Central Administrative Tribunal - Delhi
Joginder Singh Deswal vs Delhi Transport Corporation (Dtc) on 21 October, 2024
1
Item No. 2(C-3)
O.A. No.263/2022
Central Administrative Tribunal
Principal Bench, New Delhi
O.A. No.263/2022
Order reserved on : 30.09.2024
Order pronounced on : 21.10.2024
Hon'ble Mrs. Pratima K. Gupta, Member (J)
Hon'ble Dr. Chhabilendra Roul, Member (A)
Joginder Singh Deswal,
(Ex-Driver in DTC)
Batch No.23212, Token No.65174
S/o Shri Om Prakash,
R/o V&PO: Dasaur Kheri,
Distt. Jhajjar, Haryana.
Present Address :
R/o R233, P2 Block, New Roshan Pura,
Najafgarh, New Delhi-110043
Aged around years.
...Applicant
(By Advocate : Shri Sourabh Ahuja)
VERSUS
1. Delhi Transport Corporation,
Through its Chairman cum Managing Director,
GNCT of Delhi,
I.P. Estate, New Delhi.
2. Regional Manager (North),
Delhi Transport Corporation,
Wazirpur, New Delhi.
3. The Depot Manager,
Rohini Depot-3,
Through its Chairman-cum-Managing Director,
Delhi Transport Corporation
I.P. Estate, New Delhi.
...Respondents
(By Advocate : Ms. Ankita Sarangi)
2
Item No. 2(C-3)
O.A. No.263/2022
ORDER
By Hon'ble Mrs. Pratima K. Gupta, Member (J) :-
The applicant was appointed as a Driver with the Delhi Transport Corporation (DTC) on 19.01.2009.
On 27.01.2011, while he was driving, the bus No.DL1PC 8610 on route No.569/9, met with an accident, in which one of the passengers got severely injured and subsequently died. Accordingly, an FIR No.15/11 was registered under Section 279/337 of IPC at Police Station Punjabi Bagh, New Delhi. The Section 304A IPC was added in light of the fact that the passenger died subsequently. The Inquiry Officer was appointed who submitted his report holding the charges as proved (pages 41 to 47). Relying upon the said report, the services of the applicant were terminated by an order dated 17.01.2012 (Annexure A/3), invoking clause 9(a)(i) of the DRTA (Condition of the Appointment and Service) Regulation, 1952 of the DTC. In the meanwhile, since the criminal proceedings were also initiated and pending in pursuance of the FIR, the competent Criminal Court acquitted the applicant on 06.12.2019 (judgment of the criminal Court at page 102). Pursuant to the 3 Item No. 2(C-3) O.A. No.263/2022 aforesaid, the applicant preferred various representations and served a legal notice to the respondents with a prayer, to review the impugned penalty order of termination. This notice has been, responded to by the respondents by way of the impugned order dated 30.06.2020. Aggrieved by the same, the applicant has preferred this OA seeking the following relief(s):-
"(a) Quash and set-aside Departmental Accidental Committee Report dated 04.01.2012, Inquiry Report dated "NIL", Termination Order dated 17.01.2012, Appellate Authority Order dated 03.08.2012 and Order dated 30.06.2020, whereby the applicant was terminated from service and his request for revisiting the termination order is also rejected. And
(b) Direct the respondents to reinstate the applicant back in service with all consequential benefits viz. back wages, arrears of salary, promotion, financial upgradations, seniority etc. And/Or
(c) Award cost in favor of the applicant and against the respondents. And/Or
(d) Pass any further order, which this Hon'ble Tribunal deem fit, just equitable in the facts and circumstances of the case."
