Om Vir Gupta vs Delhi Transport Corporation And ...
2006 Latest Caselaw 1619 Del

JUDGMENT

S. Muralidhar, J.

1. The petitioner, a Conductor with the Respondent No.1 Delhi Transport Corporation (DTC), has filed this writ petition challenging an order dated 29.8.1997 passed by the DTC awarding him a punishment of stoppage of two increments with cumulative effect, at the culmination of disciplinary proceedings.

2. The facts leading to the filing of this petition are that the petitioner was appointed as a Conductor with DTC on 22.1.1983. On 14.12.1993 the petitioner received a charge sheet in which it was alleged that on 2.12.1993 when the petitioner was on duty on Bus No. 9611 en-route Mandola to Loni Road Crossing, the checking staff boarded the bus and found that the petitioner, after having accepted full fare from five passengers, had issued tickets of a lesser value causing a loss of Rs. 4/- to the DTC. It is not denied by the DTC that during the course of the enquiry, the passengers who were traveling in the bus on the date of incident deposed and one of them in fact deposed in favor of the petitioner. The enquiry officer held the charge to be proved.

3. According to the DTC, a show cause notice dated 2.11.1995 and along with a copy of the inquiry report was sent to the petitioner at his residential address through registered AD post but the petitioner refused to receive the same as per the postal receipt, a copy of which has been annexed to the counter affidavit. Upon the refusal of the petitioner to receive the said show cause notice, it was pasted on the outer door wall of his residence. The petitioner failed to submit his reply to show cause notice within stipulated time. Consequently, the disciplinary authority, by an order dated 30.11.1995 imposed the punishment of dismissal from service. Against this order, the petitioner preferred an appeal to the Chairman-cum-Managing Director (CMD) on 11.12.1995. This appeal was not immediately considered by the CMD.

4. The petitioner's case is that he never received the said show cause notice or the report of the enquiry officer. His specific case is that a few days prior to the dismissal order, he had on 21.11.1995 given a written complaint to the Deputy Chief General Manager (T), DTC against Mr. V.K. Palta, Depot Manager, Respondent No. 2 herein, who was incidentally the disciplinary authority of the petitioner. In this written complaint, the petitioner alleged that Mr. Palta had demanded a sum of Rs. 10,000 from the petitioner in return for not passing any order against the petitioner consequent upon the enquiry that had been held.

5. The DTC ordered a vigilance enquiry on the said complaint dated 21.11.1995 made by the petitioner. The vigilance report dated 9.4.1997, a copy of which has been placed on record in this Court by the DTC returned the following finding:

The actions of the D.M. Shri V.K. Palta are not convincing in this case as he has dealt the case in a very hasty manner on 30-11-95 perhaps in some fear of complaint when he had manoeuvred a false unknown statement about pasting of the SCN and done away the services of the delinquent employee (D.E.) without ensuring even proper delivery of the SCN. This issue is a glaring one and in case the matter goes to the court of law, the said ground is sufficient for turning down the case in favor of the D.E. Hence, Shri V.K. Palta, Manager (Mech) is observed fully responsible of not initiating against a D.E. as per requirement of the law and set procedures of the Corporation. As Shri V.K. Palta, Manager (Mech) is drawing pay more than Rs. 2815/- (Basic pay) the case requires reference to CVC for an advice

6. The said vigilance report dated 9.4.1997 was considered and concurred with by the Grievance Committee. The matter was put up to the CVO/CMD with the following note:

It is very weak case lacking (sic) number of lacunae due to the ulterior motives, manipulations, and engineering of false fabricated complaints by Sh. Palta, the disciplinary authority in this case. Shri Palta not only violated the principles of natural justice rather snatched the livelihood of a family only for a very little amount i.e. Rs. 4/- which was the first case of incumbent for alleged issuance of less denomination of tickets to five passengers. Cheating of Rs. 4/- only from five passengers does not seem convincing at all

7. The CMD, who is also the Appellate Authority, considered the above findings and conclusions and on 30.7.1997 passed the following order:

