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* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P. (C) 19741/2004
DELHI TRANSPORT CORPORATION ..... Petitioner
Through Ms. Arati Mahajan Shedha, Advocate
versus
BRAHAM PRAKASH ..... Respondent
And
+ W.P. (C) 17729/2005
DELHI TRANSPORT CORPORATION ..... Petitioner
Through Ms. Arati Mahajan Shedha, Advocate
versus
BRAHAM PRAKASH ..... Respondent
CORAM: JUSTICE S. MURALIDHAR
1. Whether Reporters of local papers may be
allowed to see the judgment? No
2. To be referred to the Reporter or not? No
3. Whether the judgment should be reported in Digest? No
W.P. (C) Nos. 19741/2004 & 17729/2005 Page 1 of 8
ORDER
% 04.07.2011
1. W.P. (C) No. 19741 of 2004 filed by the Petitioner Delhi Transport
Corporation (‘DTC’) is directed against the orders dated 26 th September
2001 passed by the Industrial Tribunal (‘Tribunal’) declining approval for
the removal of the Respondent in an application under Section 33 (2) of the
Industrial Disputes Act, 1947 (‘ID Act’). DTC also challenges an order
dated 31st March 2003 of the Tribunal dismissing its application under
Section 33 (2) (b) of the ID Act.
2. In W.P. (C) No. 17729 of 2005 DTC challenges an order dated 4th
October 2004 of the Labour Court answering the reference in ID No. 233 of
1995 in favour of the Respondent workman and holding that his removal
from service by the DTC was illegal. By the said order the Labour Court
directed the reinstatement of the Respondent with back wages and all other
consequential benefits from the date of his removal.
3. During the pendency of the these writ petitions, the impugned Award has
been implemented with the workman having paid the amount due
W.P. (C) Nos. 19741/2004 & 17729/2005 Page 2 of 8
thereunder. Further the workman’s application under Section 17 B of the ID
Act was allowed by an order dated 11th March 2008 of this Court in W.P.
(C) No. 19741 of 2004. In lieu thereof, the Respondent was permitted to join
duties in the DTC which he did with effect from 14th July 2009.
4. It may also be mentioned that the parties were referred twice to the
Continuous Lok Adalat to explore the possibility of a settlement. However,
no settlement could be arrived at.
5. This Court has heard the submissions of Ms. Arati Mahajan Shedha,
learned counsel appearing for the DTC and has perused the impugned
orders.
6. The facts are that the Respondent was employed as a Conductor with the
DTC. On 11th March 1994 when he was performing his duties on Bus No.
9883 on route No. 131 the checking staff of the DTC checked the bus. It was
found that the Respondent had collected full fare charges from seven
passengers but had issued them tickets of lesser denomination. The
statements of the passengers recorded by the checking staff were declined to
W.P. (C) Nos. 19741/2004 & 17729/2005 Page 3 of 8
be signed by the Respondent. The DTC claimed that the Respondent
admitted his fault and surrendered seven unpunched tickets. The Respondent
caused financial losses to the DTC. On the basis of the report, charge sheet
dated 7th April 1994 was issued to the Respondent for committing
misconduct. Pursuant to the detailed enquiry the charges were held to be
proved. Thereafter DTC filed an application under Section 33 (2) (b) ID Act
seeking approval of the Tribunal for removal of the Respondent.
7. One of the preliminary issues raised in the application filed by the DTC
under Section 33 (2) of the ID Act was whether it had held a legal and valid
enquiry. Although the Respondent questioned the validity of the procedure
adopted during the enquiry, the Tribunal by the order dated 26th September
2001 held that he has been given full opportunity to defend himself in the
enquiry. However, as regard the report of the Inquiry Officer, the Tribunal
observed that the written statement of one Mohd. Naseem, one of the
passengers, stating that Respondent had issued him two tickets of Rs. 1 each
after collecting Rs. 2 from him was disbelieved on the ground that the
Respondent must have won him over. The notice issued to the other
passenger Ram Swaroop, who too had given a statement against the
W.P. (C) Nos. 19741/2004 & 17729/2005 Page 4 of 8
Respondent to the checking staff, was returned unserved as he was not found
living at the given address. Consequently, the Tribunal concluded that there
was no corroboration of the statements of the checking staff who were
examined as management witnesses. In the circumstances, benefit of doubt
was given to the Respondent and the enquiry was held to be vitiated. On the
basis of the above finding, by a subsequent order dated 31st March 2003, the
Tribunal dismissed the application filed by the DTC under Section 33 (2) (b)
of the ID Act seeking approval of its removing the Respondent from service.
