Uttarakhand High Court
Praveen Ram Kohli vs Uttarakhand Transport on 11 October, 2019
Equivalent citations: AIRONLINE 2019 UTR 528
Author: Lok Pal Singh
Bench: Lok Pal Singh
Reserved Judgment
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Writ Petition No. 1214 of 2009 (S/S)
Praveen Ram Kohli .... Petitioner
Versus
Uttarakhand Transport
Corporation and others ..... Respondents
Mr. Rajeev Pathak, Advocate for the petitioner.
Ms. Seema Sah, Advocate for the respondent Corporation.
List of cases referred:
1. State of U.P. Vs Singhara Singh & other, AIR 1964 Supreme Court 358
2. Dhananjaya Reddy Vs State of Karnataka, (2001) 4 SCC 9
Per: Hon'ble Lok Pal Singh, J.
By means of present writ petition, the petitioner has sought writ in the nature of certiorari quashing the order dated 31.07.2008 and 25.06.2009, issued by respondent nos. 3 and 2, respectively (copy Annexure no. 2 and 3 to the writ petition.
2) Brief facts leading to filing of present writ petition are that petitioner was initially appointed on the post of conductor in the year 1990. After successful and satisfactory completion of training, the petitioner joined his services as Conductor in Tanakpur region. Thereafter, the petitioner continuously performed his duties as Conductor with utmost dedication and to the fullest 2 satisfaction of his superiors. On 11.10.2006, the petitioner was assigned duty as Conductor in passenger bus bearing registration no. UA 07 2 / 4801 from Pithoragarh bus station to Dharchula bus station. It is specifically mentioned in the writ petition that in hill regions of the State of Uttarakhand, there are limited number of passenger vehicles and the Uttarakhand Transport Corporation being a govt. undertaking providing public transport facility is expected to take up and ply down the passengers from other places also besides bus station stoppage and bus halts earmarked for that purpose.
3) It is further stated in the writ petition that as per directions of Headquarter, the buses are to be stopped in the bus stops, halts and stations and passengers are to be lifted and dropped at these places apart from the other places in between, but fare was directed to be charged from previous halts, stop and station, in case, any passenger is lifted in between the two stations or stops. It is also stated that sometimes in any particular market area, passengers board up at certain places in the market area prior to reaching the station or thereafter and this area can be within a stretch of one kilometer or so. In these circumstances, normally the tickets are prepared before starting the vehicles from the station, but in the given situation in market areas passengers board up at certain places, hence after leaving the market place generally tickets are 3 prepared by conductor of those passengers who boarded the bus after leaving the bus station.
4) It is averred in the writ petition that on 10.11.2006, while the petitioner was on duty as conductor in aforementioned passenger bus and when the bus left bus station known as Baira, situated between the bus station Ogla and Joljeevi, an inspection team comprising of Asstt. General Manager and Asstt. Passenger Inspector stopped the bus for the purpose of checking and inspection. It is also averred in the writ petition that the market area of Baira is spread over about more than 1 Km. ahead from the Baira bus station. It is alleged that after leaving the Baira bus station and within the area of Baira market about 5 passengers boarded the vehicle. The case of the petitioner is that when he was about to prepare the tickets of these 5 passengers, the spectacles slip down from his hand due to sudden impact of break applied by its driver on the hint of inspection team. It is also alleged that while the petitioner was searching for his spectacles, in the meantime, the inspecting team boarded the bus and took over the Way Bill ticket book from him and thereafter started counting the passengers sitting in the bus. It is also averred that the petitioner is unable to read and write without the help of spectacles. It is further averred that since 5 passengers boarded the bus recently from Baira market and the tickets were yet to be prepared by the petitioner, the inspection team found these 5 passengers in excess without tickets.
4It is specifically averred that earlier from the previous station namely Ogla, 4 passengers boarded the bus in which 2 passengers were for Joljeevi and 2 passengers from Dharchula and the petitioner gave tickets to them and a mention in this regard was also made in the Way Bill.
