Delhi Transport Corporation v. Shyam Sunder

10. The Workman has worked in the Corporation for 5 years and he has been receiving payments under Section 17B for approximately 10 years by virtue of the order passed by this Court on 25th July, 2012. The conduct of the Workman does not deserve the relief of reinstatement in his favour.

11. On the other hand, Mr. Ashwani Tyagi, ld. Counsel appearing on behalf of the Workman submits that the impugned award has clearly and categorically held in favour of the Workman stating that the case was merely based on the Passenger’s statement, who was not produced. It is his submission that the Passenger’s statement was not confirmed by the Workman. He relies upon the judgment of the Supreme Court in Andhra Pradesh State Road Transport Corporation v. G. Murali (2018) 12 SCC 41 to argue that once a Passenger exists whose statement has been recorded to take action against the Workman, an opportunity should be given to the Workman to cross examine the said Passenger. On a specific query from the Court, he states that the signatures on the statement dated 02nd November 1989 are of the Workman. However, he challenges the statement of the ATI Mr. Tej Bhan on the ground that he does not state that the statement dated 02nd November 1989 was written by the Workman himself. He further submits that the Workman has already superannuated and accordingly the relief of reinstatement may not be relevant but he deserves to be given continuity of service and other benefits as per the impugned award. Analysis and Findings

12. On a perusal of the record and the arguments put forth by ld. Counsel for the parties, the following two aspects arise for determination in the present case: (1) Whether the enquiry proceedings which were held by the Corporation are fair, just and valid? (2) Whether the order of termination of the Workman is valid? First Issue:

13. On the first aspect, as to the validity and legality of the enquiry held by the Corporation, it deserves to be noted that the Corporation had, on the termination of the Workman, filed an application bearing O.P. No. 22/90 titled Delhi Transport Corporation v. Sh. Shyam Sunder before the Industrial Tribunal- II, Tis Hazari Courts, Delhi (hereinafter ‘Industrial Tribunal’) under Section 33(2)(b) of the Act seeking approval from the Industrial Tribunal for its decision taken regarding the removal of the Workman from service. In the said proceedings, the Industrial Tribunal vide its order dated 15th January 1999 held that the enquiry against the Workman was in accordance with the principles of natural justice and that it was just and valid. Subsequently, vide order dated 19th February, 1999 the Industrial Tribunal allowed the application of the Corporation under Section 33(2)(b) of the Act and accorded approval to the decision of removal of the Workman from service. The relevant portion of the order dated 19th February, 1999 is set out below: “Delhi Transport Corporation, the appellant abovenamed, filed this application under section 33(2) (b) of the Industrial Disputes Act, 1947 (hereinafter called the ‘Act’) seeking approval of this tribunal of its decision taken for the removal of the respondent from service. It was alleged that this action was taken by the management since the respondent, who was employed with it, had committed an act of misconduct of which he had been found guilty also in the enquiry that had been ordered by the management. The applicant also claimed to have remitted one month's wages to the respondent by money order as required under section 33(2)(b) of the Act, on the date of the passing of the passing of the removal order and this application was also filed in this tribunal on the same date as at that time an industrial dispute concerning DTC worker's demand for implementation of 4th Pay Commission's Report was pending adjudication in this tribunal. The respondent opposed the approval application inter-alia on the grounds that he had not committed any misconduct and that the enquiry against him was also not held in accordance with the principles of natural justice. Since the validity of the enquiry was challenged by the respondent and the applicant had prayed for deciding that objection as a preliminary issue the following preliminary issue was framed: “Whether the applicant held a legal and valid enquiry against the respondent according to principles of natural justice?” Vide my order dated 15/1/99 the preliminary issue was decided in favour of the applicantmanagement and the respondent's challenge to the validity of the enquiry was rejected. On 12/2/99, when the case came up for further consideration after the decision of the preliminary issue, the Ld. counsel for the respondent stated that the respondent's challenge to the validity of enquiry having been rejected he had nothing more to say in the matter on any other point and that the case could be finally disposed off. The applicant-management having taken the decision for the removal of the respondent from its service for an act of misconduct after holding a departmental enquiry and the respondent's challenge to the validity of that enquiry having been rejected and it having been stated on behalf of the respondent by his counsel that he had nothing more to say on any other point I am of the view that a case has been made out by the management for according approval to its decision taken on 3/5/90 for the removal of the respondent from its service. I, therefore, allow this approval application of DTC and accord approval to the decision taken by it for the removal of the respondent from its service.”

