Full Judgment Text
Digitally Signed By:DEVANSHU
JOSHI
Signing Date:09.12.2021 12:30:10
$~11 & 12
* IN THE HIGH COURT OF DELHI AT NEW DELHI
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Date of Decision: 24 November, 2021
+ W.P.(C) 6748/2003
ASHOK KUMAR ..... Petitioner
Through: Mr. G. S. Charya, Advocate (M:
9810083261)
versus
D.T.C. & ORS. ..... Respondents
Through: Ms. Manisha Tyagi, Advocate (M:
9811007270)
12 AND
+ W.P.(C) 8186/2004
DELHI TRANSPORT CORPORATION ..... Petitioner
Through: Ms. Manisha Tyagi, Advocate.
versus
ASHOK KUMAR ..... Respondent
Through: Mr. G. S. Charya, Advocate.
CORAM:
JUSTICE PRATHIBA M. SINGH
Prathiba M. Singh, J. (Oral)
1. This hearing has been done in physical Court. Hybrid mode is
permitted in cases where permission is being sought from the Court.
2. These two petitions relate to the Workman, Sh. Ashok Kumar who
was employed as a foreman with the Delhi Transport Corporation
(hereinafter “DTC”) . He joined service in 1982 and was made a permanent
employee in 1983. An incident occurred in August, 1991 due to which he
was initially suspended and thereafter terminated. A disciplinary enquiry
was conducted between 1991-1992 and as per the report of the disciplinary
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authority dated 25 February, 1992, the termination was given effect to.
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JOSHI
Signing Date:09.12.2021 12:30:10
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DTC issued the removal order on 24 April, 1992 as his conduct was held to
amount to misconduct under the standing orders of DTC, and filed an
application under Section 33(2)(b) of the Industrial Disputes Act, 1947
( hereinafter “ID Act” ) before the Industrial Tribunal, for approval of the
Workman’s removal.
3. The said petition being O.P . No.168/92 titled DTC v. Sh. Ashok
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Kumar was dismissed in a two-stage process. First, vide order dated 16
August, 2002, the preliminary issue of whether the enquiry against the
respondent was according to the principles of natural justice or not was
decided against DTC. It was held that the enquiry was vitiated on account of
the absence of enquiry officer as a witness to prove the enquiry proceedings.
Thereafter, since DTC had sought approval on dismissal of the Workman
and the opportunity to lead evidence to prove the allegations on merit in case
the enquiry was set aside, three issues were framed and the said issues were
decided against the Management as per the impugned order of the Labour
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Court dated 2 March, 2003. The application filed by DTC under Section
33(2)(b) was dismissed and approval sought by them was rejected. W.P.(C)
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8186/2004 filed by the DTC challenges this award dated 2 March, 2003.
4. Concurrently, W.P. (C.) 6748/2003 has been filed by the Workman
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challenging the earlier removal order dated 24 April, 1992.
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5. Firstly, this court has perused the order dated 16 August, 2002 by
which the enquiry was held to be vitiated. The finding in the said order read
as under:
“3. On the basis of pleading following preliminary issue
was framed on 11.1.94:
“Whether the applicant held a legal and valid enquiry
against the respondent according to principles of
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JOSHI
Signing Date:09.12.2021 12:30:10
natural justice?”
4. To prove the allegations the applicant
produced AW-1 Sh. Suresh Chand who filed his
affidavit Ex. AW1/A and referred the documents Ex.
AW1/1 to Ex. AW1/3. In his affidavit he deposed that he
had been working as Junior Clerk (Typist) with Sh.
Mohd. Irfan, enquiry officer and he happened to be
present during the enquiry proceedings. The enquiry
proceedings started on 22.1.91 in pursuance of the
charge sheet dated 30.8.91, Ex. AW1/1 and due
opportunity was given to the respondent and the
proceedings are Ex. AW1/2 and the finding is Ex.
AW1/3. He came into the witness box as secondary
evidence as Sh. Mohd. Irfan, enquiry officer has
left/resigned the services and whereabout are not
known. He was cross examined. During the cross
examination he admitted that he could not say about the
charges on which basis the proceeding were initiated
and he can identify the signatures only. He could not
say how long the proceedings continued.
5. On the other hand the respondent entered into
the witness box as RW-1 and filed his affidavit Ex.
RW1/A in which he deposed that enquiry conducted was
against the principle of natural justice. He was not
given any opportunity to defend his case or to cross
examine the witnesses.
