Case BriefsHigh Courts

Delhi High Court: Prathiba M. Singh, J., while examining a case which was dismissed 30 years ago with regard to a workman’s misconduct, reiterated the well-established law that, customers’ need not be produced in such proceedings in order to prove the misconduct of the workman.

The present petition challenged the impugned order passed by labour court and vide the said order the claim of workman/petitioner who was working as a Conductor with respondent-DTC was rejected by the Labour Court.

Background

Petitioner was appointed as Conductor in the DTC and on the intervening night of 19th/20th April, 1991 when the workman was on duty, as surprise checking team entered the bus and found that 12 passengers who were travelling in the bus were not issued tickets by the Conductor despite collecting the cash from the. Hence a charge sheet was served

After a detailed enquiry, the removal of the workman was recommended and accordingly he was terminated. Thereafter, the workman sought reinstatement to which he received no response, due to which he filed a claim before the labour court and the Labour Court set aside the enquiry proceedings holding that the enquiry was held in violation of principles of natural justice.

Later on, fresh evidence adduced by the DTC for proving misconduct of the Conductor the Labour Court dismissed the claim of the workman.

Analysis, Law and Decision

High Court found that the Workman in his testimony admitted that he was working as a Conductor with the DTC and he denied the suggestion put to him that he had not issued tickets to the 12 passengers and admitted that there were 5 adverse entries against him.

Management’s witness denied the fact that the Conductor had issued tickets to all the passengers and further denied that the checking report was false. The witness also testified that the Conductor had misbehaved during the time when the checking staff had entered the bus.

Instant case was a case of misconduct by the workman and the dismissal had taken place more than 30 years ago.

There was no dispute over the fact that the statement of one of the passengers was recorded, placed on record and exhibited.

The Court opined that the testimony of the workman was clearly unreliable and untrustworthy, and the testimony of the Management witness had been unimpeached leading to the inescapable conclusion that misconduct was indeed committed by the Workman.

Bench reiterated that it is a settled position that,

“Customers need not be produced in such proceedings.”

 Recently, in Asst. General Manager, State Bank of India v. Ashok Kumar Bhatiya, WP(C) 7584/2017, this Court has reiterated that customers need not be produced for proving misconduct or irregularities, as it leads to the greater inconvenience for the customer which the Management sees to avoid under all circumstances. Moreover, this Court in the case of Delhi Transport Corporation v. Shree Kumar, 2004 SCC OnLine Del 557 has squarely dealt with the issue of non-production of passengers as a witness in the domestic enquiry or before the Labour Court and held that production of a passenger is not required to prove the misconduct of the Workman.

Further, in Dayal Singh v. DTC, 2013 SCC OnLine Del 995, it was held that it is not mandatory that passenger witnesses should depose to establish guilt.

Therefore, the misconduct having been established on facts in a detailed award passed by the Labour Court, the said order of the Labour Court did not warrant any interference. [Biri Singh v. DTC, 2022 SCC OnLine Del 286, decided on 27-1-2022]


Advocates before the Court:

For the petitioner: Vinay Sabharwal, Advocate

For the respondent: Aditi Gupta, Advocate

Jharkhand High Court
Case BriefsHigh Courts

Jharkhand High Court: Kailash Prasad Deo J. allowed the appeal and directed respondent-Railway to pay a sum of Rs 8 Lacs in view of a recent notification dated 22-12-2016 issued by the Ministry of Railways.

The factual matrix of the case is such that the deceased, who has a ticket bearing no. 88302375, was travelling from Asansol to Madhupur by boarding train no. 12369/12327 UP on 11-09-2015 and fell down at Chittaranjan Railway Station due to intense jostling and sustained serious injuries and died on the spot. A case was registered. The appellants have preferred the instant appeal against the Award/Judgment dated 31-01-2017 passed by Member (Judicial), Railway Claims Tribunal, Ranchi Bench, whereby the claim application of the appellants/parents of the deceased have been dismissed on the ground that the deceased Pulis Marandi died because of his reckless, imprudent violating all safety norms demanded during train travel with imminent possibility of endangering both life and limbs of a passenger by stating that the case of the deceased comes under clause (b) of proviso to Section 124-A of Railways Act and as such, exempted the railway to pay compensation.

