Delhi District Court
Sh. Gajanand Sharma vs Delhi Transport Corporation on 2 December, 2009
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IN THE COURT OF SH BABU LAL: POIT-II,
KARKARDOOMA COURTS, DELHI
I.D. 101/01
Sh. Gajanand Sharma Workman
Ex-Conductor
S/o Late Sh. Jage Ram,
Pay Token No 39474
R/o 52, Kavita Colony, Nangloi,
Delhi 41.
Versus
Delhi Transport Corporation Management
I.P. Estate, New Delhi.
Through its Chairman and MD
AWARD
1.Workman has raised the present industrial dispute and on failure of conciliation proceedings, GNCT of Delhi referred the dispute to this Tribunal for adjudication in following terms of reference:-
'' Whether the punishment imposed upon Sh. Gajanand Sharma by the management vide their order dated 20.11.91 is illegal and/ or unjustified and if so, to what relief is he entitled and what directions are necessary in this respect ?
2. In the statement of claim, it is alleged that workman was appointed as conductor and on 21.1.91 he had been performing his duty on bus No 9996 from Delhi to Pilaini. He was allegedly implicated by the checking staff on false imputation. Workman was allegedly charge sheeted vide charge sheet dated 11.2.91 but charge sheet was never given to him, documents demanded by the 2 workman vide letter dated 12.2.91 were denied, workman was never communicated about inquiry proceedings and ultimately workman was removed from service vide order dated 20.11.91.
3. In the WS, it is alleged that on the basis of report of checking staff, charge sheet was given to the workman alleging that he had not issued tickets to passengers after collecting fare from them, he refused to surrender unpunched and punched tickets to checking staff, he did not give complaint book, he did not extend cooperation to checking staff so that bus could have been checking properly, he snatched the way voucher which was incomplete and he also gave blow to Sh. Balbir Singh, one of the checking staff members. It is alleged that documents demanded by the workman were supplied to him, workman was intimated to appear in the inquiry proceedings, was given full opportunity to defend his case but he intentionally did not cross examine the witnesses of the Management. It is also alleged that passengers were summoned by the Management to give evidence but they did not appear, workman was given opportunity to produce the witnesses but also did not produce. It is alleged that a legal and proper inquiry was conducted against the workman complying principles of natural justice.
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4. On the basis of pleadings of the parties, following issues were framed :-
(1) Whether the inquiry conducted against the workman was not just, fair and proper ?
(2) As per terms of reference.
(3) Relief.
5. Findings on issue No 1 as to validity of inquiry Vide order dated 1.10.09, issue No 1 pertaining to validity of inquiry was decided in favour of the workman and inquiry was set aside. Order dated 1.10.09 shall form part of this award. On setting aside of inquiry, following issue was framed :-
'' Whether the workman committed the misconduct imputed to him ?
6. In order to prove misconduct, Management has examined MW--2 Balbir Singh whereas workman has examined himself.
7. I have heard heard AR for the workman and have carefully perused written submissions filed on behalf of the Management as also record of the case. My issuewise findings are under :-
8. Findings on issue of misconduct MW--2 Sh. Balbir Singh has testified that on 21/01/91 he was a member of checking squad along with Ram Chander. They are deposed to have been standing at Jui Bus Stand, District Bhiwani. Workman who was 4 deployed as a conductor on the bus in question which stopped at 150 yards prior to designated bus stop. They are deposed to have reached the place bus stood and found that 8-10 passengers alighted from the bus who told them that they had paid fare to the workman but he did not issue tickets to them. They are deposed to have given statement in the presence of the workman but he dissuaded them not to give statement. Passengers are deposed to have not given statement at the instigation of the workman. It is deposed that when they further checked the bus, two other passengers were found without ticket who told them that worker had collected fare from them but had not issued tickets. Statement of passengers was recorded in the presence of the workman. It is deposed that when he was getting down from the bus, workman hit something on his head as a result of which blood started oozing out. He is deposed to have prepared challan which was not accepted by the workman. Challan has been proved as Ex.MW1/1, his report is Ex. MW1/4, Passenger's statement is Ex. MW1/2, way-bill is Ex. MW1/7.
9. Workman in his deposition has testified that on 21/01/91, he was deployed as a conductor on bus No. 9996 enroute Delhi to Pilani. About 40 to 45 passengers are deposed to have boarded the bus from Bhiwani and two passengers 5 got into the bus from Lohani. It is deposed that he was in the process of issuing tickets to the passengers when checking staff got into bus from Jui. Checking staff asked for the way bill and vouchers etc from him. It is deposed that no passengers in his bus were found without tickets, when the bus was checked. When the bus reached Pilani Chowk, checking staff is deposed to have de-boarded the bus and asked him to come down which he did. The members of checking squad are deposed to have demanded Kharcha Pani from him which he declined. The checking staffs told him that if he acceded to their request on return to Delhi, his bus would not be checked and that he would be able to collect money from the passengers. He is deposed to have declined this offer of the checking squad for which he was rebuked by them. Passengers in the bus are deposed to have asked for complaint book for making entry therein. He has testified that he could not say if the complaint made was against him or against the checking staff. He is deposed to have taken bus to Delhi where he made complaint against the checking staff. The management is deposed to have issued a charge-sheet to him. He has stated that he is innocent and has not committed any kind of misconduct.
