DELHI TRANSPORT CORPORATION Vs. SHREE KUMAR

JUDGEMENT

(1.) The present writ petition is filed by the petitioner corporation aggrieved by the orders dated March 17, 2003 and August 8, 2002 passed by the Industrial Tribunal No. II in O.P. No. 125/94 on the basis of an application filed under section 33(2)(b) of the Industrial Disputes Act, 1947.

(2.) The aforesaid application was filed by the Corporation seeking approval of its decision to remove the respondent No.1 from service. The allegation against the respondent is that he took full fare charges from the passengers for their journey but did not issue them tickets and, therefore, he misconducted himself. Accordingly, a charge sheet was issued to the petitioner on the basis of which a domestic enquiry was held and in the said domestic enquiry the respondent was found guilty. Consequently, the disciplinary authority removed the respondent from service of the corporation by order dated July 11, 1994. Along with the said order of removal, the corporation remitted full one month wage to the respondent. After taking the aforesaid action, the aforesaid application was filed by the corporation seeking approval of their action. After receipt of the aforesaid application and on the basis of the pleadings of the parties, a preliminary issue was framed by the Tribunal on January 18, 1996 to the following effect:- "Whether the applicant held a legal and valid enquiry against the respondent ?"

(3.) Evidence was led and thereafter an order was passed by the Tribunal on August 8, 2002 whereby the Tribunal held that the enquiry was vitiated for non-compliance of natural justice. The Tribunal observed that during the cross-examination the witness produced by the management admitted that except the report of the checking staff no document was given to the respondent as demanded by him and also that no list of documents was supplied to the respondent and that except the entrustment letter no separate written order was issued in favour of Mohd. Irfan who conducted the enquiry. The Tribunal held that from the findings recorded by the enquiry officer on April 10, 1994 it could be deduced that the enquiry proceeded ex parte as the workman was called on February 10, 1993 but he did not appear and thereafter the enquiry officer recorded that the workman did not want to say anything and closed the defence of the workman. Before the Tribunal the workman filed an affidavit deposing that the principles of natural justice were not followed during the enquiry as the enquiry officer did not allow him to take the assistance of one B.L. Babbar. His further deposition was that the enquiry officer acted as a prosecutor and the enquiry report suffers from legal and procedural lacunae, and that the driver and the ticketless passengers denied the allegations against him. The learned Tribunal accepted the submissions of the respondent as correct from the perusal of the case and observed that no effort was made to produce the enquiry officer before the Tribunal and in such circumstances the secondary evidence of Devender Swaroop Sharma, Disciplinary Authority, produced by the Corporation in place of that of enquiry officer, Mohd. Irfan, was not found to have any bearing. The Tribunal further held that it was evident from the findings of the enquiry that sufficient opportunity was not given to the respondent. Consequently, the aforesaid issue was decided against the corporation and the enquiry was held to have been vitiated. By the said order the Tribunal also framed three issues and ordered that further evidence would be recorded. Pursuant to the said order evidence was recorded.