Delhi High Court
Roshan Lal vs Delhi Transport Corporation on 16 February, 2017
$~19.
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ WRIT PETITION(CIVIL) No. 11309/2016
Date of decision: 16th February, 2017
ROSHAN LAL ..... Petitioner
Through Mr. Vinay Sabharwal, Advocate.
versus
DELHI TRANSPORT CORPORATION ..... Respondent
Through Mr. Vibhor Mathur, Advocate.
CORAM:
HON'BLE MR. JUSTICE SANJIV KHANNA
HON'BLE MR. JUSTICE CHANDER SHEKHAR
SANJIV KHANNA, J. (ORAL):
The petitioner-Roshan Lal impugns the order dated 4th April, 2016
passed by the Principal Bench of the Central Administrative Tribunal
(Tribunal, for short) dismissing TA No. 22/2012.
2. The petitioner, a Security Guard in Delhi Transport Corporation, was
served with the charge memorandum dated 25th June, 2007, which, when
translated in English, reads:-
"that the petitioner had been made excess payment of
salary for 154 days on account of forged attendance
slips furnished and given to Pay Bill Clerk for the
period between January, 2002 to August, 2002,
September, 2004 to July, 2005 and August, 2006 to
January, 2007 when the petitioner was posted at
Keshopur Depot, Shadipur Depot and Peera Garhi
Depot respectively."
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3. The petitioner had disputed the said charges. An Enquiry Officer was
appointed, who vide report dated 10th September, 2008, had held that the
charges stand proved. This report primarily relies on the statements of
Harbhajan Singh, Assistant Security Inspector and Arjun Prasad, Security
Inspector Traffic.
4. The Disciplinary Authority, i.e., the Chief Security Officer thereafter
issued notice vide O.M. dated 30th September, 2008 proposing reduction of
pay to the preliminary pay of the Security Guard for a period of five years
and deduction of 154 days of salary. The petitioner replied on 11th October,
2008, again denying the allegations. Penalty fixing the pay of the petitioner
at the preliminary pay of the Security Guard for a period of five years was
imposed by the Disciplinary Authority vide order dated 24 th October, 2008.
It was also ordered that there would be deduction of 154 days of salary
wrongly paid.
5. It appears that the petitioner did not prefer departmental appeal,
challenging the order imposing punishment.
6. On 7th March, 2009, the petitioner filed Civil Suit No. 104/2009
praying for a decree of declaration that the order dated 24th October, 2008
passed by the disciplinary authority was void ab initio, unwarranted and
unenforceable. Other prayers included decree of mandatory and permanent
injunction for restraining the authorities from making any deduction on
account of salary for 154 days, and that the suspension period between 15th
May, 2007 to 27th August, 2008 should be counted as period spent on duty
and the difference between suspension allowance and the salary should be
paid.
7. The aforesaid civil suit was transferred to the Central Administrative
W.P. (C) No. 11309/2016 Page 2 of 6
Tribunal, Principal Bench, at New Delhi pursuant to Gazette Notification
No. SO-2824(E) dated 1st December, 2008 and renumbered as TA
No.22/2012. The Tribunal vide order dated 4th April, 2016, dismissed TA
No. 22/2012, which has resulted in the present petition.
8. We have heard learned counsel for the petitioner at some length and
have also perused the departmental proceedings. Counsel for the petitioner
has submitted that the authorities had failed to produce the attendance
register as also the alleged forged pay slips. He asserts that this is a case of
no evidence and, therefore, the enquiry report, the order passed by the
Disciplinary Authority and the impugned order passed by the Tribunal are
liable to be set aside. Reliance is placed on the judgment of the Supreme
Court in Delhi Cloth and General Mills Company versus Ludh Budh
Singh, (1972) 1 SCC 595. It is submitted that in the present case the
findings recorded by the Enquiry Officer and the decision of the
Disciplinary Authority were perverse as they were not justified or based on
legal evidence.
9. We have perused the enquiry report as well as the statement of
witnesses and in particular statements of Harbhajan Singh and Arjun Prasad.
