Central Administrative Tribunal - Delhi
Rati Ram S/O Sh. Bhagwati Parsad vs Chairman-Cum-Md on 5 July, 2012
Central Administrative Tribunal Principal Bench OA No.1787/2011 Order reserved on: 03.07.2012 Order pronounced on:05.07.2012 Honble Mr. M.L. Chauhan, Member (J) Honble Mrs. Manjulika Gautam, Member (A) Rati Ram S/o Sh. Bhagwati Parsad, aged about 60 years, Ex Driver of Delhi Transport Corporation, Wazirpur Depot, R/o O-114, Krishan Vihar, Sultan Puri, New Delhi-110041. -Applicant (By Advocate Mohd. Farukh for Mr. Sanjoy Ghose, Advocate) -Versus- 1. Chairman-cum-MD, Delhi Transport Corporation, DTC Hqrs., I.P. Estate, New Delhi-110002. 2. The Dy. Chief General Manager (North), Appellate Authority, through CMD-DTC, Delhi Transport Corporation. I.P. Estate, N. Delhi-110002. 3. The Depot Manager, Wazirpur Depot, DTC, New Delhi. -Respondents (By Advocate Shri Uday N. Tiwary) O R D E R Mr. M.L. Chauhan, Member (J):
This is the second round of litigation. Earlier the applicant had filed OA-330/2010, challenging the orders passed by the disciplinary authority (DA) as well as the appellate authority. However, this Tribunal vide order dated 13.07.2010 set aside the impugned orders dated 15.06.2009 and 28.10.2009 passed by the DA and appellate authority respectively and remitted the matter to the DA, with liberty to take proceedings from the stage of passing of the final order subsequent to the receipt of the reply of the applicant to the show cause notice and pass fresh order in accordance with law. In compliance with the said direction given by the Tribunal the respondents have passed a detailed and speaking order dated 15.10.2010 after taking into consideration the reply of the applicant to the show cause notice, thereby imposing the punishment upon applicant by bringing him on initial stage of Driver w.e.f. 15.06.2009 till the date of retirement i.e. 31.10.2010. It was further observed that the subsistence allowance already paid to the applicant during his suspension period is considered as adequate. It is this order, which is under challenge.
2. In order to decide the matter in controversy, few relevant facts may be noticed. The applicant, while working as Driver with the respondent department, was issued a charge-sheet dated 18.07.2008 based upon the report dated 11.07.2008 of Shri Sukhbir Singh, TI, regarding fatal accident dated 11.07.2008, leading to the death of a passenger. The applicant submitted his reply whereby the stand taken by the applicant was that while coming to depot after completion of trip one person tried to board in the running bus when the doors of the bus were closed. There was no stand at the place of accident and the work of the flyover was under progress. The bus was moving in slow speed but due to the closure of the doors the said person fell down and sustained serious injuries. It was further stated by the applicant in the reply that he immediately called the police and the said person died at about 2300 hrs. Thus, according to the applicant he was not responsible for the accident. Since the reply of the applicant was not found satisfactory, a detailed enquiry was initiated against him. The enquiry officer (EO) found the charges proved against the applicant and categorically held that this fatal accident occurred due to the rash and negligent driving of the applicant and had the applicant carefully driven the bus and used rear view mirror and applied brakes of bus this fatal accident could have been avoided. Based upon the finding given by the EO, the DA imposed the punishment of reduction of pay of the applicant to initial stage for a period of two years vide order dated 15.06.2009, which order was also affirmed by the appellate authority vide order dated 28.10.2009. As already stated above, these two orders have been quashed by this Tribunal in the earlier OA being non-speaking and cryptic orders and now the respondents have passed fresh speaking order dated 15.10.2010, validity of which is under challenge before this Tribunal. The challenge has been made on the ground that the order of punishment has been passed by the DA without application of mind and the same penalty was imposed upon applicant, which was imposed in earlier orders, which were quashed by this Tribunal. At this stage it may be relevant to state that this Tribunal has not quashed the orders passed by the DA and appellate authority on merit but the same were quashed on the ground that the said orders were non-speaking and cryptic orders and liberty was given to the DA to pass fresh order in accordance with law, after taking into consideration the reply of the applicant to the show cause notice. The challenge made by the applicant on this ground is of no consequence. The other ground raised by the applicant is that admittedly there was no bus stand at the place of accident, as such the applicant cannot be held responsible for rash and negligent driving and the finding recorded by the EO that applicant should have either stopped the bus or reduced the speed so that the fatal accident could have been avoided is not sustainable. The further grievance made by the applicant is that the conductor of the bus has not been examined as a witness, who was also present at the time of occurrence of accident. Neither the IO nor the EO of the DTC recorded the statement of the conductor and in the absence of the statement of the conductor the charge cannot be held proved. The deceased person tried to enter in the running bus from the back gate which was already closed, hence no fault on the part of the applicant can be attributed. The finding could not have been recorded by the EO on the report of Shri Sukhbir Singh, TI, was neither present at the time of occurrence nor dealt with the case.
