\l IN THE men COURT OF DELIU AT NEW DELHI OrderReservedon; 19.09.2006 WPfC)No.U^794/7n«M Decision.-November06, 2006 # DelhiTransportCorporation ! ™ , Petitioner versus Through:Ms. GitaSharmaandMr. AtaulHaqueAdvocates 1. Jaipal Singh „ Respondent CORAM: ThroughiMr.AnilMittal,Advocate JUSTICESHIVNARAYANDIUNGRA 1.Whetherreportersoflocalpapersmay beallowedto see thejudgment? Vgx- 2. 10 be referredto the Reporteror not? Vc 4. 3. Whetherthejudgmentshouldbe reported in theDigest? SinV NARAYANDHIngRA. T By this writpetition,the petitionerhas challengedthe validityof award dated 19.1.2004 whereby the LabourCourt held that the domesticinquiry conductedagainst the workman was violaliveof principlesof natural.justiceand directedthe reinstatementof the workmanwith 11,11 back wages. 2. Briefly,the facts are that the respondent No.l was workingas aconductorand was on duty on bus No. 9011 from Talwara to Delhi on 22.3.1990. At about 7.20 am, the bus was checkedat MukeriaPur by the checkingstaff. Threepersonswere caughtalightingfrom the bus withouttickets.They statedthat they had paidRs.2/-each to the respondentwho did not issue the tickets.Furthercheckingofbus revealedthatninepassengerswho were travelingfrom Talwarato Delhi had paid Rs.61 each to the respondent,who did not issue tickets. Two passengerswere travelingfrom Talwara to Dasua and had paid Rs.4.70 to the respondent,but were not given tickets. One passengerhad boardedthe bus from Hajipurto Hayanaand paidRs.7/-and was not issued ticket. One passengerhad boai'dedthe bus from Talwarato Hoshiaipurand paid Rs.il/- WP(C)No.l5794/2004 PageNo.l ofPageNo.ll V Digitally Signed By:AMULYA Signing Date:21.10.2023 14:29 Certify that the digital file and physical file have been compared and the digital data is as per the physical file and no page is missing. Signature Not Verified and was not issuedticketby the respondent. Therewere two passengerswho were travelingfrom Hajipiir to Hoshiarpur and "paid Rs.9 each to the respondent and were not given tickets. Unpunched tickets of all the above denominationwere taken from the respondent and were attached to challan. The way bill of the respondentwas found empty. It is alleged that the respondent did not allow the statements of passengers to be recorded and rather incited the passengersagainst the checkingstaff. He did not hand over the complaintbook to the checking stafffor makingentry into itofthe resultsofchecking. However,he lateron asked some ofthe passengeisto write theirstatementsin the complaintbook. On 23.3.1990,the respondentwrotea letterto DepotManageraboutthe checkingand statedthat his bus was not completedwhen it was checkedas he was on Talwaraduty for the first time. The fai'e table was big and the ticketswere blank.There were morepassengersin the bus. The checkingstaffwronglychallanedhim. On the basisof leportof checkingstaff,achargesheetdated 18.4.1990was issuedto the respondent. The respondentdenied the charges.An inquirywas got conductedby the petitionerinto the charges. The inquiry officer submittedits report on 30.7.1990holding,the respondeniguilty of charges levelled against him. Ashow cause notice was issued to the respondentas to why he be not removed from servicefrom Corporationvide letterdated 29.11.1990. Consideringthe reply of the lespondentand consideringhis past record,the respondentwas removedfrom service. 3. The past record of the respondentshowed that he collectedRs.49/- insteadof Rs.47.50 from the passengerfrom Delhi to Amritsaron 1.1.1989.He was placed under suspension.On 13.4.1989,on checking,it was found that he had issuedunpunchedtickets to the passengers. He was given penaltyofstoppingof two increments.On nextchecking,i.e. 2.1.1989,fourpassengers were caught without tickets alighting from bus when he was on duty and he was put under sirspension on 12.9.1989.On 18.10.89,as apenalty,his basicpay was reducedto the initialstage WP(C) No.15794/2004 PageNo.2 ofPageNo.ll ofpay scale. Thepresentincidencewas anotherin theseries.He was dismissedLmserviceafter enquiryon 21.11.1990.He did not raise any disputefor four and ahalfyears about his removal and after four and half years, he raised an industrialdispute which was referred to the Labour Courtin followingterms: "Whetherthe servicesofSh. Jai Pal Singh have been terminatedillegally and/or unjustifiablyand if so, to what relief is he entitled and what directionsarenecessaryin this regard?" 