Orissa High Court
Umakanta Dash vs Orissa State Road Transport ... on 27 April, 2017
Author: B.R. Sarangi
Bench: B.R. Sarangi
HIGH COURT OF ORISSA : CUTTACK
W.P.(C) No. 11813 of 2004
In the matter of an application under Articles 226 and
227 of the Constitution of India.
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AFR Umakanta Dash .... Petitioner
Versus
Orissa State Road Transport
Corporation and others .... Opp. Parties
For petitioner : M/s. Manoj Kumar Mohanty and
J. Dash, Advocates.
For opp. parties : M/s. U.C. Mohanty, T. Sahoo and
B.K. Swain, Advocates.
[ O.P. No. 1 & 2]
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PRESENT
THE HONOURABLE DR. JUSTICE B.R. SARANGI
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Date of hearing:19.04.2017: Date of Judgment:27.04.2017
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DR. B.R. SARANGI, J. The petitioner was working as conductor
under the Orissa State Road Transport Corporation
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(OSRTC), Cuttack Zone. On 25.09.1998, he was on duty
in the route of Gadagadighat via Pattamundai. On that
day, after discharging his duties, the petitioner deposited
the income of the route and, as he was suffering from
dysentery, he gave an application for leave and went to
his village with two ticket books bearing no. 561518 and
56549 containing 395 tickets, which were allotted to him.
He kept those ticket books in the bag and put in the
bicycle carrier. On the way, keeping the bicycle, he went
towards river embankment for attending the call of
nature, and when he came back, found his bag stolen.
2. On the next day, i.e., on 26.09.1998, he lodged
an FIR in Pattamundai Police Station and gave a copy of
the same to the Asst. Transport Manager (A), OSRTC,
Kendrapara, which was placed by the Station Master,
Pattamundai in a Register. The Asst. Transport Manager
(A), OSRTC, Kendrapara by letter dated 28.10.1998
(Annexure-1), after expiry of one month, wrote to the
District Transport Manager (A), OSRTC, Cuttack that the
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petitioner was to be accounted for the loss of 395 tickets,
which would be charged in the longest route of the depot
and that, as the longest route of Kendrapara depot was
Pattamundai-Calcutta which was 510 K.Ms. and the fare
was Rs.112/-, the petitioner was to be charged at
Rs.44,319/-.
3. Consequentially, the District Transport
Manager (A), Cuttack on 13.07.2001 vide Annexure-2, by
stating that the two ticket books were lost due to
negligence of the petitioner in duties and that the
Corporation sustained direct financial loss amounting to
Rs.44,319/-, which contravened the Regulation 136 (54)
of the Orissa State Road Transport Corporation
Employees' (Classification, Recruitment and Condition of
Service) Regulations, 1978 (for short the "OSRTC
Regulations, 1978"), called for an explanation from the
petitioner, within seven days of its receipt, as to why the
loss sustained by the Corporation would not be covered
from the dues of the petitioner.
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4. In response to the explanation sought for vide
Annexure-2 dated 13.07.2001, which was received by the
petitioner on 23.07.2001, the petitioner vide Annexure-3
submitted his show cause by registered post on
28.07.2001, which was well within the time granted by the authority. In the show cause reply, the petitioner categorically narrated that there was no financial loss to the Corporation and, as such, there was no question of mis-utilization of ticket books. One of the two ticket books was fully utilized and in the other ticket book 105 tickets were utilized. Therefore, there was no question of utilization of the said tickets in Pattamundai-Calcutta route, particularly when the ticket books, which were allotted to him, the Assistant Transport Manager (A), Kendrapara had not signed at all. Therefore, imposition of ticket price for the route of Pattamundai-Calcutta at the rate of Rs.112/- per ticket, which comes to Rs.44,319/-, was arbitrary and contrary to law, to which the petitioner was not liable to pay. Pursuant to the explanation 5 submitted by the petitioner, nothing was communicated to him.
5. When the matter stood thus, the petitioner sought for voluntary retirement and by letter dated 27.07.2002, he was allowed to retire w.e.f. 28.07.2002. On 20.11.2001, the petitioner received office order no. 3836 dated 30.07.2001 (Annexure-6) from the District Transport Manager (A), OSRTC, Cuttack, wherein it had been stated that as the petitioner did not submit his explanation within the stipulated period, it was presumed that he had nothing to say in his defence. So, the loss sustained by the Corporation amounting to Rs.44,319/- towards loss of two ticket books would be recovered from the dues of the petitioner with immediate effect.
