Delhi High Court
Delhi Transport Corporation vs Shree Kumar And Anr. on 2 August, 2004
Equivalent citations: 113(2004)DLT505, 2004(76)DRJ252
Author: Mukundakam Sharma
Bench: Mukundakam Sharma
JUDGMENT Mukundakam Sharma, J.
1. The present writ petition is filed by the petitioner corporation aggrieved by the orders dated March 17, 2003 and August 8, 2002 passed by the Industrial Tribunal No. II in O.P. No. 125/94 on the basis of an application filed under section 33(2)(b) of the Industrial Disputes Act, 1947.
2. The aforesaid application was filed by the Corporation seeking approval of its decision to remove the respondent No. 1 from service. The allegation against the respondent is that he took full fare charges from the passengers for their journey but did not issue them tickets and, therefore, he misconducted himself. Accordingly, a charge sheet was issued to the petitioner on the basis of which a domestic enquiry was held and in the said domestic enquiry the respondent was found guilty. Consequently, the disciplinary authority removed the respondent from service of the corporation by order dated July 11, 1994. Along with the said order of removal, the corporation remitted full one month wage to the respondent. After taking the aforesaid action, the aforesaid application was filed by the corporation seeking approval of their action. After receipt of the aforesaid application and on the basis of the pleadings of the parties, a preliminary issue was framed by the Tribunal on January 18, 1996 to the following effect:-
"Whether the applicant held a legal and valid enquiry against the respondent ?"
3. Evidence was led and thereafter an order was passed by the Tribunal on August 8, 2002 whereby the Tribunal held that the enquiry was vitiated for non-compliance of natural justice. The Tribunal observed that during the cross-examination the witness produced by the management admitted that except the report of the checking staff no document was given to the respondent as demanded by him and also that no list of documents was supplied to the respondent and that except the entrustment letter no separate written order was issued in favor of Mohd. Irfan who conducted the enquiry. The Tribunal held that from the findings recorded by the enquiry officer on April 10, 1994 it could be deduced that the enquiry proceeded ex parte as the workman was called on February 10, 1993 but he did not appear and thereafter the enquiry officer recorded that the workman did not want to say anything and closed the defense of the workman. Before the Tribunal the workman filed an affidavit deposing that the principles of natural justice were not followed during the enquiry as the enquiry officer did not allow him to take the assistance of one B.L. Babbar. His further deposition was that the enquiry officer acted as a prosecutor and the enquiry report suffers from legal and procedural lacunae, and that the driver and the ticketless passengers denied the allegations against him. The learned Tribunal accepted the submissions of the respondent as correct from the perusal of the case and observed that no effort was made to produce the enquiry officer before the Tribunal and in such circumstances the secondary evidence of Devender Swaroop Sharma, Disciplinary Authority, produced by the Corporation in place of that of enquiry officer, Mohd. Irfan, was not found to have any bearing. The Tribunal further held that it was evident from the findings of the enquiry that sufficient opportunity was not given to the respondent. Consequently, the aforesaid issue was decided against the corporation and the enquiry was held to have been vitiated. By the said order the Tribunal also framed three issues and ordered that further evidence would be recorded. Pursuant to the said order evidence was recorded.
4. After considering the records and the evidence adduced, the learned Presiding Officer by order dated March 17, 2003 held that the Corporation did not lead any evidence to prove the alleged misconduct of the respondent and, therefore, it was held that the Corporation failed to prove the misconduct against the respondent and decided issue No. 1 against the corporation. It was also held by the Tribunal that full one month's wage was paid to the respondent at the time of his removal from service and decided issue No. 2 in favor of the Corporation, but keeping in view the findings on issue No. 1 the Tribunal was of the opinion that the approval application of the Corporation under section 33(2)(b) of the Industrial Disputes Act should be dismissed. Consequently, the prayer for approval was rejected. Being aggrieved by the said decision, this writ petition is filed on which I have heard the learned counsel appearing for the parties.
