Uttarakhand High Court
Rajendra Kumar S/O Late Raj Kishore vs Managing Director Uttarakhand ... on 30 March, 2012
Author: B.S. Verma
Bench: B.S. Verma
Reserved Judgment
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Writ Petition No. 285 (S/S) of 2008
Rajendra Kumar S/o Late Raj Kishore - Petitioner
Versus
Managing Director Uttarakhand Roadways Transport
Corporation and another - Respondents
Mr. D.K. Joshi, Advocate for petitioner Mr. D.C.S. Rawat, Advocate for respondents.
(Hon'ble B.S. Verma, J.) By means of this petition the petitioner has sought the following relief:-
(1) To issue a writ, order or direction in the nature of mandamus commanding and directing the respondents to pay the salary as per the rule during the suspension period and back wages along with other consequential benefit from 5.4.1982 to 16.9. 1990 to the petitioner.
(2) To issue a writ, order or direction in the nature of mandamus commanding and directing the respondents to give the benefit of wage revision from time to time along with the other benefit to the petitioner.
(3) To issue a writ, order or direction in the nature of mandamus commanding and directing the respondents to pass appropriate order for appropriate order for fixation of salary along with other emoluments as applicable to the petitioner and same may be paid to the petitioner.
(4) To issue a writ, order or direction in the nature of mandamus commanding and directing the respondents to consider the case of the petitioner for promotion forthwith from the date of his eligibility and consequently to pay the promotional pay scale and other benefits to the petitioner.2
(5) To issue any other writ, order or direction which be deemed fit and proper under the facts and circumstances of the case in favour of the petitioner.
(6) Award cost of the writ petition to the petitioner.
Briefly stated the facts of the case, according to petitioner, are that the petitioner was initially appointed to the post of Bus Conductor in the U.P.S.R.T.C. Saharanpur Depot in the year 1972. The petitioner was suspended on 10-8-1981 from duty on a false charge of misconduct and he was given charge sheet on 21-8-1981 and 23-9-1981. The petitioner submitted his explanation and denied the charges. Thereafter the petitioner was dismissed from his service on the inquiry conducted against him on 5.4.1982 by A.R.M. Saharanpur. Feeling aggrieved by his dismissal the petitioner raised industrial dispute before Labour Court Meerut which was subsequently transferred to the Labour Court Dehradun. The Presiding Officer, Labour Court Dehradun adjudicated Case No. 100/1989 and vide award dated 12-6-1990 declared the dismissal of the petitioner as illegal as he was not given show cause notice prior to his dismissal. The Labour Court in the said award had given option to the respondents either to reinstate the petitioner or suspend him and give show cause notice to him. The respondents adopted the second formula and reinstated the petitioner into service on the original post of Conductor w.e.f. 16-9-1990 vide letter dated 2.3.1991.
The grievance of the petitioner is that at the time of his reinstatement he was not given his old pay which he was getting before his dismissal and he was put with the fresh incumbent salary which is not justifiable. The petitioner was also given show cause notice dated 4.4.1991 which was replied by the petitioner vide his reply dated 16-10-1991. According to petitioner the show cause notice was also defective as no inquiry report was given to the petitioner along with show cause notice. However, no action has been taken on the alleged show cause notice dated 4.4.1991 and the petitioner is discharging his duties without any break since 16-9-1990 till date. Thus, the petitioner is legally entitled to his back wages with other consequential benefits and promotional avenues, the benefit of revision of wages from time to time since the date of his suspension 3 till today as during his dismissal the petitioner was not employed anywhere else. When no heed was paid by the respondents to the grievance of petitioner, the petitioner raised another industrial dispute through his Union before Labour Court Dehradun on 31.5.2002. The Labour Court vide its award dated 31.10.2006 rejected the claim of the petitioner raised under Section 4-K of U.P. Industrial Dispute Act, 1947 on the ground that the matter has already been adjudicated by the Labour Court vide award dated 12.6.1990. Hence the petitioner has filed this petition for award of salary as per rule during the suspension period and back wages along with other consequential benefit from 5.4.1982 to 16-9-1990.
