D.T.C. v. Salek Chand

11. Subsequently, vide Impugned Order-II, the learned Labour Court decided Issue no. 1 i.e. “Whether the respondent committed misconduct as mentioned in the petition and alleged in the charge sheet issued by the petitioner?” against the Petitioner and held that the Respondent’s guilt is not proved through the evidence presented before the enquiry officer. The issue of onemonth salary remitted to the Respondent at the time of termination was decided in favor of the Petitioner. Therefore, in the light of the finding of issue no.1, the approval application filed by the Petitioner/Management under Section 33(2)(b) of the I.D. Act was dismissed vide Impugned Order-II.

12. Aggrieved by the Impugned Orders, the Petitioner preferred the present writ petition challenging the correctness of the aforesaid orders.

13. Vide the order dated 16.03.2009, this Hon’ble Court was pleased to allow the application filed under Section 17-B of the I.D. Act and directed the Petitioner to pay to Respondent the last drawn wages or the minimum wages, whichever is higher, from the date of the award i.e., 03.10.2002 till the final disposal of the petition.

SUBMISSIONS MADE ON BEHALF OF THE PETITIONER

14. Ms. Manisha Tyagi, learned counsel appearing for the Petitioner has submitted that the enquiry conducted against the Respondent was in accordance with the concerned statutory rules and the principles of natural justice. An adequate opportunity for representation was provided to the Respondent during the disciplinary enquiry. It is also highlighted by the learned counsel that a show cause notice dated 30.09.1992 was issued to the Respondent, to which the latter did not care to reply.

15. Furthermore, it was submitted that the Respondent failed to make a case that his signature was obtained under coercion or fraud, nor has he been able to justify the reason for carrying excess sale proceeds during the work hours. Additionally, the Respondent accepted his guilt by accepting and signing the Challan memo issued by the checking staff on the spot. Even if the Respondent had an issue with the charges levelled against him, he could have taken up the dispute to the higher Authority. However, no objection was raised by him during that period, which is suggestive of the acceptance that irregularity was committed by him.

16. Learned counsel further went on to submit that it is a well-settled principle of law as laid down in Delhi Transport Corporation v. N.L. Kakkar, Presiding Officer reported as 2004 SCC OnLine Del 200 that domestic enquiry conducted by the Petitioner/Management in accordance with the statutory regulations cannot be brushed aside by the simple reason that the passengers were not examined. Therefore, in the present case, absence of recorded statement of the lady passenger does not adversely impact the validity of the finding of the enquiry officer.

17. To cement the arguments made, the counsel has relied upon the judgment delivered in State of Haryana v. Rattan Singh (1977) 2 SCC 491; Roshan Lal Sharma v. Delhi Transport Corporation 2011 SCC OnLine Del 3558; Dayal Singh v. DTC

18. With these submissions, learned Counsel for the Petitioner prays for setting aside of the Impugned Orders.

SUBMISSIONS MADE ON BEHALF OF THE RESPONDENT

19. Per contra, Mr. G.S. Charya, learned counsel appearing on behalf of the Respondent has submitted that the charges levelled against the Respondent are merely based on hearsay evidence, and therefore the enquiry finding was rightly vitiated by the learned Labour Court. Neither the statement of the lady passenger was recorded, nor she was summoned as a witness in the enquiry proceedings. It is further submitted by the learned counsel that the inspecting officials should have recorded the statement of the passenger whose allegations formed the basis of the charges levelled against the Respondent. Even if the inspecting official was unable to record the same for some reason, such reason should have been mentioned in the charge sheet.

20. For buttressing his arguments, learned counsel has relied upon the judgment and order delivered in Harbans Lal v. Jagmohan Saran, (1985) 4 SCC 333; Delhi Transport Corporation v. Virender Singh, 2004 SCC OnLine Del 900; Delhi Transport Corporation v. Gordhan Dass, 2004 SCC OnLine Del 1093.

21. With these submissions, learned counsel for the Respondent prays for dismissal of the present writ petition.

LEGAL ANALYSIS

22. This Court has heard the arguments advanced by the learned counsel for both parties and perused the documents on record and Judgments relied upon by the parties.

23. The present proceedings emanate from the approval application filed by the Petitioner under section 33 (2)(b) of the I.D. Act. Hence, this Court deems it appropriate to discuss the law regarding Section 33(2)(b) of the I.D. Act at the outset itself.

24. Three Judges Bench of the Hon’ble Supreme Court of India in the matter of Punjab National Bank Ltd. Vs. Workmen reported as (1960) 1 SCE 806, interpreted the scope of Section 33 of the I.D. Act and held that the jurisdiction of the learned Labour Court in dealing with such applications are limited. The Hon’ble Supreme Court held as under:-

25. The three-Judge Bench of the Hon’ble Supreme Court examined the scope of Section 33 (2) (b) of the I.D. Act in Mysore Steel Works Pvt. Ltd. Vs Jitendra Chandra Kar and Others reported as (1971) 1 LLJ 543 (SC) and held as follows:

26. The view taken in Mysore Steel Works Pvt. Ltd. (supra) was reiterated by Hon’ble Supreme Court in the case of Lalla Ram Vs. D.C.M. Works Ltd. reported as (1978) 3 SCC 1.

