Delhi Transport Corporation v. Baleshwar

31. Hence while exercising power under Section 11 A of the I.D. Act, the satisfaction of the Labour Court regarding the alleged misconduct is important and the Labour Court can reappreciate the evidence and substitute its own views. However, the jurisdiction of this Court under Article 226 is very limited while examining the Award passed by the learned Industrial Tribunal. This Court while exercising powers under writ Digitaaly jurisdiction cannot interfere with the factual findings of the Labour Court which are based on the appreciation of facts based on evidence adduced before it (Amrit Vanaspati Company Limited Vs Khem Chand & Anr reported as 2006 (6) SCC 325). This Court can interfere with the findings of the learned Labour Court only on limited circumstances, like violation of principles of natural justice, perversity of findings etc.

32. In view of the above-mentioned settled position of law, this Court now proceed to examine the facts of the present case. In the present case, the learned Labour Court after hearing both the sides adjudicated the dispute in favour of the Respondent/Workman. The relevant extract of the judgment has been reproduced herein below:

33. Learned Labour Court was of the view that the checking staff indulged themselves in highhandedness while inspecting the bus and recording the statements. The checking staff not only, without any justification, obtained thumb impression of passenger, who was an educated individual, but also physically intimidated him to affix the same on a blank paper. It is also observed by the learned Labour Court that the thumb impression of the passenger was affixed by the checking staff on the lower end of the paper. It is, therefore, prima facie, apparent that abnormal space was deliberately left by the checking staff to convert it into the statement of the passenger. The learned Labour Court reached the conclusion that the case of the Petitioner/Management is not proved and there exists suspicion regarding veracity of the records brought on record by them.

34. The checking staff took cognizance of the alleged irregularity after confronting the ticketless passenger. The challan and subsequently the chargesheet against the Respondent/Workman was also filed based on the statement of the passenger. Therefore, the statement of the passenger is crucial in the present case which was recorded at the time of enquiry. The statement of the passenger, Sh. Vijay Pal has been reproduced herein below: “On 05-08-1992,[1] boarded from YMC. Ahead before Nilam Cinema flying People Came. I had Digitaaly given money to conductor and that conductor was new and do not know what is the fare. From his own list he was looking the fare. After looking the list the 'conductor was giving me ticket in between one of them caught my hand and snatch the ticket and other one caught my collar. Those tickets were with conductor also taken by them. I was asked to put my thumb impression on blank paper and I used to signature. In between my stand came and I was dropped at Old Faridabad after taking y address. Apart from this I have nothing to say.”

35. At the time of enquiry, the passenger categorically deposed that the checking staff used aggression while inspecting the bus and the thumb impression was also obtained forcefully. With such statement, the passenger demolished the averments of the Petitioner/Management, which shows that the story was concocted by the checking staff to falsely charge the Respondent/Workman with misconduct. Hence, to this Court‟s understanding, the records produced by the Petitioner/Management cannot be made basis for holding the Respondent/Workman guilty of misconduct. Furthermore, while perusing the Labour Court Record (LCR), this Court came across a letter dated 07.08.1992, written by the Respondent/Workman addressing the Petitioner/Management. In aforesaid letter, the Respondent/Workman expressed his grievance to the Petitioner/Management with respect to the frivolous chargesheet filed against him by the checking staff. It is also written that the checking staff misbehaved with him while he was issuing ticket to the passenger and involuntarily obtained thumb impression of passenger. Hence, in the present case, where the passenger who happens to be the star witness of the Petitioner/Management has deposed against the Petitioner/Management, the Petitioner/Management is left with no evidence apart from that of checking staff to prove misconduct on part of the Respondent/Workman.

36. As observed by the learned Labour Court, the statement of the ticketless passenger, Sh. Vijay Pal, was recorded by the Digitaaly checking staff with his thumb impression at the bottom. During the enquiry proceeding, the passenger stated that he used to sign which implies that he was an educated person. No justification was furnished by the checking staff as to why instead of asking for passenger‟s signature, they choose to obtain thumb impression. The enquiry officer attempted to brush under the carpet the testimony of the Passenger, which was an important piece of evidence to enquire into the charges levelled against Respondent/Workman.

37. The checking teams of the Petitioner/Management neither tally the cash with the unpunched tickets, nor the passenger supported the case of the Petitioner/Management in his deposition. There is no independent evidence to corroborate the testimony of the checking staff about alleged misconduct of the Respondent/Workman. This Court in Savitri Devi v. Delhi Transport Corporation, reported as 2011 SCC OnLine Del 3507 has discussed briefly about importance of checking cash by the checking staff. Relevant extract of the judgment is reproduced below for perusal.

