U.P.S.R.T.C. vs Indrapal Kori And Others
2019 Latest Caselaw 5480 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Reserved 
 
Court No.18
 

 

 
Case :- WRIT - C No. - 21448 of 1999
 

 
Petitioner :- U.P.S.R.T.C.
 
Respondent :- Indrapal Kori And Others
 
Counsel for Petitioner :- Samir Sharma,Sunil Kumar Misra
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble J.J. Munir,J.

Heard Sri Sunil Kumar Mishra, learned counsel for the petitioner. No one appears on behalf of the respondent-workman.

This writ petition is directed against the judgment and award passed by the Presiding Officer, Industrial Tribunal-III, Kanpur dated 27.11.1998 passed in Adjudication Case No.37 of 1994 deciding an industrial dispute between the petitioner-U.P. State Road Transport Corporation and their workman, Indrapal Kori.

The petitioner-U.P. State Road Transport Corporation, who are represented by their Regional Manager, Kanpur, are hereinafter referred to as the 'Employers' whereas Indrapal Kori, a bus conductor, who is the contesting respondent, is hereinafter referred to as the 'workman'. The workman is admittedly a bus conductor in the service of the employers, posted in the Kanpur Region of the employer's establishment. According to the employer's case, on 27.08.1990, the workman was detailed to operate bus bearing No.UHJ-9515, plying on the Asoha-Mornwa route. This bus was checked by a checking team, who found out of the total of 75 passengers on board, 23 to be travelling without ticket. This bus was again checked the same day at Unnao, where it was found that out of the 32 passengers on board, 19 were travelling without ticket. The same bus was stopped for a third check the same day on the same route, and again, some serious irregularities were detected.

A report in the matter was submitted to the employers by the Checking Teams, who upon being satisfied that a case of misconduct worth initiating disciplinary proceedings against the workman was made out, issued a charge-sheet dated 6.10.1999.

The workman submitted a reply to the charge-sheet and in due course, a departmental inquiry was convened. According to the employers, full opportunity was afforded to the workman to defend himself. Witnesses on behalf of the employers, who were produced at the inquiry were offered to the workman for cross-examination. The workman was also given opportunity to produce evidence in his defence. The proceedings of the inquiry being concluded, an enquiry report was submitted to the effect that charges of serious misconduct stood proved against the workman. On the basis of the aforesaid report of the departmental inquiry, a show-cause notice dated 29.8.1992, along with a copy of the inquiry report was served upon the workman by the employers requiring him to show-cause as to why he may not be reduced in the time-scale to his basic salary for three years with cumulative effect, and further, the balance of his salary for the period of suspension be not forfeited. It is the Employer's further case that the Appointing Authority considered the entire material on record and vide an order dated 31.10.1992, the workman was punished with reduction in time-scale to his basic salary for three years with cumulative effect, and further, the balance of salary for the period of suspension was ordered to be forfeited.

Aggrieved by the said order, the workman raised an industrial dispute under Section 4K of the U.P. Industrial Disputes Act, and hereinafter referred to as the 'Act', which was referred to the Industrial Tribunal for adjudication vide Government Order dated 25.10.1994. The reference was made in the following terms (translated into English from Hindi Vernacular)

"Whether the punishment awarded by the employers to their workman Indrapal Kori, conductor, Fatehpur Depot, vide punishment order dated 31.10.1992, is invalid and improper. If yes, to what benefit/relief is the concerned workman entitled."

A written statement each was filed on behalf of the employers and the workman, with a rejoinder statement each, filed by the workman and the employers, as well.