14. The above order dated 19th February, 1999 is part of the LCR before the Labour Court. An attempt was made to trace the order dated 15th January 1999, but the same was futile owing to the weeding out of old records in the Tis Hazari Courts. It is however clear that the Corporation was successful in obtaining approval for the termination and a finding was rendered to the effect that the enquiry was legal and valid.

15. The terms of reference before the Labour Court were as under: “Whether the removal of Shyam Sunder from service is illegal and/or unjustified and if so, to what relief is he entitled and what directions are necessary in this respect?”

16. In order to adjudicate the above, the Labour Court first considered the legality and validity of the internal enquiry. The finding of the Labour Court in respect of the said enquiry in order dated 27th July, 2009 reads as under: “While recording the evidence during the enquiry on 19.12.1989, the Enquiry Officer Pooran Chand, had examined one witness Tejbhan and no other checking staff. Tejbhan in his statement only stated that the conductor had signed the statement of the passenger. There is no mention that the conductor had admitted the guilt by a separate endorsement. The separate endorsement is also seen consisting three lines. In the peculiar circumstances where the workman is alleged to have made initial admission of his part, it was expected of the management to have examined the other checking staff apart from the Tejbhan. I find that the checking staff compromised of other members also. After going through the enquiry proceedings, though one may not find violation of principles of natural justice as regards the procedure adopted. I find that the findings are based on this admission part of the conductor found on the statement of the passenger as stated in the findings, namely ‘YATRI BAYAN PAR ABHIYUKT KE HASTAKSHAR HAI TATHHA USNE SWAYAM HI LIKHIT ROOP ME YEN MANA HAI KI WEH YATRI KE BAYAN SE SEHMAT HAI AUR USSE GALTI HO GAYI HAI.’ This part of the findings are not supported by the legally admissible evidence since Tejbhan, in his statement has not stated that the conductor had also made initial admission of guilt. It is not simple case where the conductor had signed the statement of the passengers but also a case where there is a writing which ought to have been proved. Hence, I am constrained to hold that the findings are perverse. Consequently, I pass following order: ORDER Enquiry issue is held in favour of the workman and against the management. Put up this matter for evidence on merits by 09.10.2009.”

17. The above would show that in the order dated 27th July, 2009 passed by the Labour Court bearing ID No. 285/08 titled, Shyam Sunder v. DTC, there is no reference to the orders passed in the approval application under Section 33(2)(b) of the Act at all, which had attained finality. Though, an order passed under section 33(2)(b) of the Act cannot operate as res judicata in a proceeding under section 10 of the Act in view of the settled legal position,[1] it would nevertheless be relevant while assessing the legality and validity of the enquiry proceedings and the Labour Court ought to have taken note of the said order while considering the reference. The Labour Court acknowledges that, “one may not find violation of principles of natural justice as regards the procedure adopted”. However, it has proceeded on the basis that though the Workman may have made an admission to having issued a bogus ticket to the Passenger on 2nd November, 1989, since the enquiry officer examined Mr. Tej Bhan, the ATI and no other checking staff was examined, the enquiry is bad in law. The Labour Court further goes on to observe that the writing in the statement ought to have been proved by the Corporation.

18. The Labour Court seems to have completely ignored the fact that the Workman had clearly stated in Hindi on the statement of the Passenger that he agrees with the statement of the Passenger and affixed his signature on the said statement which was confirmed by Mr. Tej Bhan in his statement before the enquiry officer. There was no reason to seek double corroboration, i.e., the statement of the Passenger or of other members of the checking staff that the Workman had made admission of guilt as the Workman did not challenge his signature appended on the statement recorded on 2nd November, 1989.

1 Balraj Dev v. The Management of DTC 244(2017) DLT 142; The Management of TNSTC (Coimbatore) Ltd. v M. Chandrasekaran (2016) 16 SCC 16. This seeking of corroboration by the passenger and other checking staff was clearly looking for a higher standard, which is not a requirement of the law. However, on this sole ground the enquiry report has been set aside by the Labour Court, a finding which is not tenable in the opinion of this Court.

