Delhi District Court
Shri Sunil Kumar vs M/S Delhi Transport Corporation on 15 February, 2011
IN THE COURT OF SH. J.P.S. MALIK, POLC-VII,
(EAST-DISTRICT), KARKARDOOMA COURTS, DELHI.
ID No. 627/96/2010
Unique Case ID No. 02402C0012081996
Shri Sunil Kumar,
B.No. 19255
C/o Chamber No. 281,
Western Wing,
Tis Hazari Court,
Delhi. .......Workman
Versus
M/s Delhi Transport Corporation,
Through its Chairman,
I.P. Estate,
New Delhi.
.......Management
Date of institution of the Suit : 03.09.1996
Date on which order was reserved : 09.02.2011
Date of decision : 15.02.2011
Ref. No.: F.24(3340)/96-Lab/40713-17 dated 27.8.96.
AWARD
1.The appropriate Government vide order No.F.24 (3340)/96- ID No.627/96/2010 Page 1/9 Lab./40713-17 dated 27.8.96 through Secretary (Labour), has made the following reference, for adjudication:
"Whether the removal of Shri Sunil Kumar from service is illegal and/or unjustified and if so, to what relief is he entitled and what directions are necessary in this respect?"
2. The case of the workman Sunil Kumar, as per the statement of claim filed, is that he was employed with defendant Delhi Transport Corporation, as a conductor, and on 31.12.1993, he was on duty on a bus route Delhi-Kanpur, when the bus was intercepted by a team of checking officials and he was challaned on the allegations that some passengers had given Rs.5/- each to him, but the tickets were not issued. The workman has claimed that said passengers had not paid him the fares. Chargesheet dated 19.01.1994, was issued to the workman, and domestic enquiry was conducted. The workman had been held guilty in the enquiry vide report dated 31.01.1993, after a show cause notice was issued to the workman. The workman had been removed from services by the Management vide order dated 30.6.1995. The workman challenged the enquiry conducted against him on the ground that same was improper and no independent witness was examined during the ID No.627/96/2010 Page 2/9 enquiry proceedings except checking staff who were interested witnesses.
3. In the Written Statement filed, on behalf of the Management, the stand taken is that the workman had committed misconduct in receiving fares from the passengers and not issuing the tickets. The Management also claimed that enquiry was conducted in a fair and proper manner and the workman was given full opportunity to defend himself and he was also given the liberty to take assistance of any co- worker / labour official which was declined by the workman.
4. Rejoinder was filed on behalf of the workman and in the light of the pleadings of the parties, following issues were framed:
(i) Whether the Domestic Enquiry was not conducted according to the Principles of Natural Justice?
(ii) As per terms of reference.
5. Issue no.1, which was as regards the conduct of domestic enquiry by the Management, was treated as a preliminary issue. ID No.627/96/2010 Page 3/9
6. The workman filed his affidavit of evidence in his evidence, and was cross examined on behalf of the Management. In evidence of the Management, one witness being MW-1 Sumeet Mudgal, who conducted the domestic enquiry, against the workman, was examined and he was cross examined on behalf of the workman.
7. Vide order dated 07.11.2001 preliminary issue was decided in favour of the workman and against the Management, and it was held that enquiry proceedings were not conducted in accordance with principles of natural justice, as pre-recorded statement of one of the witness, was relied upon by the Enquiry Officer. It was also held that the enquiry was vitiated as statements of passengers were not recorded and there was a possibility to do so, by the checking staff and also, that cash of the workman was not checked to prove the misconduct on his part. The enquiry was set aside.
8. The Management wanted to lead evidence to prove the misconduct on the part of the workman in the court, but same was not allowed on the ground that no such prayer was made on behalf of the Management in the written statement filed. Vide award dated ID No.627/96/2010 Page 4/9 21.3.2002, it was held that services of the workman were terminated illegally and he was directed to be reinstated with full back wages and continuity of service.
