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2008 DIGILAW 843 (DEL)

BILORI v. DELHI TRANSPORT CORPORATION

2008-09-03

S.N.AGGARWAL

body2008
S.N. Aggarwal, J. The petitioner is a sacked employee of DTC and he has filed the present writ petition seeking setting aside of award dated 21.07.2005 passed by the Industrial Tribunal-II, Karkardooma Courts, Delhi in I.D. No. 61/2001 and for directions to the respondent to reinstate him in service with all consequential benefits. 2 The brief facts of the case giving rise to this petition are that the petitioner was working as Conductor with the Delhi Transport Corporation (respondent herein) and on 04.10.1988 he was performing his duty in bus No. 9467 of route No. Delhi to Ballabgarh. Sh. Jagan Nath Parshad, T.I. along with his staff checked the bus at Y.M.C and found that group of three passengers was without ticket. The petitioner had taken Rs.4.50 Paise @ Rs.1.50 Paise per ticket from those passengers but had not issued them ticket from Old Faridabad to Ballabgarh. The petitioner admitted his fault and issued three unpunched tickets No. 25-27518 to 25-27520 of Rs.1.50 paise each. The statements of the passengers were recorded by the checking staff but the conductor declined to counter sign the same. The petitioner is alleged to have committed irregularities which amount to misconduct within the meaning of para 2(II) and 19 (b)(f)(h) and (m) of the standing orders governing the conduct of DTC employees. The petitioner was, therefore, chargesheeted and a departmental enquiry was conducted against him. The petitioner had participated in the departmental enquiry held against him. The Enquiry Officer gave his finding against the delinquent petitioner and thereafter he was served with the Show Cause Notice and his services were terminated w.e.f. 05.05.1989. The petitioner was, therefore, chargesheeted and a departmental enquiry was conducted against him. The petitioner had participated in the departmental enquiry held against him. The Enquiry Officer gave his finding against the delinquent petitioner and thereafter he was served with the Show Cause Notice and his services were terminated w.e.f. 05.05.1989. 3 Because an industrial dispute concerning DTC workers” demand for implementation of IVth Pay Commission”s report was pending adjudication before the Industrial Tribunal at the time of removal of the respondent from service, the respondent filed an application under Section 33(2)(b) of the Industrial Disputes Act, 1947 for approval of the Industrial Tribunal for its decision for removal of the petitioner from service.” The Industrial Tribunal vide its order dated 20.01.2000 passed in OP No. 36/89 granted approval under Section 33(2)(b) of the Industrial Disputes Act for removal of the petitioner from service.” The petitioner, thereafter, raised an industrial dispute only on the quantum of punishment and said dispute was referred by the Secretary (Labour), Government of National Capital Territory of Delhi for adjudication by the Industrial Tribunal/Labour Court vide Reference No. F.24(4713)/2000-Lab./3138-42 dated 06.02.2001. The terms of reference were to the following effect:- “ Whether the punishment imposed upon Sh. Bilori by the management vide their orders dated 05.05.1989 and/or unjustified and if so, to what relief is he entitled and what directions are necessary in this respect”“ 4 The Industrial Tribunal vide its award dated 21.07.2005 passed in I.D. No. 61/2001 held that the punishment imposed upon the petitioner/workman vide order dated 05.05.1989 is not illegal and unjustified and the reference was answered accordingly. 5 Being aggrieved by the aforementioned award of the Industrial Tribunal, the petitioner has filed the present writ petition seeking setting aside of the impugned award and for directions to the respondent to reinstate him in service with all consequential benefits. 6 Mr. Anuj Aggarwal, learned counsel appearing on behalf of the petitioner had argued that the Industrial Tribunal has committed irregularity in not going into the question as to whether the charges against the petitioner are proved or not. According to the learned counsel, it was obligatory upon the court below to examine whether the enquiry held against the petitioner was proper or not and also to go into the question as to whether the charges against him have been proved or not proved. According to the learned counsel, it was obligatory upon the court below to examine whether the enquiry held against the petitioner was proper or not and also to go into the question as to whether the charges against him have been proved or not proved. The learned counsel appearing on behalf of the petitioner has also argued that the learned Industrial Tribunal has committed an error of law by merely relying on the order dated 20.01.2000 passed by the Industrial Tribunal in OP No. 36/1989 granting approval to the respondent under Section 33(2)(b) of the Industrial Disputes Act, 1947 for removal of the petitioner from service. The contention of the petitioners learned counsel was that till the court below independently arrive at a conclusion that the charges against the