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-h b $-28 HIGH COURT OF DELHI LPAl 086/2011 DELHI TRANSPORT CORPORATION Appellant
Through: Mr. Sarfaraz Khan & MirzaAmir Baig, Adv.
Through: Mr. Sarfaraz Khan & MirzaAmir Baig, Adv.
VERSUS
SAVITRI DEVI & ORS Respondents
Through: Mr. C.S. Parashar, Adv. AND !+ LPA 1087/2011
DELHI TRANSPORT CORPORATION Appellant
Through: Mr. Sarfaraz Khan& Mirza Amir Baig, Adv.'
Through: Mr. C.S. Parashar, Adv. AND !+ LPA 1087/2011
DELHI TRANSPORT CORPORATION Appellant
Through: Mr. Sarfaraz Khan& Mirza Amir Baig, Adv.'
VERSUS
SAVITRI DEVI & ORS Respondents
Through: Mr. C.S. Parashar, Adv.
Through: Mr. C.S. Parashar, Adv.
CORAM:
HON'BLE MR. JUSTICE P.K. BHASIN
HON'BLE MR. JUSTICE V.P.VAISH
11.11.2013 The appellant in both these appeals is aggrieved by a common order dated 23.08.2011 passed by the learned Single Judge whereby the writ petition filed by the appellant against the order dated 03.08.2000 of the
Industrial Tribunal-II rejecting its petition under Section 33(2)(b) of the
Industrial Disputes Act, 1947 (T.D. Act' in short) which was filed seeking
HON'BLE MR. JUSTICE V.P.VAISH
11.11.2013 The appellant in both these appeals is aggrieved by a common order dated 23.08.2011 passed by the learned Single Judge whereby the writ petition filed by the appellant against the order dated 03.08.2000 of the
Industrial Tribunal-II rejecting its petition under Section 33(2)(b) of the
Industrial Disputes Act, 1947 (T.D. Act' in short) which was filed seeking
LPA 1086/2011 &1087/2011 Page 1of8
2013:DHC:8472-DB \7 approval of its decision taken for the removal of its conductor Satpal
Singh(reference to whom shall hereinafter be made as 'the deceased
Workman' since he had died during the pendency of the litigation in respect jOf the penalty of removal from service imposed on him by the appellant-
[dTC) was dismissed while another writ petition filed against the Award dated 22.01.2003 of the Industrial Tribunal-Ill by the legal heirs of the
'deceased workman whereby the reference made to it by the appropriate
.Government at the instance of the deceased in respect of the industrial dispute raised by him challenging his removal from service by the appellant herein was answered against the deceased workman, was allowed.
In the appellant's petition under Section 33(2)(b) ofthe I.D.Act it had relied upon the proceedings of the departmental enquiry held against the deceased workman on some allegations ofmisconduct one ofwhich was that when on 29.09.1991 he was performing his duties as a conductor on a DTC bus going from Delhi to Shimla was intercepted by the checking staff of
DTC at Pinjore, many passengers were found without tickets. They had boarded the bus from Chandigarh and were going to different destinations.
On being asked by the checking staff those passengers informed the checking officials that they had paid due fare to the conductor of the bus but they had not been issued the tickets. Accordingly , the deceased workman was asked to handover nine unpunched tickets in lieu ofthe fare which he had collected from nine passengers who were travelling without tickets which he refused to give and not only that he also misbehaved with the checking officials. On the report of the checking officials the management of DTC firstly suspended him on 04.04.1991 and then issued a charge- sheet to the deceased workman on 24.04.199Ion the aforesaid allegations which he denied. Thereafter, the management ofDTC ordered departmental enquiry to look into the aforesaid allegations levelled against him by the
2013:DHC:8472-DB \7 approval of its decision taken for the removal of its conductor Satpal
Singh(reference to whom shall hereinafter be made as 'the deceased
Workman' since he had died during the pendency of the litigation in respect jOf the penalty of removal from service imposed on him by the appellant-
[dTC) was dismissed while another writ petition filed against the Award dated 22.01.2003 of the Industrial Tribunal-Ill by the legal heirs of the
'deceased workman whereby the reference made to it by the appropriate
.Government at the instance of the deceased in respect of the industrial dispute raised by him challenging his removal from service by the appellant herein was answered against the deceased workman, was allowed.