6. In the nut-shell the applicant did not have the
enquiry officer to prove the enquiry proceedings. The
witness produced by applicant AW-1 Shri Suresh Chand
has just proved the signatures on the enquiry
proceedings which vitiated the enquiry proceedings.
Consequently, the enquiry proceeding are hereby held
to be vitiated and the issue is decided against the
applicant.”
6. A perusal of the above order shows that the only ground on which the
enquiry has been vitiated is the non-production of the enquiry officer.
According to ld. Counsel for DTC, the enquiry officer had left the service of
DTC and could not be traced and he could therefore not be produced.
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JOSHI
Signing Date:09.12.2021 12:30:10
However, this by itself would not vitiate the enquiry. DTC had led the
evidence of the witnesses and the Workman had also led his evidence. The
opportunity for cross-examination was also given. Thus, the enquiry report
could not have been rejected merely on this ground. The non-production of
the Enquiry Officer cannot render the enquiry non-est . The same can be
proved by other methods. In this case, the stenographer working in the DTC
was produced. It cannot be presumed that the report is a farce merely
because the Enquiry Officer was not produced.
7. Mr. Charya, ld. Counsel for the Workman, fairly concedes that merely
because the Enquiry Officer was not produced, the enquiry cannot be held to
be vitiated. This is also the settled position in law. Accordingly, the order
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dated 16 August, 2002 is not sustainable and the same is set aside.
8. For further adjudication in O.P . No.168/92, the other three issues
which were framed to be considered by the Labour Court are as under:
“1) Whether the respondent committed the mis-
conduct as alleged against him?
2) Whether the petitioner remitted full one
month’s wage to him as per provision of Section 33(2)
(b) of I.D. Act?
3) Relief.”
nd
9. The said issues were decided by the Labour Court vide order dated 2
May, 2003, where it was held that since the onus was on DTC to prove
misconduct and DTC did not produce any evidence to prove the same, the
first issue was decided against DTC. Ultimately, the approval sought by
DTC was rejected, dismissing the application under Section 33(2)(b) of the
ID Act on this ground.
10. In the opinion of this Court, since the Enquiry Report is held to be
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JOSHI
Signing Date:09.12.2021 12:30:10
valid, in order to prove these three issues, the evidence which was adduced
in the enquiry during the enquiry proceedings as also before the Labour
Court can be considered.
11. In so far as evidence in the enquiry proceedings is concerned, a
perusal of the evidence on record shows that the allegations were made by
one Sh. Ranjit Singh, Assistant Foreman against the Workman. The said
allegations were four in number and to the following effect:
“On 11.8.91 your duty was in the depot work shop
between 21:00 hrs to 5:30 hrs during which you
committed following irregularities:
1. You forcibly got your attendance marked by Sh.
L.N. Benket foreman at 22.15 O’clock in drunken
position and told to the assistant foreman Sh. Ranjeet
Singh sitting there that if you give evidence against me,
I will teach you a lesson outside the depot.
2. You held him by his neck and abused him.
3. In the presence of body fitter Sh. Vijay Kumar,
you beat the assistant foreman in the body section due
to which, he received injury in his hand and at the left
ear.
4. Security Hawaldar Sh. Mahendra Singh took at
one Paua (liquor) from your pocket, which was half
empty.
By doing so, you have misbehaved with higher officer
and violated the rules and has breached the discipline.”
12. In respect of the above allegations, witnesses had deposed before the
enquiry officer. Mr. Ranjit Singh, who is the Complainant himself deposed,
and was also cross-examined.
13. In terms of the independent witnesses, Sh. L. N. Venkat, Foreman,
who was the eye witness was examined. One Sh. Ran Singh, the Assistant
Foreman was also cross-examined. A perusal of their evidence shows that
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Digitally Signed By:DEVANSHU
JOSHI
Signing Date:09.12.2021 12:30:10
though Sh. Ranjit Singh had made various allegations including of physical
manhandling and abuse, the other witnesses including the Foreman did not
confirm any of these allegations. The only confirmation is of the occurrence
of the incident, the words used by the Foreman are “ आपस में बातचीत हुई कुछ
वारदात हुई ” . The relevant extract is as under:
“State of Sh. L.N.Venkat foreman Batch No. 9082.
