Delhi Transport Corporation v. Rameshwar Dayal & Another

35. Hence from the perusal of the above stated Judgment, it is clear that the scope of enquiry under Section 33(2) (b) and Section 10 of the I.D. Act are different and distinct. Enquiry under Section 33(2)(b) of the I.D. Act is only to oversee the dismissal to ensure that no unfair labour practice or victimization has been practiced. Hence the findings recorded by the learned Labour Court during the enquiry under Section 33(2) (b) of the I.D. Act regarding the validity of the domestic enquiry is only a prima facie view and not a final view. The veracity of the domestic enquiry conducted by the Petitioner/Management and the misconduct of the Respondent has to be examined in a proceeding arising out of Section 10 of the I.D. Act. Proceedings under Section 33(2)(b) of the I.D. Act cannot be termed as a substitute for the proceedings under Section 10 of the I.D. Act.

36. Based on this legal principle, this Court proceeds to examine the facts of the present case. Impugned Award-I is arising out of Section 10 of the I.D. Act proceedings whereas Impugned AwardII is arising out of the proceedings under Section 33 (2) (b) of the I.D. Act. Vide the impugned Award-I, the learned Labour Court held that the Respondent/Workman is not guilty of any misconduct. Hence, after the passing of impugned Award-I, the approval Application OP No.28/1992 itself has become infructuous and it ought not to have been proceeded with.

37. Learned Labour Court, while passing the impugned Award-I, was not aware of the fact that the Petitioner/Management already challenged the Award dated 24.02.2001, whereby the approval application was rejected, before this Court in W. P. (C) No.5860/2001. By the passing of the impugned Award-1, the approval application, O.P NO. 28/1992 itself has become infructuous. Hence the W.P (C) NO. 5860/2001, which was arising out of OP No. 28/2001 had also become infructuous. However, both the parties miserably failed to point out before this Court in W. P. (C) No. 5860/2001 that the impugned Award-I arising out of Section 10 of the I.D. Act is already passed. Hence this Court vide order dated 17.11.2005 remanded the matter back to the learned Labour Court-II for fresh examination of the approval Application O.P No.28/1992. Both the parties failed to point out before the learned Labour Court-II also that industrial dispute arising out of Section 10 of the I.D. Act had already culminated into an Impugned Award-I. Hence the learned Labour Court-II conducted a full-fledged enquiry and held that the Respondent/Workman is guilty of misconduct. All these proceedings were arising out of the approval application being O.P. No.28/1992, which had already become infructuous by the passing of Impugned Award-I. This Court deprecates the conduct of both the parties which led to the wastage of considerable judicial time.

38. Be that as it may, the opinion expressed by the learned Labour Court under Impugned Award-II regarding the misconduct of the Respondent/Workman can be termed as “prima facie‟ view and not final view.

39. Whereas in the impugned Award-I, the learned Labour Court examined the validity of the domestic enquiry and the misconduct committed by the Respondent/Workman in detail. Learned Labour Court examined as to whether there was negligence or lack of interest on behalf of the deceased Workman in performing his duties. It is expedient to examine the charge sheet on the basis of which the Workman has been held liable for misconduct. Relevant part of the charge sheet dated 20.06.1991 issued to the Respondent/Workman is reproduced hereunder: “You were found absent for 15 days from your duty from 31.3.91 to 14.4.91 without prior information and permission of Competent Authority which shows your being uninterested in the services of Corporation. Your above said act is a misconduct under Section 4 (11), 19 (h) and 19 (m) of standing orders of DRTA which governed the duties of employees of the Corporation. Copy of report upon which charge sheet is based on is attached. Copy of your past record is attached. Your past record will be considered at the time of passing of final order. If you want personal hearing in the matter then apply for the same in your explanation. Your explanation must be reached in the office of undersigned within 10 days after receiving this charge sheet. If you want to see any document of reliance, which is available in record, then report to undersigned within 24 hours after receiving this charge sheet.”

