Delhi Transport Corporation & ... vs Sh.Bhim Singh
2010 Latest Caselaw 2279 Del

*               IN THE HIGH COURT OF DELHI AT NEW DELHI

+                               WP(C) No.2870/2010

%                           Date of Decision: 29.04.2010

Delhi Transport Corporation & another                .... Petitioners
                   Through Ms.Aarti Mahajan Shedha, Advocate.

                                    Versus

Sh.Bhim Singh                                              .... Respondent
                          Through Nemo.

CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR
HON'BLE MR. JUSTICE MOOL CHAND GARG

1.    Whether reporters of Local papers may be              YES
      allowed to see the judgment?
2.    To be referred to the reporter or not?                NO
3.    Whether the judgment should be reported               NO
      in the Digest?



ANIL KUMAR, J.

*

The petitioner, Delhi Transport Corporation & another, have

impugned the order dated 3rd December, 2009 passed by the Central

Administrative Tribunal, Principal Bench, New Delhi in T.A. No. 592 of

2009, titled as „Sh. Bhim Singh v. Delhi Transport Corporation &

others‟, by setting aside the orders dated 9th September, 1998 and 15th

December, 1998, removing the petitioner from service by a non-

speaking order and rejecting the appeal also by a stereotype order dated

15th December, 1998 and ordering that the respondent shall be entitled

to consequential benefits and allowing the Original Application of the

respondent.

The respondent was served a memorandum dated 15th February,

1991 alleging that he had been involved in a moral turpitude offence

allegedly committed by him in the night of 5th -6th August, 1990 at 1:45

AM in Humayun Pur Village pursuant to which an FIR dated 6th

August, 1990 was registered which fact was allegedly concealed by the

respondent and in his application dated 6th August, 1990, he requested

for three days earned leave w.e.f. 6th August, 1990 to 8th August, 1990,

and therefore, his actions tantamount to misconduct within the

meaning of paras 19(k), 19(l) & 19(m) of the standing order governing

the conduct of DTC employees.

The respondent was granted bail on 10th August, 1990 by the

Addl. Session Judge, and later on the respondent was acquitted of the

charges made against him. Though the incident is of 6th August, 1990,

however, about the case the respondent had intimated the authorities

only on 10th August, 1990.

The respondent was given a show cause notice on 31st January,

1992 asking him to explain as to why he should not be removed from

service for not intimating about the case against him from 6th August,

1990, and allegedly the case was registered till 10th August, 1990 ,when

he had intimated about the case. Though the respondent gave reply but

without considering his application, according to respondent, he was

removed from service w.e.f. 9th September, 1998 by a non-speaking

order. The order dated 9th August, 1998 is as under:-

"Reply dated 21.07.1998 submitted by Sh.Bhim Singh, Traffic Supervisor, pay Token No.3449 in response to show cause Notice but found not satisfactory, I, therefore, confirm the provisional decision and imposed upon him the following punishment:-

"He is removed from the services of this Corporation w.e.f. 9.9.1998 under paras 15(2)(VI) of the D.R.T.A.(Conditions of Appointment and Service) Regulations, 1952."

The subsistence allowance already paid to him during the period he remained under suspension is also considered adequate.

He is required to deposit all the D.T.C. articles (uniform, B.No./Name Plate, Identity Card-Cum-Bus, Medical Card, etc.,to the Depot Manager KJD within 24 hours of the receipt of this order by him, failing to do so render him liable to pay a penalty of Rs.2/-per day for the days he keeps any articles of this Corporation in his possession of specified period of 24 hours."

The appeal filed by the respondent was also rejected by order

dated 15th December, 1998 which is as under:-

"Reference your appeal to Chairman-cum-Managing Director, dated 18.09.1998 for re-instation in the services of the Corporation as Tr.Supervisor. You are hereby informed that the competent authority has rejected your appeal."

The respondent had challenged his removal from services w.e.f

09.09.1998 under para 15(2)(VI) of the D.R.T.A. (Conditions of

Appointment & Service) Regulations, 1952 by filing the writ petition

which was later on transferred to Central Administrative Tribunal. The

respondent had challenged punishment of removal on the ground that

there was no violation of any standing order as an employee is guilty of

misconduct if he is convicted for offence involving in a moral turpitude

and not merely if he is charged with an offence under para 19(k).