5. It was contended by the counsel appearing for the petitioner that besides and apart from the statements of the passengers there were other materials on record also and that on perusal of the entire evidence on record the enquiry officer in the domestic enquiry came to the conclusion that the respondent was guilty of misconduct and, therefore, the Industrial Tribunal exceeded its jurisdiction in holding that the findings of the enquiry officer were vitiated. It was submitted that production of passenger witnesses either in the domestic enquiry or before the Industrial Tribunal in an industrial dispute should not be considered to be at all necessary as it could be highly impractical to produce such witnesses. In support of the said contention counsel for the petitioner relied upon the decision of this Court in Shyam Sunder v. Delhi Transport Corporation (CWP No. 922/76, decided on February 5, 1996) and also the decision in Delhi Transport Corporation v. N.L. Kakkar and another, 110 (2004) D.L.T. 493. Reliance was also placed by the learned counsel on the decision of the Supreme Court in State of Haryana v. Rattan Singh, .
6. Counsel appearing for the respondent-workman, however, submitted that this writ petition should not be entertained as it is barred by laches and delay. It was the further submission of the counsel that this court while exercising powers under section 226 of the Constitution of India cannot sit as a court of appeal over the findings and conclusions reached by he Industrial Tribunal in order to come to a contrary finding. It was also submitted by him that the cases cited at the bar by the counsel appearing for the petitioner are not applicable to the facts and circumstances of the case. It was the further submission of the counsel that in the trial held by the Tribunal the petitioner corporation withheld the best witnesses like the driver and passengers of the bus and since the said material witnesses were not examined by the corporation before the Industrial Tribunal, therefore, no relief could be granted in favor of the petitioner for withholding the best evidence as available. It was submitted that there was no independent evidence led by the management to prove the misconduct alleged against the workman. The counsel pointed out that the enquiry officer did not provide any assistance to the workman to defend himself in the proceedings in the domestic enquiry and, therefore, the learned Tribunal rightly held that there was violation of the principles of natural justice. In the light of the aforesaid allegations and counter-allegations and submissions made before me, I have considered the records placed before me.
7. The charge against the respondent was that on November 23, 1990 the checking team of Delhi Transport Corporation checked the bus on Delhi-Ballabhgarh route in which the respondent was on duty as a conductor. On checking it was found that two groups of passengers totalling number six who alighted at Ballabhgarh bus stand were without tickets and on enquiry by the checking officials it was revealed by those passengers that they had paid the fare to the respondent but he did not issue tickets to them. The aforesaid statements of the passengers were taken in writing and the respondent No. 1 accepted the said statements and he also handed over six unpunched tickets to the checking officials on the basis of which the aforesaid charge sheet was issued. A domestic enquiry was conducted in respect of the aforesaid allegations. During the course of the aforesaid domestic enquiry the respondent No. 1 made a request for furnishing a number of documents including circulars dated December 12, 1952 and July 29, 1954. It was the definite stand of the petitioner that the aforesaid two circulars were not available with the Corporation and, therefore, the same could not be given, whereas the other documents which were sought for were furnished to the respondent No. 1. The respondent No. 1 was also asked if he wanted the assistance of a co-worker which he refused, which is clear and apparent from the order sheet of the domestic enquiry dated August 27, 1991. In the said order it is clearly mentioned that the respondent No. 1 was asked as to whether he would like to defend himself or would like to have the assistance of a co-worker upon which the respondent No. 1 specifically stated that he would conduct the case himself. The records of the enquiry proceedings, copies of which were placed before me, would also establish that the respondent No. 1 extensively cross-examined all the witnesses. The passenger witnesses were also called for the enquiry as is disclosed from the said records, but it appears that the said passenger witnesses failed to appear before the enquiry officer. On conclusion of the enquiry, the enquiry officer found all the charges levelled against the respondent No. 1 proved and submitted a report thereto. Agreeing with the aforesaid findings of the enquiry officer, the Depot Manager, Nehru Place Depot, issued a show cause notice to the respondent No. 1 under memo dated April 21, 1993 which was received by the respondent No. 1 but he did not submit a reply thereto. The services of the respondent No. 1 were accordingly terminated by letter dated July 11, 1994.