40. A bare perusal of the charge sheet reveals that the allegation against the Respondent/Workman was that he was absent for a period 15 days from his duty without prior information, which shows him being uninterested in the services of the Petitioner Management. It is further stated that the absence without information and permission amounts to misconduct under Section 4 (11), 19 (h) and 19 (m) of the Standing Orders of DRTA. Furthermore, it is also stated that the past record of the workman would also be considered at the time of passing the final order and a copy thereof is also attached to the chargesheet. In reply, the Respondent/Workman submitted that he had sent an application for leave through his blind brother who gave the said application to some person at the gate of Kalkaji Depot. Further, he also gave his medical and fitness certificate along with his application on the day he resumed his duty i.e. 15.04.1991.

41. Hence it is evident that as soon as he joined back in service on 15.04.1991, he submitted an application along with his medical and fitness certificate. Pertinently, no orders were passed as to the acceptance or rejection of this application.

42. This Court in the matter of Om Singh (supra) has faced with a similar situation as in the present case, wherein Sardar Singh (supra) was distinguished and it was held that immediately after having remained absent for 14 days, the workman had submitted an application for leave supported by a medical certificate. The said application was neither rejected nor any order was passed by the Management therein. Relevant portion of the said Judgment reads, inter alia, as follows:

43. The Respondent/Workman was absent from duty for 15 days, however, he had valid reason for the said period of absence. Further he submitted his leave application with medical certificates as soon as he joined back in service. However, the Petitioner/Management failed to consider the same. Hence the Petitioner/Management has failed to prove the misconduct as alleged against the Respondent/Workman.

44. Further, perusal of the enquiry report also reveals that no document showing the past record was produced before the Inquiry Officer and the same has also not been dealt by him in the report. It was only the Disciplinary Authority who gave some observations on the past record, but it was not coupled with any evidence. The relevant portion of the order of the disciplinary Authority reads, inter alia, as follows: “I have thoroughly studied the complete case file, and the report given by the Enquiry Officer in the matter of Charge sheet against Shri Rameshwar Dayal, Conductor, B. No. 8189.[1] am in complete agreement with the views expressed by the Enquiry Officer showed in the Investigation result. Shri Rameshwar Dayal, Conductor, B. No. 8189 is fully guilty in this matter, 1 studied the past record also of the accused in which there are 20 entries out of which one entry of taking leave without pay and five entries are related to be for being absent without any intimation from his duty. The past leave record of the accused was also seen in which the accused in the your 1988 took 71, in 1989 = 173, and in 1990 has taken 164 days leave, without pay. From this it is clear that the accused does not take interest in the work of the Nigam. There is nothing appropriate to keep such employee in the services of the Nigam. Hence in my temporary view, 1 propose the punishment of removal of Shri Rameshwar Dayal, Conduct, B. No. 8189, from the services of this Nigam, in this matter, for which show cause notice may be issued to him. Sd/- Depot Manager.”

45. The instances of past conduct would only be relevant if the misconduct is proved, which has not been done in the present case as the Workman immediately after resuming his duties has submitted his leave application along with his medical and fitness certificate. This Court in the matter of Shirani Devi and Ors. (supra), categorically held that past conduct in a case would only be relevant if the misconduct is proved and states as follows:

46. Learned Labour Court dealt with these aspects in detail in the impugned Award-I dated 31.05.2003. Relevant part of the Impugned Award-I is reproduced hereunder:

47. This Court also fully subscribes to the views of the learned Labour Court as expressed in the Impugned Award-I and there is no impunity or perversity in the impugned Award-I. Therefore, this Court, while exercising jurisdiction under Article 226 of the Constitution, is not inclined to interfere with the findings of the learned Labour Court. Hence, impugned Award-I is hereby upheld and W.P (C) No. 6347/2006 is hereby dismissed.

48. It is clarified that on account of the death of the Respondent/Workman, the Legal heirs of the deceased workman is entitled to entire back wages with all other consequential benefits, calculated on the notional basis.

49. As discussed herein above, the impugned Award-II grants permission to the Petitioner/Management to proceed with the termination order. However, the termination order itself was set aside by the learned Labour Court vide the impugned Award-I. Hence the approval application, OP No.28/1992 itself had become infructuous. Learned Labour Court ought not have been proceeded with the OP No.28/1992. However, due to the callous and negligent attitude of the parties, the impugned Award-I was not brought to the notice of this Court or learned Labour Court. Since OP No.28/1992 was infructuous, the writ petition arising out of the impugned Award-II, i.e. W.P (C) No. 2631/2007 has also become infructuous.

