Allahabad High Court
Krishnapal Singh vs Managing Director U.P.S.R.T.C. And 2 ... on 16 April, 2020
Author: Rohit Ranjan Agarwal
Bench: Rohit Ranjan Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD Reserved on 10.02.2020 Delivered on 16.04.2020 In Chamber Case :- WRIT - A No. - 33562 of 2015 Petitioner :- Krishnapal Singh Respondent :- Managing Director U.P.S.R.T.C. And 2 Others Counsel for Petitioner :- V.K. Jaiswal,Samir Sharma Counsel for Respondent :- Sunil Kumar Mishra,S.C. Hon'ble Rohit Ranjan Agarwal,J.
1. Heard Sri Samir Sharma, learned Senior Advocate, assisted by Sri A.K. Srivastava, learned counsel for petitioner and Sri Sunil Kumar Mishra, learned counsel for the Transport Corporation.
2. This writ petition has been filed assailing the order dated 08.07.2013 passed by respondent no. 4 whereby, petitioner has been removed from service, and order dated 13.08.2014 passed by respondent no. 3, rejecting the statutory appeal of petitioner, as well as order dated 12.03.2015 passed by respondent no. 2 rejecting the revision filed by petitioner.
3. Facts of the case, as disclosed in the petition, are that petitioner was appointed as Conductor in Uttar Pradesh State Road Transport Corporation (for short "U.P.S.R.T.C."). Services of employees (other than officers) are governed under Uttar Pradesh State Road Transport Corporation Employees (other than officers) Service Regulations, 1981 (for short 'Service Regulations of 1981'). On 10.11.2010, petitioner was deputed as Conductor on Bus No. U.P. 14T-9416, which was running on Syana-Hapur Marg, which is a local route. While the bus was on its way, 15 passengers boarded the bus from Karauthi, out of which 9 were students and 6 were of a family, who were claiming to travel freely as one of the member claimed himself to be an employee of Corporation. As argument ensued between petitioner and passengers, who were not prepared to pay the fare, it was stopped on the request of petitioner after travelling some distance. At that time, checking party arrived and 9 students got down from the bus without paying.
4. As the Electronic Ticketing Machine (E.T.M.) given to petitioner for issuing ticket was malfunctioning, 4 passengers travelling from Syana- Bibi Nagar were given tickets printed incorrectly from the E.T.M. machine, as well as to two passengers from Syana to Hapur were also found with tickets incorrectly printed from E.T.M. The checking party found that 21 passengers were travelling without ticket, which included 9 students, 6 passengers claiming themselves to be members of employee of Corporation.
5. On 11.11.2010, a report of misconduct was submitted by checking squad against petitioner, pursuant to which a charge-sheet was issued on 01.12.2010. Petitioner on 15.12.2010 submitted his reply. An enquiry was conducted against petitioner and enquiry officer submitted his report after recording the statement of two defence witnesses produced before enquiry officer by petitioner, namely Chandrapal Singh and Pawan Kumar, while informant V.P. Agarwal was also examined, as well as cross-examined by petitioner. Apart from that, two defence witnesses also produced the ticket which was found to have been entered into the way book of the Conductor on the said of incidence.
6. The enquiry report took note of the fact that E.T.M. machine was malfunctioning, and petitioner had issued tickets from blank book as well as it was a local route and further recorded finding to the effect that evidence produced by petitioner was credible and correct, but held that during time of inspection, vehicle in question was carrying passengers without ticket.
7. Acting on the enquiry report, a show-cause notice was issued on 23.03.2011, to which, petitioner submitted his reply. The disciplinary authority i.e. respondent no. 4 found the charges proved against petitioner and vide order dated 08.07.2013, petitioner was removed from service and punishment for forfeiting balance of pay for suspension period was passed. Against the said order, a departmental appeal was filed, taking specific ground that system of "Pay and Board" was applicable, as it was a local route and further that once enquiry officer had held that petitioner had submitted credible and correct evidence, then there was no occasion for awarding punishment from removal from service. The appellate authority on 13.08.2014 without recording any finding rejected the appeal.
8. Aggrieved by the said order, a statutory revision was preferred before respondent no. 2, taking specific grounds that statement of passengers were not recorded by inspecting team, nor checked his cash, thus, order of punishment was bad. It was further pleaded that mere suspicion should not be allowed to take place of the proof, even in the domestic enquiry. The revisional authority on 12.03.2015 without considering the grounds so raised, in a cursory manner rejected the revision.
9. Sri Samir Sharma, learned Senior Advocate, appearing for petitioner submitted that once the checking party/ reporting authority had admitted before the enquiry officer that Syana-Hapur was a local route and that E.T.M. machine was malfunctioning, in such circumstances the principle of "Pay and Board" as per Clause 24(ix)(a) of Roadways Manual was applicable and thus, tickets could be issued even when bus was leaving and there was no presumption against Conductor in case passengers were found without tickets.