Harbhajan Singh had stated that in January 2007 he had visited Nangloi
Depot to correct Roshan Lal's attendance record for one day. He was shown
the attendance slips for the month of January, 2007 by the Pay Bill Clerk.
The said attendance slips were not prepared by him and were forged. He did
not know who had prepared the said attendance slip. Accordingly, he had
informed the authorities that the attendance slips were forged. Harbhajan
Singh was cross-examined by the petitioner. However, no questions were
put specifically to negate or contradict Harbhajan Singh's version that the
W.P. (C) No. 11309/2016 Page 3 of 6
attendance slips of the petitioner shown by the Pay Bill Clerk for the month
of January, 2007 were forged and fabricated.
10. Arjun Prasad had conducted a detailed enquiry thereafter. He had
examined the attendance register for the period January, 2002 to January,
2007 and the attendance slips on the basis of which Roshan Lal was paid his
salary. The attendance slips with the pay bill office did not match with the
attendance as recorded in the attendance register. The petitioner had been
overpaid for 154 days even when he was on leave and had not worked.
Arjun Prasad had submitted his report, affirming the factual position. Arjun
Prasad was cross-examined, albeit the petitioner did put forth any question
to contradict or confront this witness on the relevant and material aspects on
verification of the attendance records and matching the data and details with
the attendance slips available in the pay bill office, or the factum that there
was discrepancy of 154 days for which the petitioner had been paid excess
salary though he was absent. In fact, the cross-examination of Arjun Prasad
would show that the petitioner deliberately and intentionally did not
confront and contradict this witness on these pertinent facts. Avoidance is
palpable.
11. During the course of hearing, question had arisen whether the report
submitted by Arjun Prasad was filed in the inquiry proceedings. The
Enquiry Officer has specifically examined and referred to "the report".
Obviously, the reference is to the report submitted by Arjun Prasad.
Perhaps, the petitioner wants to take advantage and benefit of incomplete
records.
12. The petitioner would be correct for the respondents should have
produced the original attendance register as well as the attendance slips
W.P. (C) No. 11309/2016 Page 4 of 6
available in the pay bill office, albeit their failure to produce the same, given
the facts of the present case would not be a sufficient and justifiable ground
to dislodge and upset the findings of fact recorded by the Enquiry Officer
and upheld by the Disciplinary Authority. Disciplinary proceedings are not
governed by strict law of evidence. In the facts of the present case, the
authorities have relied on the statements made by Harbhajan Singh and
Arjun Prasad to affirm and accept the charges against the petitioner. On the
question, that there was discrepancy in the attendance as recorded in the
registers and pay slips, and that the pay slip of January, 2007 was not in the
handwriting of Harbhajan Singh, their statements went unchallenged and
uncontested. Their versions were credible and given credence, in view of
the vacuous cross-examination. The petitioner, as a result of the fabricated
attendance slips, had been paid excess salary. The petitioner was the
beneficiary of the said forged and fabricated attendance slips. No third
person would have benefitted by submitting wrong or forged attendance
slips.
13. Learned counsel for the petitioner had submitted that the petitioner, in
the normal course of service, would be entitled to casual leave or even
earned leave. This aspect would be irrelevant, because the attendance slips
were forged and wrongful payments were made. The charge against the
petitioner was that he had been paid on the basis of attendance slips, which
had been forged. Secondly, the attendance mentioned in the attendance slips
was not as per the attendance register. An employee must maintain probity
in his conduct. Employer and employee's relationships are based on mutual
trust and faith, breach and infraction, as in the present matrix, would
constitute misconduct. Statements of Harbhajan Singh and Arjun Prasad,
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and the refrained and checked cross-examination would clearly reflect that
the petitioner was unable to counter and negate avowed assertion by these
witnesses against the petitioner. Resultantly, we would not over turn the
factual findings of the Enquiry Officer and the Disciplinary Authority
upheld by the Tribunal, while exercising our power of judicial review.
14. In view of the aforesaid position, we do not find any merit in the
present writ petition and the same is dismissed. No order as to costs.
SANJIV KHANNA, J.
CHANDER SHEKHAR, J. FEBRUARY 16, 2017 VKR/NA W.P. (C) No. 11309/2016 Page 6 of 6