Central Administrative Tribunal - Delhi
Sh. Ram Kumar Rathee vs Delhi Transport Corporation on 10 March, 2010
Central Administrative Tribunal
Principal Bench, New Delhi.
TA-465/2009
New Delhi this the 10th day of March, 2010.
Honble Mr. Justice M. Ramachandran, Vice-Chairman(J)
Honble Mr. N.D. Dayal, Member(A)
Sh. Ram Kumar Rathee,
S/o late Shri Ram Phal,
R/o 12/477, Old Jhajjar Road,
Behind Kundan Cinema,
Village & Post Office Bahadurgarh,
District Jhajjar,
Haryana. . Applicant
(through Sh. D.K. Nag, Advocate)
Versus
1. Delhi Transport Corporation
through its Chairman/Managing Director
I.P. Estate,
New Delhi.
2. The Depot Manager,
Nangloi Depot,
Delhi Transport Corporation,
Nangloi, Delhi-41. . Respondents
(through Sh. J.S. Bhasin and Ms. Rashmi Priya, Advocate)
O R D E R
Mr. N.D. Dayal, Member(A) This application was filed as Writ Petition No.3218/2006 before the Honble High Court of Delhi and has been transferred to the Tribunal on 16.02.2009 in pursuance of the Notification issued by the Central Government No. SO (E) dated 01.12.2008.
2. We have heard the learned counsel for both sides. The applicant is seeking the setting aside of order dated 03.03.2004 by which he has been removed from service along with the order dated 16.12.2004 rejecting his appeal as well as the order dated 22.08.2000 whereby he was placed under suspension, with appropriate direction to reinstate him from the date of his removal with full wages and consequential benefits/services.
3. The respondents have opposed the applicants prayer by their counter affidavit and additional counter affidavit filed thereafter. The applicant has filed rejoinders to the same.
4. Learned counsel for the applicant has submitted that he is assailing the invoking of Clause 15 (2)(c) (ii) of the DRTA (Condition of Appointment & Service) Regulation 1952 (for short the Regulation) and its application to the case of the applicant. It is stated that initially the applicant was suspended by order dated 22.08.2000 at Annexure P-1 which mentions receipt of a note dated 20.07.2000. His representations to allow him to join duty remained without result. However, he began to receive subsistence allowance. On 03.03.2004 by the order at annexure P-4, the applicant was removed from service of the Corporation under the Regulation assailed above. There was a further order that if a police report is lodged on or after his removal regarding loss of DTC articles, a sum of Rs.500/- will be recovered from the settlement dues in accordance with office order dated 20.01.1992.
5. The applicant made several representations asking for the reason for such removal from service without any charge-sheet, enquiry or show-cause notice etc. contrary to the principles of natural justice and challenging the relevance of the above Regulation in his case. An appeal was preferred on 5.04.2004 to the CMD against the removal from service taking similar grounds. It was also stated that the Depot Manager was not competent to pass the order of removal. When the appeal was not decided for some time a Writ Petition No. 17623/2004 was filed by the applicant before the Honble High Court which was disposed of on 08.11.2004 with a direction to dispose of the appeal within one month of that day by a speaking order. The applicant was called for a personal hearing and thereafter by letter dated 17.12.2004 he was informed that the appeal had been rejected without mentioning any reasons. The order passed by the Appellate Authority was not communicated.
6. According to the applicant he filed another Writ Petition No. 2624/2005 during pendency of which an affidavit dated 18.02.2005 was filed by the Regional Manager (Rural), DTC, Peera Garhi Depot, New Delhi. The Court found that not only had a cryptic order been passed after its directions in the previous Writ Petition, but even in this affidavit the entire order has not been filed or reproduced and that it further compounds what was seen to be as Contempt of Court. Thus, Shri G.K. Sabharwal, Regional Manager (Rural) who had filed the affidavit was asked to be personally present on the next date.
7. Thereafter another affidavit dated 24.02.2005 was filed in which it had been submitted that the action taken by the Disciplinary Authority emanated from a letter dated 20.07.2000 addressed to CMD, DTC by Under Secretary, MHA. A copy of the letter was enclosed which shows that the applicant was a driver of DTC performing duty on the Delhi Lahore Bus. During his journey on 27th and 28th June 2000 he was noticed handing over a newspaper The Hindustan Times to TST Havildar at Lahore. He was also seen conversing for a long time with Pak Security officials. It was learnt that he visits the house of a prostitute in Lakshminagar, Delhi, the address of whom was given to him by a special branch Havildar at Lahore. As such the CMD was asked to look into and take necessary action against the driver and he should be relieved of his duties on Delhi Lahore Bus.
