Central Administrative Tribunal - Delhi
Jasbir Singh vs Delhi Transport Corporation, Govt. Of ... on 24 October, 2016
1 OA No.100/3760/2013
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH
O.A. No.100/3760/2013
New Delhi this the 24th day of October, 2016
HON'BLE MR. JUSTICE M.S. SULLAR, MEMBER (J)
HON'BLE MR. P.K. BASU, MEMBER (A)
Jasbir Singh
S/o Shri Ram Dhan
Driver, B.No.22304,
T.No.54265
R/o Vi&PO Paksama,
District Rohtak, Haryana. ....Applicant
(Argued by: Shri Yogesh Sharma, Advocate)
Versus
The Delhi Transport Corporation,
Through its Chairman,
I.P. Depot,
I.P. Estate, ITO, New Delhi. ...Respondent
(By Advocate: Shri Ajesh Luthra)
ORDER (ORAL)
Justice M. S. Sullar, Member (J) The sum and substance of the facts and material, which needs a necessary mention for the limited purpose of deciding the core controversy involved in the instant Original Application (OA), and emanating from the record, is that, Applicant, Jasbir Singh was appointed on 07.01.2009 as Driver in Delhi Transport Corporation (DTC), under the pay band of Rs.5200-20200 plus Grade Pay of Rs.2000/- along with other admissible allowances, vide appointment letter dated 19.12.2008 (Annexure-C). Initially, he was appointed on probation for a period of 2 2 OA No.100/3760/2013 years, which was extended vide letter dated 20.01.2011 (Annexure-D).
2. The case set-up by the applicant, in brief, insofar as relevant, is that, during the initial period of probation, he was involved in an accident under Section 279/338 IPC vide FIR No.304/2010. He paid a sum of Rs.50,000/- as compensation to the injured. Accordingly, the offence under Section 338 IPC was compounded. However, he was admonished and benefit of Section 3 of Probation of Offenders Act was granted to him under Section 279 IPC, vide judgment dated 27.05.2013 (Annexure-E) by the CMM, West Delhi. It was alleged that the respondent has also initiated a Departmental Enquiry (DE) against the applicant, in which it has been opined by the Board "on going through the accident peforma, the accident committee has decided that DTC Driver (applicant) is not at fault", vide enquiry report dated Nil (Annexure-F).
3. The case of the applicant was stated to be fully covered by Office Circular No.PLD-II-3(12)/78/10011 dated 24.08.1978, wherein it has been mentioned that "as to the category of drivers involved in fatal accident resulting in challan under Section 304A of IPC, the accident committee will give an opportunity of personal hearing to the probationer driver and thereafter pass a speaking order declaring the driver 'at fault' or 'not at fault' as the case may be. No termination should be ordered unless the 3 OA No.100/3760/2013 accident committee report has found the driver at fault after hearing him".
4. The case of the applicant further proceeds that surprisingly he received impugned Show Cause Notice (SCN) dated 21.12.2012 (Annexure-G) proposing to terminate his services on account of the said accident despite the fact that he was found not at fault by the DTC Committee. He submitted his reply dated 31.12.2012 (Annexure-H) to the SCN in this regard.
5. However, the competent authority confirmed the proposed punishment of termination of the applicant, vide impugned order dated 04.01.2013 (Annexure-A). The appeals dated 14/18.01.2013 filed by him did not find favour and was dismissed by the competent authority, conveyed to the applicant vide letter dated 18.03.2013 (Annexure-I) and second appeal dated 26.03.2013 was also rejected vide order dated 31.07.2013 (Annexure-J) by the Appellate Authority.
6. Aggrieved thereby, the applicant has preferred the instant OA, challenging the impugned orders, invoking the provisions of Section 19 of the Administrative Tribunals Act, 1985 on the following grounds:-
"A. That the action of respondent is highly illegal, discriminatory and mala fide as it has been opined by the Accident Committee that "Driver was not at fault".
B. That no personal hearing has been granted in favour of the applicant while disposing off the appeals filed by him before both the appellate authority. Hence the violation on the part of the respondent is against the settled principle of law enshrined under 4 OA No.100/3760/2013 Article 14 of the Constitution of India. Hence the impugned order deserves to be interfere by this Hon'ble Court thereby setting aside the same.
