DELHI TRANSPORT CORPORATIONversusASHOK KUMAR SHARMA

          [2024] 7 S.C.R. 1175 : 2024 INSC 564

               Delhi Transport Corporation
                           v.
                  Ashok Kumar Sharma
                 (Civil Appeal No. 290 of 2014)
                           18 July 2024
       [Sandeep Mehta and R. Mahadevan, JJ.]

                     Issue for Consideration
High Court, if justified in upholding the order passed by the tribunal
setting aside the dismissal of the charged officer.

                            Headnotes†
Administrative law – Disciplinary proceedings – Mandatory
compliances by the disciplinary authority – On facts,
memorandum of charge issued to the officer – Disciplinary
enquiry held and seven out of the eight charges proved
against the charged officer – Issuance of notice to the
charged officer – Thereafter, the charged officer dismissed
from service – Challenge to – Tribunal set aside the dismissal
order – Said order upheld by the High Court – Correctness:
Held: 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 like dismissal from service
can be passed against the charged officer – On facts, action of
the Corporation in dismissing the charged officer from service
suffered from fatal lacuna of having been arrived at with sheer non-
application of mind in addition to being non-speaking – Neither of
the two mandatory compliances carried out – 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
did not reflect any independent or objective application of mind by
the members of the Board to the enquiry report either individually
or collectively – Enquiry report sufferred from a fatal lacuna which
goes to the root of the matter thereby vitiating the proceedings –
No witness was examined on behalf of the prosecution during the
course of departmental enquiry – 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
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     proceedings, the enquiry report was based on no evidence
     whatsoever – Thus, no error by the tribunal in allowing the
     application filed by the charged officer and the High Court rightly
     upheld the same. [Paras 3, 16, 19, 21, 22]

                              Case Law Cited
     A.L. Kalra v. Project & Equipment Corporation of India Ltd. [1984]
     3 SCR 646 : (1984) 3 SCC 316; Roop Singh Negi v. Punjab
     National Bank and Others [2008] 17 SCR 1476 : (2009) 2 SCC
     570 – referred to.

                                List of Acts
     DTC Meeting Regulations, 1981.

                             List of Keywords
     Administrative law; Disciplinary proceedings; Disciplinary authority;
     Memorandum of charge; Disciplinary enquiry; Dismissal from
     service; Opportunity of hearing; Non-speaking order; Enquiry report.

                            Case Arising From
     CIVIL APPELLATE JURISDICTION: Civil Appeal No. 290 of 2014
     From the Judgment and Order dated 12.03.2013 of the High Court
     of Delhi at New Delhi in WP(C) No. 7661 of 2010
                         Appearances for Parties
     Dr. Monika Gusain, Avinash Ahlawat, Ms. Gyanvi, Avi Dhankhar,
     Advs. for the Appellant.
     Respondent-in-person.
                Judgment / Order of the Supreme Court

                                    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,
[2024] 7 S.C.R.                                                        1177

         Delhi Transport Corporation v. Ashok Kumar Sharma


     New Delhi (hereinafter being referred to as ‘Tribunal’). The Tribunal
     accepted the Original Application (for short ‘OA’) No. 1592 of 2009
     filed by the respondent (hereinafter being referred to as ‘charged
     officer’) and set aside the order dated 24th April, 2009 passed by 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, 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
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     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.
               (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
[2024] 7 S.C.R.                                                      1179

         Delhi Transport Corporation v. Ashok Kumar Sharma


     the learned Division Bench of the Delhi High Court which dismissed
     the same vide order dated 12th March, 2013. Being 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 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-
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     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 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 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


1   [1984] 3 SCR 646 : (1984) 3 SCC 316
[2024] 7 S.C.R.                                                           1181

           Delhi Transport Corporation v. Ashok Kumar Sharma


            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 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


2   [2008] 17 SCR 1476 : (2009) 2 SCC 570
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     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 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.

     Result of the case: Appeal dismissed.



     †
         Headnotes prepared by: Nidhi Jain