19. Ld. Counsel for the Corporation has relied upon the judgment of a 3- Judge Bench of the Supreme Court in State of Haryana v. Rattan Singh, AIR 1977 SC 1512 wherein it was held by the Supreme Court that insisting on Passenger to be examined would be a wrong approach in such cases. Relevant portion of the said judgement is set out below:

20. On the other hand, ld. Counsel for the Workman has placed reliance upon 2-Judges Bench decision of the Supreme Court in Andhra Pradesh State Road Transport Corporation v. G. Murali (2018) 12 SCC 41 to argue that the statement of the passenger cannot be taken into consideration as no opportunity for cross examination of the Passenger was given to the Workman. The relevant portion of the said judgment reads as under: “The matter was taken by way of industrial dispute being ID No.189/95 and the Industrial Tribunalcum-Labour Court, Warangal vide order dated 30th December, 1999 had held that the charges 2 to 5 stand not proved for the simple reason that the statements of the passengers which were relied upon by the appellant-Corporation was specifically denied by the respondent and he had stated that he had issued all the tickets for which the fare was charged and the allegation that no ticket was issued is false. The Industrial Court had held that as the passengers were not produced in the enquiry, the statement recorded by the TTI from the passengers cannot be taken in evidence, as no opportunity was given to the respondent to cross-examine. Consequently, the Industrial Court had held that charges 2 to 5 have not been proved. So far as the remaining charges 1 and 6 are concerned, it was held to be proved and therefore the Industrial Court reduced the penalty from removal of service to stoppage of three increments. The appellant challenged the order by filing a Writ Petition before the learned Single Judge who dismissed the same. We have heard the learned counsel for the appellant and perused the impugned judgment. We find that the order of the Industrial Court exonerating the respondent from charges 2 to 5 are on good grounds and do not call for any interference, as the passengers were not produced for crossexamination specifically when the respondent had denied the charges of collecting fare and nonissuing of tickets.

21. In the opinion of this Court, the earlier decision of the larger Bench of the Supreme Court in Rattan Singh (supra) is clear to the effect that the statement of Passenger need not be recorded. The subsequent decision of 2- Judge Bench in G. Murali (supra) does not consider Ratan Singh (supra). In any case, the facts in G. Murali (supra) are clearly distinguishable from the facts of the present case, as the statement of the Passenger has clearly been endorsed and accepted by the Workman in the case at hand. The said statement of the Workman agreeing to the statement of the Passenger and his signature on it, cannot be resiled from by the Workman before this Court. This legal proposition also finds support in the judgement of the ld. single judge of this Court in Shyam Sunder v. Delhi Transport Corporation [WP(C) NO. 9165/2007, date of decision 13th December, 2007] wherein the Court has observed as under:

22. Thus, in the overall facts of the case, this Court is of the opinion that since the enquiry was held in a fair and just manner, and there being no other infirmity found by the Labour Court, except for the fact that the Passenger did not confirm that the Workman had admitted his guilt, when on the contrary the Workman himself had admitted to having appended his signatures on the Passenger’s statement, the enquiry proceedings are held to be valid and legal. The order dated 27th July, 2009 is, accordingly, set aside. Second Issue – On Merits.

23. Now coming to the second aspect, i.e., merits of the impugned award. The claim petition bearing I.D. No. 214/98 filed by the Workman before the Labour Court No. VII, Tis Hazari Courts, Delhi challenging his removal raised the following grounds, inter alia, – ● That the charge sheet was false and baseless. ● That the checking report and the challan were false and baseless. ● That the Passenger ought to have been checked properly as to whether he had any other ticket on him apart from the ticket produced by him. ● That the independent co-passengers, who were given proper tickets and had paid the fare, had not been examined. ● That the excess amount of cash does not automatically lead to finding of misconduct. ● That the enquiry was not conducted in accordance with law. ● That the Passenger was himself not examined. ● That the punishment awarded was disproportionate.

24. On these grounds, the Workman prayed for setting aside of the removal order and passing of an award in favour of the workman with full backwages, continuity of service and other consequential benefits with costs.

25. The Corporation in its written statement, relied upon the following- ● That the enquiry, which it had conducted, was just, fair and proper. ● That the Workman was awarded several punishments in the past due to various irregularities in services during his service with the Corporation. ● That the Workman was rightly removed on 3rd May, 1990 vide memo no. OD-II/AI(T)/CS-121/90/1915. He confessed to his irregularity and signed on the statement of the Passenger and confirmed that he had indeed issued the fake ticket. ● That the report of the checking officials was true and correct as the Workman had himself admitted to his fault and signed the statement of the passenger without any pressure. ● The chargesheet was issued to the Workman on the basis of the challan and the statement of the Workman himself. ● That the enquiry has fully complied with the principles of natural justice, giving the Workman full opportunity to defend himself. All charges levelled in the chargesheet were proved beyond doubt. ● That the punishment awarded is proportionate considering the Workman’s misconduct as also his past irregularities.

