Delhi District Court
Ramesh Chand vs . Dtc. on 17 March, 2009
Ramesh Chand vs. DTC.
BEFORE THE COURT OF SH A.S. JAYACHANDRA
PO : LABOUR COURT : KKD : DELHI
DATE OF REFERENCE : 10.07.1997
DATE OF RECEIPT : 23.07.1997
ARGUMENTS CONCLUDED ON : 06.03.2009
AWARD PASSED ON : 17.03.2009
ID No. 173/08/97
IN THE MATTER OF : -
M/s Delhi Transport Corporation
IP Estate, New Delhi ...........Management
versus
Ramesh Chand
S/o Subhash Chand
B. No. 23142
R/o 1/4102, Ram Nagar Extension
Shahdara, Delhi-32 .............Workman
A W A R D
1.The Govt. of NCT of Delhi has referred this dispute bearing reference number F.24(1519)/97-Lab.21102-106 dated 10.07.1997, in the above matter and the terms of reference is as under :
Whether the removal of Sh. Ramesh Chand, from service is illegal and / or unjustified and if so to what is he entitled and what directions are necessary in this respect ?
2. Upon receipt of the reference, notices were ordered to the workman. Claim statement is filed by the workman.
1/13 Ramesh Chand vs. DTC.
3. CASE OF THE WORKMAN : Workman states that he has been working with the management as a conductor. Workman was charge sheeted on 08.09.1992, the workman denied the charges. In the charge sheet, the allegations were that the workman while on duty on 26.08.1992, on route number 265, the bus was checked by the checking staff at Loni Road crossing. The checking staff found certain irregularities. Two passengers who got it into the bus from Durga Puri paid Rs. 4/- to the conductor but they were not given tickets. Checking staff also found Rs. 9/- short in the cash. The workman was issued with memo and a departmental enquiry was held against the workman. He contends that the enquiry was conducted in violation of the rules of the corporation. He further submits that the management could not prove the charges against the workman in the enquiry. He was found innocent. The suspension was revoked with effect from 27.05.1996, by an order dated 21.05.1996. Inspite of this, the workman was shocked to receive a memo issued on 14.06.1996, intimating the workman that he is removed from the service with effect from 15.06.1996. Workman contends that he was victimized. He further states that he is unemployed despite his innocence and therefore seeks reinstatement with back wages.
4. CASE OF THE MANAGEMENT : Upon notice the 2/13 Ramesh Chand vs. DTC.
management filed the written statement. The management contends that the workman was charge sheeted for not issuing tickets to the passengers after collecting the fare. The cash of Rs. 9/- was found short. The enquiry was conducted in a very fair manner as per the rules and the management witnesses were examined. The workman had cross-examined the witnesses in the enquiry. Workman was found guilty and after considering his past record, he was removed. Workman has not issued any demand notice and that he is gainfully employed. The workman refused to sign the passenger's statement while checking.
It is also contended by the management that during the domestic enquiry, the misconduct was duly proved upon evidence. The show cause notice was also issued which was replied by the workman, the same was considered by the management and based on the past conduct, he was removed from service. Since there is no illegality, management prays for dismissal of the claim.
Rejoinder is filed by the workman denying the allegations in the written statement. He contends that the allegations in the charge sheet are false and fabricated.
5. ISSUES : After completion of the pleadings, my Ld. Predecessor had framed the following issues on 01.08.2001, as 3/13 Ramesh Chand vs. DTC.
under :
1) Whether the management has not conducted a fair and proper enquiry ?
2) As per the terms of reference ?
6. On the enquiry issue, workman was examined himself as WW 1 and on behalf of the management, the management has tendered the enquiry report and got it marked. My Ld. Predecessor by a detailed order dated 17.05.2006, had held that the findings of the enquiry Officer are perverse. Thus, issue number 1 was held in favour of the workman and against the management.
7. The management was given a chance to prove the misconduct by an order dated 17.05.2006. Thereafterwords, the management examined MW 1 Om Pal, on 15.09.2006 and his evidence was concluded on 18.05.2007. Management further examined MW 2 Sanjay Saxena, on 15.09.2006. The management also wanted to examine one Hari Singh and Roshan Lal, who were not examined. Accordingly, my Ld. Predecessor had closed the management evidence by an order dated 16.05.2008.
8. In rebuttal, workman examined himself as WW 1 and he was cross-examined by the management.
9. The arguments on the issue number 2 is heard. 4/13 Ramesh Chand vs. DTC.
Issue number 2 also covers the terms of reference, now I am to answer the issue number 2 in the light of submissions made on either side. I have gone through the entire oral and documentary evidence available on record.
