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PETITIONER: MANAGEMENT OF DELHI TRANSPORT UNDERTAKING

       Vs.

RESPONDENT: INDUSTRIAL TRIBUNAL, DELHI AND ANOTHER

DATE OF JUDGMENT: 30/10/1964

BENCH: HIDAYATULLAH, M. BENCH: HIDAYATULLAH, M. GAJENDRAGADKAR, P.B. (CJ) WANCHOO, K.N.

CITATION:  1965 AIR 1503            1965 SCR  (1) 998

ACT: Industrial  Disputes  Act, 1947 (14 of 1947),  s.  33(2)(b)- Whether   actual  payment  of  wages   necessary-Tender   if sufficient-Executive  instruction not made part of  Standing Orders-Breach of such instruction whether  punishable-Charge not specifying standing orders etc., whether defective.

HEADNOTE: H,  a conductor in the employ of the  appellant  undertaking was  found  in  possession of some used  tickets  which  was forbidden by Instruction No. 12 issued under Standing  Order 2. After enquiry into his conduct the charge was held proved and on the recommendation of the Enquiry Officer the Traffic Manager  proposed to dismiss him.  As this  occurred  during the pendency of an industrial dispute the undertaking by  an application  sought  the  approval of the  Tribunal  to  the proposed  order  of  dismissal under s. 33 (2)  (b)  of  the Industrial  Disputes Act, 1947.  The Tribunal after  hearing both  the parties declined to accord its approval.  It  held that under Executive Instruction 12 no action could be taken because this Instruction was not made a part of the Standing Order  and in the Standing Orders 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 satisfactory proof that one month’s wages were actually paid or could be treated  as having  been tendered prior to the coming into operation  of the  order of dismissal on October 31, 1961, as required  by the proviso to s. 33(2) (b) of the Act. HELD  :  (i)  The Tribunal took too narrow  a  view  of  the Standing  Orders.   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 rightly 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)  of  the Regulations.    Clause   (in)  of  Standing  Order   19   is sufficiently  wide to cover a breach of Instructions  issued under  Standing  Order  2.  if 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

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paragraph 15(2) of the Regulation [1004 A-F] (ii) The particulars in the charge were sufficient for if to understand  what  he  was charged  with.   The  omission  to mention  the  appropriate Standing Order or  Regulations  or sections  of  the  Act did not vitiate the  charge  and  the Tribunal  was in error in holding it to be defective.  [1004 G-H] Laxmi  Devi Sugar Mills v. Nand Kishore, [1956]  S.C.R.  916 and Lord Krishna Sugar Mills Ltd. v. Union of India.  [1961] 1 S.C.R. 39 held inapplicable. (iii)     The  Tribunal was wrong in holding that there  was no  tender  of wages.  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 before dismissal becomes effective.  In the  present case  tender  having  been made within  time  there  was  no failure to comply with s. 33(2)(b) in this respect. [1003 D- E]                             999

JUDGMENT: CIVIL APPELLATE JURISDICTION : Civil Appeal No. 790 of 1963. Appeal  by  special  leave from the Award  dated  April  20, 1.962,  of the Industrial Tribunal Delhi in O.P. No.  97  of 1961  and Complaint I.D. No. 305 of 1961, published  in  the Delhi Gazette dated May 31, 1962. T. R. Bhasin, for the appellant. Gopal Singh, for respondent No. 2. The Judgment of the Court was delivered by Hidayatullah  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 omnibuses, now Assistant Traffic Inspector.  By this  appeal the  Delhi  Transport Undertaking impugns an  award  of  the Industrial Tribunal, Delhi dated April 20, 1962.  The  facts of  the case are as follows: Hari Chand was a  conductor  on omnibus  No.  484 of route No. 21 on March  28,  1960.   His omnibus  was checked at Kashmiri Gate and it 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  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  recommendation  of  the Enquiry Officer the Traffic Manager proposed to dismiss  him from October 31, 1961.  As this occurred during the pendency of  an industrial dispute the Undertaking by an  application dated  October 28, 1961 sought the 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  informing  Hari Chand  of the order of dismissal and intimating him that  he was to be paid one month’s wages as required by s. 33(2) (b) of  the  Act and that he should report  immediately  to  the Accounts  Officer at the Head Office to receive the  payment and  to  surrender his uniform, badge,  identity  card  etc. Hari 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 complaint under s. 33(A) of the Act  on November  3, 1961 complaining inter alia that his wages  for one  month had not been paid.  The same day his one  month’s

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wages  were  remitted  to him by the  Undertaking  by  Money Order.  The complaint of Hari Chand was dismissed by L2Sup./65-2 1000 the Tribunal and as there is no appeal against that order we need  not  refer  to it.  The  Tribunal  after  hearing  the parties  declined to accord its approval and  dismissed  the application.  The Tribunal held that action under  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 governing the conduct of employees in this Undertaking there was no provision that the  possession of used tickets amounted to misconduct or an offence 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 operation of the order of dismissal on  October  31, 1961, as required by s. 33 (2) (b)  of  the Act.   The Delhi Transport Undertaking questions both  these conclusions and the appeal involves only these points. To  understand  the true legal position it is  necessary  to refer  to  some  provisions of law  under  which  the  Delhi Transport Authority, which was the same as the present Delhi Transport  Undertaking, was established and under which  the Undertaking   now  functions.   The  Delhi  Road   Transport Authority Act, 1950 came into operation from March’27, 1950. By  that Act a statutory Corporation under the name  of  the Delhi Road Transport Authority was constituted.  By s. 39 of the  Act  it is provided that the  Central  Government  may, after   consultation   with  the  Authority   give   general instructions,   including   directions   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 regulations is conferred on the  Authority for the administration of the affairs of  the Authority  and for carrying out its functions under the  Act and  in  particular  for providing  for  the  conditions  of appointment  and  service of the servants of  the  Authority other  than some Officers speciality named.   The  Authority made  the D.R.T.A. (Conditions of Appointment  and  Service) Regulations,  1952, under the power conferred.  Part III  of the  Regulations  lays  down  that  all  employees  of   the Authority shall perform such duties and carry out such func- tions  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  may  be  applicable.   Paragraph  15  of   these Regulations inter alia provides as follows  1001 1 5. Conduct Discipline and Appeal-               (1)   Conduct.-The   Delhi   Road    Transport               Authority may from time to time issue standing               orders governing the conduct of its employees.               A  breach  of  these  orders  will  amount  to               misconduct.               (2)   Discipline.-(a) The following  penalties               may,   for  misconduct  or  for  a  good   and               sufficient reason be imposed upon an  employee               of the Delhi Road Transport Authority               (vii) Dismissal from the service of the  Delhi               Road Transport Authority.               Under the powers conferred by paragraph  15(1)               Standing Orders were framed.  Standing Order 2               provides as follows:-

