Delhi District Court
Sh. Vijay Pal Singh vs (2) The Depot Manager on 16 September, 2017
IN THE COURT OF SHRI UMED SINGH GREWAL
PILOT COURT / POLCXVII ROOM NO. 22 :KKD
COURTS: DELHI
LIR 506/17.
In the matter of:
Sh. Vijay Pal Singh,
Age 58 years, S/o Sh. Bhanwar Singh
R/o H. No. WZ585, Naraina Village,
New Delhi.
..............Workman
Versus
M/s. Delhi Transport Corporation (D.T.C.),
IP Estate, New Delhi.
(2) The Depot Manager,
Delhi Transport Corporation,
Mayapuri, Depot, New Delhi.
............. Management
DATE OF INSTITUTION : 23.02.2017.
DATE ON WHICH AWARD RESERVED : 06.09.2017.
DATE ON WHICH AWARD PASSED : 16.09.2017.
A W A R D :
1. Vide Order No. F.24(45)/17/Ref./CD/Lab/ 197 dated
30.01.2017, issued by Government of NCT of Delhi, a reference
was sent to this Court with the following terms:
"Whether the services of workman Sh. Vijay
LIR 506/17. 1/22
Pal Singh S/o Sh. Bhanwar Singh have been
terminated illegally and / or unjustifiably by
management; and if so, to what relief is he
entitled and what directions are necessary
in this respect?"
2. Claimant's case is that he had joined the management
as Conductor in 1981 and after completion of probation period, his
service was confirmed vide badge No.15107. He was placed under
suspension on 22.12.1986 and was served with chargesheet dated
09.01.1987 on the false facts that while performing duty on bus
No. DEP9114 on Delhi - Jaipur route, he had not issued tickets to
10 passengers on 11.12.1986 even after taking due fare from them.
One Mr. Amar Nath, Assistant Traffic Superintendent assumed
himself as Enquiry Officer without any formal appointment and he
examined Mr. Tej Pal ATI on 18.09.1987. On 28.09.1987, he
recorded statement of Mr. Sahib Singh TI and Sh. Sri Krishan ATI.
Thereafter, his service was terminated on 23.03.1988 by the Depot
Manager, Vasant Vihar Depot on the allegation that he had
instigated coworkers to go on strike on 171819 March, 1988.
He was taken back on duty on 2728 October, 1989 with following
terms and conditions :
(i). The corporation shall consider to reemploy the claimant on
the same post and on the same pay as was available to him
at the time of dismissal.
LIR 506/17. 2/22
(ii). He shall not be entitled to salary / wages for the intervening
period viz. from the date of termination till the date of re
employment. He would also not be entitled to any other
benefit and he shall have to give an undertaking that he
would not raise any claim about wages etc. in any court or
agency.
(iii). The intervening period between the date of dismissal till the
date of reemployment shall be treated as diesnon and this
period shall not be counted for purpose of leave, bonus,
increments and gratuity.
(iv). During this period of diesnon, he shall not be deprived of
service benefits available to him prior to the date of
dismissal.
(v). He shall withdraw from the court of Industrial Tribunal or
from any other court any matter which is pending and in
which the order of dismissal has been challenged and for
this purpose he shall file an appropriate application.
(vi) He shall not raise any dispute or controversy with regard to
his dismissal or the aforesaid terms in any Court.
(vii) He will remain on probation for one year and h is work and
conduct shall be watched and mentioned during his period a
red card shall be placed in his file and upon satisfactory
completion of the probationary period, the red card shall be
removed.
(viii). All other terms and conditions shall remain same as were
prevailing at the time of appointment.
Without passing any formal order, he was directed by
management to appear before another Enquiry Officer Mohd. Irfan
on 06.10.1990. That Enquiry Officer recorded statement of ATI
LIR 506/17. 3/22
Sh. Jagdish Chander and held some proceedings on 06.10.1990,
copy of which was not provided to him. He was issued showcause
notice dated 23.04.1991 why proposed punishment of removal
from service be not confirmed on the allegations contained in
chargesheet dated 09.01.1987. As the showcause notice was
issued after 04 years of the chargesheet, he sent a representation
dated 30.04.1991 to the management for furnishing him copies of
terms and conditions upon which he was taken back in
employment in October, 1989. He had also asked the management
to supply him copy of circulars dated 12.12.1952 and 29.07.1954.
