Ranvir Singh vs Chairman Cum MD And Others

S.N. Terdal, Member (J)

We have heard Dr. N. Gautam, counsel for applicant and Mr. Anurag Sharma proxy for Ms. Ruchira Gupta, counsel for respondents, perused the pleadings and all the documents produced by both the parties.

In this OA, the applicant has prayed for the following reliefs:

"(a) To set aside the impugned order dated 27.03.2015 issued by the DA cum Depot Manager imposing a penalty of "removal from service" upon the applicant on fake charges;

(b). To quash or set aside the orders of the appellate authority rejecting the appeal of the applicant as informed by the DA vide letter dated 04.10.2016 while not mentioning any cogent proof in his Order dated 30.09.2016 against the applicant;

(c). To direct the respondent to release the retiral dues of applicant including gratuity /employer share/ encashment of leave etc.

(d). Pass such other and further orders as this Hon'ble Tribunal may deem fit and proper in the interest of justice."

The relevant facts of the case are that on routine check up on 06.10.2014 at around 19:02 hours of the DTC bus it was found that the applicant working as Conductor in the said bus and it was found that there was over stamping of the tickets issued by him of Rs.3 as Rs.15/- and some of the tickets were not shown in the way bill and when his cash was checked Rs.410/- was found in excess. On the above said allegation a departmental enquiry was initiated against the applicant by issuing charge sheet. Alongwith the charge sheet, list of statement of passengers and also copies of the over stamping tickets and the challan report dated 06.10.2014 were served on the applicant. As the applicant did not admit the charge, an inquiry officer was appointed. The Inquiry Officer conducted the enquiry complying with the principles of natural justice and also the rules governing the holding of departmental enquiry and examined the witnesses and the documents and after analyzing the evidence held that the charges leveled against the applicant were proved. The inquiry report was served on the applicant along with a show cause notice dated 09.03.2015 enabling the applicant to file reply. The applicant submitted his reply on 27.03.2015. The disciplinary authority after considering his reply and all the material brought on record in the enquiry report imposed a penalty of removal from service on the applicant vide order dated 27.03.2015. The said order is extracted below:-

"A disciplinary case was initiated against Sh. Ranvir Singh Conductor B.No. 19220 T.No. 41488 vide Charge sheet No. WPD/AI(T)/CS-46/14/1857 dt. 31.10.14 and enquiry into the case was conducted by Enquiry Officer (North). The Charges levelled against him were proved during the course of enquiry.

After carefully considering the enquiry report submitted by EO (N) a show cause notice No. WPD/AI(T)/CS-46/14/2015/583 dt 9.3.15 was issued to Sh. Ranvir Singh Conductor B.N. 19220 T.No. 41488 the reply given by him on 27.3.15 in response to the SCN served to him have been considered.

The charge sheet states that the bus was checked at 19.02 hrs at Shalimar Bagh AB Block. The time of checking of the bus several times prior to the checking of time as mentioned in the charge sheet has already been duly considered by the enquiry officer and no weightage can be given to this plea as no malafide intention has been brought by you against the checking staff during enquiry. The checking staff during their cross examination have clearly stated that the bus was checked at Shalimar Bagh and challan of the irregularities committed by you was issued.

As regard taking you to a lonely place by Tavera car checking staff and wrongly counting of your cash cannot be considered as during the enquiry preceding the checking staff could have been cross examined by you on this account but the same was not done. Also no protest of the same against checking staff was given by you to the depot authorities in writing on the date of incident or on subsequent dates.

As regard passengers statements the same were taken in your presence and your statement bears your signature and it is the part of the report given by the checking staff. As such, your contention that your signature were not taken on any document does not carry any support.

You have also not been able to justify the excess amount of cash in your possession at the time of checking.

As regards, the various orders of the Management on the misconduct, the latest order Administration 1-7(29)/2014/184 dt. 15.4.14 states that such cases come in Zero tolerance.

Keeping in view of the above facts and record available in the file, the points raised by you are not found satisfactory. Hence Sh. Ranvir Singh Conductor B.No. 19220 T.No. 41488 is hereby removed from the services of this corporation with immediate effect under clause 15(2)(VI) of the DRTA (Condition of appointment & Service) Regulation, 1952.

