Central Administrative Tribunal - Delhi
Rajender Singh vs Delhi Transport Corporation, Govt. Of ... on 24 November, 2016
1 OA No.100/4307/2014
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH
O.A. No.100/4307/2014
New Delhi this the 24th day of November, 2016
HON'BLE MR. JUSTICE M.S. SULLAR, MEMBER (J)
HON'BLE MR. P.K. BASU, MEMBER (A)
Shri Rajender Singh, Age 35 years,
Ex. Driver, DTC
S/o Shri Ram Kishan
B.No.23025, T.No.64986,
R/o VPO Ujwa,
New Delh-110073. ....Applicant
(Argued by: Shri Sachin Chauhan, Advocate)
Versus
1. The Delhi Transport Corporation,
Through its Chairman,
DTC, I.P. Depot,
New Delhi.
2. The Dy. Manager,
Delhi Transport Corporation,
Hari Nagar Depot-1,
New Delhi-64.
3. The Depot Manager,
Delhi Transport Corporation,
Hari Nagar Depot-1,
New Delhi-64. ...Respondents
(By Advocate: Ms. Ruchira Gupta)
ORDER (ORAL)
Justice M. S. Sullar, Member (J) The challenge in this Original Application (OA), filed by applicant, Rajender Singh, Ex-Driver, Delhi Transport Corporation (DTC), is to the impugned Show Cause Notice (SCN) dated 02.01.2013 (Annexure A-1), orders dated 01.02.2013 (Annexure A-2), whereby his services were 2 OA No.100/4307/2014 terminated with immediate effect, dated 19.07.2013 (Annexure A-3), vide which his first appeal was dismissed by the Appellate Authority (AA) and order dated 12.11.2014 (Annexure A-4), whereby his second appeal was dismissed by the Chairman-cum-Managing Director, DTC.
2. Tersely, the facts and material culminating in the commencement and relevant for deciding the instant OA, and exposited from the record, is that, consequent upon selection to the post of Driver in DTC by Delhi Subordinate Services Selection Board (DSSSB) and on being found medically fit by the Medical Board of DTC, applicant, Rajender Singh was appointed on 09.01.2009 as Driver in DTC in the pay scale of Rs.5200-20200 plus Grade Pay of Rs.2000/- along with other admissible allowances, vide offer of appointment dated 29.11.2008 (Annexure A-7). Initially, he was appointed on probation for a period of 2 years.
3. During the course of his employment, he was stated to have caused an accident and a criminal case was registered against him, on accusation of having committed the offences punishable under Section 279/338 IPC, vide FIR No.256 dated 02.12.2010 by the police of Police Station, Darya Ganj, Delhi. As a consequence thereof, the period of probation of the applicant was extended, vide letter dated 11.02.2011 till the pendency of criminal case. 3 OA No.100/4307/2014
4. Thereafter, the impugned SCN dated 02.01.2013 (Annexure A-1) was issued to the applicant to show cause as to why his services be not terminated under clause 9(a)(i) of DRTA (Conditions of Appointment & Service) Rule. In pursuance thereof, he filed reply to the SCN, but his services were terminated, vide impugned order dated 01.02.2013 (Annexure A-2) by the DTC. The appeals filed by him were also dismissed, vide orders dated 19.07.2013 (Annexure A-3) by the AA and 12.11.2014 (Annexure A-4) by the Chairman-cum-Managing Director, DTC.
5. Aggrieved thereby, the applicant has preferred the instant OA, challenging the impugned SCN and orders, invoking the provisions of Section 19 of the Administrative Tribunals Act, 1985.
6. The case set-up by the applicant, in brief, insofar as relevant, is that, the impugned SCN and orders passed in ignorance of the report No.ND-II/C&A/2010 of Accident Committee of DTC, are bad in law. The Committee, in its report, has clearly recorded a finding that the applicant is not at fault for causing the accident in question. The DTC was required to extend the period of probation during 4 years due to the pendency of the criminal case, as he has already been exonerated by the Accident Committee of DTC. It was alleged that he has been subjected to a hostile discrimination as the similarly placed candidates were confirmed and were given the punishment of Censure. The 4 OA No.100/4307/2014 respondents have not considered the issue raised by him in reply to SCN and passed the impugned termination order in a very casual manner.
