Central Administrative Tribunal - Delhi
Jai Bhagwan vs Delhi Transport Corporation, Govt. Of ... on 30 November, 2017
Central Administrative Tribunal
Principal Bench: New Delhi
OA No.459/2017
MA No.469/2017
Reserved on: 16.11.2017
Pronounced on: 30.11.2017
Hon'ble Mrs. Jasmine Ahmed, Member (J)
Hon'ble Mr. Uday Kumar Varma, Member (A)
Sh. Jai Bhagwan (Ex.Driver DTC) Age 37 years,
s/o Sh. Mahavir Singh
Driver B.No.21563, T.No.63523,
R/o H.No. 283, VPO Rani Khera,
Delhi - 110 081. ...Applicant
(By Advocate: Sh. F.K. Jha)
Versus
1. Chairman-cum-Managing Director,
DTC Headquarter, I.P. Estate,
New Delhi - 110 002.
2. Regional Manager-cum-Appellate Authority,
Through CMD, DTC
DTC Headquarter, I.P. Estate,
New Delhi - 110 002.
3. The Depot Manager,
Delhi Transport Corporation,
Kanjhawala Depot,
New Delhi. ...Respondents
(By Advocate: Ms. Aarti Mahajan)
[
ORDER
By Hon'ble Uday Kumar Varma, Member (A):
MA No.469/2017 The applicant has filed this MA seeking condonation of delay in filing the main OA. The grounds taken by the applicant are that in earlier point of time he filed OA No.3717/2014 challenging the impugned order dated 2 14.08.2014, which was decided by the Tribunal vide order dated 17.10.2014 directing him to file a statutory appeal before the appellate authority. Accordingly, he claims that he filed the statutory appeal on 10.11.2014 followed by several reminders till 05.12.2016. Having no response from the respondents, he filed the present OA on 03.02.2017 admitting a delay of 61 days only. He also submits that the delay is not intentional and the same has occurred due to no response of the respondents on his appeal and reminders. He, therefore, prays that the minor delay in filing the OA be condoned and the main OA be decided on merits.
2. The respondents have filed their reply to the MA giving factual matrix of the case and stated that the applicant was terminated on 14.08.2014 and he preferred an appeal on 10.11.2014, which itself was time barred as under the relevant rules it was required to be filed within 30 days of the order. They have also submitted that since the appeal was not filed within the prescribed period of 30 days, the same cannot be called a statutory appeal and, therefore, could not be entertained. However, if the period is counted from the date of alleged appeal having been filed on 10.11.2014, even then the present OA has been filed with delay of more than 2 years and is clearly barred by 3 limitation as repeated representations, alleged to have been filed by the applicant in this case, do not extend the period of limitation. To buttress their arguments, the respondents have relied upon the decision in the case of Union of India & Ors. vs. M.K. Sarkar [2010 (2) SCC 59] wherein the Hon'ble Supreme Court, while observing that repeated representations with regard to stale or dead claims do not bring the subject back to life, has held as under:-
"15. When a belated representation in regard to a `stale' or `dead' issue/dispute is considered and decided, in compliance with a direction by the Court/Tribunal to do so, the date of such decision can not be considered as furnishing a fresh cause of action for reviving the `dead' issue or time-barred dispute. The issue of limitation or delay and laches should be considered with reference to the original cause of action and not with reference to the date on which an order is passed in compliance with a court's direction. Neither a court's direction to consider a representation issued without examining the merits, nor a decision given in compliance with such direction, will extend the limitation, or erase the delay and laches.
16. A Court or Tribunal, before directing `consideration' of a claim or representation should examine whether the claim or representation is with reference to a `live' issue or whether it is with reference to a `dead' or `stale' issue. If it is with reference to a `dead' or `state' issue or dispute, the court/Tribunal should put an end to the matter and should not direct consideration or reconsideration. If the court or Tribunal deciding to direct 'consideration' without itself examining of the merits, it should make it clear that such consideration will be without prejudice to any contention relating to limitation or delay and laches. Even if the court does not expressly say so, that would be the legal position and effect."
3. We have heard the learned counsel for the parties on the issue of limitation and have gone through the pleadings.
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4. In the peculiar circumstances of the case and in the light of facts, we consider it appropriate to examine the case in totality before giving our finding on the issue of limitation.
5. On one hand, we find that the applicant has slept over the matter for a period of more than 2 years between 2014 and 2017 except filing representation after representation and, therefore, the present OA is hit by limitation, but on the other hand, we find that the respondents have themselves admitted that the applicant had filed the statutory appeal on 10.11.2014, though not within the prescribed period of 30 days, but they have not decided the same and communicated to the applicant the fate of the appeal being barred by time. In this scenario, we are of the considered opinion that before dismissing the OA being barred by limitation, it may be necessary to examine the OA on merits as well.