5) On enquiry by the inspecting team, the petitioner clarified that since these 5 passengers have boarded from market area and he was about to prepare tickets and due to sudden slip of spectacles from his hand and as the spectacles got damaged badly due to fall, he could not prepare the tickets nor ticket money has been collected, whereas all the passengers who boarded the bus from previous stations were given due tickets. It is alleged that without verifying and enquiring from the passengers about said episode, the inspection team asked the petitioner to pay cost of tickets and 10 times penalty thereon. The petitioner tried to make the inspection team understand the circumstances leading to such episode, but the team insisted to either pay the cost of tickets of 5 passengers and 10 times penalty thereon or else they will report the matter and charge him for misbehaving and disobedience. Thus, the petitioner was left with no option, but the surrender to the threat of the inspection and paid the cost of tickets and 10 times penalty thereon from his pocket.
6) It is alleged in the writ petition that despite realizing 10 times of penalty and ticket 5 amount from the petitioner, a departmental enquiry was proposed against the petitioner and he was suspended by order dated 15.11.2006, issued by respondent no. 3. Subsequently, charge sheet dated 21.11.2006 was given to petitioner wherein four charges were levelled against him, viz., working contrary to the duty and obligation (ii) taking 6 passengers from Ogla to Joljeevi without ticket on 10.11.2006 in vehicle no. UA 07 2 / 4801 (iii) causing financial loss to the department and (iv) working against the departmental rules.
7) The petitioner submitted his reply dated 28.11.2006, and has reiterated the averments as mentioned in preceding paragraph 3 of this judgment. The petitioner has submitted that he may be exonerated from the charges levelled against him considering the explanation and circumstances of the matter. In the departmental enquiry, the petitioner put a specific question to the Asstt. General Manager, who was the member of the inspecting team as to why the name and addresses of the so called without ticket passengers were not mentioned, but no reply has been given by him. He simply stated that since the petitioner has paid the ticket amount and 10 time penalty of these passengers, as such, it was not necessary to ask and mention the names of those passengers. It is alleged that in the departmental enquiry, no date as given to the petitioner for adducing his evidence or witness, therefore, the departmental enquiry is ex parte and bad for not granting proper opportunity to 6 the petitioner to defend himself and the same is against the principle of natural justice.
8) The Asstt. General Manager (Finance), Tanakpur was appointed as Enquiry Officer, who after completion of enquiry, submitted enquiry report wherein he has not dealt with the charges in proper manner and vaguely concluded the same that all the charges framed against the petitioner were found proved. Respondent no. 3 vide official order dated 31.07.2008 dismissed the petitioner from service without taking consideration the reply of charge sheet and show cause notice of the petitioner. It is alleged that no reason has been assigned by respondent no. 3 as to why compliance of Headquarter Circular dated 30.08.2007 has not been made by the inspection team. Furthermore, no reason has been shown why the major penalty has been imposed on the petitioner. Thereafter, respondent no. 2 (Appellate Authority) passed a final order on 25.06.2009 confirming the order of respondent no. 3 without giving any reasons regarding non-compliance of the Headquarter Circulars and without non-considering the proportionate penalty of minor punishment. On receipt of enquiry, neither the punishment was proposed nor any objections to the punishment awarded were invited from the petitioner. No opportunity of personal hearing was given by the Appellate Authority to the petitioner. It is prayed that the penalty awarded to the petitioner is disproportionate to the alleged offence, as such, the 7 order of respondent no. 3 dated 31.07.2008 and order dated 25.06.2009, passed by respondent no. 2 are liable to the set aside and quashed.
