Delhi Transport Corporation vs Balak Ram and Another

A.K. Pathak, J.—Petitioner had filed an application u/s 33(2)(b) of the Industrial Disputes Act, 1947 (''the Act'', for short) before the Industrial Tribunal-II, Delhi praying therein that approval be accorded regarding its decision to remove the respondent no. 2 from service. By the order dated 16th November, 2000, which is under challenge in this writ petition under Article 226 of the Constitution of India, Industrial Adjudicator has declined to accord approval u/s 33(2)(b) of the Act for the reasons recorded in the order. Factual matrix, as unfolded, is that respondent no. 2 was working with the petitioner as a Conductor. On 30th December, 1986 he was on duty on bus no. 9042 plying on Faridabad-Delhi route. ATI Khem Chand along with other members of checking squad conducted a surprise check of the said bus at Badarpur Border at 5 pm when four passengers were found travelling in the bus without tickets. They had boarded the bus at Ajrauda More (Faridabad). On enquiry by ATI Khem Chand group leader disclosed that he had paid Rs. 16/- to respondent no. 2 towards fare but he did not issue tickets to them. Respondent no. 2 was confronted with the above statement. At which he admitted his fault and issued four un-punched tickets bearing no. 077-22993 to 22996. Challan was prepared by ATI Khem Chand which was duly signed by the respondent no. 2. At the back of the challan ATI Khem Chand also recorded the statement of group leader of passengers wherein he stated that he had paid Rs. 16/- to respondent no. 2 towards fare of four passengers but was not issued tickets.

Charge-sheet was served on the petitioner on 23rd January, 1989 by the Disciplinary Authority stating therein the above facts and alleging that respondent no. 2 had committed misconduct within the meaning of para 2(II) and 19(b, h & m) of the Standing Orders governing the conduct of petitioner''s employees. Since respondent no. 2 denied the charge a departmental enquiry was held wherein respondent no. 2 participated. On the basis of evidence adduced by the parties Enquiry Officer concluded that misconduct was duly proved. Enquiry report was considered by the Disciplinary Authority who issued a Show Cause Notice to respondent no. 2 who submitted his reply on 25th August, 1989. Reply was not found satisfactory, accordingly, Disciplinary Authority passed an order dated 4th May, 1990 of removal of respondent no. 2 from service. On the same day, one full month''s wage was tendered to respondent by way of money order.

Vide order dated 16th August, 1999 Industrial Adjudicator held that enquiry was vitiated since findings recorded by Enquiry Officer were perverse and not based on valid and legal evidence. However, Industrial Adjudicator proceeded to enquire about the misconduct of respondent no. 2 himself by framing following issues:-

Whether the respondent committed the misconduct as mentioned in the petition u/s. 33(2)(b) of I.A. Act?

Whether the petitioner remitted one month''s wages to the respondent as per provision of the I.A. Act?

Relief.

Parties adduced their respective evidence on the above issues. Petitioner examined ATI Khem Chand as AW2. He proved the copy of challan and statement of group leader of passengers as Ex. AW1/1 and Ex. AW2/2 respectively. He also proved his report submitted to Disciplinary Authority as Ex. AW2/3 and charge-sheet as Ex. AW2/4. As against this, respondent no. 2 examined himself as RW1. He denied the allegations. He stated that on challan he had written that statement was incorrect. He also took a plea that misconduct remained unproved since passengers were not produced in the witness box, inasmuch as, solitary statement of AW2-Khem Chand was not sufficient to prove the charges. Industrial Adjudicator has accepted this contention of respondent no. 2 and has concluded that statement of AW2-Khem Chand was not sufficient to prove that respondent no. 2 had collected fare from the alleged four passengers but had not issued tickets to them in absence of passengers. Petitioner ought to have produced the passenger whose statement was recorded by ATI Khem Chand or some other co-passenger to substantiate the charge that respondent no. 2 did not issue tickets after collecting the fare. I am of the view that this findings returned by Industrial Adjudicator is contrary to well settled law. Non production of passengers by itself would not be sufficient to conclude that petitioner had remained unsuccessful in proving the allegations levelled against the respondent no. 2. ATI Khem Chand has fully supported the version of the petitioner. He was present at the spot. He has deposed about the surprise check of the bus on which respondent no. 2 was working as a Conductor. In fact, surprise check conducted by the checking squad has not even been disputed by respondent no. 2 since he has admitted his signatures on the challan. ATI Khem Chand has deposed that group leader of passengers told him that he had paid Rs. 16/- towards fare of four passengers to the respondent no. 2 but he did not issue tickets. He had recorded the statement of group leader on the challan which he has proved during the domestic enquiry and also before the court. No cogent reason has been assigned as to why he would falsely implicate the respondent no. 2. Above all, respondent no. 2 himself admitted that four passengers were without tickets. As per ATI Khem Chand, when confronted respondent no. 2 issued four tickets. Ignoring the above ocular as well as documentary evidence Industrial Adjudicator influenced by non-production of passengers concluded that misconduct remained unproved.

In State of Haryana and Another Vs. Rattan Singh, , Supreme Court has held as under:-

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.

In Delhi Transport Corporation Vs. N.L. Kakkar Presiding Officer, Industrial Tribunal No. 1 and Karan Singh, Conductor, , a Single Judge of this Court held thus "production of passengers either in a domestic enquiry or before the Labour Court in an industrial dispute is not at all necessary. Indeed, I am 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 enquiry officer or the Labour Court causing them unnecessary inconvenience. One has to take a pragmatic view of the situation as well as consider the amount of effort and energy that may have to be expended in producing the passengers as witnesses. DTC carries passengers who are residents of not only Delhi but also of other States. Is it practicable to expect a passenger, who goes back to his State after a trip to Delhi, to appear before an Inquiry Officer for confirming a statement already given by him to the checking staff? As our Division bench has cautioned us, one has to take a commonsense approach to the whole problem and not allow legal technicalities to come in the way."

In Sultan Singh Vs. Delhi Transport Corporation and Others, wherein, question of approval u/s 33(2)(b) of the Act was involved, it was held thus "there is no requirement to produce passengers in the witness box to prove the misconduct of the employee. In North-West Karnataka Road Transport Corporation Vs. K.S. Raghunathappa, also, it was held that non production of passengers will not vitiate the enquiry.

For the foregoing reasons, impugned order is set aside and approval u/s 33(2)(b) of the Act is granted to petitioner. Writ petition is disposed of in the above terms.