Because under para 19(l) of the standing orders though it is the duty of

an employee who has been arrested in any reason to intimate the fact of

his arrest to his officer, however, the respondent was never arrested,

and therefore, he had not committed any charge as envisaged in para

19(l), the respondent had neither been convicted, nor arrested by the

police and on 10th August, 1990 after getting anticipatory bail, he

immediately informed the petitioner about his false involvement and

implication in criminal case. The respondent had also filed a Civil Suit

where it was observed that prima facie no charge was made out against

the respondent under paras 19(k) & (l) as the respondent was neither

convicted for any offence, nor he was even arrested by the police. The

respondent was also asserted that he was acquitted honourably and in

the circumstances, the removal order had been passed without

appreciating the provisions of Regulation 19 of D.R.T.A. Regulations.

The Tribunal relied on a fact that by the judgment dated 26th

February, 1996 of Additional Districts & Sessions Judge. The

respondent was acquitted honourably of the criminal charges and

therefore, it cannot be held that he was involved in a case of moral

turpitude. It was also noticed by the tribunal that he had filed a suit for

declaration that the charge sheet, enquiry proceedings and show cause

notice are illegal and invalid. The respondent had also sought a restrain

from taking any further action against him pursuant to show cause

notice dated 31st January, 1992 and the trial court had restrained the

petitioners from terminating his services.

Against the order of the trial court restraining the petitioners from

terminating his services, an appeal being MCA No.58 of 1993 was filed

and the appeal was disposed of by order dated 24th August, 1994.

Reliance was also placed on two office orders dated 19th

December, 1973 and 16th April, 1979 stipulating and clarifying that

where employees are placed under suspension as a result of serious

criminal action against them, they need not be charge sheeted and that

action will be considered on the basis of the result of the judicial case.

In office order dated 16th April, 1979, it was clarified that if an employee

desires that the departmental enquiry be stayed on the ground that he

would be prejudiced in his defence in the criminal case, then the

disciplinary authority will consider the said matter and proceedings

would be stayed pending decision of the criminal case, if the request

would be found reasonable.

Referring to Sub Clause (l), the Tribunal held that under the said

clause an employee was under no obligation to inform the department

about the registration of the criminal case and an employee was

required to inform about his arrest. Since the respondent was never

arrested, therefore, there was no violation of Sub Clause (l) and the

main charge that he did not intimate to registration of the case against

him on 6th August, 1990 was therefore, not made out as there was no

obligation to intimate about the registration of the case. The fact that

the respondent was not arrested could not be denied, and was not

denied by the petitioner as the case was registered on 6th August, 1990

and on 9th August, 1990, the respondent admitted to anticipatory bail

and on 10th August, 1990, he had intimated about the registration of

the case though it was not required under Sub Clause (l).

In the circumstances, it was held that the petitioners could not

have invoked sub Clause (k) or (l) of the standing orders, and

consequently the order removing him from service was contrary to law

and the standing orders and was a outcome of a complete non

application of mind. In the circumstances, it was held that the charge

based on para 19(l) could not have been invoked, nor the penalty of

removal from service could be imposed on the respondent.

The Tribunal also relied on the facts that punishment orders were

stereo type and pleas and contentions of the respondent and reply to

show cause notice were not considered and were not dealt with.

The learned counsel for the petitioners has very emphatically

contended that though the charge under Clause 19(k) has not been

made out, however, the Tribunal could not interfered with the order of

the removal. The learned counsel for the petitioner has also challenged

the grant of consequential benefits to the respondent and has relied on

2005 VAD (S.C.) 224, Allahabad Jal Sansthan v. Daya Shanker Rai &

another‟, and 2005 (2) SCC 363 „Kendriya Vidyalaya Sangathan &

another v. S.C.Sharma‟, to contend that the consequential benefits

could not be granted to the respondent.

