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2001 DIGILAW 442 (DEL)

M. L. GOYAL v. DELHI TRANSPORT CORPORATION

2001-10-04

MUKUNDAKAM SHARMA

body2001
MUKUNDAKAM SHARMA ( 1 ) CHALLENGE is made in the present writ petition to the order of punishment awarded to the petitioner on 26/6/1996 and also to the order dated 17/3/1997 passed by the Appellate Authority on the appeal filed by the petitioner. ( 2 ) INITIALLY on the basis of certain allegations made by a Conductor namely - Shri virender Singh the respondent Corporation terminated the services of the petitioner under the provisions of regulation 9 ( b) of the DRTA (Conditions of Appointment and Service) Regulations, 1952. ( 3 ) THE petitioner challenyed the aaid order by filing a writ petition in this court which was registered as C. W. 488/1986. By an order dated 27/11/1990, this court quashed the aforesaid order of termination with a further direction that the petitioner would be deemed to be in service of the dtc and would be entitled to back wages and all other consequential benefits to which he would have been entitled to if his services would not have been terminated. This court further directed the dtc to pay to petitioner back wages and other benefits within 6 months. This court however, gave liberty to the respondent to take such action as is available to them in accordance with law and that it would be open to the petitioner to raise all objections as he is entitled to. The aforesaid order of termination was quashed on the ground that the reyulation 9 ( b) was struck down by the Supreme court in Delhi Transport Corporation Vs. DTC mazdoor Congress and others; JT 1990 (3) SC 725 for lack of adequate and appropriate guidelines. Pursuant to the aforesaid directions and observations made therein by this court in Civil writ petition No. 48/1986 the petitioner was taken back on duty w. e. f. 6/12/1990. ( 4 ) AFTER expiry of about 10 months from the aforesaid order passed by this court the charge sheet was issued by the respondents under the signatures of the Chairman-cum-Managing Director intimating the petitioner to show cause as to why disciplinary action under clause 16 (2) of DRTA (Conditions of Appointment and Service) regulations, 1952 read with section 4 (e) of the delhi Road Transport Laws (Amendment) Act, 1971 be not taken against him for the irregularities committed by him during the course of his employment in the Corporation while functioning as depot Manager, D. K. Depot. Five charges were/ listed in the aforesaid charge sheet. All the allegations made therein related to the year 1985. On receipt of the aforesaid charge sheet the petitioner submitted a representation playing for supply of certain documents to the petitioner. The respondent however, declined to supply documents to the petitioner. Instead the respondent appointed one Shri L. C. Goyal, as the Enquiry Officer to hold enquiry into the allegations contained in the aforesaid charge sheet dated 28. 8. 1991. The enquiry Officer proceeded with the enquiry wherein also the petitioner requested for supply of documents which were again rejected. Being so aggrieved the petitioner filed a writ petition in this court which was registered as C. W. 4780/1993 challenging the charge sheet as well as the proceedings of the enquiry. The said will petition was taken up for consideration and by order dated 27/4/1995 the writ petition was allowed and a direction was issued to the respondents to appoint a new Enquiry Officer and upon such appointment the enquiry Officer was directed to take up the proceedings and was also directed to summon witnesses as named in the said order for further cross-examination by the petitioner. Certain further observations and directions were made by the Division Bench of this court in regard to the conduct of the enquiry with a liberty to proceed with the enquiry in the light of the aforesaid directions. ( 5 ) CONSEQUENT upon the aforesaid order passed by the Division Bench of this Court, the respondent appointed Shri A. K. Sharma, General manager as the Enquiry Officer. Out of the 7 witnesses examined earlier by Shri L. C. Goyal, 5 witnesses were summoned for cross-examination and the remaining 2 witnesses namely - Shri Harish chander (Driver) and Shri Kali Ram (ATI) who were earlier examined by Shri L. C. Goyal could not be summoned because they had since expired. The petitioner produced three witnesses in his defence and also submitted his written statement in defence. Upon conclusion of the enquiry the enquiry Of Fleer submitted his report, a copy of which is annexed to the writ petition. In the aforesaid report the Enquiry Officer found the petitioner partly yullty in respect of charge No. 1 and Charge No. 5. The petitioner produced three witnesses in his defence and also submitted his written statement in defence. Upon conclusion of the enquiry the enquiry Of Fleer submitted his report, a copy of which is annexed to the writ petition. In the aforesaid report the Enquiry Officer found the petitioner partly yullty in respect of charge No. 1 and Charge No. 5. In respect of the other charges the Enquiry Officer held that the alleyatlons made were not proved and the Enquiry Officer absolved the petitioner of the aforesaid charges holding that the said charyes are not proved at all. ( 6 ) UPON receipt of the aforesaid Enquiry report the Disciplinary Authority issued a show cause notice to the petitioner on receipt of which