DELHI TRANSPORT CORPORATION v. KANWAR LAL

CORAM :- HON’BLE MR. JUSTICE RAJIV SAHAI ENDLAW 1. Whether reporters of Local papers may be allowed to see the judgment? No.

2. To be referred to the reporter or not?

3. Whether the judgment should be reported in the Digest? No. No. RAJIV SAHAI ENDLAW, J.

1. The petition impugns the order dated 5th February, 2009 and the award dated 1st April, 2010 of the Industrial Adjudicator deciding the following reference:- “Whether the removal of Sh. Kanwar Lal from services, is illegal and/or unjustified and if so, to what relief is he entitled and what directions are necessary in this respect?” W.P.(C) No.3288/2011 Page 1 of 6 by directing the petitioner DTC to reinstate the respondent workman without any back wages but with Rs.25,000/- as litigation expenses.

2. The respondent workman was employed with the petitioner DTC as a conductor. The route on which he was posted was raided on 20th March, 1995 and he was charged with having on board a woman passenger having a ticket punched upward when the trip was downward and being in possession of excess cash of Rs.108.95p. Departmental inquiry held found the respondent workman guilty and the punishment of removal from service was meted out to him.

3. Upon dispute being raised by the respondent workman, the Industrial Adjudicator first vide order dated 5th February, 2009 held departmental inquiry to be vitiated, not for the reason of proper opportunity having not been given to the respondent workman but for the reason of the charge as to the woman passenger being not meted out from the report of the raid and for the reason of the excess cash being explained by the workman. The workman had explained the excess cash by contending that the same was towards the money which was to be returned to the passengers on board and W.P.(C) No.3288/2011 Page 2 of 6 who had in this regard also filed a consumer complaint against the petitioner DTC and which had been allowed. On similar grounds the award was also made against the petitioner DTC.

4. The order/award is not found to be containing any error requiring interference. The petitioner DTC in the present writ petition has not disputed the factum of the passengers whose excess cash the respondent workman claimed to be holding having filed the consumer complaint. If that be the position, then the excess cash would stand explained and the respondent workman cannot be said to be guilty of misconduct inviting the extreme punishment of removal from service.

5. The counsel for the petitioner had on 16th May, 2011 sought time to verify the position with respect to the consumer complaint. Thereafter adjournments were sought on 25th May, 2011 and 1st June, 2011. The counsel for the petitioner DTC today states that no instructions have been forthcoming. It is not necessary to keep the matter pending. There is no reason to disbelieve the finding of the Industrial Adjudicator with respect to the consumer complaint especially when the petitioner DTC in this writ W.P.(C) No.3288/2011 Page 3 of 6 petition has not disputed the same on oath. Thus no error can be found with the finding of the Industrial Adjudicator of the charge of excess cash in possession of the respondent workman having not been made out.

6. The counsel for the petitioner has today invited attention to para 16 of the impugned award where it is inter alia recorded that it is stood proved that there was one passenger found travelling in down direction but the ticket punched in the up direction and the respondent workman having handed over a unpunched ticket. It is contended therefrom that the respondent workman has been found guilty of causing loss to the petitioner DTC and even if the said loss is to be of Rs.1/-, the petitioner is entitled to have lost faith in the respondent workman and cannot be compelled to reinstate him. However, in para 17 of the award, the Industrial Adjudicator has held that the workman was charged with a woman passenger having a stale ticket; that during the evidence, it was found that the person in possession of the stale ticket was Shaffi Ahmad and not a woman passenger; that the workman had not been charged with issuance of ticket punched in the up direction to a passenger travelling in the down direction and thus the W.P.(C) No.3288/2011 Page 4 of 6 said finding also was irrelevant.

7. It would thus appear that the Industrial Adjudicator has on the appreciation of the evidence lead before him found no cause of misconduct to have been established. This Court in exercise of power of judicial review cannot revisit the evidence. All that can be said is that the findings are based on some evidence and are thus not perverse or unreasonable. Reference in this regard may be made to: (i) Govt. of A.P. Vs. Mohd. Narsullah Khan (2006) 2 SCC 373. (ii) Sub-Divisional Officer, Konch Vs. Maharaj Singh (2003) 9 SCC 191. (iii) Union of India Vs. M/s Mustafa and Najibai Trading Co. (1998) 6 SCC 79. (iv) B.C. Chaturvedi Vs. UOI (1996) I LLJ 1231 SC. (v) Poorna Singh Kain Vs. UOI MANU/DE/1292/2008. (vi) Suresh Kumar Vs. The Management of Monsanto Enterprise Pvt. Ltd. MANU/DE/8303/2007. (vii) Ram Narain Jha Vs. T.M. Apartments Pvt. Ltd. 2007 (99) DRJ W.P.(C) No.3288/2011 Page 5 of 6

724. (viii) MCD Vs. Satish Kumar (2005) 81 DRJ 344 (DB)

8. The counsel for the petitioner has next contended that the past record of the respondent workman is also bad. However, for this reason only, the Industrial Adjudicator has denied back wages of nearly 11 years to the respondent workman and thus the award on the said aspect is also reasoned and no error is found therein.

9. Moreover, I am of the view that if the present petition is entertained, the petitioner DTC would become liable for wages under Section 17B of the Industrial Disputes Act, 1947. It is found that the petitioner is paying huge amounts of public money towards 17B wages by filing writ petitions against all awards irrespective of the merits thereof. For this reason also, it is not deemed appropriate to entertain this petition. The petition is therefore dismissed. No order as to costs. JUNE 02, 2011/gsr RAJIV SAHAI ENDLAW (JUDGE) W.P.(C) No.3288/2011 Page 6 of 6