Ashok Kumar vs Delhi Transport Corporation
2010 Latest Caselaw 2152 Del

                 *IN THE HIGH COURT OF DELHI AT NEW DELHI

+                                 W.P.(C) 3169/1999

%                                                  Date of decision: 23rd April, 2010

ASHOK KUMAR                                               ..... PETITIONER
                                  Through:   Mr. Raman Kapoor with Mr.
                                             Abhishek Aggarwal, Advocates.

                                         Versus

DELHI TRANSPORT CORPORATION             ..... RESPONDENT
                  Through: Ms. Rashmi Priya for Mr. J.S.
                           Bhasin, Advocate.

                                         AND

+                                 W.P.(C) 3226/1999

DELHI TRANSPORT CORPORATION                  ..... PETITIONER
                  Through: Mr. J.N. Aggarwal & Mr. Mayank
                           Joshi, Advocates.

                                         Versus

PRESIDING OFFICER & ORS                                 ..... RESPONDENTS
                   Through:                  Mr. Raman Kapoor with Mr.
                                             Abhishek Aggarwal, Advocates.
CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1.        Whether reporters of Local papers may
          be allowed to see the judgment?                  NO

2.        To be referred to the reporter or not?                  NO

3.        Whether the judgment should be reported                 NO
          in the Digest?

RAJIV SAHAI ENDLAW, J.

1. DTC has in W.P.(C) No.3226/1999 impugned the order dated 17th

September, 1998 of the Industrial Tribunal dismissing the application under

Section 33 (2) (b) of the ID Act filed by DTC, seeking approval of its action

of removal of its workman Sh. Ashok Kumar from service. W.P.(C)

No.3169/1999 has been filed by the workman Sh. Ashok Kumar seeking

mandamus directing DTC to allow him to join duty and to pay him full back

wages with continuity in service, in view of the aforesaid order dated 17th

September, 1998. The operation of the order dated 17th September, 1998 was

stayed by an interim order dated 25th May, 1999 in the Writ Petition (C)

No.3226/1999 challenging the same. Thus the decision of W.P.(C)

No.3169/1999 is dependent on the decision in W.P.(C) No.3226/1999

preferred by DTC challenging the order dated 17th September, 1998.

2. The Industrial Tribunal in the proceedings under Section 33 (2)(b) had

framed a preliminary issue as to the legality and validity of the inquiry

conducted by DTC prior to removal of the workman. The parties also adduced

evidence on the said preliminary issue. However the Tribunal has in the order

dated 17th September, 1998 not rendered any finding as to the validity /

legality of the inquiry. The counsel for the workman Ashok Kumar submitted

before the Tribunal that there was no necessity for the same in as much as the

application under Section 33 (2)(b) was otherwise not maintainable.

3. It is the admitted position (the counsel for the workman Ashok Kumar

has not disputed the same before this Court also) that the workman was charge

sheeted in 1984 for acts of misconduct. An inquiry was conducted which

found the workman guilty; the Disciplinary Authority also concurred with the

same and proposed the penalty of removal from service and show cause notice

was issued to the workman on 28th February, 1986. However after the issuance

of the show cause notice, DTC chose, instead of terminating the services of

the workman for the reason of misconduct, to vide order dated 18th March,

1986 terminate his services simplicitor as was then permitted under its

Regulation 9 (b) of DRTA (Conditions of Appointment and Service)

Regulations 1952 i.e. dismissal without inquiry. It is further the admitted

position that the power of DTC to terminate services of its employees under

Regulation 9 (b) was then under challenge in various writ petitions. This Court

vide order dated 14th May, 1986 in DTC Mazdoor Congress (Regd.) Vs.

Union of India 1987 Lab IC 1070 struck down Regulation 9 (b) and directed

DTC to take back all employees dismissed under the said Regulation. DTC

preferred an appeal against the judgment of this Court to the Supreme Court.

The said appeal was also dismissed on 4th September, 1990 vide judgment

reported as AIR 1991 SC 101.

4. DTC accordingly vide letter dated 17th December, 1990 took back the

workman Ashok Kumar into employment, as directed by this Court and

revived the disciplinary proceedings aforesaid pending against him.

Ultimately the order dated 20th July, 1993 of removal of workman from

service on grounds of misconduct was passed and owing to the pendency of

general Industrial Dispute between DTC and its drivers, approval aforesaid

under Section 33 (2) (b) sought.

5. It was the contention of the counsel for the workman Ashok Kumar

before the Industrial Tribunal that the workman having already been dismissed

once under Regulation 9 (b) (supra) could not be dismissed again for the

reason of the same misconduct and the same amounted to double jeopardy.

6. The Tribunal concurred with the contention aforesaid of the counsel for

the workman. The Tribunal rejected the plea of DTC that the earlier dismissal

was a case of simple discharge, then permissible under Regulation 9 (b) and

was not a punishment for misconduct as meted out subsequently and held that

"the fact however remains that the services..... were terminated after he had

been found guilty of misconduct in 1986......". It was held that the dismissal

earlier, even though under Regulation 9 (b) was only for the reason of having

been found guilty of misconduct and not for any other reason and the

workman could not be punished twice for the same misconduct.

7. I am unable to agree with the reasoning aforesaid of the Tribunal. The

earlier dismissal of the workman under Regulation 9 (b) was not on account of

misconduct. Moreover, the said dismissal was revoked by DTC itself and the

workman re-inducted in employment. Thus, with the reinstatement of the

workman, the dismissal under Regulation 9 (b) ceased to exist. The question

of meting out punishment to the workman twice for the same conduct

therefore did not arise.

8. Unfortunately, the Tribunal has otherwise not returned any findings on

the application of the DTC under Section 33 (2) (b) of the Act. This Court thus

has no option but to remand the matter to the Tribunal for decision of the

application under Section 33 (2) (b) in accordance with law.

9. Accordingly W.P.(C) No.3226/1999 is allowed. The order dated 17th

September, 1998 of the Tribunal dismissing the application of DTC under

Section 33 (2) (b) for the reason of suffering from double jeopardy is set aside.

The Tribunal is directed to decide the application under Section 33 (2)(b) on

merits, in accordance with law. The file of the Tribunal summoned in this

Court is directed to be immediately returned to enable the Tribunal to dispose

of the application under Section 33 (2) (b) expeditiously. Consequently,

W.P.(C) No.3169/1999 filed on the basis of the order dated 17th September,

1998 of the Tribunal which has been set aside, is dismissed.

No order as to costs.

RAJIV SAHAI ENDLAW (JUDGE) 23rd April, 2010 pp