D.T.C. v. Phool Singh

15. Mr. Pradeep Kumar, learned counsel for the Respondent contended that Impugned Award passed by the learned Labour Court is correct and interference is called for by this Court. He further contended that that the officials of the Petitioner/Management misused their position by falsely accusing the Respondent/Workman. Learned counsel further contended that the Petitioner/Management failed to prove the charges leveled against the Respondent/Workman and accordingly order of reinstatement has been awarded by the learned Labour Court.

16. It is further submitted by the counsel for Respondent/Workman that the enquiry proceeding was held without observing the principles of natural justice. Neither the statements of the passengers were recorded nor summoned as a witness in the enquiry proceedings. Although there were 15 passengers in the bus, no independent passenger was examined. Learned counsel for the Respondent further contended that there exists an official bias during the Enquiry proceeding as the Enquiry Officer was an employee of the Petitioner/Management. Learned counsel for the petitioner contended that the checking officials failed to adhere with the requirements mentioned in DTC regulations whereby the checking officials were bound to record the statement of passengers/witness on the back portion of the challan on the spot and hence the finding of the Enquiry officer was vague and perverse. In order to substantiate his arguments learned counsel for the respondent relied on the Judgment dated 05.09.2011 passed in the case of MGT of DTC Vs Surinder Kumar by Single Bench of this Court in WP(C) 6967/2005. Legal Analysis based on the facts of the present case

17. Heard the arguments advanced by learned counsels for the parties and perused the documents and judgments relied upon by them. Learned Labour Court vide impugned Award dated 17.07.2002, decided the preliminary term of reference, i.e., ‘Whether the management has not conducted a fair and proper enquiry in accordance with the principles of natural justice?’ in favour of the Respondent/Workman and against the Petitioner/Management. It is the case of the Petitioner/Management that they have conducted the enquiry in accordance with law. Hence, it is imperative for this Court to examine the validity of the departmental enquiry conducted by the Petitioner/Management.

18. The Respondent/Workman is an employee of the Petitioner/ Management and governed by the Delhi Road Corporation Authority (Conditions of Appointment & Service) Regulations, 1952. Regulation 15(2)(C) of the said Regulations regulates the procedure to be followed while conducting the disciplinary proceedings. Regulation 15(2)(C), inter alia, reads as follows: “ Without prejudice to the foregoing provisions, no order of dismissal, removal or any other punishment except censure shall be passed against an employee of the Authority other than an order based on facts before a Criminal Court unless he has been informed in writing of the grounds on which it is proposed to take action shall be reduced to form a separate charge or charges which shall be communicated to the person charged and of any other circumstances which it is proposed to take into consideration in passing orders on the case. The employee shall be required to be within a specified time to submit a written reply to the charges and to state whether he desired to be heard in person also. If he so desires and the competent authority so directs an oral enquiry shall be held. The officer conducting the enquiry may record facts brought out in such enquiry and may utilize them for coming to a finding on the truth or otherwise or the charge or charges levelled against employees. The Welfare Officer if any employed with the Authority may attend such enquiry to watch the interest of the employees but shall not intervene or obtrude in proceedings at any stage. The proceedings shall contain a statement of the finding and grounds thereof”

19. This Court has examined the enquiry report in detail and notes the following facts:

(i) The Petitioner Management issued the chargesheet dated

(ii) The said charge sheet was duly served upon the Respondent

(iii) The Respondent Workman submitted his detailed reply contesting the allegations as contained in the said chargesheet and requested for an oral enquiry.

(iv) As per the request of the Respondent Workman, a detailed enquiry was conducted by the Petitioner Management in accordance with the statutory regulations.

(v) The Respondent Workman was granted enough opportunity to cross examine the witness of the Management.

(vi) After affording proper opportunity to the Respondent

(vii) The disciplinary Authority after affording proper opportunity to the Respondent Workman, imposed a penalty of ‘removal from service’ on the Respondent Workman.

20. A perusal of the enquiry proceedings therefore shows that the said enquiry was conducted in accordance with the statutory regulations after affording opportunity for the Respondent/Workman. It is also pertinent to note that there is no allegation of the Respondent/Workman regarding non-compliance of statutory regulations by the Petitioner/Management.