C. That the action of respondent is highly illegal, discriminatory and mala fide as there is no any terms and conditions specified in the appointment letter dated 19.12.08 that the services of the applicant would be terminated if the applicant will involve in any accident/criminal case.
D. That the Ld. Appellate authority has failed to taken into account the outcome of the criminal case registered against the applicant arising out of the alleged accident. E. That the action of respondent is highly illegal, discriminatory and mala fide and the appeal filed by the applicant has been dismissed/rejected by way of a non speaking order. F. That the respondent has not considered the case of the applicant sympathetically rather a harsh decision has been taken against him. The applicant has filed certain RTI application through his counsel and after coming to know the outcome of the said RTI applications, the applicant has came to know that there are several DTC drivers who are presently working on regular basis despite the fact that they are the accused in cases under section 279/337/338 IPC and at the time of accident their probation period have not been crossed and it is also pertinent to mention here that on the departmental inquiry conducted by the DTC, the inquiry committee opined that "at fault". From which it is candid and clear that a discrimination has been meted out to the applicant at the end of the respondent for which kind indulgence of this Hon'ble Tribunal is very essential. Copy of RTI application as well as their outcomes are annexed herewith as Annexure K (Colly) G. That the action of respondent is highly illegal, discriminatory and mala fide as the impugned order dated 31.07.2013 do not specify any cogent reason for termination of the services of the applicant.
H. That the action of respondent is highly illegal, discriminatory and mala fide as due to the said illegal termination of the applicant, the applicant and his entire family is at the stage of starvation as the applicant has no other source of income.
I. That the action of respondent is highly illegal, discriminatory and mala fide as the respondent did not appreciate the reply dated 31.12.2012 in response to the show cause notice dated 21.12.2012 and reply dated 07.01.2013 to termination order dated 04.01.2013 submitted by the applicant.
J. That the action of respondent is highly illegal, discriminatory and mala fide as the respondent totally failed to appreciate the office order dated 24.08.1978 in which it is clearly mentioned that, "No termination should be ordered unless the accident committee report that "it has found the driver at fault after hearing him." K. That the action of respondent is highly illegal, discriminatory and mala fide as no personal hearing has been granted to the applicant to present his defence, hence the impugned termination order is likely to be set aside by this Hon'ble Tribunal. 5 OA No.100/3760/2013
L. That the action of respondent is highly illegal, discriminatory and mala fide as the fundamental right of the applicant has been encroached upon by the respondent while passing the impugned termination order.
M. That the action of respondent is highly illegal, discriminatory and mala fide as the respondent failed to appreciate the service record as well as conduct of the applicant during the tenure of his service period.
N. That the respondent have failed to apply principles of equality and natural justice for which the applicant deserves. O. That the appellate authority has failed to comply with the settled principle of law as set out by the Hon'ble apex Court in the catena of judgments.
P. That the applicant seeks the liberty of this Hon'ble Tribunal to raise some other grounds at the time of hearing of the present appeal."
7. On the strength of the aforesaid grounds, the applicant seeks to quash the impugned SCN and orders in the manner indicated hereinabove.
8. The respondent refuted the claim of the applicant and filed its reply, wherein it was pleaded that during the probation period, the applicant caused the accident in question. However, it was acknowledged that he was declared, "not at fault" by the accident committee of DTC, but it was admitted that keeping in view the facts that the applicant has caused an accident and his driving skills, his services were rightly terminated after issuing him SCN.
9. Virtually acknowledging the factual matrix and reiterating the validity of the impugned SCN and orders, the respondent stoutly denied all other allegations and grounds contained in the OA and prayed for its dismissal. 6 OA No.100/3760/2013
10. Controverting the pleadings in the reply and reiterating the grounds contained in the OA, the applicant filed the rejoinder. That is how we are seized of the matter.
11. We have heard the learned counsel for the parties and have gone through the records with their valuable assistance.
12. Inviting our attention to the import of impugned orders and order of the criminal court, at the very outset, learned counsel for the applicant has contended, with some amount of vehemence, that the impugned SCN was issued to the applicant proposing and his services were terminated, vide impugned order dated 04.01.2013 only on account of causing motor vehicle accident in question, which is stigmatic and punitive in nature. The argument is that the services of the applicant could not have been terminated without conducting a regular departmental enquiry and without following the due procedure by the DTC under the present set of circumstances.
