Delhi District Court
Sh. Dharam Pal ( Conductor) vs Delhi Transport Corporation on 16 March, 2009
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IN THE COURT OF SH BABU LAL: POIT-II,
KARKARDOOMA COURTS, DELHI
I.D. No.53/07
Sh. Dharam Pal ( Conductor) Workman
H.N. 461-462, D Block,
Jahangir Puri, Delhi 33.
Versus
Delhi Transport Corporation, Management
I.P.Estate, New Delhi-110002,
through its Chairman-cum-M.D.
ORDER ON THE POINT OF INQUIRY
1. Workman has raised the present industrial dispute
and on failure of conciliation proceedings, GNCT of Delhi
referred the dispute to this tribunal in the following terms:-
''Whether the stoppage of next three increment
of Dharam Pal S/o Sh. Sh. Pheren Singh with
cumulative effect by the management is illegal
and/ or unjustified; and if so, to what relief is he
entitled and what directions are necessary in this
respect ? ''.
2. Workman appeared and filed statement of claim.
Facts leading to the inquiry against the workman are that
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on 20.8.02 workman was employed as conductor on bus No 2709 from Delhi to Amritsar and when the checking staff of the management checked the aforesaid bus at 1800 hours at Sambhu Border, it was found (1) a group of two passengers had boarded the bus from Ambala Cantt for Khanna who were ticketless and that they told the checking staff that they had paid Rs 60 to the workman though total fair for both the passengers was Rs 66 and that workman did not issue ticket to them, therefore, the workman has deceived and cheated the management. (2) Another passenger was found without ticket and he was charged Rs 400 as CFD. (3) He had caused economic loss to the management and (4) he had displayed negligence in discharge of his duty.
3. After chargehseet was given, an inquiry was conducted. In that inquiry, Inquiry Officer came to the conclusion that workman was guilty of all the charges, hence, penalty as referred to above was inflicted upon him.
4. According to the workman, inquiry was not conducted in proper manner which was violative of principles of natural justice.
5. On the other hand, case of the management is that on 20.8.02 workman was working on bus No 2709 and 3 checking staff when checked the bus at 1800 hours at Sinbhu Border, it was found that workman had taken Rs 60 from a group of two passengers though actual fare was Rs 66 and did not issue tickets to them and thus he has misappropriated the amount. Secondly another passenger was found without ticket and he was charged Rs 400 under CFD. It is alleged that management conducted inquiry against the workman after observing principles of natural justice.
6. On the basis of pleadings of parties, following issues were framed by my Ld. Predecessor vide order dated 13.5.05:-
(1)Whether the cause of the workman has been duly espoused?
(2) Whether the punishment awarded to the workman is without holding proper inquiry? (3) If issue No 2 is decided in favour of the workman, whether workman has committed the alleged misconduct ?
(4) Whether the punishment awarded to the workman is illegal and unjustified ? (5) In terms of reference.
7. In order to prove his case, workman has filed his affidavit was cross examined as WW--1. On the other hand, on behalf of management, Inquiry Officer has been 4 examine as MW--1.
8. I have heard AR for the parties on the point of validity of enquiry ( issue No 2) and have carefully gone through record of the case. My findings on issue No 2 regarding inquiry is as follows:
Findings on issue No 2
9. In his affidavit, WW--1 Dharam Pal has stated that no documents as mentioned in the Inquiry report were supplied to him and that he was always given unsigned copies of the proceedings. Second point raised by him is that he had examined driver of the bus as a witness who was not cross examined by the management, therefore, his statement remains unrebutted and despite the fact report was given against him. It is deposed that inquiry report is bad because (1) inquiry Officer did not consider unrebutted testimony of driver of the bus (2) report of the Inquiry Officer is not based on evidence (3) Inquiry Officer did not consider statement given by the workman (4) during the course of inquiry, ticketless passengers were not called as a witnesses and (5) Inquiry Officer found charge No 2 as proved though in no way it constituted the charge, even though Inquiry Officer could not have given findings on said charge. Documents proved by him have been proved as 5 Ex WW1/1 to WW1/5. In his cross examination, he was put Ex WW12/M-1 ( colly), the proceedings of inquiry and he did not dispute the correctness thereof. He has even stated that proceedings bear his signature. However, he has denied the suggestion that he was given full opportunity to present his case before the Inquiry Officer.
10. On the other hand, MW--1 Sh. Sushil Jacob has proved chargsheet as Ex MW1/1. He has deposed that opportunity to defend was duly given to the workman and that inquiry was conducted in accordance with rules and regulations governing the inquiry. So far as passengers were concerned, his case is that they were called during the inquiry to depose vide order dated 14.11.02 and 9.12.02 but they did not come in that inquiry to depose. Copies of letters sent to them have been proved as Ex MW1/2 and MW1/4. Inquiry proceedings have been proved as Ex WW1/M-1. Copy of the record has been proved as Ex MW1/5. In his cross examination, he has stated that notice to passengers were sent by registered post out of Delhi but they did not come to depose in inquiry proceedings. He has denied that workman was not given proper opportunity to defend himself.
