Delhi District Court
S/O Shri Nathi Singh vs Delhi Transport Corporation on 5 October, 2021
Biri Singh Vs. DTC
LID No. 559/2019
IN THE COURT OF SHRI TARUN YOGESH
PRESIDING OFFICER: LABOUR COURT-08
ROUSE AVENUE DISTRICT COURTS: NEW DELHI
LID NO. 559/2019
CNR No. DLCT13-004155-2019
In the matter of:
Shri Biri Singh B. No. 20082
S/o Shri Nathi Singh
R/o Village Bherai,
P.O. Musumna (Naujhil)
Distt. Mathura, U.P.
... Workman
Versus
Delhi Transport Corporation
Through its Chairman
I.P. Estate, New Delhi
...Management
Date of Institution of the case : 18.01.1996
Date of passing the Award : 05.10.2021
AWARD
1. Award dated 14.09.2006 passed in ID No. 427/06/96
holding removal of workman from service as legal and justified
has been set aside by the Hon'ble High Court of Delhi vide
order dated 20.02.2019 passed in W.P (C) 559/2007 titled Biri
Singh Vs. DTC and matter has been remanded back to the
Court for deciding afresh after considering the specific pleas
raised by the workman.
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Biri Singh Vs. DTC
LID No. 559/2019
2. A brief conspectus of facts emerging from the record
would reveal that workman Shri Biri Singh being appointed as
conductor with respondent/DTC in 1983 was issued a charge-
sheet on 06.05.1991 alleging that in the intervening night of 19th/20th April 1991, when he was on duty on bus No. 9065, his bus was inspected by checking officials including ATI Ishwar Singh at Safdarjung Airport at around 2:40 hrs and it was found that a group of 12 passengers were not issued tickets @ Rs.2/- per passenger for the journey from Jama Masjid to Ambedkar Nagar despite collecting the fare. It was further alleged that the workman refused to handover unpunched tickets and instead gave them the punched tickets and also refused to sign and receive challan slip. It was also alleged that workman did not allow the officials to check the cash and bus was eventually taken to INA Police Post where cash was checked in the presence of HC Narender Kumar and a sum of Rs.2.45 was found short.
3. Allegations in challan slip and checking report were refuted by the workman through representation dated 22.04.1991 followed by reply dated 29.05.1991 in response to the charge-sheet. Depot Manager, nevertheless, proceeded with domestic enquiry on the basis of charge-sheet wherein charges against the workman were held to be proved and termination order dated 06.05.1992 was passed by after serving show-cause notice dated 30.01.1992 and considering his representation dated 03.02.1992.
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LID No. 559/2019
4. Application under Section 33(2)(b) of I.D. Act, 1947 was simultaneously filed by the department seeking permission of the Labour Court to remove him from service which was granted by Ld. Presiding Office, Industrial Tribunal-II vide order dated 05.12.1998 passed in O.C. No.178/92 titled DTC, Indraprastha Estate New Delhi VS. Shri Biri Singh. Aggrieved by his termination, workman Shri Biri Singh raised industrial dispute which was referred to Labour Court for adjudication vide Order No. F.24(3340)/95-Lab./3666-71 dated 13.01.1996 in following terms:
"Whether the removal from service of Shri Biri Singh is illegal and/or unjustified and if so, to what relief is he entitled and what directions are necessary in this respect?"
5. Statement of claim was filed pursuant to notice of reference wherein workman has inter alia alleged that :
i. Tickets were duly issued to all passengers and checking officials had checked those passengers and put a 'cut' mark in token of the checked tickets; ii. There were about 35 passengers traveling in the bus and none of them raised any kind of protest or objection;
iii. Tickets were issued from the same block which is evident from the way-bill and all passengers were issued tickets for various destinations;
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LID No. 559/2019
iv. Statement of passengers were not recorded and provisions of circular/order dated 12.12.1952 and 29.07.1954 were not observed by the checking officials.