8. In the context of the aforesaid factual position and in the light of the arguments of the counsel appearing for the parties, I am required to consider as to whether there was any violation of the principles of natural justice in conducting the domestic enquiry and whether no punishment could be awarded to the respondent No. 1 as sought to be done in the instant case as neither the passenger witnesses nor the driver were examined by the petitioner in the enquiry as also before the Tribunal. The records disclose that whatever documents were asked for were furnished to the respondent No. 1 except for copies of the two circulars as they were not available with the petitioner. The finding of the learned Tribunal that no list of witnesses and list of documents along with documents were supplied to the respondent also cannot be accepted as it is apparent from the records that the list of witnesses and the list of documents along with documents were supplied to the respondent along with the charge sheet. The respondent No. 1 was also asked at the beginning of the proceedings if he wanted the assistance of a co-worker but he stated that he would conduct the case himself and in fact he cross-examined the management witnesses extensively. The records also do not disclose that the respondent at any stage had asked for the assistance of B.L. Babbar. In my considered opinion, therefore, there is no violation of the principles of natural justice in conducting the case. It is not understood why the learned Tribunal found fault in the non-production of the enquiry officer before it as a witness though the entire records of the enquiry proceedings were made available to the learned Tribunal.
9. Strong reliance was placed by the counsel appearing for the respondent No. 1 on non-production of the driver and the alleged ticketless passengers either in the domestic enquiry or before the Tribunal. The learned Presiding Officer of the Tribunal has also made comments in respect of the aforesaid non-production. The aforesaid ticketless passengers gave in writing their statements to the checking officials that they had paid the due fare to the conductor but the conductor had not issued the tickets. The aforesaid statements of the passengers in writing were also signed by the respondent No. 1. The said statements of the passengers to the checking officials containing the admission of the respondent were placed before the enquiry officer. Apart from the said evidence, there was other independent evidence like the evidence of the checking staff both before the enquiry officer as also before the learned Tribunal on the basis of which conclusions could be arrived at that the respondent is guilty of the misconduct alleged against him. On reading of the entire evidence on record including such independent evidence like the evidence of the checking staff, the enquiry officer came to such a conclusion that the respondent is guilty of misconduct and, therefore, it cannot be said that the findings of the enquiry officer were arrived at only on the basis of the solitary evidence in the nature of the statements of the passenger witnesses. In this connection it would be appropriate to refer to the decision of the Supreme Court in State of Haryana v. Rattan Singh (supra). In the said decision three contentions were mainly raised before the Supreme Court which are as follows:-
(1) None of the passengers traveling without tickets were examined in the domestic enquiry.
(2) The checking inspectors had violated a departmental instructions by not recording the statements of the passengers.
(3) The co-conductor in the bus had affirmed the innocence of the conductor.
