Management of Delhi Transport Undertaking versus Industrial Tribunal, Delhi and Another

Industrial Di.sputes Act, 1947 (14 of 1947), 1. 33(2)(b)-Whtth1r actwal, ,Ptzyment, of wagu ntctssary-T•ndtr II su/!icleot-Extcurivt ins1ruct1ori not ntad'e part o/ Standing Or"ers-Brrach of such Instruction whether, pu~i.shabl•-Charge nor sptclfying standing ordtrs ere .• ""htther de/ecrlvA

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H, a conduct.or in the employ of the appellant undenak.ing was found in posse.sion. of some used ticker• which was forbidden by Instruction No. 12 is.iued under Standing Order 2. After enquiry into his con~uct the charge w .. held proved and on the recommendation of the Enquiry Officer the. Traffic Manager proposed to dismiss hull.. A, this occurred duriog the pendency of an industrial dispute the undenaking by an application sought the approval of the Tribunal to the proposed order of dismissal un8er s. 33(2) (b) of the Industrial Disputes A:t, 1947. The Tribunal after bearing both the panics declined to accord its approval. It held that under Executive Instruction 12 no action could he taken because this Instruction was not made a pan of tho Standing Order and in the Standing Ordera governing the conduct of employees there was no provision that the possession of used tickets amounted to misconduct meriting dismissal. The Tribunal also held that there was no oatistactory proof that one mgnth"• wages were actually paid or could be treated as having been tendered prior to the coming into operation of the order of dismis.'!lll on October 31. 1961, as required by the proviso to s_. 33(2) (b) of the Act. HELO : (i) The Tribunal took too narrow a view of the Standing Orders. By vinuc of Standing Order 2 the Executive Instructions were issued and they are a code of principles and practice which every conductor has to follow rightly and invariably. arid there is a warning that a breach of any Instruction would expose the conductor to disciplinary nction as laid down in para 15(2) of the Regulations. Clause (m) of Standing Order .19 is sufficiently wide to cover a breach of Instructions issued under Standing Order 2. H was charged for breach of Executive Instruction 12 and this brought in the application of Standing Order 19(m) ·read with Standing Order 2 and paragraph IS ( 2) of the Regulation [ 1004 A-F] (ii) The paniculars in the charge were oufficient for H to undet"fland what be was charged with. The omission to mention the appropriate Standing Order or Regulations or •ections of the Act did not vitiate the charge and the Tribunal was in error in holding it to be defective. [1004 G-H] Laxml D.v/ Sugar Mills v. _Nand K/shor<,_ fl9S6] S.C.R. 916 and _Lord Krishna Sugar Mills Ltd._ v. _Union of India._ [1961] l S.C.R. 39 held inapplicable. (iii) The Tribunal was wreng in holding that there was no tender of wages. The proviso does not mean that the wages for one month 1bould have been actually paid because in many. c.... the employer can only tender tho amount before the dismissal but cannot force the employee to receive the payment before dismissal becomes effective. In tho present caae tender having been made within time there was no. failure to COUll>ty with s. 33(2)(b) ill 9ia ~. (1003 D-E] 998

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D.T.U. v. INDUSTRIAL TRIBUNAL (Hiduyatullah J.) 9,9

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A CIVIL APPELLATE 1UIHSDICTION : Civil Appeal No. 790 of 1963.

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Appeal by special leave from the Award dated April 20, 1962, o1 the Industrial Tribunal Delhi in O.P. No. 97 of 1961 and Complaint I.D. No. 305 of 1961, published in the Delhi Gazette B dated May 31, 1962.

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T. R. Bhasin, for the appellant.

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Goqal Singh, for respondent No. 2.

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The Judgment of the Court was d111ivered by .