9) Counter affidavit has been filed by the respondents stating therein that the writ petition filed by the petitioner is not maintainable on the ground of alternative remedy. It is also stated that even if the inspection team had stopped the bus for checking at a place which was more than one kilometer ahead from Baira bus stand, the petitioner ought to have issued the tickets to the passengers as per rule. It is also stated that at the time of inspection it was found that there were 6 passengers who were travelling without ticket from Ogla to Joljeevi bus station. It is further stated that during inspection the inspection team found that out of the total 33 passengers sitting in the bus, 6 passengers travelling from Ogla to Joljeevi were found without ticket. In fact, the petitioner had already received the ticket money from the passengers before the inspection and had not issued any tickets to them. Regarding non- mentioning the names and addresses of 6 passengers who were travelling from Ogla to Joljeevi without ticket, it has been stated that as the petitioner himself has admitted that he had not issued the tickets to those passengers, therefore, there was no need to mention their name and addresses in the Way Book. It is averred that the department had provided adequate opportunity to the petitioner to produce his explanation, but he 8 has nowhere denied the allegation of boarding the passengers without ticket. The Enquiry Officer submitted his enquiry report after giving due and adequate opportunity to the petitioner and thereafter having considered all the facts and evidence; after giving full opportunity to the petitioner the dismissal order dated 31.07.2008 has been passed. It is further stated that appeal filed by the petitioner was dismissed on 25.06.2009 after examining all the facts and evidence.
10) In his rejoinder affidavit, the petitioner has reiterated the averments made in the writ petition. However, it has been stated that at the relevant time when the checking team stopped the bus, the petitioner had not taken the ticket money from the passengers, who boarded from Baira market. Since taking of ticket money and issuing ticket to the passenger is a simultaneous process, thus, no money was received till the ticket was issued to the passengers. In reply to paragraph no. 17 of the counter affidavit, it has been stated that in view of Headquarter Circular dated 12.03.1996, it was mandatory for the inspection team to mention the name and address of the alleged without ticket passengers in the inspection note and record their statements regarding payment of ticket money and non-receipt of ticket. It is stated that the said Circular has been issued with a purpose of transparency and fair play in the inspection by the superior officers against subordinate staff. It is alleged that non-compliance of the direction 9 contained in said Circular renders the whole inquiry bad in law. It is averred that the petitioner was compelled to pay the ticket money and penalty of those passengers who boarded the bus from Baira market and have not given the ticket money to the petitioner. Lastly, it is stated that the respondent authorities are taking different measures and different penalty in regard to similarly situated persons for the similar set of misconduct
11) Heard learned counsel for the parties and perused the counter affidavit, rejoinder affidavit and other documents brought on record.
12) Learned counsel for the petitioner drew attention of this Court towards the Office Memorandum no. 154/Pra.Ni/misc.-(Anu.)/07 dated 30th August 2007, issued by the Managing Director of Uttarakhand Transport Corporation (Headquarters), Dehradun. Important points in regard to disciplinary proceedings have been highlighted in said Office Memorandum. In clause
(c) of Clause 1 under the heading 'Report' of said O.M., it has been specified that because the reports of without ticket cases in the department are large in number in comparison of other cases, therefore, special care has to be taken that the statements of without ticket passengers must be recorded. In case the same is not possible, then their names and addresses have to be noted and, in case, both are not possible, then a note in this regard should definitely be made in the Way Bill at the time of 10 making 'without ticket' note as to why the statements of the passengers could not be recorded. Care should also be taken in regard to the same while preparing detailed report thereafter.
13) On the strength of said Office Memorandum, learned counsel for the petitioner would argue that it was mandatory for the inspecting team to take statement of the passengers to whom tickets were yet to be issued by the petitioner and their names and address should have been mentioned in the Way Bill, so that in case of requirement they may be called for in departmental proceedings. But, the inspecting team has not taken the statements of those passengers nor mentioned their names and addresses in the Way Bill book. It is contended that the members of the inspecting team became offensive towards the petitioner during inspection and intentionally and falsely mentioned the aforesaid 5 passengers to be without ticket from Ogla station. In fact, they have only boarded from Baira market.