6. When the authority was going to recover the amount from the petitioner's retirement benefits, the petitioner filed W.P.(C) No. 9348 of 2003, which was disposed of by order dated 15.07.2004 directing the 6 Divisional Manager (Transport), OSRTC, Bhubaneswar to consider the appeal presented by him on its own merit and in accordance with law and take a decision in the matter within a period of two months from the date of receipt of the order of this Court. On receiving the said order, the General Manager (A), OSRTC, Bhubaneswar, without application of mind, rejected the appeal by holding that the same did not merit any consideration, which was communicated to the petitioner vide memo no.25266/OSRTC dated 14.10.2004 (Annexure-8). Being aggrieved by order dated 30.07.2001 (Annexure-6) passed by the District Transport Manager(A), OSRTC, Cuttack directing to recover an amount of Rs.44,319/- and consequential order rejecting the appeal by the General Manager (A), OSRTC, Bhubaneswar communicated vide memo dated 14.10.2004 (Annexure-8), this application has been filed.
7. Mr. M.K. Mohanty, learned counsel for the petitioner strenuously urged that the petitioner is not 7 liable to pay Rs.44,319/- towards loss of two ticket books containing 395 tickets and, as such, as per the provisions contained under Regulation 136(54) of OSRTC Regulations, 1978 no such recovery is permissible from the retirement benefit of the petitioner. More so, both the orders, having been passed by the District Transport Manager (A), OSRTC, Cuttack on 30.07.2001 and General Manager (A), OSRTC, Bhubaneswar on 14.10.2004 without assigning any reason, are liable to be quashed. Furthermore, in response to the letter dated 13.07.2001 of the District Transport Manager (A), OSRTC, Cuttack which was received on 23.07.2001, the petitioner submitted his explanation by registered post on 28.07.2001 well within time, but the same has not been taken into consideration in proper prospective, consequentially, the orders impugned dated 30.07.2001 and 14.10.2004 are liable to be quashed.
8. Per contra, Mr. U.C. Mohanty, learned counsel appearing for OSRTC, justifying the orders dated 8 30.01.2001 and 14.10.2004 passed by the authorities concerned, strenuously urged that in view of the office order dated 18.09.1984 that in the event of loss of tickets by any conductor, recovery would be assessed calculating the full fare for the longest route of the concerned zones/sub-zones for each ticket lost with printed money value on the basis of face value printed in the tickets lost. Therefore, the orders so passed by the authorities concerned are wholly and fully justified and need no interference by this Court at this point of time.
9. This Court heard Mr. M.K. Mohanty, learned counsel for the petitioner and Mr. U.C. Mohanty, learned counsel for opposite parties. Pleadings between the parties having been exchanged, with the consent of learned counsel for the parties, this writ petition is being disposed of finally at the stage of admission.
10. The undisputed fact being that the petitioner was a conductor under OSRTC and two ticket books having been lost from his possession, an explanation was 9 called for from him. Though he submitted his explanation, the same was not taken into consideration. When he opted for and was allowed to retire under Voluntary Retirement Scheme and his retirement benefit was computed by the authority concerned, all on a sudden direction was given for recovery of Rs.44,319/- from his dues, and the appeal preferred against the same was rejected by a bald order without assigning any reason.
11. The OSRTC was formed from the 1st May, 1974 and started functioning from the 15th May, 1974 by taking over the State Transport Service Undertaking. As per the provisions of Section 14(2) read with Section14(2)(g) and section 19(c) of the Road Transport Corporation Act, 1950 (Central Act 64 of 1950), the Corporation shall have to determine conditions of service, scales of pay, etc. for its officers and staff (except General Manager and Chief Accounts Officer) through a set of Regulations drawn up for the purpose subject to general 10 instructions issued by Government in this regard under Section 34(1) of Road Transport Corporation Act, 1950 in their Notification No. 7205, dated the 13th May 1974 (Appendix-I). Accordingly, after taking into consideration the general instructions from Government referred to above and the service conditions existing in the various Road Transport Corporation of other States, "The Orissa State Road Transport Corporation Employees (Classification, Recruitment and Services Conditions) Regulations. 1978" was framed and published in Official Gazette on 31st March, 1978. For just and proper adjudication of the case in hand, the relevant provisions of OSRTC Regulations, 1978 are quoted hereunder:
"136. General Provisions - Carrying of mails should be a condition of service of the conductors. This condition has been stipulated in the conditions of appointment to the posts of conductors in Appendix IV.
