Allahabad High Court
U.P.State Road Transport Corporation ... vs Rajendra Prasad on 28 August, 2019
Equivalent citations: AIRONLINE 2019 ALL 1575
Bench: Anil Kumar, Saurabh Lavania
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH A.F.R. Court No. - 3 Case :- SERVICE BENCH No. - 36325 of 2018 Petitioner :- U.P.State Road Transport Corporation Throu.M.D.And Ors. Respondent :- Rajendra Prasad Counsel for Petitioner :- Ratnesh Chandra Counsel for Respondent :- Mohd. Ali Hon'ble Anil Kumar,J.
Hon'ble Saurabh Lavania,J.
(As per Saurabh Lavania,J.) Heard learned counsel for the petitioners and Mohd. Ali, learned counsel for the respondent.
By means of the present writ petition, the petitioners have challenged the order dated 05.09.2018, passed by the U.P. Public Services Tribunal, Lucknow in Claim Petition No. 214 of 2016 (Rajendra Prasad v. State of U.P. and others), annexed as Annexure No. 1 to the writ petition.
The facts in brief of the present case are as under:-
Sri Rajendera Prasad, claimant/respondent was the conductor of Bus bearing Registration No. U.P.53 T 8956 of U.P. Road Transport Corporation (in short "UPSRTC"), when it was plying on Gorakhpur-Sidharth Nagar road. An inspection was done by the inspecting team of U.P.S.R.T.C. at around 08:05 A.M. at Jungledih (Farenda). At the time of inspection, 45 passengers were found on-board out of which 16 passengers were found ticketless, although the conductor of the bus Rajendra Prasad had already realized the amount for the same from the passengers. Hence, 16 persons were found without ticket at the time of inspection and in this regard an endorsement has been made in the way-bill.
In regard to above said facts, a report dated 04.06.2012 was submitted by Sri Parvez Anwar, Assistant Transport Inspector, who was heading the team of inspection, to the punishing authority. Thereafter, by an order dated 05.06.2012, the claimant/respondent was put under suspension and thereafter, the charge-sheet dated 14.06.2012 was also served upon claimant/respondent. The Assistant Regional Manager, Deoria was appointed as an Enquiry Officer to conduct the enquiry and claimant/respondent was given 15 days' time to submit his reply in regard thereto. Thereafter the enquiry officer conducted the enquiry proceedings and submitted the enquiry report to the punishing authority. On 07.07.2013, the punishing authority issued a show cause notice to the petitioner to submit his reply against the enquiry report, to which the claimant/respondent did not submit his reply. Thereafter, the punishing authority vide order dated 04.01.2014 removed the claimant/respondent from service.
Aggrieved by the order dated 04.01.2014, the claimant/respondent preferred a departmental appeal, which was rejected vide order dated 11.12.2014. Aggrieved by the order dated 11.12.2014, a revision was filed and the same was also dismissed on 14.10.2015.
Aggrieved by the punishment order dated 04.01.2014, appellate order dated 11.12.2014 and revisional order dated 14.10.2015, the respondent-claimant filed a claim petition No. 214 of 2016 (Rajendera Prasad v. State of U.P. & others) before the U.P. Public Services Tribunal, Lucknow (in short "Tribunal"). The Tribunal by means of the order dated 05.09.2018 allowed the claim petition and set-aside the punishment order dated 04.01.2014, appellate order dated 11.12.2014 and revisional order dated 14.10.2015 with a direction to respondents-petitioners, herein, to reinstate the claimant/respondent forthwith and also directed that they may take a decision by way of a speaking order in respect of the payment of back wages to the claimant/respondent, herein, within a period of three months. The finding recorded by the Tribunal while allowing the claim petition vide order dated 05.09.2018 reads as under:-
