Ram Sagar Chaudhary vs State Of U.P. And Others
2013 Latest Caselaw 6365 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

										        RESERVE
 
Court No. - 27								AFR
 

 
Case :- WRIT - A No. - 21782 of 2007
 

 
Petitioner :- Ram Sagar Chaudhary
 
Respondent :- State Of U.P. And Others
 
Counsel for Petitioner :- Sachchidanand Srivastava,Anand Kumar Srivastava,Arun Kumar Srivastava,S.N.Singh
 
Counsel for Respondent :- C.S.C.,L.D.Rajbhar,R.K. Singh
 

 
Hon'ble B. Amit Sthalekar,J.

The petitioner in this writ petition is challenging the orders dated 26.2.2007 rejecting his revision petition, the appellate order dated 2.12.2006 rejecting his appeal and the order dated 7.2.2006 passed by the disciplinary authority removing him from service.

Briefly stated, the case of the petitioner is that while he was on duty as Conductor and taking the UPSRTC Bus No. UP 50 F/0022 from Deoria to Ballia on 10.1.2004 some villagers on the road stopped the Bus and three persons alongwith one pregnant lady whose condition was stated to be serious boarded the Bus and requested the petitioner to take them and the lady as her condition was serious. The petitioner permitted these persons to board the Bus and soon after the Bus was on its way, it was stopped by one Gorakhnath Pandey, Assistant Transport Inspector in order to conduct a spot check. As a result of spot checking the villagers got agitated and snatched the way bill from the Inspector which he had taken from the petitioner and gave it back to the petitioner. The villagers are also stated to have got agitated and started putting pressure on the Inspector and disturbing him in the conduct of his inspection and preventing him from writing any note on the way bill.

A charge sheet was issued to the petitioner on 5.2.2004 as per the provisions of Regulation 66 of the U.P. State Road Transport Corporation Employees Service Regulation 1981. The petitioner was also placed under suspension in terms of the provisions of Regulation 67 of the Regulation 1981. In the charge sheet it was alleged that the said Bus was on its schedule route i.e. Deoria-Ballia and was plying between Navalpur to Kundauni on 10.1.2004 at about 15.40 hours when it was stopped and on checking it was found that there were 68 passengers in the Bus out of which 18 passengers were travelling without ticket. The Ticket Inspector thereupon took the B.T. Book and on ticket number DDA-6305728 made a composite calculation of 18 x 4 = Rs. 72/- and also charged Rs. 500/- as compounding charge from the petitioner. It was alleged in the charge sheet that when the Inspector stopped the Bus for checking the villagers got agitated and the way bill which was taken by the Inspector from the petitioner was snatched from him and handed over back to the petitioner and the villagers became agitated and prevented the Inspector from making inspection or writing any entries in the way bill.

The petitioner submitted his reply to the charge sheet, copy of which has been filed as Annexure-3 to the writ petition in which he denied the allegations that he was illegally carrying 18 passengers between Navalpur to Kundauri. The petitioner submitted that infact three persons alongwith one pregnant lady had entered the Bus and these persons had stated that the condition of the lady was serious and, therefore, the petitioner allowed them to board the Bus and he was told by these people to move the Bus. The reply submitted by the petitioner not being found satisfactory a full fledged departmental enquiry was held and thereafter the enquiry officer submitted his report on 30.4.2005. The enquiry officer has upheld the charges against the petitioner and has referred to the report of one Shiv Lal checking clerk (Booking Clerk) as well as the report submitted by Shri Gorakhnath Pandey and Shri Ram Janam Prasad, Assistant Inspector, Deoria Depot. The statement of Assistant Regional Manager Ram Deo as well as checking clerk were recorded and thereafter the case was fixed for 16.8.204, 25.9.2004, 29.10.2004, 1.12.2004, 30.12.2004 and 29.1.2005. On 29.1.2005 Ram Deo Assistant Regional Manager appeared in the enquiry as well as Shri Shiv Lal, the Senior Clerk (checking clerk) and their statements were recorded and thereafter the enquiry officer recorded a finding that after 18.3.2004 as also on the last date fixed namely, 29.1.2005, the petitioner did not appear in the enquiry. Accordingly, the enquiry officer has held the charges against the petitioner proved on the basis of the statements of the witnesses and the documentary evidence on record.

Thereafter a show cause notice dated 26.2.2005, Annexure-11 to the writ petition was issued to the petitioner to submit his reply to the enquiry report. The petitioner submitted his reply on 22.2.2005, Annexure-12 to the writ petition and thereafter the disciplinary authority after considering the same has proceeded to pass the impugned order dated 7.2.2006 removing the petitioner from service. Aggrieved the petitioner submitted a memo of appeal dated Nil Annexure-14 to the writ petition, which was considered by the appellate authority who by the impugned order dated 2.12.2006 has rejected the appeal of the petitioner. The petitioner thereafter moved a departmental revision on 19.12.2006 which too has been rejected by the competent authority by the other impugned order dated 26.2.2007. Hence the present writ petition.