Without prejudice to the generality of the foregoing regulations, the following acts or omission shall be treated as misconduct:-
xx xx xx (54) Rash and negligence driving resulting in injuries or loss of life or loss of property to a third party or 11 damage to the Corporation vehicle or any other vehicles.
xx xx xx
138. Penalties - The following penalties may for good and sufficient reasons and as hereinafter provided be imposed on an employee, namely :-
(i) Fine
(ii) Censure
(iii) Withholding of the privilege of free passes or
privilege ticket orders.
(iv) Suspension
(v) Recovery from pay of the whole or part of
any pecuniary loss caused to Corporation by negligence or breach of orders.
(vi) Withholding of increments or promotion
(vii) Reduction to a lower service, grade or post or to a lower time scale or a lower stage in a time scale.
(viii) Compulsory retirement.
(ix) Removal from service which shall not be
disqualification for future employment:
(x) Dismissal from service which shall ordinarily be a disqualification for future employment;
Provided (i) that penalty or fine shall be imposed only on Class IV employees and other employees who are governed by the provisions of the Payment of Wages Act:
Provided further (ii) that in the case of employees governed by the provisions of Payment of Wages Act the penalty or fine or recovery of pay may not be imposed except in accordance with the provisions contained in that Act in this behalf.
The first five categories of punishments given in above regulation will constitute minor punishments and last five will constitute major punishments.
xx xx xx 12
142. Communication of orders imposing penalties -
All orders of punishment shall also state the grounds which they are passed and shall be communicated in writing to the employee against whom they are passed.
xx xx xx
144. Procedure for imposing minor penalties - No order imposing any of the penalties specified in items (i) to
(v) of Regulation 138 shall be passed except after -.
(a) The employee concerned is informed in writing of the proposal to take action against him and of the allegations on which action is proposed to be taken and is given an opportunity to make any representation he may wish to make; and
(b) Such representation, if any, is taken into consideration by the authority imposing the penalty.
The record of proceeding in such cases shall include (1) copy of the intimation to the employee of the proposal to take action against him, (2) a copy of the statement of allegations communicated to him, (3) his representation, if any, (4) the findings arrived at on the allegations with reasons thereof, and (5) orders passed on the case by the authority competent to impose the penalty.
xx xx xx
156. Appeals against orders imposing penalties - An employee may appeal against an order imposing upon him any of the penalties specified in Regulations 138 to the authority specifically empowered by an order made by the Corporation in that behalf or in the absence of any such order to the authority specified in the Appendix 'X' or where no such authority is specified, to the authority to which the authority imposing the penalty is immediately subordinate.
Notwithstanding anything contained in Regulation 138 above an appeal against an order in a common 13 proceeding held under Regulation 145 shall lie to the authority to which the authority functioning as the disciplinary authority for the purpose of that proceedings is immediately subordinate.
Explanation - In this regulation the expression 'employee' includes a person who is ceased to be an employee.
xx xx xx
158. Period of limitation for appeals - No appeal under this part shall be entertained unless it is submitted within a period of three months from the date on which the appellant receives a copy of the order appealed against :
Provided that the appellate may entertain the appeal after the expiry of the said period if it is satisfied that the appellant had sufficient cause for not submitting the appeal in time.
xx xx xx
163.Consideration of Appeals - (1) In the case of an appeal against an order imposing any of the penalties specified in regulation 139 the appellate authority shall consider -
(a) Whether the procedure prescribed in these regulations has been complied with and, if not, whether such non-compliance has resulted in violation of any provisions of the Constitution or in failure of justice;
(b) Whether the findings are justified and
(c) Whether the penalty imposed is excessive, adequate or inadequate
(i) setting aside, reducing, confirming or enhancing the penalty, or
(ii) remitting the case to the authority which imposed the penalty or to any other authority with such direction as it deem fit in the circumstances of the case :14
Provided that -
(i) The appellate authority shall not impose any enhanced penalty which neither such authority nor the authority which made the order appealled against is competent in the case to impose.
