Central Administrative Tribunal - Delhi
Phool Kanwar vs The Cmd Of on 22 May, 2015
CENTRAL ADMINISTRATIVES TRIBUNAL PRINCIPAL BENCH: NEW DELHI OA NO.2936/2011 Reserved on 08.05.2015 Pronounced on 22.05.2015 HONBLE SHRI ASHOK KUMAR, MEMBER [A] HONBLE SHRI RAJ VIR SHARMA, MEMBER [J] Phool Kanwar, S/o Late Shri Manu Ram, Driver, B.No.12280, Pay Token No.36958, BBM Depot-II, Delhi-110 009. Applicant [By Advocate: Shri Ram Sewak] VERSUS The CMD of M/s Delhi Transport Corporation, I.P. Estate, New Delhi-110 002. Respondent [By Advocate: Shri Sarfaraz Khan] :ORDER:
BY SHRI ASHOK KUMAR, MEMBER [A]:
This OA has been filed against the order of the respondents dated 13.07.2010 inflicting the punishment of bringing the applicant on initial stage in the time scale of Driver for two years during which period he would not earn his normal increments. Applicant filed an appeal on 09.08.2010. Subsequently a revision was filed by the applicant before the Chairman of DTC as Revisional authority but no order was received except a communication dated 08.04.2011 at Annexure-A/5 inter alia rejecting his appeal without assigning any reasons. Aggrieved by the aforenoted impugned order the applicant has approached this Tribunal by filing the instant OA seeking the following reliefs:-
a] Quash and set aside major penalty of punishment order dated 13.7.2010 of the disciplinary authority with a consequential directions to the disciplinary authority that the reduced time scale be re-extended into the un-reduced pay scale along with normal annual increments and thereafter, further directions may kindly be issued to the disciplinary authority to pay extended arrears pay and allowances with service benefits to an applicant.
b] Quash and set aside orders dated 1.9.10, 23.9.10 and 10.2.11 as Annexure-A-3 [Colly.] alleged to be appellate authority, but the same had been issued or passed by the Depot Manager, BBMD-II, Delhi, who is punishing authority.
c] Quash and set aside order of rejection dated 8.4.11 as Annexure-A-5 alleged to be revisional authority, but the same had been issued or passed by the Depot Manager, BBMD-II, Delhi, who is punishing authority.
d] Any other order as this Honble Tribunal may deem fit under the facts and circumstances of the case may be granted to an applicant.
2. This matter had been decided earlier by the Tribunal vide order dated 23.12.2011 wherein the Tribunal while quashing the orders of the Disciplinary Authority remitted the matter to the Disciplinary Authority, who may if so advised, pass a fresh order within a period of one month thereafter and if the applicant makes an appeal against the same, the appellate authority shall consider the same within two months from the date of receipt of the same and pass appropriate orders.
3. The respondents in this OA approached the Honble High Court of Delhi by way of Writ Petition (Civil) No.4657/2012 (DTC Versus Phool Kanwar). In Para-14 of the judgment it was observed as under:-
14. Accordingly, disposing of the writ petition and setting aside both impugned orders, we restore OA No.2936/2011 with direction to the Tribunal to take note of the fact that on August 20, 2009 not a penalty order but a show-cause notice was issued to the respondent with reference to the proposed penalty intended to be inflicted. The penalty order is dated July 13, 2010. No penalty of removal or dismissal from service was inflicted upon the respondent. The penalty inflicted is of bringing down the respondent to the initial stage in the time-scale of pay for two years. The Tribunal would decide whether the penalty is adequate taking into view the misdemeanour of the respondent. The Tribunal shall duly take note of the fact that all mitigating circumstances have been considered by the Disciplinary Authority which is evident from the fact that the proposed penalty intended to be levied was one of removal from service but the final penalty levies is as noted above.
4. In the light of the aforenoted directions of the Honble High Court, this matter was heard, specially on the issue of adequacy of punishment imposed upon the applicant.
5. Learned counsel, Mr. Ram Sewak argued on behalf of applicant and learned counsel, Mr. Sarfarz Khan argued on behalf of respondents.
6. Learned counsel for applicant referred to the judgment of the Honble Supreme Court in D.K. Yadav Versus M/s. J.M.A. Industries Ltd. JT 1993 (3) S.C. 617 while the respondents counsel referred to the judgment of the Honble Supreme Court in Managing Director, North East K.R.T.C. Versus Devidas Manikrao Sadananda 2006 AIR(SC) 3273.
7. We have perused the pleadings and documents on record and have also considered the arguments placed by both parties.
8. At Annexure-A/8 is a copy of the Inquiry report conducted by the respondents-Corporation in which the applicant was the Driver of the DTC bus. The opinion tendered was as under:-
In my opinion DTC driver and Tempo driver use their correct knowledge then this accident does not occur.
At Annexure-A/11 is a copy of the English version of the charge-sheet issued to the applicant in which it is stated that it is based on the investigation report referred to above. The following extracts of the charge-sheet appear to be relevant:-
On 19.6.09, you were performing duty with bus No.DL IP B-0814 on route No.162/1. At about 0700 a.m. when you were coming from Burari, then near Nirankari Sarovar, due to your negligence bus driving collided from one Tata Tempo bearing No.HR 35 H-4162 from in front to front. In this accident Tempo driver died. This fatal accident occurred due to your negligence vehicle driving. In this connection against you an FIR No.172/09 dated 19.6.09 under Sec.279/304A IPC case has been registered in PS Mukherjee Nagar.