2. The main contention of the learned counsel for the applicant, in support of the cause of the applicant is that while issuing the impugned order, the competent authority has not considered the acquittal 4 Item No. 2(C-3) O.A. No.263/2022 of the applicant by the Criminal Court. He has argued that the decision of the Criminal Court particularly paras 12 and 13 should have been considered before passing the impugned order. He submitted that the competent Criminal Court has acquitted the applicant due to lack of evidence. The charges before the Criminal Court and the disciplinary proceedings were identical and the list of witnesses were also same. In the light of the fact that relying upon the same evidence, the Criminal Court has acquitted the applicant, the impugned order should also be quashed. Drawing attention to the Inquiry Officer's report, He submitted that the independent witness Sh. Sriniwas, A.T.I examined by the Inquiry Officer has in fact supported the case of the applicant. He has detailed that the incident happened due to negligence of both the driver and the passenger. This fact has been ignored by the Inquiry Officer while arriving at the conclusion. The relevant portion of the findings of the Inquiry Officer is reproduced herein below:-
"During the interrogation proceedings, the impartial witness Sh. Anand Kumar, A.T.I, Token No. 23689 told in his statements that he is working as In- charge (illegible). On dated 27-1-2011 the bus no. 8610 during its run near Maharaja Agrasen Hospital a passenger got injury after falling 5 Item No. 2(C-3) O.A. No.263/2022 from the rear gate, which was informed to him by the duty officer, Sh. Sriniwas, A.T.I and also told that he had attended the accident and the bus was locked in the police station, which he should get it released. The locked Bus in Punjabi Bagh Police Station was released at Superdari. The accused employee was given an opportunity to cross question the impartial witness on which he did not cross-
examine him.
3. The competent authority i.e. the Depot Manager, in the present facts, by terminating the applicant, has not extended any personal hearing to the applicant.
4. Pursuant to notice, the respondents filed their counter reply opposing the OA. Learned counsel for the respondents drew attention to the guidelines issued by the respondents with respect to the conduct of Drivers in DTC. The same reads as under:-
"For termination :-
A) If a driver is involved in a major accident case and is not acquitted by the court or is considered at fault by the accident committee.
B) If a driver is involved in more than three minor accidents or four damage cases.
C) If the number of punishments on counts other than accidents exceeds eight.6
Item No. 2(C-3) O.A. No.263/2022 D) If the number of leave without pay exceeds 45 days on grounds other than illness or exceeds 60 days in all."
5. She submitted that the applicant was involved in a major accident resulting in a passenger's injury followed by death, leading to the termination of the applicant's services. She argued that the OA is barred by limitation as it is hit by delay and latches. He relied upon the decision of the Hon'ble Apex Court in Civil Appeal No.7643/2011, decided on 05.09.2011 in the matter of Samar Bahadur Singh Vs. State of U.P. & Ors. Relevant portion of the said judgment is reproduced hereinbelow :-
"11. Acquittal in the criminal case shall have no bearing or relevance to the facts of the departmental proceedings as the standard of proof in both the cases are totally different. In a criminal case, the prosecution has to prove the criminal case beyond all reasonable doubt whereas in a departmental proceedings, the department has to prove only preponderance of probabilities. In the present case, we find that the department has been able to prove the case on the standard of preponderance of probabilities. Therefore, the submissions of the counsel appearing for the appellant are found to be without any merit."
6. Learned counsel for respondents submitted that under the provisions, the respondents were not obliged to conduct a detailed disciplinary inquiry 7 Item No. 2(C-3) O.A. No.263/2022 regarding the accident related to FIR No.15/11, and the order of termination was passed after giving him a fair opportunity to defend himself. She reiterated that the standard of proof in departmental inquiries is different from that in criminal proceedings. The departmental proceedings are independent of the criminal proceedings and the respondents proceeded based on the disciplinary inquiry alone.
