Allahabad High Court
Sarvesh Kumar Shukla vs Chairman, U.P.State Road Transport ... on 26 September, 2014
Author: M.C. Tripathi
Bench: Mahesh Chandra Tripathi
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH AFR Reserved Court No. Case :- SERVICE SINGLE No. - 3564 of 2005 Petitioner :- Sarvesh Kumar Shukla Respondent :- Chairman, U.P.State Road Transport Corp.H.Q.Lko.& 2 Others Counsel for Petitioner :- Janardan Prasad,Sudhir Pandey,Yogendra Kumar Mishra Counsel for Respondent :- Km.Veena Sinha,Prabhakar Tewari Hon'ble Mahesh Chandra Tripathi,J.
Heard Sri Sudhir Pandey, learned counsel for the petitioner and Sri Prabhakar Tiwari, learned counsel for the respondents.
By means of present writ petition petitioner has prayed for following relief:-
1. Order or direction in the nature of certiorari may be issued, thereby quashing orders dated 21.04.2003, 21.02.2004 and 25.01.2005 contained in Annexure Nos. 8, 9, 10 to this writ petition.
II. Order or direction in the nature of mandamus may be issued thereby prohibiting the opposite parties to implement the orders dated 21.04.2003, 21.02.2004 and 25.01.2005 contained in Annexure Nos. 8, 9, 10 to this writ petition."
With the consent of the learned counsel for the parties, the writ petition is disposed of after exchange of affidavits between the parties.
Brief facts giving rise to the present writ petition are as follows:-
The petitioner joined the Uttar Pradesh State Road Transport Corporation (hereinafter referred as "UPSRTC") on the post of Conductor on 01.07.1980. On 11.03.2000 he was assigned duty in bus bearing Registration No. U.P. 25 5000 which was scheduled to be plied between Farrukhabad to Bareilly. The petitioner was accompanied with Driver Sri Ashok Kumar Gupta. The bus was checked by Sri M.P. Jauhari, Hem Raj, Ticket Inspectors and Sri Sagir Ahmad, Transport Superintendent and at the time of inspection they found that certain passengers were without ticket.
A preliminary inquiry was conducted by the opposite party No. 3 i.e. Assistant Regional Manager, UPSRTC, Bareilly Depo on 14.03.2000 who was also happened to be the appointing authority of the petitioner. The said preliminary inquiry was taken place on the complaint made by Sri Sagir Ahmad on 13.03.2000.
A memo of chargesheet dated 16.03.2000 was drawn against the petitioner alleging misconduct of allowing the passengers without ticket and when the bus was inspected by checking squad. The petitioner had instigated the passengers against the checking squad and pressurized the checking squad to remove the remarks which they had indicated in the way bill.
The petitioner submitted his detailed reply on 02.04.2000 denied the charges levelled against him and categorically submitted that tickets were made and as such, there was no revenue loss to the UPSRTC.
The inquiry was conducted by the disciplinary authority i.e. Assistant Regional Manager, Karmik, Bareilly. He had submitted his inquiry report on the basis of preliminary inquiry and finally the disciplinary authority had held that the charges were proved and accordingly vide order dated 21.04.2000 the petitioner was removed from service.
The petitioner challenged the punishment order by means of departmental appeal and vide order dated 10.02.2004 appellate authority had also rejected the appeal. Thereafter he had preferred departmental revision and the same was also rejected vide order dated 25.01.2004.
Aggrieved with the aforesaid order, the petitioner had preferred the present writ petition.
Learned counsel for the petitioner submitted that petitioner in his entire service had never been cautioned regarding his work and conduct and same had always been appreciated by the superior authorities since his joining, there was not even a single complaint against the petitioner. Learned counsel for the petitioner has vehemently submitted that checking squad did not have good reputation in the department and there were several complaints against them and they had always tried to realize illegal amount from the drivers and conductors and when the petitioner had not fulfilled their demand they had made complaint after two days' time. Learned counsel for the petitioner also submitted that preliminary inquiry was made by the opposite party No. 3 i.e. Assistant Regional Manager, Bareilly Depo, who was also happened to be appointing and punishing authority. Therefore, he had no right, power or jurisdiction to make preliminary inquiry himself and the petitioner had been denied with fair inquiry.