7. The case of the applicant further proceeds that very foundation of issuance of SCN and impugned termination order are based on his misconduct of causing the accident & pendency of criminal case, which are stigmatic and punitive in nature. The services of the applicant could not be terminated without holding a regular Departmental Enquiry (DE) in view of the law laid down in Deepti Prakash Banerjee Vs. Satyendra Nath Bose Natural Centre for Basic Sciences, Calcutta and others, (1999) 3 SCC 60, wherein it was held that for finding the fact that whether the order is stigmatic or simlpicitor then veil is to be lifted. The impugned termination orders were otherwise termed to be severe, harsh, arbitrary, illegal and without jurisdiction.
7. Levelling a variety of allegations and narrating the sequence of events, in detail, in all, the applicant claimed that the impugned SCN and orders are void ab initio and illegal. On the strength of the aforesaid grounds, the applicant seeks to quash the impugned SCN and orders in the manner indicated hereinabove.
8. Sequelly, the respondents refuted the claim of the applicant and filed the reply, wherein it was admitted that the Accident Committee of DTC has concluded that the 5 OA No.100/4307/2014 applicant was not at fault in causing the accident in question. But, it was stated to have been done in ignorance by the Committee. The period of probation of the applicant was extended on account of pendency of criminal case against him. It was averred that his services were terminated and the appeals were decided by passing detailed orders by the relevant authorities. It was also admitted that the matter was amicably settled between the victim and accused of the accident on payment of compensation of Rs.15,000/- in the Mediation Centre in criminal case. It was claimed that applicant was not accuited under Section 279 IPC. It was pleaded that the impugned orders are not stigmatic. Virtually acknowledging the factual matrix and reiterating the validity of the impugned SCN and orders, the respondents have stoutly denied all other allegations and grounds contained in the OA and prayed for its dismissal.
9. Controverting the pleadings in the reply of the respondents and reiterating the grounds contained in the OA, the applicant filed the rejoinder. That is how we are seized of the matter.
10. We have heard the learned counsel for the parties and have gone through the records with their valuable help.
6 OA No.100/4307/2014
11. At the very outset, inviting our attention to the import of impugned SCN, orders and order of the criminal court, the 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, only on account of misconduct causing motor vehicle accident in question and pendency of the criminal case, which according to him, is stigmatic and punitive in nature. The argument is that the services of the applicant could not have been terminated without conducting a regular DE and without following the due procedure, which may entail lesser punishment under the present set of circumstances.
12. On the contrary, Ms. Ruchira Gupta, the learned counsel for the respondents-DTC has vehemently argued that the applicant was admonished by the criminal court under Section 279 IPC, so, according to her, the report of the Accident Committee of DTC pales into insignificance. The argument is that, since the period of probation of the applicant was extended on account of pendency of the criminal case, so no DE was required and his services were rightly terminated in terms of Rule 9(a) (i) of DRTA (Conditions of Appointment & Service) Rules, by the competent authority and his appeals were correctly rejected by the AAs.
7 OA No.100/4307/2014
13. Having heard the learned counsel for the parties, having gone through the record with their valuable help and after bestowal of thoughts over the entire matter, we are of the firm view that the instant OA deserves to be allowed, for the reasons mentioned hereinbelow.
14. What cannot possibly be disputed here is that consequent upon selection to the post of Driver in DTC by DSSSB and on being found medically fit by the Medical Board of DTC, applicant, Rajender Singh was appointed on 09.01.2009 as Driver in DTC in the pay scale of Rs.5200- 20200 plus Grade Pay of Rs.2000/- along with other admissible allowances, initially for a period of 2 years, vide offer of appointment dated 29.11.2008 (Annexure A-7). His period of probation was extended vide letter dated 11.02.2011 mainly on account of pendency of criminal case against him by the DTC. In the wake of amicable settlement, the applicant paid Rs.15,000/- as compensation to the victim of the accident and compounded the offence punishable under Section 338 IPC, whereas he was admonished under Section 279 IPC by MM, Central Delhi, in Mediation/Settlement Centre, Delhi, vide order dated 08.05.2013 (Annexure A-9).