10. For answering issue number 2, I have perused the charges against the workman. WW1/M-1 is the photocopy of the charge sheet found on record. The same is illegible. However, I have perused the correspondence ensued. From the notice, the legible charges are that a) the conductor has collected Rs. 4/- from two passengers instead of Rs. 6/- (ticket fare being Rs. 3/- from each passenger) and has not issued the tickets. b) that the conductor admitting the guilt has given two unpunched tickets of Rs. 3/-, after collecting Rs. 2/- from the passengers and further refused to sign the statement of passengers. c) there was shortage Rs. 9/- in the cash. d) when the checking staff were to close the complaint book, the conductor snatched away the complaint book from the checking staff. e) that the conductor caused loss to the corporation, cheated the corporation and further had resorted to CHHEENA JHAPTI with the checking staff and violated the orders of checking staff. These amounted to the misconduct as per rules 19(a), (b), (g), (h) and (m) of the conduct rules of the corporation.
5/13 Ramesh Chand vs. DTC.
11. I am to see whether these charges are proved before this Court. MW 1 Om Pal Singh, had tendered his affidavit at Ex. MW 1/A. He is the reporter in this case. The date of incident is 26.08.1992, as related in the charge sheet. He along with Hari Singh, Roshan Lal and Shiv Narain, were the members of the checking party. They have checked the bus. MW 1 deposed that the bus was limited stop bus and the minimum ticket is Rs. 3/-. MW 1 deposed that the bus was checked from Loni Road crossing to Indirapuri. Two passengers boarded the bus from Durgapuri to Joharipur who were found ticketless and the passengers claimed that they paid Rs. 4/- to the conductor. The checking staff had collected Rs. 2/- from these two passengers and the statement of passengers were recorded. Conductor gave two unpunched tickets of Rs. 3/- denomination and refused to sign the statement of passengers. He further deposed that conductor was challaned. When the checking staff was closing the complaint book, the conductor snatched away and misbehaved with the checking staff. Further, MW 1 deposed that there was a shortage of Rs. 9/-. He produced Ex. MW 1/1-5 being the report, challan, voucher and passenger's statements and unpunched tickets. MW 1 further deposed that the other checking staff are now retired.
In the cross-examination, MW 1 admits that the 6/13 Ramesh Chand vs. DTC.
distance between Durgapuri to Loni Road is about 1-1 ½ km. he denies a suggestion that the conductor was asking the passengers to tender the correct fare when the checking staff boarded the bus. MW 1 further admits that the statement was recorded on separate papers and not on the back of the challan. He further denies a suggestion that the passengers did not make any statement but was written by the checking staff themselves. He further denies a suggestion that the addresses of the passengers were not taken deliberately. As regards the complaint book, the same was not produced. MW 1 assigns the reason for not producing is that the same was auctioned. MW 1 further admitted in the cross-examination that the workman had not misbehaved with the checking officials. The other suggestions made by the workman were denied by this witness.
12. MW 2 Sanjay Saxena, has produced his affidavit at Ex. MW 2/A. He deposes that he is the Manager Traffic. He also deposes that all the checking staff retired except Om Pal Singh. The copies of the past record is produced at Ex. MW 2/1 and the removal order at Ex. MW 2/2. He is not the part of the checking staff. He admits that he has considered the past record. He also admits that there is no entry of cheating against the workman in the past record. He denies a suggestion 7/13 Ramesh Chand vs. DTC.
that he did not consider the enquiry proceedings in a valid manner.
13. With the available oral and documentary evidence, I am to answer the issues as under.
14. It was argued by the AR for the workman that the charges of collection and not issuing of tickets should have resulted in excess of cash but not shortage. Further, it was argued that shortage of cash is no misconduct since the rules of the corporation provided to deposit the cash within 48 hours. The case of the management regarding the misconduct is disproved by the evidence since the complaint book was never produced. AR for the workman argues that the misconduct is not proved and therefore, the charges are baseless.
15. On behalf of the management, it was argued that non issuance of ticket is proved by the passenger's statements and the documentary evidence produced and proved through MW 1. He submits that the order of the dismissal is highly justified in the circumstances.
16. I have perused the entire oral and documentary evidence. The statement of passengers which is part of the checking report is admittedly not on the back of the challan but on a separate paper. Ex. MW 1/ 4 shows that the statement of one 8/13 Ramesh Chand vs. DTC.
