JUDGMENT
Madan B. Lokur, J.
1. The Petitioner is aggrieved by two orders passed by the learned Industrial Tribunal in OP No.47/1996. By the first impugned order dated 23rd April, 1999, it was held that the domestic inquiry conducted against the Respondent-Workman was vitiated due to the failure of the Enquiry Officer to comply with the principles of natural justice. By the second impugned order dated 15th March, 2001, it was held that the application filed by the Petitioner for approval under Section 33(2)(b) of the Industrial Disputes Act, 1947 (the Act) of the termination of the services of the Respondent-Workman was liable to be rejected.
2.The allegation against the Respondent-Workman, a bus conductor with the Petitioner, was that on 6th June, 1993, a routine checking party found four passengers traveling without a ticket. On enquiry, the passengers stated that they had paid the fare to the Respondent-Workman but he had not issued any ticket to them. The statements of the four passengers were recorded and a challan prepared. The Respondent-Workman signed the challan as well as the statements of the passengers. He also handed over four unpunched tickets of the requisite denominations to the checking staff. A way bill pertaining to the Respondent-Workman was prepared by which he deposited the entire cash amount, including that covered by the unpunched tickets.
3.On these facts, the checking staff submitted a report to the concerned authorities. On the basis of the report, a charge sheet was issued to the Respondent-Workman alleging misconduct by him. Since he denied the allegations, a departmental inquiry was held in which the Respondent-Workman was found guilty of the charges and thereafter removed from service.
4.In the departmental inquiry, two of the four passengers appeared as witnesses for the Respondent-Workman. They stated that they had not given any money to the Respondent-Workman but that the checking staff snatched the money, which they were holding in their hand. The checking staff wrote something on a paper and asked them to sign it. The other two passengers did not appear before the Enquiry Officer. The only other evidence before the Enquiry Officer was the statement of the checking staff, that is Mahender Singh, Traffic Inspector and Inder Singh, Traffic Supervisor who fully supported the case of the Petitioner. The Enquiry Officer submitted his report in which he chose to disbelieve the two passenger witnesses. The Enquiry Officer found four factors worth noticing. Firstly, the Respondent-Workman handed over four unpunched tickets of the requisite denominations, thereby admitting that he had taken the fare without issuing the necessary tickets. Secondly, this was tacitly confirmed by him when deposited the full cash, including for the unpunched tickets, as per the waybill. Thirdly, he countersigned the challan and statement of the passengers of his free will. Finally, the two passenger witnesses stated that the checking staff wrote down the (sic)r statements, which they signed, but the statements on record showed that the passengers themselves wrote them. As such, the testimony of these two passengers recorded in the inquiry could not be believed.
5. After removing the Respondent-Workman from service, the Petitioner filed an application under Section 33(2)(b) of the Act seeking approval from the learned Tribunal of the order of removal.
6. The learned Tribunal framed a preliminary issue, namely, whether the departmental inquiry held against the Respondent-Workman was legal and valid or against the principles of natural justice.
7.While deciding this issue, it was held by the learned Tribunal that the two passenger witnesses should have been believed, particularly when the other two passengers did not attend the inquiry. It was held unbelievable that the passengers would pay the fare without obtaining tickets for the journey. The learned Tribunal also held that as per a circular dated 12th February, 1973 issued by the Petitioner, the Respondent-Workman should have been asked at each hearing before the Enquiry Officer whether he required the assistance of a defense assistant. Since this was not done, the inquiry was vitiated.
8.Unfortunately, what the learned Tribunal has done is to sit in appeal over the findings of the Enquiry Officer. This was clearly impermissible under the provisions of Section 33(2)(b) of the Act. The error committed by the learned Tribunal gets highlighted when it is realized that the Enquiry Officer has given cogent and adequate reasons for coming to the conclusions that he did.
9.Without going into the niceties of jurisdiction under Section 33(2)(b) of the Act, it is quite clear that the learned Tribunal erred in holding the departmental inquiry as vitiated. The Enquiry Officer rightly disbelieved the testimony of the two passenger witnesses. What they said before the Enquiry Officer was in complete contradiction to what actually happened before the checking staff. What they said before the Enquiry Officer was that they signed on a piece of paper in which their statement was recorded by the checking staff. In actual fact, they themselves wrote their statement before the checking staff. This is clear from the documents on record. In view of this serious discrepancy, the Enquiry Officer rightly discarded their testimony given before him. The learned Tribunal has not at all adverted to this aspect of the case. That apart, the other factors taken into account by the Enquiry Officer have also been glossed over by the learned Tribunal. Therefore, there can be no doubt that at leas in this regard the learned Tribunal has erred.
10.Reliance placed by the learned Tribunal on the circular dated 12th February, 1973 is also misplaced. The circular requires the Enquiry Officer to ask a delinquent, on each date of the proceeding, whether he needs the assistance of any other workman. This circular merely incorporates a rule of prudence and not a mandatory direction, non-compliance of which would invalidate an inquiry. In a case such as the present, the Respondent-Workman, a literate conductor refused to take the assistance of a co-worker in the very first hearing. This being the position, the Enquiry Officer cannot be expected to ask him in every hearing whether he requires the assistance of any other worker. If the Respondent-Workman felt the need to take assistance, he was literatend educated enough to make a request, but he did not do so. Even in his defense statement before the Enquiry Officer, the Respondent-Workman did not make any grievance or express any handicap. Similarly, in his written statement filed before the learned Tribunal, the Respondent-Workman made no such grievance. Under the circumstances, it was not open to the learned Tribunal to set aside the enquiry proceedings on this ground.
11.For the reasons given above, the first impugned order dated 23rd April, 1999 passed by the learned Tribunal is set aside and it is held that the departmental inquiry was not vitiated. On this basis, approval under Section 33(2)(b) of the Act must be granted to termination of the Respondent-Workman’s services.
12.In the view that I have taken, nothing really survives in the second impugned order dated 15th March, 2001 passed by the learned Tribunal and it must be quashed to the extent it goes against the Petitioner. Suffice it to say, however, for completeness of the record, that the second impugned order also proceeds to hold against the Petitioner only on the same testimony of the two passenger witnesses recorded by the learned Tribunal. As already mentioned above, the testimony of the two passenger witness (sic)s is not reliable.
13. The failure of the Petitioner to examine the other two passengers is of no consequence. The law laid down by the Supreme Court in State of Haryana v. Rattan Singh, and by this Court in Delhi Transport Corporation v. N.L. Kakkar, 11 0 (2004) DLT 493 is fully applicable.
14. The writ petition is allowed and the impugned orders dated 23rd April, 1999 and 15th March, 2001 are set aside. Approval is accordingly granted to the Petitioner for terminating the services of the Respondent-Workman.