According to the written statement filed by the workman, he was employed as a Conductor, posted at the Fatehpur Depot. He was suspended pending inquiry on 6.10.1990 and preceding that on 6.9.1990, a charge-sheet dated 6.9.1990 was issued that was served upon him on 11.10.1990. According to the charge-sheet, amongst others, the workman was charged in terms that on 18.06.1990, when the bus operated by him was inspected, 17 passengers without ticket were found on board, but an attempt to make that entry on the waybill was prevented by him, which resulted in loss of revenue to the employers. He was charged further in terms that he did not act according to his obligation as a Conductor, carrying a quintal of freight and not issuing tickets, despite realizing fare from the passengers, amongst others. It was pleaded in the written statement that prior to issue of the charge-sheet in question, no preliminary inquiry was made by the employers and further that along with the charge-sheet, necessary documents were not supplied to the workman. It was further pleaded that the workman's defence offered at the inquiry was not considered and doing a mere show of consideration of the workman's case, an inquiry report was submitted on the basis of which, the order of punishment dated 31.10.1992 was passed whereby salary for the period of suspension was forfeited and the workman was reduced to his basic pay for a period of three years with cumulative effect. Together with this order of punishment, the workman was transferred, which has been castigated as illegal. The workman sought relief of invalidation of the order of punishment and payment of his salary for the period of suspension, after deducting the subsistence allowance, besides award of costs.

The employers in their written statement, raised a preliminary objection that the workman had raised an industrial dispute through a Union, which was not registered. It was urged that since the dispute was not raised through a registered Union, the order of reference is bad. That apart, it was pleaded that the workman is still functioning on the post of a Conductor, but his conduct is not satisfactory. It was also urged that on 27.08.1990, while the workman was operating the bus bearing Registration No.YHJ-9515 on the Asoha-Moranwa route, a checking team intercepted the bus and found on board some 75 passengers, of whom 23 were travelling ticket-less. Lateron, the same bus when checked at Unnao, and was found ferrying 32 passengers of whom 19 were without ticket. The same vehicle was checked a third time on the Unnao-Lucknow route where it was found carrying one quintal of freight, comprising plastic raincoats (the word employed in Hindi is "Barsati" and whether it is a raincoat or some other kind of protection gear from rains, is not clear). It is on the basis of these three separate instances of checking done on the same day, at different points, relating to the same vehicle, operated by the workman that he was charge-sheeted on 6.10.1990. The workman was given adequate opportunity to dispel the charges at the inquiry held before Sri B.C. Jain, who was a duly appointed Inquiry Officer. The inquiry was done strictly in adherence to the principles of natural justice, where full opportunity was afforded to both parties to lead evidence before the Inquiry Officer. The Inquiry Officer submitted his report after a careful perusal of the evidence on record. A show-cause notice was issued to the workman on 29.08.1992, mentioning the proposed punishment. In answer to that, the workman submitted his reply bereft of any further documents or evidence. The reply was found not satisfactory. The Disciplinary Authority proceeded to pass an order dated 31.10.1992, punishing the workman in the terms already indicated. It was pleaded that the punishment awarded is lawful and just. It was also pleaded that in accordance with sub-rule (5) of Rule 63 of the Service Rules of 1981, that govern the service conditions of the workman, an employee can be reduced to a lower scale on the same post. It was also pleaded that the workman is not entitled to any relief. It was pointed out further that the workman did not prefer any appeal from the order of punishment, as provided under the Service Rules. It was, in addition, claimed that in case the Tribunal finds that the domestic inquiry held has not been conducted in accordance with the Rules of natural justice or it is otherwise unfair, the employers may be given an opportunity to lead evidence in support of the charges and establish them by evidence before the Tribunal.