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C Hidayatullab J. This appeal by special leave arises from a dispute between the Delhi Transport Undertaking and its employee Shri Hari Chand, a former conductor of one of its omnibusei;, now Assistant Traffic Inspector. By thfs appeal the Delhi Transport Undertaking impugns an award of tho Industrial Tribunal, Delhi dated April 20, 1962. The facts of the case are as follows: Hari D Chand was a conductor on omnibus No. 484 of route No. 21 on March 28, 1960. His omnibus was checked at Kashmirf Gate and ii was found that he had on his person five used tickets of 5 nP. and six used tickets of 10 nP. denominations. This was prohibited by cl. ( 12) of the Executive Instructions dealing with E the duties of Conductors, and exposed a guilty conductor to .the penalty of dismissal. After enquiry into this conduct the charge was held· proved and on the ~ecommendation of the Enquiry Officer the Traffic Manager proposed to dismiss him from October 31, 196.1. A! this occurred during the pendency of an industrial diBpllfe the Undertaking by an application dated October 28, 1961 F sought tke approval of the Tribunal to the proposed order of dismissal under s. 33(2) (b) of the Industrial Disputes Act, 1947. It appears that a memorandum was issued on October 30, 1961 iBforming Hari Chand of the order of dismissal and intimating him !Mt he was to be paid one month's wages as required bys. 33(2) (b) of the Act and that he should report immediately to tho G Aecounts Officer at the Head Office to receive the payment and to surrender his uniform, badge, identity card etc. Harl Chand either did not· appear to receive payment or when he appeared he was not paid the amount. There is some dispute on this fact to which we Shall refer presently .. In his turn he filed a compl!lint under s. 33{A) of the Act on November 3, 196r complaining inter alia H that his wages for one month had not been paid. The same day his one month's wages were remitted to him by the Undertaking by Money Order: The complaint of Harl Chand was dismissed by USup./65 - 2

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.(

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[1965] l S.C.R.

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SUPREME COURT REPORTS

1000

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the Tribunal and as there is no appeal against that order we need A not refer to it. The 'Fribunal after hearing the parties &c!med to accord its approval and dismissed the application. The Tribunal held' that action undei:_Executive Instruction No. 12 could not be taken because this ExecutiVe Instruction was not made a part of the Standing Order and in the Standing Orders governiqgAht! B conduct of employees in this Undertakl"ng there was no -provision that the possession of used tickets amounted to misconduct or an oEence on the part of the conductor. The Tribunal also held that there was no satisfactory proof that one month's wages were actually paid or could be treated as having been tendered prior to the coming into op,eration of the order of dismissal on Octob.er 31, c 1961, as required bys. 33(2) (b) of tbe Act. The Delhi Transport Undertaking qu~stions both these conclusions anQ. the appeal involves only these points.

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To understand the true legal position it is necessary to refer to some provisions of law Under .whlch the Delhi TranSp<>rt D Authority, wfiich was the same as the present Delhi Transport Undertaking, was establi;;oed and under whlch the Undettaking now functions. The De(hl Road Transport Authority Act, 1950 came into operation ftom March 27, 1950, By that Act a·slatutory Corporation uhder the name of the Delhi Road Transport E .Authority was constituted. Bys: 39 of tile Act it is provided that the Central Government may, after consultation with the Authority give general instructions, including directloii.s relating to the conditions of service and training of the employees, their wages and the reserves which. the Authority must -maintain etc. Under s. 53, power to make reguiations is conferred on the Authority F for the administration of th~ affairs of the Authority and !'or currying ouc. its lu;1ctions undey the Act and in particular for providing for the conditions of appointment and service of the servants of, the Authority other than some Pfficers specially named. The Authority made the D.R.T.A. (Conditions of Appointment and Service) Regulations, 1952, under the power G conferred. Part III of the Regulations lays down that all employees of the Authority shall perform such duties arid carry cut such functions" and exercise such powers as may be entrusted to them by the Authority or the General Manager or an Officer authorised· in this behalf subject to 'the. provisions of the Factories Act, the Motor Vehicles Act or any other Act or law that npy be appliH cable. 'Paragraph 15 of these' Regulations ·inter alia ,provides as folfl1WS :-·

,......

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D.T.U. v. INDUSTRIAL TRIBUNAL (Hidayatul/ah J.) 1001

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A

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"15. Conduct Discipline and Appeal-

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( 1) Conduct.-The Delhi Road Transport Authority may from time to time issue standing orders governing the conduct of its employeell. A breach of these orders will amount to misconduct.

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(2) Discip/ine.-(a) II'he following.penalties may, for misconduct or for a good and sufficient reason be imposed upon an employee of the Delhi Road Transport Authority :-

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(vii) Dismissal from the service of the Delhi Road Transport Authority. ..

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"

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D Under the powers conferred by paragraph 15 (I) Standing Orders were· framed. Standing Order 2 provides as follows :-

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"2. Duties of the Employee :-

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(i) All the employees of the Authdrity shall perfoam such duties and carry out such functions as may be

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F entrusted to them by· the Authority or the General Manager or any other authorised officer of the Auth:ority.

