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 Explanationn. A disciplinary inquiry was, thereforee, 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 Explanationn 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 bythe 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 admitted the receipt of bus fair from the passenger and also that he had not issued ticket to the passenger, the charge aginst him was proved even without the need of any reliance on the statement of the passenger. The Inquiry, thereforee, was not vitiated by the reliance of the Inquiry Officer on the statement of the passenger. The Tribunal, thereforee, accorded the approval of dismissal of respondent No. 2.
(5) The award of the Tribunal was questioned in writ petition No. 156/75 before a learned single Judge. The learned single Judge based his judgment on two facts which he considered to be central Firstly, the finding of the Inquiry Officer was based on the entire evidence including the written statement of the passenger recorded by the checking staff which was inseparable from the rest of the evidence. Secondly, the Tribunal had observed that it would have been safer for the Inquiry Officer to ignore the statement of the passenger concerned and decide the inquiry on the other evidence available to him. According to the learned single Judge, if the statement of the passenger was inseparable from the rest of the evidence on which the findings of misconduct were based, then it was a violation of the fundamental rule of natural justice when the said statement of the passenger was relied upon without it being subjected to cross-examination. Since tile passenger was not examined during the inquiry, the learned single Judge, thereforee, found that the inquiry was vitiated. He, thereforee, set aside the award of the Tribunal and remanded the proceedings to the Tribunal to give management an opportunity to adduce evidence and also to give a similar opportunity to respondent No. 2 and on that basis again to deal with the application of the management under section 33(2)(b) of the Act. This letters Patent Appeal is filed against this decision of the learned single Judge.
(6) Mr. S.N. Bhandari, learned counsel for the appellant, has advanced two main propositions in support of the appeal. Firstly, the evidence including the admission of respondent No. 2 before the Inquiry Officer was suffi- cient for the finding that the bus fair was realised by respondent No. 2 without issuing the ticket to the passenger Ajit Singh. It was totally unnecessary to rely upon the statement of the passenger which was recorded by the checking staff. The Tribunal had no jurisdiction to review this finding on merits and the learned single judge was wrong in doing so. Secondly, there was no violation of any rule of natural justice inasmuch as the passenger witness was summoned by registered post by the Inquiry officer but the report of the postman was that the said passenger witness had left the address. He could not, thereforee, be served. When the management could not enforce his presence, an opportunity was given to the workman to produce him. But he also did not do so. Natural justice did not require the doing of something which was impossible.
THE Delhi Transport Corporation has to employ the checking staff to make surprise checks of the bus conductors because of the widespread practice of the conductors pocketing some part of the fair collected from the passengers. The check of the 10th June, 1971 was one such check. What was discovered in the check was a fact. The core of the fact was that the passenger Ajit Singh had paid the bus fare to respondent No. 2 but the latter had not issued a ticket to Ajit Singh. This fact is admitted by Mohinder Singh in his written statement submitted to the Inquiry Officer. No further proof of it was needed. Other corroborating evidence was also before the Inquiry Officer. The statement of the passenger Ajit Singh recorded by the checking staff was in the nature of a complaint admissible under section 8, illustrations (j) and (k), of the Indian Evidence Act
. The evidence of the checking officers also proved what exactly was done by them. But all this corroborating evidence became unnecessary when the basic fact was admitted by respondent No. 2.
(8) Thereafter, the burden of proof shifted to respondent No.2 to show that his failure to issue the ticket to Ajit Singh after having received the bus fair from him did not constitute misconduct. The Explanationn given by respondent No. 2 apparently failed to convince the Inquiry Officer. The Explanationn was that firstly respondent No. 2 wanted to question Ajit Singh as to why he had failed to buy the ticket when he boarded the bus and secondly due to the rush in the bus, he could not issue the ticket to him. This Explanationn is, on the face of it. untenable. If respondent No. 2 wanted to question the passenger, he could have questioned him before accepting the bus fair from him. If he accepted the bus fair from him, then simultareously he could have issued the ticket to him. If the rush in the bus did not prevent respondent No. 2 from collecting the bus fair from Ajit Singh, then it should not have prevented him from issuing the ticket to Ajit Singh simultaneously. The practice is that the payment of the fair and the issue of the ticket are simultaneous. Respondent No. 2 thus failed to discharge the burden of proof resting on them to show that his failure to issue the ticket to Ajit Singh did not amout to misconduct.