26. After holding against the Corporation that the enquiry conducted was not valid, the Labour Court proceeded to record evidence in the matter.

27. The Workman in his evidence by way of affidavit dated 11th August, 2000 re-iterated the contents of his claim. He deposed that the Passenger in question showed a different ticket from the one that was issued to him and the checking staff did not ask him to check his pocket for the correct ticket despite the Workman’s repeated requests. The main objection of the Workman was that the Passenger was not examined. He relied upon the Corporation’s circular dated 6th December, 1972 as per which if the passengers are not examined/cross-examined, their statement cannot be used against the Workman.

28. The Workman in his cross examination admits to have signed the enquiry proceedings. He denied having any knowledge of the contents of the circulars dated 6th December, 1972 and 28th May, 1980. He also admits not to have protested against any of the procedures followed in the enquiry proceedings. He merely denied that he had issued an old ticket of Rs. 0.50 bearing no. 199-27017 to the passenger. Surprisingly, the Workman avers that he was not on duty on 2nd November, 1989 at Route No. 404 as the Conductor.

29. MW[1] was the Depot Manager of D.K. Depot at the relevant point in time. He had issued the charge sheet to the Workman. MW[1] confirmed that the enquiry was conducted by Mr. Mohd. Irfan. However, Mr. Mohd. Irfan had left the service of the Corporation at the time of filing of this affidavit. He identified the signatures of Mr. Mohd. Irfan on the enquiry proceedings and confirmed that the enquiry was conducted in accordance with the principles of natural justice.

30. During cross examination, MW[1] deposed that he was not present during the enquiry proceedings because he is the disciplinary authority. He denied issuing the show cause notice without considering the enquiry report. MW[1] also denied the suggestion that the Workman was not given a sufficient opportunity to bring his witnesses or defend himself in the enquiry. Evidence of MW[2] - Ishwar Das

31. MW[2] was one of the ATIs working in the South Checking Team at the relevant time. He was one of the checking staff stationed at the Taikhand Railway Crossing between 10:05 am to 10:35 am when bus no. 2949 on Route No. 404 was checked. MW[2] had personal knowledge of the checking which took place. He along with Mr. Tej Bhan, Mr. Jawahar Singh, Mr. Amrik Singh and Mr. Prem Singh found that the Workman had issued one already used/sold ticket worth Rs. 0.50 bearing no. 199-27107 to one Passenger namely, Mr. Balwant Singh. The said Passenger gave his statement in writing and signed it as well in MW2’s presence. MW[2] identified the signatures of the Passenger. He also confirmed that the Workman had admitted his fault and had signed in his presence on Exhibit MW-2/1. MW[2] asserted that he can identify the signature of the Workman. The checking staff also checked the cash that was on the Workman on 2nd November, 1989 and found that to be in excess of Rs. 5.70/-. The challan was issued by the checking staff that included the five witnesses and the same was signed by all the members of the checking staff and the Workman. He submitted that the report of the checking staff dated 2nd November, 1989 contained brief facts and that it was bearing the signatures of all checking staff. MW[2] identified the signatures of the checking staff. The ticket which was sold to the Passenger was also exhibited as Ex. MW-2/5.

32. MW[2] exhibited the statement of the Passenger as Ex.MW-2/1, which bore the Passenger’s signature as also that of the Workman. The Challan at Ex MW2/2 also contained the signatures of Mr. Tej Bhan and the Workman. He exhibited the Checking Report and a photocopy of the ticket as Exhibit MW2/3. He denied the suggestion that the Workman was threatened to sign the statement of the Passenger. He confirmed that the statement was in the handwriting of the Passenger and that the resold ticket was recovered from the passenger bearing no signature of the Passenger or of the Workman. He denied the suggestion that the Ticket No.32302 was forcibly taken by the checking staff from the Workman. Evidence of MW 3 - Mr. Jawahar Singh

33. MW[3] was also one of the ATIs working with the Corporation, at the South Checking team at the relevant time and was part of the Checking Staff. His evidence was on similar lines as that of MW[2] - Mr. Ishwar Das. He too confirmed the incident, the inspection, the Passenger’s statement, his signatures and the Workman’s statement and signature.

34. MW[3] denied the suggestion that the passenger was not issued a resold ticket. He also confirmed that the statement of the Passenger was written by Mr. Tej Bhan, ATI.