14) Learned counsel for the petitioner would urge that the petitioner had paid the cost of tickets and 10 times penalty thereon from his pocket only at the instance of the members of inspecting team, who compelled him to confess the alleged offence, though the petitioner has not taken the cost of ticket from the passengers. It is also contended that as per the standing directions of the Nigam, vehicles to be started only after issuing the tickets 11 and counting the passengers from the station and, simultaneously, there are standing orders and oral directions that no passengers should be left as Transport Corporation is a public passenger transport facility being provided by the government undertaking and also to increase the income of the Nigam. Thus, in these circumstances, it is not practicably possible that after leaving the station no passenger be allowed to be boarded or his tickets be prepared prior to running of the vehicles. Especially, in market area it is not possible to board all the passengers at one place and issue tickets to them and then directed the vehicle to take off.
15) It is settled position in law that when the Statute provides that things should be done in a particular manner, the same should be done in that manner alone and not otherwise. This principle has been conclusively settled in a number of judgments [Commissioner of Income Tax, Mumbai Vs Anjum M.H. Ghaswala, (2002) 1 SCC 633; State of Jharkhand and others Vs Ambay Cements and another, 2005 (1) SCC 368].
16) In Singhara Singh1, the Hon'ble Apex Court has held as under:
"8. The rule adopted in Taylor Vs Taylor (1876) 1 Ch D 426 is well recognized and is founded on sound principle. Its result is that if a statute has conferred a power to do an act and has laid down the method in which that power has to be exercised, it necessarily prohibits the doing 12 of the act in any other manner than that which has been prescribed. The principle behind the rule is that if this were not so, the statutory provision might as well not have been enacted. A magistrate, therefore, cannot in the course of investigation record a confession except in the manner laid down in S. 164. The power to record the confession had obviously been given so that the confession might be proved by the record of it made in the manner laid down. If proof of the confession by other means was permissible, the whole provision of S. 164 including the safeguards contained in it for the protection of accused persons would be rendered nugatory. This action, therefore, by conferring on magistrates the power to record statements or confession, by necessary implication, prohibited a magistrate from giving oral evidence of the statements or confessions given to him."
17) Hon'ble Supreme Court in the case of Dhananjaya Reddy2, took the same view that where law requires a thing to be done in a certain manner, it has to be done in that manner or not at all. The Court further observed that the power must be exercised in the manner provided by the Statute.
18) Indisputably, in the present case, a departmental enquiry commenced against the petitioner and he was suspended by order dated 15.11.2006, issued by respondent no. 3. Subsequently, charge sheet dated 21.11.2006 was given to petitioner. The Enquiry Officer submitted 13 enquiry report, but he has not dealt with the charges in proper manner and concluded that the charges framed against the petitioner were found proved. Respondent no. 3, vide order dated 31.07.2008, dismissed the petitioner from service. Furthermore, no reason has been assigned by respondent no. 3 as to why compliance of Headquarter Circular dated 30.08.2007 has not been made by the inspection team. Also, no reasons have been shown why the major penalty has been imposed on the petitioner. Respondent no. 2 (Appellate Authority) passed a final order on 25.06.2009 confirming the order of respondent no. 3, that too, without giving any reasons regarding non-compliance of the Headquarter Circular and without considering the proportionality of the major punishment awarded against the petitioner. What is strange in the whole proceedings is that no opportunity of personal hearing has been given by the Appellate Authority to the petitioner. The Department was bound to follow its own guidelines which have the statutory force. On receipt of the enquiry report, the employer should have send a copy of the same to the petitioner inviting his objections, but straight away the punishment order has been passed which is against the principle of natural justice. To my mind, the penalty awarded to the petitioner is also disproportionate to the alleged offence, as such, the orders impugned are liable to be set aside and quashed.
1419) In view of the findings recorded above, impugned orders dated 31.07.2008 and 25.06.2009 are unsustainable in the eyes of law. The same are hereby quashed. Writ petition stands allowed. No order as to costs.
(Lok Pal Singh, J.) Dt. October 11, 2019.
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