Tulsi Ram Mishra vs State Of U.P. And 5 Ors.
2017 Latest Caselaw 4972 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Reserved
 

 
Court No. - 26
 

 
Case :- WRIT - A No. - 2248 of 2015
 

 
Petitioner :- Tulsi Ram Mishra
 
Respondent :- State Of U.P. And 5 Others
 
Counsel for Petitioner :- Ashish Kumar Ojha,Radha Kant Ojha
 
Counsel for Respondent :- C.S.C.,Sunil Kumar Mishra, V.C. Dixit
 

 
Hon'ble Mrs. Sangeeta Chandra,J.

1. Heard Mr Radha Kant Ojha, learned Senior Advocate assisted by Mr Ashish Kumar Ojha, learned counsel for the petitioner and Mr Sunil Kumar Mishra, learned counsel for the respondents-UPSRTC.

2. This writ petition has been filed by the petitioner challenging the order of removal from service dated 30.08.2014 passed by the Regional Manager, UPSRTC, Varanasi and the order dated 20.11.2014 passed by the Deputy General Manager (Karmik), UPSRTC, Lucknow rejecting the petitioner's appeal. A further prayer has been made for issuance of a direction in the nature of mandamus commanding the respondents not to interfere in the functioning of the petitioner as Conductor and also make payment of salary and other allowances to him as and when they fall due.

3. The petitioner was initially appointed as Conductor on temporary basis in the year 1981-82 in UPSRTC, and thereafter was confirmed and has been posted in District Jaunpur and was usually given route of Jaunpur to Lucknow or Kanpur. On 5.01.20111, the petitioner reported for duty at the depot in Jaunpur at 8.00 a.m. but the allotment Clerk did not allot any duty to him on the usual route i.e. Jaunpur to Lucknow or Kanpur, and he was made to sit till 5.00 p.m. In the meantime, several other contractual Conductors were asked to accompany buses from Jaunpur to Lucknow or to Kanpur. At around 5.00 p.m., the allotment Clerk told the petitioner that he had to accompany the bus going from Jaunpur to Allahabad. The petitioner protested against what he considered to be arbitrary and high handed behaviour of the Clerk, but nevertheless took the bus from Jaunpur Depot to Allahabad and came back to Jaunpur Depot and deposited the whole collection realised from the passengers to the Cash In-charge.

4. On 17.01.2011 when the petitioner reported for duty at Jaunpur Depot, he was served the copy of the suspension order dated 15.01.2011 on grounds of misbehaviour with allotment Clerk and Station Incharge. A copy of the charge sheet was served upon the petitioner thereafter on 08.02.2011. The main charge in the charge sheet related to misconduct of the petitioner in entering into an altercation/argument with the allotment Clerk on 15.01.2011 and refusing to go to Allahabad and also abusing the allotment Clerk and threatening him with dire consequences.

5. The petitioner submitted his reply on 25.02.2011 denying the charges of abusing the allotment Clerk or extending any threat. In his reply the petitioner also expressed his desire to cross examine the allotment Clerk, Om Prakash Singh, (the complainant) and requested for production of one Chandra Shekhar Shukla, the Station Incharge as Eye-witness/Defence witness.

6. In the regular disciplinary enquiry conducted by the Enquiry Officer, Om Prakash Singh was summoned, but the eye witness, Chandra Shekhar Singh was not summoned. The Enquiry Officer submitted a report that the charge of entering into the argument with Om Prakash Singh, the allotment Clerk, had been found proved, but other charges relating to non performance of his duty and not taking the bus from Jaunpur to Allahabad were not found proved. Therefore, the Enquiry Officer reported that petitioner could be held to be only partially guilty.

7. In the Enquiry Report, the Enquiry Officer has referred to the fact that the petitioner had demanded production of Chandra Shekhar Shukla as eye witness, but since Chandra Shekhar Shukla had already submitted a report against the delinquent employee, which has been appended to the enquiry file separately, no need was felt by the Enquiry Officer to summon Chandra Shekhar Shukla.