21. A perusal of the impugned Award dated 17.07.2002 shows that the learned Industrial Tribunal has held that the departmental enquiry is vitiated on the following grounds:

(i) The checking team failed to record statements of the passengers and failed to examine them during the enquiry proceedings.

(ii) The Petitioner/Management failed to produce the registered cover by which they issued summons to the passengers before the Learned Tribunal.

22. The issue of non-examination of the passengers is no more res integra and has been settled by various case laws. Learned Single Judge of this Court, in an exhaustive Judgment in the case of DTC Vs N.L Kakkar & Ors. reported as110 (2004) DLT 93 summarised the law by referring to various case laws in this field. The relevant portion of the said Judgment reads, inter alia, as follows: “Passenger Witnesses

13. In a similar fact situation, a Full Bench of the Punjab & Haryana High Court in State of Haryana vs. Ram Chander 1976 (2) SLR 690 laid the foundation for its discussion in paragraph 3 of the Report. It was held that a domestic tribunal is not bound by the strict rules of evidence and can evolve its own procedure as long as it is in accordance with the principles of natural justice. It was said: "The first question for consideration is, whether the evidence of the checkers as to what they were told by the passengers was not legal evidence in the domestic enquiry against the respondent. Time and again, it has been repeated by the Supreme Court that domestic tribunals in the absence of statutory guidance, have the right to regulate their own procedure and are also not bound by the strict rules of evidence. The rules of procedure and the rules of evidence observed in Courts are often misplaced in domestic enquiries. A Domestic tribunal whose procedure is not regulated by a statute is free to adopt a procedure of its own so long as it conforms to principles of natural justice. It is equally free to receive evidence from whatever source if it is 'logically probative'."

14. Thereafter, the Full Bench considered earlier decisions of the Supreme Court and also referred to cases from England to lay down the law in paragraph 4 of the Report with regard to the value to be attached to hearsay evidence. It was held: "...... where a bus is checked and it is found that tickets have not been issued to several passengers and the passengers state in the presence of the conductor that they paid the fare, the enquiry officer would be justified in acting upon the evidence of the checkers stating these facts even though the passengers themselves are not examined as witnesses. A finding of guilt arrived at by him would not be based on pure hearsay. It would be based on (1) the evidence of the Checker that he found passengers traveling without tickets and (2) the statements made by the passengers to the checker at the time of checking. The second item of evidence alone would be hearsay but it would be hearsay of high probative value because of the circumstance that statements were made in the presence of the conductor and on the spot. In such a case, it cannot be said that the enquiry officer's findings are based on pure hearsay or hearsay of unreliable nature."

15. The most important judgment on the subject is State of Haryana vs. Rattan Singh. The facts of that case are similar to the facts of the present case. What must be mentioned, however, is that in Rattan Singh the Civil Court declared the domestic inquiry a nullity. The appellate Court affirmed this conclusion and the High Court dismissed a second appeal. Yet, the Supreme Court entertained a petition for special leave to appeal and upset the conclusions of three Courts.

16. The contentions urged before the Supreme Court are also of some importance. They are:

(i) None of the passengers traveling without tickets were examined in the domestic enquiry.

(ii) The checking inspectors had violated a departmental instruction by not recording the statements of the passengers.

(iii) The co-conductor in the bus had affirmed the innocence of the conductor.

17. The Supreme Court held in paragraph 4 of the Report that a domestic inquiry can take into consideration all materials logically probative for a prudent mind and that there is no allergy to hearsay evidence, provided it has reasonable nexus and credibility. It was said that the passengers are not required to be chased and brought before the domestic tribunal.

18. On the scope of permissible interference with the conclusions of a domestic inquiry, the Supreme Court said in the same paragraph that what has to be seen is whether there was some evidence or was it a case of no evidence. As long as there is some evidence, sufficiency thereof in proof of a finding by a domestic tribunal is beyond scrutiny. The Supreme Court found that there was some evidence before the inquiry officer and, therefore, the order passed in the domestic inquiry could not be held invalid.