50. In view of the detailed discussions herein above, W.P (C) No.6347/2006 is hereby dismissed on merits. W.P.(C) No.2631/2007 is dismissed as infructuous. No order as to costs.”

11. Heard learned counsel for the parties and perused the record.

12. The most important aspect of the case is that the workman in the present case is not alive and the appellant/ DTC has paid all his terminal dues, meaning thereby, the DTC has implemented the Award dated 31.05.2003. The aforesaid fact of implementation of Award dated 31.05.2003 is not in dispute. All dues have been cleared by the DTC in respect of the workman towards terminal dues – as informed to this Court by learned counsel for the DTC.

13. The common order passed by the learned Single Judge – as already stated earlier, deals with two writ petitions referred as under: a) W.P.(C.) No. 6347/2006 titled D.T.C. Vs. Rameshwar Dayal & Another, wherein the DTC has challenged the Award dated 31.05.2003 passed by the Industrial Tribunal directing reinstatement of the workman with full back wages; and b) W.P.(C.) No. 2631/2007 titled Rameshwar Dayal Thru L.R’S Vs. D.T.C. preferred by the LRs of deceased Rameshwar Dayal being aggrieved by the Award dated 21.02.2007 by which the Industrial Tribunal has granted permission to the management to terminate the services of the workman under Section 33 (2) (b) of the Act.

14. The undisputed facts of the case make it very clear that the deceased workman was charge-sheeted on 02.06.1991 for remaining absent for a period of fifteen days. It is also an undisputed fact that the deceased workman subsequently brought documents on record before the Authorities explaining his absence that he was unwell. However, after holding inquiry, he was removed from service by an order dated 17.01.1992.

15. The appellant/ employer thereafter preferred an application under Section 33 (2) (b) of the Act for grant of approval in respect of termination of the workman and the same was rejected on 24.02.2001.

16. The employer thereafter preferred a writ petition being W.P.(C.) NO. 5860/2001 and the same was disposed of by this Court by a remand order dated 17.11.2005 directing the Labour Court to decide the matter afresh.

17. The Labour Court finally decided the matter in respect of application under Section 33 (2) (b) of the Act by an Award dated 21.02.2007 granting approval to the management to terminate the services of the workman.

18. As the workman had expired during the pendency of the proceedings, the LRs of the deceased workman came up before this Court challenging the Award dated 21.02.2007 – which was in respect of application under Section 33 (2) (b) of the Act. The learned Single Judge has held the proceedings under Section 33 (2) (b) of the Act as infructuous – as earlier held by the Labour Court while passing the Award dated 31.05.2003 after meticulously appreciating the evidence on record that the workman is entitled for reinstatement with back wages.

19. In the considered opinion of this Court, once the Award was passed on merits by the Labour Court on 31.05.2003 after taking into account the evidence on record, the learned Single Judge was justified in scanning the Award dated 31.05.2003 on merits.

20. This Court has also carefully gone through the Award dated 31.05.2003. Paragraphs 14 to 21 of the said Award – directing reinstatement of the workman with full back wages, read as under: “14. The perusal of enquiry proceedings and enquiry reports as proved by MW[1] shows that during the enquiry only one witness was examined who has simply stated that the workman remained absent without information for the period i.e. 31.3.91 to 14.4.91 regarding which he had not sent any information to the office of the management. There is no statement for the period of 10.4.91 to 14.4.91 as mentioned in the charge sheet. Enquiry proceedings further reveals that the report was not produced during the enquiry. Further, the witness was not chosen to be crossexamined. No further witness on any other aspect was examined, mean1ng thereby that the past record was not produced as evidence during the enquiry.

15. In the enquiry report also the enquiry officer had not at all dealt with or has made any observation regarding the past record and after disbelieving the version of the workman that he was compelled to take leave because of his illness and that he had sent applications through his brother, on the ground that if the workman was so ill then instead of getting himself treated at a Private Hospital he should have got treated in Govt. Hospital, returned a finding that the charge stands proved. There is no averment by any witness that the conduct of the workman amounts to not taking interest in the work of the management. Nor such a finding had been returned by the enquiry officer that because of remaining absent for 15 days, the conduct amounts to not taking interest in the work of the management.