The respondents filed counter affidavit and alleged that the Labour Court vide its award dated 12-6-1990 directed the Corporation to reinstate the petitioner and liberty was give to the Corporation that after given him again show cause notice action can be taken against the petitioner. On direction of Labour Court Regional Manager Dehradun vide order dated 2-3-1991 reinstated the petitioner in the service and on 4.4.1991 a show cause notice was issued to the petitioner by the Regional Manager Dehradun. It is further alleged in the counter affidavit that from 16-9-1990, when the petitioner was reinstated, the petitioner's salary was fixed at Rs. 950/- in the 4th new pay scale, considering his old pay scale and thereafter he was given annual increment every year. The service record of the petitioner was not satisfactory therefore the petitioner could not be promoted to the post of Junior Clerk and he was promoted to the post of Junior Clerk vide order 9-6-2008 but he refused the same. It is further submitted that the petitioner was given 10 years time scale w.e.f. 12-9-2004. The petitioner is not entitled to get any of the relief claimed in the writ petition.
The petitioner filed rejoinder affidavit and reiterated the facts mentioned in the writ petition.
I have heard learned counsel for parties and perused the record. Learned counsel appearing on behalf of petitioner has submitted that the respondents reinstated the petitioner on 7.3.1991 w.e.f. 16-9- 1990 without paying him the benefit of revised pay scale, subsistence allowance during his suspension period i.e. 10-8-1981 to 5-4-1982, 4 arrears pertaining to fixation of pay scale, back wages for the period 5.4.1981 to 15-9-1990 and other consequential benefits with continuity of service. The petitioner was reinstated with the basic pay scale of Rs. 950/- instead of Rs. 1275/-. It was incumbent upon the respondents once the employee is reinstated into service they are duty bound to follow the provisions of fundamental rules of 54-A which contemplates that if a government servant is reinstated without holding any further inquiry, the period of absence from duty shall be regularized and he shall be paid pay and allowances in accordance with the provisions of sub-rule (2) or (3) subject to the directions, if any of the court. In support of his contention learned counsel has placed reliance on the following cases:-
(1) Raj Bahadur Singh Vs. Director of Agriculture U.P. at Lucknow and others [(2003) UPLBEC 224]. (2) Mahendra Singh vs. State of U.P. and others [(2002) 3 UPLBEC 2737].
(3) Ram Nath Singh Vs. State of U.P. and others [(2002)3 UPLBEC 2463].
(4) Sahdev Singh Vs. U.P. Public Service Tribunal Lucknow and others [(2001)1 UPLBEC 865].
(5) Birbal Sharma Vs. Chief Medical Officer, Ghaziabad and others [(2001)2 UPLBEC 1745].
(6) State of Madhya Pradesh Vs. State of Maharashtra and others (1977) 2 Supreme Court Cases 288.
I have gone through the above cited rulings.
In the case of Raj Bahadur Singh Vs. Director of Agriculture U.P. at Lucknow and others [(2003) UPLBEC 224], it was observed that the petitioner was not given subsistence allowance and taking into consideration only the explanation of petitioner, the dismissal order was passed and no date, time and place was fixed while making an inquiry. Therefore it has been observed that the petitioner has not been afforded opportunity to adduce the evidence and cross- examining the witnesses which indicates that the principle of natural justice has not been observed, therefore, for lack of opportunity of hearing to the petitioner the dismissal in question based on is illegal and erroneous disciplinary inquiry could not be sustained. The 5 dismissal order was set aside and the petitioner was directed to be reinstated in service with all consequential benefits however keeping in view the gravity of charges alleged against the petitioner it was open to the employer after giving charge sheet to hold a fresh property inquiry in accordance with law.
In the case of Mahendra Singh vs. State of U.P. and others [(2002) 3 UPLBEC 2737], no inquiry was held and opportunity to cross-examine the witness and to rebut the evidence led against him was not afforded, hence termination was found not sustainable.
In the case of Ram Nath Singh Vs. State of U.P. and others [(2002)3 UPLBEC 2463], the petitioner was exonerated on the alleged charges at early stage and on similar charges in the second inquiry on the similar and same facts incorporated in the second charge-sheet, it was held that the second inquiry was not permissible and the petitioner was reinstated with all consequential benefit and was awarded 50% of the wages for the past.
In the case of Sahdev Singh Vs. U.P. Public Service Tribunal Lucknow and others [(2001)1 UPLBEC 865], the petitioner was police constable and he was found consumed liquor. During disciplinary inquiry the petitioner put no defence but pleaded for forgiveness with assurance not to repeat in future and the punishment of dismissal was reduced to payment of only 25% of back salary from the date of dismissal to the date of reinstatement.
