D T C Vs. JAGDISH PRASAD

JUDGEMENT

(1.) By these petitions the Petitioner seeks quashing of the order dated 27 th May, 2003 dismissing the application of the Petitioner under Section 33(2)(b) of the Industrial Disputes Act (in short 'ID Act') for approval of its action to remove the Respondent from service and the award dated 10 th September, 2004 holding that the service of the Respondent was illegally terminated and that the Respondent would be deemed to be continuous in service from the date of his removal and entitled to all the benefits as stated in the claim.

(2.) Learned counsel for the Petitioner contends that in a domestic enquiry it is not essential to examine the passenger witnesses and the finding of the learned Tribunal rejecting the application under Section 33(2)(b), I.D. Act on the ground that the passenger witnesses were not produced is wholly illegal. Reliance is placed on DTC Vs. Shree Kumar and Anr., 2004 5 AD(Del) 597. Further, there is no allegation of victimization or resort to unfair labour practices by the Respondent. The Petitioner was permitted to lead evidence and report of inquiry in this regard was filed which is prima facie evidence and was duly proved. The Respondent during enquiry admitted his signatures on the statements of the passengers recorded by the enforcement team on 29 th July, 1992. Undue importance has been given by the learned Tribunal to the fact that passenger witnesses have not been examined. It is stated that sufficient evidence was laid before the Tribunal to prove the misconduct of the Respondent and thus the impugned orders/award be set aside.

(3.) Learned counsel for the Respondent on the other hand contends that the Petitioner at this stage cannot raise a plea regarding validity of the inquiry report as the same was set aside vide order dated 9 th September, 2002 and further there is no challenge to the same in the present petition as the said order has not even been annexed and no pleadings or grounds have been urged in this regard. Even otherwise the inquiry report was correctly held to be perverse vide order dated 9 th September, 2002 as it did not discuss the evidence of independent witness Shyam Lal who appeared during the inquiry and stated that the enforcement team threatened them to implicate and asked them to sign as directed. Reliance is placed on C.P. Govil v. Union of India, 1965 1 DLT 16to urge that if material evidence is ignored then the finding of the inquiry is perverse and vitiated. Further, during the proceedings before the Industrial Tribunal only one witness was produced i.e. AW2 Sukh Lal who only proved the inquiry proceedings. He admitted that he was not the reporter in the case. The Respondent himself entered in the witness box and denied all the allegations made against him. The Respondent further deposed that Rs. 113.70 was the balance of the passengers and that was deposited in the cash section on 20 th July, 1992 with remark, and further Rs. 56 in the bag belonged to the Respondent. It is stated that the passengers are the primary witnesses and they having not been examined before the Industrial Tribunal, the Tribunal was justified in holding that there was no evidence against the Respondent. Reliance is placed on Neeta Kaplish Vs. Presiding Officer, Labour Court and Anr., 1999 AIR(SC) 698and Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd., Vs. Shri Ram Gopal Sharma and Ors., 2002 AIR(SC) 643There is no infirmity in the impugned order.