4. 1he 1ribunal,afterrecordingevidenceof both sidescameto conclusionthat Shri. B. Trivedi, InquiryOfficer,was not appointedas InquiryOfficerby DepotManagerbut was appointedby General Manager. This showed that the appointmentof Inquiry Officer was not proper. The Tribunalalso observedthat the enquiryofficeracted,both as ajudgeas well as prosecutorand crossexaminedthe witnesses.Ifa witness had been cross examined by an inquiry officer himself, it was contrary to principlesof naturaljustice. The enquiry officer could not have acted both, as a judge and as a prosecutor, being contrary to the principles of natural justice. The Tribunal observed that the statementsof the passengerswere recorded by the inquiry officer but the same were not taken into consideration.The EnquiryOfficertwistedthe statementsofpassengersininquiryreport. The Labour Courtfurtherobservedthat the workmanwas not providedlistofwitnessesordocumentsalong with chagesheet.The procedureadoptedby the inquiryofficerwas againstthe principlesofnaturaljustice. After holding, as above, the Labour Court came to conclusion that the inquiry proceedingswere contraryto the principlesof naturaljustice. The managementhad sought no opportunityto adduce evidencebefore the Tribunal to prove the charges,so no opportunitywas given.He held that removal of the workman was illegal. 5. The award has been challenged by the petitioner on the ground that the Labour Court exceeded the scope of its jurisdiction and by a mistaken view, arrogated to itself the functions of an appellate authority. The Labour Court was to see whether a prima facie case was made out by the WP(C) No.15794/2004 Page No.3 of Page No.ll "V- employer against the respondent or not and the action against the respondent iiad not been taken by way of victimization or as an unfair labour practice or there was any mala fide on the part of the management. The Labour Court also failed to appreciate that the charge sheet against the respondent was in respect of the passengers who had alighted from the bus and and stated to the checking staff that they paid the fare to the respondent who failed to issue ticket. 6. The finding of the Labour Court that the inquiry was not conducted in accordance with the principles of natural justice was assailed. The petitioner submitted that there was no scope for holding so by the I..abour Court. The inquiry was conducted totally in compliance with the principles of natural justice. Neither the appointment of the Enquiry Officer was improper. The General Manager, who appointedthe inquiry officer was higher in rank than the Depot Manager and was entitled to appointan inquiry officer. The Labour Court also wrongly held that the statement of passengers was not considered or the twisted. In fact, the Inquiry Officer has considered the statements of all the passengerswho had appeared and deposed.The award was also assailedon the ground that full back wages should not have been allowed by the Labour Court in view of the various judgments of Supreme Court. The Industrial dispute was raised after four and a half years of the termination,it was no industrial dispute as it had already become stale dispute. In any case, the full back wages for the entire period could not have been granted. 7. A perusal of the duty charter/conductor guidelines is the record of the petitioner, would show that a conductor has to perform the following duties: "2. He should use proper correct destination plates; in his bus and before starting from the exitpoint, complete this work. 3. It is the main duty that he charge fare from passengers and issue tickets against the same and the conductor is given service to mainly perform this job. While discharging this duty, he shouldfully take care of thisso that thepassenger or managementmaynot raise an accusedfinger at him. 4. Heshoulddistribute/issueticketsasper seriatimor serial wisefrom the ticket blocks as stated in the route sheet. WP(C) No.15794/2004 Page No.4 of Page No.ll 5. After the passenger boarded the bus, the conductor should know/enquirefrom the passengerhis destinationspot and tell him the prescribed rate: After charging the fare, he after punching the ticket properly as per down or up directionissue thesaid ticket to thepassenger; before issuingticketto anotherpassenger,the conductorshouldensurethat the balance if any has been returned to the earlier passenger. 