JUDGMENT
1. In this appeal, which is filed by the appellant against the order dated 28th September, 2004, dismissing the writ petition filed by the appellant, the issue that arises for our consideration is whether the order passed by the respondent corporation against the appellant, terminating his service should be interfered with.
2. A departmental inquiry was instituted against the appellant on the allegation that on 25th June, 1993 while working as a conductor in a bus, he did not issue tickets despite collecting fare from two passengers, which fact was discovered by the checking staff when they routinely intercepted the bus in which the appellant was the conductor.
3. It was alleged in the memorandum of charge that the checking staff confronted the appellant with the situation and at that stage he handed over to unpunched tickets for the requisite denomination after which the checking staff recorded the statements of the passengers on a challan but the appellant/workman refused to countersign the same. With the aforesaid allegations, a report was submitted by the checking staff, in terms of which a charge sheet was issued to the appellant on the ground of commission of misconducts within the meaning of paragraph 19(b) and (h) of the Standing Orders governing the conduct of employees of the respondent corporation.
4. An inquiry was held by appointing an Inquiry Officer. The Inquiry Officer received evidence and submitted his reporting find the appellant guilty of the charges leveled against him. While recording the conclusions, the Inquiry Officer referred to and relied upon the evidence on record including statements of the checking staff and two unpunched tickets for the requisite denomination mentioned in the way voucher and the way bill whereby the appellant deposited the entire cash received, including for the two unpunched tickets. The disciplinary authority, upon going through the inquiry report and the records, passed an order removing the appellant from service. Consequently, an application was moved by the respondent corporation for approval of its action in terms of provisions of Section 33(2)(b) of the Act.
5. On receipt of the aforesaid application, the Tribunal framed a preliminary issue to consider as to whether a legal and valid inquiry was held against the appellant. The respondent corporation examined the Inquiry Officer as its witness. In respect of the aforesaid preliminary issue, the learned Labour Court, by order dated 3rd September, 2001, held that the domestic inquiry held against the appellant was vitiated due to non-compliance of the principles of natural justice. The respondent corporation was thereafter given an opportunity to lead additional evidence to prove the misconduct before the Tribunal. The respondent corporation failed to lead any additional evidence and consequent thereto the learned Labour Court passed an order dated 24th December, 2002, declining/refusing to grant approval for removal of the appellant/workman from service.
6. The said orders were under challenge in a writ petition filed by the respondent corporation before the learned Single Judge. The said writ petition was allowed by the learned Single Judge holding that the domestic inquiry conducted against the appellant was not vitiated. It was also held by the learned Single Judge that the conclusion arrived at by the learned Tribunal to the effect that approval cannot be granted to the Corporation, was erroneous and was required to be set aside, which was done by allowing the writ petition. The said order passed by the learned Single Judge is under challenge in this appeal on which we have heard the learned Counsel appearing for the parties. We have also perused the records placed before us.
7. Mainly, two issues were urged before us by the learned Counsel appearing for the appellant. The first contention was that no passenger witness was examined by the Corporation before the learned Labour Court and that being the position, no approval could have been given to the action taken by the Corporation removing the appellant from service. The second contention was regarding alleged non-supply of documents by the Inquiry Officer during the course of inquiry. It was, therefore, submitted before us that there is violation of principles of natural justice.
8. In the light of the aforesaid submissions, we have examined the pleas raised before us. It is now settled law that absence of passengers as witness in the domestic inquiry do not and cannot vitiate the domestic inquiry. It is also settled law that if the checking staff is examined and that evidence is unimpeachable, in that event there is no reason why it should not be held that the misconduct alleged stands proved. In this connection, we may refer to a decision of the Supreme Court in State of Haryana v. Rattan Singh . In the said decision, three contentions were raised which are as follows:
(1) None of the passengers traveling without tickets were examined in the domestic inquiry.
(2) The checking inspectors had violated a departmental instructions by not recording the statements of the passengers.
(3) The co-conductor in the bus had affirmed the innocence of the conductor.
9. In paragraph 4 of the said judgment the Supreme Court had held 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 also held in the said decision that passengers are not required to be chased and brought before the domestic tribunal. On the scope of permissible interference with the conclusions in 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. The Supreme Court further held that as long as there was 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 was not invalid. The following passage from the decision of the Supreme Court is worth quoting which is as under:
It is well settled that in a domestic inquiry 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.
10. In Shyam Sunder v. Delhi Transport Corporation CWP No. 922/1976, decided on 5th February, 1996), this Court held that since the inquiry officer had based his findings on the examination of the checking staff, there was independent evidence to link the petitioner with the charges levelled against him, and consequently it was held that the statement of the passengers, not being the sole material against the petitioner, the domestic inquiry was not vitiated. The aforesaid decision of this Court as also the decision of the Supreme Court in Rattan Singh (supra) and many other decisions were noticed by this Court in the decision in Delhi Transport Corporation v. N.L. Kakkar and Anr. reported as 110 (2004) DLT 493. After noticing all the judgments, this Court held that consistent view of the courts over the last few years has been that non- production of passenger witnesses is not fatal to the domestic inquiry and that findings of fact arrived at in a domestic inquiry should not be interfered with so long as they are based on some evidence. In the said judgment this Court also noted the law laid down by some other High Courts and on such consideration it was held that production of passengers either in a domestic inquiry or before the Labour Court in an industrial dispute is not at all necessary. This Court was of the view that in most cases this would be highly impractical because it would mean that passengers would have to be traced out, chased and brought before the inquiry officer or the Labour Court causing them unnecessary inconvenience. We are of the considered opinion that all the aforesaid decisions are fully applicable to the facts and circumstances of the present case.
