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Non lodging of FIR cannot be the circumstance against the witness examined by the employer: Supreme Court of India

The initiation of criminal proceedings against an employee or not initiating the proceedings has no bearing to prove misconduct in departmental proceedings. Therefore, an order of removal from service cannot be said to be unfair and unjust in any manner which would warrant an interference at the hands of the Tribunal and the High Court. This was observed by Hon’ble Hemant Gupta, J in the matter of Uttar Pradesh State Road Corporate Foundation v. Gajadhar Nath – [Civil Appeal No. 7536 of 2021].

The order passed by the High Court of Allahabad is the subject matter of challenge in the present appeal at the instance of the employer whereby the order passed by the Industrial Tribunal was not interfered with. The Tribunal had directed that the respondent be reinstated in service and ordered 50% of the salary to be paid for the period when he was not in employment. In this case, a workman was removed from service as conductor on account of misconduct. He raised an industrial dispute, which was referred to the Tribunal. The Tribunal returned a preliminary finding that the domestic inquiry conducted into the charges levelled against the workman in question was not fair and proper. Therefore, the employer led evidence by examining an Assistant Traffic Inspector who had conducted inspection of the vehicle. The said witness supported the report submitted by him to the Assistant Regional Manager. He deposed that he checked the bus at Katra when the bus was coming from Banda to Allahabad. All the 17 passengers in the bus had stated that they had given the money but the conductor did not issue even a single ticket. He also deposed that when he tried to record the statement of the passengers, the conductor misbehaved with him and used unruly words which he could not state even before the Court.

The learned counsel for the appellants-employer contended that the Indian Evidence Act, 18729 applies to all judicial proceedings in or before any Court. Since the domestic inquiry is not by a Court, therefore, strict rules of the Evidence Act are not applicable to such domestic inquiry. Reliance is placed upon a three-Judge Bench of this Court reported as State of Haryana & Anr. v. Rattan Singh and on a judgment reported as U.P. State Road Transport Corporation v. Suresh Chand Sharma, wherein the Supreme Court had set aside the order of the High Court wherein the writ petition was allowed holding that the passengers without tickets have not been examined and cash with the employee was not checked.

The learned counsel for the respondent-workman argued that the statement of the Inspector does not inspire confidence as he had not recorded the names and addresses of the passengers. It is not the case of the workman that the passengers were required to be examined but at least there should have been some evidence that there were passengers who were found travelling without any ticket. Since the basic evidence is not available on record, therefore, the finding of the Tribunal cannot be said to be illegal or unwarranted which was rightly not interfered with by the High Court.

Supreme court after perusing the facts and arguments presented, held that- “We find that the order of the Tribunal and that of the High Court are clearly erroneous and not sustainable in law. The representative of the employer has not been cross-examined on the question that he has not inspected the bus. He has deposed that when he tried to record the statements of the passengers, the conductor misbehaved with him and used unruly words. Even that part of the statement has not been disputed in the cross-examination. Therefore, the fact that the Inspector was not able to record the names and addresses of the passengers cannot be said to be unjustified. Since the passengers are low-fare paying passengers, they might have been hesitant to get involved in the issues of any action against the conductor. The Inspector had found that 17 passengers were not issued tickets and such statement of the Inspector has also not been disputed in the cross-examination. The Tribunal or the High Court could not reject the evidence led by the employer in respect of misconduct of the workman before the adjudicator. Still further non lodging of FIR cannot be the circumstance against the witness examined by the employer. The initiation of criminal proceedings against an employee or not initiating the proceedings has no bearing to prove misconduct in departmental proceedings. Therefore, we find that the order of removal from service cannot be said to be unfair and unjust in any manner which would warrant an interference at the hands of the Tribunal and the High Court. The reasons recorded by the Tribunal are absolutely perverse and not supported by any evidence.”

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Judgement reviewed by Mehvish Alam

 

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