11. If there are two doors in the bus, the work of issue of ticketsshould be donefrom the exit door otherwisefrom the entry door and at any bus stop, any passenger .shouldbe allowedto get down only when it is ensured that he has purchased the ticket. 12. Ticket used once in the journey cannot be re-used. Therefore, he should never sell the used ticket again and no used ticket should be kept with him. 13. If any passenger refused to pay the prescribed fare, the conductor should immediately make that pa.s.senger to get down at the immediate first stop. If situation is such that the passenger refused to pay fare and to get down from the bus, the conductor should seek the assistance of checking staffpresent in the line or police. Besidesthis, he should sent a report to the Traffic Suptdt. regarding that incident containing the name and address of the such passenger and of witnesses, if any. 14. If conductor commits any error, he should immediately inform his error to any member of the checking .staffpresent at the .spot and seek his advice." 8. It is apparent from guideline 11 that the conductor had to start giving tickets from exit door so that no passenger gets down without ticket, nor the conductor should allow anyone to get down without ticket. The plea that conductor was new on the route, thus had no force. 9. It is undisputed that General Manager is superior authority than the Depot Manager in DTC. In this case, the appointment of Inquiry Officer, was admittedly made by General Manager and not by Depot Manager. It has not been stated by the Labour Court how appointment of the inquiryofficerby a superiorauthoritythan the appointingauthoritywas illegalor improper.There is no mle which provides that Enquiry Officercannot be appointedby a superiorauthorityand only the appointingauthoritycan appoint the inquityofficer. Obviously,the Tribunal was under some misconceptionand held that the appointmentof inquiryofficerwas not proper and illegal. The Tribunal'sfinding is thus perverse.Similarly,the Tribunal'sobservationthat inquiryofficer WP(C) No.15794/2004 PageNo.5 ofPage No.ll <J,0 actedboth asa prosecutorand asajudgeare withoutany basis.A domesticinquiryisnot required to be held in an adversarial manner. A domesticinquiry is in the nature of investigationand not in the nature of adjudication.An inquiry officerhas every right to ask questionsto the witnessesin order to get clear and whole pictureof the incidentand asking questionsdoes not amount to cross examination. Even if it amounts to cross examination, it is not illegal. Even a trial judge has a right and obligationtoasksuch questionstothe witnessas heconsidersnecessarytobringout the taith. Asking a question, does not convert a judge into a prosecutor.Neither asking of questions to witnesses converts an Enquiiy Officer into a prosecutor. There is no requirement of law that in an enquiry there should be a presentingofficer.An inquiry can be conductedby an enquiry officer withoutthe help of a presentingofficer.A privilegeis given to the delinquentemployeeto appoint his defence assistance because it is considered that the delinquent may not be in a proper state of mind to ask questionsto the witnessesof the managementor to presenthis case properly. But a delinquentcan always refuse to take help of defence assistanceand conduct the case himself. Similarly,managementwitnessescan depose before the inquiiy officerof their own without the help of any presentingofficer. An inquiry officer can always ask all relevant questions to the witnesses of both sides in order to know the tnith. The Tribunal wrongly concluded that asking of questions by the inquii^ officer was contrary to the principles of natural justice. It is now settled law that principles of natural justice cannot be put into a straitjacket formulae. In each case, where it is alleged that there was violation of principles of natural justice, the employee has to show as to how such alleged violation prejudiced