D.T.C. Vs. RAJ KUMAR

JUDGEMENT

(1.) THESE writ petitions are being disposed of by this common judgment as the facts in both the petitions are common and the second one is a sequel to the first one. Respondent No.1 Raj Kumar was working as a conductor with the Petitioner during the period from January 1992 to May 1992. He unauthorizedly absented from duty for a total period of 66 days. Consequently a charge-sheet dated 21st July, 1992 was issued to him on account of his unauthorized absence from duty. The enquiry officer held that the charges were proved against Respondent No.1. On 8 th April, 2002 the Management issued a show cause notice to Respondent No.1 as to why he be not removed from services and finally on 22 nd October, 1992 the punishment of removal from service was imposed on the Respondent No.1. Due to pendency of the disputes relating to the general demands, the Petitioner filed an application before the Industrial Tribunal under Section 33(2)(b) of the Industrial Disputes Act, 1947 (in short the ID Act) for seeking approval of its action vide OP No. 501/1992. Learned Tribunal On 25 th framed the preliminary issue on the validity of the enquiry. September, 2002 the learned Tribunal held that the conclusion drawn by the enquiry officer that Respondent No.1 was guilty was without any basis, contrary to the record available before him and violative of the principles of natural justice. Thus, the enquiry proceedings were held to be vitiated. This order dated 25th September, 2002 of the Tribunal has not been challenged by the Petitioner. Thereafter, the learned Trial Court on the basis of the pleadings of the parties framed the following three issues:

(2.) THE Petitioner and Respondent No.1 led their evidence and on the basis of the evidence adduced before it, the learned Tribunal vide the impugned order dated 27th March, 2003 in WP(C) No. 3750/2004 came to the conclusion that the Petitioner has failed to prove the alleged misconduct of Respondent No.1, and thus the application of the Petitioner under Section 33(2)(b) of the ID Act was dismissed. In the meantime Respondent No.1 raised an industrial dispute challenging the removal from service on which a reference was made by the appropriate Government on the following terms:

(3.) LEARNED counsel for the Petitioner challenging the order dated 27 th March, 2003 contends that by the said impugned order it was held that availing of leave without pay does not amount to misconduct which is contrary to the decision of the Supreme Court in DTC Vs. Sardar Singh AIR 2004 SC 4161. The Petitioner having proved the misconduct by leading evidence, this order be set aside or be remanded back in terms of the decision of this Court in DTC Vs. Satish Kumar in WPC 3857/2003 decided on 11th December, 2007. Challenging the impugned order dated 25th November, 2004 in WPC 16896/2006 it is contended that the finding of the learned Tribunal that no documents were supplied to the delinquent workman during the enquiry, no proper examination of the witnesses was carried out during the enquiry proceedings and that the enquiry officer did not grant opportunity to examine witnesses to prove the defence of the workman are wholly erroneous & contrary to the evidence on record. The workman did not avail the opportunity to cross-examine the management witness. On specifically opportunity being granted to cross-examine the ATI Inder Singh, the Respondent No.1 stated that he did not want to ask any questions. He further stated that his reply to the charge-sheet be treated as his statement. He did not produce any defence evidence. Further, while issuing charge-sheet, specific opportunity was given to him to inspect the records. Thus, the findings of the learned Tribunal are contrary to the record. There is no violation of the principles of natural justice and hence the impugned order dated 25th November, 2004 is required to be set aside.