Central Administrative Tribunal - Delhi
Rajender Singh vs Delhi Transport Corporation, Govt. Of ... on 11 January, 2019
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH: NEW DELHI
O.A. No.4670 of 2014
Orders reserved on : 24.12.2018
Orders pronounced on : 11.1.2019
Hon'ble Ms. Nita Chowdhury, Member (A)
Hon'ble Mr. S.N. Terdal, Member (J)
Rahender Singh S/o Sh. Hari Chand
Conductor, aged 59 years
B.No.16072,
Delhi Transport Corporation, Narela Depot,
New Delhi.
....Applicant
(By Advocate : Ms. Kittu Bajaj)
VERSUS
1. Delhi Transport Corporation,
Thro' its Chairman, I.P. Estate, New Delhi.
2. Depot Manager, Disciplinary Authority,
Delhi Transport Corporation, Narela, New Delhi.
3. Regional Manager, Appellate Authority,
Delhi Transport Corporation, Peeragarhi, New Delhi.
.....Respondents
(By Advocate : Ms. Kiran Yadav for Mr. Manish Garg)
ORDER
Ms. Nita Chowdhury, Member (A):
Heard learned counsel for the parties.
2. By filing this OA, the applicant is seeking the following reliefs:-
"A. Set aside the charge sheet dated 20.12.12 and consequent orders dated 30.08.12 & 16.11.12 of the Disciplinary Authority and the Appellate Authority respectively against the applicant.2
B. Grant the Applicant all consequential monetary benefits.
C. Costs of the proceedings be given to the applicants.
D. Any other order(s) the Hon'ble Court deems fit be also passed."
3. Brief relevant facts of the case are that the applicant who while working as Conductor in respondent Corporation was served with a chargesheet dated 2.12.2011 which reads as under:-
"That on 20.11.11, when your duty was on Bus No.DL1PB-6539, Route No.103, before Alipur main stand you drove the bus with negligence/turned towards left when some girl students were boarding the bus from back gate which you did not pay heed to. At that time one girl student namely Ms. Laxmi whilst boarding the bus came in between the back gate of the bus and the electric pole. She died and the police challaned you vide U/S 279/304 A IPC R.No.393/11 dated 20.11.11. If you were careful when the girls were boarding the bus, the accident could have been averted. Your negligence is thus apparent.
Thus you have violated Para (h&m) of the standing orders governing the conduct of DTC employees."
3.1 The inquiry was conducted against the applicant. The applicant denied the charge and represented against the same. After completion of inquiry, the inquiry officer submitted his report and held that the applicant is found partly guilty. The disciplinary authority after analyzing the matter initiated vide charge sheet dated 2.12.2011, vide order dated 11.7.12/13.7.12 provisionally reached to the 3 conclusion that applicant be imposed the following punishment:-
"Bring him on initial grade of conductors for two years and the yearly increments falling due during the two years shall be released after completion of two years"
3.2 The disciplinary authority before imposition of the said penalty gave opportunity to the applicant to represent against the aforesaid penalty. However, after perusal of the reply submitted by the applicant, the disciplinary authority held that the same was not found satisfactory and thus imposed the aforesaid proposed penalty upon the applicant vide order dated 30.8.2012. Against the aforesaid penalty order of the disciplinary authority, applicant preferred his appeal dated 11.12.2012 and the same was rejected on the premises that there was no provision of second appeal. Thereafter applicant submitted his representation dated 17.6.2013 stating therein that Regional Manager is not his appellate authority and his appeal has not been addressed by the appellate authority. 3.3 Being aggrieved by the aforesaid actions of the respondents, the applicant has filed this OA seeking the reliefs as quoted above.
4. Pursuant to notice, the respondents have filed their reply in which they have stated that scope of judicial review in the matters of disciplinary proceedings is very limited and is 4 strictly confined to the decision making process. They further stated that since the first charge sheet was not proper and the findings of the enquiry officer also not proper, the disciplinary authority disagreeing with the same issued a fresh charge sheet on the same charge for the same misconduct and ordered for a de novo enquiry to prove the misconduct. The action of the disciplinary authority and the appellate authority was within the stipulated norms and as per the provisions of the Standing Orders and also as per the settled provisions of law. Therefore, the applicant is not entitled to any relief and the OA may be dismissed.