8. An un-dated Enquiry Report was sent to the petitioner along with show cause notice, wherein the Appointing Authority, the Regional Manager give a tentative finding on 9.6.2014 of differing from the finding of the Enquiry Officer of partial guilt. The Appointing Authority instead had found the petitioner guilty of all charges. The petitioner replied to the show cause notice on 7.7.2014, wherein he had denied all charges levelled against him and had also explained his conduct on 15.1.2011 saying that the petitioner had been made sit from 8.00 a.m. to 5.00 p.m. at Jaunpur Depot by the allotment Clerk, whereas contractual Conductors had been asked accompanied the buses to Lucknow or Kanpur. At the end of the day at 5.00 p.m., the petitioner was asked to accompany the bus from Jaunpur to Allahabad, and he had protested against high handed behaviour, but never abused the allotment Clerk nor had he used any foul language nor threatened the allotment Clerk with dire consequences. Also, Chandra Shekhar Shukla proposed by the petitioner to be produced as defence witness and as eye witness of the whole incident had not been examined by the Enquiry Officer. In the reply to the show cause notice, the petitioner also tendered unconditional apology and prayed that his services may not be dispensed with and he may be allowed to continue to serve the Corporation.

9. In the impugned order of removal from service dated 30.8.2014, the Appointing Authority found the petitioner guilty of all charges as mentioned in the charge sheet, and although he referred to the reply submitted by the petitioner to the show cause notice, he nevertheless imposed the penalty of removal from service.

10. The petitioner, thereafter, filed a writ petition before this Court challenging the order of removal, namely, Writ Petition No. 51197 of 2014, which was disposed of by this Court on 23.9.2014 with a direction to the petitioner to approach the Appellate Authority. The petitioner preferred an appeal before respondent No. 3 on 3.10.2014, which was rejected on 20.11.2014 by the Appellate Authority.

11. Aggrieved by the orders passed by the Respondents No. 2 and 3, the petitioner has approached this Court in this writ petition.

12. Mr. Radha Kant Ojha, learned Senior Advocate assisted by Shri Ashish Kumar Ojha, learned counsel appearing for the petitioner has pointed out from the un-dated Enquiry Report that Chandra Shekhar Shukla, the eye witness of the whole incident, which took place at 5.00 p.m. at Jaunpur Depot of the Corporation on 15.1.2011 was never examined, but in the Enquiry Report, the Enquiry Officer says that statement of Chandra Shekhar Shukla was taken separately and was appended to the file separately. No copy of such statement of Chandra Shekhar Shukla was ever made available to the petitioner.

13. Learned counsel for the petitioner has also pointed out from the Enquiry Report that the allotment Clerk, Om Prakash Singh had admitted that the petitioner took the bus from Jaunpur to Allahabad. The Driver of the bus, Kamlesh Singh also was not examined. It has been pointed out that the Enquiry Officer himself stated that the allegation that the petitioner was keen to go to Lucknow or to Kanpur was not proved. The Enquiry Officer had found the allegation of misbehaviour, however, to be proved on the ground that the petitioner could not produce any evidence to deny the charges.

14. It has been submitted by the learned counsel for the petitioner that it is apparent that the enquiry was vitiated, the defence witness/eye witness proposed to be examined by the petitioner was never examined before him. With regard to alleged statement made by Chandra Shekhar Shukla, which was appended separately to the Enquiry Report, the copy of which was not given to the petitioner, the same could not have been relied upon by the Enquiry Officer to substantiate the finding of guilt of misbeheaviour with the allotment Clerk. The complainant, Om Prakash Singh, who was allotment Clerk had reiterated the contents of his complaint before the Enquiry Officer and the petitioner had denied the same. There were no other witnesses examined, for example, Chandra Shekhar Shukla, the Station Incharge and Kamlesh Singh, Driver of the bus U.P. 70 AR 0886. When the Enquiry Officer had to choose between the statement of the complainant and the statement of the delinquent employee, the Enquiry Officer chose the statement of the complainant on the ground that the petitioner could not produce any evidence to deny the charge of misbehaviour and hence it was found to be proved.

15. Learned counsel for the petitioner has argued that the conduct of the enquiry was vitiated. Any other documentary evidence, which the respondents proposed to rely upon for example Chandra Shekhar Shukla's statement, should have been given to the petitioner. It has also been argued that the burden of proof was wrongly shifted on the petitioner/delinquent employee to disprove the charge without that departmental witnesses discharging the initial burden.

16. Having heard the learned counsel for the petitioner, this Court enquired from Mr. Sunil Kumar Mishra, learned counsel for the Corporation whether Chandra Shekhar Shukla, the eye witness whose statement was being relied upon by the respondent had ever been examined. Mr. Sunil Kumar Mishra fairly admits that the statement of Chandra Shekhar Shukla was never given to the petitioner. Chandra Shekhar Shukla was also not examined orally at any stage.

