Uttarakhand High Court
U.P.S.R.T.C. vs Sunil Kumar And Others on 29 August, 2017
Author: Sharad Kumar Sharma
Bench: Sharad Kumar Sharma
IN THE COURT OF UTTARAKHAND
AT NAINITAL
Writ Petition No. 1641 of 2007 (M/S)
U.P.S.R.T.C. ......Petitioner
Versus
Sunil Kumar and others ...... Respondents.
Present:
Mr. Rajeev Singh Bisht, Advocate for the petitioner.
Mr. T.A. Khan, Senior Advocate for the respondents.
Dated: 29th August, 2017
JUDGMENT
Hon'ble Sharad Kumar Sharma, J.
The petitioner Corporation had filed the writ petition for the following reliefs :-
"1. To issue a writ of certiorari quashing the impugned award, which is shown as Annexure No. 17 to this writ petition.
2. To issue any writ, order, direction in the nature in favour of the petitioner as the Hon'ble Court may deem fit and proper in the circumstances of the case.
3. To stay the operation of the impugned award (Annexure No. 17 to this writ petition) till the final disposal of this writ petition, otherwise the petitioner Corporation will have to suffer irreparable losses and injuries.
4. To award the cost of petition in favour of the petitioner."
The brief facts of the case are that respondent No. 1, who was working as a Driver in the Corporation, had misbehaved with the Traffic Inspector and it was the case of the petitioner that he while dealing with the Traffic Inspector had even assaulted the Traffic Inspector.
2According to the petitioner, this fell within the purview of the term mis-conduct as provided under the Regulations as applicable to the employees of the petitioner Corporation. Another allegation / charge which was leveled against the respondent No. 1 is that he remained unauthorizedly absent from duties and after remaining absent, he used to apply for sanctioned leave at a later stage after availing leave. Consequently, due to this reason for absence, it has resulted into disruption in the official functions of the petitioner Corporation.
Based on the aforesaid allegation, a chargesheet was issued against the respondent No. 1 on 16th December, 1997, calling upon him to submit his reply to the charges leveled against him, which the respondent No. 1 replied on 10th March, 1998, by filing a detailed reply to the charges. According to the petitioner, the inquiry was conducted, the respondent No. 1 was given an opportunity to cross examine the witnesses, the Inquiry Officer had also examined the defence witnesses. The Inquiry Officer, vide his communication dated 20th March, 1998, had informed the parties to the proceedings that the inquiry was scheduled to be held on 27th March, 1998, the said information was also pasted in the notice board giving communication to all concerned.
A show cause notice, after the conclusion of the inquiry, was issued to respondent on 28th March, 1998. Alongwith the show cause notice, the copy of the inquiry report was also supplied to the petitioner and he was called upon to give an explanation as regards to the proposed punishment which was proposed to be levied against him, 3 i.e. dismissal from the service, whether it commensurate to the charges leveled against him or not.
The respondent No. 1 submitted his undated reply and, subsequently, he was dismissed from the services by the order dated 25th April, 1998. The disciplinary authority, after concluding the inquiry proceedings, has observed that the respondent was guilty of unauthorized absence and he also took into consideration that the conduct of the respondent on the previous occasion was also identical earlier too, where he absented himself and later availed leave and even, at this juncture when the proceedings was going on, he was on an unauthorized leave since 19th March, 1998.
Being aggrieved against this order of dismissal dated 25th April, 1998, the respondent No. 1, preferred an appeal under the UPSRTC Service Regulation of 1981. The appeal came up for consideration before the Regional Manager, the appeal was decided by the order dated 7th January, 1999, whereby, the appeal of the petitioner was partly allowed and the punishment as imposed on 25th April, 1998, of dismissal order, was set aside with the modification that he will not be entitled for any salary for the period he remained out of service under principle of no work no pay but he would be provided with the continuity of service and, on account of the fact that the charges against the respondent stood proved, the punishment which was imposed of withholding reduction in the scale as prevailing at the time of initial pay-scale for three years and a warning was issued for future.
The Appellate authority held that looking to the evidence on record and as per the charges leveled against 4 him and the misconduct which has been conduced by respondent No. 1, they are not serious enough which would entail for imposition of order of dismissal from the service and thus, the order of punishment was modified by the Appellate Authority. The respondent No. 1, being dissatisfied with the order, passed by the Appellate Authority, modifying the order of punishment of dismissal, had sought a reference under Section 4-K of the Industrial Disputes Act, for referring the dispute before the Labour Court.
On the said motion under Section 4-K, a reference order was formulated by the notification issued which reads as under :-
"D;k lsok;kspdk }kjk vius Jfed lquhy dqekj iq= Jh lhrkjke in pkyd fMiks gfj}kj dks vkns"k fnuakd 07-01-99 ds vuqlkj lsok ls fudkys tkus dh frFkh 25-04-98 ls lsok esa cgky fd, tkus dh frfFk fnukad 07-01-99 rd ds osru ls oafpr fd;k tkuk mfpr rFkk @ vFkok oS/kkfud gS] ;fn ugh arks fookfnr Jfed D;k ykHk @ vuqrks'k fjyhiu ikus dk vf/kdkjh gS] rFkk vU; fdl fooj.k lfgrA"
The reference was to the effect as to whether the direction issued by modifying the punishment order withholding the salary for the period of restoration in service and reduction in the scale was just and proper or not. The learned Labour Court, after the exchange of pleadings between the parties, passed the impugned award dated 20th March, 2001, and set aside the appellate order.
The learned Labour Court, while answering to the reference, has held that since the Appellate Court has modified the order of the disciplinary authority, awarding the punishment of dismissal, the Labour Court has observed that this modification made in the order of punishing 5 authority by the appellate authority will amount as if, there had occurred no misconduct, and as such, the order of imposition of punishment of reducing of minimum scale of three years, was not justified. Secondly, the reason which has been assigned by the Labour Court to the effect that the Regulations do not contemplate or grant power to the disciplinary authority or the Appellate Authority to reduce the scale to the minimum of a delinquent employee, the order passed by the Appellate Authority, would be without competence.
This Court feels that the two reasons, which has been assigned by the Labour Court, are extraneous and without considering the actual situation prevailing because the learned counsel for the petitioner submits that the power of reduction in scale has been provided under the Regulation which deals with the penalty, i.e. Sub-rule (5) of Regulation 63, which contemplates a punishment by reduction to a lower grade or a post to a lower stage in the time scale. Hence, this finding, which has been recorded by the Labour Court, is erroneous and based on misinterpretation of the rules.
The second ground which has been taken was that, on the basis of the evidence adduced before the Appellate Authority, while dealing with the dis-proportionality of the punishment looking to the mis-conduct where the physical assault has been made to the superior officer were not proved, has been mis-construed by the Labour Court because, if an appellate authority feels after the appreciation of evidence that the punishment imposed by the disciplinary authority is too excessive, it is always open to the appellate authority to modify the order to justify the 6 ends of justice looking to the gravity of the charges leveled against the delinquent employee. Merely because the Appellate Authority has modified the order, looking to the mis-conduct, this, in itself, will not dilute the charge as observed by the Labour Court because the happening of the incident is not denied and the misconduct or mis-behaviour with the superior officer is also not denied, and further, it is not denied that the respondent remained absent without information. Hence, the modification of the punishment, as made by the Appellate Authority, cannot be taken as to be the basis to have diluted the charges as observed by the Labour Court.
In that view of the matter, the writ petition succeeds. The impugned order is set aside and the order passed by the Appellate Authority is affirmed. No order as to costs.
(Sharad Kumar Sharma, J.) 29.08.2017 Shiv