his defence. There is no allegations made in this case that any prejudice was caused to the respondent. In 1987 (Supp) SCC 518 Chandrama Tewari w. Union ojIndia(ThroughGeneralManager,EasternRailways),SupremeCourtheld: " Vke have given our anxious consideration to the submissions made on WP(C)No.l5794/20()4 Page No.6 of Page No.ll I'l behalf of the appellant and we have further consideredthe aforesaid authorities referred to by the learned counselfor the appellant but we do not find any merit in the appellant's submissions to Justify interference with the High Court's judgment. Article 311 of the Constitution requires that reasonable opportunity of defence must be afforded to a government servant before he is awarded major punishment of dismissal. It further contemplates that disciplinary enquiry must be held in accordance with the rules in a just and fair- manner. The procedure at the enquiry must be consistent with the principles of natural justice. Principlesof natural justice require that the copy of the documentif any reliedupon againstthe party char-ged .shouldbe given to him and he shouldbe affordedopportunityto cro.ss examinethe witnessesand toproducehisown witnessesin his defence. If findings are recorded against the government servant placing reliance on a document which may not have been disclosed to him or the copy whereofmay nothave been suppliedto him during the enquiry when demanded, that would contraveneprinciplesof naturaljustice j rendering the enquiry, and the consequentialorder of punishment illegal and void. These principles are well settled by a catena of decisions of this Court. We need not refer to them. However, it is not necessary that each and every document must be supplied to the delinquent government servant facing the charges, instead only materialand relevantdocumentsare necessaryto besuppliedtohim. If a document even though mentioned in the memo of charges is not relevant to the charges or if its is not referred to or relied upon by the enquiry officer or the punishing authority in holding the charges proved against the government servant, no exception can be taken to the validityof theproceedingsor the orders. If the documentis not used agaimst the party charged the ground of violation of principles of naturaljustice cannot.sueces.sfidlybe raised. The violationofprinciples of natural justice arises only when a document,copy of which maynot have been .suppliedto the party charged when demanded is used in recordingfinding of guilt against him. On a careful considerationof the authorities cited on behalf of the appellant, we find that the obligationto supply copiesof a documentis confinedonly to material and relevantdocumentsand the enquiry woidd be vitiatedonly if the non supply of materialand relevantdocumentswhen demandedmay have causedprejudiceto the delinquentofficer."(para4) 10. Apeai.salofinquii^reportwouldshow that the inquii7officerhad taken into accountthe statementsof all the passengers and had came to conclusion that the charges were made out against the respondentdespitestatementsof some of the passengersbeing not supportiveof the case of the management. It is settledlaw that in an inquiiy,strictprinciplesof the EvidenceAct WP(C) No.l5794/20n4 PageNo.7 ofPageNo.ll are not applicable. An inquiryoHlcertake intoaccountall materialswhich is availableon record includinghere-sayevidence.In Sate ofHaryana v. Rattan Singh. (1977)2SCC 491 Supreme Court held as under: It IS well settled that in a domestic enquiry the strictand sophisticated rules of evidence under the Indian Evidence Act may not apply. All materialswhichare logicallyprobativeforaprudentmindare permissible. There is no allergy to hearsayevidenceprovidedit has rea.sonablenexus and credibility.It is true that departmentalauthoritiesand administrative tribunalsmustbe carefulin evaluating.inchmaterialandshouldnotglibly swallow what is strictlyspeakingnot relevantunder the Indian Evidence Act. Forthispropositionit is notnecessaryto citedecisionsnortextbooh, althoughwe have been taken through case law and other authoritiesby counselon both sides. The essence ofajudicialapproach is objectivity, exclusionofextraneousmaterialsor considerationsandobservanceofrules ^ of naturaljustice. Of