13. On the contrary, Shri Ajesh Luthra, the learned counsel for the respondent has fairly acknowledged, that, no doubt, the accident committee of the DTC has concluded that the applicant was not at fault in causing the accident in question, but he vehemently urged that since his period of probation was extended, so no DE was 7 OA No.100/3760/2013 required. His services were rightly terminated by the competent authority.
14. Having heard the learned counsel for the parties and having gone through the record with their valuable assistance and after considering the entire matter, we are of the firm view that the instant OA deserves to be allowed, for the reasons mentioned hereinbelow.
15. As is evident from the records, that the applicant was appointed as a Driver on 07.01.2009 in the pay band of RS.5200-20200 plus Grade Pay of Rs.2000/- along with admissible pay and allowances, vide offer of appointment letter dated19.12.2008 (Annexure-C). His probation period was extended, vide letter dated 20.01.2011 (Annexure-D). He met with an accident and criminal case under Section 279/338 IPC was registered against him. On the basis of his confessional statement, he was admonished under Section 3 of Probation of Offenders Act, vide order dated 27.05.2013 by CMM West Delhi.
16. As a consequence thereof, impugned SCN dated 21.12.2012 (Annexure-G) was issued to the applicant, which reads as under:-
"DTC HARI NAGAR DEPOT-II; NEW DELHI No.HND-II/GO/12/4833 Dated 21.12.2012 Shri Jasbir Singh S/o Shri Ram Dhan, Driver, N.No.22304, T.No.64265 was appointed on 07.07.2009. His probation has to be crossed on 06.01.2011 but due to an accident case pending in the Court U/s 279/338 IPC, his probation period was extended till the 8 OA No.100/3760/2013 decision of the accident case. The case has not been decided till date and period of four years is going to be completed on 6.1.2013.
Manager (PLD) H.Qrs. vide letter No.PLD-III/Dr/2011/1169 dated 11.03.2011 had forwarded the minutes of the DTC Board Meeting held on 11.02.2011 Resolution No.22/2011 (Item 20/2011) in which following guidelines had been approved regarding probation on appointment & its completion:
"Since the duration of probation period for driver now has increased to tow year, the figure(s) factor as laid down in the criteria of Govt. of India vide No.GI/MHA/OM/No.44/1/59 Estt (A) dated 15.4.1959 may be allowed to be multiplied by two and the probation period should not be extended by more than one year in normal cases and not employee should be kept on probation for more than double the normal period of probation i.e. 2 years in case of drivers and same criteria may be applied in other categories of posts with respect to extension of probation period".
So, the undersigned is provisionally of the opinion that a show cause notice for termination from the services of the Corporation with immediate effect be issued to him under Clause 9(A) DRTA (Conditions of Appointment & Services).
Before, I take this action, I desire to give him in accordance with the Provisions of Section 95(2) DTC Act, 1967 read with Section ( C) of the Delhi Transport Law Amendment Act, 1971 an opportunity of showing cause (sic) against action proposed to be taken in regard to him. Any representation which was (sic) given by him may in this connection be taken into consideration before the final orders are passed. Such representation, if any, may be forwarded in writing to this office within a week of the receipt of this memo, failing which it will be assumed that he has no other representation to make and final orders in the case will be passed.
DEPOT MANAGER".
17. In pursuance thereof, the applicant filed the reply. However, the proposed punishment was confirmed and the services of the applicant were abruptly terminated, vide impugned order dated 04.01.2013 (Annexure-A) by the Depot Manager. Thereafter, the appeals filed by the applicant were rejected by the Appellate Authorities. In other words, the services of the applicant were terminated on account of the accident in question and the pendency of the criminal case. Not only that the same very specific stand and reasons for termination of the services of the applicant has been pleaded by the respondent in its reply.
9 OA No.100/3760/2013
18. It is not a matter of dispute that in the wake of confessional statement, the applicant was admonished under Section 3 of Probation of Offenders Act, vide order dated 27.05.2013 by CMM West Delhi, which, in substance reads as under:-
"Court has considered the statement of accused. In view of the statement of accused he is convicted for the offence U/s 279 IPC. Offence u/s 338 IPC has been already compounded and the accused has paid the compensation of Rs.50,000/- to the injured. In view of the compounding of offence u/s 338 IPC, he is acquitted for the same.
