Allahabad High Court
Ved Prakash Srivastava vs State Of U.P. And 4 Others on 20 February, 2019
Author: Rohit Ranjan Agarwal
Bench: Rohit Ranjan Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Court No. - 28 Case :- WRIT - A No. - 17549 of 2018 Petitioner :- Ved Prakash Srivastava Respondent :- State Of U.P. And 4 Others Counsel for Petitioner :- Arun Kumar Pandey,Dhirendra Kumar Srivastav Counsel for Respondent :- C.S.C.,Nripendra Mishra Hon'ble Rohit Ranjan Agarwal,J.
1. Heard Shri A.K. Pandey, learned counsel for the petitioner; learned Standing Counsel for respondent No.1; and Shri Nirpendra Mishra, learned counsel for respondent Nos. 2 to 5.
2. By means of present petition, petitioner has challenged the order dated 30.08.2014 passed by respondent No.2, order dated 24.03.2015 passed by respondent No.3 and order dated 05.10.2015 passed by respondent No.4.
3. The case in nutshell is that petitioner was a Conductor in the respondent-Corporation. He was posted at Jaunpur Depot and was allotted bus No. UP 65 K 8884, which was going from Jaunpur to Sultanpur on 16.04.2011. The said bus was checked by Transport Superintendent, Lucknow at around 14.34 p.m..
4. During checking, it was found that nine persons were without ticket.
5. Petitioner was suspended by order dated 02.09.2012 and an enquiry was conducted. Inquiry Officer submitted his report stating that during enquiry, it was found that 28 passengers were having tickets while 6 passengers were without ticket and as such he reached to the conclusion that petitioner was responsible for carrying 6 passengers without ticket.
6. During enquiry, the petitioner appeared before the Inquiry Officer and submitted his reply to the charge sheet and stated that 28 passengers were having tickets and when the bus reached Sigramau crossing one contractual staff of the Corporation boarded the bus along with 5 students. He had further submitted before the Inquiry Officer that he had directed the driver of bus to park the bus on the left side so as to enable him to make tickets but at the same time the vehicle in question was checked.
7. He further submitted that as there was no time he could not make the ticket for the 5 passengers as the other person was the staff of the Corporation.
8. The Inquiry Officer conducted the enquiry and came to conclusion that 28 passengers were having tickets while 6 passengers did not have any valid ticket.
9. Regional Manager, U.P.S.R.T.C by order dated 30.08.2014, dismissed the petitioner from services. On the ground that petitioner was carrying 6 passengers without ticket. Further he relied upon the judgment of this Court as well as Hon'ble Apex Court
10. Being aggrieved, by the said order, petitioner filed an appeal before respondent No.3, which was also rejected by order dated 24.03.2015.
11. The petitioner preferred a revision before the respondent No.4, who also concurred with the other two Authorities and rejected the revision of petitioner.
12. Shri Pandey counsel for petitioner submits that the inquiry Report submitted by the Inquiry Officer has various contradictions as during the inspection as well as in the suspension order dated 02.09.2012, it was mentioned that 9 passengers were travelling without ticket while the Inquiry Officer reached to the conclusion that as the total number of passengers in the bus were 34 and 28 were having valid tickets then the total number of passengers without valid tickets was 6, and it was by mistake that 9 passengers have been shown.
13. He further submits that as there is contradictions in the inquiry Report itself and it is still not clear whether there were 9 passengers or 6 passengers travelling without ticket. The matter should be remanded back and an enquiry de novo be conducted.
14. He further relied upon the supplementary affidavit so filed bringing on record, a circular dated 5th July, 2006 of the Transport Corporation in which at page No.10, it is stated that if the appointing authority is not in consonance with the finding of the Inquiry Officer, then it should issue show cause notice and categorically state the punishment to be awarded.
15. Per contra, Shri Nirpendra Mishra counsel appearing for the respondent-Corporation submits that there is no inconsistency in the inquiry Report and it has been found that 6 passengers were travelling without ticket. He submits that it is immaterial whether 9 or 6 passengers are travelling without ticket and even if one passenger is travelling without ticket, the petitioner has committed breach of his duty and he cannot be relied upon by the Corporation and his services are not needed in the Corporation as the honesty of an employee is the utmost criteria.
