Delhi Transport Corporation vs Smt.Birmati & Ors.
2011 Latest Caselaw 1549 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                              Date of Judgment: 17.3.2011


+            RSA No.213/2005 & CM No.10534/2005


DELHI TRANSPORT CORPORATION           ...........Appellant
             Through: Mr.Abhay N. Dass, Advocate.

                   Versus

SMT.BIRMATI & ORS.                       ..........Respondent
              Through:         Mr.R.S.Tomar, Advocate.


       CORAM:
       HON'BLE MS. JUSTICE INDERMEET KAUR

     1. Whether the Reporters of local papers may be allowed to
        see the judgment?

     2. To be referred to the Reporter or not?               Yes

     3. Whether the judgment should be reported in the Digest?
                                                          Yes

INDERMEET KAUR, J. (Oral)

1. This appeal has impugned the judgment and decree dated

14.9.2004 which has reversed the finding of the trial judge. Trial

judge vide judgment and decree dated 21.2.1998 had dismissed the

suit of the plaintiff. The impugned had reversed it; claim stood

decreed.

2. Plaintiff Onkar Singh was serving as a conductor with the

Delhi Transport Corporation (hereinafter referred to as „the DTC‟).

He was confirmed on 08.10.1980. On 13.9.1990 while on duty in

bus No.6316 operating on route no.836 it was found that he had

not issued tickets to six persons; he was also found in possession of

excess cash to the tune of Rs.56.25. Report was prepared by the

checking staff and submitted to the Deport Manager. Charge sheet

was framed against the plaintiff. His explanation was called. The

plaintiff submitted his reply. Vider order dated 14.12.1990 notice

was issued to the plaintiff to show cause as to why his pay not be

reduced to the initial stage. Reply has been submitted by the

plaintiff on 15.1.1991. The impugned order dated 16.3.1991 was

passed by the Depot Manager imposing penalty of reduction of his

pay to the first initial stage. Appeal filed before the Regional

Manager was dismissed. Mercy petition filed before Chairman of

the defendant corporation also met the same fate. Present suit was

accordingly filed.

3. In the written statement, it was contended that the plaintiff

had admitted his guilt in reply to the charge sheet as also in his

reply to the show cause notice; separate enquiry was not required;

the order of penalty dated 16.1.1991 reducing the pay of the

plaintiff to his initial back pay scale till the date of his retirement

was accordingly issued; it calls for no interference.

4. On the pleadings of the parties five issues were framed. Two

witnesses were examined on behalf of the plaintiff and two on

behalf of the defendant.

5. Trial judge was of the view that since the appellant had

admitted his guilt in his reply to the charge sheet as also in his

reply to the show cause notice no enquiry was necessary; there

being no violation of natural justice; suit of the plaintiff was

dismissed.

6. In appeal, this order of the trial judge was reserved. Suit of

the plaintiff stood decreed. The impugned judgment was of the

view that a major penalty had been imposed upon the plaintiff

whereby his pay had been reduced to his initial pay scale till the

period of his retirement. This could not have been done without

giving him an opportunity of being heard. Suit was accordingly

decreed in favour of the plaintiff.

7. This is the judgment impugned before this second court by

way second appeal. Although there is no formal order of admission,

the following substantial question of law was formulated on

18.5.2007:

Whether the respondent was given reasonable opportunity of being heard by the Disciplinary Authority?

8. On behalf of the appellant, it has been pointed out that the

plaintiff had admitted his guilt. Attention has been drawn to the

charge sheet which has been framed against the delinquent as also

the charge. It is not disputed that the charge leveled against the

plaintiff is that on 13.9.1990 when he was on duty in Bus No.6316

the Checking Staff checked the bus at Mitrau and found six

persons without ticket. On enquiry, it was informed that the said

passengers boarded the bus from Najafgarh to Rawta and paid

Rs.6/- to the conductor but the conduct did not issue the tickets to

them. Monetary loss accrued to the corporation.