27. Recently in John D’Souza Vs Karnataka State Transport Corporation, reported as 2019 (18) SCC 47, the Hon’ble Supreme Court reiterated the scope of enquiry permissible under Section 33(2)(b) of the I.D. Act. The relevant portion of the said Judgment, reads, inter alia, as follows: “24. Section 33(2)(b) of the Act, thus, in the very nature of things contemplates an enquiry by way of summary proceedings as to whether a proper domestic enquiry has been held to prove the misconduct so attributed to the workmen and whether he has been afforded reasonable opportunity to defend himself in consonance with the principles of natural justice. As a natural corollary thereto, the Labour Court or the Forum concerned will lift the veil to find out that there is no hidden motive to punish the workman or an abortive attempt to punish him for a non- existent misconduct.

25. The Labour Court/Tribunal, nevertheless, while holding enquiry under Section 33(2)(b), would remember that such like summary proceedings are not akin and at par with its jurisdiction to adjudicate an `industrial dispute‟ under Section 10(1)(c) and (d) of the Act, nor the former provision clothe it with the power to peep into the quantum of punishment for which it has to revert back to Section 11A of the Act. Where the Labour Court/Tribunal, thus, do not find the domestic enquiry defective and the principles of fair and just play have been adhered to, they will accord the necessary approval to the action taken by the employer, albeit without prejudice to the right of the workman to raise an `industrial dispute‟ referrable for adjudication under Section 10(1)(c) or (d), as the case may be. It needs pertinent mention that an order of approval granted under Section 33(2)(b) has no binding effect in the proceedings under Section 10(1)(c) and (d) which shall be decided independently while weighing the material adduced by the parties before the Labour Court/Tribunal.

30. This Court in the above cited decisions has, in no uncertain terms, divided the scope of enquiry by the Labour Court/Tribunal while exercising jurisdiction under Section 33(2)(b) in two phases. Firstly, the Labour Court/Tribunal will consider as to whether or not a prima facie case for discharge or dismissal is made out on the basis of the domestic enquiry if such enquiry does not suffer from any defect, namely, it has not been held in violation of principles of natural justice and the conclusion arrived at by the employer is bona fide or that there was no unfair labour practice or victimisation of the workman. This entire exercise has to be undertaken by the Labour Court/Tribunal on examination of the record of enquiry and nothing more. In the event where no defect is detected, the approval must follow. The second stage comes when the Labour Court/Tribunal finds that the domestic enquiry suffers from one or the other legal ailment. In that case, the Labour Court/Tribunal shall permit the parties to adduce their respective evidence and on appraisal thereof the Labour Court/Tribunal shall conclude its enquiry whether the discharge or any other punishment including dismissal was justified.

28. From these Judgments, it is evident that the enquiry envisaged under Section 33 (2) (b) of the I.D. Act is a limited enquiry and in the nature of summary proceedings. While examining the Application under Section 33(2)(b) of the I.D. Act, the Industrial Tribunal needs to examine the following aspects:

(i) whether a proper domestic enquiry in accordance with the relevant rules/Standing Orders was conducted and whether principles of natural justice have been complied with.

(ii) whether a prima facie case for dismissal based on legal evidence adduced before the learned Labour Court is made out

(iii) whether the employer had come to a bona fide conclusion that the employee was guilty and the dismissal did not amount to unfair labour practice and was not intended to victimise the employee

(iv) whether the employer has paid or offered to pay wages for one month to the employee and

(v) whether the employer has simultaneously or within such reasonably short time as to form part of the same transaction applied to the authority before which the main industrial dispute is pending for approval of the action taken by him.

29. Based on the legal principles as explained by the Hon’ble Supreme Court, this Court now proceeds to examine the facts of the present case. In the present case vide Impugned Order-I, learned Labour Court found that the Petitioner/Management conducted the disciplinary proceedings in accordance with law. The relevant extract of the Impugned Order-I reads as follows: “I do not find any fault in the proceedings of the enquiry. There is no merit in the case of the Respondent that he has denied full opportunity to defend himself. He cross examined the witnesses and it could have been done only if the enquiry officer permitted him. The respondent was given opportunity of representation, to cross examine the witness of the Management, and to lead his own defense witness. Therefore the principles of natural justice were followed.”

