Delhi TransportCorporation v. Jaipal Singh

Judgment

1. By this writ petition,the petitionerhas challengedthe validityof award dated 19.1.2004 whereby the Labour Court held that the domesticinquiry conductedagainst the workman was violaliveof principlesof natural.justiceand directedthe reinstatementof the workman with 11,11 back wages.

2. Briefly, the facts are that the respondent No.l was working as aconductorand was on duty on bus No. 9011 from Talwara to Delhi on 22.3.1990. At about 7.20 am, the bus was checkedat MukeriaPur by the checkingstaff. Threepersonswere caughtalightingfrom the bus withouttickets.They stated that they had paidRs.2/-each to the respondentwho did not issue the tickets.Furthercheckingof bus revealedthat nine passengerswho were travelingfrom Talwarato Delhi had paid Rs.61 each to the respondent,who did not issue tickets. Two passengerswere travelingfrom Talwara to Dasua and had paid Rs.4.70 to the respondent,but were not given tickets. One passengerhad boardedthe bus from Hajipurto Hayanaand paid Rs.7/- and was not issued ticket. One passengerhad boai'dedthe bus from Talwara to Hoshiaipurand paid Rs.il/- WP(C)No.l5794/2004 Page No.l ofPage No.ll Signature Not Verified Digitally Signed By:AMULYA Signing Date:21.10.2023 14:29 Certify that the digital file and physical file have been compared and the digital data is as per the physical file and no page is missing. V and was not issuedticket by the respondent. There were two passengerswho were travelingfrom Hajipiir to Hoshiarpur and "paid Rs.9 each to the respondent and were not given tickets. Unpunched tickets of all the above denomination were taken from the respondent and were attached to challan. The way bill of the respondent was found empty. It is alleged that the respondent did not allow the statements of passengers to be recorded and rather incited the passengersagainst the checkingstaff. He did not hand over the complaintbook to the checking stafffor making entry into it of the results ofchecking. However,he later on asked some ofthe passengeisto write their statementsin the complaintbook. On 23.3.1990,the respondentwrote a letter to DepotManagerabout the checkingand stated that his bus was not completedwhen it was

checkedas he was on Talwaraduty for the first time. The fai'e table was big and the ticketswere blank. There were more passengersin the bus. The checkingstaffwronglychallanedhim. On the basis of leportof checkingstaff, achargesheetdated 18.4.1990was issuedto the respondent. The respondentdenied the charges.An inquiry was got conductedby the petitionerinto the charges. The inquiry officer submittedits report on 30.7.1990holding,the respondeni guilty of charges levelled against him. A show cause notice was issued to the respondent as to why he be not removed from service from Corporationvide letter dated 29.11.1990. Consideringthe reply of the lespondentand consideringhis past record, the respondentwas removedfrom service.

3. The past record of the respondentshowed that he collectedRs.49/- instead of Rs.47.50 from the passengerfrom Delhi to Amritsaron 1.1.1989. He was placed under suspension.On

13.4.1989,on checking,it was found that he had issuedunpunchedtickets to the passengers. He was given penaltyofstoppingof two increments.On next checking,i.e. 2.1.1989,four passengers were caught without tickets alighting from bus when he was on duty and he was put under sirspension on 12.9.1989.On 18.10.89,as apenalty,his basicpay was reducedto the initialstage WP(C) No.15794/2004 Page No.2 ofPage No.ll ofpay scale. The presentincidencewas anotherin the series.He was dismissedLm serviceafter enquiryon 21.11.1990.He did not raise any dispute for four and ahalf years about his removal and after four and half years, he raised an industrialdispute which was referred to the Labour Court in followingterms: "Whetherthe servicesofSh. Jai Pal Singh have been terminatedillegally and/or unjustifiablyand if so, to what relief is he entitled and what directionsare necessaryin this regard?"

4. 1he 1ribunal,afterrecordingevidenceof both sides came to conclusionthat Shri. B. Trivedi, InquiryOfficer,was not appointedas InquiryOfficerby DepotManagerbut was appointedby General Manager. This showed that the appointmentof Inquiry Officer was not proper. The Tribunal also observedthat the enquiryofficeracted, both as ajudgeas well as prosecutorand cross examinedthe witnesses.If a witness had been cross examined by an inquiry officer himself, it was contrary to principles of natural justice. The enquiry officer could not have acted both, as a judge and as a prosecutor, being contrary to the principles of natural justice. The Tribunal observed that the statementsof the passengers were recorded by the inquiry officer but the same were not taken into consideration.The EnquiryOfficertwistedthe statementsofpassengersininquiry report. The Labour Court furtherobservedthat the workman was not providedlist of witnessesor documentsalong with chagesheet.The procedureadopted by the inquiryofficerwas againstthe principlesof naturaljustice. After holding, as above, the Labour Court came to conclusion that the inquiry proceedings were contrary to the principles of natural justice. The managementhad sought no opportunityto adduce evidencebefore the Tribunal to prove the charges, so no opportunitywas given. He held that removal of the workman was illegal.