10. He further submitted that burden of proof was upon Corporation to prove the charges of misconduct, and the enquiry officer /punishing authority/ appellate authority/ revisional authority never considered the said fact and proceeded as though burden of proof was upon petitioner. It was his contention that it is an admitted case in the charge-sheet that 9 passengers disembarked the bus at the time of checking (who had not been issued tickets), while one of six members of a family claiming himself to be an employee and entitled to travel free with family was also mentioned and fare and penalty amount for 6 passengers was recovered from those passengers by checking party itself. Coupled with that, there was no evidence to prove (by checking of cash back of petitioner) that petitioner had realised the fare from 9 passengers who had got down from the bus, thus, there is no evidence to substantiate the charge that petitioner had realised fare from the so called 15 passengers without ticket.
11. It was also contended that "stage wise report" given to remaining 6 passengers was in fact the misprinted tickets from E.T.M. machine, thus, there was no evidence to prove the charge, specifically when it was admitted that E.T.M. machine was malfunctioning. While enquiry officer had recorded in its enquiry report that version of petitioner was correct but proceeded to record finding that at the time of checking, passengers were without tickets, as it is self-contradictory/ cryptic/ non-reasoned.
12. Sri Sharma further contended that reasons are the bridge between the fact and conclusion and are one of the facets of principle of natural justice. The departmental proceedings being quasi-judicial in nature, reasons have to be recorded while recording a finding to the disputed facts. It was also contended that it was a case where no evidence was laid by Corporation to proove any of the charges levelled against petitioner and thus, initial burden to proof was never discharged by the employer.
13. In fact, there was not even any material to level charge that petitioner had taken fare and not issued tickets. Reliance has been placed upon decision rendered by this Court in Civil Misc. Writ Petition No. 10109 of 1989, U.P.S.R.T.C vs. Sate of U.P. and others, 2006 (13) SCC 32, State of Haryana vs. Devi Dutt (Para 8), 2010 (9) SCC 496, Kranti Associates Pvt. Ltd. vs. Masood Ahmed Khan, 2012 (4) SCC 407, Ravi Yashwant Bhoir vs. Collector, 2017 (2) SCC 308, Allahabd Bank vs. Krihsna Narayan Tewari, 2016 (2) UPLBEC 1225, Satya Prakash Singh vs. State Public Services Tribunal and 2010 (10) SCC 539, Mohd. Yunus Khan vs. State of U.P. and others.
14. Further reliance has been placed upon Service Regulations of 1981, Regulation 61 deals with conduct of an employee, while Regulation 62 deals with misconduct and Regulation 73 is in regard to free passes issued by Corporation to its employees.
15. Instructions issued by Transport Department laying down duties, functions and responsibilities of the management, operator and other personnel at the level of depot and sub-depots etc. in the U.P. Government Roadways has also been brought on record. Clause 24(ix)(a), which is in relation to "Pay and Board" system is extracted hereasunder:
"(ix) The conductor shall collect the fares and freight, as per prescribed rate for passengers and luggage, intended to go by his bus as well as passenger and goods tax at prescribed rate, and issue tickets therefor according to Standing Departmental Instructions. In this, he shall comply particularly with the following Instructions:
(a) He shall pick up passengers and luggage only from the recognised bus stops and "Request Bus Stops" and shall follow the "Pay and Board" system, in rural or inter-city services, except when it is running or extremely hot, bus fare will be realised and tickets issued before starting the bus. However, in respect of mail and express long distance bus services, tickets should be issued, in any case, before covering a distance of up to five miles from the starting station, to avoid delay."
16. Sri Sunil Kumar Mishra, learned counsel appearing for the Corporation submitted that route in question was 39 kms. and there are 8 stoppages, out of which first three are on highways and remaining 5 are on interior rural stations. Out of 21 passengers found ticket less, fare and penalty of Rs. 540/- was realised from 6 passengers. He further submitted that six persons travelling without tickets on the pretext of one alleged staff, who was already removed as a contract driver and thus, was not eligible to travel without ticket.
17. He further contended that every conductors of U.P.S.R.T.C are necessarily issued "blank ticket book" along with E.T.M. machine for meeting emergency by issuing manual tickets, some defects creeps into machine, and once it was found that machine was not working, conductor should have used blank ticket book. While petitioner had a history of carrying ticket less passengers on 5 different occasions, when he was trapped and punished sympathetically. The punishments given to him are as under:
"(a) The two years increment withheld and reduction to basic pay by order/ letter No. 3227 dated 23.08.1993.