In the appellant's petition under Section 33(2)(b) ofthe I.D.Act it had relied upon the proceedings of the departmental enquiry held against the deceased workman on some allegations ofmisconduct one ofwhich was that when on 29.09.1991 he was performing his duties as a conductor on a DTC bus going from Delhi to Shimla was intercepted by the checking staff of
DTC at Pinjore, many passengers were found without tickets. They had boarded the bus from Chandigarh and were going to different destinations.
On being asked by the checking staff those passengers informed the checking officials that they had paid due fare to the conductor of the bus but they had not been issued the tickets. Accordingly , the deceased workman was asked to handover nine unpunched tickets in lieu ofthe fare which he had collected from nine passengers who were travelling without tickets which he refused to give and not only that he also misbehaved with the checking officials. On the report of the checking officials the management of DTC firstly suspended him on 04.04.1991 and then issued a charge- sheet to the deceased workman on 24.04.199Ion the aforesaid allegations which he denied. Thereafter, the management ofDTC ordered departmental enquiry to look into the aforesaid allegations levelled against him by the
LPA1086/2011 & 1087/2011 checking official. In the enquiry, the charges were found established by the enquiry officer. Concurring with the decision of the enquiry officer the disciplinary authority imposed upon the deceased workman penalty of
! removal from service on 16.07.1991.
I Since some industrial dispute between the management and i respondent was pending before an Industrial Tribunal, because of which the management had to obtain the approval of the said penalty awarded to the deceased workman from the Industrial Tribunal-II which at that time was being presided over by Shri B.B.Chaudhary, Additional District Judge, it had moved an application for that purpose under Section 33(2)(b) of the
I.D.Act(being O.P.No.27/1991). That petition was opposed bythe deceased workman, inter alia, on the ground that no proper enquiry was conducted before imposing upon him the penalty of removal from service. In view of the challenge to the validity of the departmental enquiry the appellant- management had requested the Industrial Tribunal to frame a preliminary issue about the validity of the enquiry which was framed but decided against the management.
As the management had also asked for an opportunity to establish the deceased workman's misconduct before the Tribunal by adducing necessary evidence in the event of Tribunal holding that no proper enquiry was, held the Tribunal gave opportunity to the appellant-management.
The appellant-management then examined one witness Hari Singh, who was one of the two checking officials who had checked the^ bus in which the deceased workman was the conductor. The deceased workman also examined himselfonlyin support of his defence.
After analysing the evidence adduced from both the sides, the learned
Industrial Tribunal vide order dated 03.08.2000 came to the conclusion that the appellant-management had failed to establish the allegations leyelled
! removal from service on 16.07.1991.
I Since some industrial dispute between the management and i respondent was pending before an Industrial Tribunal, because of which the management had to obtain the approval of the said penalty awarded to the deceased workman from the Industrial Tribunal-II which at that time was being presided over by Shri B.B.Chaudhary, Additional District Judge, it had moved an application for that purpose under Section 33(2)(b) of the
I.D.Act(being O.P.No.27/1991). That petition was opposed bythe deceased workman, inter alia, on the ground that no proper enquiry was conducted before imposing upon him the penalty of removal from service. In view of the challenge to the validity of the departmental enquiry the appellant- management had requested the Industrial Tribunal to frame a preliminary issue about the validity of the enquiry which was framed but decided against the management.
As the management had also asked for an opportunity to establish the deceased workman's misconduct before the Tribunal by adducing necessary evidence in the event of Tribunal holding that no proper enquiry was, held the Tribunal gave opportunity to the appellant-management.
The appellant-management then examined one witness Hari Singh, who was one of the two checking officials who had checked the^ bus in which the deceased workman was the conductor. The deceased workman also examined himselfonlyin support of his defence.
After analysing the evidence adduced from both the sides, the learned
Industrial Tribunal vide order dated 03.08.2000 came to the conclusion that the appellant-management had failed to establish the allegations leyelled
LPA 1086/2011 &1087/2011 ^ ^ n against the deceased workman and consequently approval sought for by it was rejected. Since the deceased workman was not re-instated even after rejection of its approval petition he had filed a writ petition in this Court
(l^being CWP No. 1571/2003) for his reinstatement in service. That writ petition was allowed by this court vide
(l^being CWP No. 1571/2003) for his reinstatement in service. That writ petition was allowed by this court vide
ORDER
dated 17.10.2003 inwhich
I it was noticedthat the management had not challenged the order in approval case.
Thereafter the appellant-management also decided to file a writ petition in this Court for challenging the order dated 03.08.2000 of the tribunal refusing to grant approval to the removal ofthe deceased workman.
Its writ petition filed in November,2003 (being CWP No. 7925/2003) was, however, dismissed by this courtvide impugned order dated23.08.2011.