In paragraph 4 of the said judgment the Supreme Court had held that a domestic inquiry can take into consideration all materials logically probative for a prudent mind and that there is no allergy of hearsay evidence, provided it has reasonable nexus and credibility. It was also held in the said decision that the passengers are not required to be chased and brought before the domestic tribunal. On the scope of permissible interference with the conclusions of a domestic inquiry, the Supreme Court said in the same paragraph that what has to be seen is whether there was some evidence or was it a case of no evidence. It was further held that as long as there was some evidence, sufficiency thereof in proof of a finding by a domestic tribunal is beyond scrutiny. The Supreme Court found that there was some evidence before the inquiry officer and, therefore, the order passed in the domestic inquiry could not be held invalid. The following passage from the decision of the Supreme Court is worth quoting which is as under:-
"It is well settled that in a domestic inquiry the strict and sophisticated rules of evidence under the Indian Evidence Act may not apply. All materials which are logically probative for a prudent mind are permissible. There is no allergy to hearsay evidence provided it has reasonable nexus and credibility. It is true that departmental authorities and administrative tribunals must be careful in evaluating such material and should not glibly swallow what is strictly speaking not relevant under the Indian Evidence Act. For this proposition it is not necessary to cite decisions nor text books, although we have been taken through case law and other authorities by counsel on both sides. The essence of a judicial approach is objectivity, exclusion of extraneous materials or considerations and observance of rules of natural justice. Of course, fairplay is the basis and if perversity or arbitrariness, bias or surrender of independence of judgment vitiate the conclusions reached, such finding even though of a domestic tribunal, cannot be held good. However, the Courts below misdirected themselves, perhaps, in insisting that passengers who had come in and gone out should be chased and brought before the tribunal before a valid finding could be recorded. The `residuum' rule to which counsel for the respondent referred, based upon certain passages from American Jurisprudence does not go to that extent nor does the passage from Halsbury insist on such rigid requirement. The simple point is, was there some evidence or was there no evidence - not in the sense of the technical rules governing regular Court proceedings but in a fair commonsense way as men of understanding and worldly wisdom will accept. Viewed in this way, sufficiency of evidence in proof of the finding by a domestic tribunal is beyond scrutiny. Absence of any evidence in support of a finding is certainly available for the Court to look into because it amounts to an error of law apparent on the record. We find, in this case, that the evidence of Chamanlal, Inspector of the flying squad, is some evidence which has relevance to the charge levelled against the respondent. Therefore, we are unable to hold that the order is invalid on that ground."
10. In Shyam Sunder v. Delhi Transport Corporation (supra) this Court held that since the enquiry officer based his findings on the examination of the checking staff, there was independence evidence to link the petitioner with the charges levelled against him, and consequently it was held that the statement of the passengers, not being the sole material against the petitioner, the domestic inquiry was not vitiated. The aforesaid decision of this Court as also the decision of the Supreme Court in Rattan Singh (supra) and many other decisions were noticed by this Court in the decision in Delhi Transport Corporation v. N.L. Kakkar and another (supra). After noticing all the judgments, this Court held that it is quite clear that consistent view of the court over the last few decades has been that non-production of the passenger witnesses is not fatal to the domestic inquiry and that findings of fact arrived at in a domestic inquiry should not be interfered with so long as they are based on some evidence. It was further held that the value of that evidence and what weight is to be attached to it is within the jurisdiction of the tribunal. In the said judgment this court also noted the law laid down by some other High Courts and thereafter it was held that the production of passengers either in a domestic inquiry or before the Labour Court in an industrial dispute is not at all necessary. This Court was of the view that in most cases this would be highly impractical because it would mean that passengers would have to be traced out, chased and brought before the inquiry officer or the Labour Court causing them unnecessary inconvenience. I am of the considered opinion that all the aforesaid decisions are fully applicable to the facts and circumstances of the present case.
11. In the present case, there was evidence before the enquiry officer in the form of statements of the six passengers which were also signed by the respondent No. 1, the unpunched tickets and also the evidence of the checking staff. In my considered opinion, there being independent evidence like the evidence of the checking staff and unpunched tickets to link the respondent No. 1 with the charge levelled against him, the Tribunal did not appreciate the issues in the right perspective and on the basis of settled position of law and, therefore, it committed an error. The Tribunal also committed an error in holding that there was violation of the principles of natural justice in conducting the enquiry. I am also of the considered opinion that this is not a case where it could be said that there was violation of the principles of natural justice or where the enquiry was vitiated as was held by the Tribunal inasmuch as there was definitely legal evidence before the enquiry officer having nexus with the events that were being enquired into. The guilt of the respondent No. 1 was correctly established in the domestic enquiry proceedings and the Tribunal fell into an error in holding that the domestic enquiry was vitiated. In that view of the matter both the orders of the Tribunal are liable to be set aside.
12. Accordingly, the writ petition succeeds and the same is allowed. Consequently, the impugned order dated August 8, 2002 passed by the Industrial Tribunal is set aside and quashed and the order of removal from service passed against the respondent conductor is restored. The second order passed by the Industrial Tribunal on March 17, 2003 also stands set aside on the same ground. In the facts and circumstances of the case, I, however, leave the parties to bear their own costs.