6. Departmental enquiry leading to termination order has been similarly assailed by inter alia contending that:
i. Depot Manager proceeded with departmental enquiry without any basis and Md. Irfan assumed himself as enquiry officer without any written order; ii. Enquiry proceeding was initiated without compliance of requirement of circular/order dated 28.05.1980 and without supplying list of documents and list of witnesses;
iii. Workman was not permitted to have any Defence Assistant and neither Labour Welfare Officer nor Labour Welfare Inspector was present during departmental enquiry;
iv. Statement of checking officials namely Shri Narender Nath Sahani, Shri Ramesh Chand, Shri Ram Chand and Shri Ishwar Singh were recorded arbitrarily and objections raised by the workman were not recorded by the enquiry officer;
v. Statement of Shri Chand Ram, Driver was recorded on 29.07.1991 and enquiry proceeding was closed on 09.08.1991 without examining any passenger;
vi. Show-cause notice dated 30.01.1992 was issued by Page No. 4 of 13 05.10.2021 Biri Singh Vs. DTC LID No. 559/2019 Depot Manager despite the fact that allegations in the charge-sheet could not be substantiated by way of any legal evidence;
vii. Representation dated 03.02.1992 seeking copies of documents was refused by the department vide letter dated 10.03.1992 and removal order dated 06.05.1992 was wrongly passed by the Depot Manager on the basis of finding of enquiry officer.
7. It is submitted that entire proceeding is invalid, improper, incompetent and malafide in the absence of compliance of principles of natural justice and various instructions contained in circulars/orders dated 12.12.1952, 29.07.1954, 30.10.1965, 03.01.1966 and 28.05.1980. It is further submitted that allegations in the charge-sheet are vague and ambiguous for want of proper and adequate particulars. Workman, in addition, has denied allegations of mis-behaviour with the checking staff and refusal to receive challan by adverting to cross-examination of Shri Narender Nath Sahani during enquiry proceedings wherein he has admitted that way-bill was closed before checking and tickets shown the way-bill are deemed to have been sold to the passengers.
8. Respondent DTC has filed written statement supporting the finding of enquiry officer by relying upon enquiry report in support of removal order. Averments in the statement of claim have been specifically denied by management by stating that workman having collected fare did not issue tickets to 12 Page No. 5 of 13 05.10.2021 Biri Singh Vs. DTC LID No. 559/2019 passengers and refused to sign and accept the challan slip. Allegations of invalid and improper enquiry has been also disputed by insisting that departmental proceeding was conducted by the enquiry officer in accordance with the principles of natural justice.
9. Preliminary issue regarding fairness of enquiry was settled on 20.03.1997 and both parties were directed to lead evidence on the issue.
10. Workman in support of his case, tendered his affidavit Ex.WW-1/A in evidence wherein he has specifically deposed to have issued Rs.2/- tickets per passenger which were entered as sold in the way-bill and all other facts mentioned in his claim. His cross-examination was recorded on 09.04.1999 and 20.04.2001.
11. Management, on the other hand, examined Shri Suresh Chand, Junior Clerk, Kalkaji Depot, DTC, Delhi on 06.03.2002 and preliminary issue regarding fairness of enquiry was decided against the management vide order dated 01.02.2005 by holding that enquiry was held in violation of principles of natural justice and finding of the enquiry officer were perverse.
12. Shri Ishwar Singh, ATI was thereafter examined as MW-2 on 03.04.2006 whereas Shri Biri Singh has examined himself in rebuttal on 27.07.2006.
13. Final arguments were heard and Award dated 14.09.2006 justifying removal of workman from service was passed by Ld. POLC, Karkardooma Courts, Shahadara, Delhi which was Page No. 6 of 13 05.10.2021 Biri Singh Vs. DTC LID No. 559/2019 assailed and set aside by Hon'ble High Court of Delhi vide order dated 20.02.2019 passed in W.P. (C) 559/2007 titled Biri Singh VS. DTC.
14. Judicial file was taken up for re-opening on 27.05.2019 and matter was thereafter received in this Court on 23.02.2021 pursuant to Order No. F.No.15(16)Lab./2021/647 dated 08.02.2021 of Additional Labour Commissioner, Govt. of NCT of Delhi, Labour Department, Sham Nath Marg, Delhi.