Vide reply dated 21.05.1991, the management refused to supply
him those documents and hence he was constrained to make
another representation dated 29.05.1991 again asking the
management to supply him the documents.
He was freshly employed in 1989 and terms and
conditions of his employment show that the management had not
reserved any right to continue disciplinary proceedings based upon
the earlier chargesheet. On reemployment, he was treated as a
probationer for a period of one year from the date of employment
and his work and conduct for this period was watched and
monitored. A red card was placed in his file which was to be
removed only after satisfactory completion of probation period.
He completed the probation period satisfactorily and hence the
LIR 506/17. 4/22
management was not justified to continue with disciplinary
proceedings initiated on the chargesheet dated 09.01.1987. So, the
action of the management based upon chargesheet dated
09.01.1987 is barred under the principles of waiver, acquiescence,
estopples and condonation.
As per para No. 8(a) of the instructions dated
12.12.1952, if a checking member finds a passenger who had paid
legal fare and had not been issued ticket, should collect unpunched
tickets from Conductor, take down the name and address of the
passenger and the other passengers and then submit report to the
Traffic Superintendent of the management. As per para No. 10, it
is for the checking staff to supervise alighting and boarding of the
passengers. As per para No. 8 (iv) of the instructions dated
29.07.1954, if a Checker or Inspector finds a passenger travelling
without ticket who alleges that he had paid the fare, the Checker
should ask the passenger in the presence of the Conductor as to
why he had not got the tickets. The checking officials, as far as
possible, should record the address of the passenger upon which
the checking official and conductor should affix their signatures.
If the allegations of the passenger against the Conductor are not
established, due to absence of witnesses, the checking official after
satisfying himself, will order the Conductor to ask the passenger to
leave the bus and in case it is felt necessary, he would also help the
LIR 506/17. 5/22
Conductor in that respect.
The management did not examine any passenger
before the Enquiry Officer. The claimant never admitted before
the checking staff that he had not issued tickets to the passengers.
He had not handed over unpunched tickets to the checking staff.
He never admitted that statement any of the passenger was
recorded in his presence. His cash was never checked. Without
any basis, the Enquiry Officer presumed that the statements of the
passengers were recorded in his presence. There was no valid
appointment of Enquiry Officer. Documents were not supplied to
him before or during enquiry. The Enquiry Officer had not
complied with the procedure prescribed in circulars dated
12.12.1952, 29.07.1954 and 28.05.1980. He acted as a Judge and a
Prosecutor. He put leading questions to the witnesses. The entire
proceedings recorded by him were in violation of principles of
natural justice in which no adequate and proper opportunity was
given to him to defend the case.
The Depot Manager of Ambedkar Nagar Depot cannot
take any disciplinary action against him because chargesheet was
issued by Depot Manager of I.P. Depot. Against showcause
notice, he had filed a Civil Writ Petition in the Hon'ble High Court
which was dismissed in default on 22.08.2008. When he came to
know of the dismissal, he moved the restoration application. The
LIR 506/17. 6/22
Hon'ble High Court, vide order dated 26.08.2013, transferred writ
petition to Central Administrative Tribunal (Principal Bench), New
Delhi. The matter was listed before the CAT which ultimately
disposed off the same vide order dated 26.08.13 giving him liberty
to approach appropriate forum for redressal of his grievances.