(ii)

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It is by virtue of this power that the Executive Instructions were issued and one set of instructions compiled in a little booklet is entitled Duties of a Conductor. Instruction No. 4 provides that each conductor shall be given Rs. I 0 in small change as bag money every day and· that the conductor is prohibited from carry-

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G ing any private cash with him on duty and that if he is required for some reason to carry some cash he. should report this cash on his way bill and get it countersigned by an official authorised to do so. The instruction goes on to say that any cash found on his person during the hours of duty which is not declared on his way bill would be considered as belonging to the Authority.

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H This is obviously a step to prevent dishonesty in issuing tickets, Instruction No. 12, under which Hari Chand was charged, then provides as follows :-

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SUPREME COURT REPORTS _ _ _ (1965] ! S.C.R.

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1002

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A

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"12. No ticket once issued is ever to be used again, no conductor shall pick up or have in his possession any used ticket. Any conductor found· in· possession of, or guilty of. issuing, used ticket will be liable to dismissal and even criminal proceedings against him."

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The charge framed against Harl Chand contained three counts: B the first was that he had WTongly punched a ticket given to a passenger;, the second that he possessed.'a sum of. 15 nP. which was not declared by hini and. which he had" earned dishonestly;. and lastly that on his person were used tickets as _already mentioned, in contravention of the provisions of Executive Instruction No. 12 quoted here. Harl Chand admitted the first count and c denied the other two or that he was in possession of the used tickets. The other two charges were dropped· and' he was found guilty of contravening the 12th instruction. quoted· above. We need not refer to the evidence which was led to establish that charge because we have only to see whether the order· refusing approval of his-dismissal.was.legal and proper. For this purpose D· we must assume that- the facr of. possession of. used tickets was established. ·

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The first question is whether the· application for approval -should have been rejected because wages' for one month were not .actually· paid before the order of dismissal as required by the E proviso to s. 33(2)(b) of the Act. It appears ti> us that Harl ·Chand' did·not purposely receive the wages offered to him by the . memorandum informing him of his dismissal" from ser"l'ice because he intended to make a complaint against the _Undertaking. He . filed his coniplaint and it was dismissed. The amount was offered to him on October 30, 1961. The Tribunal found some discreF pancies in;the registers-which created a doubt whether; the memo-· randum·was·at;aU issued•on.the 30th; There is,' however," no reason to-think;that it.was issued on the 31st. Harl Chand: himself.admitted.that he was present in the office on the 30th to receivepaYJil-ent but no one paid .any attention to him. His contention was that.he.received the order on the 30th at 5 P.M. after· office hours: G His·- signature with date is on: t)le duplicate copy of· the memorandnm.kept:in .the office :as receip_t. The.Tribunal was, therefore, WTOng;in·holding that there.was-no tender of wages as requiredby_s. 33-0f-the Industrial DisputesAct: The fact is clearly proved because the receipt to which we.have-referred,is·there to establish· it.. The tender; was thus ·made on the 30th before the orderr of: H dismissal .came into force ·and :the wages would have been -paid either on the 30th or the 31st had Harl Chand cared to receive -

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D.T.U. v. INDUSTRIAL TRIBUNAL (Hidayatul/ah I.) l 003

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.-

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A them. In any. event, the amount was sent to him by money order immediately afterwards and the application for the approval made three days prior to the date of dismjssal mentioned the fact that the amount was being paid to him. The proviso to s. 33(2) (b) on which reliance is placed reads :

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B "33.

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(1)

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(2)

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(a)

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(b)

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Provided that .no such workuian shall be discharged or dismissed, unless he has been· paid wages for one month and an application. has been made by the employer to the authority before which the proceeding is pending for approval of the action taken by the employer".

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D The proviso does not mean that the wages for one month should have been actually paid, because in many cases the employer can only tender the amount before the dismissal but cannot force the employee to receive the payment l:>efore dismissal becomes effective. In this case the tender was definitely made before the order of dismissal became effective and the wages would certainly have

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E been paid if Harl Chand lilld ~ed for them. There was no failure to comply with the provmon in this respect.

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(

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The Tribunal found the charge 4.efective for various reasons.

