D.T.C. v. Hukum Singh

1. This petition impugns the award dated 24.05.2007 passed by the learned Labour Court in ID No.434/06/96. The respondent workman was working as a driver with the DTC. As his regular duties, he drove a passenger bus. He was given the charge of driving a passenger bus on an outstation route, from Saharanpur to Delhi and back. On 03.09.1994 while on duty on bus No.9780, he waited for the conductor to board the bus till 9:40 am. The conductor did not board the bus apparently because he was in police custody on account of some incident the previous evening. The bus was full of passengers who were creating a din and wanted the bus to start its journey to Delhi. In the compelling circumstance, the respondent-bus driver tried to contact his office in Delhi but since the telephone lines were down, 2020:DHC:996 he could not make the telephone call. Therefore, as a matter of prudence, at his request another DTC conductor, who happened to be in the bus to assist him. The latter collected the fare from the passengers. The journey started from Saharanpur and ended in Delhi. The fare collected was Rs.1,780/- which was promptly deposited with the DTC. However, the employer initiated an inquiry against the driver on the ground that the Manager of the Depot concerned had not given him permission to drive the vehicle to Delhi. The position of the bus driver was unenviable, inasmuch as he was engaged to drive the vehicle from Saharanpur to Delhi and back; he had a busload of impatient passengers; he tried to contact his Manager/Senior Officer on the telephone, but did not succeed due to the malfunctioning of the telephone lines; the journey had to be completed i.e. the bus had to return to its base in Delhi, so he did what he considered prudent so that the bus trip was not wasted for the passengers and the service of the bus was properly utilized. Not plying the bus could also have gone against him. Therefore, he chose to ply the bus and the requisite fare collected, through another conductor of the DTC, was promptly deposited with the office at the end of the journey.

2. The learned counsel for the respondent submits that the tickets in the journey were not issued. This charge cannot be held against the driver because the fare was collected by the other conductor of the DTC who helped/assisted/officiated on that journey. Neither any charges have been levied nor any inquiry was initiated against this conductor, therefore, the bus driver cannot be held liable for the said journey, as he neither collected nor deposited any monies.

3. The learned counsel for the petitioner/DTC submits, that there is clear admission that the respondent-workman had tried only one telephone number of the DTC office; he could have tried the other two telephone numbers when the first dialled number did not respond; so as to intimate or seek instructions from the management. She contends that the driver ought to have been prudent and diligent in keeping all numbers of his superiors, so as to contact them in exigent circumstances. It is, however, possible that he may have forgotten the other two numbers. These were pre-cell phone years and it was not always possible to get through on landlines in government officer.

4. Upon a query to the learned counsel for the petitioner as to what was the average amount which was collected on such return journeys, she said that there is no dispute about the collection or deposit of the fare. In other words, the fare was collected and duly deposited with the DTC and it was in the same range as the daily collection. There is no financial irregularity by the driver. He made a conscious call in favour of the DTC and in the interest of the passengers, for which he cannot be held liable beyond the punishment imposed upon him by the impugned order i.e. stoppage of four increments with cumulative effect; he was granted reinstatement along with 1/4th of the back wages.

5. The learned Labour Court had found that his removal from the service was an inappropriate harsh punishment. It has reasoned as under:- “7. Issue No. 2: As per terms of reference. The workman was charged-sheeted on the allegations that on 3.9.1994 while he was on duty on bus no.9780, route Delhi-Saharanpur, he brought the bus from Saharanpur without conductor, without prior permission of any competent authority. He unauthorisedly charged money from the passengers without issuing any tickets to them. As a result of which a financial loss was caused to the corporation. He violated the rules, maligned the image of the corporation and was negligent in his duties. The workman has categorically submitted in his affidavit that the conductor was in lock up and already two buses had broken down at Saharanpur. The bus was full of passengers and the passengers were making hue and cry. He tried to contact the depot authorities but due to phone lines being out of order he could not contact them. He brought the bus full of passengers with the assistance of another conductor who collected fare from the passengers and the whole amount was deposited with the cashier. There is no allegation that the amount in question was not deposited or there was any under or excess money charged from passengers. He also submitted in his affidavit that he had no other intention except the well-being of the corporation and therefore, there is nothing incriminating against him. Rather he acted in the best interest of the corporation and for that instead of getting a pat on his back, he was victimized. In the cross-examination of the claimant, these facts have not been controverted. The workman has also stated that he is unemployed since termination of his service. There is no suggestion during the cross-examination that he is gainfully employed.

8. It has been contended by AR for workman that punishment of removal imposed upon the workman on the basis of above-said charge is highly disproportionate to the misconduct proved against him. He has argued that the conductor because of which entire incident happened has not been removed from services. Though enquiry was conducted against three persons who were involved in the alleged incident on 2.9.94 and all of them were acquitted by the disciplinary authority while a very harsh punishment of removal was imposed on the claimant. The workman vide his letter dated 3.9.94 which is placed on record on behalf of the management has clearly informed the corporation about the incident on the very next date i.e. 3.9.94 stating that when the bus reached at Saharanpur at night, the conductor left the bus. However, in an incident involving a workman, he remained in the lock up whole night. He waited for him till 9.40 AM but the police did not discharge him. He tried to make an STD call to Delhi but due to the phone lines being out of order, he could not make a call. The passengers who had boarded the bus were making noise and they refused to vacate the bus. They told him that they would pay full charges for their travel and would also give the statement. It was the conductor who was missing from the bus. A conductor from I.P. Depot was also there in the bus. He collected money from all the passengers and the claimant deposited the amount of Rs. 1780/- with the Corporation which was collected from the passengers. The stand of the conductor has not been disputed by the management. Rather the management has admitted that the conductor who was not in the bus was acquitted in the disciplinary proceedings and no such strict punishment of removal from services was imposed upon him.

9. Under section 11A, the Labour Court has power to substitute the punishment of removal with a lesser punishment, if the punishment awarded is found to excessive. The punishment of removal awarded to the workman is shockingly disproportionate to the charges of misconduct proved against him. The punishment awarded needs to be interfered with. From the facts of the case, it becomes crystal clear that the workman in question collected money from the passengers and deposited the same with the corporation. Taking into account all the factors and on perusal of the record, it is clear that the claimant did not perform the act intentionally with a view to cheat the management. He made efforts to speak to the competent authority at Delhi but due to the phone lines being out of order he could not contact them. This explanation of the workman was not challenged or rebutted but he was suggested that other alternatives were open to him. The workman has not gained anything for himself as a result of mistake committed by him. Though the past record of the workman is not very clean but in the past he has not committed any such act and only because of this bizarre incident he had to take such a step. Accordingly, I hold that the punishment awarded to the workman is disproportionate. For such a misconduct, a lesser punishment would be sufficient. Management has also not proved any gainful employment of workman. I accordingly substitute the punishment of removal with stoppage of four increments of the claimant with cumulative effect and also order for his reinstatement alongwith 1/4th of the back wages. He shall also be entitled for all other consequential benefits. Issue no.2 is accordingly decided in favour of workman and against the management.

10. Reference is answered accordingly. Six copies of the award be sent to the Secretary (Labour) for publication within 30 days. File be consigned to the record room.”

6. The Court agrees with the preceding rationale that for a prudent decision, in the exigent circumstances which the driver faced, coupled with the fact that all monies/fare collected by the other DTC conductor was promptly deposited, the driver cannot be punished with dismissal from service. There is no reason to interfere with the impugned order. The petition is without merit and is, accordingly, dismissed.

NAJMI WAZIRI, J. FEBRUARY 11, 2020 ‘AA’