He has also submitted that no statement was taken from the petitioner but in fact the clerk in the office of the opposite party No. 3 had prepared the statement and the petitioner was compelled to make an endorsement over the said report. He has also indicated certain infirmities in the preparation of chargesheet whereas some portion was typed and some portion of the same was printed and there was no signature of the inquiry officer.
Learned counsel for the petitioner has further made a submission that the petitioner himself has prayed before the inquiry officer to call Sri Sagir Ahmad, Hemraj and M.A. Johari and driver of the bus for asking certain questions and for for recording their statement but in fact they were not called during the inquiry. Leaned counsel for the petitioner further submitted that delinquent employee was entitled to cross examine the witnesses and other officers or employees who were related in the matter. Where as in the present matter, the petitioner was served with chargesheet containing charges that the petitioner tried to usurp the income of UPSRTC and also instigated the passengers against the checking squad. In response he had submitted that the said charges were not supported by any independent witnesses, even the checking squad had not taken any statements from the passengers. Therefore, it may be presumed that the charges were manipulated by the checking squad themselves. He has further submitted that in response to the chargesheet he had categorically stated that he had never allowed anyone to travel without ticket and tickets were in fact made and as such there was no revenue loss, and further submitted that the checking squad had initially given him clearance on the way bill but subsequently changed. He had also indicated that the inquiry was vitiated on the ground that when the petitioner had asked for cross-examination of the witnesses, the same had been denied. Learned counsel for the petitioner has placed reliance to the Regulation 64 (3) of the Regulation 1981, which specifically provides that the delinquent employee shall be entitled to cross-examine the witnesses, but in the present case admittedly petitioner asked for cross examination, but the same had been denied and further, neither any witness nor any evidence were mentioned in the chargesheet and as such the whole inquiry was vitiated on these grounds.
Learned counsel for the UPSRTC had submitted that in most of the cases, it has been held by the Hon'ble Apex Court that if the conductor of the bus is found indulged in corrupt practices, specially carrying passengers without ticket causing financial loss to the corporation, in such cases the conductor/driver are not entitled for any relief and as such should not be retained in service.
Learned counsel for the opposite parties had placed reliance the judgments namely, Inderjit Singh Vs. State of Punjab through Collector and another (2010) 12 SCC, Manoj Kumar Vs. Government of NCT of Delhi and others (2010) 11 SCC 702, South Bengal State Transport Corporation Vs. Ashok Kumar Ghosh and others (2010) 11 SCC 71.
I have heard learned counsel for the parties and perused the record.
In the present matter, the petitioner has joined the Corporation on 01.07.1980 and as per record the conduct and behaviour of the petitioner was up to mark and at no point of time in his career any complaint had been made against him. On the date of occurrence i.e. 11.03.2000, the bus No. 25-5000 was plying between Farrukhabad to Bareilly. The same was checked by checking squad and found that certain persons were travelling without ticket. Admittedly after two days, the complaint was made on 13.03.2000. As per complaint it reveals that 38 persons were found without ticket. It has also been alleged by the checking squad that the petitioner had provoked the passengers against the checking squad and created chaos so that proper checking of the bus could not be ensured. It has also been alleged that the petitioner had pressurized the checking squad to remove the endorsements which were made on the way bill and it had also been alleged that due to this behaviour, the Corporation could also suffer revenue loss.
Surprisingly, in the present matter, no doubt checking squad had levelled very serious charges against the petitioner but the same are unsustainable under the facts and circumstances of the case as enumerated below :-
Firstly, in the present matter admittedly no revenue loss to the Corporation had occurred.