I have heard Shri Pankaj Kumar Shukla, learned counsel for the petitioner and Shri L.D. Rajbhar, learned counsel appearing for the respondents.

Shri Pankaj Kumar Shukla, learned counsel for the petitioner has submitted that the entire story set up by the respondents that on spot inspection 68 passengers were found to be travelling in the Bus out of which 18 were travelling without ticket is a false and concocted story and infact only three passengers had actually stopped the Bus and alongwith them there was one lady who was stated to be pregnant and these people insisted that the condition of the lady is serious and, therefore, the petitioner permitted these persons to board the Bus. Through out his submissions, learned counsel for the petitioner kept repeating that the condition of the pregnant lady was serious and she was lying on the floor of the Bus. So far as the allegation that during spot inspection he instigated the villagers to snatch the way bill from the checking inspector, the only submission of the learned counsel was that no Bus passenger was produced in evidence to verify the allegation that it was the petitioner who had instigated the passengers. However, it has not been denied that 18 excess passengers created a raucous in the Bus and had snatched the way bill from the Inspector and handed it over to the petitioner and prevented the checking inspector from making any remarks on the way bill.

The second point urged by the learned counsel for the petitioner is that the Bus had been stopped to board a pregnant woman who was made to lie on the floor of the Bus. It is rather surprising that if the capacity of the Bus was 50 persons as admitted by the learned counsel for the petitioner and 68 persons were found during spot inspection which means that there were 18 persons travelling in the Bus and that too without ticket, how was it possible that a pregnant woman in an overcrowded bus would be lying on the floor of the Bus without being crushed under the feet of the agitating passengers who were creating a me-lee. Infact, in paragraph 12 of the writ petition, the petitioner has admitted that 56 tickets had been sold by him which means that the excess persons who were permitted to board the Bus had been taken in by the petitioner without issuing them any ticket and that the petitioner had collected money from these persons but not issued any tickets to them, thus pocketing that money which was legitimately government revenue.

It has further been insisted by learned counsel for the petitioner and also stated in paragraphs 14 to 18 of the writ petition that the enquiry was fixed on 16.8.2004, 14.9.2004, 25.9.2004, 7.10.2004, 29.10.2004, 11.11.2004, 1.12.2004 17.12.2004, 30.12.2004, 12.1.2005 and 29.1.2005 but on these dates the departmental authorities did not appear in the enquiry. In paragraph 19 of the writ petition it has been stated that though the last date of enquiry was fixed for 29.1.2005 but on 28.1.2005 he was deputed to take the Bus No. UP 903 from Ballia to Gorakhpur, a distance of more than 300 kms. as a result of which he could return to Ballia only on 29.1.2005 at about 16.15 hours as a result of which he could not attend the enquiry on 29.1.2005 and on that date the enquiry was closed. In support of this contention, the petitioner has filed as Annexure-9 to the writ petition, the duty chart for 28.1.2005. However, a perusal of the said letter, photo copy of which has also been provided by the learned counsel for the petitioner during the course of the argument and which has now been attached to Annexure-9 and treated as part of the record it is seen that there is no signature or seal of any authority authorising the petitioner to take the said Bus from Ballia to Gorakhpur. Even the photo copy of the alleged authority memo does not show the signature of any authority or his seal authorising the petitioner to take the Bus from Ballia to Gorakhpur on 28.1.2005.

In reply to paras 14 and 18 of the writ petition, the respondents in their counter affidavit have stated that the petitioner did not participate in the enquiry and he was issued notices fixing the following dates, i.e. 28.7.2004, 10.8.2004, 25.9.2004, 29.10.2004, 1.12.2004, 30.12.2004 and 29.1.2005. On 29.1.2005 Sri Ram Dev, Assistant Regional Manager UPSRTC and the Senior Checking Clerk appeared and their statements were recorded. The petitioner did not appear. Thereafter by Letter No.927 dated 10.3.2005 the petitioner was informed of the next date as 26.3.2005 and was called upon to produce any evidence as he may like to file in his support. The petitioner instead by his letter/application dated 13.3.2005 informed the Enquiry Officer to proceed in the matter as he had nothing more to say. Thus the enquiry Officer has recorded a finding that the petitioner did not appear on any of the dates in the enquiry. The charges against the petitioner have been established on the basis of the documentary evidence on record and the statements of witnesses and the charges against the petitioner stood proved.

Sri Pankaj Kumar Shukla, learned counsel for the petitioner next submitted that though some departmental witnesses had appeared in the enquiry and their statements have also been recorded but the same had been done behind the back of the petitioner and the petitioner had not been given any opportunity of cross-examining those witnesses and therefore, the entire proceedings were vitiated and violative of principles of natural justice. However, from the facts already recorded herein above, it is seen that the petitioner himself did not participate in the enquiry on any of the dates in-spite of notices having been issued to him to appear and therefore, in such circumstances the Enquiry Officer had no other option but to proceed with the enquiry and examine the departmental witnesses and thereafter close the enquiry. In such a situation the petition cannot be allowed to complain that he was not given any opportunity of cross-examining the witnesses or there was any violation of principles of natural justice.

