MADAN B. LOKUR, J.

( 1 ) THE Petitioner (DTC) is aggrieved by orders dated 25th April, 1977 and 11th July, 1979 passed by the Additional Industrial Tribunal and the Industrial Tribunal No. 1 respectively in O. P. No. 85 of 1974 being an application under Section 33 (2) (b) of the Industrial Disputes Act, 1947 (the Act ).

( 2 ) THE facts as they appear from the record are that on 4th May, 1972, two Assistant Traffic Inspectors Om Prakash and H. C. Dutta checked a DTC bus for ticketless travellers. Three ladies in a group, alighting from the bus after completing their journey from East Park Road to Fatehpuri, were found to be without tickets. On being asked, they stated that they had given a one-rupee note to the conductor (Respondent/workman herein) who returned 40 paise to them, but did not issue any ticket. On being confronted, the conductor stated that the tickets were lying on the foot-board of the bus. These ladies were immediately taken to a Special Metropolitan Magistrate/mobile Court for being challaned for ticketless travel. The learned MM passed the following order:-

"heard the accused in detail. I am convinced that the accused paid the fare to the conductor but he did not issue the ticket properly. The accused is, therefore, acquitted. "

( 3 ) WHAT seems to have transpired is that the fare payable by each lady was 25 paise and when the conductor saw the checking staff, he issued them tickets of 20 paise each. Two other passengers in the bus stated that the conductor threw these tickets on the floor of the bus. These tickets were seized by the checking staff and were found to be of inadequate denomination and not punched at the proper place. Since the fare was 25 paise each, the checking staff asked the ladies to give another 15 paise to the conductor who then issued three more tickets of 5 paise each. A challan was then issued to the conductor and the checking staff prepared their report accordingly.

( 4 ) ON these broad facts, the conductor was issued a charge sheet on 4th September, 1972 containing the following allegations:

"that on 4. 5. 72 you were conducting bus No. 1675 of route No. 25-X when the checking officials checked the tickets of the alighted passengers of your bus at Fatehpuri at about 10. 55 hours. Three lady passengers in a group headed by Mrs. Tara Wati who had boarded your bus from East Park Road and from whom you had collected 60 paise as against the due fare of 75 paise alighted there without having been issued any tickets by you. You thus contravened the provisions of para 21 (iv) of the Executive Instructions - Duties of a Conductor and para 19 (b) of the Standing Orders governing the conduct of DTC Employees. "

( 5 ) A domestic inquiry was held against the conductor, in which he was found guilty and subsequently awarded a punishment of removal from service on 14th August, 1974. The DTC moved an application under Section 33 (2) (b) of the Act before the learned Tribunal seeking approval of their action.

( 6 ) BY the first impugned order, the learned Tribunal held that the domestic inquiry was vitiated. Two reasons were given for holding so: firstly, the evidence did not point to the guilt of the conductor and secondly, the two passengers who said they saw the conductor throwing tickets on the floor of the bus when the checking staff arrived, were not produced as witnesses before the enquiry officer.

( 7 ) AFTER holding the domestic inquiry to be vitiated, the learned Tribunal permitted DTC to lead evidence before it for proving the misconduct of the conductor. DTC examined the checking staff as its witnesses. The lady passengers were summoned as witnesses but were not available for evidence.

( 8 ) THE learned Tribunal weighed the evidence and concluded that DTC was not able to prove that the conductor did not issue the tickets. On the contrary, it was held that the conductor did issue tickets to the ladies. The learned Tribunal also held that the ladies were the best witnesses to state whether the

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