8. As submitted in the affidavit, the matter was placed before the DTC Board four years later on 29.01.2004 for approval to waive off the disciplinary procedure of issuing a charge sheet and enquiry as permissible under Clause 15 (2)(c)(ii) of the Regulations for exceptional cases when there were special and sufficient reasons which were to be recorded. The DTC Board was also asked to authorize the Depot Manager, Nangloi Depot who was the Disciplinary Authority to take disciplinary action against the applicant. By Resolution No. 11//2004 dated 03.02.2004 the DTC Board gave its approval. Thereafter, order was passed by the Disciplinary Authority on 03.03.2004 removing the applicant from service and the Appellate Authority also passed an order on 16.12.2004 following directions of the Honble High Court whereby the appeal was rejected.
9. It is seen from Annexure P-15 that the Honble High Court of Delhi had made certain observations on 02.03.2005 expressing doubts about the justification for taking such action against the applicant and that too without giving any opportunity and in great haste. It was also opined that the Appellate order is little more than paraphrasing of the order of the Depot Manager removing the applicant from service, which made the provision of Appeal wholly illusory and futile. The Court gave directions that the pleadings be completed. Thereafter on 25.01.2006 the Writ Petition was disposed of by granting liberty to withdraw the same and prefer fresh petition challenging the order of removal as well as the regulations in question.
10. The applicant is aggrieved that he has been removed from service without following the process of law or being given an opportunity to defend himself in accordance with the prescribed procedure by invoking the Regulation noticed above for which there were no sufficient grounds and even the Honble High Court had made observations against the same. By reference to the affidavit and documents submitted by the respondents it is contended that a mere letter dated 20.07.2000 from Under Secretary, MHA without any further details or information could not have been regarded as adequate to invoke the draconian provisions of the Regulation and even no acceptable reasons which could bear scrutiny have been recorded to justify the action taken. Yet the proper procedure has been waived by the DTC Board.
11. The applicant has further explained that on reaching Lahore in the evening, the Bus as well as its crew were under the supervision of Pakistani Officials and escorted by them. One English (Hindustan Times) and one Hindi newspaper, mineral water and something to eat etc. used to be provided by DTC. As such some interaction was unavoidable between those who went from India and the Pakistani Officials. The Honble High Court by its order dated 02.03.2005 has appreciated that the purpose of running a Bus from Delhi to Lahore was for citizens of both countries to meet, mingle and interact with each other and there is nothing to show that there was any prohibition on the same.
12. By their counter affidavit the respondents have stated that the applicant has an alternative remedy under the Industrial Disputes Act, 1947 but it is not their case that the option does not lie with the applicant to select the forum of this Tribunal in terms of Section 28 of the Administrative Tribunals Act, 1985. They have reiterated what had been stated in the affidavit to explain the circumstances in which the detailed procedure was waived by the DTC Board emphasizing that the charges were serious and activities of the applicant were found to be clearly detrimental to national security amounting to serious irregularities as per letter dated 20.07.2000 issued by Under Secretary, MHA. It is asserted that the DTC has full powers to make its own Rules and Regulations. Thus the action taken is neither arbitrary nor mala fide or misuse of powers.
13. In his rejoinder the applicant has brought out that in fact the Under Secretary, MHA was unable to provide any further details despite repeated requests by the DTC and as such merely on the basis of the letter dated 20.07.2000 the respondents could not have decided to deny opportunity to the applicant and impose penalty contrary to the principles of natural justice. He contends that the allegations against him were false and unsubstantiated.