7. In rejoinder, learned counsel for the applicant refers to the charge sheet stating that the charges in the disciplinary proceedings were identical to those in the criminal proceeding, where the applicant was acquitted. In support of his contentions, he relied upon the judgment of Hon'ble Supreme Court in Civil Appeal No.7935/2023 titled Ram Lal Vs. State of Rajasthan & Ors. decided on 04.12.2023. Relevant paras of the said judgment read as under :-
12. We are also conscious of the fact that mere acquittal by a criminal court will not confer on the employee a right to claim any benefit, including reinstatement. (See Deputy Inspector General of Police and Another v. S. Samuthiram, (2013) 1 SCC
598).
13. However, if the charges in the departmental enquiry and the criminal court are identical or similar, and if the evidence, witnesses and circumstances are one and the same, then the matter acquires a different dimension. If the court in judicial review concludes that the acquittal in the criminal proceeding was after full consideration of the prosecution evidence and that the prosecution miserably failed to prove the charge, the Court in judicial review can grant redress in certain circumstances. The court will be entitled to exercise its discretion and grant relief, if it concludes that allowing the findings in the disciplinary proceedings to stand will be unjust, 8 Item No. 2(C-3) O.A. No.263/2022 unfair and oppressive. Each case will turn on its own facts.
[See G.M. Tank vs. State of Gujarat & Others, (2006) 5 SCC 446, State Bank of Hyderabad vs. P. Kata Rao, (2008) 15 SCC 657 and S. Samuthiram (supra)] Discussion:
Validity of the Disciplinary proceeding - Question No. 1:
14. A brief analysis of the facts of the case is essential. The origin of this dispute, which does not inspire confidence at all, is as follows. The appellant's cousin Shravan Lal (PW-4 in the departmental enquiry and PW-6 in the criminal case), deposed as under before the enquiry officer :-
"Stated on enquiry that about 13 months ago, I was operating engine at Well. On that day at about 3.00 p.m., Ramlal after drinking liquor, came at well and switched off the engine. Thereafter, Ramlal abused me and scuffled with me and said that today I will operate the engine and you cannot do anything to me. I have received job by fooling the Government. When I enquired him that how you did that, then, Ramlal told me that I have received job by altering my date of birth as 21.04.1972 in my marksheet, whereas, my date of birth was 21.04.1974.
Thereafter I went to school and enquired about this fact, whereupon I came to know that his date of birth was 21.04.1974. Due to this reason, I produced an application before the Superintendent of Police, Ajmer and made one report to the Commandant, 9th Battalion, RAC, Tonk and I also made one report to the Hon'ble Chief Minister and one report to DIG, RAC, Rajasthan, Jaipur....."
An F.I.R. was registered on 02.09.2002. A charge-sheet in the departmental proceeding was issued on 02.04.2003. It will be relevant to extract the two charges in the disciplinary proceedings:
"Charge No.1 :-
In the year 1991, an application for appointment on the post of constable was made by you, alongwith which, Marksheet of 8th pass issued by Government Secondary School, Tiloniya (Ajmer), bearing Roll No. 323 and Admission No. 2314, in which, your date of birth was mentioned as 21.04.1974, but you by altering it to 21.04.1972, fraudulently got recruited on the post of Constable.
Charge No.2:-
As a result of altering your date of birth from 21.04.1974 to 21.04.1972 in the Marksheet issued by the Government Secondary School, Tiloniya (Ajmer), Crime No. 183/02 under Section 420, 467, 468, 471 IPC was registered against you in P.S. Mandor, District -Jodhpur."