3. Written statement is to the effect that claimant was
appointed by the management as R.C. Conductor on 01.08.1981
and was brought on monthly rates wages on 01.02.1982. On
11.12.1986, his duty was on bus No.DEP9114 plying on Delhi -
Jaipur route. On that day, when the bus was checked by the
checking officials at Thana Ghaji at 5.30 p.m, 10 passengers in
three groups were found alighting from bus without tickets. They
were in three groups of 07, 02 and 01. Groups of 7 passengers and
one passenger told the raiding team members that they had boarded
the bus from Alwar for Thana Ghaji and had paid due fare of
Rs.6/ each. The third group of two passengers told that they had
boarded from Siraska to Thana Ghaji and had paid due fare of
Rs.1/ per passenger. All three groups told that despite payment of
due fare, the claimant had not issued them tickets. When, the
passengers were confronted with claimant, he admitted his fault at
the spot and surrendered 10 unpunched tickets - eight of Rs.6/
each and two of Rs.1/ each. Checking team reported the matter
LIR 506/17. 7/22
upon which claimant was suspended on 22.12.1986 and
chargesheet dated 09.01.1987 was issued to him. The suspension
order was revoked and case was entrusted to Enquiry Officer for
probe. The Enquiry Officer had conducted enquiry on 18.09.1987.
Thereafter, the claimant was dismissed from service on 23.03.1988
for participating in illegal strike in March, 1988. Later, he was re
employed on 28.10.1989 on the same position from which he was
removed and posted at Ambedkar Nagar Depot.
After reemployment, the cheating case, which was
pending when he was dismissed, was reopened and enquiry was
restarted. The Enquiry Officer found him guilty upon which a
showcause notice dated 23.04.1991 was issued why punishment
of removal from service be not confirmed. Instead of giving reply
to the showcause notice, he filed WPC No.2017/91 in the Hon'ble
High Court of Delhi and obtained stay on proceedings on
23.09.1992. Later, the WPC was dismissed on 22.08.2008 due to
nonprosecution. The claimant then moved restoration application,
but the Hon'ble High Court, vide order dated 18.03.2013,
transferred the case to CAT, Principal Bench, Delhi which finally
disposed off the matter on 26.08.13 giving claimant liberty to
approach appropriate forum for redressal of his grievances.
After issuance of showcause notice in 1989, the
claimant was transferred to Mayapuri Depot. After going through
LIR 506/17. 8/22
the relevant documents and following principles of natural justice,
the disciplinary authority issued letter dated 22.12.11 to the
claimant to file reply to the showcause notice issued to him in
1989. He filed reply which was not satisfactory and hence, he was
removed from service vide order dated 16.01.2012. When the
claimant had filed WPC in Hon'ble High Court, the management
had handed over original file to its Advocate Sh. T. Shridharan on
03.12.1991. Despite best efforts by management, the Advocate did
not return file and hence it was relying upon the photostate copies
of the documents.
Claimant's past record is gloomy. He was given
punishment six times. He was punished in a cheating case first
time on 16.04.1987.
4. Following issues were framed on 18.04.17:
1. Whether the enquiry conducted by the management
is not fair and proper? OPW.
2. As per terms of reference.
3. Relief.
5. In order to get declared enquiry proceeding invalid,
claimant tendered his affidavit in evidence as Ex. WW1/A
mentioning all the facts stated in statement of claim. He did not
rely upon any document.
LIR 506/17. 9/22
6. On enquiry issue, the management examined its Depot
Manager Sh. Nand Kishore as MW1. He repeated the contents of
written statement and relied upon following documents :
1. Mark M1 (01 to 04 pages) is photocopy of chargesheet
dated 09.01.1987.
2. Mark M2 (05 to 14 pages) is photocopy of enquiry
proceedings.
3. Mark M3 (15 to 20 pages) is photocopy of English
translation of enquiry proceedings.
4. Mark M4 is photocopy of past record of workman.
5. Mark M5 is photocopy of order dated 16.01.12 vide which
workman was removed from services.
Issue No. 1.
7. This issue has already been decided in favour of
management and against claimant by this court vide order dated
22.08.2017 by holding that the Enquiry Officer had not violated
any principle of natural justice and that the report was not suffering
from any perversity.
Issue No. 2.
8. Ld. ARW argued that the claimant was chargesheeted
on false facts that when his bus No.DEP9114 plying on Delhi -
Jaipur (via Alwar) route was checked by raiding team on
LIR 506/17. 10/22
11.12.1986 at Thana Ghaji at about 17.30 and found that he had
not issued tickets to 10 passengers on 11.12.1986 even after taking
due fare from them. One Mr. Amar Nath, Assistant Traffic
Superintendent assumed himself as Enquiry Officer and held
enquiry. His service was terminated on 23.03.1988, but taken back
on duty on 2728 October, 1989 with some terms and conditions.
