Delhi District Court
22. Ld. Ar For The Management Relied On ... vs . Lt. on 1 August, 2009
BEFORE THE COURT OF SH A.S. JAYACHANDRA
PO : LABOUR COURT : KKD : DELHI
ID No. 294/08/95
DATE OF REFERENCE : 31.08.1995
DATE OF FILING : 07.09.1995
ARGUMENTS CONCLUDED ON 22.07.2009
AWARD PASSED ON 01.08.2009
IN THE MATTER OF :
Delhi Transport Corporation
through its Chairman
IP Estate
New Delhi-110002 ...........Management
versus
Sh. Ved Pal (B. No. 23129)
S/o Sh. Shyam Singh
House No. 971/2, Pana Posiyan
Narela
Delhi-40 ...........Workman
AWARD
1.This reference dated 31.08.1995, was received from the government vide No. F.24 (1365)/95/Lab.26738-43 as under :
Whether the removal of Sh. Ved Pal, from service by the management is illegal and / or unjustified and if so to what relief is he entitled to and what directions are necessary in this respect ?
2. CASE OF THE WORKMAN : The case of the workman as per the amended claim statement is that he joined as a Conductor on daily rated basis with the management. It is his case that he has a clear and clean 1/13 record of service. He was served with a charge sheet dated 23.03.1993, for not issuing the tickets to the group of two passengers travelling on the route of Kanpur to Delhi on 11.03.1993. It is further contended that the workman was put under the suspension w.e.f 17.03.1993 and he remained suspended till April, 1994. The workman replied to the chrge sheet and denied the charges levelled against him. The management without considering the reply proceeded with the departmental enquiry which was not according to the principles of natural justice. Thereafter, the workman was issued a show cause notice dated 03.01.1994. He replied to the show cause notice but the management without considering the same, removed him from the services. Thereafter, the workman preferred an appeal. The demand notice was served on the management and the same was also not considered by the management. It is further contended by the workman that the enquiry was not conducted by the competent authority and the Enquiry Officer was biased. Therefore, he prays for reinstatement with full back wages and all consequential benefits.
3. CASE OF THE MANAGEMENT : The management in its reply denied the allegations made by the workman. It is contended that the the management was not satisfied with the reply of the workman. The workman was afforded full opportunity to defend himself in the enqiry and the principles of natural justice were followed. It is also contended that workman made a baseless allegations on the checking staff that the checking staff demanded bribe for which there was no complaint. The management was not 2/13 biased against the workman. The findings of the enquiry officer are not perverse. Hence, the management seeks for justifying the order of removal. Rejoinder is filed by the workman.
4. Based on the pleadings my Ld. Predecessor had framed the following issues on 09.02.2001, though initially one issue on enquiry was framed on 11.07.1996. The issues framed on 09.02.2001, covers the enquiry issue also.
1) Whether a proper and fair enquiry was not conducted in accordance with principles of natural justice ?
2) As per terms of reference.
5. EVIDENCE LED ON ENQUIRY ISSUE : The workman and the management examined each witness on their side on the point of enquiry issue and closed their side.
EVIDENCE AFTER DECIDING ISSUE NUMBER 1 : Both the parties examined two witnesses each on their side and closed the evidence.
6. The arguments were heard. Based on the available oral and documentary evidence, I proceed to answer the issues as under.
7. ISSUE NUMBER 1 : My Ld. Predecessor by a reasoned order dated 18.08.2004, had held that the enquiry suffers perversity and therefore, is not fair, valid and proper.
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8. ISSUE NUMBER 2 : By issue number 2, I am to answer the terms of reference. This includes the legality, justifiability or otherwie of the removal of service of Ved Pal. The genesis of the order of removal is traced to the charge sheet dated 23.03.1993. The allegation against the workman in the charge sheet are :
'that while he was on duty in bus number DBP-6457 on 11.03.1993, the bus was inspected by the checking staff at TT Post Etah, around 8.30 hours. The checking staff found a group of two passengers without tickets.
Passengers told the checking staff that they boarded from Kanpur and paid Rs. 200/- to the conductor.
