Sh. Raj Kumar vs Delhi Transport Corporation

J.M. Malik, J.—Raj Kumar, petitioner was working as Conductor with the DTC. He was removed from the service after a departmental enquiry on the charges that during checking of his bus on Delhi-Kanpur route on 30.01.1996, 5 passengers in the groups of 2 and 3 persons were found traveling without ticket. The passengers had tendered fare @ Rs. 19.50 for group of 2 and Rs. 13.50 for group of 3 persons. Statements of two passengers viz. Ishrat Ali and Ram Narain Chaturvedi were recorded at the spot and both of them belong to the each above said two groups. It is interesting to note that Raj Kumar the petitioner also affixed his signatures at the bottom of their statements. Raj Kumar also signed the front portion of challan.

The petitioner raised an industrial dispute. Vide order dated 01.11.2006, the award was passed by the Labour Court in favor of the DTC/management and against the conductor/workman.

The workman has filed present writ petition before this court with the prayer that the award dated 01.11.2006 be quashed and the petitioner/conductor be allowed to perform his duties as Conductor.

I have heard the counsel for the parties. Counsel for the respondent has produced the copy of enquiry record, which be taken on record.

The counsel for the petitioner has vehemently argued that none of the passengers was examined by the enquiry officer and this has caused a great prejudice to the petitioner/workman. The counsel for the petitioner has drawn my attention towards the memorandum issued by DTC on 13.10.1965 placed on the record as Annexure F, which makes the following instructions:

Calling Wintesses

All the management witness should be called by the enquiry officer within the presence of the defense witnesses in the enquiry should be arranged by the accused employee himself. However, if the defense witnesses happen to be employee of the undertaking they may be called by the enquiry officer.

Recording of evidence of witnesses of the address given by them. The following procedure should be adopted for recording the evidence of the witnesses at the address given by him in the event of his failure to come after the repeated request and the case is getting delayed.

i) The evidence of the passenger / passing (witness) be recorded at the residence or in the presence of the accused employee by the officer deputed to record such statement. The LO and of the LWO of the Asstt. in charge in the Labour Section should accompany for the purpose of recording such a statement and cross-examination of witnesses.

ii) The intimation for calling of the passenger(witnesses) to attend the enquiry should be sent by post and reply of the same also be not delivered through ATI of the respective Zone Motor Cycle Messenger and they should make sure which the witness should be coming to participate in enquiry.

In case the date or the time already fixed does not suit the witness the fact should be brought to the notice by the enquiry officer and should the date and time be fixed.

The counsel argued with vehemence that under these circumstances it was necessary to produce the passenger before the enquiry officer.

I see no merit in these arguments. This is well settled now that non production of passengers before the enquiry officer is not of much consequence. The Apex Court in State of Haryana and Another Vs. Rattan Singh, , was pleased to observe:

The principal ground on which the courts below have declared the termination bad is that none of the 11 passengers have been examined at the domestic enquiry. Secondly, it has been mentioned that there is a departmental instruction that checking inspectors should record the statements of passengers, which was not done in this case. The Explanation of the State, as borne out by the record, is that the inspector of the flying squad who had said that they had paid the fares but they declined to give such written statement. The third ground which weighed with the courts was, perhaps, that the co-conductor in the bus had supported with this evidence, the guiltlessness of the respondent.

It is well settled that in a domestic enquiry 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 mis-directed 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 passengers 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 common-sense way as men of understanding and wordly 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 ending is certainty 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 elevance to the charge leveled against the respondent. Therefore, we are unable to hold that the order is invalid on that ground.

Similar view was taken by Apex Court in U.P.S.R.T.C. Vs. Mahendra Nath Tiwari and Another, ; Divisional Controller, KSRTC (NWKRTC) Vs. A.T. Mane, , and by this Court in Sewa Ram v. DTC LPA 1093/2004 decided on 04.10.2007; Sheo Raj v. DTC LPA 243/2007 decided on 10.10.2007; Kapoor Singh v. DTC 141 2007 DLT 535; Mahavir Singh v. DTC (139) 2007 DLT 569; Delhi Transport Corporation Vs. Tej Pal, ; The Management of Delhi Transport Corporation Vs. Surinder Singh, ; Ramesh Kumar v. Management of DTC, WP(C) 5073/1998 decided 6th November, 2006; and in DTC v. N.L. Kakkar (110) 2004 DLT 493, wherein in the last case it was observed:

Production of passengers either in a domestic inquiry 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 inquiry 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 a recent authority reported in In U.P. State Road Transport Corporation Vs. Vinod Kumar, , it was held,

...Without burdening the judgment with all the judgments of this Court on this point, we may only refer to a recent judgment in Divisional Controller, N.E.K.R.T.C. Vs. H. Amaresh, , wherein this Court, after taking into account the earlier decisions, held in para 18 as under:

In the instant case, the mis-appropriation of the funds by the delinquent employee was only Rs. 360.95. This Court has considered the punishment that may be awarded to the delinquent employees who mis-appropriated the funds of the Corporation and the factors to be considered. This Court in a catena of judgments held that the loss of confidence is the primary factor and not the amount of money mis-appropriated and that the sympathy or generosity cannot be a factor which is impermissible in law. When an employee is found guilty of pilferage or of mis-appropriating the Corporation''s funds, there is nothing wrong in the Corporation losing confidence or faith in such an employee and awarding punishment of dismissal. In such cases, there is no place for generosity or misplaced sympathy on the part of the judicial forums and interfering Therefore with the quantum of punishment. The judgment in Karnataka State Road Transport Corporation v. B.S. Hullikatti (2001) 2 SCC 574 was also relied on in this judgment among others. Examination of the passengers of the vehicle from whom the said sum was collected was also not essential. In our view, possession of the said excess sum of money on the part of the respondent a fact proved, is itself a mis-conduct and hence the Labour Court and the learned Judges of the High Court misdirected themselves in insisting on the evidence of the passengers which is wholly not essential. This apart, the respondent did not have any Explanation for having carried the said excess amount. This omission was sufficient to hold him guilty. This act was so grossly negligent that the respondent was not fit to be retained as a conductor because such action or inaction of his was bound to result in financial loss to the appellant irrespective of the quantum.

Consequently the argument urged by the counsel for the petitioner must be left out of consideration.

The next submission made by counsel for the petitioner was that the petitioner has not provided assistance on each hearing of enquiry. The photocopy of enquiry record has been produced before me. I have perused the same. Counsel for the petitioner after perusal of the enquiry record submits that no assistance was given to the petitioner on 11.06.1996 and 21.06.1996. On 11.06.1996 the petitioner was asked to have assistance but he had himself refused to accept the same and had signed it. The learned counsel for the petitioner insisted that the petitioner should have been asked on each date of enquiry whether he wanted the assistance. This objection was also raised before the Division Bench of this court in a case Ramesh Chand Vs. Delhi Transport Corporation, and was repelled as follows:

We have considered all the submissions in the light of the records. So far as the first ground taken before us which pertains to violation of the mandates of the circular dated 12.12.1973 is concerned, a similar issue was raised before us in the LPA No. 2290/2006 titled as Dharam Pal v. Delhi Transport Corporation. In the said case also, the aforesaid contention was rejected. Such a contention was also a subject matter of consideration before this Court in writ petition being CWP No. 1420/2002 title as DTC v. Shyam Singh & Anr. The said writ petition was disposed of by judgment and order dated 29th September, 2004 and the Court held as under:

Reliance placed by the learned Tribunal on the circular dated 12th February, 1973 is also misplaced. The circular requires the Enquiry Officer to ask a delinquent, on each date of the proceedings, whether he needs the assistance of any other workman. This circular merely incorporate a rule of prudence and not a mandatory direction, non-compliance of which would invalidate an inquiry. In a case such as the present, the respondent-workman, a literate conductor refused to take the assistance of a co-worker in the very first hearing. This being the position, the Enquiry Officer cannot be expected to ask him in every hearing whether he requires the assistance of any other worker....

Therefore, we are not inclined to accept the aforesaid contention raised by the counsel appearing for the appellant. Even otherwise on perusal of the records, we find that the appellant was given the opportunity to engage a defense assistant and the said opportunity was refused by the appellant stating that he would himself cross-examine the witnesses. In fact, the records indicate that he had himself cross-examined the witnesses produced. Therefore, the aforesaid contention raised regarding denial of opportunity is misconceived and is rejected.

Counsel for the petitioner raises no other arguments. The writ petition is without merit and the same is Therefore dismissed in limine.