He is required to deposit all the DTC article in his possession within 24 hrs of the receipt of this memo Non deposit of the DTC articles i.e. Medical Card, I/card-cum-Bus pass etc. by him in accordance with the instructions as contained in the Office Order No. 03 dated 8.02.2013 will render him liable to pay a penalty of Rs. 50/- per day for the days he keeps any of the articles in his possession after the Specified period of 24 hrs. In case, he may lodge Police Report in case DTC articles are lost & penalty of Rs.5000/- will be imposed as per Office Order No. 03 dated 8.2.2013."

It is also noticed that the applicant was given warning, suspended and penalty was also imposed on him on several occasions in the past on 29.04.1993, 14.02.2001, 18.05.2001, 08.01.2003, 30.04.2014 for such several lapses on his part as per Annexure A-6. The applicant filed an appeal. The appellate authority also after considering the entire facts thoroughly rejected the appeal vide order dated 4.10.2016.

The counsel for the applicant vehemently and strenuously submitted that punishment imposed on the applicant is disproportionate to the charge proved against him. When enquired at the time of hearing, the counsel for the applicant could not point out any procedural lapse or violation of principles of natural justice in conducting the departmental enquiry.

The counsel for the respondents justified the imposition of penalty of removal based on the latest office order dated 15.04.2014 issued by the respondents regarding zero tolerance in such cases of issuing tickets lesser denomination by the conductor, in view of the order passed by the Hon'ble High Court of Delhi dated 02.04.2013. The said order is extracted below:

"No. Administration 1-7(29)/2014/184 Dated 15.04.2014

OFFICE ORDER N0 1.

The Hon'ble High Court of Delhi vide Order dated 02.04.2013 expressed/dismay at the standards adopted by DTC in regard to the level of honesty that it expects its workmen to follow Office Order No. 1 issued vide No.Adm1-3(18)/65 dated 03.01.1966.

After examining the contents of Office Order No. 1 dated 03.01.1966, and judgment dated 02.04.2013, it has been decided that the Office Order No. 1 dated 03.01.1966 be withdrawn with immediate effect and the cases of non-issue of tickets, possession of or sale of used tickets, issue of tickets of lesser denomination on the part of Conductors involving cheating cash found in excess comes in Zero tolerance and such cases, if detected would be dealt with stern disciplinary action, leading to dismissal from service also.

All Unit Officers/Depot Managers are directed to ensure the compliance of the above order keeping in view the order issued vide No. Adm1-3(103)/12/629 dated 28.08.2012 except Office Order No. 1 dated 03.01.1966 in regard to guidelines/quantum of punishment."

The law relating to judicial review by the Tribunal in the departmental enquiries has been laid down by the Hon'ble Supreme Court in the following judgments:

(1). In the case of K.L.Shinde Vs. State of Mysore (1976) 3 SCC 76), the Hon'ble Supreme Court in para 9 observed as under:-

"9. Regarding the appellant's contention that there was no evidence to substantiate the charge against him, it may be observed that neither the High Court nor this Court can re-examine and re-assess the evidence in writ proceedings. Whether or not there is sufficient evidence against a delinquent to justify his dismissal from service is a matter on which this Court cannot embark. It may also be observed that departmental proceedings do not stand on the same footing as criminal prosecutions in which high degree of proof is required. It is true that in the instant case reliance was placed by the Superintendent of Police on the earlier statements made by the three police constables including Akki from which they resiled but that did not vitiate the enquiry or the impugned order of dismissal, as departmental proceedings are not governed by strict rules of evidence as contained in the Evidence Act. That apart, as already stated, copies of the statements made by these constables were furnished to the appellant and he cross-examined all of them with the help of the police friend provided to him. It is also significant that Akki admitted in the course of his statement that he did make the former statement before P. S. I. Khada-bazar police station, Belgaum, on November 21, 1961 (which revealed appellant's complicity in the smuggling activity) but when asked to explain as to why he made that statement, he expressed his inability to do so. The present case is, in our opinion, covered by a decision of this Court in State of Mysore v. Shivabasappa, (1963) 2 SCR 943=AIR 1963 SC 375 where it was held as follows:-

