1 IN THE COURT OF SH [ENTITY]: POIT-II, KARKARDOOMA COURTS, DELHI OP 103/94 [ENTITY] Applicant/ Indraprastha Estate, New Delhi Management Versus [ENTITY] ( conductor) Respondent/ S/o Sh Chiranji Lal, Workman 401/9, Adarsh Gali No 1, Babarpur Vistar, Shahdara, Delhi 32. Date of institution 06.07.94 Arguments concluded on 12.10.09 Date of order 20.10.09 ORDER
1. Management has moved an application u/s 33(2)
(b) of [ACT] (hereinafter referred to as [ACT]) for approval of the order of removal of workman from services of the management on the ground that he had committed the misconduct imputed to him. The misconduct imputed to him was that on 25.11.93 he was working as Conductor on bus no.1066, route Delhi to Agra. The bus was allegedly checked at Shahbad at about 12.50 hrs. It was found that he had collected fare of Rs.11/- each, from a group of 3 passengers and did not issue tickets to them. It is alleged that he refused to deliver complaint book to checking staff when he was asked to do so and also refused to receive the challan when the same was delivered to him. It is also alleged that inquiry was held against him and he was found guilty, therefore, punishment of removal from service had been imposed, on him.
2. In WS, workman has denied that he committed misconduct of non issuance of tickets to passengers after taking fare from them or that he had refused to give complaint book to the checking team or that he had caused any loss revenue to the management or that he had refused to receive challan. It is alleged that he had not committed any misconduct. It has also been denied that one month last drawn wages were paid to him. Dismissal of approval application has been prayed for.
3. In the rejoinder, applicant has reiterated and reaffirmed all the facts as alleged in the application and denied all facts as set out in the WS.
4. On the basis of pleadings of parties, following inquiry issue was framed:-
(1)Whether the inquiry conducted against the workman is just, fair and proper?
5. Vide my order dated 11.09.09, inquiry was set aside. Management opted to prove misconduct imputed to the respondent before this tribunal. Therefore, following issues were framed :-
(1) Whether workman is guilty of misconduct imputed to him ?
(2) Whether management has paid one month last drawn wages to the workman.
6. In order to prove its case, Management has examined [ENTITY], [ENTITY] as MW 1 and MW 2. On the other hand, workman has filed his affidavit and has been examined and cross examined as WW 1.
7. I have heard AR for the parties and have carefully gone through record of the case. My issuewise findings are as under :-
8. Findings on issue No 1 Issue No 1 is whether workman is guilty of misconduct imputed to him. MW 2 [ENTITY] was member of the checking staff along with [ENTITY], ATI. In his testimony, he has deposed that they had checked the bus of the workman at Sahadabad and it was found that he had not issued tickets after collecting fare from group of 3 passengers. Passengers are deposed to have made statement to them and workman was challaned. Workman is deposed to have surrendered 5 punched tickets instead of 3 unpunched tickets. Challan, report, punched tickets, passengers' statements and way bill have been proved as Ex MW1/1 to Ex MW1/6. He is deposed to have signed the said documents. It is deposed that aforesaid documents were prepared by Sh. [ENTITY] in his presence. In his cross examination, he has admitted that challan was not made at the spot but it was made later on. He has also stated that there is statement of three passengers Ex MW1/5 at the back of challan Ex MW1/1.
9. MW 1 is Sh. [ENTITY], Depot Manager. In his affidavit, he has deposed that on receipt of report of Sh. [ENTITY], ATI and his associate [ENTITY], a charge sheet dated 15.12.93 was issued to the workman. Copies of challan, report, unpunched tickets, way bill, passengers statement and charge sheet have been proved as Ex MW1/1-7. Inquiry is deposed to have been conducted against the workman, show cause notice of proposed punishment of removal from service was issued to the workman and thereafter punishment of removal from service was confirmed. Copies of show cause notice, past record and removal letter have been proved as Ex MW1/1-3. It is deposed that workman had committed misconduct so he was rightly removed from service. It is deposed that order of removal from service is legal. It is deposed that along with removal order, one month salary of Rs 2909 was remitted to the workman through money order. Copies of salary slip and money order receipts have been proved as Ex MW1/4-6. In his cross examination, he has stated that he did not have personal knowledge about facts of the present case.