5. The award has been challenged by the petitioner on the ground that the Labour Court exceeded the scope of its jurisdiction and by a mistaken view, arrogated to itself the functions of an appellate authority. The Labour Court was to see whether a prima facie case was made out by the WP(C) No.15794/2004 Page No.3 of Page No.ll "V- employer against the respondent or not and the action against the respondent iiad not been taken by way of victimization or as an unfair labour practice or there was any mala fide on the part of management. The Labour Court also failed to appreciate that the charge sheet against the respondent was in respect of the passengers who had alighted from the bus and and stated to the checking staff that they paid the fare to the respondent who failed to issue ticket.

6. The finding of the Labour Court that the inquiry was not conducted in accordance with the principles of natural justice was assailed. The petitioner submitted that there was no scope for holding so by the I..abour Court. The inquiry was conducted totally in compliance with the principles of natural justice. Neither the appointment of the Enquiry Officer was improper. The General Manager, who appointed the inquiry officer was higher in rank than the Depot Manager and was entitled to appoint an inquiry officer. The Labour Court also wrongly held that the statement of passengers was not considered or the twisted. In fact, the Inquiry Officer has considered the statements of all passengerswho had appeared and deposed. The award was also assailed on the ground that full back wages should not have been allowed by the Labour Court in view of the various judgments of Supreme Court. The Industrial dispute was raised after four and a half years of the termination, it was no industrial dispute as it had already become stale dispute. In any case, the full back wages for the entire period could not have been granted.

7. A perusal of the duty charter/conductor guidelines is the record of the petitioner, would show that a conductor has to perform the following duties: He should use proper correct destination plates; "2. before starting from the exit point, complete this work. It is the main duty that he charge fare from passengers and issue 3. is given service to mainly tickets against perform this job. While discharging this duty, he shouldfully take care of this so that the passenger or managementmaynot raise an accusedfinger at the same and the conductor in his bus and him. 4. the ticket blocks as stated in the route sheet. He shoulddistribute/issueticketsas per seriatimor serial wisefrom WP(C) No.15794/2004 Page No.4 of Page No.ll After the passenger boarded the bus,

5. the conductor should know/enquirefrom the passenger his destination spot and tell him the prescribed rate: After charging the fare, he after punching the ticket properly as per down or up directionissue the said ticket to the passenger; before issuing ticket to anotherpassenger,the conductorshould ensure that the balance if any has been returned to the earlier passenger. 11. If there are two doors in the bus, the work of issue of ticketsshould be donefrom the exit door otherwisefrom the entry door and at any bus stop, any passenger .shouldbe allowedto get down only when it is ensured that he has purchased the ticket. 12. Ticket used once in the journey cannot be re-used. Therefore, he should never sell the used ticket again and no used ticket should be kept with him. 13. If any passenger refused to pay the prescribed fare, the conductor should immediately make that pa.s.senger to get down at the immediate first stop. If situation is such that the passenger refused to pay fare and to get down from the bus, the conductor should seek the assistance of checking staff present in the line or police. Besidesthis, he should sent a report to the Traffic Suptdt. regarding that incident containing the name and address of the such passenger and of witnesses, if any. If conductor commits any error, he should immediately inform his 14. error to any member of the checking .staffpresent at the .spot and seek his advice."

8. It is apparent from guideline 11 that the conductor had to start giving tickets from exit door so that no passenger gets down without ticket, nor the conductor should allow anyone to get down without ticket. The plea that conductor was new on the route, thus had no force.

