A finding of fact of a domestic inquiry, which is based on some evidence independent of the statement of a witness who was not examined during the inquiry, is unassailable and cannot be reviewed by the court.

V. S. Deshpande, C. J.

( 1 ) TWO principles fundamental to domestic inquiries are competitive for recograition and application to the facts of this case. The first plinciple is that if the findings arrived at after the domestic inquiry are based on evidence which has probative value, then there can be no judicial review of these findings on merits and they are final. The second one is that no material or evidence produced against the person against whom the inquiry is held can form the basis of a finding against him unless, he had an opportunity of rebutting such material or evidence. If the evidence consists of the statement of a witness, then the witness should be made available for being cross-examined. If he is not so made available, his statement which is not tested by cross examination, cannot be relied upon to sustain an adverse finding in the inquiry.

( 2 ) RESPONDENT No. 2, Mohinder Singh, was employed as a Conductor on a bus belonging to the appellant, Delhi Transport Corporation On 10. 6 1971 the bus of respondent No. 2 was checked by the officials of the appellant. A passenger named Ajit Singh was accosted by the checking staff when he alighted from the bus. He was found to be without a ticket. He said that he had given 25 paise as bus fair to respondent No. 2, who had not, however, issued a bus ticket to him. A statement of the passenger was recorded. When respondent No. 2, was asked why he did not issue ticket to this passenger, he could not give any satisfactory explanation. A disciplinary inquiry was, therefore, held by the authorised officials of the appellant against respondent No. 2 on the charge that he had collected the fair of 25 paise from passenger Ajit Singh but had failed to issue a ticket to him with the result that he pocketed these 25 paise and thus committed misconduct. Respondent No. 2 submitted a full written statement which is at pages 14 to 17 of the proceedings of the inquiry which we have seen. In the written statement, respondent No. 2 admitted to have collected the fair from Ajit Singh. His explanation for failure to issue the tickets to Ajit Singh was firstly that he wanted to question Ajit Singh why he had not bought the ticket when he boarded the bus and secondly that because there was a rush in the bus, be could not issue the ticket to Ajit Singh and that when be was about to issue the ticket the checking staff came and having found Ajit Singh to be without ticket, prevented respondent No. 2 from issuing the ticket thereafter to Ajit Singh. On these facts, the Inquiry Officer held that the charge of failure to issue a ticket after having received the bus fair from Ajit Singh was proved against respondent No. 2. Since respondent No. 2 had been guilty several times in the past of this mal-practice, the punishment of dismissal was imposed on him. Approval of the dismissal was sought under the proviso to section 33 (2) (b) of the Industrial Disputes Act, 1947 from the Additional Industrial Tribunal.

( 3 ) BEFORE the Tribunal, it was contended by respondent No. 2 that the proceedings of the inquiry had been vitiated by ths violation of the fundamental rule of natural justice which required that the passenger Ajit Singh whose statement was relied upon by the appellant should have been produced before the Inquiry Officer for being cross-examined by respondent No. 2. . The findings of the Inquiry Officer were also perverse according to respondent No. 2. The Tribunal, framed only two issues, namely :-

(I) whether the inquiry is defective; and (ii) relief.

( 4 ) THE Tribunal held that the Inquiry Officer had relied upon the statement of the passenger without examining him as a witness before him for his finding of misconduct against respondent No. 2 Since the passenger was not available for cross-examination, it would have been safer for the Inquiry Officer to ignore the statement of other passenger concerned and decide the inquiry on other evidence available to him. Since respondent No. 2 had ad

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