"orZeku ekeys esa tkap dh dk;Zokgh esa u rks fcuk fVdV ;kf=;ksa dk dksbZ c;ku gS vkSj u gh cl ds pkyd dk dksbZ c;ku gSA blds vykok dS'k cSx dh tkap ds lEcU/k esa dksbZ dFku Hkh ugha gS dsoy fjiksVZdrkZ ds c;ku ds vk/kkj ij tkap vf/kdkjh }kjk ;g fu"d"kZ fudkyuk lEHko ugha gS fd ifjpkyd ¼;kph½ us ;kf=;ksa ls iSls fy;sA bl rjg tkap vf/kdkjh }kjk dh x;h tkap vk[;k rdZlaxr ugha gSA vr% mijksDr ifjfLFkfr;ksa esa gekjs fopkj lsa tkap vf/kdkjh }kjk nh x;h tkap vk[;k nwf"kr gS vkSj nwf"kr tkap vk[;k ds vk/kkj ij ikfjr n.Mkns'k fujLr fd;s tkus ;ksX; gSA bl rjg mijksDr foospuk ds vk/kkj ;g Li"V gS fd tkap dh dk;Zokgh eas tkap vf/kdkjh us u rks cl ds pkyd dk dksbZ c;ku ugha fy;k ftlls ?kVuk ds le; dk lR;kiu gks ldsA lkFk gh fujh{kd ny us tks fjiksVZ iszf"kr dh ml ij lHkh lnL;ksa ds gLrk{kj ugha gS vkSj u gh ;kf=;ksa ds uke o irs dk mYys[k gSA blds vfrfjDr fuxe }kjk tkjh ifji= fnukafdr 12-03-1996 esa fn;s x;s funsZ'kksa dk ikyu ugha fd;k x;kA ,slh n'kk esa tkap dh dk;Zokgh =qfViw.kZ gSA vr% =qfViw.kZ tkap vk[;k ds vk/kkj ij ikfjr n.Mkns'k gekjs fopkj ls fu;e fo:)] rdZ laxr o eqq[kfjr u gksus ds dkj.k fujLr fd;s tkus ;ksX; gSA rn~uqlkj ;kfpdk Lohdkj fd;s tkus ;ksX; gSA mijksDr dkj.k ds vk/kkj ij vihyh; vkns'k o fjohtuy vkns'k Hkh gekjs fopkj ls fujLr fd;s tkus ;ksX; gSA vkns'k ;kfpdk Lohdkj dh tkrh gSA vkyksP; vkns'k fnukad 04-01-2014 ¼layXud la0&1½] vihyh; vkns'k fnukafdr 11-12-2014 ¼layXud la0&2½ rFkk fjohtuy vkns'k fnukafdr 14-10-2015 ¼layXud la0&3½ fujLr fd;s tkrs gSA foi{khx.k dks funsZf'kr fd;k tkrk gS fd os ;kph dks rRdky lsok esa iquZLFkkfir djsaA ;kph ds lsok ls i`Fkd fd;s tkus vkSj iquZLFkkiu fd;s tkus ds chp dh vof/k ds osru HkRrksa ds lEcU/k esa n.Mkf/kdkjh leqfpr] rdZ laxr o eq[kfjr vkns'k bl fu.kZ; dh izkfIr ds rhu ekg ds vUnj ikfjr djuk lqfuf'pr djsaA"
Aggrieved by the order dated 05.09.2018, the present writ petition has been filed by the petitioners-UPSRTC.
Sri Abhinava Singh, holding brief of Sri Ratnesh Chandra, learned counsel for the petitioners submitted that the main reason for allowing the claim petition filed by the claimant/respondent-Rajendra Prasad is to the effect that during the course of enquiry, 45 passengers were found on-board out of which 16 passengers were found without ticket, were not examined nor the driver was examined by the enquiry officer during the enquiy.
Accordingly, it is submitted by the learned counsel for the petitioners that the ground related to examination of passengers taken by the Tribunal for allowing the claim petition filed by the claimant/respondent is contrary to the law laid down by a Division Bench of this Court vide order dated 12.04.2017 passed in Special Appeal No. 33 of 2015 (U.P. State Road Transport Corporation Lucknow & others Vs. Sarvesh Kumar Shukla) and Divisional Controller, KSRTC (NWKRTC) v.. A.T. Mane, (2005) 3 SCC 254. Learned counsel for the petitioners further submitted that neither the passenger(s) nor the driver was required to be examined because as per the charge-sheet, the witnesses who were required to be examined, were examined and cross-examined during the enquiry and the enquiry officer after considering the entire material including the version of the claimant/respondent recorded his findings and held that charge levelled against the claimant/respondent found proved.
Accordingly, it is submitted by the learned counsel for the petitioners that the impugned judgment dated 05.09.2018, passed by the Tribunal is contrary to law and is liable to set aside.