Since the Grievance Committee is in agreement with the findings of the V.O. and also the Personnel Department, namely, that the punishment imposed was not processed properly, I am inclined to review the punishment. Accordingly, the punishment of removal is set aside and Sh. Ombir Gupta, ex-conductor, B. No. 18782 will have two increments stopped with the cumulative effect in this case. He may be reinstated without back wages for the intervening period

8. It is against this order that the petitioner has filed the present petition. Mr. Anil Mittal learned Counsel for the petitioner, submits that the petitioner was never served with the show cause notice dated 2.11.1995 along with a copy of the report of the enquiry officer and therefore, any action taken thereafter by the DTC would be illegal as explained by the Hon'ble Supreme Court in Managing Director, ECIL v. B.Karunakar . He submits that the Appellate Authority, having accepted the vigilance report in its entirety, ought to have set aside the punishment imposed by the disciplinary authority in its entirety and that there was no justification whatsoever for the inflicting the punishment of stoppage of two increments with cumulative effect.

9. Mr. J.S. Bakshi, learned Counsel for the DTC submits that the petitioner was indeed served with the show cause notice along with a copy of the report of the enquiry officer. However, even before this Court, the DTC has not produced a copy of the enquiry report, although Mr.Bakshi read out portions of it during the course of hearing. Mr.Bakshi insists that the petitioner knew about the enquiry report. As regards the vigilance report dated 9.4.1997, Mr. Bakshi submits that this report was duly considered by the Appellate Authority while recalling the punishment awarded earlier and substituting it with the lesser punishment of stoppage of two increments with cumulative effect. He submits that the impugned order calls for no interference.

10. The question whether the petitioner was served with the show cause notice dated 2.11.1995 along with the copy of the enquiry report now stands conclusively answered in the vigilance enquiry report dated 9.4.1997 which has been accepted in its entirety by the DTC. The relevant portion of the report of the vigilance enquiry on this aspect reads as under:

The E.O. sent the file to disciplinary authority (D.M. SHD-II-Shri V.K. Palta) on 29-5-95 and the said D.M. seen the same on 30-5-95 but kept the file in the office for no cause for more than five months without taking action. Even on 1-11-95 without passing any speaking orders on the findings of the E.O. the office prepared a fair show cause notice of removal and put up the file to D.M. SHD-II Shri V.K. Palta who subsequently on 2-11-95 only passed speaking orders on the findings of E.O. and signed the fair SCN for issue. The SCN was kept in the office without any action and was not delivered to the D.E. who was a very well on duty on 2-11-95 and 3-11-95 and after that the D.E. remained on leave from 4-11-95 to 10-11-95 on sickness grounds and further remained on duty regularly except on 23-11-95 when he had availed leave.

It is also a fact that the SCN was sent for delivery through registered mail on 10-11-95 but the Depot administration neither assured about the delivery of the SCN nor asked the D.E. for reply of the SCN whereas he was also on duty w.e.f. 11-11-95 to 30-11-95.

It is also a fact that in the meantime the D.E. had submitted a representation to the higher authorities Sh. V.K. Palta for demand of bribe of Rs. 10,000/- and the Dy. CGM (Tr) order for collection of the disciplinary case file of the D.E. Therefore, the authorities of Scindia House called for the case file vide their memo dated 28-11- 95 (page 186/cr) which was also seen by Shri V.K. Palta, the then D.M. on 29-11-95. Thus, on having come to notice that the issue is being called by higher authorities, to conceal his own acts, Sh. V.K. Palta manoeuvred a slip of paper by getting it written from some unknown person about information of having pasted the copy of the SCN at the house of D.E. on 14-11-95 itself and putting his initials without date by written 'Seen' (page 183/cr-Vol II) on 30-11-95 itself and got the case file put up from the office and then passed his final orders of removal. This fact has also already been confirmed by the dealing assistant Shri Devind Kumar Dwivedi Sr. Clerk as well the then A.I. Shri Duli Chand (now O.S.) that it was only the paper with them to reply about delivery of the letter date SCN had been pasted/served on the D.E. They have also confirmed that no extra copy of the SCN for the purpose of pasting etc. was taken from the file and even there is no orders for getting it pasted rather the SCN had been sent by registered mail and no wait for the reply from postal authorities was made.