Counsel for the appellant Mrs Chaitali Chatterjee Sinha submitted that Railway Claims Tribunal has committed error on two counts; firstly that the deceased Pulis Marandi was possessing a passenger ticket, but boarded on an express train, secondly that the deceased has purchased ticket upto Chittaranjan and boarded train going to Madhupur and sustained injury while trying to get down at Chittranjan Station, as such, died in an accident because of his own fault. It was further submitted that no contrary evidence has been brought on record to strengthen the argument of the Railway, that it was a passenger ticket and deceased has boarded in an express train or super fast train. It was also brought to notice that the case of the deceased comes under Section 123 (c) of the Railways Act and not under exception Clause (b) of proviso to Section 124-A of the Railways Act. No evidence has been brought on record to substantiate that the case of the deceased comes under exception clause (b) of proviso to Section 124-A of the Railways Act, as such, the impugned award may be set aside.

Counsel for the respondent Mr Vijay Kumar Sinha has submitted that the deceased has boarded express train, having passenger ticket upto Chittaranjan Railway Station and wrongly pleaded in the claim application that deceased was travellling from Asansol to Madhupur and thus the Tribunal has rightly dismissed the claim application as it is a case which comes under exception clause (b) of proviso to Section 124-A of the Railways Act.

 The Court observed that under the aforesaid circumstances, once the ticket number has been brought on record which indicates that it was from Asansol to Madhupur, the railway ought to have brought on record any material to show that this ticket was never sold by the railway or this ticket was never issued for the express train and only on the argument, that deceased was holding ticket for passenger train will not suffice the purpose to declare the deceased not a bonafide passenger under Section 2 (29) of the Act in a benevolent legislation like Railways Act, 1989.

The Court thus held that the deceased was having ticket, to be a bonafide passenger as defined under Section 2 (29) of the Act and the deceased was victim of an Untoward Incident as defined under Section 123 (c) of the Act. “Accordingly, the impugned order dated 31.01.2017 passed by Member (Judicial), Railway Claim Tribunal, Ranchi in OA (IIU) / RNC / 2015 / 01014 is hereby set aside.”

[Gunadhar Marandi v. Union of India, M.A. No. 448 of 2017, decided on 01-06-2020]


Arunima Bose, Editorial Assistant has reported this brief.

Case BriefsSupreme Court

Supreme Court: While addressing the matter wherein a passenger suffered loss and agony due to delay in the arrival of train, M.R Shah and Aniruddha Bose, JJ., observed that,

These are the days of competition and accountability. If public transportation has to survive and compete with private players, they have to improve the system and their working culture.

Background

Aggrieved by the National Consumer Disputes Redressal Commission, State Commission and District Forum, wherein the    Northern Western Railway and another were directed to pay to the complainant – respondent Rs 15,000 for taxi expenses, Rs 10,000 towards booking expenses along with Rs 5,000 towards mental agony and litigation expenses. Aggrieved by the same, present special leave petition was preferred.

Respondent had booked 4 tickets from Northern Western Railway along with the return reserved tickets.

Respondent’s case was that, he had to take flight at 12:00 noon from Jammu to Srinagar in SpiceJet. But the said train did not reach in time and it was delayed by 4 hours and reached Jammu at 12:00 noon.

Since the Jammu Airport was at a far distance from Jammu Railway Station and they had to reach the airport at least two hours prior to the departure of the flight, they could not reach in time and missed the flight.

Further, the respondent had to book private taxi to reach Srinagar.

In view of the above background, respondent claimed a loss of Rs 9,000as airfare, Rs 15,000 towards taxi hire charges for going from Jammu to Srinagar, Rs 10,000 on account of booking of boat in Dal Lake.

Analysis, Law and Decision

Supreme Court opined that in view of the facts and circumstances of the case, impugned orders awarding compensation to the complainant do not warrant any interference.