8. The above orders dated 26th September 2001 and 31st March 2003 have
been assailed by the DTC on the ground that the Tribunal could not have
acted as an appellate authority and re-examined the evidence. It is submitted
that there was evidence on record to enable the Tribunal to come to a prima
facie conclusion that the Respondent was guilty of misconduct. This was
sufficient for the purposes of an application under Section 33 (2) (b) of the
ID Act. Reliance is placed on the decision of this Court in Delhi Transport
Corporation v. Nihal Singh 169 (2010) DLT 727 and of the Supreme Court
in Lord Krishna Textile Mills v. Its Workmen AIR 1961 SC 860. It is
submitted that the Labour Court could not have insisted on the corroboration
W.P. (C) Nos. 19741/2004 & 17729/2005 Page 5 of 8
of the statements of the checking staff by independent witnesses. There were
documents on record to substantiate their version. Reliance is placed upon
the decisions in Delhi Transport Corporation v. N.K. Kakkar 110 (2004)
DLT 493, State of Haryana v. Ratan Singh 1977 (34) FLR 264 and a
decision dated 6th September 2006 in W.P. (C) No. 6314 of 2004 (Delhi
Transport Corporation v. Upender Dutt).
9. This Court finds that in a statement given earlier to the checking staff,
passenger Mohd. Naseem had stated that he had paid the Respondent Rs. 2
but had been issued a ticket of Rs. 1 denomination. During the inquiry notice
was issued to him to appear. While expressing his inability to appear, Mohd
Naseem gave a statement in which he has stated that the Respondent issued
him two tickets of Rs. 1 each. Mohd. Naseem stated that he could not earlier
explain the matter to the checking staff as he was observing a fast. Basically
there were contradictions in the two statements given by Mohd. Naseem. He
was, therefore, not a reliable witness. The other passenger, Ram Swaroop,
who gave a statement about the Respondent having issued six tickets of Rs.
1 each after collecting Rs. 2/- from each passenger, was not found to be
residing at the address given by him. He could, therefore, not be cross-
W.P. (C) Nos. 19741/2004 & 17729/2005 Page 6 of 8
examined during the enquiry. Resultantly, there was no reliable independent
witness to corroborate the versions of the checking staff. The entire evidence
sought to be adduced by the DTC was already on record before the Tribunal.
The checking staff collected six punched tickets and seven unpunched
tickets but failed to check the cash with the Respondent. Therefore, the need
to have proven statements of the passengers became important. In the
circumstances, the conclusion arrived at by the Tribunal was a possible
view. It cannot be said to be perverse or illegal.
10. For the above reasons, this Court does not find any valid ground having
been made out for interfering with the impugned orders dated 26 th
September 2001 and 31st March 2003 of the Tribunal rejecting the
application filed by DTC under Section 33 (2) (b) of the ID Act seeking
approval of its action of removing the Respondent from service.
11. This Court also finds no legal infirmity in the impugned award dated 4th
October 2004 of the Labour Court holding the removal of the Respondent
from service to be illegal and directing the reinstatement of the Respondent
with continuity of service, back wages and all other consequential reliefs.
W.P. (C) Nos. 19741/2004 & 17729/2005 Page 7 of 8
12. Consequently, the writ petitions are dismissed, but in the facts and
circumstances, with no order as to costs.
S. MURALIDHAR, J
JULY 04, 2011
rk
W.P. (C) Nos. 19741/2004 & 17729/2005 Page 8 of 8