17. Learned counsel for the petitioner on the basis of show cause notice issued to the petitioner by the Appointing Authority dated 07.07.2014 had also pointed out that although the Enquiry Officer had found the petitioner only partially guilty, the Appointing Authority had proposed the major penalty of removal from service on the ground that all the charges had been proved against the petitioner including the charge of not taking the bus in question from Jaunpur to Allahabad and not performing his duty as Conductor, whereas the evidence had come on record and was not denied even by the complainant, that the petitioner had indeed accompanied the bus from Jaunpur Depot to Allahabad, although there was some altercation between the delinquent employee and the allotment Clerk regarding high handed behaviour of making the petitioner sit idle from 8.00 a.m. till 5.00 p.m.

18. It has also been submitted by the learned counsel for the petitioner that the petitioner had already rendered more than 22 years of service in the Corporation as a regular Conductor. Even if, some altercation had taken place between the allotment Clerk and the petitioner, it could not be said to be such a serious misconduct as would entail the punishment of removal from service. In the appeal filed by the petitioner before respondent No. 2, the petitioner had clearly stated that the enquiry was vitiated because the only eye witness, Chandra Shekhar Shukla was not examined and punishment order was disproportionate to the alleged misconduct. The petitioner had also tendered unconditional apology, which should have been considered sympathetically by the Appellate Authority and the punishment given by the Appellate Authority ought to have been reduced in its severity.

19. Mr. Sunil Kumar Mishra on the other hand has relied upon counter affidavit of the Corporation and has reiterated the contents of the punishment order and the appellate order that the statement of Chandra Shekhar Shukla was taken by the Enquiry Officer, although the copy of the same was not given to the petitioner.

20. Having the considered the rival submissions, this Court is reminded of judgment rendered by Hon'ble the Supreme Court in the case of Kumaon Mandal Vikas Nigam Ltd. vs. Girja Shankar Pant and Others 2001(1) SCC 182, wherein Hon'ble the Supreme Court in paragraph 1 and 2 has observed thus:-

"1. Since the decision of this Court in Kraipak case (A.K. Kraipak v. Union of India, 1969 (2) SCC 262) one golden rule that stands firmly established is that the doctrine of natural is not only to secure justice but to prevent miscarriage of justice. What, however, does this doctrine exactly mean? Lord Reid about four decades ago in Ridge V. Baldwin, 1964 AC 40: 1963 (2) All ER 66 (HL) very succinctly described it as not being capable of exact definition but what a reasonable man would read as a fair procedure in particular circumstances- who then is a reasonable man - the man on the Clapham omnibus? In India, however, a reasonable man cannot but be a common man similarly placed. The effort of Lord Reid in Ridge v. Baldwin in not attributing a definite meaning to the doctrine but attributing it to be representing a fair procedure still holds good even in the millennium year. As a matter of fact this Court in the case of Keshav Mills Co. Ltd. vs. Union of India 1973 (1) SCC 380 upon reliance on the attributes of the doctrine as above-stated as below:

" 8. The second question, however, as to what are the principles of natural justice that should regulate an administrative act or order is a much more difficult one to answer. We do not think it either feasible or even desirable to lay down any fixed or rigorous yardstick in this manner. The concept of natural justice cannot be put into a strait-jacket. It is futile, therefore, to look for definitions or standards of natural justice from various decisions and then try to apply them to the facts of any given case. The only essential point that has to be kept in mind in all cases s that the person concerned should have a reasonable opportunity of presenting his case and that the administrative authority concerned should act fairly, impartially and reasonably. Where administrative officers are concerned, the duty is not so much to act judicially as to act fairly. See, for instance, the observations of Lord Parker in H.K. (an infant), In re. 1967 (2) QB 617: 1967 (2) WLR 692. It only means that such measure of natural justice should be applied as was described by Lord Reid in Ridge vs. Baldwin case as 'insusceptible of exact definition but what a reasonable man would regard as a fair procedure in particular circumstances'. However, even the application of the concept of fair play requires real flexibility. Everything will depend on the actual facts and circumstances of a case. As Tucker, L.J. observed in Russell v. Duke of Norflok, 1949 (1) All ER 109 (CA).

'The requirements of natural justice must depend on the circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the subject-matter that is being dealt with and so forth.' "

2. While it is true that over the years there has been a steady refinement as regards this particular doctrine, but no attempt has been made and if we may say so, cannot be made to define the doctrine in a specific manner or method. Strait-jacket formula cannot be made applicable but compliance with the doctrine is solely dependent upon the facts and circumstances of each case. The totality of the situation ought to be taken note of and if on examination of such totality, it comes to light that the executive action suffers from the vice of non-compliance with the doctrine, the law courts in that event ought to set right the wrong inflicted upon the person concerned and to do so would be a plain exercise of judicial power. As a matter of fact the doctrine is now termed as a synonym of fairness in the concept of justice and stands as the most-accepted methodology of a governmental action."