16. Perusal of record further shows that the disciplinary authority took into consideration the findings of the enquiry officer as well as the past record of the workman and issued show cause notice dated 25.10.91 Ex.MW1/2 but even in the same the workman had not been called upon to explain his conduct. Nor there is a mention that because of the past conduct the punishment proposed is just and sufficient.

17. It may not be out of place to mention here that the purpose of issuance of show cause notice is two-fold. One is to give an opportunity to the workman, if.............. the findings given by the enquiry officer and secondly to make his submissions with. regard to the proposed punishment and in the present case, the show cause notice do not serve the purpose for which it is required to be served.

18. It may not be out of place to mention here that MWl had admitted in his cross examination that the workman had submitted an application on 15.4.91 alongwith medical certificate but as per the record produced by the management, no orders were passed accepting or rejecting the same and simply the same was put in his leave record.

19. In view of the facts that the workman had moved an application stating grounds of medical ·illness after availing the leave and· the said application was not disposed off, and in v1ew of the fact that the past service record of the workman never formed a part and parcel of the charge sheet, nor the workman was asked to explain or defend the same and in view of the fact that such a past record was never supplied to the workman and was not relied upon during the enquiry and even do not form part and parcel of show cause notice, the findings that because of absence for 15 days for which the application submitted was undecided, cannot be sustained. Coupled with the fact that approval application filed by the management was dismissed and no writ petition has been filed by the management against the same meaning thereby that the workman continue to be in deemed service of the management because of declining of approval and the order of termination become nonest, it is held that the enquiry held against the workman was not proper as he was not given the full opportunity to defend himself nor the charges stood proved against him. Issue No.1 is decided against the management.

20. Since, there is no stand of the management 1n the written statement that in case enquiry is vitiated it be allowed to prove the charges by leading evidence before this Tribunal and even otherwise there being a basic defect in the charge sheet itself, no such permission can be granted. The workman is entitled to reinstatement with continuity of service.

21. Since the workman had stated that from the date of his termination he is unemployed and the management had not led any evidence to prove that the workman has gainfully employed and since the approval application filed by the management was dismissed on 24.2.2001 and the present dispute was raised by the workman in 2001 itself as the management did not prove duties to the workman despite dismissal of the approval application, the workman is entitled to full back wages. The reference is answered in favour of the workman/ The back wages be paid within one month from the date of publication of this award otherwise the management shall be liable to pay interest@... % p.a. Award is passed accordingly.”

21. The Award passed by the Labour Court makes it very clear that during the inquiry, only one witness was examined and it was a case of absence for fifteen days. The Labour Court has also observed that the Inquiry Officer has disbelieved the statement of the workman who has categorically stated that he was compelled to take leave on account of illness and his leave application was sent through his brother. The medical certificates were ignored only on the ground that the workman took treatment in a private hospital and the Inquiry Officer observed that the workman should have got treated himself in a Government hospital.

22. Not only this – in the considered opinion of this Court, for absence of fifteen days, the punishment of removal is shockingly disproportionate, and therefore, on this count alone, the workman was entitled for the relief sought.

23. The most unfortunate part in the present case is that the workman is no more, and even if the matter is to be remanded back to the Labour Court on the point of quantum of punishment, no purpose is going to be served as the workman is not alive.

24. The learned Single Judge was justified in dismissing the petition preferred by the employer against the Award dated 31.05.2003. The finding of fact arrived at by the Labour Court are not at all perverse findings and the scope of interference by this Court is quite limited.

25. It is not for the High Court to constitute itself into an Appellate Court over Tribunals constituted under special legislations to resolve disputes which have been resolved by specialized Tribunals especially when the findings are not perverse.

26. The Hon’ble Supreme Court in paragraph 17 of the judgment in Indian Overseas Bank Vs. I.O.B. Staff Canteen Workers' Union, (2000) 4 SCC 245, has held as under:

27. The Hon’ble Supreme Court in the aforesaid case has held that the findings of fact recorded by a fact finding authority (Tribunal) duly constituted for the purpose becomes final unless the findings are perverse or based upon no evidence. The jurisdiction of the High Court in such matters is quite limited.

