Bhagwan Singh v. Delhi Transport Corporation

* + + IN THE HIGH COURT OF DELHI AT NEW DELHI DateofDecision: 25^''September,2017 W.P.(C) 827/2nil BHAGWANSINGH Through: Mr.AnilMittalwithMs.Komal Aggarwal,Advocates. versus DELHITRANSPORTCORPORATION Respondent Through: Mr.SarfarazKhan,Advocate. AND W.P.rC) 837/2011 BHAGWANSINGH ; petitioner Through: Mr,AnilMittalwithMs.Komal ,Aggarwal, Advocates. versus ' DELHITRANSPORTGORPORkTIpN Respondent CORAM Through. Mr.SarfarazKhan,Advocate. HON'BLEMR. JUSTICEVIPINSANGHI HON'BLEMS. JUSTICEREKHAPALLI REKHAPALLI.J tORAT.)

¶1The present writ petitions have been filed by the Petitioner challenging two separate orders dated 10.10.2012 passedby the CentralAdministrativeTribunal,PrincipalBench, New Delhi vide which both his OriginalApplicationsi.e. O.A No.1947/2011& 1952/2011 havebeen dismissed. WP(C)No.827&837/2013 Page 1 of13 Certify that the digital and physical file have been compared and the digital data is as per the physical file and no page is missing.

¶2The Petitionerhad filed the two OAs challengingtwo separatepenaltyorders,bothdated 14.02.2011,whichchallenge has been rejectedby the Tribunalby two separateorders both dated 10.10.2012. Since the facts in both the cases are interlinkedand common argumentshad been addressedby the learned counsel for the parties, both the petitions are being disposedof vide this common order. The individualfacts of both the cases are being noted only to the extent, they are essentialfor adjudicationofthe presentpetitions.

¶3The Petitioner'sfirst 0.A No. i.e. 1947/2011 had been filed challengingthe penalty of, "stoppage of next due two incrementswith cumulativeeffect",imposedon him vide order dated 14.02.2011while the secondOA i.e. O.ANo. 1952/2011 had been filed challengingthe penaltyof 'bringinghim to the initialstageto thepostpfdiiyer^r^e periodoftwo years'.

¶4The Petitioner;Wasia'Drii^f v^ the Respondent/DTC since 13.08.1982anirwas"aThemfeer of the Delhi Parivahan Mazdoor Sangh (Reg.). He claims to have made complaints dated 22.09.2006 and 21.02.20,07 against Shri Chintamani Nautiyal,AssistantTrafficInspectorand ShriMuni Ram, Depot Manager alleging therein that they were harassingthe staff. On

07.03.2007, the Petitioner alongwith one Shri Rameshwar Dayal went to the Schedule Section of the Respondent/DTC, where, as per the common case of the parties, there was an exchange of heatedwordsbetweenthem. This ledto a complaintbeingfiled by Shri Chintamani Nautiyal against the Petitioner and Shri WP(C)No.827&837/2013 Page 2 of13 V' RameshwarDayal. Based on this complaint,the Petitionerwas servedwith a charge-sheet dated 23.03.2007,in which, it was allegedthat he along with Shri RamehswarDayal had gone to the ScheduleSectionon 07.03.2007wherehe had hurledabuses to Shri ChintamaniNautiyalandthe DeputyManagerShri Muni Ram, and vitiatedthe atmosphereby threateningbothofthem.

¶5The Petitionersubmittedhis reply denying the charges and a DepartmentalEnquirywas,held againstthe Petitioneron the basis of charge-sheet dated 23.03.2007. Based on the evidenceadducedin the enquiry,the Petitionerwas held guilty ofthe chargesand vide orderdated 11.11.2008he was awarded the penalty of "stoppage of next due two increments for a period of two years".. The Petitioner'sstatutoryappeal being rejected,he preferredO.A. No, 3095/2009before the Tribunal challenging this penalty.awarded,to him vide order dated

11.11.2008. This O.A filedby'thePetitionerwas allowedby the Tribunalvide its order dated;25hiSo10 on the limitedground that the penalty order was a non-reasoned order and, accordingly,the matterwas.remandedback to the Respondent. The Respondentafter issuing a fresh show-causenotice to the Petitioner and considering his reply passed an order dated

14.02.2011reiteratingthe penaltyof stoppageof next due two incrementsfor a periodof 2 years with cumulativeeffect. This penaltywas again challengedby the Petitionerby way of O.A No. 1947/2011, which is the subject matter of writ petition no.827/2013. WP[C) No.827&837/2013 Page3 of13

¶6At around the same time, the Petitioner had been issued another charge-sheet dated 24.04.2007 in which it was alleged that on 28.03.2007 at about 9:40 a.m he had abused and beaten Shri Muni Ram, the Deputy Manager. It was also alleged that due to the assault by the Petitioner, the button of Shri Muni Ram's shirt had broken and it was further alleged that the Petitioner used caste related words against him. The entire incidentwas witnessedby variousemployeesofthe Depot.