On 11.8.91 my duty was in the night from 21.00
O’clock to 5.30 O’ clock. In the evening after marking
the attendance of assistant fitter Ashok Kuma, I marked
his duty with fitter Manwal Lal. After sometime, there
was some talk between Asst. Fitter Ashok Lal and
Assistant foreman Ranjeet Singh and there was hot
verbal arguments between both regarding same
enquiry. After that we pacified both of them they went
for there respective work. Around 23.30 O’ clock some
quarrel took place between assistant fitter Ashok Kumar
and assistant foreman Ranjit Singh, Sh. Ranjit Singh
called security guard Sh. Mahendra Singh. Thereafter,
also reached to body section and again pacified both of
them. After sometime around 00.30 one bus which was
in break down condition standing in the line Ashok
Kumar was send to attend the same. Thereafter they
went in the morning and Sh. Ranjeet Singh was doing
his duty in the morning, there was also some hot
discussion between them thereafter, Assistant Foreman
Sh. Ranjeet Singh gave report of the incident. I have
nothing to say more.”
14. Therefore, the Foreman confirms that there was some
incident/dispute/tussle between the parties. Mr Ran Singh in his statement
also does not confirm the allegation. His statement is extracted below:
“Statement of Sh. Ran Singh assistant foreman
T.No.9101.
On 11.8.91 my duty was in night shift in the depot
work shop. After marking the attendance there was
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Digitally Signed By:DEVANSHU
JOSHI
Signing Date:09.12.2021 12:30:10
some verbal altercation between Ashok Kumar and
Ranjeet Singh. I told to Ashok Kumar to cool down.
After sometime I came to know that Ashok Kumer went
to Sh. Ranjeet Singh and told him something. Sh.
Ranjeet Singh called the duty officer and the security
guard who forbid him not to do so. Thereafter Ashok
Kumar and Ranjeet Singh started doing their work.
After some time, one report came for which Ashok
Kumar ana I went to attend and after that I went my
house after finishing my duty. Later they had another
enquiry to attend. I do not know what was the matter
between Ranjeet Singh and him. I have nothing to say
more.
Question ask by enquiry officer.
Q. Can you tell where were you at about 22.15 on
11.8.91 in the depot.
Ans. In the office of foramen.
Q. Can you tell about that Sh. Ashok Kumar
(Assistant fitter) being drunk coming in foramen office
and giving threat to Sh. Ranjeet Singh regarding giving
evidence.
Ans. I do not know about Ashok Kumar being drunk but
be gave threatening therefore quarrel took place.
Q. Whether assistant fitter Sh. Ashok Kumar
abused him.
Ans. No.
Q. Can you tell that you recovered a wine bottle
from the pocket of Sh. Ashok Kumar which was half
empty.
Ans. No.”
15. Sh. Ran Singh also denies that there was any verbal abuse by Mr
Ashok Kumar and denied any knowledge of whether the Workman was in
an inebriated state or not, although he does state that there was some threat
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JOSHI
Signing Date:09.12.2021 12:30:10
given by the Workman which led to the dispute.
16. Sh. Mahendra Singh, the Security Constable, also stated that when he
reached the place, there was no dispute and nobody affirmed to him that
there was any dispute.
“On this occasion difference witness Sh. Mahendra
Singh security Hawaldar B.No.450 is asked to give his
statement.
Statement of Mahendra Singh security hawaldar B.No.
450.
On 11.8.91 my duty was in night shift when I reached to
the place of incident I did not find any quarrel there I
collected all the people there and enquired from them
but no one told about the quarrel after sometime
foreman sent me outside to attend a breakdown case. I
have to not to say anything.”
17. Thus, it is not clear from the evidence on record that the allegations
were correct. Insofar as the evidence of Sh. Ran Singh is concerned, he also
confirmed that there was a ‘ dhamki’ which was given and a ‘ jhagda’ which
happened. This is the best evidence which has emerged even from the
enquiry report. Thus, the allegations which were raised against the
Workman have not been fully established.
18. Even the enquiry report itself holds that out of the allegations which
was made, the first two were partially proved, and one was fully proved.
Therefore, as per the evidence which has emerged from the enquiry report,
there is no independent corroboration of the fact that the Workman was also
under the influence of liquor. Under such circumstances, the question would
be as to whether the award is sustainable.
19. In view of the above evidence, even after taking into consideration the
Enquiry Report, the conclusions in the enquiry report that the allegations
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JOSHI
Signing Date:09.12.2021 12:30:10
were proved are not tenable. The impugned award dismissing the application
under Section 33(2)(b) is therefore been held to be correct but on different
grounds i.e. no proof of the allegations levelled. By virtue of this finding, the
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removal order dated 24 April, 1992 is also liable to be quashed.