Sri Mohd. Ali learned counsel for the claimant/respondent-Rajendra Prasad in rebuttal submitted that in order to prove that remaining 16 passengers were found without ticket and from whom money was alleged to have been recovered, it was mandatory to record their statements and in the present case, admittedly the statements of the passengers travelling without ticket from whom, the claimant/respondent-Rajendra Prasad alleged to have taken money, were not examined. In view of the same, the finding given by the Tribunal is perfectly valid.
In addition, Mohd. Ali, learned counsel for the claimant/respondent-Rajendra Prasad submitted that in the disciplinary enquiry, the proper opportunity of cross-examination was not given to the delinquent.
Further submission of the learned counsel for the claimant/respondent is to the effect that the inspecting team was made of four persons including Parvez Anwar and another four persons were not produced during the course of enquiry proceedings to prove the charge, so, the entire enquiry proceeding is vitiated in the eye of law, as the same is contrary to the law settled on the issue of principles of natural justice.
Sri Mohd. Ali, learned counsel for the claimant/respondent submitted that Sri Parvez Anwar, Assistant Transport Inspector, who submitted his inspection report inter alia stating therein that 16 passengers were found traveling without ticket at the time of inspection, which was done on 04.06.2012 and on the basis of the said report, the claimant/respondent was charge-sheeted, was not examined and the claimant/respondent was ordered to cross-examine him. Thus, enquiry is vitiated. In this regard, reliance has been placed on paragraph 11 of the claim petition filed by the claimant/respondent. The same reads as under:-
"That the learned Enquiry Officer did not record any 'Examination-in-chief' of the prosecution witness Mr. Parvez Anwar and he directly ordered the petitioner to cross-examine him. Without 'Examination-in-chief', there was not occasion for any cross-examination ye the petitioner was able to prove that statement of passengers were not recorded by the checking team, which was mandatory."
He further submitted that the punishing authority was himself one of the members of inspecting team consisting of four members and except Sri Parvez Anwar no one put signature on the inspection report and as such the inspection report is vitiated and being so, the entire action based on the same including the order passed by the punishing authority is unsustainable.
Accordingly, it is submitted by Sri Mohd. Ali learned counsel for the claimant/respondent that there is no illegality and infirmity in the impugned judgment passed by the Tribunal and the writ petition for it lacks merit and is liable to be dismissed.
In order to verify the factual position, we have also gone through the original record of the enquiry proceedings, which has been submitted by the learned counsel appearing for petitioners-UPSRTC.
We have considered the submission made by the learned counsel for the parties and perused the record.
Firstly, we are dealing with the finding given by the Tribunal while allowing the claim petition which is to the effect that in the present case, 16 passengers/persons, who were found without ticket at the time of inspection, were not examined, so the entire action on the part of the petitioners (respondents before the Tribunal) is contrary to law and in contravention to principles of natural justice and in view thereof, the Tribunal set-aside the punishment order, appellate order and revisional order impugned before it.
The Division Bench of this Court in Special Appeal No. 33 of 2015 decided on 12.04.2017 (U.P. State Road Transport Corporation Lucknow & Others v. Sarvesh Kumar Shukla) held as under:-
"In the case of charge of travelling of passengers without tickets, factum that passengers were not made witness or their statements were not recorded, has not been found to be relevant or a crucial aspect for valid inquiry. Similarly, when conductor holding fiduciary relation is found allowing travelling by passengers without tickets, it has been held to be a serious misconduct justifying maximum penalty of dismissal. Mere fact that subsequently fare was realized by checking squad is not sufficient to condone misconduct committed by the person concerned."
The Hon'ble Apex Court in the case of Divisional Controller, KSRTC (NWKRTC) v. A.T. Mane, (2005) 3 SCC 254 held as under:-
"................question of quantum of punishment, one should bear in mind the fact that it is not the amount of money misappropriated that becomes a primary factor for awarding punishment, on the contrary, it is the loss of confidence which is the primary factor to be taken into consideration. In our opinion, when a person is found guilty of misappropriating corporation's fund, there is nothing wrong in the corporation losing confidence or faith in such a person and awarding a punishment of dismissal."