10. WW 1 [ENTITY] in his affidavit has deposed that on 25.11.1993, he was working as conductor on bus No 1066 enroute Delhi to Agra. Vehicle is deposed to have met with an accident and report to the same effect was made to police at Sasani Police Station and thereafter bus proceeded to Agra in accidental condition at 12.50 o'clock. Checking staff is deposed to have boarded the the bus at Shabad and went to Agra with the bus. At Agra, de- boarding passengers of the bus were checked and no irregularity was found. Thereafter with malicious intention, he was challened ante-time in spite of the fact that there was no irregularity. It is deposed that challan was not made at the spot and in his presence, his cash was not checked, his signatures were not taken on challan despite the fact that checking staff travelled with the bus upto Agra where route terminated. It is deposed that challan does not bear signatures of any other member of the checking staff or the passengers. He has also deposed that tickets were punched, therefore, question of not issuing tickets to the passengers did not arise. It is deposed that he had not committed any misconduct. It is deposed that he is unemployed till date since date of termination of his service as he could not find any employment despite his best efforts.
11. It has been argued on behalf of the management that workman was on duty on bus No 1066 and when the bus was checked by checking staff, it was found that he had received fare of Rs 11 each from a group of three passengers but he had not issued tickets to them. It is argued that he was confronted with passengers and they also gave statement to the checking staff. It is also argued that he was puzzled so instead of 3 unpunched tickets, he handed over 5 punched tickets to the checking team when called upon to do so, therefore, a report was prepared. It is argued that on the basis of report, statement of passengers and 5 punched tickets, charge sheet was given to him; inquiry was held against him in which he was found guilty. It is argued that Management has produced evidence before this Tribunal and on the basis of evidence produced on record, misconduct imputed to the workman stands proved.
12. On the other hand, it has been argued on behalf of the workman that challan has not been signed by MW 2 [ENTITY] though he was member of the checking team. It is also argued that according to MW 2 challan was prepared later on. It is argued that challan was not prepared at the site; checking staff though had travelled from Shahbad to Agra in the same bus nor did it check the cash of the workman, so it can not be said that action of the checking staff was bona fide, rather it shows manipulation on their part. Some contradictions have been pointed out in the case of the Management. It is submitted that during inquiry, [ENTITY], ATI, was not examined as a witness whose case was that he had prepared challan at the spot whereas [ENTITY], MW 2 stated that challan was not prepared at the spot. Secondly, it is argued that according to the Management unpunched tickets were given whereas tickets on record are punched. It is argued that MW 2 who was member of the checking staff had not signed the challan nor did workman sign the same which shows manipulation of the challan.
13. If I peruse testimony of the workman, I find that his bus was checked at Shahbad. However, the workman has denied that he did not issue tickets to 3 passengers after taking fare from them. He has also denied that he had handed over punched tickets instead of 5 unpunched tickets to the checking staff. However, he has admitted that he did not make any complaint against the checking staff alleging that they had demanded kharcha pani from him and on his failure to oblige them, he was falsely implicated in this case.
14. When it is admitted case of workman that checking staff had checked the bus of the workman and the presence of the checking staff in the bus has been proved. He has not disputed that MW 2 [ENTITY], and [ENTITY] were the members of the checking team and they had checked his bus on relevant date, time and place. He has not denied that 5 punched tickets were handed over by him to the checking staff. Ex MW1/3 are five punched tickets which are consecutive in number i.e. 15767-15771. These tickets are from Hathras toAgra. If the bus was not checked at Hathras and was checked at some other place, certainly tickets would have been of that very place. Since tickets which had been delivered by the workman clearly show that they were from Hathras to Agra, they were delivered between Hathras to Agra. In Ex MW1/1, which is challan, checking staff had specifically mentioned that 3 passengers were travelling without tickets from Hathras to Agra, though workman had charged Rs 11 each from the passengers but had not issued tickets to them. They were confronted with workman and in the face of the workman the passengers had told that they were not issued tickets. It has been mentioned in Ex MW1/1 that he was asked to deliver unpunched tickets but since he was puzzled he delivered 5 tickets after punching them instead of delivering 3 unpunched tickets. According to Ex MW1/5 which is statement of the passengers, they had stated that they had boarded bus from Hathrus to Agra and had paid Rs 11 for each tickets but the conductor had not issued tickets. They had stated that when they were getting down from the bus they were checked and they had told the checking staff that they had paid fare to the conductor but he had not issued tickets to them and conductor himself admitted his fault. This statement bear name of three passengers as [ENTITY] of Agra, [ENTITY] and [ENTITY] of Matera Colony, Hathras, Aligarh.