9. Management agitated the issue before the Hon'ble High Court and vide order dated 19.4.2010, the award has been set aside, matter remanded back and Management was given liberty to move an application to lead additional evidence to prove the misconduct of the workman. Management had been given the opportunity to prove the misconduct on the part of the workman, and in evidence of the Management in that regard, two witnesses have been examined. Both filed their affidavits of evidence and were cross examined on behalf of the workman. No additional evidence has been given on behalf of the workman. MW-1 is Bishwajeet Dass, who was the Disciplinary Authority by whom order of removal EX.RW1/5-6 has been made. MW-2 is Tej Pal, who was a member of the checking team by which the bus on which the workman was a conductor, was checked at Chapra More in District Farukhabad, U.P. MW-2 has testified as regards ten passengers found without tickets while getting down of the bus. ID No.627/96/2010 Page 5/9
10. Arguments were heard on behalf of both the workman and the Management. Written submissions were filed on behalf of the Management and I hold as under:-
Deposition of MW-1 Bishwajeet Dass is not that important to prove the alleged misconduct on the part of the workman as he was not a member of the checking team by which the bus was checked and passengers intercepted who were getting down of the bus and not possessing the tickets at Chapra More in District Farukhabad, U.P. MW-2, Shri Tej Pal has testified that he had checked a DTC bus at Chapra More alongwith TI Maru Singh and TI Hari Singh in year 1993. The witness was an ATI at that time and while deposing in the court, had stated that he was not able to recollect the bus number, the date or the month, and he was also not able to recollect the name of the bus driver or the bus conductor, just stating that details have been mentioned in the report. MW-2 stated that they checked the passengers, getting down of the bus, and found ten passengers who were not having bus tickets, and unpunched tickets of the ten passengers, who were without tickets, were given by the conductor. MW-2 deposed that conductor was challaned vide challan EX.RW1/1 (collectively) and report submitted. ID No.627/96/2010 Page 6/9 Other two members of the checking team being TI Maru Singh and TI Hari Singh have not been examined in the case. As per the challan EX.RW1/1, exhibited collectively, when the bus passengers were checked by the checking officials, two groups of passengers, each consisting of five passengers, were found without tickets, and on being questioned, both the groups told that they were travelling in the bus from Bewar to Chipra Mau and had given Rs.5/- per ticket to the conductor, but despite their asking for the tickets, bus tickets were not issued by the conductor, who is the workman in the case. It is also stated in the challan as well as in the report, which is exhibited collectively as EX.RW1/1, that when the members of the checking team confronted the conductor, he admitted his guilt and gave ten unpunched tickets to the members of the team. As per the challan, and the report exhibited collectively as EX.RW1/1, it is stated that when members of the checking team started recording the statements of the passengers, the conductor asked those passengers not to make any statement, and made them to leave the place, after threatening them. In the statement of MW-2 Tej Pal, recorded in the court, the witness has not deposed that members of the checking team wanted to record the statements of the passengers who were found without tickets and that they were ID No.627/96/2010 Page 7/9 threatened by the workman. MW-2, when questioned on the point specifically in cross examination, just stated that the passengers refused to disclose their names, nowhere stating that they were threatened by the workman. In any case, the workman/conductor was alone, there were three members of the checking team, and ten passengers without tickets. The workman/conductor was not in a position to threaten those passengers. Further, in any case, MW-2 has not deposed on the point, in his statement recorded in the court. MW-2 was also not able to recollect the name of the conductor, when checking was done. As admitted in cross examination, even the cash of the workman conductor was not checked to find out whether in fact the workman had received Rs.50/- which could be in excess of the cash, with him. Deposition of MW-2, which is just proving the previous report of the checking team, and the challan issued to the workman, otherwise not able to recollect material facts is not sufficient to prove the misconduct alleged, against the workman. It is particularly so, in the light of the facts that other two members of the checking team TI Maru Singh and TI Hari Singh have not been examined on behalf of the Management. Accordingly, I hold that Management has failed to prove the alleged misconduct on the part of the workman of not issuing tickets to the passengers after receiving ID No.627/96/2010 Page 8/9 money on 31.12.1993, when his bus was checked, while plying on Delhi-Kanpur road and passengers found without tickets. Management has also failed to prove the allegations that the workman threatened the passengers when the checking staff started recording the statements of those passengers, who were found without tickets. Since, the Management has failed to prove the misconduct on the part of the workman, removal of the workman from services, by the Management is both illegal and unjustified. The workman is entitled to be reinstated to his job with full back wages and continuity of service.
11. The workman shall be reinstated to his job and shall be entitled to get full back wages from the date of his removal i.e. 30.6.1995 till he is reinstated to his job with continuity of service. Award passed accordingly.
12. Six copies of the award be sent to the appropriate Govt. for publication. File be consigned to record room.
Announced in open court (J.P.S. MALIK)
Dated: 15.02.2011. POLC-VII, Karkardooma,
Delhi.
ID No.627/96/2010 Page 9/9
ID No. 627/96/2010
15.02.011
Present: None.
Vide my separate order award is passed in favour of the workman and against the Management. Six copies of the award be sent to the appropriate Government for publication. File be consigned to record room.
(J.P.S. MALIK) POLC-VII, Karkardooma, Delhi.
ID No.627/96/2010 Page 10/9