Devender Yadav vs Delhi Transport Corporation

Raj Vir Sharma, Member, J

The applicant has filed this O.A. under Section 19 of the Administrative Tribunals Act, 1985, praying for quashing (i) the inquiry report(Annexure A.1) submitted by the Inquiry Officer (IO) holding the charges levelled against the applicant as proved, (ii) the notice dated 29.1.2013 (Annexure A.3) issued by the Disciplinary Authority (DA) finding the applicant guilty of the charges and proposing to impose upon applicant the punishment of removal from service, (iii) the order dated 8.3.2013 (Annexure A.3) passed by the DA imposing upon applicant the punishment of removal from service, and (iv) the order dated 30.5.2014 passed by the Appellate Authority (AA) rejecting the applicant's appeal against the order of removal from service passed by the DA. The applicant has also prayed for issuance of a direction to the respondent to reinstate him in service with all consequential benefits, such as, continuity in service, seniority, promotion and arrears of salary, etc., with interest.

Resisting the O.A., the respondent has filed a counter reply.

No rejoinder reply has been filed by the applicant.

We have carefully perused the records, and have heard Mr.Anil Mittal, the learned counsel appearing for the applicant, and Ms.Swati Jain, proxy for Ms.Ruchira Gupta, learned counsel appearing for the respondent.

While the applicant was serving as a Driver with the respondent-Delhi Transport Corporation, on the basis of a complaint dated 21.7.2012 lodged by Mr.Bhim Singh, ATI, a major penalty disciplinary proceeding was initiated against him under Section 4(a) of the Delhi Road Transport Laws (Amendment) Act, 1971 read with Regulation 15(2) of the Delhi Road Transport Authority (Appointment and Conditions of Service) Regulations, 1952, vide charge memo dated 23.10.2012 (Annexure A.6), and the applicant was called upon to submit, within ten days of receipt of the memo, a written statement of his defence, if any. The charges against the applicant were that on 21.7.2012 the applicant allowed the Conductor of the bus to do driving duty on the route unauthorizedly while he himself was doing the duty of Conductor, i.e., issuing tickets to passengers, thus and thereby endangering the safety of not only the passengers who were travelling in the bus but also of the pedestrians and the vehicles moving on the road. He was also not issuing tickets after collecting the fare from the passengers thereby causing financial loss to the Corporation. The applicant submitted his written statement of defence on 2.11.2012 wherein he denied the charges and took the plea that because of his ill health, the Conductor, as per the instruction of the traffic police, parked the bus on one side of the road and they were apprehended by the checking staff of the Corporation. The plea of the applicant having not been found satisfactory, an enquiry was conducted by the IO. In the enquiry, the applicant duly participated. He did not produce any witness in support of his plea. After analyzing the evidence of the witnesses examined on behalf of the Corporation and the materials available on record of enquiry, the IO submitted his report holding the charges as proved against the applicant. After considering the findings recorded by the IO and the materials available on record, the DA recorded his tentative opinion that the applicant should be removed from service and issued a show-cause notice dated 29.1.2013 calling upon the applicant to make any representation within ten days from the date of receipt of the notice/memorandum. By the said show-cause notice dated 29.1.2013, the DA also allowed the applicant to inspect any document forming part of the record of enquiry and disciplinary proceedings. The applicant submitted his reply/ representation to the show-cause notice. After considering the applicant's reply to the show cause notice, the DA confirmed the show- cause notice and imposed upon applicant the punishment of removal from service, vide order dated 8.3.2013, the relevant part of which is reproduced below:

"A Show Cause Notice No.VVD/DA.I(T)/2013/576 dated 29.01.2013 was issued to Sh.Devender Yadav, Driver, B.No.22366, Pay Token No.64327 for proposing the penalty of removal his services from this Corporation in a case initiated against him vide Charge sheet No.VVD/AI(T)/Misc.232/2012/5372 dated 23.10.2012 for allowing driving of bus to his bus Conductor on route who does not have Heavy Driving License and PSV Badge which is mandatory as per Motor Vehicle Act. Not only this he himself unauthorisedly started performing duty of bus conductor in violation of Motor Vehicle Act and put the life of travelling passengers and pedestrians in danger. Show cause notice was duly received by him under his signature on 05.02.2013. Reply to S.C.N. submitted by him is considered at lengths which is not found satisfactory at all, therefore after considering all the documents related to this case and finding of Enquiry Officer proposed punishment of removal of his services is being confirmed and imposed upon Sh.Devender Yadav, Driver, B.N.22366, Pay Token No.64327, as under:-

"His services are removed from this Corporation with immediate effect under para 15(2)(vi) of D.R.T.A.(Conditions of Appointment and Services) Regulations 1952."