the petitioner submitted a representation on 7/6/1996. After submission of the said reply the disciplinary Authority considered the report and the representation submitted by the petitioner and and Issued the order of punishment on 26/6/1996 imposlny upon the petitioner penalty of reduction of his basic pay to the Initial stage of his scale of pay i. e. Rs. 2000-3500 for a period of 3 years with a further direction that the petitioner would not earn Increments of pay durlny the aforesaid period of reduction and that on expiry of the said period the reducllon would have the effect of postponing his future increments of pay. ( 7 ) BEING aggrieved by the aforesaid order the petitioner filed an appeal before the Appellate authority on 8/7/1996. The aforesaid appeal filed by the petitioner was disposed of by the Appellate authority namely by the Board by modifying the order of punishment and imposing upon the petitioner the penalty of reduction of basic pay to the initial stage for a period of one year and that the reduction would not have the effect of postponing the future increments of pay of the petitioner. The aforesaid decision of the Board was communicated by the communication dated 17/3/1997 under the signatures of Chair nian-cum- managing Director. Being aggrieved by the said orders of punishment the present petition is preferred. ( 8 ) COUNSEL appearing for the petitioner submitted that there was a long delay in initiating the departmental enquiry, for the incident on the basis of which the charge sheet is issued is of the year 1985 whereas the charge sheet was issued in 1991 only. Being aggrieved by the said orders of punishment the present petition is preferred. ( 8 ) COUNSEL appearing for the petitioner submitted that there was a long delay in initiating the departmental enquiry, for the incident on the basis of which the charge sheet is issued is of the year 1985 whereas the charge sheet was issued in 1991 only. it was also submitted by him that none of the charges against the petitioner is proved in the departmental proceedings, which is also the finding of the Enquiry Officer and therefore, it was not proper on the part of the Disciplinary authority and the Appellate Authority to impose punishment on the petitioner. In support of his contention the learned counsel appealing for the petitioner Look me through the report submitted by the Enquiry Officer as also the order passed by the disciplinary Authority and relying on the same it was submitted that ex facie it would be apparent that the charges levelled against the petitioner were not proved at all in the departmental proceedings and therefore, the order of punishment is bad in law and is liable to be set aside. ( 9 ) COUNSEL appearing for the respondent however, refuted the allegations and submitted that the Enquiry Officer found the petitioner guilty in respect of two charges although partly and therefore, the punishment inflicted on the petitioner is just, proper and cannot be assailed. He also submitted that the court does not have the power to substitute its own discretion in respect of the penalty imposed on a person. In support of the aforesaid contention the counsel relied upon the decision of the Supreme Court. in State Bank of india and others Vs. Samarendra Kishore Endow and others, reported in 1994 (1) SLR 516. ( 10 ) IN the light of the aforesaid submissions and the records I proceed to decide the matter on the issues arising for my consideration. In the charge sheet issued to the petitioner 5 charges were listed. After holding enquiry the Enquiry officer held that except for char yes No. 1 and 5 no other charge is proved against the petitioner. Charges No. 1 and 5 read as Follows: 1. He had been showiny undue favour to Shri jai Kishan, TTC, O. K. Depot in the matter of attendance and allocation of duties for ulterior motives. After holding enquiry the Enquiry officer held that except for char yes No. 1 and 5 no other charge is proved against the petitioner. Charges No. 1 and 5 read as Follows: 1. He had been showiny undue favour to Shri jai Kishan, TTC, O. K. Depot in the matter of attendance and allocation of duties for ulterior motives. The record shows that during the month of September, 1985 shri Jai Kishan, TTC was absent on 8 days and on 16 days, when he is stated to be present on duty, he was mostly allotted helping duty, and no independent/ specific duty was allotted to him. Similarly in the month of October, 1985 he was absent on 9 days and he was allotted helping duty on 13 days when he has been shown present on duty. 5. The services of Shri Virender Singh, cond. , B. No. 13566 were terminated under clause 9 (b) of the DRTA (Conditions of appointment and Service) Regulations, 1952 by Shri M. L. Goyal the then D. M. , o. K. Depot vide memo No. DK/ co (id. /pf/85/ 6415 dated 25. 11. 85 on the basis of false checking report dated 14. 11. 85 submitted by S/shri Maha Singh, Traffic Supervisor, bal Kishan, Traffic Supervisor and Dharam pal, T. I. and by misrepresenting the facts. This was an act of vengeance on the part of Shri M. L. Goyal, the then d. M. , D. K. Depot. ( 11 ) THE findings recorded by the Enquiry officer would clearly indicate that the aforesaid charges as drawn up were found not to have been proved to the hill in the departmental proceedings. It was recorded by the Enquiry Officer in respect of charge No. 1 that in the light of what had been brought on record by way of statement of prosecution witnesses and their cross - examination it would become clear that Shri Jai Kishan, TTC, d. K. Depot was favoured by the charged officer in the manner of allocation of duties by putting hun on helping duty and that no independent/ specific duty was allotted to him, and thoefore, charge no. 1 is established to the aforesaid extent. Before coming to the afotesaid conclusion the enquiry Officer had clearly recorded in his report that although the complainant. 