OA No.459/2017
6. The instant OA has been filed by the applicant under Section 19 of the Administrative Tribunals Act, 1985 challenging the order dated 14.08.2014 of the respondent no.3 vide which his services have been terminated. He has sought the following main relief:-
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"This Hon'ble Tribunal be pleased to quash/set aside the impugned order of termination Order No.KNJD/A.I(T)CS-58/14/3069 dated 14.08.2014 thereby reinstating the applicant with full back wages with continuation of service and all other service benefits applicable to him, if he would have been in service, in the interest of justice."
7. The brief facts of the case are that the applicant joined the service of the respondents as DTC Driver in the year 2008 in the pay scale of Rs.5300-20,200/- with GP of Rs.2000/- and his selection was based on the driving licence issued by the Regional Transport Authority, Mathura (UP) vide Licence No.5019/MTR/99 and the authenticity of the said driving licence was also got verified by the respondent-department from the concerned RTA. However, the applicant contends that the respondents initiated departmental proceedings for verification of license against the applicant and other drivers without their knowledge and procured a fake report from the RTA since the original records containing the entries of driving licence issued to the applicant was either lost or burnt by the criminal elements as reported in the Delhi Police Case and on the basis of which, the applicant was issued a show cause notice on 24.07.2014 by the respondents. The applicant replied to the said show cause notice on 01.08.2014 stating therein that he is being punished without any rhyme or reason. The applicant pleaded that the show cause notice is nothing but a bundle of concocted 6 false statements and, therefore, prayed for withdrawal of the said show cause notice. It is further submitted that only on the basis of a complaint made by one Typist, the enquiry was ordered to be conducted without examining any witness or calling for record from any of the authority which is against the principles of natural justice. The applicant contends that the enquiry officer, after conducting the enquiry, held that the charges leveled against the applicant are not proved. Despite that, the respondent no.3 without applying the mind and even without considering his reply to the Show Cause Notice, terminated the services of the applicant vide order dated 14.08.2014 with immediate effect.
8. Aggrieved, the applicant approached this Tribunal by way of filing OA No.3717/2014 challenging the unlawful action of the respondents for denying him to perform his duty and the said OA was disposed of by the Tribunal vide order dated 17.10.2014 directing him to make a statutory appeal before the respondents. Accordingly, the applicant made a statutory appeal dated 10.11.2014 before the respondent no.2 following by reminders dated 28.02.2015, 31.07.2015, 18.12.2015, 29.04.2016, 13.08.2016 and 05.12.2016 but he did not receive any response/decision 7 on his appeal from the respondents and has filed the present OA for the relief, referred to in para no.1 above.
9. The applicant submits that his services have been terminated under Section 9(b) of the Executive Instructions on Procedure regarding disciplinary action and appeal, issued vide ADMI-3/18/53 dated 05.08.1955 but the employees of the DTC can only be terminated from service as per DRTA(Conditions of Appointment & Services) Regulations, 1952. He has also raised the ground that the Depot Manager is not the competent authority to issue termination letter as the competent authority is the General Manager as per Section 6 of the Regulations, 1952. The applicant has also submitted that the Hon'ble Supreme Court has laid down the principle in various judicial pronouncements that where two views are possible then the view in favour of the charged official should be taken into account. Accordingly, in his case, the respondent- department ought to have considered the report of the Dy. Transport Commissioner dated 04.09.2010 wherein it has been stated that as on today the records maintained at Mathura/Agra are so much tampered that there is no way in which the concerned department can check the authenticity and genuineness of the driving license issued to the applicant. The applicant contends that in these 8 circumstances, it is evident that even the concerned transport department was not sure of its own record as to the genuineness of the applicant's driving licence, therefore, finding of the respondents that the driving licence of the applicant was fake and warrant his termination is absurd and not tenable in the eyes of law. In this view of the matter, the applicant prays that his OA may be allowed with a direction to the respondents to reinstate him in service.
10. The respondents have filed their counter affidavit and raised preliminary objections on the ground that the applicant has concealed the material facts; the OA is bad for non-joinder of parties, barred by limitation and hit by principle of res judicata as he has already challenged the order, impugned in this OA.