15. Five witnesses were examined in the departmental enquiry, namely, PW-1 Jagdish Chand, Principal in Government Secondary School, Village Tiloniya, PW-2 Bhawani Singh (constable who was tasked to bring the school records), PW-3 Karan Sharma, who was Circle Officer and had recorded the statement of Shravan Lal; PW-4 Shravan Lal and PW-5 Raj Singh who conducted the investigation of the criminal case. 9 Item No. 2(C-3) O.A. No.263/2022
16. The evidence of PW-5/Raj Singh, as set out in the enquiry report taken as it is, is significant since he clearly disproved the charge. He stated the following in the cross- examination before the enquiry officer:
"Raj Singh you conducted investigation of Crime No. 102 and sent the copy to Commandant, 9th Battalion, RAC, Tonk, what documents you sent alongwith the same - The documents which were sent by me were copy of FIR, copy of chargesheet which was submitted in the Court and statements of witnesses recorded during the investigation and documents; whose photocopies were also given to the accused. Whether you had sent the copies of statements recorded in the aforesaid case to the Commandant - I did not send the copies to Commandant Sahab. Which officer had submitted the chargesheet, order of result in the Court - the then SHO of P.S. Mandor, District - Jodhpur City namely Sh. Ram Pratap submitted result of investigation, order and chargesheet against the accused, in the Court." During the investigation, you had recorded statements of Dharmendra Kumar Jatav and Jairam Gurjar, did you record more statements and whether you would identify the copies of those statements - Yes, I recorded the statement of witnesses as it is. And I am producing herewith the statements of both the aforesaid witnesses. Whether those have been written by yourself - Yes, those statements have been written by me, which are Exh. D-1 and Exh. D-2. In Exh. D-1, I recorded statement of Teacher namely Rakishan Dev Murari on A to B part and I filled the marksheet of Ramlal, wherein, date of birth of Ramlal is mentioned as 21.04.1972 in C to D part, which has been written as per the dictation of Checking Teacher Ramkishan Dev Murari. Date of birth of 21.07.1972 mentioned on E to F part, was not mentioned in deliberate manner, in fact, same has been written due to the human error, whether you are agree with this statement - This statement is correct, whereas, at the time of filling up form for recruitment in Police RAC, Ramlal could enclose T.C. of 9th Pass, and he was studying in 10th class."
Thereafter, referring to the Exh. D-2 [Statement of Jairam Gurjar], he deposed as under:-
"Similarly, in Exh. D-2, on A to· B part, you have shown me the photocopy of 8th class marksheet of Ramlal S/o Sh. Tejuram Chaudhary, R/o Tiloniya, on which, signatures of it's issuer i.e. Teacher namely Sh. Dharmendra Kumar, Ramkishan Dev Murari and Headmaster Sh. Vishnu Miyani are mentioned. I am acquainted with their signatures."
17. Most importantly dealing with the 8th class marksheet of the appellant, which formed the basis for his application seeking appointment as Constable, PW-5/Raj Singh stated as under:-
"The 8th class marksheet of Ramlal enclosed in the documents, which is Exh. P-3, (sic) in which, whether any alteration has been found in the date of birth anywhere, and whether date of birth has been mentioned as 21.04.1972 therein - Yes, no alteration has been made in the marksheet of 8th class and date of birth is 21.04.1972."10
Item No. 2(C-3) O.A. No.263/2022
18. It is very clear from the above that no alteration was found in the Appellant's 8th class marksheet (which forms part of the enclosed documents sent to the Commandant) and the date of birth mentioned on it was 21.04.1972. Reference to 'P-3' in the above extract appears to be a mistake. The chargesheet and documents enclosed were Ex. P-12/1 to P- 12/12. The defence also exhibited the original 8th class marksheet separately as Exh. D-3, as is clear from the chart of Exhibits set out in the enquiry report.
19. The Enquiry Officer, after setting out the depositions of the witnesses, set out the chart of the "P" series Exhibits and the Exhibits of the delinquent, namely the "D" series, and without any further discussion or marshaling of the evidence recorded the following with regard to charge-1:
"On perusal of statement of witnesses namely PW-1 PW- 2, PW- 3, PW-4, PW-5 and Exh. P-1 to P-12, it is clear that correct date of birth of delinquent constable was 21.04.1974. When, delinquent constable submitted application for recruitment on the post of Constable, at that time, he did not complete the age of 18 years, therefore, due to the apprehension of rejection of his application due to the less age, delinquent constable has altered his date of birth as 21.04.1972 from 21.04.1974, therefore, Charge No.1 stands proved.