Azad Suri, is recorded. The complete address is not forthcoming. It is expected of any checking staff to ensure that the correct address of such passengers is recorded. This becomes a primary duty on the checking staff, though there is no requirement for the examination of these passengers. It is the case of the management that the conductor refused to sign the statement. If this were to be believed, nothing would have prevented the checking staff to make an endorsement to this effect on the very statement. There is no such remark or endorsement on Ex. MW 1 /4. Though, it was deposed by MW 1 that conductor had not collected the correct fare of Rs. 3/- each but collected Rs. 2/- each from two passengers. The same having been reduced to writing, the further allegation that the conductor refused to sign does not bear a remark over the statement. Therefore, it becomes improbable to believe the version. Even Ex. MW 1/3, the way bill does not bear such noting.
17. Therefore, the charges made out against the workman that he did not issue the tickets after collecting Rs. 2/- each can not be believed. As regards the shortage of cash of Rs. 9/-, the same was argued that the conductor had the option and the mandatory discount to deposit the same within 48 hours is not repelled.
9/13 Ramesh Chand vs. DTC.
18. The other charge that he misbehaved with the checking staff is to be viewed from the admission of MW 1 in the cross-examination that the workman had not misbehaved with the checking officials. In view of the above, the other charge that he misbehaved with the checking officials falls to the ground. I have considered the rebuttal evidence of the workman who had stated that no statement of the passengers was taken in his presence. To the suggestion made by the management, WW 1 deposed that the passengers were about to tender the correct fare and that he received Rs. 4/- and was demanding further Rs. 2/-. I am convinced with the explanation being tendered by the workman regarding the incident which led to the filing of the challan and charge sheet against the workman.
19. From the evidence of MW 2 who is the disciplinary authority, it is deposed by MW 2 that he considered the past record. The removal order is at Ex. MW 2/2. The past record of the workman is at Ex. MW 2/1. I have perused the same. This workman was once reprimanded on the ground that the destination board was not displayed. There is no past record of cheating. After considering Ex. MW 2/2, I find that there is no proper application of mind with regard to the service antecedents of the workman. In the above peculiar circumstances and after 10/13 Ramesh Chand vs. DTC.
going through the entire material available on record, I find that the order of removal from service cannot be sustained for the charges against the workman cannot be held as proved before this court.
20. As regards the back wages, it is to be seen that the workman in his rebuttal evidence had not stated anything regarding his remaining unemploymed despite best efforts. On 05.09.2008, it is noted by my Ld. Predecessor that the affidavit filed is being withdrawn by the workman. The affidavit withdrawn is dated 18.07.2008. Another affidavit is filed on 05.09.2008, which is treated as WW 1/A-1 wherein he deposed at para 20. At para 20, it is only stated that the workman is entitled for reinstatement with full back wages and continuity of service with other benefits and interests. I have gone through the entire affidavit, nowhere he had stated that he remained unemployed after removal. Further, there is no averement that he made efforts for earning after his removal. In the absence of such a pleading in his affidavit, I am unable to grant him back wages.
21. In the ruling of M.D., Balasaheb Desai Sahakari S.K. Ltd. vs. Kashinath Ganapati Kambale 2009 LLR 230 SC , the Hon' Supreme Court, noted the earlier judgments in UP State Brassware Corp. Ltd. vs. Udai Narain Pandey, 2006 (I) SCC 479 and 11/13 Ramesh Chand vs. DTC.
also Kendriya Vidhayala Sangthan vs. S.C. Sharma, 2005 (II) SCC 363 to hold that the initial burden is on the employee to show that he was not gainfully employed.
22. In Kanpur Electricity Supply Co. Ltd. vs. Shamim Mirza, 2009 LLR 226 SC, the Hon' Supreme Court, observes that 'no precise formula can be laid down as to under what circumstances, full or partial back wages should be awarded. It depends upon the facts and circumstances of each case.' Here I have considered that the present workman was recruited as retainer crew conductor by the depot manager. The workman has not stated anything regarding his non-employment after removal. After considering the nature of the post to which he was appointed i.e., retainer crew conductor and monthly rate conductor by the depot manager and further considering the length of service from 1985 to 1992 and further in view of there being no proper pleadings and evidence regarding the entitlement of back wages, I find that the present case does not call for granting of back wages. Under the circumstances, I pass the following award :
A W A R D The management be directed to reinstate the workman in the same post within 30 days after publication of this award. The workman is entitled for continuity of service 12/13 Ramesh Chand vs. DTC.
with respect to the seniority, gratuity and pension only. No back wages is awarded.
Let the requisite number of copies be sent to the appropriate government for publication and the file be consigned to RR.
17th March, 2009 (A.S. JAYACHANDRA) POLC/KKD/DELHI/XVII 13/13