Raj Pal Bhardwaj vs Delhi Transport Corpn., ...
1999 Latest Caselaw 245 Del

ORDER

K. Ramamoorthy, J.

1. The writ petitioner has prayed for the following reliefs:-

"It is, therefore, most respectfully prayed that this Hon'ble Court may be please to:

(i) quash the charge sheet dated 29.11.83 and the proceedings recorded thereafter;

(ii) hold that any proceedings pursuant to the impugned charge sheet dated 29.11.83 are barred under principles of estoppel, waiver, acquiescence and also in view of the acquittal of the petitioner vide judgment of the criminal court dated 3.11.90;

(iii) call upon the respondents to pay to the petitioner arrears towards difference in pay for the period of suspension from 27.9.82 to 28.11.84 and further restore to the petitioner the post of Assistant Cashier and the scale of the Assistant Cashier with all consequential increments and other benefits;

(iv) call upon the respondents to pay the difference in pay and allowances by virtue of revision of pay scale in the grade of Assistant Cashier from 1.1.86;

by issuance of writ of certiorari, mandamus, or any other appropriate writ, rule, order or direction."

2. The facts that are necessary for the proper appreciation of the case of the petitioner could be stated thus:

The petitioner was appointed as Conductor in the first respondent Corporation in April, 1964. On the 1st of April, 1982, he was promoted to the post of Assistant Cashier. On the 27th of September, 1982, the petitioner was placed under suspension and the order to this effect was passed on the 28th of October, 1982. Subsequently, on the 29th of November, 1983, charge sheet was issued to the petitioner. The petitioner filed his representation. It is stated that there were findings by the Inquiry Officer but that was not communicated to the petitioner. DTC started fresh proceedings on the 18th of August, 1984. It was not pursued. On the 28th of November, 1984, the order of suspension dated 28.10.1982 was revoked by the DTC. The petitioner was reinstated in service and while reinstating him, his pay was fixed in the cadre of Conductor even though he was promoted as Assistant Cashier on the 1st of April, 1982. On the 2nd of June, 1986, the DTC issued the following proceedings:-

"Reference his application dated 16.5.86, Shri Raj Pal, Cond., B.No. 3747 is hereby informed that since a criminal case under Section 409 IPC against him regarding theft of Rs. 23,000/- from the Cash Section of Bawana Depot is pending and under process of the Honourable Court, decision in the Departmental case initiated against him is withheld till the finalisation of his case by the Honourable Court, Shri Raj Pal, Cond., B.No.3747 is also advised to write anything through proper channel in future."

3. Ultimately, the Criminal Court acquitted the petitioner on the 3rd of November, 1990. In view of the fact that the DTC did not pursue, the departmental proceedings against the petitioner and he was acquitted by the Criminal Court, the petitioner became entitled to be reinstated with all consequential benefits. That was not done in spite of the representation made by the petitioner on the 30th of November, 1990. Hence, the petitioner has approached this Court claiming the relief, referred to above.

4. It is stated in paragraph 10 of the counter by the DTC:-

"With reference to para No.11, it is submitted that the disciplinary case of the petitioner is still under process. That no decision has been yet taken in favour or against the petitioner for this reason that the instant petition is pre-mature and is liable to be dismissed on this ground alone."

5. It is now clearly admitted that the disciplinary proceedings have been continued against the petitioner and no decision has yet been taken by the DTC. The Criminal Court had given following reasons for its decision.

"BRIEF STATEMENT OF THE REASONS FOR DECISION :-

Police Station Narela has filed the present challan u/s 409 IPC read with S. 182 IPC against the accused Raj Pal S/o Sh. Hoshyar Singh on the allegation that on the night of 27.9.82 at about 3.45 a.m. to 4.05 a.m. he committed criminal breach of trust being a public servant of an amount of Rs. 23,000/- when on that day he was working as Asstt. Cashier in DTC Bawana Depot and thereby accused alleged to have committed an offence u/s 409 IPC, hence present trial.

Copies as required U/S 207 Cr.P.C. were supplied to the accused and on checking these were found to be correctly supplied. Prima facie a case u/s 409 IPC was made out against the accused. Charge was framed accordingly by my learned Predecessor to which accused pleaded not guilty. In the present case prosecution has examined PW-I Bhopal Singh, PW-2 Swaroop Singh, PW-3 Mangal Dass, PW-4 Ram Narayan Gupta and PW-5 Dr. S.K. Lahri. IO has not been examined by the prosecution despite ample opportunities and all those PWs who have been examined by prosecution have not deposed anything against the accused. They are almost formal witnesses. As there was no evidence against the accused, hence his statement u/s 313 Cr.P.C. was not recorded. Accused is acquitted of the offence u/s 409 IPC."

6. It is well settled by the decisions of the Supreme Court that in spite of the acquittal by the Criminal Court, the employer can proceed against the employee by initiating departmental proceedings, and while doing so the employer should give reasons for his decision. The first respondent has not done anything after the acquittal of the petitioner by the Criminal Court, by its order dated 3.11.1990. Therefore, the DTC cannot now pursue the chargesheet dated 29.11.1983 to proceed against the petitioner. On the ground of delay, the chargesheet is liable to be set aside.

7. In view of the circumstances, the petitioner is entitled to the reliefs. Accordingly, the chargesheet dated 29.11.1983 is quashed.

8. The DTC is directed to pay the petitioner all arrears of pay and allowances payable to the Assistant Cashier with effect from the date of suspension on or before the 30th of June, 1999. The petitioner shall be entitled to consequential benefits, including consideration of his case for promotion.

9. The writ petition stands allowed in above terms.

10. There shall be no order as to costs.