11. The respondents have stated that in the process of verification of driving licence, the RTA, Mathura was requested to verify the genuineness of the applicant's driving licence No.5019/MTR/99 and in reply the ARTO Mathura vide their remarks dated 18.04.2013 (Annexure R-
7) informed that the aforesaid licence had not been issued by their office which goes to show that the said driving licence, which is prerequisite qualification for the post of 9 Driver, is fake. The respondents have submitted that the moment it is found that the applicant does not possess a valid driving licence his appointment to the post of Driver becomes void ab initio and the employer-employee relationship itself ceases to exist. It is also submitted that a chargesheet was issued to the applicant and a domestic (the respondents perhaps mean internal) enquiry was conducted. Though the enquiry officer has held the charges against the applicant not proved, yet the disciplinary authority did not agree with the findings of the enquiry officer and sent the matter to the Manager (Vigilance) on 05.05.2014 for further investigation and accordingly a team of vigilance officers was sent to the Mathura Authority but the Authority did not give any response to the said team. The respondents submit that as there was rampant fraud/illegalities/illegal racket operating outside the licensing authorities of Mathura and Agra and the disciplinary authority, therefore, did not agree with the findings of the enquiry officer and issued the show cause notice to the applicant on 24.07.2014 for showing cause against the proposed action of removal of the applicant. It is the case of the respondents that the applicant did not make any response to the show cause notice and resultantly the respondents were of the view 10 that he had nothing to say in this regard and accordingly proposed punishment of removal was confirmed by the disciplinary authority vide final order dated 14.08.2014. They have mentioned 21 other drivers who are stated to have procured fake driving licences and their services have also been terminated, to show that the applicant has not been singled out. It is also submitted by the respondents that the applicant, after dismissal of the earlier OA No.3747/2014 filed by him, has not filed any statutory appeal dated 10.11.2014, as alleged. Lastly, the respondents have prayed for dismissal of the OA on the ground of limitation as the present OA has been filed with delay of more than 2 years from the date of punishment order.
12. We have gone through the pleadings of the case and have carefully heard the arguments advanced by the learned counsel for both the parties.
13. From the record it is clear and evident that the applicant is claiming the same benefit in the instant OA which he had claimed in an earlier OA No.3717/2014 which was disposed of vide order dated 17.10.2014 by a direction to the respondents to decide his appeal, if the applicant so files. If we peruse the prayer clause of the 11 instant OA, we find that there is no prayer with regard to issuance of a direction to the respondents to decide his appeal although in the body of the OA the applicant has mentioned that he had filed an appeal on 10.11.2014. There is nothing on record to suggest that the appeal of the applicant has been formally considered and decided. However, there is a suggestion in the counter reply that the appeal was time barred but there is no order rejecting the same on this count as well. Therefore, for all intents and purposes, the appeal of the applicant is still pending consideration.
14. Before the Tribunal intervenes, it is legally appropriate that all statutory remedies are exhausted. In the instant case, the statutory remedy of appeal has not been exhausted not perhaps because of the mistake of the applicant but because of non-disposal of the said appeal because there is no formal order vis-à-vis on the appeal on record. We may state here that during the arguments, the respondents denied filing of the appeal because the copy of the appeal placed on record does not show any date. In fact, it was the contention of the respondents that the appeal and the reminders for disposal of appeal were afterthoughts and were created just to build the record without actually submitting the same to the respondents. 12 But, if we go through the counter reply filed by the respondents, in paragaraph 4.15 - 4.16 [page no.45 of the counter affidavit], the respondents have admitted that an appeal dated 10.11.2014 was filed by the applicant but not within 30 days of the punishment order, hence, the same could not be treated to be a statutory appeal. However, the fact remains that the applicant claims filing an appeal and the respondents have refused to take cognizance of the same on the ground that it is not statutory. All this has happened despite a direction from the Tribunal in OA No.3717/2014 to the applicant to file an appeal. For the sake of convenience, the relevant paragraph is reproduced hereunder:-
"The contents of these paras as stated are totally false and wrong and misleading and hence are vehemently denied. The applicant never filed any statutory appeal within time as per the rules of DTC. It is most respectfully submitted that time barred appeal alleged submitted on 10.11.2014 against an order of termination dated 14.08.2014 cannot be treated as statutory appeal which has to be preferred within 30 days as per the rules and regulations of DTC regarding appeal..."
15. Be as it may, the ends of justice will be met if the applicant is allowed to avail of the remedy of appeal by giving him benefit of doubt with a direction to the respondents to consider his appeal dated 10.11.2014 as per law and rules and to take a decision thereon within a period of six weeks. Insofar as the issue of limitation is 13 concerned, once it is felt that justice demands consideration of applicant's appeal, the delay in filing the OA becomes less significant and, therefore, we would not like to technically take the view that the OA cannot be considered because it is barred by limitation.
16. In view of above discussion, we dispose of the instant OA with a direction to the respondents to consider the appeal dated 10.11.2014 filed by the applicant and pass a speaking and reasoned order thereon as per law and rules in this regard but without making limitation as the ground of rejection. This exercise may be carried out within a period of six weeks from the date of receipt of certified copy of this order. No costs.
(Uday Kumar Varma) (Jasmine Ahmed)
Member (A) Member (J)
/Ahuja/