11. Reference can be made to the decision of Delhi Transport Corporation v. Sree Kumar and Anr. , which was also decided almost on similar lines.
12. We may also refer to the decision of the Supreme Court in the case of Cholan Roadways Ltd. and G. Thirugnanasambandam reported as . In paragraph 31 of the said decision, the Supreme Court has observed that the lower fora had misdirected themselves in law. It was held that the Tribunal had wrongly failed to apply principle of res ipsa loquitur, which was relevant for the purpose of that case and that it took into consideration irrelevant facts not germane for determining the issue.
13. It is, therefore, clearly established that it is not mandatory that passenger witnesses should depose to establish guilt. In the present case, the inquiry officer made several attempts and left no stone unturned for appearance of the passenger witnesses in the domestic inquiry, but despite best efforts, they did not appear to depose in the domestic inquiry. Inquiry report cannot be dismissed in its entirety only because the passenger witnesses did not appear. There was enough evidence and material before the inquiry officer to establish the guilt of the appellant. The checkers had no personal axe to grind and were independent witnesses. We are of the considered opinion that the learned Tribunal did not appreciate the issues in the right perspective and on improper interpretation of law had arrived at an erroneous finding. The present case cannot be said to be a case of no evidence. There is no perversity as was sought to be argued by the counsel for the appellant. Guilt of the appellant was established by the inquiry officer. Therefore, the first of the two contentions, which was raised before us, is held to be without any merit.
14. We are now left with to consider and decide and give our decision in respect of second plea regarding non-supply of documents. The learned Counsel for the appellant submitted that the appellant demanded copies of certain documents, which were not supplied to him and, therefore, the inquiry should be held to be vitiated for non-compliance of the principles of natural justice. On making a pointed inquiry by us as to the nature of such documents, the counsel submitted before us that the documents required were statements of passengers and copy of the document on which he has made the confession of his guilt. As a matter of fact, the statements of the passengers were not even recorded in the inquiry proceedings. What was examined by the learned Labour Court and also by the learned Single Judge was statements of the checking staff. In that view of the matter, we are of the considered opinion that non-supply of copies of the statements of the passengers, allegedly recorded by the checking staff, did not cause any prejudice to the appellant. The learned Labour Court and the learned Single Judge relied upon the statement of checking staff, whose evidence was found to be unimpeachable and reliable. Apart from the said evidence and the statements of the checking staff, the other evidence relied upon was two unpunched tickets given by the appellant to the checking staff, way voucher and the way bill whereby the appellant/workman deposited the entire cash collection including the two unpunched tickets. The aforesaid evidence itself clearly establishes the guilt of the appellant, which was found to be so both by the learned Labour Court and also by the learned Single Judge. Therefore, even if the statements of the passengers are ignored, even then it is possible to agree with the view of the Inquiry Officer. The conclusions arrived at by the learned Labour Court and the learned Single Judge to that effect cannot be faulted. In the present case, the aforesaid documents were asked for by the appellant only after he submitted his statement of defense. During the entire inquiry, he never stated that he is, in any manner, prejudiced for non-supply of the said documents. Only when his closing statement was recoded, he stated that the aforesaid documents were not supplied to him. That is also one ground on which it must be held that the appellant was not at all prejudiced by non-supply of the aforesaid documents.
15. It is also revealed from the records that the Inquiry Officer had twice requested the concerned passengers to participate in the inquiry but despite the said efforts, the passengers did not come forward to get their statements recorded. Therefore, since an effort was made, despite which passenger witnesses could not be examined, the decision of the Supreme Court in State of Haryana v. Rattan Singh (Supra) squarely applies to the facts of the present case.
16. Another contention, which was raised by the appellant, was regarding applicability of the provisions of memorandum dated 13th October, 1965 issued by the respondent, which laid down that if the passengers did not come forward to participate in the inquiry, they should be examined at their residence, which was not done in the present case. In this connection, we may refer to a decision of this Court in Ram Mehar Singh v. DTC Writ Petition No. 4635/1994 disposed of on 19th September, 2005 wherein it was held that the circulars issued by the respondent/corporation regarding the manner of recording evidence are in the nature of guidelines, and cannot be treated as binding regulations. Besides, such requirement is a rule of prudence, not a rule that would vitiate the inquiry. The very first expression used in the said memorandum that the instructions be kept in view, itself would show that the said instructions are not binding and are only to be noticed. All the aforesaid submissions of the counsel for the appellant, therefore, have no merit and the same are rejected. The appeal has no merit and is dismissed.