5. During the course of hearing, learned counsel for the applicant raised several contentions, one of which is that the charge against the applicant is that he drove the bus with negligence whereas he was discharging the duties of Conductor and had never drove the bus and as such the charge is baseless and the same on the face of it is not sustainable in the eyes of law against the applicant.
6. Counsel for the respondents submitted that the said chargesheet as well as the orders passed by the respondents are lawful, bona fide and with proper appreciation of facts and evidence and without any discrimination.
7. Before coming to the issues raised by the applicant in this OA, it is pertinent to note that the law relating to judicial 5 review by the Tribunal in the departmental enquiries has been laid down by the Hon'ble Supreme Court in the following judgments:
"(1). In the case of K.L.Shinde Vs. State of Mysore (1976) 3 SCC 76), the Hon'ble Supreme Court in para 9 observed as under:-
"9. Regarding the appellant's contention that there was no evidence to substantiate the charge against him, it may be observed that neither the High Court nor this Court can re-examine and re-assess the evidence in writ proceedings. Whether or not there is sufficient evidence against a delinquent to justify his dismissal from service is a matter on which this Court cannot embark. It may also be observed that departmental proceedings do not stand on the same footing as criminal prosecutions in which high degree of proof is required. It is true that in the instant case reliance was placed by the Superintendent of Police on the earlier statements made by the three police constables including Akki from which they resiled but that did not vitiate the enquiry or the impugned order of dismissal, as departmental proceedings are not governed by strict rules of evidence as contained in the Evidence Act. That apart, as already stated, copies of the statements made by these constables were furnished to the appellant and he cross-examined all of them with the help of the police friend provided to him. It is also significant that Akki admitted in the course of his statement that he did make the former statement before P. S. I. Khada - bazar police station, Belgaum, on November 21, 1961 (which revealed appellant's complicity in the smuggling activity) but when asked to explain as to why he made that statement, he expressed his inability to do so. The present case is, in our opinion, covered by a decision of this Court in State of Mysore v. Shivabasappa, (1963) 2 SCR 943=AIR 1963 SC 375 where it was held as follows:-
"Domestic tribunals exercising quasi-judicial functions are not courts and therefore, they are not bound to follow the procedure prescribed for trial of actions in courts nor are they bound by strict rules of evidence. They can, unlike courts, obtain all information material for the points under enquiry from all sources, and through all channels, without being fettered by rules and procedure which govern proceedings in court. The 6 only obligation which the law casts on them is that they should not act on any information which they may receive unless they put it to the party against who it is to be used and give him a fair opportunity to explain it. What is a fair opportunity must depend on the facts and circumstances of each case, but where such an opportunity has been given, the proceedings are not open to attack on the ground that the enquiry was not conducted in accordance with the procedure followed in courts.
2. In respect of taking the evidence in an enquiry before such tribunal, the person against whom a charge is made should know the evidence which is given against him, so that he might be in a position to give his explanation. When the evidence is oral, normally the explanation of the witness will in its entirety, take place before the party charged who will have full opportunity of cross-examining him. The position is the same when a witness is called, the statement given previously by him behind the back of the party is put to him ,and admitted in evidence, a copy thereof is given to the party and he is given an opportunity to cross-examine him. To require in that case that the contents of the previous statement should be repeated by the witness word by word and sentence by sentence, is to insist on bare technicalities and rules of natural justice are matters not of form but of substance. They are sufficiently complied with when previous statements given by witnesses are read over to them, marked on their admission, copies thereof given to the person charged and he is given an opportunity to cross-examine them."
