Judgment:
Shailendra Pandey, Member (A)
1. In this OA (which has been heard for fresh adjudication on remand from the High Court of Delhi vide order dated 12.07.2011 in Writ Petition (C ) No. 4009/2011), the applicant, a Driver in the Delhi Transport Corporation (DTC), has challenged the order dated 04.07.2008 (Annexure A-1) vide which he was suspended, order dated 23.04.2010 in terms of which the punishment of stoppage of two due increments without cumulative effect for 2 years was imposed on him, order dated 03.08.2010 vide which the Appellate Authority rejected the appeal of the applicant, and order dated 16.12.2010 vide which the Competent Authority (CMD, President Grievance Committee) had rejected the representation of the applicant made on 01.11.2010.
2. The brief facts of the case are that a criminal case FIR No.241/08 dated 18.04.2008 had been registered against the applicant under section 308/34 of IPC in Police Station Najafgarh in which his two sons were also reportedly a party and one of them was also stated to have been kept in police custody. It was alleged that the applicant had been absconding from his home despite issuance of an arrest warrant and was also absent from duty from 14.05.2008 to 23.05.2008, and had got sent applications for medical leave to the office. It is stated that a letter was sent by the police to the Depot Manager on 29.05.2008 giving information about the case and it was said that in case the applicant comes to the office, he should be asked to report to the police station, Najafgarh. The applicant surrendered before the Court on 29.6.2008 when he was taken into custody and was later release on bail. He was placed under suspension w.e.f. 28.06.2008 pending an enquiry into his case, and on 11.8.2008 he was issued charge sheet as under:-
“That on 18.04.2008 an FIR No. 241 dated 18.4.2008 is registered against you in police station Najafgarh u/s 308/34 I.P.C and even after issuance of arrest warrant against you, you absconded from you home and concealed the facts and got sent the medical leave in the office and surrendered before the Court on 28.6.2008.
Thereafter you were kept in Tihar Jail no 4 in judicial custody till 11.7.2008.
Your aforesaid conduct shows the tendency of concealment of facts”.
After issue of a show cause notice to him and after consideration of his reply thereto, the punishment mentioned above was imposed and the appeal/representation made there against were rejected. He has, therefore, filed this OA for the following relief:-
“That the order of suspension 4.7.08 and charge sheet dated 11.8.10 be declared illegal and unsustainable and non est in law and punishment imposed vide order dated 23.4.10 and order dated 3.8.10 of rejection of appeal, and order dated 16.12.10 of rejection of grievance appeal be set aside”.
3. The main grounds on which the above relief is sought by the applicant are the following:-
a) That the charge against him that he had been absconding from his house after arrest warrants had been issued against him is disproved as the reporter/witness against the applicant had categorically stated that he had not mentioned that there was a warrant against the applicant.
b) That the charge against him that he had concealed the fact of there being a criminal case pending against him is wrong inasmuch as he had vide UPC letter dated 5.5.2008 and registered letter dated 28.5.2008 informed the respondents that a criminal case had been registered against him. It is also stated that he had also informed the respondents through registered letter dated 29.06.2008 issued by his Advocate that he had been sent to judicial custody on 28.06.2008 and that he had, therefore, complied with the requirement of Section 19(1) of the Standing Orders governing conduct of employees, who are arrested.
c) That the Disciplinary Authority had failed to notice that the report dated 23.05.2008 against the applicant was that for the period from 10.05.2008 to 13.05.2008 there were applications for leave but thereafter from 14.05.2008 to 23.05.2008 he was absent without information. This allegation was countered by the same reporter during the enquiry when he admitted that the applicant had remained absent without information only on 23.05.2008, which clearly shows that the applicant had informed the respondents and made proper applications for the period 14.05.2008 to 23.05.2008.
d) That the applicant had informed the respondents vide letter dated 28.05.2008 that he was not well and had duly submitted medical certificates for the period of his absence with applications for grant of leave.
e) That the charge against the applicant is bad in law as there is no provision in the service conditions prescribed by the Delhi Road Transport Authority (Conditions of Appointment and Service) Regulations 1952 or the Standing Orders prescribe that an employee informs the Respondent Corporation that the police wants to question him or add him as an accused in a criminal case. The charge sheet itself is, therefore, not sustainable.
f) That the Enquiry Officer and the Appellate Authority as well as the Chairman of the Grievance Committee have also failed to appreciate that the charge itself was not sustainable.
g) That in the matter of Sessions case No.21 of 2008 arising out of F.I.R. No. 241/08 U/S 308/341/34 I.P.C, the applicant was finally released on probation of good conduct vide judgment dated 6.4.2010 and hence all the benefits that he was deprived of due to pendency of the case should be given to him as he has been released under Probation of Offenders Act and the same does not entail any legal disqualification on the applicant.
h) That the charge and the punishment to the applicant not being sustainable the applicant’s suspension from service is also unsustainable in law and the order of suspension also deserves to be set aside granting the applicant all the benefits that he was deprived of because of the illegal and unsustainable order of suspension.
4. In their counter reply, the respondents have opposed the above submission and have stated that there is adequate evidence to show that the warrants had already been issued against the applicant and that no information as stated by him was given to the department. It is also stated that the findings in the departmental proceedings and the criminal proceedings are independent of each other and that, therefore, the OA should be dismissed.
5. We have considered the rival submissions of both sides and have been through the pleadings on record.
6. The charge against the applicant is extracted below:-
“after arrest warrant being issued against him he absconded from his home and concealing the facts sent applications for medical leave to the office and that such conduct showed the intent to conceal facts”.