15. The contention of the workman is that [ENTITY], ATI was not examined during the course of inquiry whereas MW 2 [ENTITY] had not signed the challan, is serious for the case of the workman. It is not necessary that every checking staff member should sign the challan. However, workman has not disputed in his cross examination that checking staff had boarded and had checked his bus. In his affidavit, he has not stated that any of the named checking staff was not part of the checking team. When he does not dispute that the witnesses examined were part of the checking staff, not signing challan by every member is hardly of any significance.
16. Second objection of the workman is that challan was not prepared at the spot. In my opinion, this is also insignificant. Ticketless passengers had given statement to the checking staff. If the proceedings had been conducted at the spot, it would have delayed the bus and would have caused inconvenience to the passengers which was unwarranted, therefore, neither singing of the challan by each and every member of checking squad nor its non-preparation at the spot is hardly of any significance. Checking staff had appeared against the workman during the course of inquiry as well as before this Tribunal. They have deposed against the workman. No enmity has been imputed to them by the workman; no circumstances have been placed on record to infer that they had any animus against the workman to falsely implicate him. His version is that they had demanded kharcha pani but nothing is on record that he made any complaint to the higher Authorities in his regard. When no complaint has been made by him regarding the incident, stand of the workman seems to be an after thought.
17. Present application is U/[SECTION] of [ACT] seeking approval of action of the Management in dispensing with services of the workman. Scope and amplitude of scrutiny at the end of this Tribunal has been delineated in various authorities as is given below
18. As to scope of inquiry by this Tribunal, in [PRECEDENT] it has been held that:-
The jurisdiction of the Tribunal while considering an application for grant of approval has succinctly been stated by this Court in [ENTITY] Ltd vs. RN Banerjee AIR 1958 SC 79. While exercising jurisdiction under [SECTION] of the Act, the Industial Tribunal is required to see as to whether a prim a facie case has been made out as regard the validity or otherwise of the domestic inquiry held against the delinquent, keeping in view the fact that if the permission or approval is granted, the order or discharge or dismissal which may be passed against the delinquent employee would be liale to be challenged in an appropriate proceeding before the Industrial Tribunal in terms of the provision of the [ACT]. In [ENTITY]'s case (supra) this court stated:
"A prima facie case does not mean a case proved to the hilt but a case which can be said to be established if the evidence which is led in support of the same were believed. While determining whether a prima facie case had been made out the relevant consideration is whether on the evidence led it was possible to arrive at the conclusion in question and not whether that was the only conclusion which could be arrived at on that evidence. It may be that the Tribunal considering this question may itself have arrived at a different conclusion. It has, however, not to substitute It is wrong to suggest that own judgment for the judgment in question. It has only got to consider whether the view taken is a possible view on the evidence on the record. (See [PRECEDENT]"
19. As to the standard of proof to be applied by the Tribunal, in [ENTITY] Vs. Virender Singh 2005 (I) AD (Delhi) 564 it was held as follows:-
Absence of appropriate pleadings and complete lack of evidence to support the pleadings would normally lead to rejection of application by the tribunal for its approval. A Prima facie view may not require the court to ensure that misconduct has been proved to the hilt, but it must ensure that Articles or Charges have been reasonably proved by leading basic/preliminary evidence in support of the Articles of Charges.
20. In [ENTITY] vs. Pradeep Kumar and Another 2008 (2) SCT 650 it has been held that:-
This court finds no perversity or illegality in the view taken by the Tribunal because after having reserved its right to lead additional evidence to prove the charge of misconduct and also having led additional evidence to prove the same, if it still could not prove the misconduct, then there could be no other conclusion at which the Tribunal could arrive. IN this view of the matter, it is not tenable for the petitioner [ENTITY] to contend at this stage that as the petitioner [ENTITY] had asserted that the respondent/ workman could not inform the petitioner [ENTITY] about his arrest immediately or within a reasonable time, and the same being the position in the pleadings itself, there was no requirement for any evidence to prove the misconduct.