Again in the case of B.C.Chaturvedi Vs. UOI & Others (AIR 1996 SC 484) at para 12 and 13, the Hon'ble Supreme Court observed as under:-
"12. Judicial review is not an appeal from a decision but a review of the manner in which the decision is made. Power of judicial review is meant to ensure that the individual receives fair treatment and not to ensure that the conclusion which the authority reaches is necessarily correct in eye of the Court. When an inquiry is conducted on charges of a misconduct by a public 7 servant, the Court/Tribunal is concerned to determine whether the inquiry was held by a competent officer or whether rules of natural justice be complied with. Whether the findings or conclusions are based on some evidence, the authority entrusted with the power to hold inquiry has jurisdiction, power and authority to reach a finding of fact or conclusion. But that finding must be based on some evidence. Neither the technical rules of Evidence Act nor of proof of fact or evidence as defined therein, apply to disciplinary proceeding. When the authority accepts that evidence and conclusion receives support therefrom, the disciplinary authority is entitled to hold that the delinquent office is guilty of the charge. The Court/Tribunal on its power of judicial review does not act as appellate authority to reappreciate the evidence and to arrive at the own independent findings on the evidence. The Court/Tribunal may interfere where the authority held the proceedings against the delinquent officer in a manner inconsistent with the rules of natural justice or in violation of statutory rules prescribing the mode of inquiry of where the conclusion or finding reached by the disciplinary authority is based on no evidence. If the conclusion or finding be such as no reasonable person would have ever reached, the Court/Tribunal may interfere with the conclusion or the finding, and mould the relief so as to make it appropriate to the facts of each case.
13. The disciplinary authority is the sole judge of facts. Where appeal is presented, the appellate authority has co-extensive power to reappreciate the evidence or the nature of punishment. In a disciplinary inquiry the strict proof of legal evidence and findings on that evidence are not relevant. Adequacy of evidence or reliability of evidence cannot be permitted to be canvassed before the Court/Tribunal. In Union of India v. H. C. Goel (1964) 4 SCR 718 : (AIR 1964 SC 364), this Court held at page 728 (of SCR): (at p 369 of AIR), that if the conclusion, upon consideration of the evidence, reached by the disciplinary authority, is perverse or suffers from patent error on the face of the record or based on no evidence at all, a writ of certiorari could be issued."
Recently in the case of Union of India and Others Vs. P.Gunasekaran (2015(2) SCC 610), the Hon'ble Supreme Court has observed as under:-
8
"Despite the well-settled position, it is painfully disturbing to note that the High Court has acted as an appellate authority in the disciplinary proceedings, re- appreciating even the evidence before the enquiry officer. The finding on Charge no.I was accepted by the disciplinary authority and was also endorsed by the Central Administrative Tribunal. In disciplinary proceedings, the High Court is not and cannot act as a second court of first appeal. The High Court, in exercise of its powers under Article 226/227 of the Constitution of India, shall not venture into re-appreciation of the evidence. The High Court can only see whether:
a. the enquiry is held by a competent authority; b. the enquiry is held according to the procedure prescribed in that behalf;
c. there is violation of the principles of natural justice in conducting the proceedings; d. the authorities have disabled themselves from reaching a fair conclusion by some considerations extraneous to the evidence and merits of the case; e. the authorities have allowed themselves to be influenced by irrelevant or extraneous consideration;
f. the conclusion, on the very face of it, is so wholly arbitrary and capricious that no reasonable person could ever have arrived at such conclusion; g. the disciplinary authority had erroneously failed to admit the admissible and material evidence; h. the disciplinary authority had erroneously admitted inadmissible evidence which influenced the finding;
i. the finding of fact is based on no evidence."
8. Keeping in view the aforesaid observations of the Apex Court, this Court finds that in this case charge levelled 9 against the applicant who was discharging the duties of Conductor that he drove the bus negligently is not sustainable in the eyes of law as the said charge, on the very face of it, is so wholly arbitrary and capricious that no reasonable person could ever have arrived at such conclusion. As such this Court is of the considered opinion that the charge levelled against the applicant is vague and also not in consonance with the duties and responsibility attached to the post held by the applicant. Therefore, the inquiry proceedings which was initiated on the basis of the said chargesheet is also not sustainable as also the orders of the disciplinary and appellate authorities as the main contention of the applicant before all the authorities is the same: that he by no stretch of imagination can be said to have driven the bus while discharging the duties of Conductor and this aspect has not been properly dealt with by all the authorities. As such this Court has no option except to quash the chargesheet dated 2.12.2011, inquiry report as well as orders of the disciplinary and appellate authorities.
9. In view of the above facts and circumstances of this case, the present OA is allowed to the extent that the chargesheet dated 2.12.2011, inquiry report as well as orders of the disciplinary and appellate authorities are quashed and the respondents are at liberty to initiate action against the 10 applicant afresh in accordance with the rules and law on the subject, if they so desired. There shall be no order as to costs.
(S.N. Terdal) (Nita Chowdhury) Member (J) Member (A) /ravi/