10. At the outset, it should be pointed out that misconducts imputed to the workman are that (1) he got 6 the bus stopped 150 yards prior to designated bus stop (2) he collected fare from a group of 10 passengers but did not issue tickets to them and also received fare from another group of two passengers and did not issue tickets to them ( 3) he did not give way bill and vouchers etc to the checking staff and assaulted Balbir Singh, one of the members of the checking staff.
11. It has been argued by AR for the workman that reasons for non issuing tickets by the workman was that at least 40 passengers boarded the bus from Bhiwani for Juhi which was at a distance of 5 Kms, therefore, he could not issue tickets within 5 minutes, the time bus took to cover distance of 5 Kms, and could not make entry simultaneously in the way bill. It is argued that way bill shows that there were 40 passengers in the bus, therefore, workman was not at fault.
12. On the other hand, it has been argued in the written submissions that he got his bus stopped 150 yards before the designated bus stop, when the bus was checked, two groups of 10 and 2 passengers respectively were found without ticket and he told that they had paid fare to the workman but he did not issue tickets to them. It is also argued that on asking, workman did not give way bill, voucher, punched or unpunched tickets to the checking staff and that he also assaulted Balbir Singh, one 7 of the members of the checking staff.
13. It may be pointed out that arguments advancedby AR for the workman is contrary to what the workman himself has deposed during his evidence. First of all, it is admitted case that bus had stopped at Bhiwani from where it had got the passengers. If , AR for the workman was specifically asked to explain as to why workman, who was conductor, did not issue tickets to the passengers at Bhiwani bus Stand at ticket window which was his duty to do so ? His answer was that as usual conductor of the bus shouted at the top of his voice to attract passengers and in that process, he could not issue tickets. In my opinion, this is contrary to duty of the conductor to shout at the top of his voice to attract passengers to board his bus. It was his duty to issue tickets to passengers at the ticket booking window at Bhiwani Bus Stand which was authorized bus halt and from where the bus of workman got passengers. This explanation is quite unsatisfactory. On the contrary if I peruse the evidence of the workman, he has specifically deposed that no passengers were found without tickets which means that he had already issued tickets to the passengers who had boarded the bus. It also finds corroborated from the entery in the way bill Ex MW1/7 which shows that tickets had been issued to 40 passengers. The bus was checked at Juhi bus stop. 8 Distance between Juhi and Bhiwani was 5 Kms which could have been covered within5-10 minutes. It is not case of the workman in his evidence that he could not issue tickets because 40 passengers who had boarded the bus. Therefore, it is not case of the workman that time between Bhiwani and Juhi was too insufficient to issue tickets to all the passengers. It is admitted case that bus was checked at Juhi bus stand. MW--2 Balbir Singh in his cross examination is specific that no passengers was standing in the bus and when they entered the bus, seats were vacant. MW--2 has also stated that when the bus was checked at Juhi 8-10 passengers had alighted from the bus who had told the checking staff that they had paid fare to the workman but he had not issued tickets to them. He has also stated that workman did not allow the passengers to give statement and when passengers in the standing bus were checked, two other passengers were found without tickets. On the face of the workmen, they had also stated that they had fare to the workman but he did not issue tickets. Statement of the passenger was recorded which has been proved as Ex MW1/2. Statement of another passenger N.K.Sharma has been proved as Ex MW1/3. In Ex MW1/2 Shiv Kumar had stated that they had boarded the bus at Luhani for Digawa and paid fare of Rs. 8 but he did not issue tickets to them. It is, therefore, 9 clear that one group of 8-10 passengers had alighted from the bus at Juhi which was without tickets and they had paid fare to the workman. Second group of two passengers was also found without tickets and they had also stated that they had paid fare to the workman. Hence, it stands proved on record that workman had collected fare from 12 passengers but he did not issue tickets to them. Neither, it is case of the workman that he was in the process of issuing tickets and that time between Bhiwani to Juhi was too insufficient to issue tickets. Rather his case was that there was no ticketless passengers in his bus. On the other hand, two groups of 10 passengers and 2 passengers were found tickets from whom workman had collected fare but did not issue tickets.
14. It is also argued on behalf of he workman that no ticket less passenger was examined during the course of inquiry or before this Tribunal, therefore, in the absence of any evidence to this effect, misconduct of collecting fare from two groups of passengers and not issuing fare to them stands proved.
