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Judgment
Jasmine Ahmed, J
This OA has been filed under Section 19 of the Administrative Tribunals Act, 1985 seeking the following reliefs:
(i) Set aside the impugned order dated 24.01.2012 passed by the respondents and also order dated 21.12.2000 passed by the respondents;
(ii) Allow the present Original Application of the applicant thereby ordering reinstatement of the applicant with full back wages;
(iii) Award cost of the present OA in favour of the applicant and against the respondents; and
(iv) Pass any other or further orders as this Tribunal deems fit and proper in the facts and circumstances of the case, in favour of the applicant and against the respondents.
By the impugned order dated 24.01.2012 passed by the respondents, the appeal filed by the applicant has been rejected.
The applicant was appointed as Mechanic with the respondents in the year 1976. He was served with a charge sheet which reads as follows:
"On 7.7.93, at about 1510 hrs. you were seen throwing paper-weight at Sh. Bhuvan, A/Fitter who was standing at the stair of the corridor, from the window of Medical Section, resulting which Sh. Bhuvan got injuries on his head. After the incident you were called from the Medical Section but you ran away. You were found missing from your duty from 1515 hrs. onwards while your duty was upto 1730 hrs."
The applicant was suspended on 7.07.1993 when the alleged incident took place. An inquiry was ordered and the Inquiry Officer (IO) concluded the inquiry on 29.12.1993. The applicant was inflicted the punishment of removal from service on 29.02.1994.
Inquiry ensued. During the course of inquiry, various prosecution witnesses were examined.
The learned counsel for the applicant drew our attention to proceedings of the inquiry at page no.56 of the paper book, where the statement of the victim Shri Bhuvan reads as follows:
"On 7.07.93, I was standing on the corridor of officers block. Suddenly a paper weight hit me on my head. At that time I just could not control myself and went to the AI (T) Sec. I have nothing more to say."
Our attention was also drawn to the following portion of the cross-examination, where the question put forth by the applicant was answered as follows:
"Q.1. Did I throw paper weight on you?
Ans. No, I did not see you throwing paper weight on me."
Q.2. After giving medicine did the doctors recommend medical rest for you?
Ans. No."
This deposition of the victim that he has not seen applicant throwing paper weight on him goes fully in favour of the applicant, has not been dealt with at the time of discussion of evidence. Learned counsel for the applicant states that this is a serious lacuna and on this count only, the OA deserves to be allowed.
Learned counsel for the applicant further drew our attention to page 58 of the paper book, which is the statement of Shri Afsar Ahmad, Conductor. The statement of Shri Afsar Ahmad is quoted below:
"On 7.03.93, I was on duty in the AIT Sec from 0930 to 1800 hrs. at about 1510 hrs, I came out of the section and while passing through the corridor suddenly one paper weight hit on the head of Sh. Bhuvan, A/Fitter, who was standing there. At that time as I saw upwards in the medical section window, Sh.Sant Ram & Sh.Zilley Singh were just seen going back from the window. As it was raining I just took Sh. Bhuvan inside AI(T) sec."
During cross-examination, the question put forth by the applicant to Shri Afsar Ahmad was answered as follows:
"Q.1 As you have told that I was seen on the window along with Sh. Sant Ram, Cond. Did you see me throwing the paper weight?
Ans. No, I did not see you throwing the paper weight."
Other questions put to Shri Afsar Ahmad were answered as follows:
"Q. Where were you standing when the paper weight hit Sh.Bhuvan?
Ans. On the stairs of the Corridors of Officers Block.
Q. Was the wound of Sh.Bhuvan, A/Fitter, bleeding?
Ans. No"
Learned counsel for the applicant states that the above depositions of Shri Bhuvan, the victim as well as Shri Afsar Ahmad lead to the conclusion that the applicant did not throw the paper weight and also there was no such type of grave injury as it has come out from the statement of Sh. Bhuvan and Sh. Afsar Ahmad during the inquiry that there was no bleeding, which will prove that no serious incident took place. He vehemently states further that this is a case of no evidence as none of the witnesses told about seeing the applicant throwing the paper weight. The applicant has been victimized and penalized without any proper evidence established by the depositions of Prosecution Witnesses. The counsel for the applicant also argued that while submitting his report the IO has gone beyond the charges alleged against the applicant as it is seen in the report submitted by him he has observed and stated as under:
"...I have also examined the past record of the DE which gives very bad impression and shows his insincerity and non cooperativeness and also habitual of indulging in such type of unwanted activities."
The disciplinary proceedings, however, being quasi judicial in nature, there should be some evidence to prove the charge. The Inquiry Officer (IO) could not take into consideration any irrelevant fact. He could not also refuse to consider the relevant facts and shift the burden of proof. Further, he could also not enquire into the allegations with which the delinquent officer has not been charged with as held by the Hon'ble Apex Court in M.V. Bijlani Vs. Union of India, (2006) 5 SCC 88.
This vitiates the proceedings since "habitual of indulging in such type of unwanted activities" was not a part of the charge leveled against the applicant nor had he been given an opportunity to defend himself in this regard. The words "past record of the DE which gives very bad impression and shows his insincerity" have influenced the IO in his rendering the finding.
