Delhi Transport Corporation Through Its Managing Director vs Ashok Kumar Sharma

2024 INSC 564 REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO(S). 290 OF 2014

DELHI TRANSPORT CORPORATION .…APPELLANT(S)

VERSUS

ASHOK KUMAR SHARMA ….RESPONDENT(S)

ORDER

1. This appeal by special leave has been preferred by the

appellant-Delhi Transport Corporation(hereinafter being referred

to as ‘Corporation’) for assailing the judgment dated 12th March,

2013 rendered by the learned Division Bench of the Delhi High

Court dismissing the W.P.(C) No. 7661 of 2010 preferred by the

appellant-Corporation questioning the legality and validity of the

judgment and final order dated 1st July, 2010 passed by the

Central Administrative Tribunal, Principal Bench, New

Delhi(hereinafter being referred to as ‘Tribunal’). The Tribunal

accepted the Original Application(for short ‘OA’) No. 1592 of 2009 Signature Not Verified Digitally signed by

filed by the respondent(hereinafter being referred to as ‘charged GEETA JOSHI Date: 2024.08.01 17:53:21 IST Reason:

officer’) and set aside the order dated 24th April, 2009 passed by

1 the Chairman-cum-Managing Director(hereinafter being referred

to as the ‘CMD’) thereby, dismissing the respondent from service.

2. We have heard and considered the submissions advanced at

bar and have gone through the impugned judgment and the

material available on record.

3. Ex facie, we find that the action of the appellant-Corporation

in dismissing the respondent from service suffered from fatal

lacuna of having been arrived at with sheer non-application of

mind in addition to being non-speaking.

4. Undisputed facts as available on record indicate that a

memorandum of charge dated 19th December, 2006 was issued to

the charged officer and a disciplinary enquiry was held by the

Commissioner for Departmental Inquiries, Central Vigilance

Commission who was appointed as the enquiry authority by the

CMD, appellant-Corporation vide order dated 9th July, 2007. The

Enquiry Officer conducted enquiry and held seven out of the eight

charges proved against the charged officer. A show cause notice

dated 15th April, 2009 was issued to the charged officer by the

CMD.

5. The charged officer approached the Tribunal by filing OA No.

1054 of 2009 for assailing the show cause notice dated 15th April,

2 2009 on the ground that the CMD was neither the appointing

authority nor the disciplinary authority of the charged officer.

6. The Tribunal, while disposing of OA No. 1054 of 2009,

directed the Enquiry Authority to first decide the question of

competence of the Enquiry Authority and thereafter, deal with the

merits of the case. The charged officer was permitted to make a

representation against the show cause notice. Accordingly, the

charged officer submitted a detailed representation dated 27th

April, 2009 to the appellant-Corporation. The charged officer was

to retire from the services of the appellant-Corporation on 30th

April, 2009.

7. It is averred on behalf of the appellant-Corporation that in

view of the impending retirement of the charged officer, an agenda

was circulated to the Board of Directors of the Corporation under

Regulation 11 of the DTC Meeting Regulations, 1981 incorporating

a list of issues drafted by the CMD in the following terms: -

“(viii) The CMD submitted the following issues for consideration of the Board of Directors:

"(i) To accord the approval for Show Cause Notice (Annexure-IV) proposing to impose the penalty of 'Dismissal from the services of the Corporation' as it was issued by the Chairman- cum-Managing Director in anticipation of the approval of the DTC Board due to paucity of time as the Charged Officer is to retire on 30-4-2009 on attaining the age of superannuation.

3 (ii) To take a decision in the matter by considering the facts of the case and the reply submitted by the Charged Officer in response to Show Cause Notice dated 15-4-2009(Annexure-IV) with regard to the imposition of the penalty of 'Dismissal from the services of the Corporation'. List of Penalties is at Annexure-VI.

(iii) To the Chairman-cum-M.D. to issue necessary Orders imposing the penalty as may be approved by the Board, upon Shri A.K. Sharma, Dy. CGM."

8. As a sequel to the above, a Resolution No. 14 of 2009 was

drawn under the signatures of the CMD on 29th April, 2009, as per

which the Board members considered the agenda item; the reply

of the charged officer and accorded their approval to the show

cause notice dated 15th April, 2009 issued earlier to the charged

officer and recommended to dismiss him from service.

9. Resultantly, the order dated 29th April, 2009 dismissing the

charged officer from service came to be passed by the CMD. The

charged officer i.e. the respondent herein filed OA No. 1592 of 2009

before the Tribunal for assailing the afore-stated dismissal order

which came to be allowed by the Tribunal vide judgment dated 1st

July, 2010.

10. The appellant-Corporation unsuccessfully challenged the

order passed by the Tribunal by filing W.P. (C) No. 7661 of 2010

before the learned Division Bench of the Delhi High Court which

dismissed the same vide order dated 12th March, 2013. Being 4 aggrieved, the appellant-Corporation has preferred the instant

appeal by special leave.

11. This Court issued notice to the respondent vide order dated

16th August, 2013. Leave in the matter was granted on 10th

January, 2014.

Submission on behalf of the appellant-Corporation:-

12. Learned counsel, Ms. Monika Gusain, representing the

appellant-Corporation vehemently and fervently contended that

the agenda which contained the details of the charges attributed

to the appellant was circulated amongst the Board members; who

applied their mind to the agenda item; took a well considered

decision approving the show cause notice dated 15th April, 2009;

and also approved the proposed penalty of dismissal from services

of the Corporation against the charged officer.