The Hon'ble Apex Court in the case of North West Karnataka Road Transport Corporation v. H.H. Pujar; (2008) 12 SCC 698, after considering the earlier judgments on the issue related to examination of passengers during disciplinary proceedings interfered in the matter and upheld the order of dismissal. The relevant paras of the judgment in the case of North West Karnataka Road Transport Corporation (supra) are quoted hereunder for ready reference:-
"9. In State of Haryana v. Rattan Singh [(1977) 2 SCC 491 : 1977 SCC (L&S) 298] it was, inter alia, held as follows: (SCC pp. 493-94, paras 4-5) "4. It is well settled that in a domestic enquiry the strict and sophisticated rules of evidence under the Evidence Act may not apply. All materials which are logically probative for a prudent mind are permissible. There is no allergy to hearsay evidence provided it has reasonable nexus and credibility. It is true that departmental authorities and Administrative Tribunals must be careful in evaluating such material and should not glibly swallow what is strictly speaking not relevant under the Evidence Act. For this proposition it is not necessary to cite decisions nor textbooks, although we have been taken through case law and other authorities by counsel on both sides. The essence of a judicial approach is objectivity, exclusion of extraneous materials or considerations and observance of rules of natural justice. Of course, fair play is the basis and if perversity or arbitrariness, bias or surrender of independence of judgment vitiate the conclusions reached, such finding, even though of a domestic tribunal, cannot be held good. However, the courts below misdirected themselves, perhaps, in insisting that passengers who had come in and gone out should be chased and brought before the tribunal before a valid finding could be recorded. The ''residuum' rule to which counsel for the respondent referred, based upon certain passages from American Jurisprudence does not go to that extent nor does the passage from Halsbury insist on such rigid requirement. The simple point is, was there some evidence or was there no evidence--not in the sense of the technical rules governing regular court proceedings but in a fair commonsense way as men of understanding and worldly wisdom will accept. Viewed in this way, sufficiency of evidence in proof of the finding by a domestic tribunal is beyond scrutiny. Absence of any evidence in support of a finding is certainly available for the court to look into because it amounts to an error of law apparent on the record. We find, in this case, that the evidence of Chamanlal, Inspector of the flying squad, is some evidence which has relevance to the charge levelled against the respondent. Therefore, we are unable to hold that the order is invalid on that ground.
5. Reliance was placed, as earlier stated, on the non-compliance with the departmental instruction that statements of passengers should be recorded by inspectors. These are instructions of prudence, not rules that bind or vitiate in the violation. In this case, the Inspector tried to get the statements but the passengers declined, the psychology of the latter in such circumstances being understandable, although may not be approved. We cannot hold that merely because statements of passengers were not recorded the order that followed was invalid. Likewise, the re-evaluation of the evidence on the strength of co-conductor's testimony is a matter not for the court but for the Administrative Tribunal. In conclusion, we do not think the courts below were right in overturning the finding of the domestic tribunal."
The view was reiterated in Karnataka SRTC v. A.T. Mane [(2005) 3 SCC 254 : 2005 SCC (L&S) 407 : (2004) 8 Scale 308] .
10. As rightly contended by the appellant, since fairness of the proceedings was conceded and the respondent admitted that he had not issued tickets to 20 passengers, their non-examination is really of no consequence.
11. In view of what has been stated by this Court in Rattan Singh case [(1977) 2 SCC 491 : 1977 SCC (L&S) 298] and in A.T. Mane case [(2005) 3 SCC 254 : 2005 SCC (L&S) 407 : (2004) 8 Scale 308] award of the Labour Court and impugned order of the High Court cannot be maintained and are set aside. The order of dismissal passed by the Corporation is to operate."
In view of the above, we find no substance in the argument raised by the learned counsel for the claimant/respondent to the effect that the passengers were required to be examined during enquiry and accordingly, we hold that the finding with regard to examination of passengers given by the Tribunal is perverse being contrary to the Law and being so is unsustainable. It is also for the reason that the enquiry officer after examining the witnesses including claimant/respondent held that the charge levelled against the claimant/respondent found proved.