No evidence was led by the railways explaining the delay and/or late arrival of train at Jammu. The railways were required to lead the evidence and explain the late arrival of train to establish and prove that delay occurred because of reasons beyond their control. 

At least the railways were required to explain the delay which the railways failed.

Bench held that unless and until the evidence was laid explaining the delay and it was established and proved that delay occurred which was beyond their control and/or even there was some justification for delay, the railway is liable to pay the compensation for delay and late arrival of trains.

Hence, in the present matter, the decision of the Commission’s observing that there was a deficiency in service leading to the railways being liable to pay the compensation to the passenger – complainant was rightly observed.

While concluding the matter and stating that no interference of this Court is called for, Bench emphasized that,

Citizen/passenger cannot be at the mercy of the authorities/administration. Somebody has to accept the responsibility.

 [Northern Western Railway v. Sanjay Shukla, Special Leave Petition (C) No. 13288 of 2021, decided on 6-09-2021]

Case BriefsCOVID 19High Courts

Delhi High Court: C. Hari Shankar, J., while taking suo motu cognizance of a matter, issued directions for airlines with the direction of immediate compliance, expressed that:

Each of us, as members of a conscious and conscientious citizenry, is required to be sensitive and sensitized in equal measure, and to strain every sinew to keep the pandemic at bay. If the citizenry becomes complacent, no Government, howsoever activated and alive to the situation, can help.

The present order was passed in light of an alarming situation witnessed by the Court during the Air India flight from Kolkata to New Delhi on 05-03-2021.

“…though all the passengers had worn masks, many passengers had worn the masks below their chin and were exhibiting a stubborn reluctance to wear their masks properly.”

Bench further stated that it was only on repeated entreaties made (by me) to the offending passengers that they condescended to wear their masks properly. Cabin Crew’s response to the said situation was that they had directed all the passengers to wear masks, but were helpless in case they did not comply.

Further, elaborating more on the issue, Court expressed that:

Passengers in a flight are in a closed air-conditioned environment, and, even if one of the passengers suffers from COVID, the effect on other passengers could be cataclysmic. It is a matter of common knowledge that being within arm’s length distance of a COVID carrier, even if he is asymptomatic and is merely speaking, is more than sufficient to transmit the virus.

While attempting to take out the protocols and guidelines of the DGCA to be followed by the passengers taking domestic travel, unfortunately, the website did not contain the same and the guidelines that could be traced were 21-05-2020.

Bench added that it does not intend to criticise the efforts made by the governmental authorities, including DGCA, in trying to deal with the pandemic.

Sensitization of the citizenry has, however, to precede, not succeed, galvanization of the governmental machinery.

With the present order, Court sought to achieve the objective by lending some teeth to the instructions already in place, in the larger public interest.

Following guidelines were issued for immediate compliance by all airlines as well as by the DGCA:

(i) The DGCA is directed to reflect, forthwith, on its website, prominently, the instructions containing the guidelines and protocols to be followed by passengers and in-flight crew in domestic flights. This shall be reflected on the main website of the DGCA, without requiring the person accessing the site to navigate through various links to reach the instructions. The DGCA will ensure that prominence, to the instructions, or to the web link through which they can, by a single click, be accessed, is accorded, by displaying them in a distinct and different font, blinking or otherwise, or by any other suitable means.

(ii) All airlines are directed to ensure that, along with the boarding pass, written instructions regarding the protocol to be followed by passengers in flight, including the measures that could be taken against them on failure to follow the protocols, are provided to the passengers. The passengers should also be duly sensitised regarding their responsibilities, to abide by said protocol, both before as well as after boarding the flight. The in-flight announcements which, presently, merely require the passengers to wear masks at all times, should be modified to include a cautionary word regarding the penal action that could be taken against them in the event of default.

(iii) In-flight crew shall carry out periodical checks of the aircraft, in order to ensure that all passengers are complying with the protocol to be followed by them in flight, especially regarding wearing of masks. It is made clear that masks should be worn as directed by governmental instructions, covering the nose and mouth, and not worn merely covering the mouth or below the chin.