Secondly, the checking squad was consisting of more than three persons, how an individual could provoked the passengers and pressurized the checking squad to remove such endorsement from the way bill.
Thirdly, the checking squad could easily recorded the statement of independent witnesses and the passengers to indicate, whether the petitioner had actually realized the amount towards the tickets and not issued tickets to the passengers.
Fourthly, the checking squad could also record the statement of independent witnesses in the present matter regarding the rowdiness of the petitioner.
Fifthly, the petitioner had specifically asked for cross-examination as per the Regulation 64 (3) of the Regulations of 1981 which gives right to the delinquent employee to cross-examine the witnesses but in the present case, the said right had been denied to the petitioner.
Surprisingly, the aforementioned reasons eventually prove that there were serious lapses in the inquiry process even the petitioner had been denied for cross-examination of the members of the checking squad. Even he had been denied to cross examine the driver, who was the best witness to ascertain the correct facts and true scenario.
In the present matter, admittedly the petitioner had specifically asked from the inquiry officer for the cross-examination of the members of checking squad as well as the driver but in most arbitrary manner, the same had been denied.
As already noticed above, since the charges on which the punishment has been imposed are to be taken as correct, what is now left to be considered and examined is as to whether the punishment imposed was commensurate with the said charges or not.
Learned counsel for both the parties have placed reliance on a large number of judgments. In certain decisions, which shall be dealt with in the foregoing paragraphs, the Courts have either reduced the punishment imposed or set aside the same on the ground that the same was shockingly disproportionate to the charges. However, in certain cases, as have been relied upon by the learned standing counsel, the Apex Court, as well as the High Court, have held that if the finding of fact has been accepted to be correct by the Courts, it should not interfere with the punishment imposed.
Learned counsel for the petitioner has relied upon the judgment passed in State of U.P. Vs. Shatrughan Lal and another, AIR 1998 SC 3038. For ready reference, paragraph Nos. 4, 5, 6, 7, 9 & 10 are reproduced herein below:-
"4. Now, one of the principles of natural justice is that a person against whom an action is proposed to be taken has to be given an opportunity of hearting. this opportunity has to be an effective opportunity and not a mere pretence. In departmental proceedings where charge-sheet is issued and the documents which are proposed to be utilised against that person are indicated in the charge sheet but copies thereof are not supplied to him in spite of his request, and he is, at the same time, called upon to submit his reply, it cannot be said that an effective opportunity to defend was provided to him. (see: Chandrama Tewari vs. Union of India 1987 (Supp.) SCC 518: AIR 1988 SC 177; Kashinath Dikshita vs. Union of India & Ors. 1986 (3) SCC 229: AIR 1986 SC 2118; State of Uttar Pradesh vs. Mohd. Sharif (1982) 2 SCC 376: AIR 1982 SC 937).
5. In High Court of Punjab & Haryana vs. Amrik Singh 1995 (Supp.) 1 SCC 321, it was indicated that the delinquent officer must be supplied copies of documents relied upon in support of the charges. It was further indicated that if the documents are voluminous and copies cannot be supplied, then such officer must be given an opportunity to inspect the same, or else, the principles of natural justice would be violated.
6. Preliminary inquiry which is conducted invariably on the back of the delinquent employee may, often, constitute the whole basis of the charge-sheet. Before a person is, therefore, called upon to submit his reply to the charge sheet, he must, on a request made by him in that behalf, be supplied the copies of the statements of witnesses recorded during the preliminary enquiry particularly if those witnesses are proposed to be examined at the departmental trial. This principle was reiterated in Kashinath Dikshita vs. Union of India & Ors. (1986) 3 SCC 229 (supra), wherein it was also laid down that this lapse would vitiate the departmental proceedings unless it was shown and established as a fact that non-supply of copies of those document in his defence.
7. Applying the above principles to the instant case, it will be seen that the copies of the documents which were indicated in the charge sheet to be relied upon as proof in support of articles of charges were not supplied to the respondent nor was any offer made to him to inspect those documents.