13. She urged that approval to impose the penalty of dismissal

from services upon the charged officer was a collective decision of

the Board members whereby, the entire material on record was

considered including the reply of the charged officer. Hence, there

is no reason to cast a doubt that the members of the Board of

Directors failed to make an objective consideration of the agenda

5 item with proper application of mind. She thus implored the Court

to accept the appeal and reverse the impugned judgment.

Submissions on behalf of the respondent-in-person - Charged officer:-

14. Per contra, the respondent appearing-in-person contended

that the minutes of meeting dated 29th April, 2009 reflect total non-

application of mind. The minutes contain not even a whisper of

expression of opinion by any of the members of the Board on the

merits of the matter and thus, the resolution approving dismissal

of the respondent from service is ex facie bad in the eyes of law and

was rightly interfered with by the Tribunal. He further submitted

that the High Court was perfectly justified in affirming the decision

of the Tribunal and implored the Court to dismiss the instant

appeal filed by appellant-Corporation.

15. We have given our thoughtful consideration to the

submissions advanced on behalf of the appellant and the

respondent appearing-in-person and have gone through the

impugned judgments and so also the contentious Resolution dated

29th April, 2009.

Discussion and Conclusions:-

16. We find that firstly, there is a serious question mark on ex

post facto approval by the Board to the show cause notice dated

6 15th April, 2009 issued by the CMD to the charged officer. It is a

settled principle of administrative law that the Disciplinary

Authority must indicate an independent application of mind to the

findings in the enquiry report followed by opportunity of hearing

to the charged officer and only thereafter, the order imposing a

major penalty can be passed against the charged officer. Law is

also well settled that the Disciplinary Authority must afford an

opportunity of hearing to the charged officer before proceeding to

impose the major penalty like dismissal from service. Neither of

these two mandatory compliances were admittedly made by the

Board.

17. Furthermore, the agenda item which was circulated by the

CMD for consideration of the Board(reproduced supra) clearly

indicates that the Board was to take a decision in the matter while

considering the facts of the case and the reply submitted by the

charged officer in response to the show cause notice dated 15th

April, 2009. However, other than giving a blind approval to the

show cause notice and the agenda item albeit referring to the reply

of the charged officer, the Board's Resolution dated 29th April, 2009

does not reflect any independent or objective application of mind

by the members of the Board to the enquiry report either

7 individually or collectively. In this regard, reference may be made

to the judgment rendered by this Court in the case of A.L. Kalra

v. Project & Equipment Corporation of India Ltd.1 the relevant

paragraph thereof is reproduced hereinbelow for the sake of ready

reference:-

“29. The situation is further compounded by the fact that the disciplinary authority which is none other than Committee of Management of the Corporation while accepting the report of the inquiry officer which itself was defective did not assign any reasons for accepting the report of the inquiry officer. After reproducing the findings of the inquiry officer, it is stated that the Committee of Management agrees with the same. It is even difficult to make out how the Committee of Management agreed with the observations of the inquiry officer because at one stage while recapitulating the evidence the inquiry officer unmistakably observed that appellant was subjected to double punishment and at other place, it was observed that granting extension of time and acceptance of documents and balance advance would tantamount to extending the time which would make the affair look wholly innocuous. This shows utter non-application of mind of the Disciplinary Authority and the order is vitiated.”

18. In addition thereto, we have gone through the enquiry report

which has been placed on record with the appeal. We find that the

very foundation of the impugned action i.e. the enquiry report

suffers from a fatal lacuna which goes to the root of the matter

thereby vitiating the proceedings. On going through the report, we

find that the Enquiry Officer categorically noted(at page No. 39 of

the paper-book) that the prosecution neither listed nor produced

1 (1984) 3 SCC 316

8 any witness during regular hearing and that the prosecution case

was closed with the consent of the Presenting Officer.

19. Upon a pertinent query being put to Ms. Gusain in this

regard, she candidly conceded that no witness was examined on

behalf of the prosecution during the course of departmental

enquiry which fact is also borne out from the enquiry

report(Annexure P-1).

20. This Court in the case of Roop Singh Negi v. Punjab

National Bank and Others 2 categorically held that even in a case

of ex parte enquiry, it is essential that the department must lead

evidence of witnesses to bring home the charges levelled against

the delinquent employee.

21. Ms. Gosain feebly tried to convince the Court that the

documents(Exhibits 51-53) which were marked in support of the

department’s case, conclusively establish the guilt of the charged

officer for the charges framed against him. As per Ms. Gusain,

these documents were admitted by the charged officer. However,

the enquiry report nowhere records that any document was

admitted by the charged officer. Since no evidence was led on

behalf of the department in the enquiry proceedings, there is no

2 (2009) 2 SCC 570

9 escape from the conclusion that the enquiry report is based on no

evidence whatsoever.

22. Consequently, we are of the view that the Tribunal committed

no error whatsoever while accepting the original application

preferred by the respondent and the learned Division Bench of the

High Court rightly refused to interfere in the judgment of the

Tribunal.

23. As a result of the above discussion, the appeal is hereby

dismissed as being devoid of merit. No order as to costs.

24. Pending application(s), if any, shall stand disposed of.

………………….……….J. (SANDEEP MEHTA)

………………………….J. (R. MAHADEVAN) New Delhi;

July 18, 2024

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