1 is established to the aforesaid extent. Before coming to the afotesaid conclusion the enquiry Officer had clearly recorded in his report that although the complainant. Shri Virender Singh, conductor, who appeared as ptosecution witness alleged that attendance of Shri Jai Kishan, TTC, was marked even though he was absent from duty no independent evidence on this account was brought forward by the Prosecution witness Shri P. S. Mahnd, before him who investigated the case in Vigilance department. It is, therefore, apparent and established that the charge as framed against the petitioner was found to have been not proved. The petitioner was accused of favouring Shri Jai kishan, TTC, D. K. Depot, for ulterior motive. The charge to the aforesaid extent stood disproved on a bare reading of the Enquiry Report. The Enquiry officer only hold that the petitionet favoured Shri jai Kishan, TTC for few days by putting him on helping duty in the manner of allocation of duties by putting him on helping duties and no independent specific duty was allotted to him. Only to the aforesaid extent the petitionel way held to be guilty. If one of the employees, for certain period was given only helping duty and was not given independent/specific duty the same cannot in any manner amount to any misconduct on the part of the petitioner and that petitioner had favoured the said officer with ulterior motive could not also be proved. Similarly, so far Charge No. 5 is concerned, it was held by the Enquiry Officer that the charge is established only to the extent that the services of Shri Virender Singh, Conductor were terminated by the Charged Officer as the then Depot manager, D. K. Depot. The Enquiry Officer has found/ that although the charged officer is accused of terminating the services of Shri Virender Singh, under section 9 (b) on the basis of false checking report dated 14/11/1985 submitted by Shri Maha singh, Traffic Supervisor, Shri Bal Kishan, Traffic supervisor and Shri Dharam Pal, TI, the same was not proved on evidence on record. It was also found by him that the issue of mis-representing the facts by the charged officer and acting in a revengeful manner did not arise at all. It was also found by him that the issue of mis-representing the facts by the charged officer and acting in a revengeful manner did not arise at all. It was also held by the Enquiry Officer in that regard that it was not the case of the department that the charged officer got his report prepared from the checking officials falsely. It is therefore, not understood as to how the petilionel could be held guilty of misconduct only because the petitioner proceeded to terminate the services of Shri virendier Singh, Conductor. Charge of misrepresenting the facts and acting in a revengeful manner was not foumd to be correct. The aforesaid reading and the discussions would indicate that not only the charges were not proved but the petitioner was held partly guilty of two of the charges on extraneous reasons. No misconduct of the petitioner is proved in the departmental proceedings, and the act of passing a termination order was in the exercise of the official duty and the same could not and did not amount to any misconduct for which no action as sought to be done herein could have been taken. ( 12 ) SO far charge No. 1 is concerned the case of the department that the concerned employee was given false attendance was not proved, what was proved was that the person was given only light duty for a certain period. That also cannot be said to be in any manner a case of misconduct. Therefore, even on the findings recorded by the enquiry Officer In reapect of char ye No. 1 and 5, no conclusion could be arrived at, that the petitioner is guilty of any misconduct. Therefore, the order of punishment is illegal and invalid. The decision relied upon by the counsel appearing for the respondent has no application to the facts and circumstances of the present case as this court has found the order of punishment itself is illegal and untenable and therefore, the ratio laid down in the said decision has no application to the facts and circumstances of the preaent case. ( 13 ) IN that view of the matter the punishment awarded by the Disciplinary Authority and modified by the Appellate Authorlty on the basis of the aforesaid findings are found to be illegal and without jurisdiction. The order of punishment therefore, stands set aside and quashed. ( 13 ) IN that view of the matter the punishment awarded by the Disciplinary Authority and modified by the Appellate Authorlty on the basis of the aforesaid findings are found to be illegal and without jurisdiction. The order of punishment therefore, stands set aside and quashed. The petitioner shall get all consequential benefits to which he would have been entitled to if no order of punishment was imposed upon him, which shall be given to him within course of three months from loday. There ahall however , be no order as to costs.