It appears that while the approval petition of DTC was pending adjudication before the Industrial Tribunal the deceased workman:jwhile contesting that petition but without waiting for the outcome of that;petition of the management had approached the labour authorities also with the grievance that he was wrongly ordered to be removed from service. The appropriate Government made a reference to the Industrial Tribunal-Ill on
11.12.1992,(when also the management's approval petition was pending before Industrial Tribunal-II) for adjudication of the dispute as to whether the removal of the deceased workman from service was illegal and unjustified. In that reference matter which came to be assigned to Indtistrial
Tribunal-Ill and registered as I.D.No.290/1996 the deceased workman once again impugned the validity of the departmental enquiry. In the reference proceedings also apreliminary issue about the validity of the enquiry was framed and the same was also decided against the appellant management. In the reference proceedings also then both the sides adduced evidence on the merits of the case. The management once again examined Shri Hari; Singh, LPA 1086/2011 &1087/2011 ^ n checking official whose evidence was not considered to be good enough by
Industrial Tribunal-II inthe approval petition to hold the deceased workman guilty. This time the Industrial Tribunal-Ill, which was presided over by
Ishri Lai Singh, Additional District Judge, vide its award dated 22.01.2003 leven after noticing that Industrial Tribunal-II had already concluded that misconduct of the deceased workman had not been established fi-om the evidence of Shri Hari Singh, came to the conclusion that the alleged misconduct of the deceased workman was established on the basis of evidence of same Shri Hari Singh adduced before it by the appellant management. Consequently the reference came to be decided against the
Ideceased workman.
I Feeling aggrieved by the said Award ofthe Industrial Tribunal-Ill the
I legal heirs ofthe deceased workman, who had died after the passing ofthe said Award against him on 26.03.2003, and who are now respondents in both these appeals, filed a writ petition in August,2003(being CWP
No.6063/2003) challenging the Award ofthe Industrial Tribunal ,de6iding the reference against the deceased workman. The writ petitions filed by the appellant DTC as well as by the legal heirs ofthe deceased workman came to be heard together by the learned Single Judge. Vide common judgment dated 23.8.2011 the writ petition of the appellant-management was dismissed which has resulted into confirmation of the order of the
Industrial Tribunal rejecting its approval petition while the writ petition filed by the legal heirs of the deceased workman was allowed and, earlier direction given by this Court in the earlier WP(C) No.1571/2003, which the deceased workman had filed for getting adirection for his reinstatement as a result ofrejection ofthe approval petition of DTC and which writ,petition had been allowed vide order dated 17.10.2003, was revived.
The appellant-management once again felt aggrieved and filed these
-^v two appeals. One of the appeals(being LPA No.1086/2011) is for challenging the order 'of the learned Single Judge whereby the order of the
Industrial Tribunal rejecting the petitioner's petition has been upheld and the other one (being LPA No.1087/2011) is against that part of the impugned judgement whereby the writ petition of the legal heirs of the deceased workman was allowed with a direction that they shall be entitled to all the financial benefits which the deceased workman would have got till the date iofhis superannuation, ifhe had been alive.
Learned counsel for the appellant has argued that the learned Single
:Judge had gone wrong in rejecting the appellant's challenge to the.;findings
Iofthe Industrial Tribunal to the effect that the alleged misconduct ofthe i
!deceased workman had not been established on the basis of evidence
I adduced before the Tribunal in the approval petition ofthe management.
We find from the record that in order to substantiate the allegations levelled against the deceased workman in the charge-sheet to the effect that he had not issued tickets to some passengers travelling in his bus evenafter collecting fare from them which they were supposed to pay the concerned passengers who claimed tohave stated so before the checking officials'were not examined before the tribunal. We do not agree with the submission of the learned counsel for the appellant DTC that non-examination of the concerned passengers before the tribunal after it was given the opportunity to establish the misconduct of the deceased workman consequent upon the preliminary issue ofvalidity ofthe departmental enquiry getting decided against it and its prayer made in the approval application itselfi for that opportunity, was not fatal and the evidence ofthe checking official Mr. Hari Singh recorded before the tribunal alone was sufficient to fiPld the deceased workman guilty of the alleged misconduct. In our view, non- examination ofthe ticketless passengers in the enquiry may not have been ofany serious consequence but once the management sought to establish the misconduct of the deceased workman by adducing necessary evidence ibefore the tribunal then non-examination of the concerned passengers lassumed significance and the learned Industrial Tribunal was right in not jaccepting the evidence of the checking official alone as sufficient to hold
!the deceased workman guilty ofthe allegations levelled against him.
