Full Judgment Text
REPORTABLE
2024 INSC 564
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)
O R D E R
1. This appeal by special leave has been preferred by the
appellant-Delhi Transport Corporation(hereinafter being referred
th
to as ‘Corporation’) for assailing the judgment dated 12 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
st
judgment and final order dated 1 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
GEETA JOSHI
Date: 2024.08.01
17:53:21 IST
Reason:
filed by the respondent(hereinafter being referred to as ‘charged
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officer’) and set aside the order dated 24 April, 2009 passed by
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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
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memorandum of charge dated 19 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
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CMD, appellant-Corporation vide order dated 9 July, 2007. The
Enquiry Officer conducted enquiry and held seven out of the eight
charges proved against the charged officer. A show cause notice
th
dated 15 April, 2009 was issued to the charged officer by the
CMD.
5. The charged officer approached the Tribunal by filing OA No.
th
1054 of 2009 for assailing the show cause notice dated 15 April,
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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
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charged officer submitted a detailed representation dated 27
April, 2009 to the appellant-Corporation. The charged officer was
th
to retire from the services of the appellant-Corporation on 30
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.
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(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
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drawn under the signatures of the CMD on 29 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
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cause notice dated 15 April, 2009 issued earlier to the charged
officer and recommended to dismiss him from service.
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9. Resultantly, the order dated 29 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
st
which came to be allowed by the Tribunal vide judgment dated 1
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
th
dismissed the same vide order dated 12 March, 2013. Being
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aggrieved, the appellant-Corporation has preferred the instant
appeal by special leave.
11. This Court issued notice to the respondent vide order dated
th th
16 August, 2013. Leave in the matter was granted on 10
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
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decision approving the show cause notice dated 15 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
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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
th
that the minutes of meeting dated 29 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
th
29 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
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th
15 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
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charged officer in response to the show cause notice dated 15
April, 2009. However, other than giving a blind approval to the
show cause notice and the agenda item albeit referring to the reply
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of the charged officer, the Board's Resolution dated 29 April, 2009
does not reflect any independent or objective application of mind
by the members of the Board to the enquiry report either
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individually or collectively. In this regard, reference may be made
to the judgment rendered by this Court in the case of A.L. Kalra
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v. Project & Equipment Corporation of India Ltd . 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
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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
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National Bank and Others 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
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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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