Arguments on sentence heard.
Considering the compounding of offence by the injured as well as considering that there is no previous conviction of accused and further considering that accused is a government servant and the imprisonment may have adverse effect upon the service of accused and made lead to vagrancy. The court is of the opinion that this is a fit case where the benefit of Probation of Offenders Act is granted to convict.
Accordingly convict is admonished u/s 3 of Probation of Offenders Act".
19. Meaning thereby, the impugned SCN and termination order based on it, is smeared with stigma. Indeed, the impugned SCN and orders are stigmatic and punitive in nature. Naturally, such an order ought not to have been passed, without following the due procedure by the competent authority, particularly when the accident committee of DTC itself found that the applicant was not at fault in causing the accident in question & the offence under Section 338 has already been compounded and he was admonished under Section 279 IPC by the criminal court keeping in view its effect on its service career. In that eventuality, it was incumbent on the competent authority to conduct a regular DE and then to decide as to whether 10 OA No.100/3760/2013 the retention of the applicant in service is desirable or regarding the nature of imposition of penalty or termination of services of the applicant.
20. Faced with the situation, Mr. Ajesh Luthra, the learned counsel for the respondent then submitted that since the applicant was on probation and was not a permanent employee, so there was no legal requirement to hold a regular departmental enquiry against him.
21. We are afraid, we cannot accept this contention of learned counsel for the respondents, in view of ratio of law laid down by the Hon'ble Apex Court in case Anoop Jaiswal Vs. Government of India and Another (1984) 2 SCC 369 wherein it was ruled that even in case of a probationer, court can go beyond the formal order of discharge to find the real cause of action. Simple order of discharge of probationer on ground of unsuitability passed before his completion of the probation period, which is based on report/recommendation of the concerned authority, indicating commission of alleged misconduct by the probationer, then order is punitive in nature, which in the absence of any proper enquiry amounted to violation of Article 311(2) of the Constitution of India.
22. Again, the same view was reiterated by Hon'ble Apex Court in case Andhra Pradesh State Federation of Coop. Spinning Mills Ltd. and Another Vs. P.V. 11 OA No.100/3760/2013 Swaminathan (2001) 10 SCC 83 wherein it was held that "the legal position is fairly well settled that an order of termination of a temporary employee or probationer or even a tenure employee, simplicitor without casting any stigma may not be interfered with by court. But, at the same time, the court is not debarred from looking to the attendant circumstances, namely, the circumstances prior to the issuance of order of termination to find out whether the alleged inefficiency really was the motive for the order of termination or formed the foundation for the same order. If the court comes to a conclusion that the order was, in fact, the motive, then obviously the order would not be interfered with, but if the court comes to a conclusion that the so called inefficiency was the real foundation for passing of order of termination, then obviously such an order would be held to be penal in nature and must be interfered with since the appropriate procedure has not been followed".
23. Therefore, once it is proved on record that the services of the applicant were terminated for misconduct by virtue of the impugned stigmatic and punitive order, then the protection under Article 311 of the Constitution of India is available to him and his services cannot be terminated on speculative grounds, without holding an enquiry. Even if the charge is proved against the delinquent official during the enquiry, he would have an 12 OA No.100/3760/2013 opportunity to plea for proportionality of the punishment vis-à-vis the charge of misconduct. This matter is no more res integra and is now well settled.
24. An identical question came to be decided by the Hon'ble Apex Court in the Ratnesh Kumar Choudhary Vs. Indira Gandhi Institute of Medical Sciences, Patna, Bihar and Others JT 2015 (9) 363, wherein having considered the previous judgments of Hon'ble Supreme Court in cases Samsher Singh v. State of Punjab (1974) 2 SCC 831, Radhey Shyam Gupta vs. U.P. State Agro Industries Corporation Ltd. and Another (1999) 2 SCC 21, State of U.P. vs. Kaushal Kishore Shukla (1991) 1 SCC 691, Triveni Shankar Saxena vs. State of U.P.(1992) Supp (1) SCC 524, State of U.P. vs. Prem Lata Misra (1994) 4 SCC 189, Samsher Singh (supra), Parshotam Lal Dhingra vs. Union of India AIR 1958 SC 36, State of Bihar vs. Gopi Kishore Prasad AIR 1960 SC 689, State of Orissa vs. Ram Narayan Das AIR 1961 SC 177, Gujarat Steel Tubes Ltd. vs. Gujarat Steel Tubes Mazdoor Sabha (1980) 2 SCC 593, Gujarat Steel Tubes Ltd. vs. Gujarat Steel Tubes Mazdoor Sabha (1980) 2 SCC 593, Anoop Jaiswal vs. Govt. of India (1984) 2 SCC 369, Nepal Singh vs. State of U.P. (1980) 3 SCC 288, Commissioner, Food & Civil Supplies vs. Prakash Chandra Saxena (1994) 5 SCC 177, Commissioner, Food & Civil Supplies vs. Prakash 13 OA No.100/3760/2013 Chandra Saxena (1994) 5 SCC 177, Chandra Prakash Shahi vs. State of U.P. and Others (2000) 5 SCC 152, Union of India and Others vs. Mahaveer C. Singhvi (2010) 8 SCC 220, Dipti Prakash Banerjee vs. Satyendra Nath Bose National Centre for Basic Sciences (1999) 3 SCC 60, Pavanendra Narayan Verma vs. Sanjay Gandhi P.G.I. of Medical Sciences and Another (2002) 1 SCC 520] and State Bank of India and Others vs. Palak Modi and Another (2013) 3 SCC 607, it was ruled by the Apex Court that if the termination order is stigmatic and based or founded upon misconduct, would be a punitive order and court can lift the veil and declare that in the garb of termination simpliciter, the employer has punished an employee, for an act of misconduct. It was also held that if a probationer is discharged on the ground of misconduct or inefficiency or for similar reason, without a proper enquiry and without his getting a reasonable opportunity of showing cause against the termination, it may amount to removal from service within the meaning of Article 311 (2). Hence, a show cause notice was required to be issued and opportunity of being heard has to be provided to such employees in departmental enquiry before passing any adverse order. In the absence of which, the termination order would be inoperative and non-est in the eyes of law. 14 OA No.100/3760/2013
25. Sequelly, the same view was followed by this Tribunal in cases Jaibir Antil Vs. Director, Department of Women and Child Development, Govt. of NCT of Delhi and Others in OA No.100/1232/2014 decided on 10.08.2016 and Mahavir Singh Vs. DTC & Others in OA No.100/2903/2013 decided on 08.09.2016.
26. Therefore, such impugned stigmatic and punitive order of termination, passed on account of causing motor vehicle accident and criminal case against the applicant by the competent authority would be inoperative and cannot legally be sustained. Thus, the contrary arguments of the learned counsel for the respondent stricto sensu deserve to be and are hereby repelled. On the other end, the ratio of law laid down in the indicated judgments of Hon'ble Apex Court and this Tribunal is mutatis mutandis applicable in the present controversy and is a complete answer to the problem in hand.
27. Thus, seen from any angle, the impugned order cannot legally be sustained in the obtaining circumstances of the case.
28. No other point, worth consideration, has either been urged or pressed by the learned counsel for the parties.
29. In the light of the aforesaid reasons, OA is allowed. The impugned SCN dated 21.12.2012 (Annexure- 15 OA No.100/3760/2013 G), termination order dated 04.01.2013 (Annexure A) and appellate orders in first appeal and second appeal dated 18.03.2013 (Annexure-I) and dated 31.07.2013 (Annexure- J) respectively, are hereby quashed and set aside. The respondent is directed to reinstate the applicant in service forthwith, with all consequential benefits. However, he would be entitled to only 50% of the back wages in view of the judgment of the Hon'ble Apex Court in Ratnesh Kumar Choudhary's case (supra). However, the parties are left to bear their own costs.
Needless to mention, the respondent would be at liberty to initiate appropriate DE proceedings against the applicant for his alleged misconduct keeping in view the aforesaid observations and in accordance with law.
(P.K. BASU) (JUSTICE M.S. SULLAR)
MEMBER (A) MEMBER (J)
24.10.2016
Rakesh