The learned Single Judge accepted the view ofthe Industrial Tribunal
Itaken in the approval petition. Since the Industrial Tribunal as well as the learned Single Judge had both, on the basis ofthe evidence adduced before the Industrial Tribunal come to the conclusion that the appellant- management had failed to establish the allegations of misconduct levelled against the deceased workman and we also concur with those conclusions because of the non-examination ofthe passengers travelling without tickets we do not find any merit in the appeal ofthe management challenging the rejection of approval under Section 33(2)(b). Consequently LPA
No.1086/2011 which is in respect of the decision ofthe Industrial Tribunal rejecting the appellant's approval petition is dismissed.
Since one Industrial Tribunal-II had rejected the approval petition of the appellant management on 03.08.2000 after giving opportunity^ to the appellant-management to establish the alleged misconduct of the deceased workman by adducing evidence before it, which opportunity was availed of by it, there was in fact no need for the other Industrial Tribunal-Ill going ahead with the adjudication of the same dispute all over again., Even otherwise Industrial Tribunal-II could not have given its separate and contrary findings on the issue as to whether the deceased workipaii had committed the alleged misconduct or not based on the same evidence of
Hari Singh because the findings of the Industrial Tribunal-II on the same issue were arrived at in the approval case on the basis ofevidence adduced
PiiffC 7 of 8
I it was noticedthat the management had not challenged the order in approval case.
Thereafter the appellant-management also decided to file a writ petition in this Court for challenging the order dated 03.08.2000 of the tribunal refusing to grant approval to the removal ofthe deceased workman.
Its writ petition filed in November,2003 (being CWP No. 7925/2003) was, however, dismissed by this courtvide impugned order dated23.08.2011.
It appears that while the approval petition of DTC was pending adjudication before the Industrial Tribunal the deceased workman:jwhile contesting that petition but without waiting for the outcome of that;petition of the management had approached the labour authorities also with the grievance that he was wrongly ordered to be removed from service. The appropriate Government made a reference to the Industrial Tribunal-Ill on
11.12.1992,(when also the management's approval petition was pending before Industrial Tribunal-II) for adjudication of the dispute as to whether the removal of the deceased workman from service was illegal and unjustified. In that reference matter which came to be assigned to Indtistrial
Tribunal-Ill and registered as I.D.No.290/1996 the deceased workman once again impugned the validity of the departmental enquiry. In the reference proceedings also apreliminary issue about the validity of the enquiry was framed and the same was also decided against the appellant management. In the reference proceedings also then both the sides adduced evidence on the merits of the case. The management once again examined Shri Hari; Singh, LPA 1086/2011 &1087/2011 ^ n checking official whose evidence was not considered to be good enough by
Industrial Tribunal-II inthe approval petition to hold the deceased workman guilty. This time the Industrial Tribunal-Ill, which was presided over by
Ishri Lai Singh, Additional District Judge, vide its award dated 22.01.2003 leven after noticing that Industrial Tribunal-II had already concluded that misconduct of the deceased workman had not been established fi-om the evidence of Shri Hari Singh, came to the conclusion that the alleged misconduct of the deceased workman was established on the basis of evidence of same Shri Hari Singh adduced before it by the appellant management. Consequently the reference came to be decided against the
Ideceased workman.
I Feeling aggrieved by the said Award ofthe Industrial Tribunal-Ill the
I legal heirs ofthe deceased workman, who had died after the passing ofthe said Award against him on 26.03.2003, and who are now respondents in both these appeals, filed a writ petition in August,2003(being CWP
No.6063/2003) challenging the Award ofthe Industrial Tribunal ,de6iding the reference against the deceased workman. The writ petitions filed by the appellant DTC as well as by the legal heirs ofthe deceased workman came to be heard together by the learned Single Judge. Vide common judgment dated 23.8.2011 the writ petition of the appellant-management was dismissed which has resulted into confirmation of the order of the
Industrial Tribunal rejecting its approval petition while the writ petition filed by the legal heirs of the deceased workman was allowed and, earlier direction given by this Court in the earlier WP(C) No.1571/2003, which the deceased workman had filed for getting adirection for his reinstatement as a result ofrejection ofthe approval petition of DTC and which writ,petition had been allowed vide order dated 17.10.2003, was revived.