The next issue for consideration, in our view, is to the effect that "whether in enquiry, witnesses including claimant/respondent, were examined and cross-examined or not and whether opportunity to cross-examine the department witnesses was given to the claimant/respondent." On this issue, we find from the enquiry report (Annexure No. 6 to the writ petition) that in the enquiry, the dates i.e. 13.07.2012, 28.08.2012, 29.09.2012, 31.10.2012, 30.01.2013, 15.02.2013 and 28.02.2013 were fixed. Sri Parvez Anwar, Sri Firangi Prasad and Sri Babu Lala Verma were examined, as department witnesses, who were present at the time of inspection of Bus. Sri Parvez Anwar proved his report. All the department witnesses were cross-examined by the claimant/respondent. The claimant/respondent also gave his statement before the enquiry officer. The enquiry officer after considering the material on record, observed as under:-
"bl laca/k esa vkjksih ds fo:) tkjh vkjksi i=] vkjksih }kjk yxk;s x;s vkjksiksa ds laca/k esa izLrqr izfrmRrj ,oa mHk; i{kksa ds c;kuksa o i=koyh ij miyC/k leLr vfHkys[kksa dk Hkfy&Hkkafr voyksdu ,oa euu djus ij ;g ik;k x;k fd vkjksih vius vkjksi i= ds mRrj o vius c;ku esa ;g Lohdkj fd;k gS fd fujh{k.k ds le; cl esa 16 ;k=h fcuk fVdV ;k=kjr Fks] vkSj mldk ;g dguk fd og fVdV cukus dh izfdz;k esa Fkk] lR; izrhr ugha gksrk gS] D;ksafd mDr fcuk fVdV ;k=h xksj[kiqj ,oa ihihxat ls cSBs Fks] vkSj okgu dk fujh{k.k dbZ LVkist chr tkus ds ckn taxyMhg ¼fjfpax QjsUnk½ uked LFkku ij fd;k x;k gSA ftlls Li"V gS fd fujh{k.k ds le; cl esa 16 ;k=h fcuk fVdV FksA"
In view of the above, we are of the view that the enquiry officer conducted the enquiry as required under the Law and witnesses were examined and proper opportunity was given by the enquiry officer to the claimant/respondent.
In view of the aforesaid, we are also of the view that non-examination of driver and other members of the inspecting team would not vitiate the enquiry.
In regard to the argument raised by the learned counsel for the claimant/respondent Sri Mohd. Ali to the effect that the inspecting team was of four members and inspection report on 04.06.2012 was signed and submitted only by Sri Parvez Anwar, Assistant Transport Inspector and the Punishing authority was also a member of the inspecting team and other members of the inspecting team were not examined by the enquiry officer, so the enquiry proceeding/enquiry report is vitiated. We put a query that in which paragraph, the said plea was taken before the Tribunal. In reply, he submitted that the said fact has been stated in paragraph 10 of the claim petition. Paragraph 10 of the claim petition reads as under:-
"That as per the report dated 04.06.2012, the checking was conducted by four persons, but amazingly the report dated 04.06.2012 bears the signature of a sole person, namely Sri Parvez Anwar only. It is not understandable as to why other members of the checking team did not put their signature on the report dated 04.06.2012. It appears that there was no unanimity of mind on the alleged misconduct of the petitioner, otherwise all of them would have put their signature on the report."
Needless to say that department witness Sri Firangi Prasad and Sri Babu Lal Verma, who were the members of the inspecting team, were examined during enquiry, as appears from the enquiry report.
From the perusal of the contents of para 10 of the claim petition, the position emerges out is to the effect that the points, on which learned counsel for the the claimant/respondent has placed his argument, were neither pleaded nor argued before the Tribunal.
In this regard, reliance has been placed by the learned counsel for the claimant/respondent in the case of Union of India and others. v. Prakash Kumar Tandon; (2009) 2 SCC 541, wherein the Apex Court in paragraph 15,16,17 observed as under:-
"15. The principles of natural justice demand that an application for summoning a witness by the delinquent officer should be considered by the enquiry officer. It was obligatory on the part of the enquiry officer to pass an order in the said application. He could not refuse to consider the same. It is not for the Railway Administration to contend that it is for them to consider as to whether any witness should be examined by it or not. It was for the enquiry officer to take a decision thereupon. A disciplinary proceeding must be fairly conducted. An enquiry officer is a quasi-judicial authority. He, therefore, must perform his functions fairly and reasonably which is even otherwise the requirement of the principles of natural justice.
16. In M.V. Bijlani v. Union of India [(2006) 5 SCC 88 : 2006 SCC (L&S) 919] this Court has held: (SCC p. 95, para 25) "25. ... Although the charges in a departmental proceeding are not required to be proved like a criminal trial i.e. beyond all reasonable doubt, we cannot lose sight of the fact that the enquiry officer performs a quasi-judicial function, who upon analysing the documents must arrive at a conclusion that there had been a preponderance of probability to prove the charges on the basis of materials on record. While doing so, he cannot take into consideration any irrelevant fact. He cannot refuse to consider the relevant facts. He cannot shift the burden of proof. He cannot reject the relevant testimony of the witnesses only on the basis of surmises and conjectures. He cannot enquire into the allegations with which the delinquent officer had not been charged with."