course, fairplay is the ba.sis and if perversityor arbitrarines.s,bias or surrenderof independenceofjudgment vitiate the conchmons reached, such finding ,even though of a domestic tribunal, cannot be held good. However, the courts below misdirectedthemselves, perhaps, in insistingthatpassengerswho had come in andgone out should be cha.sedand broughtbefore the tribunalbeforea validfinding couldbe recorded.The 're.nduum'rule to which counselfor the respondentreferred, basedupon certainpassengersfromAmericanJurisprudencedoesnotgo to that extent nor does the passage from Halsbury in.sist on such rigid teqiiirement.the simplepoint is, was there .lome evidenceor was there no evidence-notin the sense ofthe technicalrules evidenceor was there no evidence-notin the sense of the technical rules governing regular court proceedingsbut in afair commonsenseway as men of understandingand worldlywisdom will accept. Viewedin this way, .lujficiencyofevidencein proofof thefinding by a dome.victribunalis beyond.scrutiny.Absence of any evidencein supportofafinding is certainlyavailablefor the court to look into becauseitamountsto an erroroflaw apparenton the record. We find, in this case, that the evidenceof Chamanlal,Inspectorof theflying squad, is some evidencewhich has relevanceto the chargelevelledagainst the respondent.Therefore,we are unableto holdthatthe orderis invalidon that ground." (para 4) 11. Even taking into account the pas.sengers'statement,it is evident that the conductorhad not issuedtickets to tliepassengersat one or the otherplea.The plea taken by conductorwas that he would hrst issue tickets to the short distancepassengersand then he would issue tickets long distancepassengers.But even the passengerstravelingshort distancewere found getting Wr(C)N().15794/2004 PageNo.8 ofPageNo.ll to down the bus without tickets. As per his duty chart, the conductorwas supposed to start issue tickets from the exit door, leavingno passengerwithout ticket. His refusal to give tickets to the passengerson one or otherplea, showedhis mala fide intention. No infirmitycan be found with the inquiryofficer'sconclusion that the conductorhad deliberatelynot issued tickets.I find that the Tribunalwent wrongin findingfault with the InquiryOfficer. 12. The award is liable to be set aside on the ground that the Tribunal did not give opportunityto management to prove misconductby adducing evidence. The Tribunal was to decideareferenceunderSection10 of the IndustrialDisputesAct. It was not an applicationunder Section 33(2)(b)of the Act before the Tribunal.In an adjudicationof a referencemade under Section 10 of the I.D.Act, it was obligatoryon the Tribunal to ask both parties to adduce evidence.The Tribunalcouldnot have refusedto give opportunityto marragementfrom adducing evidenceon the groundthat it did not ask for one. Itis only when an applicationunderSection33 (2)(b) of the I.D. Act is made and the Tribuntrl holds that the enquiry was vitiated that the managementis supposedto ask for an opportunityto lead evidenceto prove misconductbefore the Tribunal. 13. The Tribunalin this case has.awardedfull back wages despitethe fact that the petitionerhad raisedindustrialdisputeafterfour and ahalfyearsof his termination.In AllahabadJalSansthanv. DayaShankarRaiandanother2005SCC(L&S)631, SupremeCourtheld: "In law in absolute terms cannot be laid down as to in which cases, and under what circumstances,full back wages can be grantedordenied. The Labour Court and/or IndustrialTribunalbefore which industrialdispute has been raised, would be entitledto grant the reliefhaving regardto the facts and circtimstancesofeach ca.se. For the .saidpurpose,severalfactors are required to be taken into consideration.It is not in dispute that Respondent1 herein was appointedon a adhoc basis; his setyiceswere terminatedon the groundofapolicydecision,asfar backason 24.1.1987. Respondent1hadfileda writtenstatementwhereinhe had not raisedany WP(C)No.l5794/2004 PageNo.9 ofPageNo.ll •J plea thathe had been sittingidle or hadnotobtainedanyotheremployment in the interregnum.The learnedcounselfor theappellant,in our opinion,is correct in submitting that a pleading to that effect in the written statement by the workmanwasnecessary.Notonly no suchpleading was raised, even