Perusal of Clause 19(l) reveals that the liability of the employee

was intimate about the arrest to his superior officer and not about

registering of the case. Clause 19(l) is as under:-

"19 General Provisions Act:- without prejudice about the provisions of the foregoing standing orders, the following acts of commission and omission shall be treated as misconduct:-

19(l) All employees who may be arrested for any reason shall intimate the fact of arrest to their official supervisor immediately, even though they might have subsequently been released on bail. Failure on the part of any employee to do so informing his official supervisor will render him liable to be disciplinary action on this ground alone, apart from the action that may be called for on the outcome of the police case against him."

The charge against the respondent was that he concealed the fact

of his involvement and did not intimate about the registration of the

case on 6th August, 1990 though an application for earned leave was

filed by him for three days from 6th August, 1990 to 8th August, 1990. A

bare perusal of Clause 19(l) shows that non disclosure of the

registration of the case will not be violation of Clause 19(l). This fact has

not been disputed by the petitioners that the respondent was granted

anticipatory bail on 9th August, 1990 and on 10th August, 1990, he had

intimated the petitioners about the pendency of the case. This has also

not been disputed by the petitioners that the respondent was not

arrested and ultimately he was acquitted honourably in the case which

was registered against him. Apparently, in the facts and circumstances,

there is no violation of Clause 19(l) by the respondent so as to bear the

consequences of misconduct leading to removal from services. The order

of the tribunal, therefore, cannot be faulted in setting aside the order

dated 9th August, 1990 and 15th December, 1998 in the circumstances.

The next point which has been very emphatically contended by

the learned counsel for the petitioner is that the respondent is not

entitled for any consequential benefits. In Kendriya Vidyalaya Sangthan

& another (Supra), relied on by the petitioner the proceedings initiated

against an employee who has been absconder. The delinquent employee

in that case had applied for earned leave in 1996 to go abroad. His

letter dated 6th March, 1997 for grant of permission and sanction of

leave was rejected and permission to go abroad was also declined,

rather he was intimated that the disciplinary proceedings were

contemplated against him. Despite rejection of the request of the

employee to go abroad and rejection of his leave, he did not report for

duty and consequently his services were terminated which was

challenged. The employee had been dismissed without regular enquiry

invoking Rule 19(2) and the Tribunal had quashed the order of the

punishment without holding the enquiry.

While setting aside the order of termination, full back wages were

granted. However, the same were challenged before the Supreme Court

and it was held that he was not entitled for full back wages as before

claiming full back wages the employee had to show that he was not

gainfully employed during the period. In this case, in the

circumstances, the full consequential benefits were not granted to the

employee. The case relied on by the petitioners is apparently

distinguishable. In case of the respondent, he was not suspended from

services rather by order dated 9th September, 1998 he was removed

from services. The case of the petitioners is not that after his removal

from services, the respondent was gainfully employee, and therefore, he

is not entitled for consequential benefits.

The other case relied on by the learned counsel for the petitioner,

Allahabad Jal Sansthan (Supra), is also distinguishable as the case

once about an ex parte award passed by the Labour Court reinstating

the employee with full back wages holding that order of termination was

invalid in law as he had worked for more than 240 days in one calendar

year, and provisions of Section 6-N of the Act were not complied with.

In the circumstances, the Supreme Court had directed payment

of 50% of the back wages in place of full back wages. The ratio of both

the case relied on by the petitioners is distinguishable and on the basis

of the same, the petitioner cannot contend that the respondent is not

entitled for consequential benefits on setting aside of his order of

removal from services

The respondent was not arrested, he was granted anticipatory

bail and later on he was also acquitted not on technical grounds but

honorably and no action could be taken against him even under clause

19 (l) as it contemplated intimation of only arrest and the respondent

was not arrested and in the circumstances, the decision of the Tribunal

that the respondent shall be entitled to consequential benefits cannot

be faulted. The rule of "No work no pay" is not applicable where the

employee is though willing to work is not allowed to work for no fault of

his. Where the employee is completely exonerated meaning thereby that

he is not found blameworthy in the least and is not visited by any

penalty of any type, he has to be given all the consequential benefits

which he would have normally been entitled.

In the totality of facts and circumstances, therefore, there are no

such illegalities or irregularities in the order of the Tribunal which

would require any interference by this Court. The writ petition, in the

circumstances, is without any merit and it is dismissed.

ANIL KUMAR, J.

APRIL 29, 2010                                  MOOL CHAND GARG, J.
'VK'