21. After considering the facts of the case, the Hon'ble Supreme Court has further observed in paragraphs 19 to 21 thus:

"19. While it is true that in a departmental proceeding, the disciplinary authority is the sole judge of facts and the High Court may not interfere with the factual findings but the availability of judicial review even in the case of departmental proceedings cannot be doubted. Judicial review of administrative action is feasible and the same has its application to its fullest extent in even departmental proceedings where it is found that the recorded findings are based on no evidence or the findings are totally perverse or legally untenable. The adequacy or inadequacy of evidence is not permitted but in the event of there being a finding which otherwise shocks the judicial conscience of the court, it is a well-nigh impossibility to decry availability of judicial review at the instance of an affected person. The observations as above, however, do find some support from the decision of this Court in the case of Apparel Export Promotion Council vs A.K. Chopra, 1999(1)SCC 759.

20. It is a fundamental requirement of law that the doctrine of natural justice be complied with and the same has, as a matter of fact, turned out to be an integral part of administrative jurisprudence of this country. The judicial process itself embrances a fair and reasonable opportunity to defend though, however, we may hasten to add that the same is dependent upon the facts and circumstances of each individual case. The facts in the matter under consideration is singularly singular. The entire chain of events smacks of some personal clash and adaptation of a method unknown to law in hottest of haste; this is however, apart from the issue of bias which would be presently dealt with hereinafter. It is on this context, the observations of this Court in the case of Sayeedudr Rehman v. State of Bihar, 1973 (3) SCC 333 seems to be rather apposite. This Court observed:

"The omission of express requirement of fair hearing in the rules or other source of power claimed for reconsidering the order, dated 22.04.1960, is supplied by the rule of justice which is considered as an integral part of our judicial process which also governs quasi-judicial authorities when deciding controversial points affecting rights of parties."

21. Incidentally, Hidayatullah, C.J. in Channabasappa Basappa Happali v. State of Mysore, 1971(1) SCC 1, recorded the need of compliance with certain requirements in a departmental enquiry-at an enquiry facts have to be proved and the person proceeded against must have an opportunity to cross-examine witnesses and to give his own version or explanation about the evidence on which he is charged and to lead his defence- on this state of law, a simple question arises in the contextual facts. Has this been complied with? The answer however on the factual score is an emphatic "no".

22. In the case of Narinder Mohan Arya vs. United India Insurance Co. Ltd. and others; 2006(4) SCC 713, the Hon'ble Supreme Court has observed regarding the duty of the Enquiry Officer that ordinarily an Enquiry Officer was entitled to draw his own inference, and so long as the inference drawn by him was supported by some materials on record, it was well settled that a Court of judicial review would not interfere therewith, but it had found that the Enquriy Officer had examined departmental witnesses and had noticed that there was no direct oral or documentary evidence or eye witness to prove the charge, and that the Management witness had not been able to give direct account as to the conduct of the delinquent employee with regard to the alleged misconduct, Yet the Enquiry Officer had found the delinquent employee guilty of the charges of misconduct and the Appointing Authority had passed the punishment order thereafter. In the appeal filed by the respondent therein the Appellate Authority also had not applied its mind clearly to the question raised by the delinquent employee and rejected the appeal summarily.

23. The Hon'ble Supreme Court relied upon the judgment rendered by it in State of Assam and another vs. Mahendra Kumar Das and others; 1970(1)SCC 709 to hold that the Enquiry Officer cannot be permitted to collect any material from outside sources during the conduct of the enquiry and further placed reliance upon the judgment in the case of K.L. Tripathi vs. State of Bank of India and others; 1984(1) SCC 43 to observe that exercise of discretionary power involve two elements (i) Objective and (ii) Subjective and existence of the exercise of an objective element is a condition precedent for exercise of the subjective element. Suspicion and presumption cannot take the place of proof even in a domestic enquiry and held that the Writ Court is entitled to interfere in the findings of the facts so recorded by the Authority in certain circumstances.