¶7Upon denial of the charges by the Petitioner, a Departmental Enquiry was held against him in respect of charge-sheet dated 24.4.2007.' The Enquiry Officer after consideringthe entire evidence foUnd the charges as proved. Upon considerationof the Enquiry Report, the Disciplinary Authority i.e. Depot Manager vide his order dated 13.05.2009 imposedthe penaltyofbringingEimtq the initialstageofdriver for 2 years. His statUtbry'.appeaEha^ been rejected, the Petitionerpreferred6.A:;f46;A0Pfe before the Tribunal which was also disposedof with the same directions,as issued in the Petitioner'sotherQ.A,No.,3095/2009,dated 13.01.2011, noted hereinabove.

¶8The Respondent, ..thereafter,issued a show-cause notice to the Petitionerand after consideringhis representationthereto, once again passed an order dated 14.02.2011 confirmingthe punishmentofbringinghim to the initial stage attachedto the postof Driverfor two years. WP(C)No.827&837/2013 Page4of13 V

¶9The Petitioneronce again filed a statutoryappeal, which was also rejected and in these circumstances the Petitioner filed the O.A. No, 1952/2011 which was also dismissed vide order dated 10.10.2012along with his other O.A. 1947/2011as noted above. It is this order passed by the Tribunal in O.A No.1952/2011,whichis the subjectmatterof W.P(C)837/2013.

¶10While dismissing the O.As, the Tribunal rejected the Petitioner's plea that the complaint dated 07.03.2007 made by Shri Chintamani Nautiyal (ATI)-which was the basis of charge-sheet dated

23.03.2007, was a counterblast to his earlier complaint made against Shri Chintamani Nautiyal. Similarly, the Tribunal did not find any merit in the Petitioner's plea that the complaint dated 28.03.2007made by the Deputy Manager, Shri Muni Ram, was a counterblast to his earlier complaint against Shri Muni Ram. In.its impugned orders, the Tribunal also noticed the fact that during cross-examination of the departmentalwitnesses in -the enquiry, the Petitionerhad not made any suggestionsto either of the complainants,namely, Shri Chintamani Nautiyal .or Shri Muni Ram, regarding his allegedplea oftheir complaintsbeing a result ofcounterblast. The Tribunal also did not find any merit in the plea of the Petitionerthat the witnesses examined in the enquiry did not support the charge. The Tribunal found that the conclusions arrivedat by the enquiringauthority,and the decisionstakenby the disciplinaryas well as AppellateAuthority,were based on WP(C) No.827&837/2013 Page 5 of13 3' materialrecord and, accordingly,the Tribunalrejectedboththe O.As vide two separate orders dated 10.02.2012.

¶11In these circumstancesaggrievedby the dismissalof his O.As,the Petitionerhas preferredthe presenttwo writpetitions. ,12. At this stage it may also be noted that the Petitioner stands superannuatedfrom the service in the year 2013 and, therefore,the only effectofboth the penaltiesimposedon him, has beenareductionin his terminaldues as well as his monthly pension. An additional Affidavit has been filed by the Petitionerbringingout that as aresultof both the penalties,he has not only receivedRsT,7r,309/-less towardshis retirement gratuity, but is also receiving:;Rs.'4,616/-less every month as Pensionviz-a-vizsimilarlysituatedemployees.

¶13•Appearingfor the Petitipnen,Mr. Anil Mittal, Advocate has in supportof both-the;petitions^ commonarguments. He submitsthat both|thedom^aints^againstthe Petitionerwere onlyacounterblast,as a^reMpT&arliercomplaintsagainst Shri Chmtamani Nautiyal and Shri Muni Ram, made to the Depot Manager, Sarojini. While,drawing our attentionto the ^ statementsofthe witnessesexaminedin the enquiry,he submits thatthe witnesseshave takencontradictoiystandsregardingthe presence and role of Shri Rameshwar Dayal, who had accompanied the Petitioner to the Schedule Section on

07.03.2007which, accordingto him, shows that he has been falselyimplicatedat the behestofShriChintamaniNautiyaland Shri Muni Ram. He submits that in view of the major WP(QNo.827&837/2013 Page 6 of13 contradictionsin the statementsof the witnesses,it would be unsafeto holdthe Petitionerguiltyofthe charges.