35. On the basis of the above pleadings and evidence, the Labour Court passed the impugned order holding that the charge of issuance of stale ticket of Rs. 0.50 is not proved with the following observations:

36. A perusal of the impugned award dated 2nd January, 2010 shows that the Labour Court merely proceeds on the basis that the sale of the stale ticket is not proved. The Labour Court observed that the entire case is based on the statement of Passenger - Mr. Balwant Singh and that the issuance of the stale ticket is not proved as MW[2], Mr. Ishwar Das had stated that the Passenger had written the statement whereas MW[3], Mr. Jawahar Singh stated that the same was written by Mr. Tej Bhan. However, Mr. Tej Bhan had not been examined and the evidence adduced was not sufficient to prove the misconduct. This contradiction is relied upon by the labour court to hold in favour of the Workman. It is pertinent to note that the impugned order is conspicuously silent on the statement given by the Passenger and the Workman’s signatures appended in support of the same statement. All the witnesses have affirmed that the Workman confirmed the statement given by the Passenger. The statement of the Passenger duly endorsed and signed by the Workman reads as under: “मै आज दिन ांक 02.11.89 को मांिपुर से 2049 रूट नांबर 404 चढ़ और क ां डक्टर को 50 पैसे दिए| क ां डक्टर ने मुझे एक दटकट 50 पैसे क दिय दजस क नांबर 199/27017 है जब ग डी तेखांड पर पहुची तो चेदक ां ग स्ट फ ग डी मे आय और मेर दटकट चेक दकय तो यह इस क ां डक्टर क दटकट नही थ | इस मे मेर कोई िोष नही| यह मेरी कोई गलती नही यह क ां डक्टर की गलती है| मेरी आप से प्र थथन है दक इसक े खखल फ उदचत क रव ई की ज ए| बलवांत दसांह 288A सररत दवह र 2.11.89 मै य दियोां क े ब्य न से सहमत हूँ क्योदक मेरी गलती है यह दटकट ग डी मे पड़ थ और मेने उठ कर मेने यह दटकट नांबर 199/27017 थ बेच दिय | Shyam Sunder B.N. 21226 2/11/89”2

37. The fact, that both of them gave their statements, is also confirmed by the checking report, which is duly signed by the various witnesses, who had

2 The original statements are in Hindi and are handwritten. The same have been transcribed by the Court translator for use in this judgement. appeared. The checking report was duly exhibited in the record. However, by merely holding that Mr. Tej Bhan was not examined, the Labour Court could not have ignored an array of documents consisting of the checking report, the challan and the statement of the passenger duly affirmed by the Workman. Two of the Management Witnesses were part of the checking staff team. There is no reason to disbelieve their evidence. The statement of the Passenger duly identifies the number of the ticket given to him by the conductor being 199-27017. Since there is no iota of doubt that the ticket bearing number 199- 27017 is an old ticket, it could not have been held that the Corporation had not proved its case. Even during the course of submissions, ld. Counsel for the Workman clearly admits that the signatures on the statement of the passenger are of the Workman.

38. In addition, a perusal of the service record of the Workman would show that he has been repeatedly censured and suspended due to similar allegations in the past as well. His past record displays complete disregard towards his duty since the time that he was appointed with the Corporation. Repeated action has been taken against him for reasons similar to that of his removal, like issuing bogus/used tickets, being found with extra cash, sitting idle while on duty, not displaying the accurate destination board, issuing tickets of less denomination after collecting a higher fare, etc. The incidents are more than five in number.

39. In the above background, the non-examination of Mr. Tej Bhan before the Labour Court could not have been held to be detrimental to the case of the Corporation. Firstly, the enquiry was valid, legal and fair. Secondly, two witnesses forming part of the checking staff team deposed before the Labour Court. Finally, the Workman did not deny having appended his signature to the Passenger’s statement. The misconduct in the present case was evidently proved and established. The relief of reinstatement, which has been granted, is therefore, not tenable in the opinion of the Court and the same is accordingly, set aside.

40. The workman has superannuated. In view of the fact that the reinstatement has been set aside by this Court, the workman is not entitled to any further retirement benefits, continuity of service, etc. However, if there is any provident fund or gratuity amount, which is liable to be paid to the Workman in terms of the impugned order, the same shall be paid within 8 weeks from today.

41. It is noted that during the pendency of this writ petition, the Workman has received payments under Section 17B of the Act, which however need not be refunded.

42. The writ petition, along with all pending applications, if any, is allowed and disposed of in the above terms.

PRATHIBA M. SINGH JUDGE NOVEMBER 3, 2022/dk/SR/SK