38. Therefore, weighing both the sides, the averments made by the Petitioner/Management stands on a weaker pedestal as no substantive proof exists to establish guilt of the Respondent/Workman. As far as the legality of the abovementioned impugned award is concerned, the Petitioner/Management failed to point out the perversity in the impugned award.

39. B.S. Hullikatti (Supra), as relied upon by the counsel for Petitioner/Management, lends no assistance to the case of the Petitioner/Management. It was proved in the aforesaid case Digitaaly that the conductor of the bus charged 50 paise more from as many as 35 passengers and he was found guilty previously 36 times on different dates. However, in present case, statement of checking staff member simpliciter is not sufficient to hold the Respondent/Workman guilty of misconduct, and the guilt remains unestablished.

40. The learned Labour Court, on basis of the evidence led during the enquiry, appreciated the facts and circumstances to reach the conclusion. This Court is of the opinion that the learned Labour Court committed no irregularity or violation of principles of natural justice while adjudicating the dispute and passed the impugned award considering the facts and law. It is a well settled law that the court under Article 226 of the Constitution of India does not sit as a Court of appeal, but rather has a limited role while examining the industrial award. It can only invoke its power under writ jurisdiction when there exists perversity on the face of the award and award is without any reasoning, logic and passed without compliance of principles of natural justice. This Court finds no perversity in the impugned award. In light of the law, this Court is not inclined to invoke its power under Article 226 of the Constitution of India and interfere with the award dated 31.03.2010 passed by the Learned Labour Court.

41. Accordingly, the award dated 31.03.2010 passed by the Learned Presiding officer, Industrial Tribunal-II, Karkardooma Courts, Delhi in I.D. no. 18/02 is upheld.

42. In compliance of the order of this Court dated 22.02.2012, the Respondent/Workman is getting payment under Section 17-B of the I.D Act. The Petitioner/Management is entitled to adjust the payment made under Section 17-B of the ID Act while calculating the back wages of the Respondent/Workman.

43. In view of the above, the present petition is dismissed. No order as to costs. ”

13. The learned Single Judge, while dismissing the writ petition has dealt with the judgment delivered by the Hon’ble Supreme Court in the case of Workman of M/s. Firestone Tyre & Rubber Co. of India Ltd. v. Digitaaly Management & Ors., 1973(1) SCC 813. The Hon’ble Supreme Court in M/s. Firestone Tyre (supra) has examined the impact of Section 11A of the ID Act and held that the satisfaction of the Labour Court in relation to the alleged misconduct is important and that the Labour Court may reappreciate the evidence and substitute its own views. The learned Single Judge has held that the jurisdiction of the High Court under Article 226 is very limited while examining the award passed by the industrial adjudicator and the High Court cannot interfere with factual findings of the Labour Court which are based on appreciation of facts and on evidence adduced before it. The learned Single Judge has also placed heavy reliance upon Amrit Vanaspati Company Ltd. v. Khem Chand & Anr., (2006) 6 SCC 325.

14. The learned Single Judge has further held that the Labour Court has rightly arrived at a conclusion that the evidence brought on record was not sufficient to warrant the conclusion that the respondent employee was guilty of misconduct. It was brought to the notice of the Labour Court that the passenger in question did not support the version of events as narrated by the checking staff. The passenger has categorically deposed before the inquiry officer that the checking staff, while inspecting the bus, obtained his thumb impression forcefully.

15. The learned Single Judge, after minutely scanning the award, has arrived at a conclusion that the findings arrived at by the Labour Court does not warrant any interference.

16. The learned Single Judge has also placed reliance upon a judgment delivered in the case of Savitri Devi. v. Delhi Transport Corporation, SCC Digitaaly OnlineDel 3507 wherein the High Court observed the importance of checking cash by the checking staff. In the present case, the checking of cash by the checking staff has admittedly not been carried out and keeping in view the totality of the circumstances of the case, the learned Single Judge has not interfered with the award passed by the industrial adjudicator.

17. Learned counsel appearing for the DTC has vehemently argued before this Court that the present case is a case of fraud and misappropriation of public money and, therefore, as the passenger’s statement was recorded on the back side of challan number 214486 by the Assistant Transport Inspector, the same could not have been brushed aside as has been done by the Tribunal. She has also argued before this Court that the learned Single Judge has failed to appreciate that the employee in question has raised the industrial dispute after nine years of his removal and, therefore, in light of the judgment delivered in the case of U.P.SRTC v. Man Singh, (2006) 7 SCC 752, the workman is not entitled for any relief.

