Hidayatullah, J. - (1.) 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 Kashimiri 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 dismisal u/ S. 33(2)(b) of the Industrial Disputes Act, 1947. It appears that a memorandum was issued on Oct. 30, 1961 informing Hari Chand of the order of dismissal and intimating him that he was to be paid one months's wages as required by S. 33(2)(b) of the Act and 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 months's wages were remitted to him by the Undertaking by Money Order. The complaint of Hari Chand was dismissed by the Tribunal and as there is no appeal against that order we need not refer to it. The Tribunal after hearing the parties delined 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 of an offence on the part of the conductor. The Tribunal also held that then was no satisfactory proof that one months'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.
(2.) 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 no 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 specially 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 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 may be applicable. Paragraph 15 of these Regulations inter alia provides as follows:- "15. 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 No. 2 provides as follows:- "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 couter signed 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 cherged, then provides as follows:- "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."
(3.) 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 ther 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.;