16. He further submits that petitioner is habitual in disobeying the higher authorities and at four earlier occasions he had been punished during the service.
17. As far as the Inquiry Officer is concerned, Shri Mishra submits that petitioner, who appeared before the Inquiry Officer never disclosed the identity of the employee of the Corporation, whom he had boarded and was without ticket, nor he has given the name of the students as claimed by the petitioner, who was travelling without ticket.
18. Shri Mishra further contends that it is an admitted case of the petitioner that there were 6 passengers travelling without ticket and he was going to make ticket for the said passengers, when the inspection was held.
19. In the rejoinder, Shri Pandey has placed reliance before this Court, a judgment of the Apex Court in the case of State of Uttar Pradesh and others versus Saroj Kumar Sinha 2010 (2) SCC 772.
20. The facts of the said case are distinguishable in the present case. He has relied upon para Nos. 26, 27 and 28 which are quoted as under;
"26. The first inquiry report is vitiated also on the ground that the inquiry officers failed to fix any date for the appearance of the respondent to answer the charges. Rule 7(x) clearly provides as under:
"7. (x) Where the charged Government servant does not appear on the date fixed in the inquiry or at any stage of the proceeding inspite of the service of the notice on him or having knowledge of the date, the Inquiry Officer shall proceed with the inquiry ex parte. In such a case the Inquiry Officer shall record the statement of witnesses mentioned in the charge- sheet in absence of the charged Government servant."
27. A bare perusal of the aforesaid sub-Rule shows that when the respondent had failed to submit the explanation to the charge sheet it was incumbent upon the inquiry officer to fix a date for his appearance in the inquiry. It is only in a case when the Government servant despite notice of the date fixed failed to appear that the enquiry officer can proceed with the inquiry ex parte. Even in such circumstances it is incumbent on the enquiry officer to record the statement of witnesses mentioned in the charge sheet. Since the Government servant is absent, he would clearly lose the benefit of cross examination of the witnesses. But nonetheless in order to establish the charges the department is required to produce the necessary evidence before the enquiry officer. This is so as to avoid the charge that the enquiry officer has acted as a prosecutor as well as a judge.
28. Inquiry officer acting in a quasi judicial authority is in the position of an independent adjudicator. He is not supposed to be a representative of the department/disciplinary authority/Government. His function is to examine the evidence presented by the department, even in the absence of the delinquent official to see as to whether the unrebutted evidence is sufficient to hold that the charges are proved. In the present case the aforesaid procedure has not been observed. Since no oral evidence has been examined the documents have not been proved, and could not have been taken into consideration to conclude that the charges have been proved against the respondents."
21. From the perusal of the said judgment, it is clear that same is not applicable in the present case, as the petitioner had appeared before Inquiry Officer, who had conducted a thorough enquiry after recording the statement of petitioner as well as after considering his reply he has given the inquiry report.
22. The Apex Court in North West Karnataka Road Transport Corporation versus H.H. Pujar, AIR 2008 Supreme Court 3060 has held as under:
"7. In State of Haryana and Anr. v. Rattan Singh, 1977 (2) SCC 491, it was, inter alia, held as follows:
"4. It is well settled that in a domestic enquiry the strict and sophisticated rules of evidence under the Indian Evidence Act may not apply. All materials which are logically provbative 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 Indian Evidence Act. For this proposition it is not necessary to cite decisions nor text books, 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, fairplay 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-conductors 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."
8. The view was reiterated in Divisional Controller KSRTC (NWKSRTC) v. A. T. Mane (2004 (8) SCALE 308)
9. 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.
10. In view of what has been stated by this Court in Rattan Singh's case (supra) and in A. T. Mane's case (supra) 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."