(ii) no order imposing an enhanced penalty shall be passed unless the appellant is given an opportunity of making any representation which he may wish to make against such enhanced penalty, and
(iii) if the enhanced penalty which the appellate authority proposes to impose is one of the penalties specified in item No. 6 to 10 of Regulation 138 and an inquiry under regulation 141 has not already been held in the case the appellate authority shall, subject to the provisions in Regulation 146 itself held such inquiry or direct that such inquiry be held and, thereafter, on consideration of the proceedings of such inquiry and after giving the appellant an opportunity of making any representation which he may wish to make against such penalty, pass such order as it may deem fit.
(2) In the case of an appeal against any order specified in regulation 157 the appellate authority shall consider all the circumstances of the case and pass such orders as it deems just and equitable.
Where an appellate or Higher authority imposes higher penalty than the only plead against, a second appeal shall lie to the authority next above such appellate or higher authority."
12. Reverting back to the facts of the case, as would be evident from letter dated 13.07.2001, for loss of two ticket books, the District Transport Manager (A), OSRTC, Cuttack called for an explanation, within seven 15 days of its receipt, from the petitioner on the ground of negligence in duties and causing financial loss amounting to Rs.44,319/- in contravention of Regulation 136(54) of the OSRTC Regulations, 1978. Though the letter for explanation dated 13.07.2001 was received on 23.07.2001 and the petitioner submitted his explanation on 28.07.2001, which was well within time, the same has not been taken into consideration while passing the order for recovery dated 30.07.2001. Moreover, in the show cause reply, a specific stand was taken by the petitioner that direction given for recovery of an amount of Rs. Rs.44,319/- is not contemplated under Regulation 136(54) of OSRTC Regulations, 1978, which deals with rash and negligence driving resulting in injuries or loss of life or loss of property to a third party or damage to the Corporation vehicle or any other vehicles, and the loss of ticket books does not come within the purview of provisions contained under Regulation 136(54) of OSRTC Regulations, 1978. As such, the petitioner was not liable 16 to pay the loss alleged to have caused to the Corporation amounting to Rs.44,319/-.
13. A contention was raised that in view of the office order dated 18.09.1984, loss caused to the Corporation has been calculated. The contents of the said letter read thus:
"Modification to the instructions issued under this office standing order no. 16/59 dated 13.5.59 was under
consideration in the past. After due consideration the following modifications are made to para 5 and 6 of the standing order referred to above.
Value of remaining unused tickets lost after adjustment of the number of tickets, as instructed under para 4 of the standing order referred to above should be assessed calculating the full fare for the largest route of the concerned zones/sub-zones for each ticket lost and in case of tickets with printed money value on the basis of face value printed in the tickets lost. The total amount so assessed will be recovered from the Conductor/custodian along with cost of printing charges and cost of publicity in the newspapers in suitable installments. In no case the installments allowed should exceed four in number. Instructions contained in other paras of the standing order referred to above will continue to remain in force until further orders."
The alleged loss have been determined on the basis of the office order dated 18.09.1984, as mentioned supra, but nowhere in the OSRTC Regulations, 1978 such provision has been incorporated as misconduct and, as such, the 17 determination of loss so made, is contrary to the records available. Meaning thereby, out of two ticket books, 105 tickets which had been sold, the sale proceed thereof had been deposited with the authority concerned. The said fact has not been considered while making an assessment for recovery from the petitioner.
14. It is of relevance to note that the petitioner had opted for and was allowed voluntary retirement under Voluntary Retirement Scheme. When he was due to receive retirement benefits, he came to know that the authorities are going to recover the amount in question from same. He immediately approached this Court by filing W.P.(C) No. 9348 of 2003, which was disposed of by order dated 15.07.2004 directing the Divisional Manager (Transport), OSRTC, Bhubaneswar to consider the appeal presented by the petitioner on its own merit and in accordance with law and take a decision in the matter within a period of two months from the date of receipt of the order.