15. I have perused record of proceedings. MW--1 Vrajendra Trivedi in his evidence on the point of inquiry has stated that passengers were called but they did not appear during the course of inquiry. Even workman had 10 undertaken to bring them but he failed to examine them. Case of the workman was that address of the passengers was not given to him. However, MW--1 has stated that workman had noted down the address from the file. It is, therefore, clear that Management had made efforts to call the passengers during the inquiry but they did not appear. Even otherwise, non-examination of the passenger , when it was beyond the control of the Management, can not be said to be a ground to raise suspicion on the testimony of a member of raiding party in whose presence passengers had made statement against the workman.
16. Secondly, yardstick and standard of proof required during course of inquiry is only of preponderence of probability and complete lack of evidence against the workman. In the face of evidence of MW--2 who was a member of raiding party, it can not be said that there is no evidence against the workman on record.
17. In State of Haryana Vs. Ram Singh AIR 1977, SC 1512, following principles were laid down:
1) "Merely statement of passengers were not recorded by the Inspector of the flying squad, order that followed would not valid.
2) Evidence of the Inspector was some evidence which had relevance to the charge against the conductor
3) Sufficiency of evidence in proof of findings by a domestic tribunal is beyond scrutiny, though absence of any 11 evidence would amount to an error apparent on the face of record.
4) There is no alergy to the hearsay evidence provided it has reasonable nexus and credibility.
18. In (1) B.S. Hulli Katti AIR 2007 SC 930,(2) Devender Sahni vs V.K.S.R.T. AIR 2002 SC 2545 and (3) K.S.R.T.C vs A.T. Mani AIR 2004 4761 it has been held that there should be 'some' evidence against the delinquent on record which should be credible.
19. His version is that no passenger was foud without tickets has been found to be false. He had even shifted his defence from the version that no passengers was found without tickets to the effect that time gap between Bhiwani and Juhi was too insufficient to issue tickets which is self contradictory. Hence, I come to the conclusion that Management has proved on record that workman had collected fare from a group of 10 passengers and from second group of 2 passengers and had not issued tickets to them.
20. It has been argued on behalf of the workman that misconduct that bus had stopped 150 yards prior to Juhi bus stand where checking team was standing. It is argued that it was the driver who was driving the bus and not the conductor. It is also argued that there is no evidence that it was the workman who had asked the driver to stop the 12 bus, therefore, it can not be said that he committed any misconduct.
21. I may point out that certain facts ostensibly look innocent, but if they are appreciated in context of some other facts, it may give rise to inference of guilt. In the present case, it is true that it was the driver who was driving the bus and there is no evidence that 150 yards prior to designated bus stop. Version of the driver is that tempo was standing, therefore, bus had to be stopped. However, it has been proved on record that checking staff rushed to the place where bus had been stopped and when they checked the passengers who had alighted from it a group of 10 passengers was found without tickets. They had made statement in the face of the workmen that they had paid fare to them but he had not issued tickets to them. Another group of two passengers was found sitting in the bus without tickets from whom he had collected fare. Stopping of the bus seems to be designed keeping in view the fact that workman had not issued tickets to passengers after collecting fare from them, therefore, stopping bus 150 yards prior to designated bus stop, can not be said to be innocent. This only shows collusion between driver and the conductor. Stopping of the bus was designed to facilitate the ticketless passengers to alight from the bus to escape detection by checking staff. 13 In my considered opinion from sequence of events, it can safely be inferred that both driver and workman were in collusion and stopping of the bus was a strategy adopted by the workman in collusion with driver to avoid detection of ticketless passengers.
22. It has further been argued that another misconduct imputed to the workman is that he had allegedly hit on the head of MW-2. It is argued that in the WS Management has stated that workman had given blow to Balbir Singh on his mouth but during course of inquiry Balbir Singh had not stated that workman hit on his mouth and blood started oozing out and that he sustained injury on his left eye and dislocation of his tooth. He has also argued that Balbir Singh has stated that workman has hit on his head and blood had started oozing out. It is argued that there is contradictions in his versions, therefore, misconduct does not stand proved against the workman.
23. I am unable to accept this contention. Complaint given by Balbir Singh has been proved as Ex MW1/3 which is addressed to Incharge, P.S. Pilani. In this complaint, Balbir Singh has stated that workman had given fist blow to him as a result of which his lower incisor was dislocated. There is another statement of N.K. Sharma, passenger which is also proved as Ex MW1/3. In this 14 statement he has stated that workman had given fist blow on the mouth of injured. Balbir Singh during course of inquiry on 29.5.91 had stated that workman had given fist blow on his mouth as a result of which blood started oozing out and he had also sustained injury on his left eye. In his testimony on the point of alleged misconduct, WW--1 has not stated that he did not give any fist blow on the mouth of Balbir Singh. Therefore, it can not be said that any satisfactory evidence has been led by the workman that he had not assaulted Balbir Singh who was member of the raiding party.