9. Reply to this charge sheet was filed by the plaintiff on

13.11.1990; the said reply reads as follows:

"It is respectfully submitted that as per your charge sheet No.DD/AT/90/982 dt.25.9.90 two charges are leveled and because of the over loaded of the bus from Najafgarh to Mitrau turn, I could not make all the tickets as such I could not issue the tickets to those six persons though I had taken the fare from all six passengers, because it is the second stand from Najafgarh and bus reaches within 10 minutes to Mitrau. As far as the charge no.2 regarding the excess money of Rs.56.25 is concerned then it is my personal money which I have taken as changed money because in the morning there remains a problem of change and the balance of one passenger had also remained with me which I had forgotten to return. Therefore, I request you not to conduct any inquiry and don‟t want to submit any explanation. My case may kindly be closed."

The words "forgotten to return" are not a part of the original

hindi version; this is admitted by both the parties.

10. Thereafter show cause notice dated 14.12.1991 had also

been issued to the plaintiff asking him to show cause as to why his

pay not be reduced to initial pay scale till his retirement from the

corporation.

11. Reply to this show cause notice was filed by the plaintiff vide

his communication dated 15.1.1991. It was stated that the

plaintiff is suffering from monetary loss; his family is adversely

affected; financial burden would not have been borne by him.

Pardon was sought.

12. The vehement contention of the learned counsel for the

appellant is that in the reply dated 13.11.1990 given by the

plaintiff he had made categorical admission of his guilt and in fact

he had sought a pardon in the subsequent communication dated

15.1.1991. In these circumstances, the question of holding an

enquiry would not arise. Impugned judgment holding otherwise is

an illegality. There has been no violation of natural justice.

Learned counsel for the appellant has placed reliance upon a

judgment of the Apex court reported in AIR 1968 SC 266 The

Central Bank of India Vs. Karunamoy Banerjee to support his

submission that where an admission of guilt has been made by the

delinquent, nothing more is required on the part of the

management; no separate enquiry is required to be conducted. For

the same proposition reliance has been placed upon AIR 1963

Patna 177 J.L.Toppo Vs. Tata Locomotive and Engineering Co. Ltd.

13. Submissions have been countered. It is pointed out that the

reply to the charge sheet cannot in any manner be considered as

an admission of guilt. It was only an explanation furnished by the

plaintiff to the show cause notice as to why the tickets could not be

issued in that period.

14. Record has been perused.

15. The charge leveled against the plaintiff was that he had not

issued tickets to six persons although he had taken the money of

the tickets i.e. of Rs.6/-; admittedly these six passengers were

travelling from Najafgarh to Rawta. It is also admitted that the

bus was checked at Mitrau station which is in between Najafgarh

and Rawta. It is not the case of the of the department that the

passengers had disembarked and de-boarded the bus; the

explanation furnished by the plaintiff on 13.11.1990 was clear and

categorical to the extent that he could not issue six tickets to those

persons although he had taken the fare from them as the bus was

overloaded and had reached Mitrau within 10 minutes. This was

the categorical and clear explanation furnished by the plaintiff.

This in no manner can be said to be an admission of guilt as is the

vehement contention of the department. The plaintiff had only

given an explanation for not issuing the tickets in that intervening

period from Najafgarh to Mitrau. The explanation being that the

bus was over crowded and had reached within 10 minutes from

Najafgarh to Mitrau; it is not his case that he was not going to

issue the tickets to the passengers at all. Even in the reply to the

show cause notice, he had stated that he is suffering from financial

burden and such a penalty should not be imposed upon him. In

these circumstances, he had sought pardon.

This documentary evidence relied upon by the department

does not in any manner amount to an admission of guilt. The

judgment relied upon by the learned counsel for the appellant do

not come his aid.

It is also not in dispute that what has been imposed by way

of a penalty on the plaintiff was a major penalty. Before imposing

a major penalty it was incumbent upon the department to have

initiated an enquiry against him. The impugned judgment has

rightly held that before imposing a major penalty an enquiry

should have been conducted; the enquiry could not have been

dispensed with; principles of natural justice had been violated.

There is no infirmity in the impugned judgment; it calls for no

interference. Substantial question of law is answered accordingly.

Appeal as also pending application is dismissed.

INDERMEET KAUR, J.

MARCH 17, 2011 nandan