21. In view of authorities referred to above if yardsticks of aforesaid authorities are applied to present case, it is clear that there is prima facie credible evidence on record to come to the conclusion that workman is guilty of misconduct imputed to him. It is admitted case of the workman that he was deployed on bus No 1066 enroute Delhi-Agra. He has not disputed that his bus was checked by the checking staff. As already observed, nothing has been produced on record which shows that checking staff had any animus against the workman. Motive of demanding kharcha pani by the checking staff from workman has been found to be an after-thought. Therefore, it can not be said that the workman did not commit the misconduct imputed or that in any manner action of the management in imposing penalty of dispensing services of the workman is illegal or unjustified. The only grievance of the workman is that even the passengers were not called during the course of inquiry. In this regard, In [PRECEDENT], following principles were laid down:
1) "Merely statement of passengers were not recorded by the Inspector of the flying squad, order that followed would not valid.
2) Evidence of the Inspector was some evidence which had relevance to the charge against the conductor
3) Sufficiency of evidence in proof of findings by a domestic tribunal is beyond scrutiny, though absence of any evidence would amount to an error apparent on the face of record.
4) There is no alergy to the hearsay evidence provided it has reasonable nexus and credibility.
22. In (1) [PRECEDENT]) [PRECEDENT] and (3) [PRECEDENT] it has been held that there should be 'some' evidence against the delinquent on record which should be credible. Therefore, I come to the conclusion that since there is credible evidence on record which goes to prove misconduct imputed to the workman, management is entitled for approval of its action in dispensing services of the workman. This issue is accordingly decided.
23. Findings on issue No 2 Issue No 2 is whether Management has paid one month last drawn wages to the workman. WW 1 in his cross examination has admited that he had received a money order sent by the [ENTITY] but he could not say if same was for the amount of Rs 2909 which was his last drawn wages. In para 12 of the application, there are specific averments that Management had issued removal order dated 6.2.94 and had also remitted one month wages by money order No 2404 and 2405 dated 6.7.94 as required U/[SECTION] of the [ACT] simultaneously. In the written statement, workman in para 3 of preliminary objection and para 9 on merits has denied that full one month wages were paid to him. He has not specified whether he had not received above money orders or that amount of the money order did not represent one month wages. He has even not specified as to what was his last wages. He has not even led evidence on these points. In his cross examination, he has admitted that he had received money order sent by the [ENTITY] but he could not say if amount of the money order was Rs 2909 which was his last drawn wages. MW 1 Sh. [ENTITY] in para 5 of his affidavit has stated that along with removal order, one month salary of Rs 2909 was remitted to the workman through money order. Copy of the salary slip of the workman for the month of July,1994 has been proved as Ex MW1/4 in which salary of the workman has been bifurcated under several heads and total salary has been shown as Rs 2909. No suggestion has been given to MW 1 that MW1/4 does not represent correct amount of his salary or that it is fabricated or manipulated document. In the absence of such evidence, it stands proved on record that last drawn salary of the workman at the time removal order was issued to him was Rs 2909. The workman has admitted that he had received money orders as represented in Ex MW1/5. In view of this, I hold that last drawn one month wage of Rs 2909 was remitted to the workman which was received by him. This issue is accordingly decided.
19. Relief:- In view of my findings on above issues, I hold that misconduct imputed to the workman stood proved. I also hold that last drawn one month wage of Rs 2909 was remitted to the workman which was received by him. Accordingly, Management is entitled for approval of its action in dispensing services of the workman. Approval U/[SECTION] [ACT] of action of the Management in dispensing with services of the workman is accordingly granted to the Management. File be consigned to record room.
Announced in open court on 20.10.09 ([ENTITY])
Presiding Officer, Industrial Tribunal-II Karkardooma Courts, Delhi.
20.10.09 Present None for the parties Vide separate order, approval U/[SECTION]
[ACT] of action of the Management in dispensing with services of the workman is accordingly granted to the Management. File be consigned to record room.
([ENTITY]) POIT-II,KKD,DELHI