Delinquent Constable has also passed 10th class, whose marksheet is Exh. P-4, in which, his date of birth is mentioned as 21.04.1974." In so far as charge-2 was concerned, it was merely noticed that challan had been filed in the criminal case as on 28.02.2004, the date of enquiry report, and that the trial had not concluded.
20. In the operative part of the enquiry report under the head, 'conclusions', there is no reference to the 8th class marksheet, (which was part of the enclosed documents sent by Constable Raj Singh with the chargesheet) or to Exh.D-3 [the original 8th class marksheet] exhibited by the defence. There is also no reference to the statement of Raj Singh PW-5 in the enquiry, who had acknowledged that there was no alteration in the marksheet of the 8th class. What is referred to in the chart of exhibits are letter of Jagdish Chand (Ex.P1); the duplicate marksheet of 8th class issued by Jagdish Chand (Ex.P2); the statement of Shravan Lal (Ex-P3); 10 th class marksheet of Secondary Education Board Rajasthan, Ajmer, (Ex.P4); preliminary enquiry dated 16.10.2002 by Circle Officer, Kishangarh (Ex.P5); FIR No. 183/2000, (Ex.P6); application submitted by Ram Lal for recruitment to the post of constable (Ex.P-7); letter of appointment dated 08.11.1991 (ExP-8); verification letter filed by Ramlal (Ex.P9); appointment order dated 16.12.1991, (Ex-P-10); letter of Government School Tiloniya, Ex.P-11; and chargesheet dated 24.04.2003, Ex.P-12.
21. It is very clear that relevant and material evidence being, the deposition of PW-5/Raj Singh; the marksheet of 8 th class of the appellant [enclosed to the chargesheet] and the original marksheet independently marked as Ex. D3 by the defence have been completely left out in the discussion and consideration. Inference has been drawn about the proof of the charges by ignoring crucial, relevant and material evidence which had come on record. The evidence of PW-5 Raj Singh and the marksheet enclosed in the documents annexed to the chargesheet and the original marksheet marked as Ex. D-3, were materials having a direct bearing on the charge. The Disciplinary Authority has merely reiterated the reasoning in 11 Item No. 2(C-3) O.A. No.263/2022 the enquiry report. Equally so are the findings of the appellate authority. It is well settled that if the findings of the disciplinary authorities are arrived at after ignoring the relevant material the court in judicial review can interfere. It is only to satisfy ourselves to this extent, that we have scrutinized the material to see as to what was reflected in the record. We are satisfied that the disciplinary proceedings are vitiated and deserves to be quashed.
22. In this scenario, we are inclined to accept the explanation given by the appellant that overwriting in the application form was only due to correction of an inadvertent error. As long as the original 8th standard marksheet reflected his date of birth as 21.04.1972 and there is no correction or manipulation in that document, the appellant cannot be penalised. Effect of Acquittal in the Criminal Proceeding - Question No. 2:
23. With this above background, if we examine the criminal proceedings the following factual position emerges. The very same witnesses, who were examined in the departmental enquiry were examined in the criminal trial. Jagdish Chandra, Bhawani Singh, Shravan Lal, Raj Singh and Karan Sharma were examined as PW2, PW3, PW6, PW9 and PW13 respectively at the criminal trial. Apart from them, eight other witnesses were also examined. The gravamen of the charge in the criminal case was that the appellant had submitted an application for recruitment along with his marksheet and he, by making alteration in his date of birth to reflect the same as 24.04.1972 in place of 21.04.1974, and obtained recruitment to the post of Constable. Though the Trial Court convicted the appellant under Section 420 of IPC, the Appellate Court recorded the following crucial findings while acquitting the appellant:
"....Mainly the present case was based on the documents to this effect whether the date of birth of accused is 21.04.1972 or 21.04.1974. Exh. P-3 is original Marksheet, in which, the date of birth of accused has been shown as 21.04.1972 and same has also been proved by the witnesses examined on behalf of the prosecution.