The parties led evidence before the Tribunal in support of their respective cases. The workman in his evidence reiterated facts to the effect that he was given a charge-sheet relating to the three separate instances of checking of the bus operated by him, where in two cases, violation in the form of some ticket-less passengers was found, and in one case, freight being illegally carried was alleged. He said in his evidence that he demanded documents related to the three charges, which in turn related to the three instances of checking but the same were not supplied; instead, some other documents were supplied. He further said that out of the three checking Officers involved, only two appeared before the domestic inquiry and no charge was found proved against him by the Inquiry Officer, who submitted an inquiry report exonerating him. He further said in his evidence before the Tribunal that the bus had stoppages at short distances where passengers were boarding and de-boarding on account of which, he was unable to make entries in the waybill. So far as the charge relating to freight being carried illegally was concerned, the checking Officers did not mount the bus and check what was placed in the luggage carrier at the top. They instead, made a guess work of it and mentioned all that they have said in their report. He also said that at that time the bus that he was operating did not have any freight on board. He also said in his evidence before the Tribunal that he had been awarded three punishments: one was forfeiture of his salary for the period of suspension beyond the subsistence allowance; the second was reduction to the basic pay-scale with cumulative effect; and, the third was a penal transfer. He had specifically demanded documents through an application and when those were not provided, he had sent applications marked as Exhibit D4 and D5 that were reminders for the purpose. There is still another document marked as Exhibit D6, through which he applied but was not given opportunity of hearing. He complained verbally to the Inquiry Officer about all these matters. All that he was given by way of documents on which the employers relied, was his order of suspension. He specifically said that no other document was given to him. He also said in his evidence that the officers carrying out the checking demanded of him illegal gratification, which he says he did not and could not pay, particularly so, as he does not do anything illegal while operating his bus. He also stated specifically in his evidence that these 23 and 17 passengers found on board, are passengers about whom entry in the waybill had not yet been made by him. So far as the freight/luggage is concerned, he had no such luggage being ferried by him.

The Tribunal has recorded it for a fact that so far as the employers are concerned, an Assistant Traffic Inspector proved some of the documents whereas the complainant is the Traffic Superintendent. The other documents were proved by the Office Superintendent, who said in his evidence that the Assistant Traffic Inspector is never detailed to duty alone. He further stated that it is incorrect to say that the 17 tickets that had been detached from their binding, were not taken into possession by the checking party. It was further stated that the checking teams were told by passengers that the Conductor had charged them, but had not issued tickets. He, however, stated that no written complaint was made or any note to that effect made by the checking officer, as to why entry regarding 17 passengers was not made on the waybill. About Exhibit D3, he said that he has no information. The Office Assistant said in his cross-examination that the inquiry was not held before him, and he was not in a position to say who testified in the domestic inquiry. The documentary evidence, marked as Exhibit E7 to E15, were proved by these witnesses.

At the hearing of this petition, the respondent-workman has not appeared despite sufficient service being effected. This Court has perused the impugned award and carefully considered the submission of Sri Sunil Mishra, in assail of it. One of the submissions of Sri Sunil Mishra, on which much emphasis has been laid is to the effect that the Tribunal could not have exercised powers under Section 6(2-A), in the present case, and make an award setting aside part of the punishment alone, substituting it by a lesser punishment. In this connection, he submits that the power to substitute a lesser punishment by the Labour Court or Tribunal, while making an award is available under Section 6(2-A) of the Act, in the event punishment of discharge or dismissal has been ordered. In the instant case, since punishment of discharge or dismissal has not been ordered, the Tribunal could not have set aside the punishment order and substituted it by lesser punishment, in terms of its award. To this extent, Sri Mishra is right in his submission that a lesser punishment could not be awarded by the Tribunal, unless the punishment awarded by the employers was discharge or dismissal from service. The power to substitute a lesser punishment by the Tribunal under Section 6(2-A) of the Act is there alone with regard to punishment of discharge or dismissal under sub-section (2-A) of Section 6 of the Act, where in the opinion of the Labour Court or Tribunal, that punishment is disproportionate to what circumstances of the case require. Here is not that case, since the punishment awarded is one of reduction in time-scale to basic pay with cumulative effect.

However, that would not deprive the Tribunal of its jurisdiction to pronounce upon the validity of the award. It is also submitted by Sri Mishra that the award of the Tribunal holding the departmental inquiry to be not fair and proper is an incomplete disposition of the matter; for if the Tribunal was of opinion that the inquiry was not fair and there was denial of opportunity, it ought to have given opportunity to parties, including the employers, to lead evidence in support of the charges before the Tribunal, which it ought to have determined on merits. It is submitted that this demand was specifically made before the Tribunal but fell on deaf ears. A perusal of the impugned award shows that the Tribunal has recorded a finding that the process of inquiry is far from fair, particularly so as documents that are relevant to the charges were not supplied to the workman and further that the checking officer, who is a Traffic Superintendent was not examined before the Inquiry Officer or before the Tribunal on the pretext that he had retired from service. The Tribunal has also said that no evidence has been brought on record to show that the Checking Officer who had made the complaint, that is to say, the concerned Traffic Superintendent has indeed retired from service. The Tribunal beyond this finding has said that there is provision under Rule 63 of the Service Rules to impose major and minor punishment, but there is no provision for the reduction of a workman in time scale and, therefore, the punishment awarded is not in accordance with the Rules. The Tribunal has relied a decision of the Supreme Court in Kulwant Singh Gill Vs. State of Punjab, 1990 (61) FLR 635. This Court may say at once that the said decision is hardly relevant to the controversy involved here, as rightly submitted by Sri Mishra.

