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Delhi District Court

Sh. Virender Kumar vs M/S. Delhi Transport Corporation ... on 18 September, 2015

      IN THE COURT OF SHRI UMED SINGH GREWAL
      PO:LC­XVII, ROOM NO. 22 : KKD COURTS :DELHI

ID No.10/10
Unique ID No.02402C0017882010

Sh. Virender Kumar,
S/o Ram Chander,
Village Khera Kalan,
P.S. Samai Pur Badli, Delhi
                                                 ..............Workman
                                Versus

M/s. Delhi Transport Corporation (D.T.C),
IP Estate, New Delhi.

                               ............. Management
DATE OF INSTITUTION          :       11.01.2010.
DATE ON WHICH AWARD RESERVED :       07.09.2015.
DATE ON WHICH AWARD PASSED   :       18.09.2015.

A W A R D :­


1.

Vide Order No. F.24(126)/09/Lab./CD/283 dated 26.11.09, issued by Government of NCT of Delhi, a reference was sent to this Court with the following terms:­ "Whether the removal of Sh. Virender Kumar S/o Sh. Ram Chander from services by the management ID No. 10/10 1/11 vide order dated 21.12.2001 is illegal and/or unjustified and if so to what relief is he entitled"

2. Claimant's case is that he was appointed as a Daily Wage Conductor on 08.10.1982 and his services were confirmed on 08.04.1983. A false chargesheet was served upon him on 12.02.1988 on the allegations of forgery of tickets. He was suspended on 13.02.1988 and FIR No. 26/88 under Section 420/468/471 IPC was registered against him in PS Adarsh Nagar. Due to participation in workers strike, he was dismissed from job on 19.03.1988, but was reinstated on 23.01.1990. The management was hellbent to terminate his service and so, asked him to file reply to the chargesheet which was biting dust till then. He replied on 11.05.1990, but without considering his reply, domestic enquiry was initiated against him. He was not allowed to take help of co­worker, the Enquiry Officer had acted in biased manner and proceedings were held ex­parte. He had filed a suit for permanent injunction for keeping the domestic enquiry proceedings in abeyance till the decision of the criminal case, but the suit was dismissed, against which he filed an appeal which was also dismissed. Enquiry Officer found him guilty, submitted the report and taking into account the report, his services were terminated on ID No. 10/10 2/11 21.12.2001.

3. Written statement is to the effect that the claimant was appointed as Daily Wage Conductor on 08.10.1982 and his services were confirmed on 08.04.1983. He was served a chargesheet dated 17.02.1988 because forged tickets were found in his possession and also he was in the possession of excess cash. On 12.02.1988, he was suspended. It has been admitted that his services were terminated in 1988 due to participation in strike, but he was reinstated on 23.01.1990. By that time, the domestic enquiry proceedings were still pending and that is why he was asked to submit his reply, which was not satisfactory and hence domestic enquiry was directed to be initiated. It is further mentioned that there was no question of not giving any opportunity to the workman to defend himself by co­ worker. On 07.11.1990, the claimant himself had sought time to bring co­worker, but on the next date i.e. on 15.01.1991, he did not bring the co­worker and also did not cross examine the witnesses produced by the management. He did make any statement in defence before the Enquiry Officer and rather took the plea that his reply to the chargesheet be read as his statement. The Enquiry Officer found him guilty and taking into account his report, service of the claimant ID No. 10/10 3/11 was terminated vide letter dated 21.12.2001. It is further mentioned that during enquiry proceedings, the workman was very much present, but he did not cross examine the witnesses. He refused to examine any witness in defence.

4. Following issues were framed on 25.02.2011:­

(i) Whether the enquiry conducted by the management against the workman was unjust, unfair, illegal and in violation of principles of natural justice? OPW.

(ii) As per terms of reference.

5. Claimant tendered his affidavit in evidence as Ex.

WW1/A deposing that a false chargesheet was served upon him on 12.02.1988 for forgery of tickets and also FIR No. 26/88 was got registered against him in PS Adarsh Nagar under Section 420/468/471 IPC. He further deposed that he was not given proper opportunity to defend his case and was not allowed to take assistance of any co­worker and in this way the Enquiry Officer had acted in a biased manner. He had filed a civil suit for keeping the enquiry proceedings in abeyance, but it was dismissed. He filed appeal ID No. 10/10 4/11 against the said judgment, but appeal was also dismissed. It is next deposed that he has been acquitted in the criminal trial by the Court of Mr. Prashant Kumar, MM, Rohini, Delhi vide order dated 18.10.2008.

6. The management examined two witnesses. MW1 Mr. Charan Singh was working as Traffic Supervisor on 11.02.1988 when the claimant was checked by the raiding members. On that day, the claimant was doing duty of advance booking. He was checked by the assistant of MW1 in the presence of MW1 and they found a block of fake tickets of one rupee each in the possession f the claimant. Serial number of those tickets were not mentioned in the waybill. Thereafter, cash of the workman was checked and he was found in excess of Rs.25.86 paisa. He was not carrying his tickets book. Challan Ex. MW1/1 was issued. Thereafter, checking report Ex. MW1/2 was prepared. He further deposed that the claimant confessed his guilt in his own hand writing Ex. WW1/M1.

MW2 Mr. R.S. Minhas deposed that after receipt of challan and checking report from the checking staff accompanied by the confessional statement of the claimant, he was suspended from the services of the corporation. Later on, chargesheet was issued to ID No. 10/10 5/11 him, to which he had replied, which was not satisfactory and hence, domestic enquiry was initiated, in which he was found guilty. He further deposed that after taking into account the report of Enquiry Officer and the past conduct, a show­cause notice was served upon the claimant. In reply, he could not make out a favourable case in his favour and his services were terminated.