7. Inquiry proceedings were conducted in the matter and the enquiry officer in its report (Annexure A-15) held the charges against the applicant as proved. Thereafter a show cause notice was issued to the applicant on 15.04.2010 (Annexure A-16) as to why a punishment of stoppage of two increments without cumulative effect should not be imposed on him. On 23.04.2010, the Disciplinary Authority imposed the punishment of stoppage of two annual increments without cumulative effect on him. The applicant filed an appeal before the respondents against the order of the Disciplinary Authority on 10.05.2010 (Annexure A-17) and the appeal of the applicant was dismissed by the Appellate Authority vide order No. GHD/Illegible/CS-6/10/294 dated 03.08.2010. Thereafter, the applicant had submitted a representation on 30.08.2010 to the Chairman and Managing Director and the President of he Grievance Committee of the Respondents Corporation against the punishment imposed on him followed by reminder dated 01.11.2010, which was rejected by the Competent Authority vide order dated 16.12.2010.
8. It will be useful to extract the orders of the Disciplinary Authority dated 23.04.2010 (Annexure A-3), Appellate authority, dated 03.08.2010 (Annexure A-4) imposing the punishment on the applicant and the order dated 16.12.2010 (Annexure A-5) of the CMD in his capacity as President Grievance Committee. These are extracted below:-
“Order dated 23.04.2010
The reply of Sh. Om Prakash, Post-Driver, B.No.15175 in reply to the Show Cause Notice No. GHD/A1(T)/C/S/6/1-/268 dated 15.4.2010 was carefully considered by the below signed, but it was not found satisfactory and hence his is given the following punishment:-
Stoppage of two due increments without cumulative effect for two years. The subsistence allowance given during the period of suspension be considered as sufficient. and the period from 03.04.2010 to 06.04.2010 be considered as without salary”.
“Order dated 03.08.2010
Your appeal against the stoppage of next due two increment without cumulative effect, dated 14.5.2010 Diary No. GHD-1029 dated 14.5.2010 Case No. CS-6/10 has been rejected by the appellate authority after considering it thoroughly”.
Order dated 16.12.2010
The appeal dated 1.11.2010 preferred by Shri Om Prakash, Driver B. No.15175 addressed to the CMD against the punishment of - stoppage of next due two increment without cumulative effect, has been thoroughly considered by the competent Authority and rejected.
The above orders are all cryptic, unreasoned orders that could have been passed even without referring to the file. The reply given by the applicant in reply to the show cause notice dated 15.04.2010 has not been attached with the OA and we are not in a position to decide whether any significant issues had been raised by him which have not been addressed, but we find from his appeal dated 10.05.2010 (Annexure A-17) that he had made several submissions and raised a large number of grounds on which he had challenged the order passed by the disciplinary authority. The order dated 03.08.2010 of the appellate authority rejecting his appeal does not even mention the contentions raised by the applicant in his appeal nor does it give any reasoning to indicate why the appeal is being rejected. The appellate order is clearly unsustainable and is liable to be quashed.
It is trite that whenever an executive authority/Appellate Authority passes an order, he should give reasons in support of his decision in the matter. While in the case of an order confirming the disciplinary authority’s order - in which the disciplinary authority has given detailed reasons (which is not the case here) - it may not be necessary for the appellate authority to give elaborate reasons, this does not mean that even brief reasons are not to be given (See: Chairman, Disciplinary Authority, Rani Lakshmi Bai Kshetriya Gramin Bank v. Jagdish Sharan Varshney and Others, (2009) 4 SCC 240). The appellate authority’s orders dated 03.08.2010 and 16.12.2010 are, therefore, clearly unsustainable and are liable to be quashed.
9. When we asked the learned counsel for the respondents as to whether he considered these orders to be speaking orders as required in terms of various judicial pronouncements, he was not able to state that the orders contained any reasons. He, however, stated that there is categorical finding of the Enquiry Officer, which has not been assailed in the relief sought and in this connection invited our attention to the Apex Court’s judgment in the case of State Bank of Bikaner and Jaipur Vs. Nemi Chand Nalwaya (Civil Appeal No. 5861/2007) in support of his contention that if an employee does not challenge the findings in an enquiry then the same attained finality. We have been through the judgment and do not think that this would be of any relevance to the need for speaking orders being issued whenever authorities deal with appeals/representations. In the judgment, it had been observed that an employee, who allows the findings in the enquiry and the punishment by the disciplinary authority to attain finality by non-challenge, cannot after several years, challenge the decision on the ground that subsequently, the criminal court had acquitted him. In the instant case, the applicant has challenged the orders of the disciplinary and appellate authorities. Moreover, the very fact that the findings of the enquiry officer are required to be communicated to the applicant and his reply is to be considered before passing of the disciplinary order would show that the Disciplinary Authority must in his order show the application of mind to the contentions raised by the applicant. The same is equally applicable with regard to orders passed by the Appellate Authority.
10. A perusal of the orders issued by the Disciplinary Authority and the Appellate Authority in this case clearly show that these are unsustainable.
11. Accordingly the OA stands disposed of, by quashing the aforesaid orders dated 03.08.2010 and 16.12.2010 and directing the respondents (appellate authority and the CMD - Delhi Transport Corporation) to pass orders afresh in the context by noting all the contentions raised in the appeal/representation and then take a decision through issue of a speaking well reasoned orders. This may be done within a period of two months from the date of receipt of a copy of this order. No order as to costs.