17. If the disciplinary proceedings have not been fairly conducted, an inference can be drawn that the delinquent officer was prejudiced thereby."
From the aforesaid judgment, the claimant/respondent can't derive any benefit because as per settled principle of law, the claimant/respondent was required to specifically plead and state/prove that what prejudice has been caused to him by not producing and examining other four persons and as per the admitted facts, there is no pleading in this regard before the Tribunal. In this regard, we would like to refer the judgment of the Division Bench of this Court in the case of Suresh Chandra Sharma v. Rajaswa Parishad U.P. and others; AIR 1971 Alld. 122, wherein this Court has observed as under:-
"23. The submission cannot be accepted for several reasons. No such plea or point has been taken in the writ petition. If the petitioners were serious in pressing this point they should have amended their writ petition. They should have filed a copy of the Notification by which five years' service qualification was prescribed. They should have taken the point expressly so that the respondents may have had an opportunity to explain the reasons and the background for laying down this qualification. The petitioners cannot legitimately pick out a sentence from the counter-affidavit and make a point out of it."
The Hon'ble Supreme Court in the case of Uttarakhand Transport Corporation (earlier known as UPSRTC) and others v. Sukhveer Singh; (2018) 1 SCC 231, wherein the Lordship of the Supreme Court after considering the judgment rendered in the case of ECIL v. B. Karunakar; (1993) 4 SCC 727, Haryana Financial Corpn. v. Kailash Chandra Ahuja; (2008) 9 SCC 31 as well as UPSRTC v. Suresh Chand Sharma; (2010) 6 SCC 555 held as under:-
"8. In ECIL v. B. Karunakar & Ors. this Court, while considering the effect on the order of punishment when the report of the inquiry officer was not furnished to the employee and the relief to which the delinquent employee is entitled, held as under:
"30... (v)??..When the employee is dismissed or removed from service and the inquiry is set aside because the report is not furnished to him, in some cases the non-furnishing of the report may have prejudiced him gravely while in other cases it may have made no difference to the ultimate punishment awarded to him. Hence to direct reinstatement of the employee with back wages in all cases is to reduce the rules of justice to a mechanical ritual. The theory of reasonable opportunity and the principles of natural justice have been evolved to uphold the rule of law and to assist the individual to vindicate his just rights. They are not incantations to be invoked nor rites to be performed on all and sundry occasions. Whether in fact, prejudice has been caused to the employee or not on account of the denial to him of the report, has to be considered on the facts and circumstances of each case. Where, therefore, even after the furnishing of the report, no different consequence would have followed, it would be a perversion of justice to permit the employee to resume duty and to get all the consequential benefits. It amounts to rewarding the dishonest and the guilty and thus to stretching the concept of justice to illogical and exasperating limits. It amounts to an "unnatural expansion of natural justice" which in itself is antithetical to justice."
9. The question of the relief to be granted in cases where the report of the inquiry officer was not supplied to the delinquent employee came up for consideration of this Court in Haryana Financial Corpn. v. Kailash Chandra Ahuja in which it was held as follows:
"21. From the ratio laid down in B. Karunakar [(1993) 4 SCC 727] it is explicitly clear that the doctrine of natural justice requires supply of a copy of the inquiry officer's report to the delinquent if such inquiry officer is other than the disciplinary authority. It is also clear that non-supply of report of the inquiry officer is in the breach of natural justice. But it is equally clear that failure to supply a report of the inquiry officer to the delinquent employee would not ipso facto result in the proceedings being declared null and void and the order of punishment non est and ineffective. It is for the delinquent employee to plead and prove that non-supply of such report had caused prejudice and resulted in miscarriage of justice. If he is unable to satisfy the court on that point, the order of punishment cannot automatically be set aside.
After a detailed examination of the law on the subject, this Court concluded as follows:
44. From the aforesaid decisions, it is clear that though supply of report of the inquiry officer is part and parcel of natural justice and must be furnished to the delinquent employee, failure to do so would not automatically result in quashing or setting aside of the order or the order being declared null and void. For that, the delinquent employee has to show "prejudice". Unless he is able to show that non-supply of report of the inquiry officer has resulted in prejudice or miscarriage of justice, an order of punishment cannot be held to be vitiated. And whether prejudice had been caused to the delinquent employee depends upon the facts and circumstances of each case and no rule of universal application can be laid down.