30. After holding that the disciplinary proceedings were conducted in accordance with law, the learned Labour Court proceeded to examine the evidence adduced by the parties before the enquiry officer to find out whether a prima facie case is made out or not. The allegation against the Respondent was that he reissued a ticket to a lady passenger which was already sold through advance booking. Learned Labour Court observed that even though the enquiry officer did not believe the statements of the checking staffs, he held the Respondent guilty of misconduct as the ticket bears the signature of the Respondent. According to the learned Labour Court, „putting the signature on the ticket does not amount to admission of charges‟. Learned Labour Court decided the validity of the enquiry against the Respondent observing as follows: “9.…….Since the enquiry officer found that the checking staff should have recorded the statement of the concerned lady passenger and should have recorded her name and address and that checking staff failed to do so, therefore the Respondent could not have been held guilty merely on the basis of signatures of the respondent on the ticket in question. There was no evidence before the enquiry officer to hold the respondent guilty. The finding is perverse.

10. In view of the above circumstances, I hold that the issue of validity of the enquiry cannot be decided in favor of the Petitioner. It is decided against the Petitioner.”

31. As discussed herein above, the jurisdiction of the learned Labour Court while examining an application under Section 33 (2) (b) of the I.D. Act is limited. The enquiry of the learned Labour Court is limited to ascertain whether a prima facie case for dismissal based on legal evidence adduced before the learned Labour Court is made out or not. In the present case, the enquiry officer, based on the ticket which bears the signature of the Respondent, held that the Respondent was guilty of misconduct. Respondent failed to explain the circumstances under which he signed the said ticket, which was issued through advance booking. Hence it is not correct to say that there is no prima facie evidence against the Respondent.

32. The Hon’ble Supreme Court in the matter of Cholan Roadways Ltd. Vs. Thirugnanasambandam reported as 2005(3) SCC 241 examined the standard of proof required in an enquiry conducted by the Industrial Tribunal and held as follows:

33. Keeping in view the legal principles as laid down by the Hon’ble Supreme Court in the above-mentioned case laws, this Court is of the considered view that the learned Labour Court erred in holding the validity of the enquiry in favor of the Respondent. Further, in view of the law laid down by this Court in N.L Kakkar (supra), disciplinary enquiry, being lawfully and properly conducted by the Petitioner cannot be vitiated on the sole ground of non-examination of the passenger. There was other reliable evidence before the enquiry officer to hold the Respondent guilty of the alleged misconduct. Hence, in view of the same, the learned Labour Court erred in deciding the validity of the enquiry against the Petitioner.

34. Learned Labour Court after deciding the validity of the enquiry against the Petitioner afforded an opportunity to the Petitioner/Management to prove the alleged misconduct. Learned Labour Court vide Impugned Order-II held that the Petitioner failed to prove the misconduct and dismissed the approval application filed by the Petitioner. However, learned Labour Court observed that the Petitioner remitted one month’s wages to the Respondent in compliance with Section 33(2)(b) of the I.D. Act at the time of his removal from service.

35. There was enough prima facie evidence before the enquiry officer to proceed against the Respondent. In-depth examination of the validity of the disciplinary proceeding is to be conducted in an appropriate proceeding under Section 10 of the I.D. Act. Hence, the learned Labour Court ought to have allowed the approval application filed by the Petitioner.

36. In view of the detailed discussions herein above, it is evident that (i) the Petitioner conducted the domestic enquiry in accordance with the relevant rules and the domestic enquiry is in accordance with the principles of natural justice (ii) prima facie case of misconduct is made out against the Respondent based on legal evidence adduced before the enquiry officer (iii) the Petitioner had come to a bona fide conclusion that the Respondent was guilty and the dismissal did not amount to unfair labour practice and was not intended to victimize the Respondent (iv) Petitioner has remitted one month’s salary to the Respondent as per the requirement of Section 33(2)(b) of the I.D. Act (v) Petitioner applied for the approval within the time limit as prescribed under Section 33 (2)(b) of the I.D. Act. All the requirements under Section 33 (2) (b) of the I.D. Act were satisfied and therefore the learned Labour Court erred in not allowing the approval application filed by the Petitioner.

37. In view of the detailed discussion herein above, the Impugned Orders are hereby set aside. The approval application filed by the Petitioner under Section 33 (2)(b) of the I.D. Act is hereby allowed.

38. The Respondent is at liberty to challenge his termination order in an appropriate proceeding in accordance with law. It is further clarified that in case the Respondent initiates any fresh proceedings challenging the domestic enquiry conducted by the Petitioner, the same is to be considered afresh without being influenced by any observations made by this Court/ learned Labour Court in the Impugned Orders.

39. It is further clarified that the proceedings under Section 17-B of the I.D. Act are independent proceedings and not dependent upon the final order passed in the main proceedings. Hence, in view of the law laid down by the Hon’ble Supreme Court in Dilip Mani Dubey Vs M/s SIEL Limited & Anr. reported as 2019(4) SCC 534, it is clarified that the payment already made by the Petitioner/Management to the Respondent/Workman under Section 17-B of the I.D. Act is not recoverable.

40. In view of the aforesaid observations, the present writ petition is allowed. No order as to cost.

GAURANG KANTH, J. MARCH 10, 2023