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It pointed out iJiat Harl Chand was not tried for the commission of any act of dishonesty or fraud as he had not issued used tickets

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F t<? any passenger but for possession of used tickets and this charge was not sufficient to make out an act of misconduct for which the

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. punishment of dismissal could be imposed. The Tribunal seems to be affected by ·one central fact, namely, that Executive Instruction No. 12 was not made a part of the Standing Orders. In its opinion under paragraph 1 S of the Regulations Standing Orders

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G governing the conduct of ·the empl9yees must first be issued, before . a bre~h of any instruction could amount to misconduct. Standing Orders were issued under para 15 ( 1) of the Regulations and they· stated that a breac;h would amount to misconduct and would make an employee - liable to disciplinary action as stated in ~ 15(2) of the Regulations but they did not lay

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H down. the duties Of .the conductor and they did not prohibit the possession of· used .tickets. The Tribunal, therefore, held that the charge of possessWn of· used tickets was not punishable unde1

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I .

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. 1004 . SUPREM¥ COURT REPORTS [1965] I S.C.R .

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the Standing Orders and the punishment of dismissal could not be approved.

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A

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In our opinion, the. Tribunal has taken too narrow a view of the Standing Orders:, ··standing Order No. 19 provides:

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"19. General Provisions :-Without prejudice to the provisions of the foregoing Standing Orders, the following acts of commission and omission shall be treated as misconduct:·

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(m) Any other activity not specifically covered above, but which is prima facie detrimental, to'the interests - of the organisation.".

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Standing Order 2,· which was quoted earlier, also provides that all. · employees of the Authority shall perform such duties and carry out such functions as may be entrusted to them by the Authority D or the General Manager or any other authorised officer of the Authority. By virtue of Standing Order 2, the Executive Instructions were issued and they are· a code of principles and practice which every conductor. has to follow rigidly and invariably and ,there is a warning that a breach of any Instruction would expose the conductor to disciplinary action as laid down in para 15(2) E · of the Regulations. ·· Clause (m) of Standing· Order 19, which has been quoted above, is sufficiently wide to cover a breach of Instructions ·issued under Standing Order 2. Hari Chand . was charged for ·breach of Executive Instruction No. 12 and this _brought. in the application of Standing 'Order ·19(m) read with Standing Order 2 ana paragraph 15(2) of the Regulations. F

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· Mr. Gopal Singh contended on the authority of Laxmi Devi Sugar Mills v. Nand Kishore Singh(¹ ) and Lord Krishna Sugar Mills Ltd., and Anr. v. The Union of India and Another(') that the charge could not be amplified by the inclusion of a reference to the Standing Orders 2 and· 19 and Regulation 15. These G rulings have no applicaiion because here the facts were quite sufficient to put Harl Chand on defence and the omission to mention the appropriate Standing Order, Regulations· and the sections of the Act did not amount to such a flaw in the charge as would make room for the application of these rulings. No additional fact was necessary to be stated and the particulars were sufficient JI . for Harl Chand to understand what he was charged with. In our (l) (19$6j S.C.R. 916. (2) (1961j I S,C,R. 39.

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D.T.U. v. INDUSTRIAL TRIBUNAL (Hidayatu/lah J.)

¶98

1005

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A judgment, the Tribunal was in error in .holding that the charge was defective. As a result it must be held that the Tribunal was also wrong in refusing to accord approval to the dismissal under s. 33 (2) (b).

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Mr. Gopal Singh contended that Hari Chand has now been t) promoted and is working as Assistant Traffic Inspector and this shows that the Undertaking has confidence in his work and that he has turned a new leaf. Mr. Bhasin on behalf of the Under· taking, however, stated that in viaw of the order of the Tribunal the order of dismissal was not given effect to and Hari Chand earned these promotions in due course. We do not propose to C enter into this controversy at all. It is not a matter which we can take into account in deciding whether the approval asked for as far back as October 28, 1961 was rightly refused. The appeal is, therefore, allowed and setting aside the order of the Tribunal we grant approval to the dismissal order which was to operate from October 31, 196 I. In the circumstances of tac case we make no D order as to costs.

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Appeal allowed.

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L2Sup./6S-2,SOO -18-11-65-GIPF.

Management of Delhi Transport Undertaking v. Industrial Tribunal, Delhi and Another

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Management of Delhi Transport Undertaking v. Industrial Tribunal, Delhi and Another

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