R-139
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment Reserved on: 07.12.2010
Judgment Delivered on: 09.12.2010
+ RSA No.167/2003
DELHI TRANSPORT CORPORATION ...........Appellant
Through: Mr.J.N.Aggarwal & Mr.Mayank Joshi,
Advocates.
Versus
SHRI SUBHASH CHAND ..........Respondent
Through: None.
CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR
1. Whether the Reporters of local papers may be allowed to
see the judgment?
2. To be referred to the Reporter or not? Yes
3. Whether the judgment should be reported in the Digest?
Yes
INDERMEET KAUR, J.
1. The present appeal has impugned the judgment and decree
dated 15.5.2003 which had endorsed the finding of the Trial Judge
dated 07.2.1996 whereby the suit of the plaintiff Subhash Chand
had been decreed in his favour.
2. The plaintiff had filed a suit for permanent and mandatory
injunction with a prayer that a declaration be passed declaring that
the order of punishment dated 16.8.1991 (whereby the plaintiff
was awarded punishment of reduction in his pay scale from
Rs.1130/- to his initial pay scale of Rs.950/-) be declared
unwarranted and void ab initio with a direction that the defendant
be directed to pay the salary of the plaintiff in terms of his pay
scale of Rs.1130/-.
RSA No.167/2003 Page 1 of 6
3. Plaintiff was employed with the DTC as a conductor. He was
in the pay scale of Rs.950-20-1150. He was made a victim of the
malpractices of the checking staff. Plaintiff was performing his
duties honestly and diligently but due to the connivance of some of
the members of the checking staff of the DTC, false allegations had
been levelled against him pursuant to which a charge sheet had
been filed against the him. This was on 11.11.1997. Enquiry was
held which was not in accordance with the procedure established
by law and was in violation of the principles of natural justice. No
opportunity of fair hearing or to defend his case had been granted
to the plaintiff. He was not afforded proper assistance; he was
forced to sign on blank papers; the witnesses of the department
were tutored; report of the enquiry officer was illegal, unjust and
perverse. The punishment order dated 16.8.1991 is liable to be
set aside.
4. The written statement had disputed the allegations in the
plaint. It was stated that the suit was barred and liable to be
dismissed under Section 41(h) of the Specific Relief Act. The
plaintiff being a “workman” it was the “Labour Court alone which
had jurisdiction to try the present suit”. The conduct of the
plaintiff even otherwise disentitled him to any relief.
5. On the pleadings of the parties, the following four issues
were framed:
1.Whether the plaintiff is entitled to decree for declaration
alongwith consequential relief of decree for mandatory injunction
as prayed for? OPP
2.Whether the suit of the plaintiff is liable to be dismissed in view
of Section 41(h) of the Specific Relief Act and the plaintiff being
workman labour court has the jurisdiction to try and entertain the
grievance of the plaintiff as alleged in para 2 of the preliminary
objection? OPD
RSA No.167/2003 Page 2 of 6
(iii) Whether the suit of the plaintiff is also liable to be dismissed
in view of Section 41(i) of the Specific Relief Act as alleged in para
3 o the preliminary objection in the written statement ?OPD
(iv) Relief.
6. The oral and documentary evidence was examined. It was
held that the Civil Court has jurisdiction whenever the Enquiry
Officer has acted beyond the scope of his power and there are
allegations of violation of principles of natural justice. It has come
on record that the delinquent had filed an appeal against the order
of his punishment but the appeal remained undecided; the enquiry
proceedings had taken unnecessarily long. The penalty was found
to be harsh and in violation of principles of the natural justice. Suit
of the plaintiff was accordingly decreed in his favour. It was
directed that that the original pay scale of Rs.1130/- be accorded to
the plaintiff with other consequential reliefs.
7. In appeal vide impugned judgment dated 15.5.2003 the order
of the Trial Court was upheld. Issue no.1 was dealt with in detail.
On the re-examination of the oral and documentary evidence, the
Court returned a fact finding that the Enquiry Officer was biased
and influenced by the checking staff; the finding of the Enquiry
Officer that the act of the delinquent in handing over an un-
punched ticket to the checking staff amounted to an admission of
guilt was an incorrect finding; there was no evidence before the
Enquiry Officer to return a finding. The impugned judgment had
noted that the departmental appeal had been filed by the
delinquent on 25.09.1991 but even till the filing of the suit i.e. up
to 25.8.1993 the same had not been disposed of. The enquiry had
also remain pending for four long years, during which period the
delinquent was placed under suspension. The judgment of the
RSA No.167/2003 Page 3 of 6
Trial Court was upheld.