(b) The three years increment withheld and reduction to basic pay by order/letter No. 5082 dated 19.03.1997.
(c) The four years increment withheld by order/ letter No. 7542 dated 12.06.1997
(d) The one year increment withheld by order/ letter No. 872 dated 18.03.1999.
(e) The one year increment withheld by order/ letter No. 2014 dated 16.10.2004."
18. Sri Mishra next contended that "roadways manual" was effective and operational only in erstwhile U.P. Government Roadways which was a department of the State Government and all employees/ officers therein were government servants, and the said manual seized to operate after creation of U.P.S.R.T.C w.e.f. 01.06.1972.
19. Further, there is no specification in the name of rural/inter-city services or mail services/ express services but there are mainly two kinds of buses, firstly, stage carriage and secondly contract carriage as mentioned in Section 178 of Motor Vehicle Act, 1988. Relevant sections 124 and 178 of M.V. Act are extracted hereasunder:
"Section 124 in the Motor Vehicles Act, 1988
124. Prohibition against travelling wihtou pass or ticket.- No person shall enter or remain in any stage carriage for the purposes of travelling therein unless he has with him a proper pass or ticket:
Provided that where arrangements for the supply of tickets are made in the stage carriage by which a person has to travel, a person may enter such stage carriage but as soon as may be after his entry therein, he shall make the payment of his fare to the conductor or the driver who performs the functions of a conductor and obtain from such conductor or driver, as the case may be, a ticket for his journey.
Explanation: in this section,-
(a) "pass" means a duty, privilege or courtesy pass entitling the person to whom it is given to travel in a stage carriage gratuitously and includes a pass issued on payment for travel in a stage carriage for the period specified therein;
(b) "ticket" includes a single ticket, a return ticket or a season ticket.
Section 178 in the Motor Vehicles Act, 1988
178. Penalty for travelling without pass or ticket and for dereliction of duty on the part of conductor and refusal to ply contract carriage, etc.-
(1) Whoever travels in a stage carriage without having a proper pass or ticket with him or being in or having alighted from a stage carriage fails or refuses to present for examination or to deliver up his pass or ticket immediately on a requisition being made therefor, shall be punishable with fine which may extend to five hundred rupees.
Explanation.- In this section,- "pass" and "ticket" have the meanings respectively assigned to them in section 124.
(2) If the conductor of a stage carriage, or the driver of a stage carriage performing the functions of a conductor in such stage carriage, whose duty is-
(a) to supply a ticket to a person travelling in a stage carriage on payment of fare by such person, either wilfully or negligently,-
(i) fails or refuses to accept the fare when tendered, or
(ii) fails or refuses to supply a ticket, or
(iii) supplies an invalid ticket, or
(iv) supplies a ticket of a lesser value, or
(b) to check any pass or ticket, either wilfully or negligently fails or refuses to do so, he shall be punishable with fine which may extend to five hundred rupees.
(3) If the holder of a permit or the driver of a contract carriage refuses, in contravention of the provisions of this Act or rules made thereunder, to ply the contract carriage or to carry the passengers, he shall,-
(a) in the case of two-wheeled or three-wheeled motor vehicles, be punishable with fine which may extend to fifty rupees; and
(b) in any other case, be punishable with fine extend to two hundred rupees."
20. Reliance has been placed upon decision in Case of U.P.S.R.T.C and others vs. K.K. Gupta (LAWS(ALL) 2011 (7) 473); AIR 1996 SC 1249; 2016 (4) ADJ 454, Kaushal Kishore Awasthi vs. P.O. Labour Court; UPSRTC vs. Gopal Shukla, SCC 2015 (17) 603; UPLBEC 1991 (2) 898, Chandrama Singh vs. M.D.U.P. Cooperative Union, Lucknow; Uttar Pradesh State Spinning Co. Ltd. vs. R.S. Pandey, SCC 2005 (8) 264 and Hindustan Steel Works Construction Ltd. vs. Hindustan Steel Works Ltd., SCC 2005 (6) 725.
21. I have heard rival submissions of learned counsel for the parties and perused the material on record.
22. It is a case, where a conductor of Transport Corporation has been removed from service on the basis of an enquiry report which partially accepts the claim of petitioner, holding that evidence so submitted appears to be credible and correct but on the basis of suspicion and presumption held that petitioner was carrying passengers without ticket.
23. The incident is of 10.11.2010 that Bus No. UP 14T-9461 was inspected by checking party near village Karauthi, wherein it is admitted that 9 passengers disembarked the bus before checking squad and the witnesses deposed before the enquiry officer that said 9 passengers were students, who were having an altercation with conductor of the bus and the two defence witnesses, Chandra Pal Singh and Pawan Kumar, being not cross-examined by complainant and their statement being recorded by enquiry officer and further their presence having been proved by tickets they were issued on the said date with the copy of the paper establishing the fact beyond doubt that out of 21 passengers, alleged to be travelling without ticket, 9 passengers were students, who had deboarded the bus when it was stopped at village Karauthi.