18. Learned counsel for the DTC has vehemently argued before this Court that the learned Tribunal has re-appreciated the evidence and, by no stretch of imagination, can it be said that the conclusion arrived at by the inquiry officer was based on no evidence. She has vehemently argued before this Court that sufficiency or insufficiency of material cannot be looked into by the Tribunal nor by this Court and in a departmental inquiry charge is not required to be proved beyond reasonable doubt and on the contrary, theory of preponderance of probability is attracted in a departmental inquiry. She has prayed for setting aside of the order passed by the learned Single Judge as well as the award passed by the Tribunal dated 31.03.2010. Digitaaly

19. Learned counsel has vehemently argued that in light of the judgment delivered in the case of L.K. Textile Mills v. Workmen, AIR 1961 SC 860, the credibility or efficacy of the evidence are findings wherein Tribunal could not have gone into nor a Court exercising writ jurisdiction could have gone into it and, therefore, the award passed by the Tribunal and the order passed by the learned Single Judge deserves to be set aside.

20. Learned counsel has placed reliance upon a judgment delivered in the case of U.P. State Road Transport v. Suresh Chand Sharma, Civil Appeal No. 3086 of 2007 as well as upon a judgment delivered in the case of D.T.C. v. Anup Singh, 2006 SCC OnlineDel 1065. She has argued before this Court that in light of the aforesaid judgments even if the cash (unaccounted cash) is not checked, the misconduct has been proved based upon the evidence adduced during the departmental inquiry even though the passenger has not stated against the respondent employee. She has also argued before this Court that the grant of back wages to the extent of 40% is on the higher side and the management cannot be stalled with the liability of paying back wages in the peculiar facts and circumstances of the case.

21. This Court has heard learned counsel for the Appellant at length and perused the record. In the present case, the Tribunal, based upon the evidence has arrived at a conclusion that the statement of so-called ticketless passenger Sh.Vijay Pal was recorded by the checking staff with his thumb impression at the bottom and during the inquiry proceedings, however, the passenger stated that he used to sign and he was an educated person. Digitaaly

22. It was also stated by the passenger that his thumb impression was forcefully obtained by the checking staff. He has not stated anything against the respondent employee and in those circumstances, the Tribunal has arrived at a conclusion that the passenger has demolished the entire case of the management and has held that the misconduct is not proved. No substantive proof/ evidence was brought on record to establish the guilt of the Respondent workman and in those circumstances, the Tribunal has passed the award dated 31.03.2010 directing reinstatement of the workman with 40% back wages.

23. Another important aspect of the case is that the workman has already attained the age of superannuation after serving the department.

24. The Hon’ble Supreme Court in the case of Amrit Vanaspati (supra) has held as under: “This apart, the High Court while exercising powers under the writ jurisdiction cannot interfere with the factual findings of the Labour Court which are based on appreciation of facts adduced before it by leading evidence.”

25. Furthermore, the Supreme Court in Puri Investments v. Young Friends & Co.2022 SCC OnLine SC 283 observed that the jurisdiction conferred upon High Courts under Article 227 of the Constitution of India is restrictive in nature vis-à-vis factual aspects of a dispute. The Supreme Court agreeing with the High Court’s enunciation of the principles of law on the scope of interference by a Supervisory Court on decisions of the factfinding forum observed that a Supervisory Court may interfere with the findings of the appellate forum if they were found to be perverse i.e. (i) Digitaaly erroneous on account of non-consideration of material evidence; (ii) conclusions which are contrary to the evidence; or (iii) based on inferences that are impermissible in law.

26. This Court in the case of Santosh Devi v. Guru Teg Bahadur Hospital Shahdara Delhi, 2023:DHC:5017-DB, decided on 20.07.2023, in paragraphs 67-78 has held has under:

69. 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.

70. 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 Digitaaly 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.”

71. 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.

72. 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. Digitaaly

73. 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:

74. 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.

75. 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 Digitaaly all the relevant facts; or the Labour Court has arrived at findings based upon irrelevant facts or on extraneous considerations.

76. 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.

77. 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:

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

”

27. In light of the aforesaid judgment delivered in the case of Santosh Devi (supra), wherein this Court has taken into account a large number of judgments delivered by the Hon’ble Supreme Court in respect of exercise of writ jurisdiction under Article 226 and 227 of the Constitution of India while dealing with an award passed by the Labour Court/ Industrial Adjudicator and held that the question of interference by this Court in respect of the findings of fact arrived at by the Tribunal does not arise.

28. In the present case, the finding of fact arrived at by the Tribunal/ Industrial Adjudicator holding that the charges have not been proved and the findings of fact arrived at by the Labour Court having again being minutely scanned by the learned Single Judge and as the learned Single Judge has Digitaaly affirmed the finding of fact by minutely scanning the entire evidence, therefore, the question of interference by this Court with the award in the absence of any perversity, illegality or jurisdictional error, does not arise.

29. The employee has already attained the age of superannuation and keeping in view the totality of circumstances of the case, this Court does not find any reason to interfere with the award dated 31.03.2010 and the order passed by the learned Single Judge.

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

CHIEF JUSTICE (SAURABH BANERJEE)