"Domestic tribunals exercising quasi-judicial functions are not courts and therefore, they are not bound to follow the procedure prescribed for trial of actions in courts nor are they bound by strict rules of evidence. They can, unlike courts, obtain all information material for the points under enquiry from all sources, and through all channels, without being fettered by rules and procedure which govern proceedings in court. The only obligation which the law casts on them is that they should not act on any information which they may receive unless they put it to the party against who it is to be used and give him a fair opportunity to explain it. What is a fair opportunity must depend on the facts and circumstances of each case, but where such an opportunity has been given, the proceedings are not open to attack on the ground that the enquiry was not conducted in accordance with the procedure followed in courts.

In respect of taking the evidence in an enquiry before such tribunal, the person against whom a charge is made should know the evidence which is given against him, so that he might be in a position to give his explanation. When the evidence is oral, normally the explanation of the witness will in its entirety, take place before the party charged who will have full opportunity of cross-examining him. The position is the same when a witness is called, the statement given previously by him behind the back of the party is put to him ,and admitted in evidence, a copy thereof is given to the party and he is given an opportunity to cross-examine him. To require in that case that the contents of the previous statement should be repeated by the witness word by word and sentence by sentence, is to insist on bare technicalities and rules of natural justice are matters not of form but of substance. They are sufficiently complied with when previous statements given by witnesses are read over to them, marked on their admission, copies thereof given to the person charged and he is given an opportunity to cross-examine them."

Again in the case of B.C.Chaturvedi Vs. UOI & Others (AIR 1996 SC 484) at para 12 and 13, the Hon'ble Supreme Court observed 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 conclusion 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.

The disciplinary authority is the sole judge of facts. Where appeal is presented, the appellate authority has co-extensive power to reappreciate the evidence or the nature of punishment. In a disciplinary inquiry the strict proof of legal evidence and findings on that evidence are not relevant. Adequacy of evidence or reliability of evidence cannot be permitted to be canvassed before the Court/Tribunal. In Union of India v. H. C. Goel (1964) 4 SCR 718 : (AIR 1964 SC 364), this Court held at page 728 (of SCR): (at p 369 of AIR), that if the conclusion, upon consideration of the evidence, reached by the disciplinary authority, is perverse or suffers from patent error on the face of the record or based on no evidence at all, a writ of certiorari could be issued".

Recently in the case of Union of India and Others Vs. P.Gunasekaran (2015(2) SCC 610), the Hon'ble Supreme Court has observed as under:-

"Despite the well-settled position, it is painfully disturbing to note that the High Court has acted as an appellate authority in the disciplinary proceedings, re-appreciating even the evidence before the enquiry officer. The finding on Charge no. I was accepted by the disciplinary authority and was also endorsed by the Central Administrative Tribunal. In disciplinary proceedings, the High Court is not and cannot act as a second court of first appeal. The High Court, in exercise of its powers under Article 226/227 of the Constitution of India, shall not venture into re-appreciation of the evidence. The High Court can only see whether:

a. the enquiry is held by competent authority;

b. the enquiry is held according to the procedure prescribed in that behalf;

c. there is violation of the principles of natural justice in conducting the proceedings;

d. the authorities have disabled themselves from reaching a fair conclusion by some considerations extraneous to the evidence and merits of the case;

e. the authorities have allowed themselves to be influence by irrelevant or extraneous consideration;

f. the conclusion, on the very face of it, is so wholly arbitrary and capricious that no reasonable person could ever have arrived at such conclusion;

g the disciplinary authority had erroneously failed to admit the admissible and material evidence;

h. the disciplinary authority had erroneously admitted inadmissible evidence which influenced the finding;

i. the finding of fact is based on no evidence."

In view of the facts of the case narrated above and in view of the law laid down by Hon'ble Apex Court referred to above and in view of the fact that the counsel for the applicant has not brought to our notice violation of any procedural rules or principles of natural justice and in view of the office order dated 15.04.2014 extracted above the penalty imposed is also not disproportionate, the OA requires to be dismissed.

Accordingly, OA is dismissed. No order as to costs.