in this evidence, the workman did not say that he continued to remain unemployed.In the instant case, the respondent herein had been reinstated from 27.2.2001. (para 6) In Japan Kumar Bhattacharya(2002) 6 SCC 41 this Court noticed that there was nopleadingor evidenceas to whethertherespondentthereinwas employedelsewhereduring the long interregnumand in thefact situation obtainingtherein, the appellantwas directedto pay50% ofthe back wages till the date of reinstatement. (Para 7) Yet again in Jarina Bee (2003) 6 SCC 141 this Court observed that the award offull back wages was not the naturalconsequenceofan orderof reinstatement, (para 8) In Rahmat Ullah (2003) 10 SCC92, a Bench of this Court held that as the respondenttherein was outofservicesince 1990as an ordinaryworker, he must have been working elsewhere to earn his livelihood: and there was no materialto .show that he was notgainfullyemployed,directiontopay 50% of the back wages wasmade, (para 9) In Ram A.shreySingh vRam Bux Singh (2003) 9 SCC 154, questioningthe orderof terminationaftersixyears was consideredto be one of thefactors for denying an order of reinstatementwith back wages to the workman. In thefact situationobtainingtherein,it was heldthatends ofjusticewouldbe subser-ved if the appellants therein were directed to pay a .sum of Rs.35,000/-by way of compensationin additionto what has already been paid( Seealso SonepatCoop. SugarMills Ltd. v. AJit Singh (2005) 3 SCC 232). (para 10) In Indian Rly. ConstructionCo. Ltd. (2003) 4 SCC 602 this Court merely stated.fSCC pp.593-94, para 30). "30. Question then would be how the conflictinginterestscan be best balanced. By an interim order dated 5.5.2000 the appellant was directedto reinstatethe re.spondentsubjectto an interimpaymentofRs,.3 lakhs towards the back wages. Directionsfor reinstatment does nto authomaticlalyentitle an employee to full back wages. In Hindustan Tin Works(P)Ltd. Vi'. Employees(1979)2SCC80 a three-JudgeBenchofthis Courtlaid down:(SCCp.86,para 11) '11. In the very nature ofthings there cannot be a straitjacket formulafor awardingreliefofback wages. All relevantconsiderationswill enter the verdict. More or less, it would be a motion addressed to the discretionofthe Tribunal.Full back wages would be the normal rule and .WP(C)No.l5794/2004 PageNo.lOofPageNo.ll •j 4 the parly objecting to it must establish the circumstancesnecessitating depaiture.Ac that stage the Tribunalwill exerciseits discretionkeeping in view all the relevantcircumstances.But the discretionmust be exercisedin ajudicialandjudiciousmanner. The reasonfor exercisingdiscretionmust be cogentand convincingand must appearon theface ofthe record. When itis saidthat .somethingis to be done within the discretionofthe authority, that .somethingis to be done accordingto the rules ofreason andjustice, according to law and not humour. It is not to be arbitrary, vague and fancifulbut legal and regular(seeSusannahSharp v. Wakefield1891 AC 173, AC at p. 179) (para 14) In Nicks(lndia)Tools (2004) 8 SCC 222 this Court again in the fact .situation obtaining therein refused to interfere with the discretionary jurisdictionexercisedby the High Courtparticularlyhaving regard to the fact that it wasfor thefirst time beforethe writ court, suchplea was raised by way ojadditionalevidence,whichhadbeen rejected,(para15) We have referredto certaindecisionsof this Court to highlightthatearlier in the eventofan or'derofdismissalbeingsetaside, rem.statementwithfull back wages was the usual result. But now with the passageof time, it has come to be realizedthatindustryis being compelledtopay theworkmanfor a period during which he apparentlycontributedlittle or nothing at all,for a period that was spent unproductively, while the workman is being compelledto go back to a situationwhich prevailedmany years ago when he was dismissed.It is necessaryfor us to developa pragmatic approach to problems dogging industrial relations. However, no just solution can be offered but golden mean may be arrived at. (para 16) 14. For the reasons staled above, I hereby set aside the award passed by the Tribunal. The writ petition is allowed. No orders as to costs. SHIV NARAYAN November 06,2006, rd WP(C) No.15794/2004 Page No.ll ofPageNo.ll ... ?