Whatever the documents have been produced before the Court regarding the date of birth of 21.04.1974 are either the letters of Principal or are Duplicate T.C. or Marksheets. Neither the prosecution has produced any such original documents in the Subordinate Court to this effect that when the admission form of accused was filled, what date of birth was mentioned by the accused in it, what was the date of birth in Roll Register of School, what date of birth was mentioned by accused in the Examination Form of Secondary, and nor after bringing the original records from the concerned witnesses, same were got proved in the evidence. In these circumstances, this fact becomes doubtful that date of birth of accused was 21.04.1974, and accused is entitled to receive it's benefit. In the considered opinion of this Court, the conviction made by the Ld. Subordinate Court merely on the basis of oral evidences and letters or duplicate documents, is not just and proper. It is justifiable to acquit the accused.
Resultantly, on the basis of aforesaid consideration, the present appeal filed by the Appellant/Accused is liable to be allowed." [Emphasis supplied]
24. What is important to notice is that the Appellate Judge has clearly recorded that in the document Exh. P-3 - original marksheet of the 8th standard, the date of birth was clearly 12 Item No. 2(C-3) O.A. No.263/2022 shown as 21.04.1972 and the other documents produced by the prosecution were either letters or a duplicate marksheet. No doubt, the Appellate Judge says that it becomes doubtful whether the date of birth was 21.04.1974 and that the accused was entitled to receive its benefit. However, what we are supposed to see is the substance of the judgment. A reading of the entire judgment clearly indicates that the appellant was acquitted after full consideration of the prosecution evidence and after noticing that the prosecution has miserably failed to prove the charge [See S. Samuthiram (Supra).]
25. Expressions like "benefit of doubt" and "honorably acquitted", used in judgments are not to be understood as magic incantations. A court of law will not be carried away by the mere use of such terminology. In the present case, the Appellate Judge has recorded that Exh. P-3, the original marksheet carries the date of birth as 21.04.1972 and the same has also been proved by the witnesses examined on behalf of the prosecution. The conclusion that the acquittal in the criminal proceeding was after full consideration of the prosecution evidence and that the prosecution miserably failed to prove the charge can only be arrived at after a reading of the judgment in its entirety. The court in judicial review is obliged to examine the substance of the judgment and not go by the form of expression used.
26. We are satisfied that the findings of the appellate judge in the criminal case clearly indicate that the charge against the appellant was not just, "not proved" - in fact the charge even stood "disproved" by the very prosecution evidence. As held by this Court, a fact is said to be "disproved" when, after considering the matters before it, the court either believes that it does not exist or considers its non-existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it does not exist. A fact is said to be "not proved" when it is neither "proved" nor "disproved" [See Vijayee Singh and Others v. State of U.P. (1990) 3 SCC 190].
27. We are additionally satisfied that in the teeth of the finding of the appellate Judge, the disciplinary proceedings and the orders passed thereon cannot be allowed to stand. The charges were not just similar but identical and the evidence, witnesses and circumstances were all the same. This is a case where in exercise of our discretion, we quash the orders of the disciplinary authority and the appellate authority as allowing them to stand will be unjust, unfair and oppressive. This case is very similar to the situation that arose in G.M. Tank (supra).
28. Apart from the above, one other aspect is to be noted. The Enquiry Officer's report makes a reference to the appellant passing 10th standard, and to a 10th standard marksheet exhibited as Exh. P-4 referring to the date of birth as 24.07.1974. Jagdish Chandra-PW1 (in the departmental enquiry) clearly deposed that since the appellant was regularly absent from Class 10, his name was struck off and he did not even pass 10th standard. The appellant has also come out with this version before the disciplinary authority, stating that the 10th class certificate of Ram Lal produced before the Enquiry Officer, is of some other Ram Lal.
