Central Administrative Tribunal - Delhi
Surinder Singh vs Delhi Transport Corporation, Govt. Of ... on 25 November, 2022
1
OA No. 4021/2017
Item No. 31
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
O.A. No. 4021/2017
This, the 25th day of November, 2022
Hon'ble Mr. Ashish Kalia, Member (J)
Hon'ble Dr. Chhabilendra Roul, Member (A)
Surinder Singh, Driver
S/o Sh. Chandan Singh
Age about 59 years
R/o village & PO Kanwali
Distt. Sonipat Haryana-131001
Presently at New Delhi
B. No. 10790, Group C
T. No. 31882
Presently posted: Rohini Depot No. 4
New Delhi. ... Applicant
(By ADVOCATE : Mr. Anuj Kumar Sharma)
Versus
Delhi Transport Corporation through
1. The Chairman-cum-MD
DTC, IP Estate
New Delhi.
2. The Depot Manager
Rohini Depot-4, DTC
Delhi. ... Respondents
(By ADVOCATE: Mr. Ajesh Luthra and Mr. Umesh Joshi)
2
OA No. 4021/2017
Item No. 31
O R D E R (ORAL)
Mr. Ashish Kalia, Member (J):
This OA has been filed by the applicant seeking the following reliefs:
(a) To quash and set aside the impugned orders being:
a. Order No. RHN-4/AI(T)/2017/320, Dt. 12.10.2017 by Chairman cum MD, DTC rejecting appeal of the applicant. (Annexure A-
1).
b. Order No. RHN-4/AI(T)/CS-8/16/2017/2838 dated 29.8.2017, by Depot Manager, Rohini Depot-4, awarding punishment. (Annexure A-
2) c. Order No. RHN-4/AI(T)/CS-8/16/2017/2245, dated 11.7.2017 by Depot Manager, Rohini depot-4. (Annexure A-3) asking applicant to show cause against the quantum of punishment.
d. Order No. RHN-4/CS-8/2016/239, dt.
27.5.2016, passed by Depot Manager, Rohini Depot-4 being the chargesheet issued against the applicant. (Annexure A-4) ii. To quash and set aside Order No. RHN-
4/AI(T)/2016/1867, dated 27.7.2016, passed by Depot Manager, Rohini Depot-4, not granting promotion to the applicant due to pendency of disciplinary proceedings.
(Annexure A-5) iii. To grant promotion to the applicant to the post of ATI, from back date, as would have been granted in the absence of pendency of the present disciplinary proceedings.
iv. To declare the disciplinary proceedings initiated against the applicant vide order as illegal and unjustified.
v. To allow the OA with cost.
3OA No. 4021/2017 Item No. 31 vi. To pass such other and further orders which their lordships of this Hon'ble Tribunal deem fit and proper in the existing facts and circumstances of the case."
2. The brief facts as stated by the applicant in the OA are that he was working as Driver in the respondent department since 2011 at Rohini Depot 4. It is submitted that he was being victimized by one Sh. Virendra Singh, Depot Manager of Rohini Depot-4 who has now since been promoted as Senior Manager. It is alleged by the applicant that Sh. Singh implicated him in a false case when the applicant denied paying him an amount of Rs. 50,000/- as bribe. As a result of this implication, the applicant was placed under suspension and was issued a charge sheet dated 17.11.2014. The Enquiry Officer exonerated the applicant vide his report dated 17.03.2015. Thereafter, the applicant made a representation for his promotion to the post of ATI which was pending due to pendency of disciplinary proceedings against him. The applicant also requested the Disciplinary Authority/DM Rohini-4 to decide his case at the earliest and also met him on 30.04.2015 along with one Dharam Bir, Conductor, B.No. 13513 for grant of the said benefits. It is alleged by the 4 OA No. 4021/2017 Item No. 31 applicant that the Depot Manager demanded bribe of Rs. 50,000/- to grant benefits to him. The applicant submits that since his repeated requests did not bear any fruit and the Depot Manager kept on demanding the bribe, he was constrained to make a formal complaint to Chairman, DTC.
3. It is further submitted by the applicant that despite the complaint submitted by him, the vigilance department of the respondents deputed Sh. J.P. Gupta, Inspector, Vigilance to investigate the matter, who without examining the said Senior Manager, produced an investigation report based on conjectures and surmises. Moreover, the investigation report was based on no evidence. It is stated that said Sh. J.P. Gupta, Inspector submitted his investigation report to the Addl. Manager (Vigilance) for initiating departmental action against the applicant vide his report dated 06.04.2016. In furtherance of the report of the Inspector (Vigilance), the respondents issued charge sheet dated 27.05.2016. The applicant replied to the said charge sheet on 17.06.2016.
4. It is stated that the investigation by the Inspector Vigilance was lopsided, biased and based upon conjectures and surmises. The independent witnesses arrayed by the applicant 5 OA No. 4021/2017 Item No. 31 also reiterated the fact that Sh. Virendra Singh had sought bribe from the applicant. The applicant states that owing to unimpeachable testimonies of the independent witnesses, the Enquiry Officer found the applicant not guilty of any misconduct. However, the applicant was issued Show Cause Notice dated 11.07.2017 (Annexure A-3) disagreeing with the report of the Enquiry Officer and thereby finding the applicant guilty. The applicant replied to the same vide his reply dated 23.08.2017. Thereafter, vide order dated 29.08.2017 (Annexure A-2) the Disciplinary Authority confirmed the punishment of stoppage of next due two increments without cumulative effect on the applicant. Aggrieved by the same, the applicant preferred an appeal on 03.10.2017 against the order dated 29.08.2017. The said appeal was rejected by the Appellate Authority on 12.10.2017. Hence, the OA.