He worked thereafter continuously but was removed from service
vide order dated 16.01.2012. Ld. ARW submitted that since
workman has worked with management for more than 30 years,
punishment of removal be set aside.
On the other hand, ld. ARM argued that the claimant's
bus No. DEP9114 plying on Delhi - Jaipur route was checked by
the raiding team on 11.12.1986 at Thana Ghaji at about 17.30
hours and detected 10 passengers getting down from bus without
tickets. They were in three groups (7, 2 & 1). Group of 7
passengers and one separate passenger boarded the bus from Alwar
to Thana Gaji and had already paid due fare of Rs.6/ each. The
third group of 2 passengers boarded from Siraska for Thana and
already paid the due fare of Rs.1/ each. But workman did not
issue any ticket to the passengers despite collecting due fare.
Workman was confronted with the ticketless passengers and
confessed his fault at the spot and surrendered 10 unpunched
tickets, 08 of Rs.6/ each and two tickets of Rs.1/ each on demand
LIR 506/17. 11/22
of checking officials. The management has proved the
misconduct of the claimant. He lastly argued that amount of
misappropriation is totally irrelevant to decide the punishment as
even a small amount can make a man dishonest.
9. In Jantha Bazar (South Kanara Central Cooperative
Wholesale Stores Ltd.) And Others Vs. The Secretary, Sahakari
Noukara Sangh and Others, (2000) 7 SCC 517, the allegations
against the workmen were of breach of trust and misappropriation
and following was held by the Apex Court :
"6.... Once act of misappropriation is
proved, may be for a small or large
amount, there is no question of showing
uncalled for sympathy and reinstating
the employees in service. Law on this
point is well settled. (Re.: Municipal
Committee, Bahadurgarh v. Krishnan
Behari and Ors.) In U.P. State Road
Transport Corporation Vs. Basudeo
Chaudhary and Anr. this Court has set
aside the judgment passed by the High
Court in a case where a conductor
serving with the U.P. State Road
Transport Corporation was removed
from service on the ground that alleged
misconduct of the conductor was attempt
to cause loss of Rs.65/ to the
Corporation by issuing tickets to 23
passengers for a sum of Rs.2.35 but
LIR 506/17. 12/22
recovering @ Rs.5.35 per head and also
by making entry in the waybill as having
received the amount of Rs.2.35, which
figure was subsequently altered to
Rs.2.85. The Court held that it was not
possible to say that Corporation
removing the conductor from service has
imposed a punishment which is
disproportionate to his misconduct.
Similarly in Punjab Diary Development
Corporation Ltd. and Anr. v. Kala Singh
and Ors., this Court considered the case
of a workman who was working as a
Diary HelpercumCleaner for collecting
the milk from various centres and was
charged for the misconduct that he
inflated the quantum of milk supplies in
milk centres and also inflated the quality
of fat contents where there were less fat
contents. The Court held that "in view of
proof of misconduct a necessary
consequence will be that Management
has lost confidence that the workman
would truthfully and faithfully carry on
his duties and consequently the Labour
Court rightly declined to exercise the
power under Section 11A of the I.D. Act
to grant relief with minor penalty.
7. In view of the aforesaid settled legal
position, the High Court materially erred
in confirming the directions given by the
Labour Court in reinstating the
respondent - workmen with 25% back
wages. For giving the aforesaid
LIR 506/17. 13/22
directions, the Labour Court considered
that there is no evidence regarding past
misconduct by the employees and,
therefore, it can be observed that they
have rendered several years of service
without any blemish and to some extent,
there was lapse on the part of the
management.
8. In case of proved misappropriation,
in our view, there is no question of
considering past record. It is the
discretion of the employer to consider the
same in appropriate cases, but the
Labour Court cannot substitute the
penalty imposed by the employer in such
cases."