2. Due to in front to front collision with Tempo Corporation bus has been damaged.
3. Financial loss has been caused to the Corporation due to incomplete performing of trips.
9. It appears from the charges in the charge-sheet that a fatal accident occurred due to the alleged negligence of the applicant who was driving the vehicle for which FIR No.172/09 dated 19.06.2009 under Section 279/304A IPC had been registered in Mukherjee Nagar Police Station. The other main charge was damage to the bus and financial loss caused to the Corporation due to incomplete performance of trips by the bus.
10. At Annexure-A/16 is a copy of the Inquiry proceedings. It appears that fair opportunity had been provided to the applicant who had participated in the inquiry proceedings. From the documents available in the file as well as the facts on record, it emerges that during the course of inquiry, the applicant was found guilty of the charges leveled against him in the charge-sheet. At Annexure-A/17 is a copy of the letter addressed to the applicant by the Depot Manager asking him to show cause why he should not be removed from the services of the Corporation, to which the applicant had replied vide his letter dated 31.08.2009. In his representation, the applicant had also mentioned that unless the judgment awaited in the criminal adjudication by the Court of competent jurisdiction was delivered, it would be a miscarriage of justice to pass the proposed order of removal from services. Thereafter, the impugned order dated 13.07.2010 at Annexure-A/1 was passed.
11. A reading of the impugned order would show that the reply to the show cause notice given by the applicant was not found satisfactory, but keeping in view the decision of the DTC Accident Committee, his past record and other aspects available before the authority, the proposed punishment of removal from the services of the Corporation had been reduced to the punishment of Brought him on initial stage in the time scale of driver for two years and during the period, he would not earn his normal increments which is also confirmed. At Annexure-A/3 is a copy of the communication dated 01.09.2010 informing the applicant that his appeal had not been entertained. Finally at Annexure-A/5 is a copy of the communication informing the applicant that the applicants appeal had been rejected by the CMD.
12. From the counter affidavit filed by the respondents, apart from the chronology of events, it has been specifically mentioned as follows:-
i) The applicant was issued show cause notice dated 20.08.2009 by the Disciplinary Authority proposing punishment of removal from services of the Corporation. The DTC Accident Committee, subsequently on 08.01.2010, found the applicant at fault on account of contributory negligence.
ii) The applicant filed his reply to the show cause notice dated 31.08.2009 requesting to postpone the proposed punishment or to await the verdict of the Trial Court.
iii) The Tribunal, in the meanwhile, disposed of the OA directing the respondents to pass speaking order within a period of two months as no final order had been issued.
iv) Vide order dated 11.06.2010, applicant was released from suspension subject to finalization of his case and was directed to report to Training School, Nand Nagri Depot for three days in the refresher training course. Vide letter dated 15.06.2010, applicant completed his refresher training course between 14.06.2010 to 15.06.2010.
v) The case of the applicant was disposed of on 13.07.2010 and the proposed punishment of removal from services of the Corporation as given in the show-cause notice was reduced to punishment of bringing him on initial stage in the time scale of driver for two years without increments during this period.
13. Rejoinder has been filed by the applicant in which he has mainly reiterated the facts given earlier.
14. Having noted the above, and from the facts and documents, it appears that the Inquiry officer had given the opinion that if the DTC driver and the Tempo driver had both used their correct knowledge, then this accident would not have occurred. The charge-sheet that was issued to the applicant based on the preliminary inquiry report dated 19.06.2009, contained charges of rash driving, damage to the vehicle and causing financial loss to the Corporation. The Inquiry Officer conducted the inquiry proceedings and held that the applicant was found guilty of the charges leveled in the charge-sheet. A show cause notice was issued to the applicant on 20.08.2009 proposing punishment of removal from services of the Corporation. There was no finding of the Trial Court in the criminal case. It is, however, not clear as to why the proposed punishment of removal from services was suddenly reduced, because even after the show cause notice for punishment was issued, and before the impugned order of the Disciplinary Authority was passed, the report of the Accident Committee, which met on 08.01.2010 had been received. This Committee also found the applicant at fault on account of contributory negligence, as has been stated by the respondents in para-2 of their counter reply. No reason is thus apparent from the records or from the documents produced by either party to explain why the decision to reduce the punishment was taken. No justification has been provided by either party and the sudden reduction in the punishment remains unexplained, specially when the Disciplinary Authority had himself at the stage of issue of show cause notice appears to have concluded that the punishment of removal from service would meet the ends of justice.
15. In view of the above, we are of the view that the penalty finally imposed on the applicant was not adequate. We are unable to ignore the aforesaid aspects of the matter and specially that the charges had been held proved. In this circumstance, the impugned order of punishment dated 13.07.2010 is not fit to be legally sustained and is accordingly quashed to the extent of the quantum of punishment imposed by the Disciplinary Authority on the applicant. We direct the Disciplinary Authority to consider afresh, the aspect regarding quantum of punishment and while doing so, to ensure that the punishment is commensurate with the charges held as proved against the applicant. The adequacy of punishment shall accordingly be determined by the Disciplinary Authority, who shall pass a fresh order within a period of six weeks from the date of receipt of a copy of this order.
16. It is clarified that since the applicant has already been provided opportunity by the Disciplinary Authority to show cause against the proposed punishment of removal from service vide notice dated 20.08.2009 to which the applicant has given his reply vide letter dated 31.08.2009 (Annexure-A/18), no fresh opportunity is required to be provided by the Disciplinary Authority to the applicant while passing the fresh order.
17. OA is disposed of with aforenoted directions. There shall be no order as to costs.
(Raj Vir Sharma) (Ashok Kumar)
Member (J) Member (A)
/jk/