(iv) In the event of any passenger being unwilling to follow this protocol prior to the flight taking off, the passenger should be offloaded without delay. If a passenger, despite being reminded more than once in flight, refuses to follow this protocol, action should be taken against the passenger in accordance with the guidelines issued by the DGCA or Ministry of Health and Family Welfare, including placing the passenger on a “no-fly” regimen, either permanently or for a stipulated, sufficiently long, period.

(v) It shall be the responsibility of the in-flight crew to ensure strict compliance, by the passengers, with the aforesaid protocol. In order to ensure compliance, the DGCA may consider sending random observers on flights, without prior information, who would check to ensure that the COVID protocols are followed in flight.

(vi) Strict enforcement of all penal provisions, which could visit delinquent passengers who refuse to abide by the COVID protocols to be maintained in flight, should be ensured. There should be no relaxation whatsoever in that regard.

(vii) It is noticed that the guidelines of the DGCA do permit relaxation from the requirement of wearing masks in exceptional cases. Such relaxation, if necessary, should be allowed only in cases which are truly exceptional, such as for medical reasons, after a conscious assessment and evaluation of (a) the necessity of the passenger to fly and (b) the justifiability of the passenger’s refusal to wear the mask, weighed against the risk to public interest involved if the passenger is allowed to travel without a mask. In deserving cases – which should be the exception, not the rule – the airline should take steps to isolate the passenger so that he is kept at a safe distance from other passengers in the flight.

Lastly, Bench directed the authorities concerned to accord adequate publicity to the guidelines, for the purpose of compliance.

DGCA, the Ministry of Civil Aviation and the Ministry of Home Affairs should ensure that, in the case of airlines that repeatedly fail to ensure compliance with the said guidelines, penal action to be initiated, in accordance with the law.

Court directs for the present order to be displayed on the official website of DGCA, the Ministry of Civil Aviation and the Ministry of Home Affairs.

Periodical review of the situation should be undertaken, to ensure that no laxity creeps into the system.

[Court on its own motion v. DGCA,  2021 SCC OnLine Del 1216, decided on 08-03-2021]


Advocates before the court:

For the respondents: Ms Bani Dikshit, Adv. for Air India along with Dr AB Subbaiah, GM in-flight services & Ms Meenakshi Kashyap, GM-Industrial Relations

Ms Anjana Gosain & Mr Kirtiman Singh, Advs. for DGCA & Ministry of Civil Aviation

Chhattisgarh High Court
Case BriefsHigh Courts

Chhattisgarh High Court: A Division Bench of P. R. Ramchandra Menon and Parth Prateem Sahu JJ., allowed the appeal and modified the impugned award.

The facts of the case are such that on 18-05-2011, Karan along with other labourers was travelling on a Dumper i.e. ‘offending vehicle’ to village Badeli when they met with an accident due to rash and negligent driving of offending vehicle by non-applicant 4 and Karan came under the offending vehicle and died. A claim application under Section 166 of the Motor Vehicle Act was filed before the learned Claims Tribunal and liability to pay the compensation was fastened on the insurance company.

Counsel for the appellants submitted that deceased was travelling as ‘gratuitous passenger’ in a ‘goods carriage vehicle’; the driver of offending vehicle was not possessing valid and effective driving licence, claimants are not entitled to any amount of compensation as it is a breach of conditions of the insurance policy.

Counsel for respondents submitted that it was a burden upon the Insurance Company to prove that on the date of accident, driver of the offending vehicle was not possessing a valid and effective driving licence, in which, it failed and no evidence has been brought on record by Insurance Company in support of their ground to prove that non-applicant No.4 was not possessing valid and effective driving licence.

Issue 1: The Court observed that in view of undisputed facts and evidence available on record it was clear that deceased was travelling in a goods carriage vehicle, he was not an employee of the owner of offending vehicle; the policy issued was only ‘Liability Only Policy’, no premium paid for any gratuitous passenger travelling in the vehicle, Insurance Company cannot be held liable to satisfy the amount of compensation against the death of Karan alias Phekan whose status was of ‘gratuitous passenger’.

