D.T.C. Vs. BRAHAM KUMAR

JUDGEMENT

(1.) THESE petitions can be disposed of by a common order as they both relate to the dismissal of the Respondent by the Petitioner. In WP(C) No. 2255/2004 the Petitioner assails the order dated 27th May, 2003 passed by the learned Trial Court whereas in WP(C) No.19103/2005 the Petitioner assails the award dated 18th September, 2004 passed by by the learned Trial Court whereby the termination of the Respondent was held to be illegal and thus he was directed to be reinstated with continuity of service, full back wages and all consequential benefits from the date of is illegal removal from the service.

(2.) LEARNED counsel for the Petitioner contends that the allegations against the Respondent are serious in nature regarding embezzlement of the money taken from 79 passengers and not issuing them tickets. At the time of search 10 passengers were found without ticket. Vide the impugned order dated 27th May, 2003 the approval application of the Petitioner under Section 33 (2) (b) ID Act was rejected merely on the ground that the passengers witnesses were not examined. Though the Trial Court took note of the decision of the Hon'ble Supreme Court in State of Haryana and another vs. Rattan Singh, 1977 (2) SCC 491 but held that the Petitioner has failed to establish from the judgment of the Hon'ble Supreme Court that the Hon'ble Supreme Court was of the view that the passengers statement was not required. Further the Petitioner failed to show any reason for not producing any primary evidence in the form of passengers/Complainant, thus disentitling it to lead evidence of checking staff. Reliance is also placed on Kishori Lal vs. DTC, LPA No. 747/2010 decided on 11th March, 2001. Vide the impugned award dated 18th September, 2004 the learned Trial Court allowed the reference in ID No. 290/1996 holding that since the approval application of the Management under Section 33 (2) (b) of the ID Act in OP No. 57/93 was dismissed the workman is deemed to continue in service and is entitled to get full back wages in view of the decision of Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd. vs. Ram Gopal Verma and others, AIR 2002 SC 643. It is contended that the impugned award dated 18th September, 2004 is ex-facie illegal as there is no res-judicata in proceedings under the ID Act. Reliance is placed on DTC vs. Gyan Chand (ex-conductor), W.P.

(3.) IN the present case a perusal of the Trial Court record show that AW1 Shri R.K. Sharma stated in his affidavit that he was working as Assistant Vigilance INspector. On 7th November, 1991 when he along with Raj Singh, Kanhya Lal, S.N. Mittal ATI and S.K. Tyagi, ATI was on duty of checking. The bus was checked at Gurgaon at 20.45 hours. Though the workman had taken fare from the 79 passengers but he did not issue tickets to them and when confronted he admitted his fault and surrendered unpunched tickets to them. The statements of the passengers were recorded which were signed by the Respondent as well. He also identified the signatures of his colleague on the challan. The copies of the bills, reports, challan, unpunched tickets were exhibited as Ex. AW1/1 to Ex. AW1/5. IN the cross-examination, this witness stated that he did not check the cash with the conductor at the time of checking and the Respondent did not receive fare in his presence. On the basis of this statement and the fact that the passengers witnesses, which were primary witnesses, were not examined the Trial Court came to the conclusion that there was no evidence to prove the misconduct and hence dismissed the approval application of the Petitioner. This decision of the learned Trial Court is contrary to the law laid down by the Hon'ble Supreme Court in State of Haryana vs. Rattan Singh (supra). Thus, the same is liable to be set aside. It is ordered accordingly.