¶14Mr Mittal submitsthat, even otherwise,keepingin view the natureofthe charges,the penaltiesawardedto the Petitioner are shockinglydisproportionate.He submitswhileawardingthe penalties, the Respondents have ignored the fact that the Petitionerwas amemberofthe employeesunion, and there are contradictionsin the statementsof the witnesses. He submitsthatas aresultofthe impugnedpenalties,the Petitioner is facing grave hardship even after his retirement, as he is receiving lesser pension than his peers, after 30 years of otherwisesatisfactoryservice.

¶15Per contra,the learnedcounselfor the Respondent,while supportingthe impugned orders of the Tribunal, submits that both the chargesagainstthe Petitionerwere very seriousand he had not only unauthorisedlyintervenedin the working of the ScheduleSection on 07:03.2007,;but was also seeking choice ^ postings for the members of the union. He submits that the had not only hurledabuses,in the Depot,but had also threatenedto beat the AssistantTrafficInspectoras well as the Depot Manager Traffic. He submits that as a result of the assaultby the Petitioneron 28.03.2007in the Depot, Shri Muni Ram-DepotManagerwas compelledto makeacomplaintto the police.

¶16He contendsthat penaltiesimposedon the Petitionerare fully commensuratewith the chargesprovedagainsthim in the WP[C)No.827&837/2013 Page7ofl3 DepartmentalEnquiry. His submissionis that, on the other hand,keepingin viewhis longservice,the Respondentshave,in fact, taken a compassionateview and imposedalesserpenalty on the Petitionerthanactuallywarrantedin the factsofthe case.

¶17Having consideredthe rival submissionsmade by the learned counsel for the parties and perusedthe record, we do not find any meritin the presentpetitions.

¶18From the record, we find that both the impugned penaltiesawardedto the Petitioner,are basedon findingsgiven by the EnquiryOfficerin the two departmentalenquiries.The Petitioner was given full opportunity to participate in the enquiry. Pertinently,no grievancehas been raised before us regardingthe procedurefollowedby the Enquiry Officer, and the only plea soughtto be raised is that the EnquiryReport is based on conjecturesand surmises. Once there is no infirmity in the procedurefollowedby the EnqliiryOfficer,and there is no dispute that the principles of natural justice were duly followed, it is not open for us to re-appreciatethe evidence adduced in the enquiry. We find,that in both the cases, the findingsofthe EnquiryOfficersare basedupon appreciationof evidence. It isnot evenpleadedby the Petitionerthatit isa case of 'no evidence'. In such circumstances, we see no reason to interfere with the conclusion anived at by the Enquiry Officer and the DisciplinaryAuthority. WP(C) No.827&837/2013 Page8 of13 'v