9. This paragraph of the written statement contains an admission of the appellant that copies of the documents specified in the charge sheet were not supplied to the respondent as the respondent had every right to inspect them at any time. This assertion clearly indicates that although it is admitted that the copies of the documents were not supplied to the respondent and although he had the right to inspect those documents, neither were the copies given to him nor were the records made available to him for inspection. If the appellant did not intend to give copies of the documents to the respondent, it should have been indicated to the respondent in writing that he may inspect those documents. Merely saying that the respondent could have inspected the documents at any time is not enough. He has to be informed that the documents, of which the copies were asked for by him may be inspected. The access to record must be assured to him.
10. It has also been found that during the course of the preliminary enquiry, a number of witnesses were examined against the respondent in his absence, and rightly so, as the delinquents are not associated in the preliminary enquiry, and thereafter the charge sheet was drawn up. The copies of those statements, though asked for by the respondent, were not supplied to him. Since there was a failure on the part of the appellant in this regard too, the principles of natural justice were violated and the respondent was not afforded an effective opportunity of hearing, particularly as the appellant failed to establish that non-supply of the copies of statements recorded during preliminary enquiry had not caused any prejudice to the respondent in defending himself. "
Learned counsel for the petitioner has also relied upon the judgment passed in Hardwari Lal. Vs. State of U.P. and others, AIR 2000 SC 277. For ready reference, paragraph Nos. 3 & 5 are reproduced herein below:-
3. Before us the sole ground urged is as to the non-observance of the principles of natural justice in not examining the complainant, Shri Virender Singh, and witness, Jagdish Ram. The Tribunal as well as the High Court have brushed aside the grievance made by the appellant that the non-examination of those two persons has prejudiced his case. Examination of these two witnesses would have revealed as to whether the complaint made by Virender Singh was the best person to speak to its veracity. So also, Jagdish Ram, who had accompanied the appellant to the hospital for medical examination, would have been an important witness to prove the state or the condition of the appellant. We do no think the Tribunal and the High Court were justified in thinking that non-examination of these two persons could not be material. In these circumstances, we are of the view that the High Court and the Tribunal erred in not attaching importance to this contention of the appellant.
5. In the circumstances, we are satisfied that there was no proper enquiry held by the authorities and on this short ground we quash the order of dismissal passed against the appellant by setting aside the order made by the High Court affirming the order of the Tribunal and direct that the appellant be reinstated in service. Considering the fact of long lapse of time before the date of dismissal and reinstatement, and no blame can be pout only on the door of the respondents, we think it appropriate to award 50 per cent of the back salary being payable to the appellant. We thus allow the appeal, filed by the appellant. However, there shall be no order as to costs.
In the case of State of U.P. v. Ramakant Yadav, 2003 (1) AWC 84 (SC) ; 2002 (3) UPLBEC 2799, the Supreme Court reversed the order of the High Court whereby the punishment had been reduced to reinstatement in service on payment of 50% of back wages with a warning to the delinquent, and held that the High Court ought not to have Interfered with the quantum of punishment in the facts of that case. The Supreme Court in the case of State of U.P. v. Ashok Kumar Singh, AIR 1996 SC 736, held that where the employee had absented himself from duty without leave on several occasions, the High Court was not correct in holding that his absence from duty would not amount to such a great charge so as to impose the penalty of dismissal from service.
On the contrary the Apex Court in the case of Ranjit Thakur v. Union of India and Ors., AIR 1987 SC 2386, has held that "the question of the choice and quantum of punishment is within the Jurisdiction and discretion of the Court-Martial. But the sentence has to suit the offence and the offender. It should not be vindictive or unduly harsh. It should not be so disproportionate to the offence as to shock the conscience and amount in itself to conclusive evidence of bias. The doctrine of proportionality, as part of the concept of judicial review, would ensure that even on an aspect which is, otherwise, within the exclusive province of the Court-Marital, if the decision of the Court even as to sentence is an outrageous defiance of logic, then the sentence would not be immune from correction. Irrationality and perversity are recognized grounds of judicial review."