10. In Municipal Committee, Bhahadurgarh Vs.
Krishan Behari and Ors. (1996) 2 SCC 714, the allegations
against the claimant were of misappropriation of sum of
Rs.1548.78p by falsifying the accounts. The Apex Court ruled that
in a case of such nature - indeed, in cases involving corruption
there cannot be any punishment than dismissal. Any sympathy
shown in such cases is totally uncalled for and opposed to the
public interest. The amount misappropriated may be small or
large, it is the act of misappropriation that is relevant.
11. In U.P. State Road Transport Corporation Vs.
LIR 506/17. 14/22
Basudeo Chaudhary, (1997) 11 SCC 370, allegations against the
workman were that he had charged Rs.5.35 per head from 23
passengers. In the waybill, he had entered as having received the
sum of Rs.2.35 from each of them. The Apex Court held as
under :
"4. Having regard to the findings that
have been recorded by the Labour Court,
it is evident that this is a case where the
petitioner had tried to fabricate the
record regarding recovery of fare to
show that the passengers had travelled
for a lesser distance from Khalilbad to
Gorakhpur although they had actually
travelled from Basti to Gorakhpur. The
misconduct that was found established
was thus serious in nature and the
Labour Court has rightly upheld the
punishment of removal from service that
was imposed on the petitioner. The High
Court was in error in interfering with
the award of the Labour Court and in
substituting the penalty of censure for
removal from service on the view that
there was only an attempt to cause loss
of Rs.65 to the Corporation and the
action of the Corporation terminating the
services of the petitioner was not justified
.
5. The learned counsel for the petitioner has invited our attention to the decisions of the Court in Bhagat Ram v. State of H.P. (1983) 2 SCC 442 and Gulzar Singh LIR 506/17. 15/22 v. State of Punjab 1968 Supp SCC 738 and has submitted that in the facts of this case the High Court was right in taking the view that the penalty of termination of services was disproportionate to the misconduct found established. We are unable to agree. The facts in the cases aforementioned were very different and they can have no application to the present case. Having regard to the misconduct that has been found established against the petitioner, it is not possible to say that the Corporation, in removing the petitioner from service, has imposed a punishment which is disproportionate to the misconduct. We are, therefore, unable to uphold the judgment of the High Court."
12. In Rustom & Harnsby Ltd. Vs. T.B. Kadam, 1976 SCR (1) 119, the allegations against the workman were that he had removed the Fluroscent Tube from the guard room and was caught when he was carrying away from the factory. The Apex Court upheld the punishment of the dismissal.
13. In Depot Manager, A.P.S.R.T.C Vs. Raghuda Siva Sankar Prasad, (2007) 1 SCC 222, the allegation against the workman was that he had stolen a new tube of 900X20 size. Following was held by the Apex Court : LIR 506/17. 16/22 "19. Learned Judges of the High Court have also failed to appreciate that once an employee lost the confidence of employer, it would not be safe and in the interest of the Corporation to continue the employee in the service. The punishment, imposed by the management in the facts and circumstances of the case, is not disproportionate and that the punishment of removal from service is the just and reasonable and proportionate to the proved misconduct. In our view, the theft committed by the respondent amounts to misconduct and, therefore, we have no hesitation to set aside the orders passed by the learned Single Judge and also of the Division Bench and restore the order of removal of the respondent from service. When the Labour Court has proved the charge, no interference by the learned Single Judge or by the Division Bench of the High Court was called for. In the instant case, the jurisdiction vested with the Labour Court has been exercised judiciously and fairly. In our opinion, the conclusion arrived at by the High Court in ordering reinstatement; continuity of service was shockingly disproportionate to the nature of charges already proved which is in the nature of theft.
It is also not open to the Tribunal and Courts to substitute their subjective LIR 506/17. 17/22 opinion in place of the one arrived at the domestic Tribunal. In the instant case, the opinion arrived at by the Corporation was rightly accepted by the Tribunal but not by the Court. We, therefore, hold that the order of reinstatement passed by the Single Judge and the Division Bench of the High Court is contrary to the law on the basis of a catena of decisions of this Court. In such cases, there is no place for generosity or sympathy on the part of the judicial forums for interfering with the quantum of punishment of removal which cannot be justified. Similarly, the High Court can modify the punishment in exercise of its jurisdiction under Article 226 of the Constitution only when it finds that the punishment imposed is shockingly disproportionate to the charges proved Interfering therefore with the quantum of punishment of the respondent herein, is not called for. In our opinion, the respondent has no legal right to continue in the Corporation. As held by this Court, in a catena of judgments that the loss of confidence occupies the primary factor and not the amount of money and that sympathy and generosity cannot be a factor which is permissible in law in such matters. When the employee is found guilty or theft, there is nothing wrong in the Corporation losing confidence or faith in such an employee and awarding LIR 506/17. 18/22 punishment of removal. In such cases, there is no place of generosity or place of sympathy on the part of the judicial forums and interfering with the quantum of punishment."