Conductor returned them Rs. 9/- but did not issue them the tickets. Acknowledging this, the conductor handed over two unpunched tickets to the checking staff. The statements of passengers were written but workman refused to sign the statement. On the other hand, he instigated the passengers against the checking staff and tried to snatch away the two unpunched tickets, which in turn were torne into pieces. The conductor was challaned. Workman threw Rs. 200/- beneath his seat. The same was picked up by the checking staff.
Therefore, the charges were framed under Rule 19 (a),
(b), (f) and (m).'
9. To prove these charges, the management relied on the evidence of MW 1 Sumit Mudgil (examined on 26.09.2003) and MW 2 Tej Pal, examined on 22.09.2006. Though MW 1 was examined on the enquiry issue, the same was sought to be relied. Being the Enquiry Officer, this witness got marked the charge sheet, enquiry proceedings and enquiry findings at Ex. M-1 to M-3. This witness is only the Enquiry Officer and he can not speak to the misconduct alleged against the conductor which has taken place on 11.03.1993. However, the documentary evidence relied by the witness is not 4/13 in dispute.
10. MW 2 Tej Pal, in his affidavit at Ex. MW 2/A deposed that he checked the bus on 11.03.1993, in which workman was the conductor. He testified that two passengers from Kanpur to Delhi were found ticketless at TT Post Etah. The bus was checked upto Aligarh. The passengers told him that they paid Rs. 200/- to the conductor towards the fare but not issued the tickets. Conductor only returned Rs. 9/- to the passengers. He made a report at Ex. MW 2/1. The MW 2 thereafter collected two unpunched tickets which are at Ex. MW 2/2. He further testified that his co checking staff recordedss the statement of passengers. Workman refused to sign the said statement which is at Ex. MW 2/3. The challan made against the workman is at Ex. MW 2/4.
11. In the cross-examination, this witness deposed that there were 55 passengers and the challan is in his writing. To the suggestion that he did not prepare the challan, the same was denied. He admits that no attesting signatures as witness weres obtained for the refusal by the conductor to sign the challan and for recovery of Rs. 200/-. He further testified further that he deposited the same in the office on 12.03.1993. He admits that he filed the report in the office on 15.03.1993. He denied a suggestion that he snatched away the tickets from the conductor. The statement of passengers were recorded by Surender Singh. He admits that there are no witnesses for the attempt by the conductor and also the conductor's refusal to sign the passenger's statement.
12. I have perused the documentary evidence also.
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13. Rebutting the contentions of the management witnesses, workman Ved Pal WW 2, filed the affidavit at Ex. WW 2/A dated 18.01.2007. According to him, there was no misconduct. Checking staff after entering the bus near Etah check post, demanded him the way bill voucher and other documents which he handed over. All the passengers were with tickets. It is in his affidavit that after completig the checking, Tejpal asked Rs. 500/- from the workman. He refused. When the bus reached Aligarh, Tejpal, again demanded money. MW 2 further abused him, thus, 'TUM CHUUDE CHAMAR KUCH KAAM NAHIN AATE HO, TUMHE TO AARTHIK NUKSAN HI PAHUNCHANA PADEGA'. Abusing him in such a manner, the workman deposes that the checking staff got two unpunched tickets from the workman, got down at Aligarh stand threatening to teach workman a lesson. Workman contends that no challan was prepared at this point and no statement of passengers were recorded. Workman informed the driver at Aligarh about the incident. Driver Des Raj, got down from the bus to find the checking staff but in vain. Workman was not knowing about the challan but on 24.03.1993, he was issued a letter regarding the charges. WW 1 also complained to the higher- ups on 12.03.1993, by sending a copy to the GM DTC. The copy of the letter is at Ex. WW 1/1. According to him, the charges are baseless. Supporting the case of the workman, WW 1 Des Raj, deposed that on 11.03.1993, he was on duty in the bus where WW 2 was the conductor. Checking staff signaled him near Etah Check Post and he stopped the bus. They boarded into the bus. All have entered Etah Bus Stand and took tea together. Checking staff 6/13 sat in the bus and returned the papers to the conductor Ved Pal. When they reached Aligarh, checking staff while alighting from the bus, conductor also tried to get down. WW 1 heard that the checking staff telling the conductor that the conductor is a chamar and he would be no use to them which they repeated 2-3 times. Conductor went behind the checking staff. WW 1 the driver also searched for the checking staff and the conductor but none met him. When the conductor came back, he asked WW 2 as to what happened. The workman was weaping. The conductor informed the driver that the checking staff took away two unpunched tickets and that they were demanding Rs. 500/-. WW 1 further deposed that no challan was prepared in his presence. In the cross-examination, it is elicited that the driver was in his seat while checking staff were telling the workman that he was a chamar and of no use. WW 1 also does not know whether the workman made a complaint against the checking staff. WW 1 did not appear in the enquiry as a witness and that he did not make any complaint against the checking staff. He denies that the suggestion that the checking staff did not abuse the workman.