The appellant-management once again felt aggrieved and filed these
-^v two appeals. One of the appeals(being LPA No.1086/2011) is for challenging the order 'of the learned Single Judge whereby the order of the
Industrial Tribunal rejecting the petitioner's petition has been upheld and the other one (being LPA No.1087/2011) is against that part of the impugned judgement whereby the writ petition of the legal heirs of the deceased workman was allowed with a direction that they shall be entitled to all the financial benefits which the deceased workman would have got till the date iofhis superannuation, ifhe had been alive.
Learned counsel for the appellant has argued that the learned Single
:Judge had gone wrong in rejecting the appellant's challenge to the.;findings
Iofthe Industrial Tribunal to the effect that the alleged misconduct ofthe i
!deceased workman had not been established on the basis of evidence
I adduced before the Tribunal in the approval petition ofthe management.
We find from the record that in order to substantiate the allegations levelled against the deceased workman in the charge-sheet to the effect that he had not issued tickets to some passengers travelling in his bus evenafter collecting fare from them which they were supposed to pay the concerned passengers who claimed tohave stated so before the checking officials'were not examined before the tribunal. We do not agree with the submission of the learned counsel for the appellant DTC that non-examination of the concerned passengers before the tribunal after it was given the opportunity to establish the misconduct of the deceased workman consequent upon the preliminary issue ofvalidity ofthe departmental enquiry getting decided against it and its prayer made in the approval application itselfi for that opportunity, was not fatal and the evidence ofthe checking official Mr. Hari Singh recorded before the tribunal alone was sufficient to fiPld the deceased workman guilty of the alleged misconduct. In our view, non- examination ofthe ticketless passengers in the enquiry may not have been ofany serious consequence but once the management sought to establish the misconduct of the deceased workman by adducing necessary evidence ibefore the tribunal then non-examination of the concerned passengers lassumed significance and the learned Industrial Tribunal was right in not jaccepting the evidence of the checking official alone as sufficient to hold
!the deceased workman guilty ofthe allegations levelled against him.
The learned Single Judge accepted the view ofthe Industrial Tribunal
Itaken in the approval petition. Since the Industrial Tribunal as well as the learned Single Judge had both, on the basis ofthe evidence adduced before the Industrial Tribunal come to the conclusion that the appellant- management had failed to establish the allegations of misconduct levelled against the deceased workman and we also concur with those conclusions because of the non-examination ofthe passengers travelling without tickets we do not find any merit in the appeal ofthe management challenging the rejection of approval under Section 33(2)(b). Consequently LPA
No.1086/2011 which is in respect of the decision ofthe Industrial Tribunal rejecting the appellant's approval petition is dismissed.
Since one Industrial Tribunal-II had rejected the approval petition of the appellant management on 03.08.2000 after giving opportunity^ to the appellant-management to establish the alleged misconduct of the deceased workman by adducing evidence before it, which opportunity was availed of by it, there was in fact no need for the other Industrial Tribunal-Ill going ahead with the adjudication of the same dispute all over again., Even otherwise Industrial Tribunal-II could not have given its separate and contrary findings on the issue as to whether the deceased workipaii had committed the alleged misconduct or not based on the same evidence of
Hari Singh because the findings of the Industrial Tribunal-II on the same issue were arrived at in the approval case on the basis ofevidence adduced
PiiffC 7 of 8
LPA 1086/2011 & 1087/2011 ir >
-n before the Tribunal and not on the basis of evidence in the enquiry. That
I . . . was an adjudication of the controversy on merits and not a primafacie view.
The learned Single Judge also having considered the evidence adduced in the approval case and affirmed the findings given in that case we, see no reasonto interfere withthe impugned order ofthe learned SingleJudge.
These appeals are accordingly dismissed.
The legal heirs of the deceased workman shall now be released the amount deposited bythe appellant-management in this Court in compliance ofthe order dated 02.05.2013 passed in LPA No. 1086/2011.
P.K. BHASm, J V.P.VAISH,J^ NOVEMBER 11, 2013
-n before the Tribunal and not on the basis of evidence in the enquiry. That
I . . . was an adjudication of the controversy on merits and not a primafacie view.
The learned Single Judge also having considered the evidence adduced in the approval case and affirmed the findings given in that case we, see no reasonto interfere withthe impugned order ofthe learned SingleJudge.
These appeals are accordingly dismissed.
The legal heirs of the deceased workman shall now be released the amount deposited bythe appellant-management in this Court in compliance ofthe order dated 02.05.2013 passed in LPA No. 1086/2011.
P.K. BHASm, J V.P.VAISH,J^ NOVEMBER 11, 2013
LPA 1086/2011 & 1087/2011