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Judgment
P.C. Pandit, J.—This is a petition filed by the Management of the Transport Undertaking under Articles 226 and 227 of the Constitution challenging the order dated 12th April 1962 passed by the Industrial "tribunal, Delhi, respondent No. 1, dismissing the application of the petitioner u/s 33 (2) (b) of the Industrial Disputes Act, 1947 (hereinafter referred to as the Act), seeking approval from respondent No. 1 for the removal of Sardar Singh, driver respondent No. 2, from the service of the petitioner on account of proved misconduct at a domestic enquiry.
According to the allegations of the petitioner respondent No. 2 was employed as a driver and on 16th July l961, when on duty at Vinay Nagar Depot, he was allotted Bus No. 61 and then Bus No. 93, but he refused to outshed any of them on the pretext that the brakes of the former were defective and the oil-engine of the latter was leaking. Both these buses were checked by the Foreman and the Mechanics, but the complaint was found to be false. Having been told that there were no defects in the buses and that he should take out any one of them, respondent No. 2 refused to do so and instead adopted a boisterous attitude'' towards his superior officer, namely, the Assistant Engineer, lncharge of the Depot. He shouted at him and rolling up his sleeves, used insulting language towards him. Thereupon, the said Assistant Engineer directed respondent No. 2 to be served with a challan, but he declined to accept the same. Thereafter, he was offered three more buses, but he re used to outshed any of them, saying that he would take out only a particular bus and not the others and that he would go on reporting defects in them. The Assistant Engineer then submitted a report along with the statements of the witnesses, who were present at the spot. The Assistant Traffic Superintendent also made a report regarding this incident. On a consideration of these reports, the Traffic Superintendent of Vinay Nagar Depot suspended respondent No. 2 from duty with effect from 17th July 1961 and charge-sheeted him on 20th July 19 1 on the following five counts :
That you lodged a fictitious report in the workshop in respect of buses Nos. 61 and 93 on 16th July 1961.
That on 16th July 1961 you misbehaved with the Assistant Engineer, Vinay Nagar, Depot.
That on 16th July 1961 you exhibited disorderly behaviour in the premises of Vinay Nagar Depot.
That on 16th July 1961 you refused to accept the challan.
That your record is not satisfactory.
After taking an explanation from respondent No. 2, which was found to be unsatisfactory, an oral enquiry was held into the charges by the Traffic Superintendent. Respondent No. 2 participated in this enquiry and produced his defence. The Enquiry Cheer found that four out of the five charges had been established against him ana taking into consideration the unsatisfactory record of his past service, he recommended the removal of respondent No. 2 from the service of the petitioner. On a consideration of the report, the Assistant General Manager (Traffic) II, who was competent to remove and dismiss Class III and Class IV employees of the petitioner, by virtue of the powers of the General Manager (Transport) having been delegated to him for this purpose, issued a show-cause notice to respondent No. 2 as to why the proposed punishment should not be imposed on him. In reply, respondent No. 2 made a representation, which was duly considered by the Assistant General Manager (Traffic) II, but he accepted the recommendation of the Enquiry Officer and directed respondent No. 2''s removal from the service of the petitioner. Since certain disputes between the petitioner and its workmen were already pending before respondent No. 1, the provisions of section 33 (2) (b) of the Act were attracted and, as such, respondent No. 2 was paid one month''s wages and, an application under this section was filed before respondent No. 1 for approval of the action taken by the petitioner.
Respondent No. 1 found that charge No. 1 was not covered by any standing order and no prima facie case had been established regarding the same. As regards charge No. 2, his finding was that since charge No. 3 was not proved because respondent No. 2 was given the benefit of doubt regarding the same this charge should also automatically fail, as both these charges formed part of the same transaction. Regarding charges No. 4 and 5, his conclusion was that they were misconceived. On these findings, he dismissed the application of the petitioner by the impugned order and this has led to the filing of the present petition.
The guiding principles, which the appropriate industrial authority should bear in mind, while giving or withholding approval to the action of the employer u/s 33(2) of the Act, are laid down in the The Lord Krishna Textile Mills Vs. Its Workmen, , where it was observed :
The jurisdiction of the appropriate industrial authority in holding an enquiry u/s 33(2) (b) cannot be wider and is, if at all more limited, than that permitted u/s 33(1). In view of the limited nature and extent of the enquiry permissible u/s 33(2) (b) all that the authority can do in dealing with an employer''s application is to consider whether a prima facie case for according approval is made out by him or not. If before dismissing an employee, the employer has held a proper domestic enquiry and has proceeded to pass the impugned order as a result of the said enquiry, all that the authority can do is to enquire whether the condititions prescribed by section 33(2) (b) and the proviso are satisfied or not. The approving authority has to consider only (a) whether the standing orders justify the order of dismissal, (b) whether an enquiry has been held as provided by the standing order, (c) whether the wages for the month have been paid as required by the proviso, and (d) whether an application has been made as prescribed by the proviso. And when all these conditions have been fulfilled by the employer, the tribunal is not justified in refusing to accord approval to the action taken by the employer. Nor is it justified while holding the enquiry to assume powers of an appellate court which alone is entitled to go into all question of fact. The question about the adequacy of evidence or its sufficiency or satisfactory character can be raised in a court of facts and may fall to be considered by an appellate court which is entitled to consider facts; but these considerations are irrelevant where the jurisdiction of the court is limited as u/s 33(2) (b). And if the Tribunal assumes jurisdiction not vested in it by law, and consequently refuses to accord approval to the action taken by the employer, its order is patently erroneous in law.