15. As a consequences thereof, the impugned SCN dated 02.01.2013 (Annexure A-1) was issued to the applicant, which reads as under:-
8 OA No.100/4307/2014
"DTC HARI NAGAR DEPOT-II; NEW DELHI No.HND-II/GO/12/34 Dated 2.1.2013 Shri Rajinder Singh S/o Shri Ram Kishan, Driver, B.No.23025, T.No.64986 was appointed on 04.02.2009. His probation has to be crossed on 03.02.2011 but due to an accident case pending in the Court U/s 279/338 IPC, his probation period was extended till the decision of the accident case. The case has not been decided till date and period of four years is going to be completed on 3.2.2013.
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".
16. In pursuance thereof, the applicant filed the reply. However, without considering the issue raised in the reply of the applicant to the SCN, the proposed punishment was confirmed and the services of the applicant were abruptly terminated in a very casual manner, vide impugned order dated 01.02.2013 (Annexure A-2) by the Depot Manager. Thereafter, the appeals filed by the applicant were rejected by passing a very brief 9 OA No.100/4307/2014 orders dated 19.07.2013 (Annexure A-3) and 12.11.2014 (Annexure A-4) by the AAs. That means, 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 respondents in theri reply.
17. 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 08.05.2013 by MM, Central Delhi, which, in substance reads as under:-
"Matter has been amicably settled between both the parties at the Mediation Centre with a compensation of Rs.15,000/. Statements of both sides have been recorded to this effect.
Compensation paid by the accused.
Accordingly, the offence u/s 338 IPC stands compounded. Additionally, accused had pleaded guilty to the offence u/s 279 IPC. Accused has been warned of the consequences but he insists on his plea. Accordingly, he is held guilty and convicted u/s 279 IPC.
Heard on sentence. Since the matter has been amicably settled and the victim has been suitably compensated, no useful purpose shall be served in taking a harsh view. The convict stands admonished u/s 279 IPC.
Let the documents of the accused and surety, if any be released as per rules.
File be consigned to Record Room after necessary compliance."
18. This is not the end of the matter. Admittedly, the DTC has constituted Accident Committee to find the truth of the accident. The Committee, vide its report (Annexure A-11), concluded as under:-
10 OA No.100/4307/2014
"On going though the FIR, Statement sketch available in the Accident performa. The Accident Committee has decided that DTC Driver is not at fault."
19. Meaning thereby, the impugned SCN and termination orders 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. Moreover, the applicant would not suffer any disqualification, as contemplate under Section 12 of the Probation of Offenders Act, 1958. In that eventuality, it was incumbent on the competent authority to conduct a regular DE and then to decide as to whether the retention of the applicant in service is desirable or regarding the nature of imposition of penalty less than termination of services of the applicant.
20. Faced with the situation, Ms. Ruchira Gupta, the learned counsel for the respondents 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. 11 OA No.100/4307/2014
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. 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 12 OA No.100/4307/2014 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. Otherwise also, the impugned termination order is very severe and harsh, vis-à-vis the alleged misconduct of the applicant. Even if the charge is proved against the delinquent official during the enquiry, he would have an opportunity to plead 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, 13 OA No.100/4307/2014 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 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 14 OA No.100/4307/2014 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.
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, Mahavir Singh Vs. DTC & Others in OA No.100/2903/2013 decided on 08.09.2016 and Jasbir 15 OA No.100/4307/2014 Singh Vs. DTC in OA No.100/3760/2013 decided on 24.10.2016.
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 respondents 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 SCN and orders 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, and without commenting further anything on merits, lest it may prejudice the case of either side in the event of regular DE, the OA is allowed. The impugned SCN dated 2.1.2013 (Annexure A-1), termination order dated 01.02.2013 (Annexure A-2) and appellate orders in first appeal and 16 OA No.100/4307/2014 second appeal dated 19.07.2013 (Annexure A-3) and dated 12.11.2014 (Annexure A-4) respectively, are hereby quashed and set aside. The respondents are 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). The parties are left to bear their own costs. Needless to mention, the respondents 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. At the same time, applicant would be at entitled to raise all the pleas including the plea of proportionality of imposition of penalty.
(P.K. BASU) (JUSTICE M.S. SULLAR)
MEMBER (A) MEMBER (J)
24.11.2016
Rakesh