Being aggrieved by the above order passed by the DA, the applicant made an appeal. After considering the pleas raised by the applicant in his appeal and the materials available on record, the AA rejected the applicant's appeal by a speaking order which is reproduced below:

"I have gone through the appeal dated 19.03.2013 submitted by Sri Devender Yadav, Ex-Driver, B.No.22366 against removal orders No.VVD/AI(T)/Misc.232/2013/2014 dated 08.03.2013 as well as related disciplinary case file and observation of the undersigned are as under:

The contention of para 1& 2 of appellant that he fell ill and on the request of Police Officer, the conductor on duty was asked to drive the bus is not acceptable as the appellant himself gave in writing to checking officials that due to not feeling well he asked the conductor to drive and take the bus to destination and he also had admitted his fault (Page 2/Cr.).

On going through the file although it has been revealed the appellant visited LNJP hospital and another driver was sent to ply the bus on route but appellant did not disclose above his visit to Lok Nayak Hospital either while submitting the reply to Charge Sheet or during the course of detailed enquiry, which clearly indicates that to visit to hospital was afterthought on the part of appellant after he was caught by checking official and was challaned.

Contents of para 4 are matter of record.

Contention highlighted in Para 5 & 6 by the appellant are not acceptable as if it was true that he was not able to drive the bus, he should have informed the Depot Authority about his illness instead of asking the conductor to drive and take the bus to the destination.

Contention in para 7 are also wrong as the passengers who were found travelling without ticket, told checking officials that they had paid the due fare but conductor did not issue them tickets even on their demand as he was doing conductors duty at that time when passengers made complaint to the checking officials. Moreover, during he course of enquiry appellant was given full opportunity to cross examine the reporters but he refused to avail the advantage of cross examining them. It is also wrong to say that checking officials have nowhere mentioned that he was issuing tickets as charge No.2 of their report clearly says that Sh.Devender Yadav, Driver was issuing tickets.

Contention in para 8 put by appellant are not acceptable as no driver of this Corporation is allowed to let anybody else to drive the vehicle under any circumstances.

Further, it has also been observed that in this instant case disc. case, full opportunity was given to the appellant to defend himself during the course of detailed enquiry but he failed to bring any fact o record to prove himself innocent of the charges leveled against him in the charge sheet. I have also gone through the past record of the appellant which reveals that he has been awarded punishment of "Stoppage of increment" for negligent driving and misbehaving with checking officials.

As such keeping in view of aspects of the case as well as gravity of the case, the appeal preferred by appellant is hereby rejected. Employee be informed accordingly."

The Manager, VVD, DTC, vide memo dated 30.5.2014, communicated the above speaking order passed by the AA to the applicant.

In the above context, it has been submitted by Mr.Anil Mittal, learned counsel appearing for the applicant that the IO, DA and AA have utterly failed to consider the pleas raised by the applicant in his written statement of defence, reply to the show-cause notice, and appeal petition in their proper perspective, and that the conclusions arrived at by the said authorities are perverse and, therefore, the impugned enquiry report and the orders passed by the DA and AA are unsustainable and liable to be quashed. It has also been submitted by Mr.Anil Mittal that the punishment of removal from service is excessive and highly disproportionate to the charges held to have been proved against him and, therefore, the impugned orders passed by the DA and AA are liable to be interfered with.

Per contra, it has been submitted by Ms.Swati Jain, learned counsel appearing for the respondent, that there was sufficient evidence to prove the charges against the applicant. The IO, DA and AA have recorded their findings in a fair manner. The pleas taken by the applicant in the written statement of defence, reply to the show cause notice, and appeal petition have been duly considered and findings thereon have been arrived at by the IO, DA and AA. The procedure established by law has been duly followed. The punishment of removal from service is commensurate with the charges proved against him. Therefore, there is no infirmity in the orders passed by those authorities, and the O.A. is liable to be dismissed.

It is no more res integra that the power of judicial review does not authorize the Tribunal to sit as a court of appeal either to reappraise the evidence/materials and the basis for imposition of penalty, nor is the Tribunal entitled to substitute its own opinion even if a different view is possible. Judicial intervention in conduct of disciplinary proceedings and the consequential orders is permissible only where (i) the disciplinary proceedings are initiated and held by an incompetent authority; (ii) such proceedings are in violation of the statutory rule or law; (iii) there has been gross violation of the principles of natural justice; (iv) there is proven bias and mala fide; (v) the conclusion or finding reached by the disciplinary authority is based on no evidence and/or perverse, and (vi) the conclusion or finding be such as no reasonable person would have ever reached .