24. Further in the cross-examination, complainant V.P. Agarwal in his cross-examination having accepted the fact that it was a local route and only 6 passengers were without tickets while ticket was issued to rest of the passengers and further accepted the malfunctioning of E.T.M. machine.
25. As far as the claim of 6 passengers who were issued tickets after realising fare and penalty to the tune of Rs.540/-, they had claimed themselves to be travelling being member of an employee of the Corporation, which was later found to be a terminated contractual employee.
26. Nowhere the checking party found that petitioner had realised fares from them and had not issued tickets, furthermore the cash bag of petitioner was never checked by checking squad so as to establish that he had collected the fare and retained the same with himself without issuing any ticket.
27. Moreover, the enquiry officer had recorded finding that E.T.M. machine was malfunctioning and conductor had issued tickets from blank book, thus, explanation as far as 6 tickets (4+2) which was issued, has been accepted thus, the report submitted by enquiry officer on the one hand accepted the reply and evidence submitted by petitioner but merely without any material and evidence had wrongly held the petitioner liable to be carrying passengers without tickets.
28. It is well settled law that burden of proving the charge lay on the establishment and the same cannot be shifted to the delinquent employee to prove his innocence. As in the present case, petitioner succeeded to establish his innocence through evidence and statement of witnesses produced by him in his support that out of 21 passengers alleged to be travelling without tickets, 9 were students, while 6 passengers included members of employee of Corporation and further due to malfunctioning of the E.T.M. machine, 6 tickets were not printed properly, which were given to them, thus, the explanation in regard to these 21 passengers were given by petitioner before the enquiry officer who had accepted the same while recording his finding, but without recording as to why the same was not acceptable, and further how petitioner was liable for carrying ticket less passengers, failed to record any finding and submitted his report.
29. The disciplinary authority accepting the report of enquiry officer blanketly proceeded to remove the petitioner from service, thus, both enquiry officer as well as disciplinary authority failed to discharge the onus of proving the charges against petitioner before holding him guilty and passing the order impugned.
30. Neither the enquiry report or the order of disciplinary authority takes note as to the fact as to how many passengers were travelling without ticket, once it had accepted the evidence produced by petitioner proving his innocence.
31. As far as the argument of Sri Sharma, learned Senior Advocate that the system of "Pay and Board" is applicable to local routes, has not been denied by respondent Corporation in their counter affidavit except the fact that Sri Mishra, learned counsel appearing for Corporation submitted in his written argument that system of "Pay and Board" was not applicable. However, in cross-examination, the complainant before the enquiry officer had admitted to the fact that it was a local route.
32. Furthermore, appellate authority has also failed to decide the grounds of objection raised by petitioner in his appeal that once the enquiry officer had accepted that the evidence so submitted by petitioner was credible and was not disputed then, there was no occasion for holding petitioner liable to be guilty simplicitor on the basis of suspicion and presumption and revisional authority also failed to decide the grounds so taken by petitioner in his revision as far as that checking squad had not checked the cash bag of petitioner and thus, it was not possible to arrive at a finding that petitioner had retained fare from the passengers without issuing tickets.
33. As it is evident that neither the enquiry officer could prove the factum of corruption in a planned manner causing loss to the Corporation being one of the charges which remained unproved and further the charge that petitioner was carrying passengers without ticket, the disciplinary authority in such a case where there is lack of evidence to prove the charges against petitioner should not have proceeded in removing petitioner from service, and if in the enquiry, charges were not held proved, at the most could have directed for further enquiry or exonerated the petitioner from charges.
34. From the perusal of punishment order/ order of appellate authority/ order of revisional authority, I find that justice has not been done with petitioner at each stage and merely on the basis of suspicion and presumption that he has been removed from service as the enquiry officer in its report could not find any material on record to prove the charges against petitioner and only on the basis of statement of complainant and complaint, proceeded to hold the petitioner guilty of carrying passengers without ticket. It was the duty of the establishment to prove the charges beyond doubt before imposing major punishment such as removal from service.
35. In view of above, I am of the considered view that the orders impugned dated 08.07.2013, 13.08.2014 and 12.03.2015 are unsustainable in the eyes of law and are hereby quashed.
36. The matter is remitted back to enquiry officer to proceed from the stage of submission of reply by petitioner to the charge-sheet.
37. It is expected that the entire exercise shall be carried out by enquiry officer within a period of four months, from the date of production of certified copy of the judgment.
38. Writ petition stands partly allowed.
Order Date :- 16.04.2020 V.S.Singh