14. The respondents have enclosed with their reply a copy of the Regulations of 1952 which empower the DTC Board to waive the normal disciplinary procedure in an appropriate case. From copy of Resolution No.11 of 2004 it is seen that it was felt that giving opportunity to the applicant would disclose security information, its source and require production of the concerned persons as witnesses etc. which would not be possible considering the sensitivity of the matter. From a copy of note which appears to have been signed by Secretary, DTC Board for consideration of the Board certain further details of the case become evident. It seems that the re-deployment of the applicant as Driver of the Delhi Lahore bus was discontinued from 24.07.2000 and he was placed under suspension thereafter on 23.08.2000. When initiative was taken up to get the detailed procedure of disciplinary action waived by the DTC Board, the CMD had, inter alia, minuted thereon that the process of law should not be violated but if there are special circumstances it should be stated clearly. As such more details were called for from the Under Secretary but the Deputy Secretary (PAK-II) informed that if departmental proceedings are contemplated, same be initiated on the basis of existing details as no further details are available. Thereafter the CMD minuted that it was a case where documents may not be available due to security requirement and while deviating from the laid down procedure, evidence must be collected so that enquiry be done and full opportunity is given. Thereafter on 15.05.2002 the Under Secretary, MHA was again asked to provide more details but by his reply dated 23.05.2002 he intimated that no further details were available. Therefore based on legal opinion for waiving of the departmental enquiry the matter was referred for approval and the Vigilance Officer gave his advice on 30.05.2003 that the applicant be dismissed due to activities detrimental to National Security amounting to grave misconduct. Further legal opinion from the Standing Counsel also gave support for invoking the relevant clause of the Regulations to impose punishment without any enquiry, but after recording the special and sufficient reasons for doing so. Since the DTC Board was competent in the matter the normal disciplinary procedure was waived.
15. The applicant by an additional rejoinder has denied that there was any grave misconduct or it was detrimental to National security etc. that could justify waiving of the prescribed procedure as well as ignoring the principle of Audi Alterm Partem.
16. Upon giving careful consideration to the submissions of the learned counsel and the pleadings before us, we find that the genesis of the case was the letter dated 20.07.2000 from Under Secretary, MHA. This letter mentions only that the applicant was noticed handing over a newspaper The Hindustan Times to the Havildar at Lahore and seen conversing for a long time with Pak Security officials. Further, that it was learnt that he visits the house of a prostitute, the address of whom was given by a Special Branch Havildar at Lahore. Significantly there is no indication as to the source of report and the reliability thereof. It is not disputed that the newspaper in question was supplied by DTC to the Bus along with other items. Nor that the bus and crew etc. remained under the control and supervision of Pak officials at Lahore. As such, if the newspaper was exchanged and the applicant was talking to the security officials there, it could hardly be sufficient to draw such adverse conclusions. The statement that the applicant was conversing for a long time by itself cannot be said to cast suspicion of the kind that has been implied. This letter also does not reveal the source or vouch for its reliability from which it was learnt that the applicant visited a prostitute at an address given by a special branch Havildar at Lahore. Besides, the letter concludes only by saying that the matter be looked into for necessary action and the applicant be relieved of his duties on the Delhi Lahore Bus. It would be difficult to say that the letter which is rather vague and indefinite provided sufficient material to form the opinion that the applicant was liable to disciplinary action for serious irregularities and activities detrimental to national security. The recommendation contained in it could not be said to justify the extreme measures taken against the applicant and that too in the absence of any further details from the MHA.
17. It is noticeable that in Writ Petition No. 2624/2005 the Honble High Court had made observations at some length against the action taken by the respondents. It was noted that the foremost object of the Delhi Lahore Bus service was to garner amity between the two Nations. It was difficult to fathom out how and why either of the two incidents in Pakistan can be treated as misconduct inviting a dismissal from service which is at the very least, a mystery. Even visiting the prostitute could not be connected with handing over of The Hindustan Times or conversing with Pak security officials. It could not be imagined how it would be possible for a person not to converse with another while in a foreign country on duty and nothing had been shown by the respondents which prohibited any of the employees of DTC from meeting or talking with Pak citizens. It was opined that the facts could not be seen as justifying the waiver of departmental enquiry.
18. Therefore, in terms of the ratio of the judgment of the Honble Supreme Court in Bhikhubhai Vithlabhai Patel & Ors. Vs. State of Gujarat & Anr., 2008(4)SCALE 278, there being neither any sufficient material to form an opinion for initiating the action which was taken by the respondents against the applicant, nor the reasons recorded for the same being rational and acceptable in the facts and circumstances of the case, we are unable to uphold in law the imposition of penalty of removal from service upon the applicant by waiving the prescribed procedure and thereby doing away with the requirement of giving the applicant the opportunity to defend himself accordingly, contrary to the principles of natural justice. The orders passed by the Disciplinary Authority dated 03.03.2004 and the Appellate Authority dated 16.12.2004 are set aside. The applicant shall be reinstated with consequential benefits. He shall be entitled to payment of back wages despite reliance by respondents on Union Territory, Chandigarh Vs. Brijmohan Kaur, (2007) 11 SCC 488, in the peculiar facts and circumstances of the present case but limited to 50% only. Let orders be passed by the competent authority within four weeks from the date of receipt of a certified copy of this order. No costs.
(N.D. Dayal) (M. Ramachandran) Member(A) Vice-Chairman(J) /vv/