Delhi High Court
Sajjan Kumar vs D.T.C. on 6 February, 2006
Author: S R Bhat
Bench: S R Bhat
JUDGMENT
S. Ravindra Bhat, J.
1. The petitioner is aggrieved by an order dated 29.8.1991 terminating his engagement/employment. The order was issued by the respondent DTC.
2. The petitioner was engaged or appointed by virtue of an order dated 11.5.1989 as "Retainer Crew Driver". That order indicated that candidates, who were 38 in numbers (including the petitioner at serial No. 5), were entitled to payment of Rs. 39.35 per day for the days they actually worked . The retainer allowance of not less than Rs. 230/- was payable as stipend. The other conditions imposed were that the candidates were not to absence themselves.
3. The order also contained the following clause:
During the period of Retainership/Probation, they will have to arrange for the bail themselves in case they are involved in an accident, while on duty.
4. On account of an accident which occurred on 8.8.1991, which resulted in the death of a scooterist, the petitioner was named as an accused in the First Information Report. He was taken into custody and he faced criminal proceedings for having committed offences under Sections 279 and 338 read with Section 304A of the Indian Penal Code. The trial court convicted the petitioner on 26th June, 1998. He appealed to the Additional Sessions Judge who by judgment and order dated 15th January, 2000 set aside the conviction and gave the benefit of doubt to the petitioner.
5. The petitioner made representations seeking restoration of his employment, which were not accepted by the DTC. He accordingly approached this Court, and justified these proceedings.
6. Learned counsel for the petitioner submitted that with the acquittal of the petitioner, there was no basis for his termination, which had been effected on 29.8.1991. He placed heavy reliance upon the judgment of the Appellate Court to say that at best the role of the petitioner was doubted and in any case the count was of the opinion that the prosecution was unable to establish its case beyond reasonable doubt.
7. Learned counsel for the respondent DTC submitted that the terms of engagement of the petitioner clearly indicated that he was not an employee but was merely placed under probation. It was claimed that as per the scheme applicable to the DTC, those kept in the list as Retainer Crew Drivers were continued on those terms for some time after which they would be brought on to monthly rate. Learned counsel submitted that others had been brought on to the monthly rates but the petitioner had not been given that benefit. Upon the reporting of the accident, an internal enquiry was held by the Depot Manager who submitted a report on 12.8.1991. The said report reads as follows:
Details of Accident:-
Received message from East Control, that our bus No. DLP- 1148 met with an accident with an two wheeler scooter No. D.N.M.-9551 and person Died, I rushed at the Accident point/Police Station.
I reached at the accident point/police station and enquiry cane to know I/O of the case and bus crews that our bus No. DLP-1148 was proceeding towards C.Secctt. After picking up his trip of 10.15 from Sakar Pur. When it reached at the crossing of Pt. Pant Marg and Bishmber Dass Marg near NDPO an scooter No. DNM-9551, with two passenger coming from the right side, our bus hit the scooter causing accident both scooterist fell down and get injuries, the injured were taken to R.M.N.L. Hospital by the driver where after some time one of them expired.
Sh. Sunder Lal Rathi S.I. of P.S. Parliament Street attend the case and challaned DTC Driver under Section 279/304A IPC vice FIR No. 306/91 and took both driver and bus into Police Custody.
Driver bailed out on an private surety of Rs. 3000/- stood by his relatives and bus got released after mechanical inspection on a super dari name of Rs. 2,50,000/- by Sh. Ved Pal, T.I. On dated 9.8.91.
Going through the causes of fatality I am of the opinion that this accident occurred due to the rash and negligent driving on part of the our driver.
Submitted for your kind information please.
8. It was contended that upon an overall assessment of the materials and the conduct of the petitioner, the DTC, on the basis of what transpired at that time, decided not to continue with his services.
9. It is settled law that there is no automatic right of an employee terminated from the service on account of criminal charges or on account of conviction but later acquitted, to insist for reinstatement into the services. Each case has to be considered in the light of its peculiar facts. The Court has to be alive to the nature of the employment while considering the arbitrariness or otherwise of the employer in refusing reinstatement.
10. In this case, the terms of engagement, as it were, of the petitioner did not indicate any regular appointment. There is some merit in the submissions of the respondent that the petitioner was not given employment but was rather kept as a Retainer Crew Driver, assigned duties as and when they became available. As per the normal scheme, the petitioner's case for being placed monthly rate employment would have accrued after some time. However, during that period, the accident in question occurred. As a result, the DTC considered all the available materials including a visit to the site by the Depot Manger, who reported the matter.
11. While, an employer is under a duty to avoid unfairness in dealing with a workman in its employment, it is certainly entitled to assess his suitability, particularly, during the period of probation or as in this case where the employee was kept as a Retainer Crew Driver, not entitled to work as a regular driver. The overweening consideration of an employer like the DTC in such cases would necessarily be whether the employee is suitable to continue, having regard to the peculiar nature of duty required of him. I find no reasons to fault the DTC on this score. It made an assessment that the petitioner's services even as a Retainer Crew Driver ought not to be continued. Admittedly, the petitioner was convicted in the criminal proceedings; that conviction was set aside only in the appeal where the Appellate Court gave him the benefit of doubt. There, I am not persuaded to accept the plea of arbitrariness, illegality or unfairness on the part of the DTC, in refusing to reinstate the petitioner.
12. In view of the above findings, I find no merits in this petition. It is accordingly dismissed.
