JUDGMENT
K. Ramamoorthy, J.
1. The writ petition has prayed for the following reliefs :-
“i) quash the order of punishment dated 9.12.93 passed by respondent No. 3 and order dated 28.4.94 passed by respondent No.2;
ii) call upon the respondents to accept the request of the petitioner for voluntary retirement as was done earlier in order to deliver the cheque date 31.12.93 and consequently direct the respondents to pay to the petitioner his dues as per the scheme dated 3.3.1993;
iii) call upon the respondents not to give effect to the order of punishment dated 9.12.1993 and 28.4,94;
by issuance of writ of certiorari, mandamus or any other appropriate wit, rule, order or direction.”
2. The facts necessary for the disposal of the case can be narrated in the following terms.
The petitioner -joined service of the Delhi Transport Corporation as an Assistant Fitter in 1962. In 1963 he was promoted as Assistant Store Keeper. In the year 1978 he was promoted as Store Keeper. On 30.5.1991 the petitioner was promoted as Chief Store Keeper. On 22.5.1992 the Delhi Transport Corporation passed an order declaring his probation. On 17.7.1992 a charge-sheet was issued against the petitioner. On 29.10.1993 a show cause notice was issued proposing to impose punishment of withholding stoppage of two annual increments with cumulative effect. Pursuant to the scheme of voluntary retirement framed by the Delhi Transport Corporation in March 1993, the petitioner applied for voluntary retirement in December 1993. On 9.12.1993 the punishment was imposed as proposed in the show cause notice dated 29.10.1993:-
“The undersigned has carefully considered the representation dated 1.12.93 made by Shri S.S. Bhatia Chief Store Keeper, T.No. 1249 in reply to the show cause No. No. CWS-2/DC/93/413 dated 29.10.93 which has not been considered satisfactory.
Therefore, the following punishment is confirmed:
“Stoppage of 2 due next increment with cumulative effect”
The subsistence allowance already paid during the period of suspension, has been considered adequate.
If you wish to submit any appeal on the above punishment, the same may be made within 30 days to the Dy. Chief General Manager (Tech) Central Workshop-2.”
3. The Appellate Authority, Sr. Manager (Purchase) set aside the order of disciplinary authority and issued notice to the petitioner to show cause why the punishment of bringing his basic pay to the initial stage should not be imposed. The petitioner his explanation. On 28.4.1994 that order was imposed. The petitioner has filed the writ petition claiming the relief mentioned above. According to the petitioner, the Appellate Authority, Sr. Manager (Purchase) has no power to issue the show cause notice on 27.4.1994 and pass the order and enhance the punishment. The petitioner has also claimed that his voluntary retirement should have been considered and he must have been relieved as per the request made by him in the application for voluntary retirement.
4. The stand taken by the Delhi Transport Corporation is that as per the rules the Appellate Authority, Sr. Manager (Purchase) has power to enhance the penalty imposed by the disciplinary authority. The Appellate Authority had violated the principles of natural justice by giving notice to the petitioner. The punishment was enhanced on the ground that the view taken by the disciplinary authority was not correct and appropriate punishment had not been imposed by the disciplinary authority.
5. Regarding the claim for voluntary retirement, it is stated by the Delhi Transport Corporation that the petitioner cannot claim voluntary retirement as a matter of right.
6. Two questions arise for consideration; (1) whether the Sr. Manager (Purchase) had the power to enhance the punishment; and (2) whether the petitioner would be entitled to get the voluntary retirement, as claimed by him before the Delhi Transport Corporation.
7. The learned counsel for the Delhi Transport Corporation Mr. S.K. Luthra submitted that under Standing Orders 6 regarding appeals the Appellate Authority was competent to enhance the punishment. The Standing Orders regarding the appeals would read as under :-
“STANDING ORDERS REGARDING APPEALS.
1. The disciplinary action referred to in Regulation 15(2) (a) of the D.R.T.A. (Conditions of Appointment & Service) Regulations, 1952 shall be taken by the General Manager in all cases. If an appeal is made against his orders this shall be considered and decided by a sub-committee consisting of the following members of the Delhi Road Transport Authority:
(i) Shri Raghvendra Singh or any other non-official member who may be specified by the Authority from time to time.
(ii) The representative of the Ministry of Transport, on the Authority.
(iii) The representative of the Ministry of Finance, on the Authority.
In case of any difference of opinion amongst the members of the sub-committee the majority view shall prevail.
2. Any appeal shall be preferred within one month from the date on which the appellant was informed of the order appealed against. No appeals received after the expiry of this period shall be considered except in cases where the General Manager is satisfied that the appellant could not submit an appeal within the specified period due to circumstances beyond his control.
3. Every person preferring an appeal shall do so separately and in his own name.
4. Every appeal shall contain all material statements and arguments relied on by the appellant, shall contain no disrespectful or improper language, and shall be complete in itself.
5. Every appeal shall be addressed to the Chairman of the Delhi Road Transport Authority and sent to the Authority’s Head Office.
6. All appeals received shall be put up by the General Manager before the Delhi Read Transport Authority’s sub-committee mentioned in para 1 above with his comments.
7. The appellate sub-committee shall consider –
(a) Whether the facts on which the order of punishment or penalty was based have been established.
(b) whether the penalty is excessive, adequate or inadequate and after such consideration any
(i) confirm, modify or reverse the order, or
(ii) direct that a further inquiry beheld in the case, or
(iii) reduce or enhance the penalty imposed by the order, or
(iv) make such other order in the case as it may deem fit.
8. The decision of the appellate sub-committee shall be reported to the
Delhi Road Transport Authority for confirmation and it shall be subject
to such order as may be passed by the Authority.”
8. It has to be clarified that the Sub Committee referred to in Standing Order 7 has been amended and it is the Senior Manager (Purchase) who is the Appellate Authority and this position is accepted by the parties.
9. The Senior Manager (Purchase) had issued the notice on 27.4.1994 suo moto without there being any appeal by the Delhi Transport Corporation against the order of the Disciplinary Authority dated 9.12.1993. The Office Order 69 issued relating to Appeals reads as under:-
“It is notified for the information and guidance of all concerned that the Delhi Transport Corporation in its meeting held on 18.3.72 has decided that appeals preferred by the employees/officers of the Corporation against the orders of punishment or penalty passed by the General Manager will be considered and decided by the Chairman of the Delhi Transport Corporation subject to observing the following procedure:
1) All appeals, shall be preferred to the Chairman, D.T.C. within 30 days from the date on which the Appellant has received the order, imposing the punishment/penalty or from the date on which the order was noted by him, whichever is earlier.
Provided that the Chairman, D.T.C. may entertain the Appeal after the expiry of the said period of 30 days if he is satisfied that the Appellant was prevented by sufficient cause for making the appeal in time.
2) Every officer/employee preferring an appeal, shall do so separately and in his own name.
3) Every appeal shall contain all material statements and arguments relied upon by the appellant and shall not contain any disrespectful or improper language and should be complete in itself. Use of improper or disrespectful language would render the appeal to be dismissed straightway.
The decision of the Chairman shall be final in this behalf.
4) Every appeal shall be addressed to the Chairman, D.T.C. and sent to the General Manager, D.T.C.,I.P. Estate, New Delhi who will place the same before the Chairman, D.T.C. with his comments.
5) The Chairman shall consider:-
a) Whether the facts on which the order of punishment or penalty was based, stood established;
b) Whether the facts established afford sufficient ground for taking action; and
c) Whether the penalty is excessive, adequate or inadequate and after such consideration shall:-
i) confirm, modify or reverse the order appealed against; or
ii) direct a further enquiry to be held in the case; or
iii) reduce or enhance the punishment/ penalty imposed by the order appealed against; or
iv) make such other order as may be deemed fit.
Section 15(3) of the D.R.T.A. (Conditions of Appointment & Service) Regulations and D.R.T.A. Standing Orders regarding Appeals will stand amended accordingly.”
Under the Standing Orders the Appellate Authority can enhance the punishment only if there is an appeal before him. The rules do not provide for exercise of suo moto power to review the order of Disciplinary Authority by the Appellate Authority. Therefore, the Appellate Authority (Sr. Manager, Purchase) had no power to issue the show cause notice. Consequently, he would not have the power to pass the order dated 28.4.1994. Therefore, the order dated 28.4.1994 issued by the Senior Manager (Purchase) has to be set aside and it stands quashed.
10. The petitioner had challenged the order dated 9.12.1993. At the time of the arguments, Mr.B.S. Charya, the learned counsel for the petitioner, submitted that the petitioner does not press the point.
11. The learned counsel for the petitioner Mr.B.S. Charya referred to the following authorities on the scope of the power of the Appellate Authority to enhance the punishment imposed by the Disciplinary Authority.
1. Dinesh Chandra Sangma v. State of Assam and Ors., 1977 All India Service Law Journal 622.
2. Devi Dayal Shastri v. State of Punjab and Ors., 1984(2) All India Services Law Journal 444.
3. Ramchandra Chouthe v. The State of M.P. and Ors., 1984 (1) All India Service Law Journal 52.
4. Dr. A.S. N. Swamy v. State of Krnatka, 1986 (1) S.L.R. 76.
5. Radhe Saran Meniwala v. General Manager, Central Railway and Anr., 1986 (4) S.L.R. 225.
12. In the context of the language of the provisions, it is not necessary to deal with these cases elaborately.
13. The petitioner’s claim for voluntary retirement cannot be denied by the Delhi Transport Corporation as per the Scheme evolved by the Delhi Transport Corporation the petitioner is well within his rights to claim voluntary retirement. The Delhi Transport Corporation shall issue appropriate orders permitting the petitioner to retire as per the application made by him for voluntary retirement and shall issue appropriate orders on or before 31.7.1999 and shall also pay all the dues payable to him as per the Scheme.
The writ petition stands allowed to the above terms. There shall be no order as to
costs.