3. We have given due consideration to the submissions made by the learned counsel of applicant and also perused the order passed by the DA after taking into consideration the objection raised by the applicant. We see no infirmity in the orders passed by the DA. Learned counsel of respondents has also drawn our attention to the enquiry proceedings, which have been annexed with the reply-affidavit as Annexure R-2 to contend that the applicant was asked about the assistance of co-workers/Labour Welfare Officer for the purpose of conducting enquiry proceedings on his behalf but he refused to take the assistance. It is further evident from the enquiry proceedings that the copy of the report submitted by Shri Sukhbir Singh, TI, which formed basis for suspension of the applicant and to initiate enquiry proceedings, was made available to the applicant, which report was proved by the said witness in the enquiry proceedings. An opportunity was given to the applicant to cross-examine the said witness but he refused to take any benefit. The applicant was also given an opportunity to produce his defence witness but he did not avail such opportunity. Thus, based upon the report submitted by Shri Sukhbir Singh, TI, which has been duly proved by the said witness, the EO has given a categorical finding that had the applicant carefully driven his bus and used rear view mirror and applied brakes of bus, this fatal accident could have been avoided. Further the DA in his reasoned order has also taken into consideration all the grounds raised by the applicant in his show cause notice, which grounds have again been reiterated in this OA and noticed above, has given a categorically finding that the applicant cannot run away from his responsibility of saving every passenger or person on the road. He should have stopped his bus immediately when the deceased passenger was trying to board the bus, as he was not aware of the closed doors of the bus and further that the plea of the applicant that there was no bus stand at the place of accident and the deceased passenger might have fallen down on his own has been rejected by the DA being totally baseless on the basis of proof of guilt by the EO for committing fatal accident and also that for committing the fatal accident the police has also registered a case to this effect against the applicant. It may be stated that scope of interference by the Court or Tribunal with the conclusion of guilt is limited to the situations where the proceedings were held in violation of principles of natural justice or in violation of the statutory rules prescribing the mode of enquiry or where the conclusion or finding reached by the DA is based on no evidence or no reasonable person would have reached the conclusion. It is further settled that the Tribunal will not sit in appeal over such order to revaluate or reassess the material to test the correctness of finding of fact. In this case the finding given by the EO is based upon the report submitted by the TI, which report has been proved by the witness, i.e. T.I. during the disciplinary proceedings, which statement has not been demolished by the applicant though opportunity to cross-examine the said witness was given to the applicant. Thus, it cannot be said that it is a case of no evidence. It is not permissible for us to substitute the finding given by the DA based upon the enquiry report while exercising the power of judicial review and to substitute the same on the basis of the defence taken by the applicant. It may be stated that the fact that the accident took place and a person died and the bus was being driven by the applicant is not disputed in this case.
4. The only question is regarding the manner of accident as to whether it was the applicant who was responsible for the death of the deceased passenger or the deceased passenger died because of trying to board the running bus without there being any rash or negligent driving on the part of the applicant while driving the bus. As already stated above the order of the DA is based upon the evidence produced during the course of enquiry and it cannot be said that the view so taken by the DA based upon the report of the EO is wholly unwarranted and as such no interference in the matter is called for. The respondents in the reply-affidavit as well as in the disciplinary proceedings have placed on record the punishments which have been imposed upon applicant during the course of his entire service career. As can be seen from Annexure R-1 the respondents have quoted 20 instances where the applicant has been placed under suspension/ imposed penalty on his past misconduct, but still the DA has stated that since the applicant has retired from service, a lenient view is being taken while imposing the aforesaid penalty instead of imposing the penalty of removal from service. Be that as it may, since we are concerned with the charges levelled against the applicant in the charge-sheet, which stand proved, we are not inclined to interfere regarding quantum of punishment imposed upon the applicant.
5. Learned counsel of applicant while drawing our attention to the copy of the written statement filed by the DTC before the Court of MACT, Rohini, argued that the stand taken by the DTC before the Court of MACT, Rohini was that the accident did not occur due to any fault of rash and negligent act on the part of the applicant, as the driver of the bus was proceeding on the proper side of the road at the moderate speed, as such it is not permissible for the respondents to resile from such an admission made by the respondents. Though the submission made by the applicant is attractive, but deserves outright rejection. It may be stated that the applicant was placed under suspension on 14.07.2008 based upon the report dated 11.07.2008 of Shri Sukhbir Singh, TI regarding fatal accident dated 11.07.2008, the charge-sheet was issued on 22.07.2008 and after considering the reply the enquiry proceedings was initiated against the applicant and the detailed enquiry proceedings were closed on 01.09.2008, whereas the written statement was filed by the DTC with the Court of MACT, Rohini on 12.09.2008, i.e., much after the conclusion of the enquiry proceedings. From what has been stated above it is evident that the DTC has filed the written statement before the Court of MACT only in order to avoid their liability, including the liability of the applicant, who was the driver of the DTC but this fact cannot absolve the applicant from his misconduct, which stands proved in disciplinary proceedings.
6. That apart, the stand so taken by the respondents before the MACT has not been accepted by the learned Court and the learned Judge vide his judgment dated 08.06.2010 in MACT No.641/2008 (Annexure R-1 to the Additional Affidavit) has given a categorical finding that considering the testimony of PW-3 Amit and PW-2 ASI Sri Chand he is of the considered opinion that the claimant has proved the fact that the death of the deceased was caused due to the rash and negligent driving of DTC bus No.DL-1PB-2308 by its driver on 11.07.2008 at about 3.00 p.m. The learned Court has also held that no evidence has been led on behalf of respondents No.1 and 2 to prove the fact that the deceased passenger has tried to board the running bus. Therefore, it is held that respondents No.1 and 2 have failed to prove that the deceased has tried to board the running bus. It may be stated that the applicant was respondent No.2 before the Court of MACT. Thus, the MACT Court has given a categorical finding that the accident took place due to the rash and negligent driving of the Driver, i.e., applicant. Thus, the applicant cannot take any assistance from the written statement filed by the DTC before the Court of MACT, which version of the DTC has not been accepted by the learned Court of MACT.
7. In the result, for the foregoing reasons, we see no infirmity in the impugned orders passed by the DA. Accordingly, the OA is dismissed with no order as to costs.
(Manjulika Gautam) (M.L. Chauhan) Member (A) Member (J) San.