In B.C. Chaturvedi v. Union of India, AIR 1996 SC 484, reiterating the principles of judicial review in disciplinary proceedings, the Hon'ble Apex Court has held as under:

"12. Judicial review is not an appeal from a decision but a review of the manner in which the decision is made. Power of judicial review is meant to ensure that the individual receives fair treatment and not to ensure that the conclusion which the authority reaches is necessarily correct in eye of the Court. When an inquiry is conducted on charges of a misconduct by a public servant, the Court/Tribunal is concerned to determine whether the inquiry was held by a competent officer or whether rules of natural justice be complied with. Whether the findings or conclusions are based on some evidence, the authority entrusted with the power to hold inquiry has jurisdiction, power and authority to reach a finding of fact or conclusion. But that finding must be based on some evidence. Neither the technical rules of Evidence Act nor of proof of fact or evidence as defined therein, apply to disciplinary proceeding. When the authority accepts that evidence and conclusion receives support therefrom, the disciplinary authority is entitled to hold that the delinquent office is guilty of the charge. The Court/Tribunal on its power of judicial review does not act as appellate authority to reappreciate the evidence and to arrive at the own independent findings on the evidence. The Court/Tribunal may interfere where the authority held the proceedings against the delinquent officer in a manner inconsistent with the rules of natural justice or in violation of statutory rules prescribing the mode of inquiry of where the conclus ion or finding reached by the disciplinary authority is based on no evidence. If the conclusion or finding be such as no reasonable person would have ever reached, the Court/ Tribunal may interfere with the conclusion or the finding, and mould the relief so as to make it appropriate to the facts of each case.

In R.S. Saini v. State of Punjab and ors, (1999) 8 SCC 90, the Hon'ble Apex Court has observed as follows:

"We will have to bear in mind the rule that the court while exercising writ jurisdiction will not reverse a finding of the inquiring authority on the ground that the evidence adduced before it is insufficient. If there is some evidence to reasonably support the conclusion of the inquiring authority, it is not the function of the court to review the evidence and to arrive at its own independent finding. The inquiring authority is the sole judge of the fact so long as there is some legal evidence to substantiate the finding and the adequacy or reliability of the evidence is not a matter which can be permitted to be canvassed before the court in writ proceedings."

In Government of Andhra Pradesh v. Mohd. Nasrullah Khan, (2006) 2 SCC 373, the Hon'ble Apex Court has reiterated the scope of judicial review as confined to correct the errors of law or procedural error if it results in manifest miscarriage of justice or violation of principles of natural justice. In para 7, the Hon'ble Court has held:

"By now it is a well established principle of law that the High Court exercising power of judicial review under Article 226 of the Constitution does not act as an Appellate Authority. Its jurisdiction is circumscribed and confined to correct errors of law or procedural error if any resulting in manifest miscarriage of justice or violation of principles of natural justice. Judicial review is not akin to adjudication on merit by appreciating the evidence as an Appellate Authority....."

In Jai Bhagwan Vs. Commissioner of Police and others, (2013) 11 SCC 187, the Hon'ble Supreme Court held thus:

"10. What is the appropriate quantum of punishment to be awarded to a delinquent is a matter that primarily rests in the discretion of the disciplinary authority. An authority sitting in appeal over any such order of punishment is by all means entitled to examine the issue regarding the quantum of punishment as much as it is entitled to examine whether the charges have been satisfactorily proved. But when any such order is challenged before a Service Tribunal or the High Court the exercise of discretion by the competent authority in determining and awarding punishment is generally respected except where the same is found to be so outrageously disproportionate to the gravity of the misconduct that the Court considers it be arbitrary in that it is wholly unreasonable. The superior courts and the Tribunal invoke the doctrine of proportionality which has been gradually accepted as one of the facets of judicial review. A punishment that is so excessive or disproportionate to the offence as to shock the conscience of the Court is seen as unacceptable even when courts are slow and generally reluctant to interfere with the quantum of punishment....."

After going through the enquiry report, the order of punishment passed by the DA, and the order passed by the AA, we are of the view that the conclusions reached by the said authorities cannot be said to be perverse or based on no evidence. We are also unable to accept the contention of the applicant that the IO, DA and AA have failed to consider the pleas raised by him in their proper perspective. We also do not find the punishment of removal from service to be outrageously disproportionate to the gravity of the misconduct committed by the applicant.

After having given our thoughtful consideration to the facts and circumstances of the case and the rival submissions, in the light of the decisions referred to above, we have found no substance in any of the submissions made by Mr.Anil Mittal, learned counsel appearing for the applicant.

In the light of our above discussions, we have no hesitation in holding that the O.A. is devoid of merit and liable to be dismissed. Accordingly, the O.A. is dismissed. No costs.