23. Similar view has been taken in the matter of Divisional Manager, Rajasthan S.R.T.C. versus Kamruddin, AIR 2009 Supreme Court 2528 the Apex Court has held as under:
"11. The question with regard to imposition of appropriate punishment upon a conductor of a bus belonging to a corporation constituted under the Road Transport Corporation Act, 1950 came up for consideration before this Court in Karnataka State Raod Transport Corporation vs. B.S. Hullikatti [(2001) 2 SCC 574], wherein it was held:
"5. On the facts as found by the Labour Court and the High Court, it is evident that there was a short-charging of the fare by the respondent from as many as 35 passengers. We are informed that the respondent had been in service as a Conductor for nearly 22 years. It is difficult to believe that he did not know what was the correct fare which was to be charged. Furthermore, the appellant had during the disciplinary proceedings taken into account the fact that the respondent had been found guilty for as many as 36 times on different dates. Be that as it may, the principle of res ipsa loquitur, namely, the facts speak for themselves, is clearly applicable in the instant case. Charging 50 paise per ticket less from as many as 35 passengers could only be to get financial benefit by the Conductor. This act was either dishonest or was so grossly negligent that the respondent was not fit to be retained as a Conductor because such action or inaction of his is bound to result in financial loss to the appellant-Corporation.
6. It is misplaced sympathy by the Labour Courts in such cases when on checking it is found that the Bus Conductors have either not issued tickets to a large number of passengers, though they should have, or have issued tickets of a lower denomination knowing fully well the correct fare to be charged. It is the responsibility of the Bus Conductors to collect the correct fare from the passengers and deposit the same with the Company. They act in a fiduciary capacity and it would be a case of gross misconduct if knowingly they do not collect any fare or the correct amount of fare."
A three judge Bench of this Court in Regional Manager, RSRTC vs. Ghanshyam Sharma [(2002) 10 SCC 330], reiterated the said principle, stating:
"4. This Court in Karnataka SRTC v. B.S. Hullikatti has held that in such cases where the bus conductors carry passengers without ticket or issue tickets at a less rate than the proper rate, the said acts would inter alia amount to either being a case of dishonesty or of gross negligence and such conductors were not fit to be retained in service because such inaction or action on the part of the conductors results in financial loss to the Road Transport Corporation. This Court was firmly of the opinion that in cases like the present, orders of dismissal should not be set aside.
5. Furthermore, we agree with the observations of the Single Judge in the present case that the Labour Court was not justified in interfering with the punishment of dismissal. Though under Section 11-A the Labour Court has jurisdiction and powers to interfere with the quantum of punishment, however the discretion has to be used judiciously. When the main duty or function of the conductor is to issue tickets and collect fare and then deposit the same with the Road Transport Corporation and when a conductor fails to do so, then it will be misplaced sympathy to order his reinstatement instead of dismissal."
Recently in Uttarranchal Transport Corporation vs. Sanjay Kumar Nautiyal [2008 (12) SCC 131], Hullikatti (supra) has been followed."
24. Relying upon the said two Authorities, this Court in Writ C No. 24968 of 1998 (U.P. S.R.T.C. and others versus K.K. Gupta and others) held that in case Conductor is found carrying ticketless passengers, no other punishment except that of dismissal or removal from service shall be given to him.
25. Undoubtedly, in the present case, there was a breach of trust between the employer and the employee (i.e. the Transport Corporation and the Conductor), as it is required that the Conductor should be a person of impeccable character, as the Corporation reposes great confidence in him and if he is either negligent or dishonest, his services is not required by the Corporation.
26. In view of the submission so made by the counsels and perusal of the record and the law laid down by the Apex Court in case of North West Karnataka Raod Transport Corporation (supra) & Divisional Manager, Rajasthan S.R.T.C (supra), I find no infirmity in the order passed by the Regional Manager, U.P.S.R.T.C., Varanasi as well as the appellate order passed by the Principal Manager (Karmic), U.P.S.R.T.C., Lucknow and the revisional order passed by the Managing Director so as to dismissing the petitioner from the services as it is an undisputed fact that 6 passengers were being carried on the said date without valid ticket.
27. The inquiry Report having been considered by all the concerned Authorities need no interference.
28. The writ petition fails and is dismissed.
Order Date :- 20.2.2019 A.N. Mishra