19. I think it is worth quoting the view of the Supreme Court as reflected in paragraph 4 of the Report. This passage really answers both the issues before me. This is what the Supreme Court says: "It is well settled that in a domestic enquiry the strict and sophisticated rules of evidence under the Indian Evidence Act may not apply. All materials which are logically probative for a prudent mind are permissible. There is no allergy to hearsay evidence provided it has reasonable nexus and credibility. It is true that departmental authorities and administrative tribunals must be careful in evaluating such material and should not glibly swallow what is strictly speaking not relevant under the Indian Evidence Act. For this proposition it is not necessary to cite decisions nor text books, although we have been taken through case law and other authorities by counsel on both sides. The essence of a judicial approach is objectivity, exclusion of extraneous materials or considerations and observance of rules of natural justice. Of course, fairplay is the basis and if perversity or arbitrariness, bias or surrender of independence of judgment vitiate the conclusions reached, such finding, even though of a domestic tribunal, cannot be held good. However, the courts below misdirected themselves, perhaps, in insisting that passengers who had come in and gone out should be chased and brought before the tribunal before a valid finding could be recorded. The 'residuum' rule to which counsel for the respondent referred, based upon certain passages from American Jurisprudence does not go to that extent nor does the passage from Halsbury insist on such rigid requirement. The simple point is, was there some evidence or was there no evidence -- not in the sense of the technical rules governing regular court proceedings but in a fair commonsense way as men of understanding and worldly wisdom will accept. Viewed in this way, sufficiency of evidence in proof of the finding by a domestic tribunal is beyond scrutiny. Absence of any evidence in support of a finding is certainly available for the court to look into because it amounts to an error of law apparent on the record. We find, in this case, that the evidence of Chamanlal, Inspector of the flying squad, is some evidence which has relevance to the charge levelled against the respondent. Therefore, we are unable to hold that the order is invalid on that ground."

20. With regard to the second contention relating to noncompliance of departmental instructions, the Supreme Court found them to be rules of prudence and not rules that bind so that their violation will not vitiate the exercise. Absence of written statements of the passengers (the statements were orally made) was explained by Supreme Court as being understandable given the psychology of the passengers, though not worthy of approval. But, it was held that merely because their statements were not recorded, it would not invalidate the order in the domestic inquiry.

21. Finally, with regard to the third contention, the Supreme Court held that "re-evaluation of the evidence on the strength of co-conductor's testimony is a matter not for the court but for the administrative tribunal."

22. Two facts are noteworthy in the decision of the Supreme Court. Firstly, the only evidence against the conductor was what was told by the passengers to the checking staff. The passengers did not enter the witness box, nor did they give written statements to the checking staff. Secondly, the co-conductor supported the conductor and apparently entered the witness box. Yet the Supreme Court accepted the finding of the domestic inquiry and reversed the conclusion of three Courts.

23. Soon after the decision of the Supreme Court in Rattan Singh, a Division Bench of this Court had occasion to deal with a similar situation, wherein again, both the issues before me had also arisen. In Delhi Transport Corporation vs. Presiding Officer, Additional Industrial Tribunal (1979)

XVI DLT 220, the Division Bench noted two competing principles, that is, nonreviewability of a finding of fact based on evidence and violation of the rules of natural justice. The Division Bench laid down the law on page 224 of the Report and then referred to and relied upon Rattan Singh in support of its conclusions. This is what the Division Bench said: "The alleged violation of natural justice presupposes that it was necessary that the passenger witness should have been made available for cross examination. This assumption is baseless. Firstly, the notice by registered post sent to the witness was received back with the remark that the witness had left the address and the notice could not, therefore, be served on that address. This made it impossible for the Inquiry Officer to serve the passenger witness. Secondly, the question whether the hear-say evidence of the checking staff about the statement of the passenger should have been admitted in evidence by the Inquiry Officer because of the impossibility of enforcing his attendance which may arise in a suitable case did not arise in this case. Even when no such impossibility of enforcing the attendance of the passenger was proved the Supreme Court observed in State of Haryana and another v. Rattan Singh......"

24. On the question of interference with a finding of fact arrived at in a domestic inquiry, it was held: "Therefore, in the present case, the principle (sic) finding of fact of the Inquiry Officer which is based on some evidence independent of the written statement or oral evidence of the passenger witness is unassailable."