29. This issue need not detain us any further because it is not the case of department that the appellant sought employment based on 10th standard marksheet. It is their positive case that the appellant sought employment on the basis of his 8th standard marksheet. Shravan Lal-PW-4 in the departmental 13 Item No. 2(C-3) O.A. No.263/2022 enquiry had also furnished the 10th standard marksheet procured from the Secondary Education Board, Ajmer. In cross-examination, on being asked, he admitted that the appellant was recruited on the basis of 8th standard marksheet, and he admitted that there was no alteration in the 8th standard marksheet.
30. In view of the above, we declare that the order of termination dated 31.03.2004; the order of the Appellate Authority dated 08.10.2004; the orders dated 29.03.2008 and
25.06.2008 refusing to reconsider and review the penalty respectively, are all illegal and untenable.
31. Accordingly, we set aside the judgment of the D.B. Special Appeal (Writ) No.484/2011 dated 05.09.2018. We direct that the appellant shall be reinstated with all consequential benefits including seniority, notional promotions, fitment of salary and all other benefits. As far as backwages are concerned, we are inclined to award the appellant 50% of the backwages. The directions be complied with within a period of four weeks from today.
8. He further relied on the decision of the Hon'ble High Court of Delhi in Writ Petition No.11979/2015, titled Manoj Vs. Union of India and Ors. decided on 15.07.2016. Relevant paras of the said judgment read as under :-
"5. The petitioner has filed the instant petition and relies upon a recent judgment of the Supreme Court reported as (2015) 2 SCC 377 Jogender Singh Vs. UT of Chandigarh & Ors. wherein Jogender Singh who was acquitted at a criminal trial for an offence of constituting an unlawful assembly and causing simple and grievous hurt to persons as also attempting to murder a person was held entitled to be appointed as a Constable in the Union Territory of Delhi. The decision shows that the acquittal was on account of the fact that the witnesses could not identify the assailants and stated that their signatures were obtained on a blank sheet of paper by the Investigating Officer. Even the injured eye witnesses did not support the case of the prosecution. With reference to the decision reported as 2013 (1) SCC 598 Insp.General of Police Vs. S.Samuthiram the Supreme Court held that an acquittal would be 'honourable' in every sense when the prosecution leads full evidence but miserably fails to prove the charge. The decision of the Punjab and Haryana High Court dismissing writ petition filed by Jogender Singh against the decision to deny him employment as a Constable was reversed. The 14 Item No. 2(C-3) O.A. No.263/2022 Supreme Court held that the past alleged conduct of Jogender Singh was irrelevant.
XXX XXX XXX XXX
8. The decision in S. Samuthiram's case (supra) brings out that where key witnesses were not examined and it was a cases of acquittal, the acquittal would not be honourable because the prosecution did not lead its best evidence. But where the prosecution leads its best evidence and its star witnesses failed resulting in an acquittal, it would be a case of an honourable acquittal.
9. Thus, we find no conflict between the decision of the Supreme Court in Mehar Singh's case and Jogender Singh's case. The ratio is common. Where the acquittal is not an honourable acquittal, in that, the prosecution does not produce its material witnesses resulting in an acquittal, the factum of acquittal would be irrelevant and the department would be justified in appraising the character of a candidate with reference to his involvement in a crime and look into such material which was gathered by the police during W.P.(C) No.11979/2015 Page 4 of 13 investigation. But where the acquittal is after the prosecution has examined all its witnesses it would be case of an honourable acquittal as was in the case of Jogender Singh."
9. The present OA was heard and reserved for orders on 24.07.2024. However, the same was listed under the head 'For Being Spoken To' on 26.07.2024 for seeking the order of MACT Court, as it was a case of accident. The matter was further relisted on subsequent dates i.e. 06.08.2024, 04.09.2024 and 30.09.2024. On 30.09.2024, the record of MACT proceedings were brought and the matter was reserved for orders.