In the case of Union of India and others v. Giriraj Sharma, AIR 1994 SC 215, the Apex Court held that over-staying of leave subsequent to the order of rejection of application for extension of leave could not be considered to be a sever enough charge to warrant punishment of dismissal from service and the same was held to be harsh and disproportionate. A Division Bench of this Court in the case of Harpal Singh v. State Public Services Tribunal, Lucknow and Ors. 2000 (2) AWC 1075 : 2000 (86) FLR 334, held that where it was on account of negligence of the constable of the G.R.P. that one passenger was misbehaved with and was murdered, the same could not be a case of serious misconduct and held that the punishment of dismissal from service was totally disproportionate to the offence and thus directed reinstatement of the employee in service, with half back wages and also ordered that he be given a severe warning. Further, in the case of Alexandar Pal Singh v. Divisional Operating Superintendent, 1987 (2) ATC 922 (SC), the Supreme Court held that ordinarily the Court or Tribunal cannot interfere with the discretion of the punishing authority in imposing particular penalty but this rule has an exception. If the penalty imposed is grossly disproportionate with the misconduct committed, then the Court can interfere. The railway employee on being charged with negligence in not reporting to the railway hospital for treatment was removed from service. The Supreme Court found it fit to interfere with the punishment of removal from service and modified it to withholding of two Increments.
A Division Bench of this Court in the case of Suresh Kumar Tiwari v. D.I.G., P.A.C. and Anr., 2001 (4) AWC 2630, 2002 Lab IC 259, has, while reiterating the view of the Supreme Court, held that the High Court normally does not interfere with the quantum of punishment unless the punishment shocks the conscience of the Court.
In the light of the law laid down by the Apex Court as well as this Court, in my view the broad principle which emerges is that normally, it is the disciplinary authority which should be best left with the duty of imposing the punishment after considering the facts and circumstances of the case. However, it is well settled that in case, if on the admitted facts, the punishment imposed is grossly disproportionate to the offence, which shocks the conscience of the Court, the Court has the power and jurisdiction to interfere with the punishment imposed.
Considering the facts and circumstances of the case, the punishment awarded to the petitioner of dismissal from service is to harsh and totally disproportionate to the charges, for which he had been found guilty. The punishment of dismissal from service are resorted only if there is very grave misconduct. The punishment from dismissal from service imposed on the petitioner is to harsh and is liable to be set-aside.
Learned counsel for the opposite parties has relied various judgments which are fully distinguishable from the present facts and circumstances of the case and same are not applicable in the present matter.
Accordingly, the orders dated 21.04.2003, 21.02.2004 and 25.01.2005 annexed as annexure Nos. 8, 9 and 10 to the writ petition are hereby quashed.
However, it has been averred by the learned counsel for the opposite parties that the petitioner had already attained the age of superannuation, therefore, at this stage, there is no requirement to direct the Corporation with full back wages.
Accordingly, the writ petition is allowed with following directions:-
1. The order impugned order are set aside and findings given by the disciplinary authority are unsustainable and accordingly rejected.
2. The punishment imposed by the appellate authority as well as revisional authority are here been dropped, however, as the punishment is being set aside, reinstatement of the petitioner cannot be made at the stage on account of attaining the age of superannuation. The respondents are directed to pay to the petitioner half of the salary since his removal from Corporation, on the basis of no work and no pay' and further answering respondents are hereby directed to calculate the retiral dues and other benefits of the petitioner since his retirement and the entire arrears are to be paid within two months' time from the date of production of a certified copy of this order to the competent authority.
Order Date :- 26.9.2014 Jaswant (M.C. Tripathi, J.) Judgment has been delivered in terms of Chapter VII Sub Rule (3) of Rule 1 of the High Court Rules.