25. On page 225 of the Report, the Division Bench made an important observation, which I think should be taken serious note of. It was said: "We may take judicial notice of the fact that the checking of the conductors of the buses of the appellant is a salutary practice. Its effectiveness cannot be defeated by technicalities. When the misconduct is proved by the common sense standards before the Inquiry Officer, legal ingenuity and technicalities should not be allowed to impugn the common sense findings and defeat the operation of the system of checking." (emphasis supplied)

23. This Court is in respectful agreement with the law as summarized by the learned Single Judge of this Court in N.L Kakkar (Supra). The 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. In the present case, all the members of the checking team were examined and they were cross-examined by the Respondent/Workman. All of them supported the inspection conducted by the checking team. There is no allegation of any personal animosity between the Respondent/Workman and the members of the checking team. Hence there is no motive for the members of the checking team to give evidence against the Respondent/Workman. Therefore, it is clear and evident that there were enough evidences before the Disciplinary Authority to proceed against the Respondent/Workman. In addition, this Court notes the past record of the Respondent/Workman. As per the said past record, there were 9 adverse entries out of which one entry was related to non-issuance of tickets to the passengers after accepting the due fare from them.

24. In view of the discussion herein above, this Court is of the considered opinion that the domestic enquiry conducted by the Petitioner/Management is in accordance with the statutory regulations and cannot be held to be vitiated merely because the passengers were not examined.

25. The second objection of the Learned Tribunal against the domestic enquiry was that the Petitioner/Management failed to produce the record vide which they issued summons to the passengers. It is the consistent case of the Petitioner/Management that the summons were issued to the passengers, however the said summons returned undelivered. This fact has been categorically mentioned in the enquiry report. However, the Petitioner/Management failed to produce the said records before the Learned Labour Court because the files were submitted to the old record room, Okhla and the said files could not be retrieved. There is no reason to disbelieve the enquiry report in this regard.

26. This Court further notes that the checking team recovered unaccounted excess cash from the Respondent/Workman based on statement of passengers recorded on the spot. The quantum of amount recovered holds no relevance here as such an act committed by Respondent/Workman is a gross misconduct amounting to violation of fiduciary duty. The petitioner rightly placed reliance on the case of Karnataka SRTC v. A.T. Mane reported as (2005) 3 SCC 254 in which following observation was made:

29. Mere accusation of official bias will not help the Respondent/Workman and there is no reason to doubt the evidence given by members of the checking team, therefore this court refuses to accept this contention.

30. In view of the discussion herein above, it is evident that the Petitioner/Management conducted the domestic enquiry in accordance with the statutory regulations. It is also clear that the Petitioner/Management granted enough opportunity to the Respondent/Workman to defend himself. It is not the case of the Respondent/Workman that members of the checking team had any kind of malice or personal animosity with the Respondent/Workman. Hence, this Court has no hesitation to hold that the non-examination of passengers does not vitiate the entire disciplinary proceedings. There are other reliable evidences before the Disciplinary Authority to hold the Respondent/Workman guilty of the alleged misconduct and hence the enquiry officer rightly concluded that the charges are proved against the Respondent/Workman. The Disciplinary Authority accepted the enquiry report and after affording proper opportunity to the Respondent/Workman decided to remove him from service. This Court is of the considered opinion that the learned Labour Court ought not have interfered with the enquiry proceedings in view of this Court’s judgment dated 24.10.2016 in LPA 601/2010 titled as Lochan Singh v. Haryana Roadways which states as follows:

31. That in view of the findings of this Court qua the validity of the domestic enquiry, the service of the Respondent/Workman was terminated validly in accordance with law. Hence, the subsequent Award dated 07.10.2002 is also hereby set aside.

32. In view of discussion herein above, the impugned Award dated 17.07.2002 and 07.10.2002 are hereby set aside. It is further clarified that the proceedings under Section 17-B of the Industrial Disputes Act, 1947 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. 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 Industrial Disputes Act, 1947 is not recoverable.

33. In view of the above clarifications, the present Writ Petition is hereby allowed and the impugned Awards dated 17.07.2002 and 07.10.2002 are hereby set aside. No order as to cost.

GAURANG KANTH, J. AUGUST 17, 2022