15Item No. 2(C-3) O.A. No.263/2022
10. From the MACT record, it transpired that the matter was settled in Lok Adalat on 14.01.2012, and a compromise deed was signed between the legal heirs of the deceased and the DTC.
11. We have heard the learned counsel for the parties and perused the material available on record.
12. The facts reflected hereinabove are not disputed by either side. The applicant was acquitted by the competent Criminal Court on 06.12.2019 and the paragraphs 12 and 13 thereof would be relevant to reassert the fact that there was a contributory negligence of the deceased passenger and the applicant, which resulted in the accident and accordingly, the passenger succumbed to his injuries. This fact is supported by the evidence of Shri Sriniwas. Since the decision of the Criminal Court preceded the impugned order and the same was brought to the notice of the respondents well within the time, the respondents were obliged to keep this fact in mind, while arriving at a decision and passing the impugned order. Both, the learned counsel for the applicant as well as the respondents have relied upon certain judgments in support of their contentions. 16 Item No. 2(C-3) O.A. No.263/2022
13. We are of the considered opinion that the acquittal in criminal case would not have a bearing to the facts of disciplinary proceedings as the standard of proof required in both, are different. However, in the present facts since the Criminal Court has arrived at a conclusion after considering the prosecution evidence and the prosecution has miserably failed to prove the charges, in the circumstances, we would be guided by the decision of the Hon'ble Apex Court in Civil Appeal No.2582/2006 - G.M. Tank Vs. State of Gujrat and Anr. decided on 10.05.2006.
14. Further, it would be worthwhile to reproduce the impugned order dated 17.01.2012. The same reads as under:-
"The services of Sh. Joginder Singh S/o Sh. Om Parkash, Driver, B.No.23212 T.No.65174, are hereby terminated with immediate effect under clause 9(a)(i) of the DRTA condition of his appointment and service regulation 1952 as per terms & condition of his appointment circulated vide letter No.PLD-3(DSSSB)/Dr. Other State/2008/215 dated 19.01.2009 & letter No.PLD-III/2009/537 dated 10.02.2009 issued by Dy. Manager (Per.)HQ.
He has not opted DTC Pension Scheme as per record.
He is required to deposit all the DTC articles in his possession with the office of the undersigned within 24 hours of the 17 Item No. 2(C-3) O.A. No.263/2022 receipt of this memo, non deposited of the DTC Articles by him in accordance with the instructions as contained in O.O.21 dated 27.1.1954 will render him liable to pay a penalty of Rs.2/- per day for the days he keeps any of DTC articles in his possession after the specified period of 24 hours. In case of police Report lodge on the date or after termination regarding loss of any returnable articles, a penalty of Rs.500/- will be imposed upon him at the time of settlement of the dues in accordance with the instructions as contained in O.O. dated 20.1.1992."
15. From the above, it emerges that while exercising the powers under Clause 9(a)(1) of the DART (Conditions of Appointment and Service) Regulations 1952: i) the competent authority has not given any reason for agreeing with the report of the Inquiry Officer ii) as reflected from the order, no opportunity has been extended to the applicant to defend his cause. Therefore, the order is not just cryptic, but in gross violation of the principles of natural justice. iii) the decision of the Criminal Court was placed before the competent authority well within the time which has been ignored before the impugned order was passed.
16. In view of what has been detailed above, the OA is allowed. The impugned DAC Report dated 18 Item No. 2(C-3) O.A. No.263/2022 04.01.2012, Inquiry Report dated NIL, Termination Order dated 17.01.2012, Appellate Authority Order dated 03.08.2012 and Order dated 30.06.2020 are quashed and set aside. The applicant shall be reinstated into service. He will not be entitled to any arrears. However, his seniority shall be fixed and consequential benefits shall be extended to him, as per law.
There shall be no order as to costs.
(Dr. Chhabilendra Roul) (Pratima K. Gupta)
Member (A) Member (J)
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