Reference to past conduct could be made after arriving at a finding that a delinquent employee is guilty of misconduct charged with but before arriving at a conclusion as to the extent of penalty that should be imposed. It cannot form the basis of the very finding when the delinquent individual is not afforded an opportunity to address the same. The Hon'ble Apex Court in the case of Mohd. Yunus Khan Vs. State of Uttar Pradesh and others, (2010) 10 SCC 539 has held as under:
"34. The courts below and the statutory authorities failed to appreciate that if the disciplinary authority wants to consider the past conduct of the employee in imposing a punishment, the delinquent is entitled to notice thereof and generally the charge-sheet should contain such an article or at least he should be informed of the same at the stage of the show cause notice, before imposing the punishment.
This Court in Union of India & Ors. v. Bishamber Das Dogra, (2009) 13 SCC 102, considered the earlier judgments of this Court in State of Assam v. Bimal Kumar Pandit, AIR 1963 SC 1612; India Marine Service (P) Ltd. v. Their Workmen, AIR 1963 SC 528; State of Mysore v. K. Manche Gowda, AIR 1964 SC 506; Colour-Chem Ltd. v. A.L. Alaspurkar & Ors., AIR 1998 SC 948; Director General, RPF v. Ch. Sai Babu, (2003) 4 SCC 331, Bharat Forge Co. Ltd. v. Uttam Manohar Nakate, (2005) 2 SCC 489; and Govt. of A.P. & Ors. v. Mohd. Taher Ali, (2007) 8 SCC 656 and came to the conclusion that it is desirable that the delinquent employee be informed by the disciplinary authority that his past conduct could be taken into consideration while imposing the punishment. However, in case of misconduct of a grave nature, even in the absence of statutory rules, the Authority may take into consideration the indisputable past conduct/service record of the delinquent for "adding the weight to the decision of imposing the punishment if the fact of the case so required."
The appellant joined the service on 10.2.1969 and his services stood terminated vide order dated 8.4.2003. Therefore, the benefit of service rendered by the appellant for more than 34 years stood forfeited. At the time of his removal from service, the appellant was 54 years of age. Thus, he had been visited with serious punishment on the verge of retirement.
In view of the above, we reach the following inescapable conclusions:-
I. to XI - xxx
XII. Past conduct of an employee should not generally be taken into account to substantiate the quantum of punishment without bringing it to the notice of the delinquent employee."
The Disciplinary Authority passed an order dated 23.02.1994 imposing the penalty of removal from service. Against that, an appeal was preferred by the applicant and the Hon'ble High Court vide its order dated 18.12.1996 in C.W.P.No.4733 of 1996 directed the Chairman, DTC to decide/dispose of the appeal filed by the petitioner, if the same had not been disposed of so far, within a period of eight weeks from the date the order was communicated to the Chairman, DTC. In pursuance of the order of the Hon'ble High Court, vide order dated 21.12.2000, the applicant was informed that the appeal so filed by him has been dismissed. It is, however, contended by the learned counsel for the applicant that no copy of the order was ever made available to the applicant. The applicant filed another Writ Petition challenging the action of the respondents in the year 2001. Notice was issued in that matter and later on the said writ petition was transferred to this Tribunal, which was numbered as TA 1137/2009. The Tribunal vide its order dated 4.03.2010 set aside the order of the appellate authority and directed the respondents to pass a fresh order dealing with the contentions of the applicant within a period of two months from the date of receipt of a copy of that order. The reason as recorded by the Tribunal in giving such a direction was as follows:
"Applicant in this case is a dismissed employee from DTC who preferred an appeal, which was rejected on 21.12.2000 vide Annexure P-1. We do not find any reasons recorded by the appellate authority. Accordingly, after hearing the learned counsel for respondents, the TA is allowed partly. "
Bare reading of the order passed by this Tribunal on 4.03.2010 clearly reflects that the appeal was not decided by passing a reasoned order.
The speaking order passed by Shri P.K.Gupta, Chairman-cum-MD dated 24.01.2012 (Annexure A-1), impugned in this OA, is at page 12 to 14 of the paper book. Learned counsel for the applicant states that this speaking order is only a replica of the earlier order passed by the then appellate authority and the present Chairman-cum-MD fully agreed with the view expressed therein and dismissed the appeal of the applicant. It is contended that the first appellate order dated 21.12.2000 did not contain any discussion on the pleas/ points raised by the applicant over the evidences or the manner in which inquiry was conducted. Learned counsel for the applicant states that the order dated 24.01.2012 passed by the Chairman-cum-MD (Annexure A-1) and the order dated 13.11.2000 passed by the then Chairman-cum-MD, Shri Rakesh Mehta is a ditto and replica of each other. He also states that the last para of the order dated 24.01.2012 is the only addition. Learned counsel for the applicant further contended vehemently that none of the grounds taken by the applicant had been considered and accordingly the order can not pass the judicial scrutiny. He stated that at least the order of the appellate authority could have shown minimum application of mind qua the grounds raised by the applicant.