5. The applicant has relied upon the decisions of Hon'ble Supreme Court in Yoginath Bagde v/s State of Maharashtra & Anr., Kuldeep Singh vs. Commr. Of Police and Rajendra Kumar Kindra vs Delhi Adminsitration.
The Hon'ble Apex Court in Yoginath Bagde (supra) has observed as under:-
6OA No. 4021/2017 Item No. 31
"41. .....The Disciplinary Committee took a final decision that the charges against the appellant were established and recorded that decision in writing and then issued a notice requiring him to show cause against the proposed punishment of dismissal. The findings were final; what was tentative was the proposal to inflict upon the appellant the punishment of dismissal from service.
6. Notices were issued to the respondents who put their appearance through Sh. Ajesh Luthra and Sh. Umesh Joshi, learned counsel. They have filed reply and argued the matter.
7. It is stated in the reply that the applicant was appointed as RC Driver in the respondent Corporation w.e.f. 06.01.1982 and had been working in Rohini Depot-4 since August 2011. It is also stated that the applicant had been punished several times in respect of different irregularities/charges. He was charge sheeted for the charges of not ensuring the out shedding of bus while he was incharge of out shedding at change over point at GTK Depot for the evening out shedding of buses at Rohini Depot-IV. Sh. Rajender Singh, Driver was also charge sheeted on similar charges and was awarded punishment of stoppage of next due one increment with cumulative effect. Regarding the complaint raised by the applicant against Sh. Virender Singh for demand of Rs. 50,000/- in lieu of previous arrears of 7 OA No. 4021/2017 Item No. 31 applicant's salary, it is stated that the same were already paid to him in the month of December 2013 and Sh. Virender Kumar took over the charge of Depot in the month of September, 2014.
8. Consequent upon receipt of complaint from the applicant, the matter was examined and the department took the decision for initiating disciplinary action against the applicant for making a false complaint and charge sheet dated 25.07.2016 was issued. Thereafter, complete case was entrusted to Enquiry Officer (North) for conducting detailed enquiry. The charges were not proved against the applicant as per findings given by the Enquiry Officer (North). The Disciplinary Authority disagreed with the Enquiry Officer's findings and issued a show cause notice dated 11.07.2017 opining stoppage of next due two increments without cumulative effect. It is stated that the applicant submitted reply to the said show cause notice and the same was not found satisfactory. Subsequently, no fresh issue was raised by the Disciplinary Authority and the punishment was confirmed on 29.08.2017.
9. Heard learned counsel for the parties at length, perused the records and appreciated the legal position. 8 OA No. 4021/2017 Item No. 31
10. The short question raised before this Tribunal is whether the Disciplinary Authority while disagreeing with the Enquiry Officer's Report, can form its view for awarding punishment or not ?
11. While going through the Show Cause Notice so issued by the Depot Manager/Disciplinary Authority, it is seen that he was of the opinion that Sh. Surinder Singh, Driver, B.No. 10790, T. No. 31822 should be imposed upon the following penalty- "Stoppage of his next due two increments without cumulative effect."
12. The applicant was exonerated by the Enquiry Officer. The Enquiry Officer opined that the charged officer cannot be held guilty as per law. The Disciplinary Authority should have mentioned the ground and material for his disagreement with the Enquiry Officer's report and facts on file. However, it has not given any opinion in this regard. He has straightforwardly issued the Show Cause Notice opining that penalty of stoppage of his next due two increments without cumulative effect should be imposed. This shows that he was sitting with a closed mind. In this regard, Hon'ble Supreme Court in the case of Punjab National Bank and ors vs. Kunj Behari Misra 9 OA No. 4021/2017 Item No. 31 and anr., AIR 1998 SC 2713 has held that though a show cause notice is issued to the applicant by the Disciplinary Authority, it should contain specific grounds on which the Disciplinary Authority is proceeding for proposing to disagree with the finding of Enquiry Officer's report. The Disciplinary Authority was required to assign reasons for such disagreement with the Enquiry Officer's report that too on the basis of record. It cannot rely upon anything which is not part of record nor can he examine any witnesses who have not been examined by the Enquiry Officer.
13. The crux of judgment in Kunj Behari Misra (supra) is that the Disciplinary Authority has to form an opinion only after explanation so given by the delinquent officer and assign reasons/grounds for his disagreement with the findings of the Enquiry Officer. If we look into the present matter, the same is absent. Instead of giving reasons for disagreement with the findings of Inquiry Officer's report, the Disciplinary Authority has simply given a Show Cause Notice with an opinion to award punishment of stoppage of next two increments without cumulative effect. This is not permissible in the eyes of law. 10 OA No. 4021/2017 Item No. 31
14. In view of the above, the present OA has got merit on its side. Thus, the same is allowed with the following directions:
(i) The impugned order dated 12.10.2017 rejecting the appeal of the applicant, order dated 29.08.2017 awarding punishment and order dated 11.07.2017 asking the applicant to show cause, is set aside.
(ii) The matter is remanded back to the Disciplinary Authority to give reasons on the disagreement with Inquiry Officer's report.
(iii) This exercise shall be completed within a period of three months from the date of receipt of a copy of this order. The OA accordingly succeeds.
There shall be no order as to costs.
(Dr. Chhabilendra Roul) (Ashish Kalia)
Member (A) Member (J)
/NS/