15. Shri P.C. Mishra for workman and Shri Ashish Dhingra for management have addressed their submissions and written submissions (synopsis) on behalf of workman has been filed in addition to oral submissions. AR for management, on the other hand, has urged for dismissal of claim by referring to reply dated 02.08.2019 filed along with copy of order dated 05.12.1998 passed in O.P. No. 178/92 allowing approval application for removal of workman from service.
16. AR for workman has vehemently argued by alluding to order dated 01.02.2005 passed by Shri C.K. Chaturvedi, Ld. POLC, Court No. VII, Delhi read with order dated 20.02.2019 of Hon'ble High Court of Delhi for raising specific plea of non- application of mind (i) in view of omission to consider the defence of the workman and (ii) failure of the Court to appreciate the effect of representation made by the workman soon after the incident as also the admitted position that the workman was not found to be in possession of any excess cash, he may have collected by way of fare from 12 Page No. 7 of 13 05.10.2021 Biri Singh Vs. DTC LID No. 559/2019 passengers, as alleged by the management.
17. I have given my thoughtful consideration to their rival submissions and meticulously perused the entire record including challan slip No.192773; checking report No. 163217; initial representation dated 22.04.1991; charge-sheet dated 06.05.1991; reply dated 29.05.1991 and copy of enquiry proceedings.
18. It would be apt to refer to following charges against the workman in the charge-sheet dated 06.05.1991:
i. Tickets @ Rs.2/- per passenger were not issued to a group of 12 passengers who had boarded the bus at Jama Masjid despite collecting the fare. ii. Workman refused to handover unpunched tickets to the checking staff and instead gave the tickets after punching them.
iii. Workman did not allow the team to check the cash and bus was eventualy taken to INA Police Post where cash was checked in the presence of Head Constable and a sum of Rs.2.45 was found short. iv. Workman refused to sign and receive the challan-slip and mis-behaved with the checking officials.
19. Hon'ble High Court of Delhi in para 12 of its order dated 20.02.2019 has observed that once the issue of legality of the domestic enquiry was held against the management, any findings of mis-conduct against the petitioner could be based only on the evidence led before the Court. It is, however, apt to Page No. 8 of 13 05.10.2021 Biri Singh Vs. DTC LID No. 559/2019 note that Shri Chand Ram, Driver, Badge No. 17315 was examined as defence witness during enquiry proceedings whereas WW-1 Shri Biri Singh has admitted his signatures at point 'A' on enquiry proceedings Ex.WW-1/M1 besides admitting that whatever was asked and answered during enquiry was recorded by the enquiry officer.
20. Disputed fact w.r.t. 12 tickets of Rs.2/- each bearing No.39132 to 39143 being sold and entered in the way-bill before inspection was carried has to be considered in the correct perspective. It is not the case of department that workman had collected excess fare from the passengers which would result in excess cash lying with the conductor rather workman is alleged to have collected lesser amount without issuing tickets to a group of 12 passengers who had boarded the bus from Jama Masjid.
21. Workman in para 3 of the statement of claim has categorically stated that tickets issued to passengers were checked by the checking officials and a 'cut' mark was put on those tickets in token of being checked. No suggestion was however put to MW-2 to Shri Ishwar Singh, ATI about any cut mark. Cross-examination of MW-2 Shri Ishwar Singh would rather reveal that suggestions that tickets were issued to all passengers; no passenger was found traveling without any ticket and punched tickets were collected from passengers for making a false challan against the workman were denied by the witness.
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22. WW-1 Shri Biri Singh in his cross-examination recorded on 09.04.1999 has initially deposed to have given punched tickets to the checking staff before resiling from his earlier statement in his cross-examination recorded on 27.07.2006. Relevant portion of his cross-examination recorded on aforesaid dates is extracted below:
Cross examination recorded on 09.04.1999.