9. It is undisputed that General Manager is superior authority than the Depot Manager DTC. In this case, the appointment of Inquiry Officer, was admittedly made by General Manager and not by Depot Manager. It has not been stated by the Labour Court how appointment of the inquiryofficerby a superiorauthoritythan the appointingauthoritywas illegalor improper.There is no mle which provides that Enquiry Officer cannot be appointedby a superior authority and only the appointingauthoritycan appoint the inquity officer. Obviously,the Tribunal was under some misconceptionand held that the appointmentof inquiry officer was not proper and illegal. The Tribunal'sfinding is thus perverse. Similarly,the Tribunal'sobservationthat inquiry officer WP(C) No.15794/2004 Page No.5 ofPage No.ll <J,0 acted both as a prosecutorand as a judge are withoutany basis. A domesticinquiryis not required to be held in an adversarial manner. A domestic inquiry is in the nature of investigationand not in the nature of adjudication.An inquiry officer has every right to ask questions to the witnessesin order to get clear and whole picture of the incidentand asking questionsdoes not amount to cross examination. Even if it amounts to cross examination, it is not illegal. Even a trial judge has a right and obligationto asksuch questionsto the witness as he considersnecessaryto bring out the taith. Asking a question, does not convert a judge into a prosecutor. Neither asking of questions to witnesses converts an Enquiiy Officer into a prosecutor. There is no requirement of law that in an enquiry there should be a presentingofficer. An inquiry can be conductedby an enquiry officer withoutthe help of a presentingofficer.A privilegeis given to the delinquentemployeeto appoint his defence assistance because it is considered that the delinquent may not be in a proper state of mind to ask questions to the witnessesof the managementor to present his case properly. But a delinquent can always refuse to take help of defence assistance and conduct the case himself. Similarly,managementwitnesses can depose before the inquiiy officer of their own without the help of any presenting officer. An inquiry officer can always ask all relevant questions to the witnesses of both sides in order to know the tnith. The Tribunal wrongly concluded that asking of questions by the inquii^ officer was contrary to the principles of natural justice. It is now settled law that principles of natural justice cannot be put into a straitjacket formulae. In each case, where it is alleged that there was violation of principles of natural justice, the employee has to show as to how such alleged violation prejudiced his defence. There is no allegations made in this case that any prejudice was caused to the respondent. In 1987 (Supp) SCC 518 Chandrama Tewari w. Union oj India(ThroughGeneralManager,EasternRailways),SupremeCourt held: " Vke have given our anxious consideration to the submissions made on WP(C) No.l5794/20()4 Page No.6 of Page No.ll j I'l behalf of the appellant and we have further considered the aforesaid authorities referred to by the learned counselfor the appellant but we do not find any merit in the appellant's submissions to Justify interference with the High Court's judgment. Article 311 of the Constitution requires that reasonable opportunity of defence must be afforded to a government servant before he is awarded major punishment of dismissal. It further contemplates that disciplinary enquiry must be held in accordance with the rules in a just and fair- manner. The procedure at the enquiry must be consistent with the principles of natural justice. Principles of natural justice require that the copy of the document if any relied upon against the party char-ged .shouldbe given to him and he should be afforded opportunity to cro.ss examine the witnessesand toproduce his own witnessesin his defence. If findings are recorded against the government servant placing reliance on a document which may not have been disclosed to him or the copy whereofmay nothave been suppliedto him during the enquiry when demanded, that would contraveneprinciples of natural justice rendering the enquiry, and the consequentialorder of punishment illegal and void. These principles are well settled by a catena of decisions of this Court. We need not refer to them. However, it is not necessary that each and every document must be supplied to the delinquent government servant facing the charges, instead only materialand relevantdocumentsare necessaryto be suppliedto him. If a document even though mentioned in the memo of charges is not relevant to the charges or if its is not referred to or relied upon by the enquiry officer or the punishing authority in holding the charges proved against the government servant, no exception can be taken to the validityof theproceedings or the orders. If the documentis not used agaimst the party charged the ground of violation of principles of natural justice cannot.sueces.sfidlybe raised. The violationofprinciples of natural justice arises only when a document, copy of which may not have been .supplied to the party charged when demanded is used in recordingfinding of guilt against him. On a careful considerationof the authorities cited on behalf of the appellant, we find that the obligationto supply copies of a documentis confinedonly to material and relevant documentsand the enquiry woidd be vitiatedonly if the non supply of material and relevantdocuments when demanded may have causedprejudiceto the delinquentofficer."(para4)