Bearing these principles in mind, let us see if respondent No. 1, had acted in a manner, which calls for interference by this court in writ proceedings. As regards charge No. 1, as already mentioned above, respondent No. 1 has stated that it is not covered by any standing order and no prima facie case has been established regarding the same. Learned counsel for the petitioner submitted that this charge was covered by sub -clauses (a) and (m) of the Standing Order No. 19, which are in the following words :
Without prejudice to the provisions of the foregoing Standing Orders, the following acts of commission and ommission shall be treated as misconduct :
(a) Wilful insubordination or disobedience by an employee individually or in combination with others to any official order of a superior employee;
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(m) Any other activity not specifically covered above, but which is prima facie detrimental, to the interests of the organisation." He submitted that on 1st September, 1959, the General Manager (Transport) of the petitioner issued an office Order No. 130, which ran thus -
It has come to my notice that certain drivers are reporting a large number of defects in the vehicles. Investigations earned out by the A.E. incharge different Depot Workshops have revealed that quite a number of defects reported by the drivers were not in existence and are fictitious in nature. This has resulted in dislocation of public transport by late outshedding of buses from the Depots, as all the reported delects had to be investigated by the Assistant Engineers.
It is notified for information of all concerned that where it is certified by the Assistant Engineer concerned after a thorough inspection that the defects reported are fictitious, strict disciplinary action will be taken against the individual concerned.
This Assistant Engineers Incharge Depot Workshops will carefully examine all the defects reported by the drivers and inform the depot Traffic Superintendents to take disciplinary action where the false defect report has been lodged.
If any driver refuses to take out a bus which has been certified to be road worthy by the Assistant Engineer of the depot, this will be tantamount to wilful disobedience of orders and will render him liable to severe disciplinary action under the rules.
The argument was that this charge amounted to wilful insubordination or disobedience of an official order of a superior employee as mentioned in clause (a) of Standing Order 19. The argument in the alternative, was that respondent No. 2''s refusal to outshed two Buses Nos. 61 and 93 on the basis of false reports regarding defects therein amounted to refusal to carry out his duty and perform his functions, the inevitable consequence of which was two fold-(i) pecuniary loss to the petitioner and (ii) deprivation of service to the travelling public. This must be regarded as an activity which was prima facie detrimental to the interest of the Organisation. This charge was, therefore, covered by clause (m) of Standing Order 19.
Firstly, it was not the case of the petitioner before respondent No. 1 that this charge was based on Office Order No. 130. In fact this Order was not mentioned before respondent No. 1. Secondly, it is also doubtful if this Office Order can be termed as a Standing Order. Thirdly, charge No. 1 does not make a mention of this Office Order. Fourthly, this Order was issued to all the officers of the Delhi Transport Undertaking. It is not clear as to whether the same was brought to the notice of respondent No. 2. Under these circumstances, the petitioner cannot be allowed to rely on this Office Order for the first time in these proceedings. It is pertinent to mention that the allegation of willful insubordination or disobedience by an employee to any official order of a superior employee was not mentioned in this charge.
Therefore, the contention of the learned counsel for the petitioner that charge No. 1 was covered by clause (a) of Standing Order 19 fails. As regards clause (m) of Standing Order 19, it is rightly pointed out by respondent No. 1 that this clause was too wide and in the interest of justice and fairplay, before an action was sought to be taken against an employee, his attention ought to be drawn to the specific charge against him so that he can give his own explanation thereto and produce his defence. Secondly, I am of the view that if a driver lodges fictitious reports in respect of the buses, which he is asked to outshed, this action or conduct of his cannot be called an activity which is prima facie detrimental to the interests of the Organisation, occurring in clause (m), because this clause contemplates only those cases, which affect the Organisation as whole and stray cases of indiscipline, like the present one, are not covered by the same. Consequently, this charge would not fall under the residuary clause (m) also. Since" I am agreeing with the " decision of respondent No. 1 that this charge is not covered by any Standing Order, it is not necessary to decide the other question whether respondent No. 1 was correct in holding that no prima facie case had been established regarding the same.
No arguments were addressed to me regarding charges Nos. 2 and 3.
As regards charge No. 4, the finding of respondent No. 1 was that it was misconceived. The contention of the learned counsel for the petitioner was that this charge was covered by clause 4 (under the head ''Duty'') occurring in the list of offences of drivers mentioned in the book, which contained the provisions made by the Delhi Transport Undertaking (Buses Division) in relation to the matters set out in the Schedule to the Industrial Employment (Standing Orders) Act, 1946. It was also argued that refusal to accept the challan was a char disobedience of the order of 1 he superior officer and also amounted to insubordination and breach of discipline.
In the first place, there is no mention of the book, which is now being relied upon by the learned counsel for the petitioner in the impugned order. As a matter of fact, learned counsel for the respondent submitted that it was never shown to respondent No. 1 and no argument were based thereon. Secondly it has neither been mentioned in this charge nor an argument was raised before respondent No. 1 that by refusing to accept the challan, respondent No. 2 had disobeyed the order of the superior officer and the same amounted to insubordination or breach of discipline. Moreover, respondent No. 1 has also held that since respondent No. 2 had accepted the regular charge-sheet, the show-cause notice and the order of dismissal, it did not stand to reason why at a preliminary stage he should have refused to accept the challan. Under these circumstances, the finding given by respondent No. 1 on this charge cannot be disturbed.
As regards charge No. 5, since no other charge has been proved against respondent No. 2, therefore, this charge alone cannot form the basis for any disciplinary action being taken against him.
In view of that I have said above, this petition fails and is dismissed. In the circumstances of this case, however, I will leave the parties to bear their own costs.