14. On the small amount of stolen property, the Hon'ble Madras High Court held following in Prasad Film Laboratories Vs. Presiding Officer, 2001 (89) FLR 135 (Madras High Court): "20. As pointed out by the counsel for the petitioner, this Court on several occasions would hold that the property stolen may be small or large but it is the act of theft that is relevant for imposing penalty and that any sympathy shown in such cases is totally uncalled for and is opposed to public interest.
21.The workman was employed in the petitioner company, where the confidence of the customers is paramount for the success of the business and the same cannot be disputed. The effect of the continuation of employment of such person, who had lost the confidence of the employer will be very serious. The reinstatement of the persons like the second respondent, who had patently duped his employer by committing theft of the film entrusted by the customers would certainly harm the reputation of the petitioner company.
LIR 506/17. 19/22
23. In my view the act of the theft committed by the second respondent is a grave misconduct and when the said misconduct is grave in nature, the gravity of the said act warrants the penalty of dismissal.
24.When a person is proved to have committed theft of the property of the company showing his lack of integrity and dishonesty, the Tribunal or the Court cannot direct the company to reinstate that workman, as it would amount to doing injustice to the institution like the petitioner company which has got a reputation."
15. As per chargesheet dated 09.01.1987, the allegations against the claimant are that his Bus No. DEP9114 plying on Delhi - Jaipur route was checked by the raiding team on 11.12.1986 at Thana Ghaji at about 17.30 hours and detected 10 passengers alighting from Bus without tickets. They were in three groups (7, 2 & 1). Group of 7 passengers and one separate passenger boarded the bus from Alwar to Thana Gaji and had already paid due fare of Rs.6/ each. The third group of 2 passengers had boarded from Siraska to Thana and had also paid the due fare of Rs.1/ each. But workman did not issue any ticket to these passengers despite collecting due fare. Workman was confronted with the ticketless passengers and confessed his fault at LIR 506/17. 20/22 the spot and surrendered 10 unpunched tickets, 08 tickets of Rs.6/ each and two tickets of Rs.1/ each to the checking officials. In this way, he had caused wrongful gain to himself and wrongful loss to the management.
As per past record Mark M4 of claimant, there are 05 adverse entries against him. He was warned on 13.10.1986 for late running of trip. He was suspended on 22.12.1986 and 22.04.1987 for not issuing tickets after taking due fare. Vide order dated 05.05.1997, he was warned for not performing his duty diligently. On 02.03.1992, he was censured for not picking up waiting passengers. He is a habitual offender.
So, the decision of the management is not disproportionate to the proved misconduct.
16. In view of above discussion, it is held that management had not committed any illegality or unjustifiably in terminating the service of the claimant. The punishment handed down to him is not disproportionate to the proved misconduct.
Issue No. 3.
17. The management's case is well covered by UPSRTC Vs. Gopal Shukla CA No. 2038/12, decided by the Apex Court on 01.09.2015. In the cited case, the allegations against the bus conductor that 25 passengers were without tickets, were found LIR 506/17. 21/22 proved. 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. To the same effect are the facts of the case in hand.
18. In view of above discussion, it is held that claimant is not entitled to any relief. Statement of claim is dismissed. Parties to bear their own costs. Award is passed accordingly.
19. 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 16.09.2017. PILOT COURT/POLCXVII KKD COURT, DELHI.
Digitally
signed by
UMED SINGH
UMED GREWAL
SINGH Location: Delhi
Date:
GREWAL
LIR 506/17.
2017.09.16
22/22
16:47:28
+0530