10. Apeai.salofinquii^report would show that the inquii7officerhad taken into accountthe statements of all the passengers and had came to conclusion that the charges were made out against the respondentdespite statementsof some of the passengersbeing not supportiveof the case of the management. It is settledlaw that in an inquiiy,strictprinciplesof the EvidenceAct WP(C) No.l5794/20n4 Page No.7 of Page No.ll ^ are not applicable. An inquiryoHlcertake into accountall materialswhich is availableon record includinghere-sayevidence.In Sate ofHaryana v. Rattan Singh. (1977) 2SCC 491 Supreme Court held as under: 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 materialswhich are logicallyprobativefor aprudentmindare permissible. There is no allergy to hearsay evidenceprovidedit has rea.sonablenexus and credibility.It is true that departmentalauthoritiesand administrative tribunalsmust be carefulin evaluating.inch materialand shouldnotglibly swallow what is strictlyspeaking not relevantunder the Indian Evidence Act. For thispropositionit is notnecessaryto cite decisionsnor textbooh, although we have been taken through case law and other authoritiesby counsel on both sides. The essence of ajudicialapproach is objectivity, exclusionofextraneousmaterialsor considerationsand observanceofrules of naturaljustice. Of course, fairplay is the ba.sis and if perversityor arbitrarines.s,bias or surrenderof independenceof judgment vitiate the conchmons reached, such finding ,even though of a domestic tribunal, cannot be held good. However, the courts below misdirectedthemselves, perhaps, in insistingthatpassengerswho had come in and gone out should be cha.sedand broughtbefore the tribunalbefore a validfinding couldbe recorded. The 're.nduum'rule to which counselfor the respondentreferred, basedupon certainpassengersfrom AmericanJurisprudencedoes not go to that extent nor does the passage from Halsbury in.sist on such rigid teqiiirement.the simplepoint is, was there .lome evidenceor was there no evidence-notin the sense of the technicalrules evidence or was there no evidence-notin the sense of the technical rules governing regular court proceedingsbut in afair commonsenseway as men of understandingand worldly wisdom will accept. Viewed in this way, .lujficiencyofevidence in proofof the finding by a dome.vic tribunalis beyond.scrutiny.Absence of any evidence in supportofafinding is certainlyavailablefor the court to look into becauseitamounts to an error oflaw apparenton the record. We find, in this case, that the evidence of Chamanlal, Inspectorof the flying squad, is some evidencewhich has relevanceto the charge levelledagainst the respondent.Therefore,we are unable to hold that the orderis invalidon that ground." (para 4)

11. Even taking into account the pas.sengers'statement,it is evident that the conductorhad not issuedtickets to tlie passengersat one or the otherplea. The plea taken by conductorwas that he would hrst issue tickets to the short distancepassengersand then he would issue tickets long distancepassengers.But even the passengerstravelingshort distancewere found getting Wr(C)N().15794/2004 Page No.8 of Page No.ll down the bus without tickets. As per his duty chart, the conductorwas supposed to start issue tickets from the exit door, leaving no passengerwithout ticket. His refusal to give tickets to the passengerson one or other plea, showed his mala fide intention. No infirmitycan be found with the inquiryofficer'sconclusion that the conductorhad deliberatelynot issued tickets.I find that the Tribunalwent wrong in finding fault with the InquiryOfficer.

12. The award is liable to be set aside on the ground that the Tribunal did not give opportunity to management to prove misconductby adducing evidence. The Tribunal was to decideareferenceunderSection 10 of the IndustrialDisputesAct. It was not an applicationunder Section 33(2)(b) of the Act before the Tribunal. In an adjudicationof a reference made under Section 10 of the I.D.Act, it was obligatory on the Tribunal to ask both parties to adduce evidence.The Tribunalcouldnot have refusedto give opportunityto marragementfrom adducing evidenceon the ground that it did not ask for one. Itis only when an applicationunderSection33 (2)(b) of the I.D. Act is made and the Tribuntrl holds that the enquiry was vitiated that the managementis supposed to ask for an opportunityto lead evidence to prove misconductbefore the Tribunal.