24. It has also been argued on behalf of the workman that Rs. 37 has been shown in the way bill as his personal amount. It is argued that no personal search of the workman was conducted to ascertain if he was having any extra amount so that it could be inferred that amount represented fare collected from the passengers. It is argued that there was a motive on the part of the checking staff inasmuch as they had demanded illegal gratification from him but he did not oblige, therefore, he was falsely implicated, hence, it can not be said that misconduct against the workman stands proved.
25. On the other hand, AR for the management has argued that workman has not mentioned anything in the statement that checking staff had demanded illegal 15 gratification which shows that it is nothing but an after thought.
26. So far as argument that checking staff should have taken personal search of the workman to ascertain excess amount with him is concerned, I am of the view that such an exercise was quite futile. Firstly, no rule or regulation has been brought to my notice when necessitates such an exercise by checking staff. Secondly insistence on such an exercise would be contrary to human dignity and right to personal sanctity.
27. So far as allegation that checking staff demanded illegal gratification is concerned, the workman has not mentioned in his statement of claim that he has been falsely implicated in this cause on account of the fact that he had refused to oblige the checking staff for illegal gratification. When no such facts have been mentioned in the statement of claim, it is clear that it is an after thought. If it was so, he could have made complaint against the checking staff and if Management had not taken any action, he could have taken legal remedy against the checking staff. He had not done so. Therefore, it seems to be an after thought.
28. From the evidence on record, it stands proved on record that he had collected fare from a group of 10 passengers and from another group of 2 passengers and 16 had not issued tickets too them. It also stands proved on record that to avoid detection, the bus was stopped 150 yards prior to designated bus stop with a design to facilitate the ticketless passengers to escape detection of non issuing tickets to them. It stands proved on record that he had also assaulted Balbir Singh, a member of the checking staff. Therefore, misconducts imputed to the workman stands proved. This issue is accordingly decided in favour of Management and against the workman.
29. Findings on issue No 2 Issue No 2 is as per terms of reference. Terms of reference are whether the punishment imposed upon Sh. Gajanand Sharma by the management vide their order dated 20.11.91 is illegal and/ or unjustified and if so, to what relief is he entitled and what directions are necessary in this respect. It is admitted case of the parties that services of the workman have been dispensed with. Question arises that dispensation of service of the workman is proportionate to the misconduct imputed to the workman.
30. In the present case, workman has committed very serious kind of misconduct. First of all, he had collected fair from a group of 10 passengers and from another group of 2 passengers but had not issued tickets to them. 17 In consequence of the fact that checking staff had detected his misdeed, he assaulted Balbir Singh, one of the members of the checking staff. Assaulting a public servant is quite serious a matter. Secondly, workman himself is a public servant employed by transport Corporation. Being a public servant, it was his duty to be honest and redeem the faith reposed in him by his employer. Instead, he betrayed the faith of his employer and displayed dishonesty. WW--1 workman in his cross examination was specifically asked that he had been punished earlier on 9 occasions but he had denied it. However, when he was asked that on earlier occasions, his two increments were stopped on accout of the fact that he was found guilty of not issuing tickets after collecting fare from them he did not deny it. His reply was that he did not remember. He also did not remember whether he had filed any appeal against that order or not. Therefore, I do not find any reasons to disbelieve that on earlier occasions, he was found guilty of dishonesty in appropiating the fare collected from the passengers and not assiging tickets to them and for which he was punished.
31. In UP State road Transport Corporation vs Nanhe Lal Kushwaha 2009 LLR ( SC) 1149, it has been held that conductor holds a position of trust and that it is 18 not the amount which would be very material for purpose of determining the quantum of punishment. When a conductor committed breach of trust, punishment of removal from service can not be interfered with.
32. In view of above discussion and this authority, I hold that punishment of dispensation of service imposed on the workman by the Management vide its order dated 20.11.91 is neither disproportionate nor illegal nor unjustified and that he is not entitled for any relief.
33. Relief:- In view of reasons given above, I hold that I hold that punishment of dispensation of service imposed on the workman by the Management vide its order dated 20.11.91 is neither disproportionate nor illegal nor unjustified and that he is not entitled for any relief. Reference is answered in these terms. Award is accordingly passed. Same be sent to GNCT of Delhi along with order dated 1.10.09 passed on the validity of inquiry which shall form part of this award and be sent along therewith, for publication. File be consigned to record room.
Announced in open court on 02.12.09 (BABU LAL)
Presiding Officer, Industrial Tribunal-II Karkardooma Courts, Delhi.
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