(9) Even if the Inquiry Officer, not being a lawyer, took into account the totality of the circumstances including the statement of the passenger in arriving at the conclusion on the guilt of respondent No. 2 his finding was unassailable. It was not vitiated by the fast that Ajit Singh had not been made available to respondent No. 2 for cross-examination because there was enough evidence on which the findings could be based. In the East India Hotels v. Their Workmen and others : (1974)ILLJ282SC , paragraph 6, the Supreme Court held that it was not necessary that the complainant passenger should have been called to give evidence before the Inquiry Officer. For there was other evidence to prove what had happened. The ratio of the decision applies with greater force to the present case.
(10) The learned Tribunal also adopted precisely the same line of reasoning. It remarked that the Inquiry Officer could have safely ignored the statement of the passenger recorded by the checking officer. For, there was enough other evidence on record to prove the misconduct of respondent No. 2. The Tribunal, thereforee, rightly found that there was no justification for Judicially reviewing l lie finding of the Inquiry Officer.
(11) Shri D.N. Vohra, learned counsel for respondent No. 2 argued that the issur for consideration before the Tribunal was not that the finding of the Inquiry Officer was based on evidence and was, thereforee, unassailable, but whether the inquiry had been vitiated by the violation of the rules of natural justice. He pointed out that the latter was the only issue before the Tribunal and considered by the learned single Judge. We are of the view that in considering the facts of this case both the competitive principles, namely, (1) non-reviewability of a finding of fact based on evidence and (2) violation of the rules of natural justice, have to be considered. The first principle cannot be ignored merely because the second has to be considered. For, the application of the first principle would make the invocation of the second principle unnecessary. The alleged violation of natural Justice presupposes that it was necessary that the passenger witness should have been made available for cross examination. This assumption is baseless. Firstly, the notice by registered post sent to the witness was received back with the remark that the witness had left the address and the notics could not, thereforee, be served on that address. This made it impossible for the Inquiry Officer to serve the passenger witness. Secondly, the question whether the hear-say evidence of the checking staff about the statement of the passenger should have been admitted in evidence by the Inquiry Officer because of the impossibility of enforcing his attendance which may arise in a suitable case did not arise in this sase. Even when no such impossibility of enforcing the attendence of the passenger was proved the Sipreme Court observed in State of Haryana and another v. Rattan Singh, 1977 (34) F. 1. R. 264 as follows:-
'IT is well settled that in a domestic enquiry the strict and sophisticated rules of evidence under the Indian Evidence Act may not apply. All materials which are logisally probative for a prudent mind are permissible. There is no allergy to hear say evidence provided it has reasonable nexus and credibility, xx xx xx The simple point is, was there some evidence or was there no evidence not in the sense of the technical rules governing regular court proceedings but in a fair common sense way as men of understanding and wordly wisdom will accept. Viewed in this way, sufficiency of evidence in proof of the finding by a domestic tribunal is beyond scrutiny. Absence of any evidence in support of a finding is certainly available for the court to look into because it amounts to an error of law apparent on the record we find, in this case, that the evidence of Chaman Lal, Inspector of the flying squad, is some evidence which has relevance to the charge leveled against the respondent. thereforee, we are unable to hold that the order is invalid on that ground.'
Therefore, in the present case, the principle, finding of fact of the Inquiry Officer which is based on some evidence independent of the written statement or oral evidence of the passenger witness is unassailable. The other principle whether the inquiry is vitiated by the non-compliance with the rules of natural justice does notarise for application. Its application would have been necessary only if the finding of the Inquiry Officer could not have been based on any evidence other than the statement of the passenger witness.
(12) We may take judicial notice of the fact that the Checking of the conductors of the buses of the appellant is a salutary practice. Its effectiveness cannot be defeated by technicalities When the misconduct is proved by the common sense standards before the Inquiry Officer, legal ingenuity and technicalities should not bs allowed to impugn the common sense findings and defeat' the operation of the system of checking.
(13) These are the reasons for the decision which was announced.on the 25th May, 1979 by which the letters Patent Appeal was allowed and the decision of the learned single Judge was set aside.