24. The Hon'ble Supreme Court in Narinder Mohan Arya (supra) in paragraph 28 has observed thus:

" 28. Yet again in Sher Bahadur vs. Union of India and others, 2000 (7) SCC 142, this Court observed:

" It may be observed that the expression " sufficiency of evidence" postulates existence of some evidence which links the charged officer with the misconduct alleged against him. Evidence, however, voluminous it may be, which is neither relevant in a broad sense nor establishes any nexus between the alleged misconduct and the charged officer, is no evidence in law. The mere fact that the enquiry officer has noted in his report, "in view of oral, documentary and circumstantial evidence as adduced in the enquiry", would not in principle satisfy the rule of sufficiency of evidence. Though, the disciplinary authority cited one witness Shri R.A. Vashist, ex. CVI/Northen Railway, New Delhi, in support of the charges, he was not examined. Regarding documentary evidence, Ext. P-1 referred to in the enquiry report and adverted to by the High Court, is the order of appointment of the appellant, which is a neutral fact. The enquiry officer examined the the charged but nothing is elicited to connect him with the charge. The statement of the appellant recorded by the enquiry officer shows no more than his working ealier to his re-engagement during the period between May 1978 and November, 1979 in different phases. Indeed, his statement was not relied upon by the enquiry officer. The finding of the enquiry officer that in view of the oral, documentary and circumstantial evidence, the charge against the appellant for securing the fraudulent appointment letter duly signed by the said APO (Const.) was proved, is , in the light of the above discussion, erroneous. In our view, this is clearly a case of finding the appellant guilty of charge without having any evidence to link the appellant with the alleged misconduct. The High Court did not consider this aspect in its proper perspective as such the judgment and order of the High Court and the order of the disciplinary authority, under challenge, cannot be sustained, they are accordingly set aside."

25. Relying upon the judgment in Apparel Export Promotion Council vs. A.K. Chopra 1999(1)SCC 759, the Hon'ble Supreme Court has observed in paragraphs 34, 35 and 36 thus:

"34. In Apparel Export Promotion Council s. A.K. Chopra 1999(1)SCC 759, which has heavily been relied upon by Mr Gupta, this Court stated:

"The High Court appears to have overlooked the settled position that in departmental proceedings, the disciplinary authority is the sole judge of facts and in case an appeal is presented to the appellate authority, the appellate authority has also the power/and jurisdiction to re-appreciate the evidence and come to its own conclusion, on facts, being the sole fact-finding authority." (emphasis supplied)

35. The appellate authority, therefore, could not ignore to exercise the said power.

36. The order of appellate authority demonstrates total non-application of mind. The appellate authority, when the rules require application of mind on several factors and serious contentions have been raised, was bound to assign reasons so as enable the writ court to ascertain as to whether he had applied his mind to the relevant factors which the statute requires him to do. The expression "consider" is of some significance. In the context of the rules, the appellate authority was required to see as to whether (i) the procedure laid down in the rules was complied with; (ii) the Enquiry Officer was justified in arriving at the finding that the delinquent officer was guilty of the misconduct alleged against him; and (iii) whether penalty imposed by the disciplinary authority was excessive."

26. In the case of the petitioner, it has come out from the record that only the complainant's statement was relied upon as against the statement of the petitioner. The statement of other eye witness Chandra Shekhar Shukla was relied upon by the Enquiry Officer, without giving copy of the same to the delinquent employee. The punishment imposed by the Appointing Authority was after differing from the finding recorded by the Enquiry Officer of partial guilt. It was, therefore, required from the Appointing Authority to re-examine the case in detail and give opportunity of hearing to the petitioner, when it had come out from the record of the enquiry as well as from the reply to the show cause notice, that the eye witness to the incident Chandra Shekhar Shukla, the Station Incharge and Kamlesh Singh, the Driver had not been examined infront of the punishment.

27. The Appointing Authority failed to discharge its duty. Not only that the Enquiry Officer, but the Appellate Authority also failed to discharge their duties at fairly. In the appeal filed by the petitioner, respondent No. 2, the Appellate Authority also should have examined the fairness of the whole disciplinary proceedings and also the proportionality of the petitioner.

28. In view of what has been stated herein above, this Court is of the considered opinion that the punishment order dated 30.8.2014 passed by respondent No. 3 and the Appellate order dated 23.9.2014 passed by respondent No. 2 are liable to be set aside and hence are set aside.

29. The matter is remanded back to respondent No. 3 for examination of the whole issue of alleged misconduct from the stage of service of charge sheet. The Enquiry Officer shall examine the complainant and the delinquent employee and Chandra Shekhar Shukla, the Station Incharge and Kamlesh Singh, the Driver of the bus, and give opportunity of cross examination to the delinquent employee, and then submit a fresh Enquiry Report. The Appointing Authority shall thereafter issue show cause notice and give reasonable opportunity of hearing to the petitioner to present his case before finalizing the disciplinary proceedings.

30. The whole exercise shall be completed within a period of six months from the date a certified copy of this order is produced before the Appointing Authority.

31. The writ petition is allowed to this extent.

Order Date :- 05.10.2017

Sazia