10. It is clear from the above that mere non-supply of the inquiry report does not automatically warrant re-instatement of the delinquent employee. It is incumbent upon on the delinquent employee to plead and prove that he suffered a serious prejudice due to the non-supply of the inquiry report. We have examined the writ petition filed by the Respondent and we find no pleading regarding any prejudice caused to the respondent by the non-supply of the inquiry report prior to the issuance of the show cause notice. The respondent had ample opportunity to submit his version after perusing the report of the inquiry officer. The respondent utilised the opportunity of placing his response to the inquiry report before the disciplinary authority. The High Court committed an error in allowing the writ petition filed by the respondent without examining whether any prejudice was caused to the delinquent employee by the supply of the inquiry officer's report along with the show cause notice. We are satisfied that there was no prejudice caused to the respondent by the supply of the report of the inquiry officer along with the show cause notice. Hence, no useful purpose will be served by a remand to the court below to examine the point of prejudice."
In addition to the above said facts, from the original record, the position which emerges out is to the effect that the inspection report was prepared and signed by Parvez Anwar, Assitant Transport Inspector and he was examined and cross-examined in the enquiry and two other members of the inspecting team were also examined and cross-examined in the enquiry.
Keeping in view the aforesaid, we are of the view that the submission of the learned counsel for the claimant/respondent on the aspect of examination and cross-examination of all the members of the inspecting team has no force, as such liable to be rejected.
Further, in the present case, claimant/respondent-Rajendra Prasad is a conductor of the bus and he was entrusted with the duty to collect the ticket from the passengers travelling in the bus and deposit the same with the Corporation however in the present case, from the material on record, the position which emerges out is to the effect that he collected the fair from 16 passengers/persons but did not deposit the same.
The Hon'ble Apex in the case of Rajasthan State TPT Corporation and another v. Bajrang Lal, (2014) 4 SCC 693, observed as under:-
"21. As regards the question of disproportionate punishment is concerned, the issue is no more res integra. In U.P. SRTC v. Suresh Chand Sharma [(2010) 6 SCC 555 : (2010) 2 SCC (L&S) 239] , it was held as under: (SCC p. 561, para 22) "22. In Municipal Committee, Bahadurgarh v. Krishnan Behari [(1996) 2 SCC 714 : 1996 SCC (L&S) 539 : (1996) 33 ATC 238] this Court held as under: (SCC p. 715, para 4) ''4. ... In a case of such nature--indeed, in cases involving corruption--there cannot be any other punishment than dismissal. Any sympathy shown in such cases is totally uncalled for and opposed to public interest. The amount misappropriated may be small or large; it is the act of misappropriation that is relevant.' Similar view has been reiterated by this Court in Ruston & Hornsby (I) Ltd. v. T.B. Kadam [(1976) 3 SCC 71 : 1976 SCC (L&S) 381] , U.P. SRTC v. Basudeo Chaudhary [(1997) 11 SCC 370 : 1998 SCC (L&S) 155] , Janatha Bazar (South Kanara Central Coop. Wholesale Stores Ltd.) v. Sahakari Noukarara Sangha [(2000) 7 SCC 517 : 2000 SCC (L&S) 962] , Karnataka SRTC v. B.S. Hullikatti [(2001) 2 SCC 574 : 2001 SCC (L&S) 469] and Rajasthan SRTC v. Ghanshyam Sharma [(2002) 10 SCC 330 : 2003 SCC (L&S) 714] ."
22. In view of the above, the contention raised on behalf of the respondent employee, that the punishment of removal from service is disproportionate to the delinquency is not worth acceptance. The only punishment in case of the proved case of corruption is dismissal from service."
Keeping in view the aforesaid facts, we are of the view that the order dated 05.09.2018, passed by the U.P. Public Services Tribunal, Lucknow in Claim Petition No. 214 of 2016 (Rajendra Prasad v. State of U.P. and others) is contrary to law and is liable to be set aside.
Resultantly, the writ petition is allowed. The judgment and order dated 05.09.2012, passed by the Tribunal is set aside. No order as to costs.
Order Date :- 28.8.2019 Arun/-