20. This brings the Court to the prayer of the Workman in W.P.(C)
6748/2003 . The Workman herein has prayed for reinstatement and that he
should be allowed to perform his duties. He prays for the following reliefs:
“ (a) Quash the order of removal dated 24.4.1992
and hold that the order of removal is wholly invalid,
improper and inoperative;
(b) Issue directions to the respondents to reinstate
the petitioner and allow him to perform his duties.
(c). hold that the petitioner is entitled to full salary and
allowances for the intervening period from the date of
the impugned order of removal dated 24.4.1992 with all
consequential benefits continuation of service without
any break.”
21. In view of the quashing and setting aside of the impugned removal
order and the impugned award, the question is as to what should be the relief
to be granted in favour of the Workman. To ascertain the same, this Court
considers the following factors:
(i) The Workman had worked for DTC for a period of 9 years between
1982 and 1991;
(ii) The Workman superannuated in 2019;
(iii) During this duration, for a period of 3-4 years, the Workman is also
stated to have been engaged as a regular employee. Notably, vide
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order dated 22 January, 2010, DTC was directed to pay revised
wages as per the Minimum Wages Act, 1948 to the Workman from
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the date that he was regularised in service, i.e., 8 July, 2009.
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JOSHI
Signing Date:09.12.2021 12:30:10
Therefore, he received wages and worked as a regular employee
between 2009-2013.
(iv) For the remaining period between 2013 – 2019, he has been paid
amounts under Section 17B of the ID Act.
(v) A total sum of approximately Rs.14 lakhs has already been paid to
the Workman during this period.
(vi) From the record it emerges that the Workman has not been given
any remuneration for the period from 1992 to 2003, i.e., for a
period of 11 years.
22. This Court is of the opinion that the grant of back wages with all
benefits, at this stage, especially, when the Workman has superannuated and
also when he has not rendered any service would be inequitable. It is well-
established that lumpsum compensation may be granted in lieu of back
wages/reinstatement, depending upon the facts of the case at hand. In
Allahabad Bank and Ors. v. Krishan Pal Singh (SLP(C) No. 19648/2019,
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decided on 20 September 2021), recently the Supreme Court held:
“8. The directions issued by the High Court of
Allahabad for reinstatement were stayed by this Court
on 23.08.2019. During the pendency of these
proceedings, the respondent – workman had attained
age of superannuation. Though, there was strong
suspicion, there was no acceptable evidence on record
for dismissal of the workman. However, as the workman
has worked only for a period of about six years and he
has already attained the age of superannuation, it is a
fit case for modification of the relief granted by the
High Court. The reinstatement with full back wages is
not automatic in every case, where termination /
dismissal is found to be not in accordance with
procedure prescribed under law. Considering that the
respondent was in effective service of the Bank only for
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JOSHI
Signing Date:09.12.2021 12:30:10
about six years and he is out of service since 1991, and
in the meantime, respondent had attained age of
superannuation, we deem it appropriate that ends of
justice would be met by awarding lump sum monetary
compensation. We accordingly direct payment of lump
sum compensation of Rs.15 lakhs to the respondent,
within a period of eight weeks from today. Failing to
pay the same within the aforesaid period, the
respondent is entitled for interest @ 6% per annum, till
payment.”
23. A similar view has also been taken by the Supreme Court in Ranbir
Singh v. Executive Eng. P.W.D. (Civil Appeal No. 4483/2010, decided on
September 2, 2021), and followed by this Court in M/s Hindustan
Antibiotics Ltd. v. BN Singh (W.P.(C) 8297/2016 and CM APPL.
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867/2020, decided on 28 October, 2021).
24. Therefore, in the overall facts and circumstances of this case, keeping
in mind the amount which has already been paid under Section 17B of the
ID Act, of Rs.13,93,408/-, a lumpsum compensation for the intervening
period from 1992 to 1993 of Rs.10 lakhs is granted to the Workman.
25. In so far as the statutory benefits that the Workman is entitled to, viz.,
provident fund & gratuity, shall be released to the Workman within eight
weeks from today.
26. Both these petitions are disposed of in the above terms.
PRATHIBA M. SINGH
JUDGE
NOVEMBER 24, 2021 /Aman/MS
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