petitioner were proved by the Management only then the question of proportionality of punishment could have been examined by the Labour Court. The counsel appearing on behalf of the petitioner has further argued that looking into the minor amount involved in the case, punishment of removal from service passed by the respondent is not proportionate to the gravity of misconduct alleged against him. 7 Per contra, Mr. G.S. Chaturvedi, appearing on behalf of the respondent had argued that since the petitioner/workman has not challenged the order of Industrial Tribunal passed under Section 33(2)(b) and has not raised an industrial dispute with regard to the correctness of the findings of the Enquiry Officer, it is not open now for the petitioner to make a grievance against the findings of guilt recorded against him by the Enquiry Officer which has been confirmed by the Industrial Tribunal while granting approval to the respondent under Section 33(2)(b) for removal of the petitioner from service. Mr. Mr. Chaturvedi appearing on behalf of the respondent has further argued that the petitioner even in the past was found guilty of misconduct of identical charges and in this regard, he has referred to contents of Annexure R-1 at page 76 of the paper book which reveals that even in the past, the petitioner was punished on five occasions for collecting fares from the passengers and not issuing tickets to them and that his past conduct was taken into account by the Management in deciding to remove him from service when he was caught by the checking staff for the 6th time in collecting fares from the passengers and not issuing tickets to them. 8 I have carefully considered the rival submissions advanced by the counsel for both the parties and have also perused the record. 9 On a perusal of the record, it may be seen that the Industrial Tribunal vide its order dated 03.08.1999 passed in OP No. 36/1989 has held that the enquiry into the charges held against the petitioner was legal and valid being held according to the principles of natural justice. It was on the basis of the said findings contained in the order of the Industrial Tribunal dated 03.08.1999, approval under Section 33(2)(b) was granted by the Industrial Tribunal vide its order dated 20.01.2000 to the respondent for removal of the petitioner from service. It may be noted that the petitioner has not challenged the finding recorded by the Industrial Tribunal in its order dated 03.08.1999 on the enquiry issue. It appears that the petitioner has raised the industrial dispute restricted only to the quantum of punishment after about 11 years of his removal from service. The industrial dispute was raised by him in the year 2001 though he stood removed from service about 11 years ago w.e.f 05.05.1989. The dispute that was raised by the petitioner was only with regard to the quantum of punishment. Hence I do not find any substance in the argument advanced on behalf of the petitioner that it was obligatory upon the Industrial Tribunal while dealing with the reference on the point of quantum of punishment to go into the question of legality and validity of the enquiry proceedings. The proportionality or dis-proportionality of punishment depends upon the gravity of misconduct proved against the delinquent employee. The proportionality or dis-proportionality of punishment depends upon the gravity of misconduct proved against the delinquent employee. In the present case, the petitioner was working as a conductor with Delhi Transport Corporation and it was expected of him that he would maintain highest degree of integrity and trustworthiness. The petitioner has defied confidence of the respondent by taking fares from group of three passengers and not issuing tickets to them. The petitioner was punished for similar offence on five occasions even in the past and this is apparent on a perusal of Annexure R-1 to the counter affidavit at page 76 of the paper book. It is not only the amount involved but the mental set up, the type of duty performed and similar relevant circumstances which go into the decision making process while considering whether the punishment is proportionate or disproportionate. If the charged employee holds a position of trust where honesty and integrity are in-built requirements of functioning, it would not be proper to deal with the matter leniently. Misconduct in such cases has to be dealt with iron hands. In the present case, I am of the considered opinion that the punishment of removal from service passed by the respondent against the petitioner for his proved misconduct by no means can be said to be disproportionate. Reference is made to the judgment of the Honble Supreme Court in U.P. State Road Transport Corporation, Dehradun Vs. Suresh Pal (2006) 8 SCC 108 . 10 Under the circumstances, I do not find any infirmity or illegality in the impugned award of the court below which may require an interference by this Court in exercise of its writ jurisdiction under Article 226 of the Constitution. In view of the above, I do not find any merit in this writ petition which fails and is hereby dismissed but in the circumstances with no order as to costs.