Issue 2: The Court further observed that as far as the ground relating to no licence is Concerned the licence itself was not placed on record, then it cannot be said that Insurance Company has not discharged its burden to prove that non-applicant No.4 was not possessing valid and effective driving licence, in fact, it is a case of no licence. The Court thus held that nonapplicant No.4 was possessing valid and effective driving licence is perverse and it is hereby set aside.

Issue 3: The Court observed that as far as the ground that claimants are not entitled to any amount of compensation as they are not legal representatives and dependant upon the deceased is concerned, it was stated that In view of aforementioned evidence available on record when the claimants have not filed any document to show their relationship with deceased nor examined any independent witness of the village where the deceased was residing to prove that deceased was residing with claimants on the date of the accident.

The Court respect to maintaining an application by a person not dependant on the deceased observed that “the definition contained in Section 2(11) CPC is inclusive in character and its scope is wide, it is not confined to legal heirs only. Instead, it stipulates that a person who may or may not be legal heir competent to inherit the property of the deceased can represent the estate of the deceased person. It includes heirs as well as persons who represent the estate even without title either as executors or administrators in possession of the estate of the deceased. All such persons would be covered by the expression ‘legal representative’.”

 The Court thus held that the claimants failed to prove that they were dependant upon deceased, the relationship being respondent 1 to be real sister of deceased not proved. Non-applicant 2 is earning and nothing is mentioned about the husband of applicant 1 and father of applicants 2 to 7.

In view of the above, the appeal was allowed and Insurance Company was exonerated from its liability to satisfy the amount of compensation and instead it was cast upon non-applicant 3/registered owner of the offending vehicle.[United India Insurance Company v. Kimani Devi,  2020 SCC OnLine Chh 881, decided on 09-10-2020]


Arunima Bose, Editorial Assistant has put this story together

Jharkhand High Court
Case BriefsHigh Courts

Jharkhand High Court: The Bench of Dr S.N. Pathak, J., allowed a petition assailing the order and judgment passed by learned Railway Claims Tribunal.

In the pertinent case, the claimant was the father of the deceased, Anand Mandi, who after boarding the train, met with an accident by way of falling down from the train. After completing all the formalities, a compensation of Rs 4 lakhs was sought for. The same was contended by the respondent (Railways) that they were not responsible as neither was there any eye witness to corroborate the said incident nor any passenger ticket was recovered from the possession of the deceased. It was also argued that the applicant is also put to strict proof that the cause of death of late Anand Mandi does not fall in any of the exceptional clauses (a) to (e) of Section 124-A of the Railways (Amendment) Act, 1994.

The learned Tribunal framed the following three issues and the parties were put on trial:-

  1. Whether Anand Mandi was a bonafide passenger as alleged?
  2. Whether any untoward incident as defined under Section 123(c)(2) of the Railways Act, 1989 occurred?
  3. Whether the applicant is entitled for compensation as claimed and other relief, if any?

The Court held that by the preponderance of the probability deceased had died due to accidental fall from a passenger train and as such, the alleged incident falls within the purview of an untoward incident under Section 123(c)(2) of the Railways Act and it was decided in favour of the applicant.

The Court relied on Union of India v. Rina Devi, 2018 SCC OnLine SC 507, where the Court opined that, “…However, mere absence of ticket with such injured or deceased will not negative the claim that he was a bonafide passenger. Initial burden will be on the claimant which can be discharged by filing an affidavit of the relevant facts and burden will then shift on the Railways and the issue can be decided on the facts shown or the attending circumstances…”.  And the Court held that it is a case of untoward incident falling within the purview of Section 123(c)(2) of the Railways Act. The Court is of the opinion that appellant is entitled for compensation to the tune of Rs 4 lakhs with 9% interest from the date of accident till the actual payment is made.[Dhuma Ram Mandi v. Union of India, 2019 SCC OnLine Jhar 188, Order dated 13-02-2019]