¶19The Supreme Court has, time and again, held that the power of judicial review in departmental proceedings is extremelylimitedand the Court shouldnot act as an Appellate Authority. Once a domesticTribunalhas come to a particular conclusion, it is not open for the Court to re-appreciatethe evidenceor to substituteits own view for that of the domestic Tribunal. The SupremeCourt in B.C. Chaturvedivs.Unionof India, (1995) 6 SCC 749, while dealing with the scope of judicial review in departmentalproceedingsheld in Paras 12 and 18 of its decision as under:- "12. Judicialreview is not anappealfrom a decisionbut a reviewofthe mannerin which the decisionis made. Powerof judicial reviewis meantto ensure that the individualreceives fair treatmentand not to ensure that the conclusionwhich the authority reaches is necessarilycorrect in the eye of the Court. When an inquiry .is conducted on charges of misconduct by a public servant, the Court/Tribunal is concernedto determine'whether:the inquiry M'as held by a competent officer or whether rules of naturaljustice are compliedwith. Whetherthefindingsor conclusionsare based on some evidence, the authorityentrustedwith the power to C-holdinquiryhasjurisdiction,powerand.authorityto reach a findingoffact or conclusion.But thatfindingmust be based on some evidence.Neitherthe technicalrules ofEvidenceAct nor of prooffact or evidence as defined therein, apply to disciplinaryproceeding. When the authority accepts that evidence and conclusion receives support therefrom, the disciplinaryauthorityis entitledto hold that the delinquent officer is guilty of the charge. The Court/Tribunal in its power ofjudicial review does not act as appellate authority to re-appreciate the evidence and to arrive at its own independent findings on the evidence. The Court/Tribunal may interfere where the authority held that proceedings against the delinquent officer in a manner inconsistent with the rules ofnatural justice or in violation ofstatutory rules WP(C) N0.827& 837/Z013 Page 9 of13 prescribingthe mode of inquiryor where the conclusionor findingreachedby the disciplinaryauthorityis basedon no evidence. If the conclusion or finding be such as no reasonable person would have never reached, the Court/Tribunalmay interfere with the conclusion or the finding, and mouldthe reliefso as to make it appropriateto thefacts ofeach case." "18. A review of the above legalpositionwould establish that the disciplinaryauthority, and on appeal the appellate authority,beingfact-findingauthoritieshave exclusivepower to consider the evidence with a view to maintain discipline. They are investedwith the discretion to impose appropriate punishmentkeeping in view the magnitudeor gravityoj the misconduct. The High Court/Tribunal,while exercising the power ofjudicial review, cannot normallysubstituteits own conclusiononpenalty and impose some otherpenalty. IJ the punishment imposed by the disciplinaryauthority or the appellate authority shocks the conscience of the High Court/Tribunal, it would appropriately mould the relief, either directing the, disciplinary/appellate authority to reconsider thepenalty imposed;,or to shorten the litigation,it may itself, in exceptionaland rare cases, impose appropriate punishmentwith cogent'reasonsin.supportthereof." It would also be relevant to refer to the decision of the Supreme Court in the case of Karnataka SRTC vs. A.T. Mane, (2005) 3 SCO 254 wherein the Supreme Court in Para 8 and 9 held as under:- "8 . This Court in the case ofState of Haryana and Anr. vj'. Rattan Singh which is also a case arising out of non issuance ofticket by a conductor held thus:- "In a domestic enquiry all the strict and sophisticated rules of Evidence Act may not apply. All materials WP(C) No.827&837/2013 Page 10 of13 M'hich are logicallyprobativefor a prudentmindare permissible, though departmental authorities and Administrative Tribunals must be careful in evaluating such material and should not glibly swallow what is strictlyspeakingnot relevant under the EvidenceAct. The essenceofjudicialapproachis objectivity, exclusion of extraneous materials or considerations,and observance of rules of natural justice. Fair play is the basis and if perversity or arbitrariness,bias or surrender of independenceof judgment, vitiate the conclusion reached, such a finding, even of a domestic tribunal, cannot be held to be good. The simplepoint in all these cases is, was ^ J there some evidence or was there no evidence — not in the sense of the technical rules governing Court proceedings but in afair commonsenseway as men of • understanding and worldly wisdom will accept. Sufficiency of evidence in proof of the finding by a domestic tribunal is beyond scrutiny by court, while absence of any evidence in support of thefinding is an error of law apparent on the record and the court can interfere with thefinding. . In the present case , evidence of the inspector is some evidence which has relevance to the charge and the courts below had misdirected themselves in insisting on the evidence;of., ticketlesspassengers. Also merely because .the. statements were not recorded, the order for termination cannot be invalid. Infact, the inspector tried to get their statements but the passengers declined. Further , it was notfor the court but the tribunal to assess the evidence of the conductor." "9. From the above it is clear once a domestic tribunal based on evidence comes to a particular conclusion, normallyit is not open to the AppellateTribunalsandcourts to substitutetheir subjectiveopinionin the place of the one arrived at by the domestic tribunal. In the present case, there is evidenceofthe inspectorwho checkedthe bus which establishesthe misconductof the respondent. The domestic tribunal acceptedthat evidence andfound the respondent guilty. But the courts below misdirected themselves in insistingon the evidenceofthe ticketlesspassengersto WP[C)No.827&837/2013 ^^9^Hof13 rejectthe saidfindingwhich, in ouropinion, as held by this Court in the case of Rattan Singh is not a condition precedent. We may herein note that the judgmentof this CourtinRattanSingh has since beenfollowedby this Court in Devendra Swamy V5. Karnataka SRTC." In thesecircumstances,we do not find that any case is made out for interferingwith the findingsofthe EnquiryOfficerholding the Petitionerguiltyofthe chargesin boththe cases.

¶20We have also consideredthe submissionof the learned counselfor the Petitionerthat the two penaltiesawardedto the Petitionerare harsh and disproportionate. In the facts of the case, where the Petitioner-abus conductor, has been found indulging in hurling abuses, threatening,and assaulting his superiorofficersin the Bus Depot,-we are unableto acceptthe submissionthat any of the t\yo penaltiesare excessivelyharsh or disproportionate. We fmd that';d^ his behaviourbeing found to be unacceptable, the Petitioner was continued in service till his superannuation and he continues to draw pension. When the effectofthe^penalties-ofthe kind imposed upon the Petitioner, is assessed cumulatively-spreadover severalyears, obviouslyit would appearto be substantial. But that is no ground to interfere with it since, when they were inflicted,they were justifiedand reasonable. Thus, we see no reasonto interferewiththe penaltiesawardedto the Petitioner. WP(C)N0.827&837/2013 Page12 of13 V,/

¶21In these circumstances,we find no infirmityinthe orders passed by the Tribunal. Both the writ petitionsare dismissed with no order as to costs. SEPTEMBER 25,2017 saurabh WP(C) No.827 &837/2013 REKHAPAM.1,J VIPIN SANGHI, J Page 13 of13