Dharam Raj vs The Chairman Cum-Md, D.T.C. And ...
2013 Latest Caselaw 911 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                     Date of Decision: February 22, 2013

+                   W.P.(C) 1157/2013

       DHARAM RAJ                                            ..... Petitioner
                            Represented by: Mr.Sanjoy Ghose, Advocate

                            versus

       THE CHAIRMAN CUM-MD, D.T.C. AND ORS ..... Respondents
                     Represented by: Ms.Avnish Ahlawat with
                     Ms.Latika Chaudhry, Advocates
       CORAM:
       HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
       HON'BLE MS. JUSTICE VEENA BIRBAL

PRADEEP NANDRAJOG, J. (Oral)

1. Learned counsel for the writ petitioner would urge that under an erroneous belief that while levying the penalty of stoppage of one increment with cumulative effect and that issue pertaining to the period petitioner remained suspended for purposes of pay and service rendered for pensionary purposes had yet to be considered, while dismissing the Original Application filed by the petitioner the Tribunal has left the issue open to be decided by the Competent Authority regarding period during which petitioner remained suspended.

2. Relevant facts to be noted by us are that admittedly the writ petitioner was employed as a Driver by DTC, but for reasons only known to DTC was made to perform duties of a Conductor.

3. Certain technical lapses, in the form of wrong punching of tickets and no entry made in the way-bill, resulted in the petitioner being suspended on March 05, 2010 pending inquiry.

4. The petitioner was indicted at the inquiry and the stand taken by him was that being employed as a Driver he did not know the working of a conductor pertaining to making entries in the way-bill. As regards wrong punching of tickets, he pointed out that all passengers were issued tickets but inadvertently he punched the ticket at the wrong side i.e. when the bus was undertaking the up journey, the punching was as if the bus was plying on the down journey. He highlighted that the destination i.e. the bus stop number was correctly punched and that no revenue loss to DTC and no wrongful gain was made by him.

5. Needless to state the inquiry officer found neither a gain being made by the writ petitioner nor a loss to the DTC nor any mala fide or deliberate wrong was attributable to the writ petitioner.

6. On September 15, 2010 the disciplinary authority levied penalty of stoppage of one increment with cumulative effect and simultaneously held that subsistence allowance paid during suspension is deemed sufficient.

7. The appellate authority found that at best, penalty of a censure can be inflicted for the reason the wrong was a technical wrong. The result was that the writ petitioner was conveyed on May 02, 2011 that the appellate authority had converted the penalty to one of censure.

8. Writ petitioner approached the Tribunal raising 2 grievances; firstly regarding the penalty and secondly he not being paid full wages during the period of suspension keeping in view that the wrong found against him was a technical wrong and additionally keeping in view that the wrong was the result of a wrong action of DTC by deputing a Driver to perform the duties of a Conductor.

9. Vide impugned decision dated October 18, 2012 the Tribunal has upheld the penalty of censure levied and as regards the period of suspension has directed that the competent authority would take a decision.

10. The Tribunal has proceeded on the assumption that the competent authority has yet to take a decision as regards the manner of period during which petitioner remained suspended has to be treated.

11. Learned counsel for the writ petitioner would submit that he would not press the challenge to the penalty of censure levied but restrict arguments to the period March 05, 2010 till September 15, 2010 i.e. the period during which the writ petitioner remained suspended.

12. From the conspectus of facts noticed hereinabove it emerges that the writ petitioner was a Driver and thus, DTC ought not have made him perform duties of a Conductor and that too without training.

13. The two wrongs are of a technical kind and additionally are the result of an unqualified person being made to perform a particular job. No loss was caused to DTC. No wrongful gain has been made by the writ petitioner. The wrong is a technical wrong. The penalty ultimately levied is one of censure.

14. Accordingly we dispose of the writ petitioner quashing the penalty order insofar as it directs that for the period of suspension the writ petitioner would be paid no salary and subsistence allowance would be deemed sufficient.

15. We hold that the writ petitioner would be entitled to full salary for the period during which he remained suspended and the period shall be reckoned for all service benefits including continuous length of service rendered, pensionable service rendered, etc.

16. Difference in wages be paid to the writ petitioner within 8 weeks from today.

17. No costs.

18. Dasti.

PRADEEP NANDRAJOG, J

VEENA BIRBAL, J FEBRUARY 22, 2013//srb//