DELHI TRANSPORT CORPORATION Vs. RAM KISHAN

JUDGEMENT

(1.) BY this petition filed under Article 226 of the Constitution of India the petitioner DTC seeks quashing of the order dated 22.9.1999 and 13.2.2002 passed by the learned Industrial Tribunal. This order shall also dispose of another W.P. (C) No. 4618/2003 filed by the workman thereby seeking enforcement of the same very order whereby the application of the respondent DTC under Section 33(2)(b) of the ID Act was rejected. Counsel for the petitioner in WP(C) No. 7546/2006 submits that simply because of the fact that the petitioner failed to prove misconduct on the part of the respondent, should not have resulted into dismissal of its application moved under Section 33(2)(b) of the ID Act. Contention of the counsel for the petitioner is that once the petitioner had placed on record material documents sufficient enough to point out misconduct on the part of the respondent, then simply because of the fact, that for certain reasons the petitioner could not produce its witness for cross -examination would not have resulted into rejection of its application. Contention of counsel for the petitioner is that in view of the judgment of the Apex Court in Delhi Transport Corporation v. Sardar Singh : AIR 2004 SC 4161 the initial onus is on the workman to prove that he was not negligent in performing his duties.

(2.) REFUTING the said submissions made by the counsel for the petitioner, Mr. Sube Singh, counsel for the respondent workman submits that it was the petitioner who had filed the said application leveling charges of misconduct against the respondent in terms of chargesheet dated 16.7.1993 and therefore, the initial onus was on the petitioner management to have proved misconduct on the part of the respondent, and then, only the onus could have been shifted upon the respondent workman to give evidence in rebuttal. The counsel relied on decision in Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd. v. Ram Gopal Sharma and Ors. : AIR 2002 SC 643 to contend that in the event, the petition of DTC is dismissed then he is eligible for the entire backwages from the date of the dismissal order.

(3.) THE petitioner management had filed an application under Section 33(2)(b) of the ID Act so as to seek approval of the Tribunal for its decision to remove the respondent from his services. It was stated in the application that the respondent had committed misconduct as he remained absent from duty w.e.f. 3rd May, 1993 till the date of issuance of the chargesheet and such a misconduct is in clear violation of para 4 (i) and (II) 19 (h) & (m) of the Standing Orders governing the conduct of the DTC Employees. An enquiry was conducted by the petitioner and the enquiry officer found the respondent guilty of misconduct. Based on the enquiry report, a show cause notice was served upon the respondent by the Disciplinary Authority but no reply thereto was submitted by the respondent, which led the Disciplinary Authority to pass an order of removal of the respondent from service. One month salary was also sent to the respondent by way of money order and on the same very date the present application under Section 33(2)(b) of the ID Act was moved by the respondent. Indisputably, once the application was moved under Section 33(2)(b) of the ID Act then initial onus was on the petitioner to have proved the case of misconduct against the respondent. The petitioner cannot take shelter under the plea that by filing photocopies of certain documents on record such an onus was discharged. Perusal of the record clearly shows that sufficient opportunities were given to the petitioner to lead evidence, but it failed to avail the same and ultimately on 22.9.1999 the evidence of the petitioner was closed. One Mr. Sahib Singh had filed his affidavit on behalf of the petitioner management but he did not present himself for his cross -examination on various dates given by the Tribunal. Absence of the said witness led the Court to close the evidence of the petitioner vide order dated 8.11.2001. On the other hand the respondent workman filed his affidavit as his examination -in - chief and the respondent was also not cross -examined by the petitioner. It is evident that not only the petitioner itself failed to lead any evidence so as to prove misconduct on the part of the respondent but even the petitioner failed to cross -examine the respondent workman who proved his case in examination -in -chief. In such circumstances, the Tribunal rightly observed that there is no evidence adduced from the side of the petitioner to prove the alleged misconduct on the part of the respondent. It would be relevant to reproduce para 13 and 14 of the impugned Award, which are as under: