Central Administrative Tribunal - Delhi
Also Conductor vs Delhi Transport Corporation on 20 December, 2010
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH TA No.892 of 2009 New Delhi this the 20th day of December 2010 Honble Shri Shailendra Pandey, Member (A) Honble Dr. Dharam Paul Sharma, Member (J) Shri Ashok Kumar s/o Shri Kanhaya Lal, r/o D-78, School Block, Shahdara, Delhi-93. Also Conductor, Delhi Transport Corporation, B.No.13447, Patparganj Depot, Delhi 92. .... Applicant ( By Advocate Shri Ankur Chhibber ) VERSUS 1. Delhi Transport Corporation, Through its Chairman, I.P.Estate, New Delhi. 2. Depot Manager, Delhi Transport Corporation, Patparganj Depot, Delhi-92. .. Respondents ( By Advocate Shri J.N. Aggarwal ) O R D E R Dr. Dharam Paul Sharma, Member (J) :
The applicant filed Civil Writ No.3929 of 1997 in the Honble High Court of Delhi, which has since been transferred to this Tribunal consequent upon extension of its jurisdiction to the respondent Corporation.
2. The applicant is an employee of respondents Corporation as a Conductor. On 2.7.1990, the applicant was on duty aboard Bus route No.201 from Kauriya Bridge to Gaji Pur Dairy when an accident occurred whereby one Shri Rajesh Nagpal fell down from the bus and died. A criminal case vide FIR No.241/1990 under Section 304 IPC was registered. The applicant was also proceeded against simultaneously in a departmental inquiry on the following charges:-
On 2.7.90, the said Ashok Kumar was on duty on bus No.3040, route No.203/6. The said bus was plying on route no.201 from Kauriya Bridge to Gajipur Dairy Farm on the trip 8.45 p.m. When the said bus was passing through Krishna Nagar, the said Shri Ashok Kumar scuffled with one passenger named Rajesh Nagpal r/o 7/192, Geeta Colony, Delhi-31, aged 25-26 years and in the said scuffle, the said Rajesh Nagpal fell down from the rear gate of the bus near Chhachhi Building but stand and died at the spot. The police officials of Police Station Krishna Nagar arrested the said Ashok Kumar under Section 304 I.P.C. on 2.7.90 under F.I.R. No.241/90.
In this way, the said Ashok Kumar did not comply with the instructions which were issued to him at the time of his appointment.
Your above act is an irregularity under Para No.19-F.H.K. which govern the attitude of the employees of Delhi Transport Department.
3. The applicant requested the disciplinary authority to keep the departmental inquiry in abeyance until the criminal case was decided in terms of the Office Order No.15 dated 16.4.1979, a copy of which is at Annexure P 3. His request was not acceded to. The departmental inquiry was proceeded ex parte against the applicant and the inquiry officer submitted his report holding that De-reliction of duty and violation of rules apply on the accused and section K does not apply on the accused as the matter is pending disposal before the Court. The disciplinary authority thereafter passed orders of penalty of withholding of one increment with cumulative effect. The applicant was subsequently acquitted in the criminal case vide judgment of learned Additional Sessions Judge, Karkarduma, Shahdara, Delhi, dated 23.12.1995 in SC-49/1994, a copy of which is at Annexure P9. The learned judge inter alia observed that none of the witnesses of the accident, including the complainant and brother of the deceased, who claimed to have been traveling in the same bus, has deposed any incriminating statement against the accused and realizing that the statements of rest of witnesses is unlikely to prove the charge against the accused, the trial is brought to a close inasmuch as even examination of the accused under Section 313 Cr.P.C. is held unnecessary since no incriminating evidence against the accused is found. The learned judge held that the prosecution failed to bring home the guilt of the accused, he could not be judged guilty of the charge under Section 304 of IPC. After his acquittal, the applicant informed the respondents Corporation about his acquittal vide his letter dated 28.1.1996, a copy of which is at Annexure P 10, requesting for release of his increment withheld earlier. He filed a formal appeal on 8.5.1996 to the Depot Manager requesting for recalling of the order of penalty in view of his acquittal and releasing of his increment with all consequential benefits, which was rejected vide respondents Corporation order dated 10.6.1996. This was followed by a mercy appeal made on 3.10.1996. However, this was also rejected without giving any reasons. He further appealed to the appellate authority on 19.11.1996. The appellate authority rejected the same vide order dated 3.12.1996 on the ground of it being time barred. Feeling aggrieved, the applicant has filed the Writ Petition in the Honble High Court of Delhi, which is now before us for consideration and disposal.
4. The respondents have opposed the claim of the applicant on the ground inter alia that the departmental proceedings are different from the criminal proceedings and even if he is acquitted in the criminal proceedings, that would not debar the departmental action against the applicant. The charge against the applicant is for misconduct punishable under Para 19 (f), (h) and (k) of the Standing Order, which govern the conduct of the employees. The charge against the applicant in the criminal proceedings related to offence committed under Section 304 of IPC. Therefore, the decision of acquittal in the criminal case is not binding on the respondents Corporation in a departmental inquiry.
5. At the very outset, it is noticed that both departmental inquiry as well as criminal case were related to the same incident though the charges in the two cases are different, one under IPC in criminal case and another violation of Para 19 (f), (h) and (k) of the Standing Order. The applicant was awarded the penalty in departmental inquiry in 1992 and he accepted the same until the decision in the criminal case was pronounced wherein nothing incriminating was found against the applicant. This was certainly a new development having bearing in the issue involved in the case and when the applicant had filed an appeal on the basis of this new development, the respondents ought not to have dismissed it on the technical ground of it being time barred and should have considered it on merit and passed appropriate orders. Apart from this, we find that the present case is indeed a case of no evidence. The charge sheet issued to the applicant has been referred to in detailed earlier in this order, which reveals that the charges against the applicant are in respect of the accident that occurred on 2.7.1990, when the applicant was alleged to have scuffled with one passenger who fell down from the rear gate of the bus and died. He was proceeded against both in the departmental proceedings as well as the criminal proceedings in respect of the same incident. Insofar as the departmental proceedings are concerned, the charge is under Para 19 (f), (h) and (k) of the Standing Order governing the conduct of the employees that have been issued in exercise of power in para 15 (1) of D.R.T.A. (Conditions of Appointment and Service) Regulations, 1952. Para 19 contains General Provisions as to the misconduct and provides that without prejudice to the foregoing Standing Orders, the acts of commission and omission mentioned therein shall be treated as misconduct. Clauses (f), (h) and (k) under which the applicant was proceeded against departmentally are as under:-
f) Habitual breach of any rules, law, instructions or orders etc. applicable to the employees of the Authority;
h) Habitual negligence of duties and lack of interest in the Authoritys work.
(k) Any offence involving moral turpitude which is punishable under the I.P.C.
The inquiry office did not find clause (k) applicable against the applicant in view of pendency of the criminal case against him in which he has ultimately been acquitted. As regards clauses (f) and (h) are concerned, the same have been held to be proved in the inquiry. Since the incident involved in the case is an isolated one without having any past history, the same cannot be looked as habitual. Furthermore, the inquiry officer did not specify which rule, instructions, order was breached by the applicant. Nor any duty has been mentioned in respect of which the applicant has been found to be negligent and how. There is no indication of any lack of interest in the Corporations work. As a matter of fact, these necessary details are not even mentioned in the chargesheet yet the inquiry officer held that the dereliction of duty and violation of rules applied on the accused. The inquiry officer findings are not clear as to how the applicant has been found guilty of habitual breach of any rule and habitual breach of duties and lack of interest in the authoritys work. These findings are ex facie perverse, based on no evidence.
6. In view of this without going into the other contentions of the parties, the order of the penalty is quashed and set aside for not being sustainable in the absence of any evidence.
7. In the facts and circumstances of the case, the applicant shall be entitled to all the consequential relief as per the applicable rules, which the respondents are directed to release within three months of the receipt of a certified copy of this order. The TA is disposed of accordingly. No order as to the costs.
(Dr. Dharam Paul Sharma) (Shailendra Pandey)
Member (J) Member (A)
/ravi/