11. It has been argued by AR for the workman in the 6 written submissions that inquiry conducted against the workman, Inquiry Officer did not adhere to principles of natural justice, therefore, inquiry is bad. The attributes of failure to observe principles of natural justice as argued are (1) there was no management representative in the inquiry and that it was Inquiry Officer himself who presented the case of the management and behaved like a prosecutor as well as Inquiry officer, therefore, element of biasness existed. Second point is that no defence witness was cross examined nor the passengers who had paid Rs 60 towards fare were called during inquiry. Thirdly, it is argued that Inquiry Officer was totally biased as out of five charges, charge No 2 was in no way connected with the workman which was held to be proved against him even though there was no iota of evidence in that regard. Fourthly it is argued that Inquiry Officer did not pay any heed to the statement given by the workman, therefore, inquiry is bad.
12. On the other hand, AR for the management has argued that there was no need for the management under rule to appoint any Presenting Officer rather it was the duty of the Inquiry Officer to ascertain the truth from witnesses, hence, no prejudice has been caused to the workman due 7 to non deployment of a Presenting Officer. Secondly, it is argued that even though defence witnesses were not cross examined by the management, nevertheless it was for the Inquiry Officer to appreciate the evidence. So far as non examination of ticket less passenger is concerned, it is argued that they were requested to appear as witnesses by sending register letter to them but they did not appear.
13. Workman has proved on record inquiry proceedings as Ex WW1/1 to WW1/5. WW1/1 is the chargesheet given to the workman which specify the charges levelled against him. He has submitted his explanation which has been proved as Ex WW1/2. Inquiry proceedings have been proved as Ex WW1/3. Workman was specifically asked if he wanted assistance of a defence assistant but he declined. Jai Pal Singh, Ram Kishan, Om Parkash witnesses of the management have deposed in the presence of Inquiry Officer against the workman. He was given due opportunity to cross examine these witnesses. Therefore, so far as argument of the workman that Inquiry Officer was not assisted by a Presenting Officer, therefore, he acted like a prosecutor is not correct. It is prerogative of the employer to appoint any Presenting Officer or not to present its case because witnesses of the 8 management are sent to depose before Inquiry Officer. Inquiry Officer recorded their statement, workman cross examines them. The workman did not raise any objection. He was even offered to produce any defend assistant but he declined. It is not the case that Inquiry Officer led the witnesses to make any particular statement or prompted them or put any leading question. Whatever was deposed by witnessed was recorded by him. Therefore, it can not be said that the Inquiry Officer acted like a prosecutor. He had not put any question or put any leading question to any of the witnesses, therefore, it can not be said that there is any force in the argument of AR for the workman that since no Presenting Officer was appointed, inquiry was bad or that Inquiry Officer acted like a prosecutor.
14. Second point raised by the workman is that no defence witness was cross examined nor the two passengers who were allegedly travelling without tickets were examined. So far as non cross examinations of the witnesses examined by the workman is concerned, when none appeared from the side of management, question of giving opportunity to cross examine the witnesses did not arise. In no way, Inquiry Officer put any question to the witnesses, therefore, his conduct was quite fair and 9 judicious. The management did not appoint any Presenting officer so consequence was that it did not avail opportunity to cross examine workman's witness. No prejudice has been caused to the workman.
15. So far as non examination of ticket less passengers is concerned, MW--1 in his affidavit has stated that he had written two letters to them requesting to appear. He also stated that he sent registered letters but they did not appear. When witnesses did not turn up it was beyond control of the Inquiry Officer to secure their attendance. Rather all the four prosecution witnesses in whose presence ticket less passengers had made statement that they had paid Rs 60 towards fare to the workman have been examined. They had recorded their statement also which has been placed on record. Therefore, when witnesses despite receipt of registered letters did not appear, it can not be said to be violative of principles of natural justice.
16. 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 10
3) Sufficiency of evidence in proof of findings by a domestic tribunal is beyond scrutiny, though absence of any 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.
17. In 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.
18. The statement of ticket less passengers were recorded by checking staff. All the members of checking staff had been examined during the course of inquiry. The ticket less passengers were sent notices to participate in the inquiry but they did not turn up, therefore, it cannot be said that evidence before the Inquiry Officer was not credible or could not have been acted upon in the absence of evidence of ticket less passengers.
19. It has been argued that Inquiry Officer did not give any heed to statement of defence witnesses in his inquiry report. Report of Inquiry officer has been proved as ex WW1/4 in which Inquiry Officer has specifically adverted to the testimony of Inder Pal and did not find his evidence 11 credible on the ground that his testimony was not corroborated by the version of the workman given in reply to the chargesheet, therefore, it can not be said that testimony of defence witness was not considered.
20. So far as argument regarding non proving of charge No 2 is concerned. Charge No 2 was that one passenger was found without ticket who was charged Rs 400 under CFD. Workman was issued chargesheet Ex WW1/1. In reply to this chargesheet workman had specifically adverted to this charge. Explanation given by him was that it was not feasible for the conductor to count passengers and check if all the passengers were having tickets or not, therefore, workman could not have been held liable for the said charge.
21. When the workman was working as conductor in the bus and one passenger was found without ticket, it was a reflection on his functioning, therefore, it can not be said that conclusions reached by the Inquiry Officer on charge No 2 were bad. The said conclusion was reached on the basis of admission and conduct of the workman.
22. In view of reasons given above, it can not be said that workman was not afforded fair and proper opportunity of being heard or that principles of natural justice were not 12 followed by the Inquiry Officer. Therefore, I come to the conclusion that inquiry conducted against the workman was just,fair and proper. This issue is accordingly decided.
Announced in open court on 16.03.09 (BABU LAL)
Presiding Officer, Industrial Tribunal-II Karkardooma Courts, Delhi.