It has next been submitted by Sri Pankaj Kumar Shukla that the petitioner has been inflicted with double punishment, namely, that at the time of spot inspection Rs. 72 at the rate of Rs. 4 per ticket for each of the excess passengers, i.e. 18x4=Rs. 72 had been recovered by the Checking Inspector and a further sum of Rs. 500/- was also charged from the petitioner by way of compounding charge and, therefore, the subsequent penalty order dated 7.2.2006 removing the petitioner from service amounted to be a double punishment. It appears, that this submission has been made only to be rejected as the compounding charges cannot be said to be a penalty and in any case the order of removal was passed against the petitioner on 7.2.2006 after giving the petitioner full and reasonable opportunity of defending himself after issuing a charge sheet and holding a departmental enquiry as per Regulations, 1981, therefore, it cannot be said that the petitioner has suffered double jeopardy.

Lastly, the learned counsel for the petitioner submitted that in the facts and circumstances of the case the charge of removal from service was highly excessive and disproportionate to the charges levelled against the petitioner. This submission has no force inasmuch as the charge against the petitioner was of carrying excess passengers in the Bus without issuing any ticket to them and of having charged the passengers the value of the ticket without issuing the ticket thereby pocketing the money for himself which amounted to misappropriation and loss to the Government revenue. This is a very serious charge and therefore, the petitioner cannot be heard to say that the penalty imposed is disproportionate to the charge levelled.

The Supreme Court in the case reported in 2006 (12) SCC 570, Managing Director the North East Karnataka Road Transport Corporation Vs. K Maruti, which was also a case of a Conductor carrying passengers without issuing any tickets to them has held as follows:

" The learned counsel for the appellant, at the time of hearing, placed strong reliance on the two decisions of this Court, one reported in 2002 (10) SCC 330 (Regional Manager, RSRTC versus Ghanshyam Sharma), which was also a case of bus conductor carrying passengers without issuing tickets. This Court, in the above case, held that carrying the passengers without tickets amounts to dishonesty or grave negligence and for such misconduct punishment of removal from service is justified. This Court also further observed that the Labour Court was not justified in directing the reinstatement with continuity of service but without back wages. This Court has also relied upon a judgment reported in 2001 (2) SCC 574 (Karnataka SRTC vs. B.S. Hullikatti). In the said judgment, this Court 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 has also observed that in cases like the present, orders of dismissal should not be set aside. The learned counsel for the appellant also cited judgment reported in 2006 (6) SCC 187 (Divisional Controller, N.E.K.R.T.C. vs. H. Amaresh). In this case, this Court was considering the case of misappropriation of a small amount of State Road Transport Corporation's fund by a conductor and held it a grave act of misconduct, which resulted in financial loss to the Corporation. This Court also held that punishment of dismissal from service awarded by the Disciplinary Authority did not call for any interference by the Labour Court or the High Court and hence the order of reinstatement passed by the High Court was set aside. This Court also in a catena of decisions held that the Tribunal should not sit in appeal over the decision of any employer unless there exists a statutory provision in this behalf. This Court also observed that the High Court gets jurisdiction to interfere with the punishment in the exercise of its jurisdiction under Article 226 of the Constitution only when it finds that the punishment imposed is shockingly disproportionate to the charges proved.

In the instant case, the position held by the employee (conductor) is one of faith and trust. A conductor holds the post of trust. A person guilty of breach of trust should be imposed punishment of removal from service. The respondent's conduct in not collecting the requisite fare at the designated place from persons who had travelled were in violation of various regulations contained in the provisions of the Corporation C & D Regulations, 1971. '

The learned counsel for the petitioner has placed reliance on the following judgements of this Court:

1.2012 (5) AWC 4892 (Kailash Kumar Misra Vs. State Public Service Tribunal and others;

2.2013 (2) ADJ 346 (UPSRTC Vs. Mahar Singh and others; and

3.2012 (1) ADJ 29 (Shant Devo Tripathi Vs. Dy. General Manager.

4.2011 (8) ADJ 819 (Narendra Kumar Pandey Vs. State Bank of India)

Each one of these judgments is on its own facts and have no application to the facts of the present case.

Thus on a conspectus of facts and the law laid down by the Supreme Court, in my opinion the enquiry proceeding against the petitioner cannot be said to be vitiated. The petitioner was given full and reasonable opportunity of defending himself which he did not avail. In the enquiry he has been found guilty of carrying excess passengers without issuing any ticket to them and pocketing the ticket money. As per the law laid down by the Supreme Court in the case of K. Maruti (supra) on similar facts the loss caused to Government revenue is a serious misconduct and the penalty of removal from service is the most appropriate penalty.

In the present case also the petitioner has been removed from service on the charges against him being established. I, therefore, do not find any illegality or infirmity with the enquiry proceedings or with the order of the disciplinary authority or the appellate authority or the revisional authority.

The writ petition fails and is accordingly dismissed.

Dated: 8th October, 2013.

o.k.