8. This is a second appeal. After its admission on 25.10.2004,
the following substantial questions of law were formulated; they
inter alia read as follows:
“1.Whether the civil suit filed by the Respondent, a workman
within the meaning of Section 2(S) of the Industrial Disputes Act,
1947, was maintainable?
2. Whether the report dated 10th August, 1990 passed by the
Inquiry Officer could have been set aside by the Civil Court?”
9. The respondent had been served but in spite of service he
has chosen not to appear. It is noted in the record.
10. Appellant has placed reliance upon a judgment of the Apex
Court reported in (2008) 2 SCC 350 Chief Engineer, Hydel Project
& Ors. Vs. Ravinder Nath & Ors. to substantiate his submission
that the present being a case of an “industrial dispute” the
jurisdiction of the Civil Court was barred. It is submitted that in
the case reported in (2005) 7 SCC 447 Rajasthan SRTC Vs. Zakir
Hussain the Apex Court had clarified the nature of the reliefs
which would fall within an “industrial dispute” barring the
jurisdiction of the Civil Court. Applying the ratio of the said
judgment, the jurisdiction of this court is barred; the dispute raised
by the delinquent is an “industrial dispute”.
11. It is a well settled that a Court will not normally sit in appeal
over the findings arrived of by the Enquiry Officer; the Court is not
to examine or re-examine the evidence adduced before the Enquiry
Officer. It is only in exceptional cases when the findings of the
Enquiry Officer are perverse or opposed to the principles of natural
justice that an interference is warranted by the Civil Courts.
RSA No.167/2003 Page 4 of 6
12. The pleadings before the Civil Court as is evident from the
plaint were that the Enquiry Officer had violated the rules of
natural justice; no opportunity of fair hearing has been granted to
the delinquent; there was no evidence before the Enquiry Officer to
draw a finding of guilt against the delinquent; all this was done
with the active connivance of the officers of the checking staff of
the DTC pursuant to which the delinquent had been victimized and
fallen a prey to them. The punishment of reduction of his pay scale
of Rs.1130/- to the initial pay scale of Rs.950/- was unwarranted
and disproportionate to the charge levelled against the delinquent
which was to the effect that delinquent in his capacity as a
conductor had not issued tickets to the travelling passengers.
The Supreme Court in the case of Delhi Transport Corporation Vs.
DTC Mazdoor Congress & Ors. reported in AIR 1991 SC 101 had
held as follows:
“It is now well settled that the „audi alteram
partem‟ rule which is essence, enforces the equality
clause in Article 14 of the Constitution is applicable not
only to quasi-judicial orders but to administrative orders
affecting prejudicially the party-in-question unless the
application of the rule has been expressly excluded by
the Act or Regulation or Rule 1 Rules of natural justice
do not supplant but supplement the Rules and
Regulations.
The rights of the Government Companies and
Public Corporations which are State instrumentalities
within meaning of Article 14 and their employees
cannot be governed by the general principle of master
and servant, and the management cannot have
unrestricted and unqualified power of terminating the
services of the employees.”
13. The two fact finding Courts have returned a positive finding
that the principles of natural justice have been violated; the orders
of the Enquiry Officer were perverse; based on no evidence; the
impugned judgment had noted that there was no evidence in the
nature of the testimony of a passenger or a co-passenger who could
state that the delinquent was not issuing tickets.
RSA No.167/2003 Page 5 of 6
14. The Supreme Court in the case of Chief Engineer, Hydel
Project (supra) had held that where a dispute is an “industrial
dispute” arising out of right or a liability under the general
common law and not under the Industrial Disputes Act, the
jurisdiction of the Civil Court is in alternative leaving it to the
election of the suitor concerned to chose his remedy for the relief
which is competent to be granted in a particular remedy.
15. In the instant case what the plaintiff had sought as is clear
from the averments in the plaint is a common law remedy. He has
alleged that the Enquiry Officer was prejudiced and biased, being a
case of no evidence his findings are perverse and opposed and in
violation of the principles of natural justice as also the principles of
audi alteram partem; a fair hearing had not been granted to the
delinquent. He has been a victim of malafides. Jurisdiction of the
Civil court is not ousted in such a case.
16. Substantial question of law is answered accordingly. There
is no merit in the appeal; it is dismissed.
INDERMEET KAUR, J.
DECEMBER 09, 2010
nandan
RSA No.167/2003 Page 6 of 6