11. The above conclusive findings of the vigilance report clearly establish that the petitioner was not served with the show cause notice dated 2.11.1995 and the report of the enquiry officer. The said findings have not been questioned by the DTC. It is clear, therefore, that the petitioner did not have a copy of the enquiry report when he made a representation to the Appellate Authority against the order of dismissal.

12. The legal consequence of a failure to serve the delinquent employee a copy of the enquiry report before inflicting a punishment has been explained by the Hon'ble Supreme Court in B.Karunakar (supra) as under (SCC, p. 758):

In all cases where the enquiry officers report is not furnished to the delinquent employee in the disciplinary proceedings, the Courts and Tribunals should cause the copy of the report to be furnished to the aggrieved employee if he has not already secured it before coming to the Court/Tribunal and give the employee an opportunity to show how his or her case was prejudiced because of the non-supply of the report. If after hearing the parties, the Court/Tribunal comes to the conclusion that the non-supply of the report would have made no difference to the ultimate findings and the punishment given, the Court/Tribunal should not interfere with the order of punishment. The Court/Tribunal should not mechanically set aside the order of punishment on the ground that the report was not furnished as is regrettably being done at present. The courts should avoid resorting to short cuts. Since it is the Courts/Tribunals which will apply their judicial mind to the question and give their reasons for setting aside or not setting aside the order of punishment, (and not any internal appellate or revisional authority), there would be neither a breach of the principles of natural justice nor a denial of the reasonable opportunity. It is only if the Court/Tribunal finds that the furnishing of the report would have made a difference to the result in the case that it should set aside the order of punishment. Where after following the above procedure, the Court/Tribunal sets aside the order of punishment, the proper relief that should be granted is to direct reinstatement of the employee with liberty to the authority/management to proceed with the inquiry, by placing the employee under suspension and continuing the inquiry from the stage of furnishing him with the report

13. The legal position the emerges from the above decision is that apart from showing that he was not served with a copy of the enquiry report, the charged officer has also to demonstrate to this Court that show that the failure to do so caused him prejudice. In the instant case, as already mentioned, the counsel for DTC read out in the Court, portions of the enquiry report. The additional material that was available to the appellate Authority, and which was also not given to the petitioner, was the vigilance report, which has been placed on record after the petition was filed. Mr. Bakshi also candidly stated that no further show cause notice was issued to the petitioner by the Appellate Authority before imposing the lesser punishment of stoppage of two increments with cumulative effect. Counsel for the petitioner submits that serious prejudice has been caused to the petitioner on account of the failure to furnish a copy of the enquiry report because, according to him, some of the witnesses at the enquiry had spoken in his favor. Further, it is submitted that had the report of the vigilance enquiry been made available before the Appellate Authority inflicted the lesser punishment, the petitioner may have been able to demonstrate that the said report bears out the complaint made by the petitioner against Mr. Palta. Reference is made to the following findings in the vigilance report:

In view of the above, the punishment imposed on Shri Ombir Gupta, Ex. Conductor, B. No. 18782 does not seem commensurate to the offence committed/alleged as this was the first case of cheating involving only Rs. 4/-. Moreover, the actions of the D.M. Shri V.K. Palta are not convincing in this case as he has dealt the case in a very hasty manner on 30-11-95 perhaps in some fear of complaint when he had maneuvered a false unknown statement about pasting of the SCN and done away the services of the D.E. without ensuring even proper delivery of the SCN. This issue is a glaring one and in case the matter goes to the court of law, the said ground is sufficient for turning down the case in favor of the D.E. Hence, Shri V.K. Palta, Manager (Mech) is observed fully responsible for not initiating against a D.E. as per requirement of the law and set procedures of the Corporation. As Shri V.K. Palta, Manager (Mech) is drawing pay more than Rs. 2815/- (Basic pay) the case requires reference to CVC for an advice. Besides, may like to take a decision about the complaint Shri Ombir Gupta, Ex. Conductor, B. No. 18782 please