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15. It is of worthy to note that the order of imposition of penalty for recovery of Rs.44,319/-, which is termed as minor penalty under Sub-Regulation (v) of Regulation 138 of OSRTC Regulations, 1978, minimum procedure prescribed for compliance of principle of natural justice has not been followed. As such, Regulation 144 prescribes modalities of imposing minor penalties, which clearly speaks under Sub-Regulation (a) that the employee concerned has to be informed in writing of the proposal to take action against him and of the allegations on which action is proposed to be taken and has to be given an opportunity to make any representation he may wish to make. Even if such provision is made available under the OSRTC Regulations, 1978 and the petitioner submitted explanation, by registered post, it has not been taken into consideration while passing the order dated 30.07.2001. As such, the order itself does not indicate with regard to consideration of the explanation, rather it indicates that 19 the petitioner had not submitted his explanation within the stipulated period. This clearly indicates that there was non-application of mind by the authority and the direction for recovery of amount of Rs.44,319/- towards loss of ticket books is not supported by any reason. Thereby, the order passed by the District Transport Manager (A), OSRTC, Cuttack, being not in compliance of the provisions contained in OSRTC Regulations, 1978, as well as principles natural justice, and without assigning any reason, the same cannot sustain in the eye of law.
16. It is worthwhile to mention, even when the petitioner preferred an appeal, the appellate authority passed a single line order stating that the appeal petition of the appellant did not merits any consideration, hence rejected. The appellate authority has to take into consideration Sub-Regulations (b) and (c)(i) of Regulation 163 of OSRTC Regulations, 1978. When detailed procedure has been prescribed under the OSRTC Regulations, 1978 itself, non-adherence thereof amounts 20 to arbitrary and unreasonable exercise of power. Moreover, the order of the appellate authority, being not supported by any reason, cannot sustain in the eye of law.
17. Reasons being a necessary concomitant to passing an order, the appellate authority can thus discharge its duty in a meaningful manner either by furnishing the same expressly or by necessary reference to those given by the original authority.
18. Franz Schubert said-
"Reason is nothing but analysis of belief."
In Black's Law Dictionary, reason has been defined as a-
"faculty of the mind by which it distinguishes truth from falsehood, good from evil, and which enables the possessor to deduce inferences from facts or from propositions."
It means the faculty of rational thought rather than some abstract relationship between propositions and by this faculty, it is meant the capacity to make correct 21 inferences from propositions, to size up facts for what they are and what they imply, and to identify the best means to some end, and, in general, to distinguish what we should believe from what we merely do believe.
In Union of India v. Mohan Lal Capoor, AIR 1974 SC 87 it has been held that reasons are the links between the materials on which certain conclusions are based and the actual conclusions. They disclose how the mind is applied to the subject-matter for a decision whether it is purely administrative or quasi-judicial and reveal a rational nexus between the facts considered and conclusions reached. The reasons assure an inbuilt support to the conclusion and decision 8 reached. Recording of reasons is also an assurance that the authority concerned applied its mind to the facts on record. It is vital for the purpose of showing a person that he is receiving justice.
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Similar view has also been taken in Uma Charan v. State of Madhya Pradesh, AIR 1981 SC 1915.
Similar view has also been taken in Patitapaban Pala v. Orissa Forest Development
Corporation Ltd. & another, 2017 (I) OLR 5 and in Banambar Parida v. Orissa Forest Development Corporation Limited 2017 (I) OLR 625
19. In view of such position, the order passed by the authority for recovery of the amount of Rs.44,319/- in Annexure-6 dated 30.07.2001, as well as the order passed by the appellate authority on 14.10.2004 in Annexure-8, having been passed without assigning any reason and non-compliance of the Regulations governing the field, are liable to be quashed and accordingly, quashed.
20. After quashing of the orders, normally, the matter would have been remitted back to the disciplinary 23 authority for reconsideration, but for the reason that the writ application was apparently filed in the year 2004 and in the meantime 13 years have elapsed and the petitioner has already taken voluntary retirement in the year 2001, this Court is not inclined to remit the matter back after 13 years. Therefore, for the interest of justice and equity, it is directed that in the event the opposite parties have recovered the amount of Rs.44,319/- from the retirement benefits of the petitioner, the same should be refunded to him as expeditiously as possible, preferably within a period of two months.
21. In the result therefore, the writ petition is allowed. No order as to costs.
Sd/-
Orissa High Court, Cuttack (DR. B.R. SARANGI)
The 27th April, 2017, Ajaya/GDS JUDGE
True copy
Sr. Secretary
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