In the other cited case of Birbal Sharma Vs. Chief Medical Officer, Ghaziabad and others [(2001)2 UPLBEC 1745], the petitioner was neither given any show cause notice of departmental enquiry nor any opportunity of hearing was given, hence the termination was quashed and he was reinstated in service will all consequential benefits.
In the last cited case of State of Madhya Pradesh Vs. State of Maharashtra and others (1977) 2 Supreme Court Cases 288, the petitioner had filed suit for arrears of salary after his reinstatement and it was held that the suit for arrears of salary for previous ten years of suspension is not barred, as the order of suspension was declared to be illegal hence it was held that the when the plaintiff was reinstated later on then the claim for salary accrued due.
6The facts of the case at hand are different. According to respondents on 16-1-1981, 1-5-1981 and 30-7-1981 the Traffic Inspectors checked the Bus and it was found that the petitioner had allowed some passengers to travel in the Bus without ticket and he misbehaved with the Traffic Inspectors. Further on 6-8-1981 after checking the petitioner did marpit with Inspector Nathu Ram and by this beating two teeth of the Inspector were broken and he also sustained injury at his knee. Again the petitioner did marpit with Inspector Atar Singh and snatched his diary and threatened him and also threatened another Inspector B.S. Tauk to expunge the entries made by him in the way bill. The petitioner was convicted and he was imprisoned for three years on the aforesaid charges by the court. On 10-8-1981 the petitioner was suspended and he was served with the charge sheet on 21-8-1981. On 1.8.1981 the Traffic Inspector found that one passenger was travelling in the Bus without ticket and the petitioner misbehaved with the Traffic Inspector by snatching the waybill from him. Therefore, another charge sheet was given to petitioner on 23-9-1981. Departmental inquiry was conducted on the aforesaid charges and on the basis of evidence of witnesses the inquiry officer found proved all the charges levelled against the petitioner. Hence, the petitioner was dismissed from service vide order dated 5-4-1982. According to respondents the petitioner was afforded full opportunity of hearing and he was present during the whole inquiry. Thus here is not the case that the petitioner was not given opportunity of hearing during departmental inquiry.
The learned Labour Court has observed in its award that the charges against the petitioner were serious in nature therefore it would not be proper to award back wages to the petitioner. The Labour Court in its order has also held that as the petitioner was not given show cause notice prior to proposing the punishment, therefore, the dismissal order is bad in law. Liberty was given to the employer to issue show cause notice to petitioner and after giving him opportunity of hearing final order should be passed and till final order is passed the employer may be at liberty either to keep the petitioner under suspension or reinstate him on the post. However, the employer chose the second option and reinstated the petitioner in service and show 7 cause notice was issued on 4-4-1991. It is not the case of the petitioner that no departmental inquiry was conducted and no opportunity of hearing was given to him during inquiry. Rather the petitioner participated in the inquiry.
Thus it is quite clear that the petitioner participated in the inquiry and he was given full opportunity of hearing during inquiry and the charges levelled against the petitioners were fully proved and petitioner was not given the benefit of back wages.
It will not be out of place to mention here, that the petitioner has not sought any relief for quashing either the award dated 12-6- 1990 or the award dated 31-10-2006, although prayer No.1 was made for quashing of the later award dated 31.10.2006, but the said prayer has been got deleted on the request of petitioner vide court's order dated 17-4-2008. Thus, the only prayer of the petitioner is for award of back wages and fixation of salary along with other emoluments. However, in the award dated 12-6-1990 there was specific direction that the petitioner is not entitled for back wages, which has not been challenged by the petitioner in this petition.
In the above facts and circumstances of the case I do not find any illegality in the impugned award. The charges levelled against the petitioner were fully proved and the learned Labour Court has rightly observed that the petitioner is not entitled to get any consequential benefits and any back wages. However, the employer has fixed the pay scale of petitioner on 4th new pay scale and he was being given annual increment on that scale of pay and he was rightly not given back wages, as the charges of serious nature were proved against the petitioner.
In view of discussions made above, the writ petition lacks merit and is liable to be dismissed.
The writ petition is dismissed.
ISB (B.S. Verma, J. )
30-03-2012