Issue No. 1:

7. This issue has already been decided in favour of management and against claimant vide order dated 20.08.2015 by holding that the enquiry officer had followed the principles of natural justice and that there is no perversity in the enquiry report.

Issue No. 2:

8. Ld. ARW argued that the claimant has been terminated illegally as besides taking disciplinary action, the management had lodged a criminal case also against him on the same allegations vide FIR No. 26/88 U/s 411, 409 & 380 IPC in PS Adarsh Nagar. In that case, the claimant has been acquitted by Ld. MM vide judgment dated 18.10.2008. As the termination of the claimant has become ID No. 10/10 6/11 illegal he is entitled to be reinstated with full back wages. In support, he relied upon:­ (i) GM Tank Vs. State of Gujrat Indian Kanoon­ http:/indian kanoon.org/doc/1212741,Capt.M. (ii) Paul Anthony Vs. Bharat Gold Mines Ltd. & Another Indian Kanoon­ http:/indian kanoon.org/doc/888207

9. On the other hand, Ld. ARM argued that acquittal in criminal case has no bearing in the domestic enquiry because standard of proof in domestic enquiry and criminal trial are totally different. In criminal case, the standard of proof is of beyond reasonable doubt whereas in domestic enquiry it is only of preponderance of probability. In support, he relied upon Divisional Controller, KSRTC vs M.G. Vittal Rao Manu/SC/1368/2011 also (2012)SCC442, Workman of Balmadies Estates vs Management Balmadies Estates and others (2008)6SCC517, Southeren Railway Officers Assn. And another vs Union Of India (2009)2SCC24, Ajit Kr.Nag vs G.M. (P.J.) Indian Oil Corporation Indian Kanoon­http:/indian kanoon.org/doc/1639372.

ID No. 10/10 7/11

10. As per chargesheet Ex.MW2/2, the charges against the claimant were that when he was checked by the checking staff on 11.02.1988 at 9.20 AM in Adarsh Nagar Bus Terminal, he was found in possession of about 100 tickets of Rs. 1/­ each and entry of those tickets had not been made in the way bill. He was found in possession of excess amount of Rs. 25.85/­.

Enquiry proceedings have already been upheld and hence it has been proved against the claimant that he had committed the misconduct as stated in the chargesheet.

11. Section 11 of ID Act, 1947 empowers the labour court that if it is satisfied that order of discharge or dismissal is not justified, it may set aside the said order and modify the punishment.

12. It is not in dispute that the main charge against the claimant was that he was found in possession of 100 tickets of Rs. 1/­ each and entry of those tickets had not made in the way bill. On the same facts, a criminal case was registered against him. The criminal case arising from FIR No. 26/88 U/s 411, 409, 380 IPC was decided ID No. 10/10 8/11 by the court of Sh. Prashant Kumar, the­then Ld. MM, Rohini Court vide judgment dated 10.08.2008. .

13. This court is in agreement with the Ld. ARM that acquittal in criminal case does not ipso facto result into modifying of the punishment because standard of proof in criminal case and domestic enquiry is quit different. Same is the ratio of judgment relied upon by Ld. ARM. But simultaneously, this court is also in agreement with Ld. ARM to some extent that where facts of domestic enquiry and criminal case are same, the labour court can take into account the acquittal in criminal case as was held in judgment G.M. TanK (supra).

14. Facts of G.M. Tank (Supra) case were that the workman was chargesheeted U/s 5(2) of Prevention of Corruption Act for having properties disproportionate to his known source of income. The departmental enquiry was held in which he was found guilty and dismissed from service. He filed writ petition against dismissal but the same was dismissed. However, the Apex Court set aside the dismissal order from service relying upon Capt. M. Eoil Anthony ID No. 10/10 9/11 (supra) saying that since facts in criminal proceedings and domestic enquiry were the same. This citation squarely covers the case of the claimant.

15. As per previous conduct record Ex.MW2/5, there is only one bad entry in his record. As per that document, the claimant came to office 40 minutes earlier on 09.09.1983 for which he was advised. The claimnt had joined the management as daily wager conductor on 08.10.1982 and his services were confirmed on 08.04.1983. His services were terminated on 21.12.2001. It means that he had served management for more than 19 years. In such a long service record, there was no question on his integrity except the present one.

16. Taking into account his acquittal in criminal case, services of more than 19 years and excellent past record, it is held that termination of his services is not justified. Punishment is slightly disproportionate.

Relief:

17. Termination of services of the claimant is not illegal but ID No. 10/10 10/11 it is unjustifiable because it is disproportionate to the misconduct proved against him. He had served the management for more than 19 years. There is only one bad entry in his service record. That bad entry is because he had come to the depot 40 minutes earlier. In criminal case instituted on the facts of the enquiry, he has been acquitted. So, termination of his service vide order dated 21.12.2001 is set aside and punishment is modified to the extent that the claimant shall be deemed to have retired on 21.12.2001. Retiremenal and other benefits, if any, be given by the management to him as per law. Relief of reinstatement is denied. The management is directed to pay the said benefits, if any, to the workman within a month from the date of publication of this award failing which it shall be liable to pay interest @ 9 per cent per annum from today till realization. Award is passed accordingly.

18. The requisite number of copies of the award be sent to the Govt. of NCT of Delhi for its publication. File be consigned to record room.

Dictated to the Steno & announced (UMED SINGH GREWAL) in the open Court on 18.09.2015. POLC­XVII/KKD, DELHI. ID No. 10/10 11/11