"...... It is correct that I gave punched tickets to the checking staff. ....."
Cross examination recorded on 27.06.2006.
"...... It is incorrect to suggest that I refused to handover unpunched tickets to the checking staff and later on handed over tickets after punching them. ......"
23. Much emphasis has been laid upon entries in the way-bill Ex.MW-2/4 and MW-2 Shri Ishwar Singh, ATI during his cross- examination has admitted that number of way-bill was closed by the checking staff upon boarding the bus, however, he has also alluded to statement of Shri Shakeel Ahmed referred as Ex.MW-2/3 and deposed that fact of conductor having refused to sign the challan slip was mentioned in the checking report Ex.MW-2/2. Since way-bill was lying with the conductor who is required to make the entries as soon as the tickets are sold and there is no dispute over way-bill being closed at ticket No. 39144 so crux of the case lies over the disputed fact of handing over punched tickets by the conductor vis-a-vis allegation of Page No. 10 of 13 05.10.2021 Biri Singh Vs. DTC LID No. 559/2019 punched tickets being collected from the passengers for making false challan against the workman.
24. WW-1 Shri Biri Singh during his cross-examination recorded on 27.07.2006 has denied the suggestion that he refused to show the cash to the checking staff and that cash could be checked by the officials only after the bus was taken to police station where a sum of Rs.2.45 was found short. He, in addition, has also denied the suggestion that the bus was stopped at INA check post. It is, however, relevant to note that Shri Chand Ram, Driver, Badge No. 17315 in his testimony recorded during enquiry as defence witness has deposed that the bus was stopped at INA check post and a sum of Rs.2.45 was found short. The fact that workman has tried to mislead the Court by denying the suggestion that bus was taken to INA check post coupled with the fact that a sum of Rs.2.45 was found short which could not be explained by the workman dissuades the Court from relying upon his testimony.
25. Absence of valid explanation justifying shortage of Rs.2.45 either in the claim or in the affidavit tendered in evidence becomes significant considering the fact that driver Shri Chand Ram in his testimony recorded during enquiry proceedings has deposed that the amount was spent upon tea and mathhi.
26. MW-2 Shri Ishwar Singh in his cross-examination has denied the suggestion that punched tickets were taken from passengers for making false challan against the workman Page No. 11 of 13 05.10.2021 Biri Singh Vs. DTC LID No. 559/2019 whereas tickets collected during inspection were not put to the witness for proving any 'cut' mark upon those tickets for impeaching his testimony.
27. Facts and circumstances of the case lead to the only inference that workman having collected lesser amount as per prevalent malpractice had neither made any entry in the way-bill nor issued any ticket to the group of 12 passengers having boarded at Jama Masjid till the bus was stopped by the checking staff near Safdarjung Airport and tried to hand over punched tickets to the passengers after necessary entry in the way-bill when he was stopped by the checking team and punched tickets were collected from the workman.
28. Non-examination of Sh. Shakeel Ahmed by management cannot be considered fatal in view of testimony of MW-2 Shri Ishwar Singh who has deposed that statement Ex.MW-2/3 on the reverse side of challan slip was written by the passenger.
29. Management has therefore succeeded in establishing the mis-conduct committed by workman in view of absence of valid explanation justifying shortage of Rs.2.45. Removal of workman from service is therefore held to be legal and justified in view of five adverse entries in his past record.
30. Reference under Section 10(1)(c) read with Section 12(5) of the I.D. Act is accordingly answered by holding removal of workman Shri Biri Singh from service as legal and justified.
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31. Attested copy of Award be sent to the office of Secretary (Labour), 15 Rajpur Road, Delhi for publication as per rules and judicial file be consigned to record room after all necessary legal formalities.
ANNOUNCED IN THE OPEN COURT
DATED: 05.10.2021 Digitally signed
TARUN by TARUN
YOGESH
YOGESH Date: 2021.10.11
15:51:20 +0530
(TARUN YOGESH)
PRESIDING OFFICER - LABOUR COURT-08
ROUSE AVENUE COURTS: NEW DELHI
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