14. On the other hand, Mr. Bhasin also referred to the following portion of the report of the vigilance enquiry which shows that the charge against the petitioner stood established:

However, it is fact that the Conductor was detected for cheating the Corporation for an amount of Rs. 4/- only way of issuance of less denomination of tickets after collecting the due fare from five passengers. However it is also a fact that it was the first case of cheating of the Delinquent employee and prior to it four minor punishments (two censure, one warning and one stoppage of one increment) was imposed on him and that too for disobedience. In the instant case, the E.O. not only found the charges substantiated against the conductor but also found the checking officials at fault simultaneously

15. On a consideration of the submissions on the question of prejudice to the petitioner, this Court is of the view that had the petitioner been given a copy of the enquiry report prior to the disciplinary authority inflicting the first punishment, it would have indeed made a difference to the outcome. Further, petitioner should have been given a copy of the vigilance report and the note put up by the Vigilance Officer to the CVO/CMD which opined that Cheating of Rs. 4/- only from five passengers does not seem convincing at all even at the stage when the note was put up to the Appellate Authority. Both these materials were favorable to the petitioner. It is possible that the petitioner may have, if he had these materials at a prior stage, been able to persuade the Appellate Authority to not award him any punishment at all.

16. Now, in view of the settled position of law as explained in Karunakar, the impugned order dated 29.8.1997 and the order dated 30.7.1997 of the Appellate Authority will have to be set aside and the proceedings revived from the stage of the second show cause notice. The petitioner will be required to be issued a fresh second show cause notice along with the copy of the enquiry report and any other material that the disciplinary authority is likely to rely on in deciding whether to accept the enquiry report and to award a punishment, if any. Needless to say, the petitioner can certainly rely upon the report of the vigilance enquiry and the note put up to the CVO/CMD referred to hereinabove. If the petitioner is aggrieved by the decision of the disciplinary authority, he will have a further remedy by way of an appeal.

17. Finally, the learned Counsel for the petitioner submitted that some direction may be issued regarding the arrears of the differential wages payable as a result of the impugned order being set aside. This relief cannot be granted at this stage as has been explained in the following words in Karunakar:

The question whether the employee would be entitled to the back-wages and other benefits from the date of his dismissal to the date of his reinstatement if ultimately ordered, should invariably be left to be decided by the authority concerned according to law, after the culmination of the proceedings and depending on the final outcome. If the employee succeeds in the fresh inquiry and is directed to be reinstated, the authority should be at liberty to decide according to law how it will treat the period from the date of dismissal till the reinstatement and to what benefits, if any and the extent of the benefits, he will be entitled. The reinstatement made as a result of the setting aside of the inquiry for failure to furnish the report, should be treated as a reinstatement for the purpose of holding the fresh inquiry from the stage of furnishing the report and no more, where such fresh inquiry is held. That will also be the correct position in law

18. It is accordingly directed as under:

(a) The impugned order dated 29.8.1997 as well as the order dated 30.7.1997 passed by the Appellate Authority are set aside.

(b) The disciplinary proceedings will now resume from the stage of the second show cause notice which will be issued to the petitioner herein along with the copy of the report of the enquiry officer and any other material that the disciplinary authority is likely to rely on in deciding whether to accept the enquiry report and to award a punishment, if any, within a period of four weeks from today and in any event not later than 16.10.2006.

(c) The petitioner shall file his reply to the show cause notice within two weeks from the receipt of the said second show cause notice along with the enquiry report.

(d) The same will be considered by the disciplinary authority within a period of four weeks thereafter. The question of consequential relief of any arrears of pay will be considered by the disciplinary authority.

(e) If the order of the disciplinary authority is adverse to the petitioner, it is open to the petitioner to invoke the departmental remedy of an appeal in accordance with law.

19. With these directions, this writ petition is disposed of with no orders as to costs. dusty.