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             "2. Duties of the Employee --               (i)   All the employees of the Authority shall               perform   such  duties  and  carry  out   such               functions  as may be entrusted to them by  the               Authority or the General Manager or any  other               authorised officer of the Authority.               (ii)               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.  10  in  small               change  as  bag money every day and  that  the               conductor  is  prohibited  from  carrying  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.   This  is  obviously  a  step   to               prevent   dishonesty   in   issuing   tickets,               Instruction No. 12, under which Hari Chand was               charged, then provides as follows               1002               "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." The charge framed against Hari Chand contained three counts: the first Was that he had wrongly punched a ticket given  to a  passenger; the second that he possessed’ a sum of 15  nP. which  was  not  declared by him 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.   Hari  Chand admitted the first count and 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  we  must assume  that  the  fact of possession of  used  tickets  was established. 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 proviso to s. 3 3 (2) (b) of the Act.  It appears  to us  that  Hari  Chand did not purposely  receive  the  wages offered  to  him  by the memorandum  informing  him  of  his dismissal  from  service  because  he  intended  to  make  a complaint  against the Undertaking.  He filed his  complaint and  it  was dismissed.  The amount was offered  to  him  on October 30, 1961.  The Tribunal found some discrepancies  in the  registers which created a doubt whether the  memorandum was at all issued on the 30th.  There is, however, no reason to think that it was issued on the 31st.  Hari Chand himself admitted  that he was present in the office on the  30th  to receive  payment but no one paid any attention to him.   His

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contention  was that he received the order on the 30th at  5 P.m. after office hours.  His signature with date is on  the duplicate  copy  of the memorandum kept in:  the  office  as receipt.  The Tribunal was, therefore, wrong in holding that there  was  no tender of wages as required by s. 33  of  the Industrial Disputes Act.  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 order of dismissal came into force and the wages would have been paid either  on  the  30th or the 31st had Hari  Chand  cared  to receive  1003 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  dismissal mentioned  the fact that the amount was being paid  to  him. The  proviso  to s. 33 (2) (b) on which reliance  is  placed reads "33. (1).............. (2).......... (a)................ (b).............. Provided that no such workmanshall    be   discharged    or dismissed, unless he has beenpaid  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". 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  before dismissal  becomes effective.  In this case the  tender  was definitely  made  before  the  order  of  dismissal   became effective  and the wages would certainly have been  paid  if Hari  Chand  had asked for them.  There was  no  failure  to comply with the provision in this respect. The Tribunal found the charge defective for various reasons. It  pointed  out  that  Hari Chand was  not  tried  for  the commission  of any act of dishonesty or fraud as he had  not issued  used tickets to any passenger but for possession  of used tickets and this charge was not sufficient to make  out an  act of misconduct for which the 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  15  of  the  Regulations  Standing  Orders governing the conduct of the employees must first be issued, before   a  breach  of  any  instruction  could  amount   to misconduct.  Standing Orders were issued under para 15(1) of the  Regulations and they stated that a breach would  amount to   misconduct  and  would  make  an  employee  liable   to disciplinary   action  as  stated  in  para  15(2)  of   the Regulations  but  they did not lay down the  duties  of  the conductor  and they did not prohibit the possession of  used tickets.   The Tribunal, therefore, held that the charge  of possession of used tickets was not punishable under 1004 the  Standing Orders and the punishment of  dismissal  could not be approved. In our opinion, the Tribunal has taken too narrow a view  of the Standing Orders.  Standing Order No. 19 provides:               "19.   General Provisions :-Without  prejudice               to  the provisions of the  foregoing  Standing               Orders,  the following acts of commission  and

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             omission shall be treated as misconduct               (m)Any  other  activity  not   specifically               covered  above,  but  which  is  prima   facie               detrimental,    to(the   interests   of    the               Organisation." 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 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)  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 and paragraph 15(2) of the Regulations. 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(2) that  the charge could not be amplified by the inclusion  of a, reference to the Standing Orders 2 and 19 and  Regulation 15.   These  rulings have no application  because  here  the facts were quite sufficient to put Hari 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 for  Hari Chand to understand what he was charged with.   In our (1)[1956] S.C.R. 916. (2) [1961] 1 S.C.R. 39. 1005 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 33 (2) (b). Mr.  Gopal  Singh  contended that Hari Chand  has  now  been 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  Undertaking, however, stated that in view 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 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, 1961.’ In the circumstances of the case we  make no order as to costs. Appeal allowed. L2 Sup./65-2,500-18-11-65-GIPF. 1