14. In the lenghty written arguments filed by the workman, it is pointed out that there is no evidence for the challan to be believed since no witness has attested the refusal of the conductor to sign the challan. The dates of filing the the report at the office is stated in the written arguments based on the cross-examination. The date is 15.03.1993 (filing the report against the conductor in the office) and 12.03.1993 (date of depositing of Rs. 200/-). It is also urged that there is no witness for snatching of the tickets by the 7/13 conductor and for the reason that the checking staff did not collect the Delhi address of the passengers.
15. I have perused the documents relied by the workman especially Ex. WW 1/1. The same is the letter written by the workman. It also bears the acknowledgment of IP Depot at serial number 498. The workman had immediately complained regarding the high handedness of the checking staff to the depot.
16. In this case while appreciating the evidene of the contesting parties, it is to be kept in mind that Ex. WW 1/1 (the immediate reaction of the workman to the checking aspect). Though the testimony of the checking staff Tej Pal, at the first sight seems consistent with the report made by him, this is a case where two unusual events had taken place. One is the procurement of unpunched tickets. According to MW 2, the conductor gave him two unpunched tickets as found in the affidavit. The charge number 2 as per the charge sheet is that AAPNE YATRIYON KO CHECKING STAFF KE KHILAF BHADHKAYA TATHHA DIYE GAYE UNPUNCHED TICKETS CHECKING STAFF KE HATHH SE PHAR DIYE TATHHA CHECKING STAFF KO KUCHH BHI KAR LENE KI DHAMKI DI. This charge as could be seen from Ex. MW 1/1 itself belies since MW 2 did not say anything with regard to this charge. There is no mention that the conductor tried to snatch away the unpunched tickets. It was rightly argued in the written arguments that for such a serious charge, there should be a corroboration. In this case, if the conductor had exceeded in his conduct while snatching away the unpunched tickets which were given 8/13 to the checking staff, the same ought to have been at least mentioned in the examination in chief of MW 2 which is lacking in this case, let alone corroboration or independent witness to such an unruly behaviour by the conductor as alleged in the charge sheet. I perused Ex. MW 2/2, the same is signed by Surender Singh. The photocopy exhibited shows so many wrinkles. Surender Singh, is not examined in this case. Therefore, this charge is not proved.
17. If this charge were to go, the aspect of conductor having not issued tickets to two passengers is reflected by the statement of the passengers at Ex. MW 2/3. The statement is attested by Surender Singh ATI. He is not examined in this case to prove the charge.
18. The allegation of the conductor as per Ex. WW 1/1 is that ATI Tej Pal, abused him. It is in all probabilities that some peculiar incidents have taken place between the checking staff and the workman. Though Surender Singh, is also one of the attesting witness to the report at Ex. MW 2/4, the non- examination of Surender Singh, would throw an inexorable doubt in believing the challan based on the sole testimony of MW 2 on whom the biased is alleged.
19. It is also not forthcoming and no explanation by the management with regard to what action it had taken upon the complaint filed by the workman immediately after the incident which is revealing from Ex. WW 1/1, whereas it is admitted by MW 2 that the report was filed at the office only on 15.03.1993.
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20. The recovery of Rs. 200/- as per the charge sheet is described as recovered from beneath the seat, which was thrown by the conductor. In the examination in chief of MW 2, there is no mention about the recovery of Rs. 200/- beneath the seat. On the other hand, he admits having picked up Rs. 200/- from the center of the bus in the cross-examination which belies the other chare also.