It is the contention of the learned counsel for the applicant that no Show Cause Notice (SCN) proposing punishment was served on the applicant and thus the applicant was deprived of the opportunity to defend himself. He also claimed that no inquiry report was supplied to the applicant nor any reply was sought from him and thus it was bad in law. He further stated that ex-parte decision was taken by the respondents. It was argued that when it was well established from the inquiry proceedings that the applicant was participating and cross-examining the witnesses then how the respondents concluded the inquiry proceeding ex-parte on 9.12.1993? Even if it has been held as an ex-parte proceeding, no procedure to hold such proceeding has been followed by the respondents.
Learned counsel for the applicant stated that the first appellate order dated 21.12.2000 did not contain any discussion over the evidences in which inquiry was conducted. The appellate authority has taken into consideration his past conduct. The appellate authority has expressed in its orders dated 13.11.2000 and 24.01.2012 that the Corporation is already over-staffed and rejected the appeals. The relevant portion of the order dated 13.11.2000 as well as 24.01.2012 is quoted below:
".... Moreover, the Corporation is already over-staffed and currently there is a ban on any new recruitments. It would, therefore, not be in order to re-recruit him in the DTC or reinstate him after a gap of six years. I hold that the dismissal order passed by the Depot Manager, is justified, and reject the appeal of Shri Zile Singh".
Thus, the respondents have gone beyond the merits of appeal and taken into consideration the extraneous factor of over- staffing while deciding the appeal of the applicant and for obvious reasons the appellate order was prejudiced.
As per the mandate of the Hon'ble Apex Court in various judgments viz. Ram Chander Vs. Union of India, (1986) 3 SCC 103, Narinder Mohan Arya Vs. United India Insurance Co. Ltd., (2006) 4 SCC 713, the appellate authority shall apply its mind to the entire case while deciding the appeal:
"(i) whether the procedure laid down in the Rules has been complied with; and if not, whether such non- compliance has resulted in violation of any provisions of the Constitution or in failure of justice;
(ii) whether the findings of the disciplinary authority are warranted by the evidence on record; and
(iii) whether the penalty imposed is adequate; and thereafter pass orders confirming, enhancing etc. the penalty, or may remit back the case to the authority which imposed the same."
The respondents in their reply have stated that there are good number of adverse entries in the past record of the applicant and further that on the basis of evidence recorded against him and the findings of the IO, speaking order has been passed according to which the applicant is not entitled to any remedy as prayed for. Nothing more has been stated in the counter affidavit. The learned counsel for the respondents argued nothing arbitrary or illegal has been caused to the applicant and all the procedure has been followed by the respondents.
The applicant in his rejoinder has reiterated the arguments raised in the OA.
From the entire scenario of the case, it is seen that this case suffers from procedural lacuna as no show cause and no inquiry report was given to the applicant. It is also seen that the appellate order dated 13.11.2000 was never served upon the applicant and the order dated 24.01.2012 does not contain anything extra except that:
"I have gone through the case file and observed that the then CMD had passed speaking orders on dated 13.11.2000 but the same were not communicated to Sh. Ziley Singh, ex-mechanic B.No.3081 T No. 6073 alongwith letter dated 21.12.2000. The reasons for rejecting the appeal of Sh. Ziley Singh, ex-Mechanic B.No.3081 T.No.6073 for reinstatement have already been highlighted by the then CMD and I do agree with him. I, therefore, hold that the orders regarding removal from the services passed by Depot Manager, Shadipur Depot is justified and reject the appeal of Sh. Ziley Singh."
Bare reading of the above quoted paragraph clearly reveals that no reasoning has been assigned by the respondents while dismissing the appeal and none of the points raised by the applicant in his appeal which runs into 11 pages have been taken into consideration while rejecting the appeal of the applicant by the appellate order, which was categorically passed in the directions of the Hon'ble High Court dated 18.12.1996 in C.W.P.No.4733 of 1996 and by this Tribunal in TA 1137/2009.
Hence, we find that the directions of the Hon'ble High Court as well as of this Tribunal directing the appellate authority to dispose of the appeal of the applicant qua all the points raised by him have not been complied with by the respondents.
We notice that in the entire OA nowhere the age of the applicant is mentioned. It is seen from the pleadings that the applicant joined the respondents in the year 1976. Even if he would have joined the respondents sometime at the age of 18 years which is the minimum age for joining Government service, the applicant must have retired by this time. Accordingly, in our considered view it would be a futile exercise to direct the respondents to decide the appeal of the applicant for the third time. It will also be not in good taste or proper to say/direct anything about re-instatement as he has already by this time attained the age of retirement. We also feel the decision of the respondents based on the inquiry report suffers from procedural as well as legal lacuna. Accordingly, the orders dated 13.11.2000 and 24.01.2012 are quashed and set aside. We, therefore, direct the respondents to grant all the monetary benefits (except the back wages) to the applicant which he would have been entitled to if he would not have been dismissed from service. The benefits shall be released to the applicant within a period of three months from the date of receipt of a certified copy of this order. With the above directions, the OA is allowed. No costs.