13. The Tribunalin this case has.awardedfull back wages despite the fact that the petitionerhad raised industrialdisputeafter four and a half years of his termination.In AllahabadJal Sansthanv. Daya ShankarRai and another2005SCC(L&S)631, SupremeCourt held: "In law in absolute terms cannot be laid down as to in which cases, and under what circumstances,full back wages can be grantedor denied. The Labour Court and/or IndustrialTribunal before which industrialdispute has been raised, would be entitledto grant the reliefhaving regardto the facts and circtimstancesofeach ca.se. For the .saidpurpose,severalfactors are required to be taken into consideration. It is not in dispute that Respondent1 herein was appointedon a ad hoc basis; his setyices were terminatedon the groundofapolicydecision,asfar back ason 24.1.1987. Respondent1hadfiled a written statementwherein he had not raisedany WP(C)No.l5794/2004 PageNo.9 of Page No.ll •J plea that he had been sitting idle or had not obtainedanyother employment in the interregnum.The learned counselfor the appellant, in our opinion, is correct in submitting that a pleading to that effect in the written statement by the workman was necessary.Not only no suchpleading was raised, even in this evidence, the workman did not say that he continued to remain unemployed. In the instant case, the respondent herein had been reinstated from 27.2.2001. (para 6) 6 SCC 41 In Japan Kumar Bhattacharya(2002) this Court noticed that there was nopleadingor evidenceas to whetherthe respondenttherein was employedelsewhereduring the long interregnumand in thefact situation obtainingtherein, the appellantwas directedto pay50% ofthe back wages till the date of reinstatement. (Para 7) Yet again in Jarina Bee (2003) 6 SCC 141 this Court observed that award offull back wages was not the natural consequenceof an order of reinstatement, (para 8) In Rahmat Ullah (2003) 10 SCC 92, a Bench of this Court held that as the respondenttherein was out of servicesince 1990as an ordinaryworker, he must have been working elsewhere to earn his livelihood: and there was no material to .show that he was not gainfullyemployed, directionto pay 50% of the back wages was made, (para 9) In Ram A.shreySingh v Ram Bux Singh (2003) 9 SCC 154, questioningthe order of terminationaftersixyears was consideredto be one of thefactors for denying an order of reinstatementwith back wages to the workman. In thefact situationobtainingtherein, it was held that ends ofjusticewould be subser-ved if the appellants therein were directed to pay a .sum of Rs.35,000/-by way of compensationin addition to what has already been paid( See also Sonepat Coop. Sugar Mills Ltd. v. AJit Singh (2005) 3 SCC 232). (para 10) In Indian Rly. ConstructionCo. Ltd. (2003) 4 SCC 602 this Court merely stated.fSCC pp.593-94, para 30). "30. Question then would be how the conflictinginterestscan be best balanced. By an interim order dated 5.5.2000 the appellant was directedto reinstatethe re.spondentsubject to an interimpaymentofRs,.3 lakhs towards the back wages. Directions for reinstatment does nto authomaticlalyentitle an employee to full back wages. In Hindustan Tin Works(P) Ltd. Vi'. Employees(1979) 2SCC 80 a three-JudgeBench ofthis Court laid down:(SCCp.86,para 11) '11. In the very nature of things there cannot be a straitjacket formulafor awarding reliefofback wages. All relevantconsiderationswill enter the verdict. More or less, it would be a motion addressed to the discretionofthe Tribunal. Full back wages would be the normal rule and .WP(C)No.l5794/2004 Page No.lO of Page No.ll the parly objecting to it must establish the circumstancesnecessitating depaiture.Ac that stage the Tribunalwill exerciseits discretionkeeping in view all the relevantcircumstances.But the discretionmust be exercisedin a judicialandjudiciousmanner. The reason for exercisingdiscretionmust be cogent and convincingand must appearon theface ofthe record. When it is said that .somethingis to be done within the discretionofthe authority, that .somethingis to be done according to the rules ofreason and justice, according to law and not humour. It is not to be arbitrary, vague and fanciful but legal and regular(seeSusannahSharp v. Wakefield1891 AC 173, AC at p. 179) (para 14) In Nicks(lndia) Tools (2004) 8 SCC 222 this Court again in the fact .situation obtaining therein refused to interfere with the discretionary jurisdictionexercisedby the High Courtparticularlyhaving regard to the fact that it wasfor thefirst time before the writ court, such plea was raised by way oj additionalevidence, which hadbeen rejected,(para15) We have referredto certaindecisionsof this Court to highlightthat earlier in the event of an or'derof dismissalbeing set aside, rem.statementwithfull back wages was the usual result. But now with the passage of time, it has come to be realizedthat industryis being compelledtopay the workmanfor a period during which he apparentlycontributedlittle or nothing at all, for a period that was spent unproductively, while the workman is being compelledto go back to a situation which prevailed many years ago when he was dismissed.It is necessaryfor us to developa pragmatic approach to problems dogging industrial relations. However , no just solution can be offered but golden mean may be arrived at. (para 16) •j

14. For the reasons staled above, I hereby set aside the award passed by the Tribunal. The writ petition is allowed. No orders as to costs. 4 November 06,2006, SHIV NARAYAN WP(C) No.15794/2004 Page No.ll ofPage No.ll ... ?