21. After having gone through the evidence available on record and the probabilities of the case, I am of the humble opinion that the charges against the conductor are not proved.
22. Ld. AR for the management relied on Surya Prakash Tyagi vs. Lt. Governor of Delhi & Ors. 160 (2009) DLT 42(DB) to urge that the person who makes a false averment before the court and does not come up with clean hands, the case of such a person is liable to be thrown out at the threshold and appropriate action to be initiated against him. Ld. AR pointed out to me that the workman in this case while answering the cross- examination admitted that 'it is correct that from the date of my removal, I have been working and is earning about Rs. 3,000/- to 4,000/- per month.' He also pointed out to me that the workman in his affidavit at para 17 dated 12.07.2009, claimed that he is not gainfully employed since the date of termination. This aspect is to be seen from the reliefs to be granted and not that the entire case is to be thrown out only on the isolated ground of the workman being in gainful employment after removal. It is common prudence that the pleadings are generally drafted by the Ld. Counsel at the bar. The 10/13 workman who had written the complaint in Hindi could have never realised the consequences but the same was only in the anxiety to urge the reliefs. Suffice it to say, that this admission on the part of workman does not entitle him to claim the back wages.
23. In the ruling of Rajasthan Lalit Kala Academy Vs. Radhey Shyam , 2008-III, LLJ 562, it is held at para 17:-
Para 17:- Once the termination of service of an employee is held to be illegal, the relief of reinstatement is ordinarily available to the employee. But the relief of reinstatement with full back wages need not be granted automatically in every case where the Labour court/ Industrial Tribunal records the finding that the termination of services of a workman was in violation of the provisions of the Act. For this purpose, several factors, like the manner and method of selection nature of appointment adhoc, daily wage, temporary or permanent etc. period for which the workman had worked and the delay in raising industrial dispute are required to be taken into consideration.
24. In Talwara Co-op. Credit & Service Society Ltd. v. S. Kumar 2009-I-LLJ 328 SC, the Hon'ble Supreme Court had held as under :
"'11 : Grant of a relief of reinstatement, it is trite, is not automatic. Grant of back wages is also not automatic. The Industrial Courts while exercising their power under Section 11-A of the Industrial Disputes Act, 1947 are required to strike a balance in a situation of this nature. For the said purpose, certain relevant factos, as for example, nature of service, the mode and manner of recruitment, viz., whether the appointment had been made in accordance with the statutory rules so far as a public sector undertaking is concerned etc. should be taken into consideration.' 11/13
25. In UP State Brassware Corporation Ltd. & Anr. vs. Udai Narain Pandey 2006 LLR 214 SC, the Hon' Supreme Court had observed as under.
17. Before adverting to the decisions relied upon by the learned counsel for the parties, we may observe that although direction to pay full back wages on a declaration that the order of termination was invalid used to be the usual result but now, with the passage of time, a pragmatic view of the matter is being taken by the court realizing that an industry may not be compelled to pay to the workman for the period during which he apparently contributed little or nothing at all to it and/or for a period that was spent unproductively as a result whereof the employer would be compelled to go back to a situation which prevailed many years ago, namely, when the workman was retrenched.
26. For the foregoing discussions on the evidence adduced, I am of the opinion that the charges against the workman are not proved and his removal from service is held as unjustified. Workman is not entitled for any back wages. However, the management having not acted upon the complaint filed by the workman shall pay a notional damages of Rs. 50,000/- (RUPEES FIFTY THOUSAND ONLY). The workman is entitled to be reinstated. In the result, I pass the following award :
AWARD The reference is answered as hereunder.
The management is directed to reinstate the workman into service by paying a sum of Rs. 50,000/- (RUPEES FIFTY THOUSAND ONLY) as notional compensation. The same be complied within 30 days of publication of the award.12/13
No back wages are awarded. The intermittent period shall not affect the seniority, promotion, gratuity and pensionary benefits of the workman.
Let the requisite number of copies of sent to the appropriate government for publication.
File be consigned to RR.
01.08.2009 (A.S. JAYACHANDRA) PO : LABOUR COURT - XVII, DELHI 13/13