue ticket after taking the fare from the passenger.
5. The Labour Court held the enquiry vitiated on two grounds:
(i) The passenger witness was not produced in enquiry,
(ii) The documents demanded by the workman were not provided to him.
6. The petitioner relies upon the judgment of the Supreme Court in the case of State of Haryana v. Rattan Lal reported in (1977) 2 SCC 491 and DTC v. Shyam Lal reported in (2004) 8 SCC 88 in which it has been held that passenger witnesses are not required to be called. On behalf of respondent it is submitted that in these cases statements of the passengers were actually recorded by the checking staff and, therefore, the Supreme Court held that the statement of the checking staff was sufficient to prove the statement of the passenger and the passenger was not required to be present in the enquiry.
7. In the present case, it is submitted, the enquiry officer says that the passenger was not required to be called because there was no statement of passenger whereas before the Labour Court the statement of the passenger was filed and proved. The Labour Court observed that the statement of the passenger proved by the Management appeared to be a concoction since the enquiry officer said that there was no statement of the passenger. The other ground on which the Labour Court has set aside the enquiry was that relevant documents had not been given to the workman. The petitioner refers to the endorsement of the workman on his application for documents. The endorsement is dated 5.8.1994 which is to the following effect:
Whatever I wanted to see or note down from the case file, I have seen and noted down from the case file.
8. The respondent/workman nonetheless demanded copies of Way Bill, photocopies of the statement of passengers and photocopy of original charge sheet as the carbon copy was dim and not legible. In the earlier application dated 21.7.1994 the respondent had demanded charge sheets in Hindi, the report of the checking staff in Hindi and the copy of the Way Bill and copy of the statement of the passenger and vouchers. Admittedly, the Hindi copy of charge sheet and copy of report of checking staff had been given to the respondent. However, copy of the Way Bill and voucher had not been given. The copy of the statement of the passengers had also not been given. Further it has to be stated that the respondent saw the original documents and had noted down whatever had to be noted down. The request for documents was turned down in view of the inspection given to the workman on the ground that the respondent was only trying to delay. Despite the inspection taken by the respondent-workman and the note appended on his application to the effect that he had taken note of all the documents, the Labour Court observed that the enquiry was vitiated on account of non-supply of copies. It is contended on behalf of the petitioner that the observation of the Labour Court to this effect is not correct and is not as per the record available.
9. So far as the availability of statement of passengers is concerned, the statement made by the respondent workman itself shows that the statements of the passenger were on record, although the enquiry officer stated that there was no such statement. Apparently it was the mistake of the enquiry officer to say that there was no statement of passenger.
10. The principal ground of the petitioner management is, however, that the respondent eventually admitted his guilt and, therefore, the question of validity of the enquiry fades in the background. The respondent made the following application on 14.11.1994 asking the enquiry officer to conclude the enquiry.
I beg to state that whatever the allegation alleged to me, the same has been committed by me in innocence, because I was not feeling well and I was in mentally tension. I forgot to issue the ticket to the passenger as he was intoxicated. He was not having full fare due to which I allowed him to get down from the bus, then passenger in the bus asked me to issue him a ticket of Rs. 35/- at ahead of the distance. The passenger has been me Rs. 35/- and thereafter I forgotten. The passenger has not asked me the tickets and I also forgotten to issue him because many passengers boarded in the bus from Dewai. The bus was overloaded, due to which I could not count the passenger in the bus. I request not to have further enquiry. I will be obliged, if this case is concluded.
11. It is clear on the perusal of the Labour Court's order that the Labour Court took note of this statement dated 14.11.1994 but failed to notice the admission therein. The statement dated 14.11.1994 is clear admission that fare had been taken but the ticket had not been issued. The respondent merely made an excuse that he had forgotten to issue ticket in view of the bus being overloaded and then subsequently he could not find the passenger. It was for the management to accept or reject the excuse for not issuing the tickets. The charge, that fare had been taken but ticket had not been issued, stood established by this statement dated 14.11.1994. The Labour Court while holding that the enquiry was vitiated failed to take note of the admission made in the statement dated 14.11.1994 and went in to the technicalities of the passengers not being called and document not being supplied.
12. According to the learned Counsel for the respondent the respondent/workman had not replied to the charge sheet in view of the non-supply of the of the document and hence the entire enquiry was vitiated, and therefore, the admission was of no effect. This contention cannot be accepted. In view of the admission, the plea of non-supply of documents as also of non-examination of passenger witness also became immaterial. The Labour Court's order dated 3.3.2004 is clearly contrary to record and, therefore, calls for interference.
13. My attention is drawn to the enquiry officer's report dated 15.7.1994. The translated version of the conclusion arrived at is as under:
Conclusion: After perusing the whole case file, evidence on record in the proceeding I reached to the conclusion:
The delinquent employee has admitted himself, the misconduct alleged in the charge sheet without any pressure. The delinquent employee has given the statement separately in the enquiry proceeding that his mental status was not alright, due to which he received Rs. 35/- from passenger after that he forgotten. He admitted his guilt as pardon him because the passenger also not asked for any ticket. This statement of the delinquent employee may be considered by the Depot Manager by considering at the time of punishing him.
In the enquiry proceeding the delinquent employee was given full opportunity to produce his defense. After seeking the proof in the enquiry proceeding and the document on record, the allegation in the charge sheet against the delinquent employee are stand proved.
14. Thus, the enquiry officer has concluded that in view of the admission of the workman, the charge stood proved. He, however, recommended that the statement of the delinquent employee may be considered at the time of punishing him. It is contended that the punishment order is bad because the punishing authority did not taken into account the recommendation of the enquiry officer.
15. In view of the admission of the workman, the charge stood proved. The next question that arises is whether the workman/respondent could have been dismissed on the charge of cheating. The judgments of the Supreme Court in the case of State of Haryana v. Rattan Lal (supra) and DTC v. Shyam Lal (supra) give a clear decision that on a charge of cheating as in the present case namely non-issuing of ticket after receiving fare, the management was justified in dismissing the workman. The recommendation of the enquiry officer was not binding on the management. In the present case the respondent was earlier punished for the same misconduct. On 8.12.1983 the respondent was found to have committed the same misconduct of not issuing ticket after taking fare for which an enquiry was instituted vide an order dated 31.12.1983. The enquiry ended in finding of guilty on which the respondent was punished with stoppage of increment of one year. It is a further ground to take a serious view of the misconduct committed by the respondent. It cannot be said that the dismissal of the workman was so disproportionate to the offence that it shocks the conscience of the court. It is contended that it was wrong on the part of the management to hold that the respondent was guilty of misconduct as he only admitted that he was guilty of negligence. It is a clear case of cheating. The respondent did not initially offer the explanation and came out with the explanation only after the management had produced the evidence before the enquiry officer. In any case, the enquiry officer had material before him to hold that it was a case of cheating. The report of the enquiry officer cannot be said to be perverse. The Labour Court should not have interfered with the findings of the enquiry officer and with the punishment.
16. In view of the above, the writ petition is allowed with the above findings and the impugned award is quashed.
17. The amount deposited by the petitioner under the order of this Court dated 18.10.2005 be refunded to the petitioner.