28. The Hon’ble Supreme Court has taken a similar view in Hari Vishnu Kamath v. Ahmed Ishaque & Ors., AIR 1955 SC 233, inter alia held as under: “21.... On these authorities, the following propositions may be taken as established: (1) Certiorari will be issued for correcting errors of jurisdiction, as when an inferior Court or Tribunal acts without jurisdiction or in excess of it, or fails to exercise it. (2) Certiorari will also be issued when the court or Tribunal acts illegally in the exercise of its undoubted jurisdiction, as when it decides without giving an opportunity to the parties to be heard or violates the principles of natural justice. (3) The court issuing a writ of certiorari acts in exercise of a supervisory and not appellate jurisdiction. One consequence of this is that the court will not review findings of fact reached by the inferior court or tribunal, even if they be erroneous. This is on the principle that a court which has jurisdiction over a subject-matter has jurisdiction to decide wrong as well as right, and when the legislature does not choose to confer a right of appeal against that decision, it would be defeating its purpose and policy if a superior court were to rehear the case on the evidence and substitute its own findings in certiorari. These propositions are well-settled and are not in dispute.

23. It may therefore be taken as settled that a writ of certiorari could be issued to correct an error of law. But it is essential that it should be something more than a mere error; it must be one which must be manifest on the face of the record.... The fact is that what is an error apparent on the face of the record cannot be defined precisely or exhaustively, there being an element of indefiniteness inherent in its very nature, and it must be left to be determined judicially on the facts of each case.”

29. In Dharangadhara Chemical Works Ltd. v. State of Saurashtra, (1957) SCR 152, the Supreme Court, once again observed that where the Tribunal having jurisdiction to decide a question comes to a finding of fact, such a finding is not open to question under Article 226, unless it could be shown to be wholly unsupported by evidence.

30. In Management of Madurantakam Coop. Sugar Mills Limited v. S. Viswanathan, (2005) 3 SCC 193, the Apex Court, held that the Labour Courts/ Industrial Tribunals as the case be is the final court of facts, unless the same is perverse or not based on legal evidence, which is when the High Courts can go into the question of fact decided by the Labour Court or the Tribunal. But before going into such an exercise it is imperative that the High Court must record reasons why it intends reconsidering a finding of fact. In the absence of any such defect, the writ court will not enter the realm of factual disputes and finding given thereon.

31. In a Constitution Bench judgement of the Supreme Court in Syed Yakoob vs. K.S. Radhakrishnan & Ors., AIR 1964 SC 477, the Apex Court has inter alia held as under:

32. The Hon’ble Supreme Court has in the aforesaid case again dealt with scope of interference by High Court in respect of finding of fact arrived at by Tribunals and in light of the aforesaid judgment, the question of interference by this Court does not arise.

33. The Hon’ble Supreme Court in State of Haryana vs. Devi Dutt & Ors., (2006) 13 SCC 32, has held that the writ Court can interfere with the factual findings of fact only if in case the Award is perverse; the Labour Court has applied wrong legal principles; the Labour Court has posed wrong questions; the Labour Court has not taken into consideration all the relevant facts; or the Labour Court has arrived at findings based upon irrelevant facts or on extraneous considerations.

34. In the present case, the Labour Court has arrived at a conclusion based upon the evidence adduced by the parties and the learned Single Judge has affirmed the findings of fact again after minutely scanning the entire evidence, and therefore, the question of interference by this Court does not arise.

35. The supervisory jurisdiction of the High Courts under Article 227 of the Constitution of India, was discussed by the Supreme Court in Mohd. Yunus v. Mohd. Mustaqim, (1983) 4 SCC 566, whereby it was, inter alia, held as under:

36. Furthermore, in Khalil Ahmed Bashir Ahmed v. Tufelhussein Samasbhai Sarangpurwala, (1988) 1 SCC 155, the Supreme Court held as under:

37. In light of the aforesaid judgments, this Court does not find any reason to interfere with the Award dated 31.05.2023 passed by the Labour Court, nor with the order passed by the learned Single Judge especially in the light of the fact that the workman is no longer alive and entire terminal dues have been paid to the widow and other LRs of the deceased workman.

38. The appeal is, accordingly, dismissed. (SATISH CHANDRA SHARMA)

CHIEF JUSTICE

JUDGE NOVEMBER 01, 2023 B.S. Rohella