This Court on a wholesome consideration of the matter is of opinion that on two counts the Tribunal found the inquiry to be unfair and one conducted in violation of principles of nature justice. This was because documents relevant to the charges were not supplied and the complainant, who was a Traffic Superintendent was not examined, either during the domestic inquiry or before the Tribunal in support of the charges, on ground that he had retired from service. This Court is of the clear opinion that the fact that an employee has retired from service would not absolve the employer of their liability to examine the complaint of the case at the domestic inquiry to prove charges against the workman. This the Tribunal has found not to have been done. Certainly on both these counts, the Tribunal cannot be said to be wrong that the inquiry was not fair and one held in accordance with the principles of natural justice. The fact that these two features of the inquiry have been found to be deficient by the Tribunal, leading to the inquiry being procedurally flawed and one in violation of principles of natural justice is a finding of fact which has not been demonstrated by the employers to be palpably wrong or one suffering from an error apparent on the face of the record. It is otherwise a finding of fact recorded by the Tribunal on a perusal of record and taking a reasonable view of the evidence. This Court has noticed the fact that the employers have not annexed any document relating to the inquiry, or the manner in which it has proceeded so as to enable this Court to verify whether findings of the Tribunal regarding violation of principles of natural justice or procedural unfairness are in any manner palpably wrong, manifestly illegal, or suffer from an error apparent. There is no document to cross-check those findings of the Tribunal. This Court, is, therefore, left with no option but to uphold that finding of the Tribunal that says that the inquiry was not procedurally fair but flawed and conducted in violation of principles of natural justice, for the reasons indicated hereinabove.

But this conclusion could not have entitled the Tribunal to modify the award and substitute a lesser punishment than that awarded by the departmental authorities, invoking powers under Section 6(2-A) of the Act. The Tribunal finding it to be a case of denial of opportunity ought to have proceeded to record evidence itself, requiring the employers to prove charges before it by leading appropriate evidence. It could then have held the case against the workman proved or concluded to the contrary, and set aside the award. This is what ought to have been done by the Tribunal, and this is what this Court thinks the Tribunal ought to do.

In the face of the circumstances that there is no petition at the instance of the workman challenging that part of the award by which punishment awarded by the employers has been maintained in part by the Tribunal, this Court cannot pass judgment finally deciding the industrial dispute. In addition, in the absence of a counter affidavit by the workman, this Court is all the more handicapped in ascertaining many essential facts and drawing its independent conclusion based on evidence. It is already remarked that there is absolutely no evidence before this Court except the impugned award passed by the Tribunal. Under the circumstances, this Court thinks that this matter must go back to the Tribunal with a direction that it should decide the matter afresh within three months next in accordance with law, after affording opportunity of hearing to parties. It is made clear that the Tribunal, while disposing of the matter afresh will permit the employers to lead evidence in support of the charges, and the workman, to defend himself on those charges before the Tribunal. It is also provided that the Tribunal may hold the award to be illegal and improper or legally sound and proper. In case it concludes in favour of the workman, the Tribunal may do anything or pass any kind of orders within the four corners of law permissible, but the Tribunal will not substitute the punishment awarded by the Tribunal, though, it may, set aside the award or uphold the same, in accordance with the evidence that is forthcoming on record.

In the result, this petition succeeds and is allowed in part.

The impugned judgment and award passed by the Presiding Officer, Industrial Tribunal-III, Kanpur dated 27.11.1998 is hereby quashed and the matter is remanded to the Tribunal to decide Adjudication Case No.37 of 1994 afresh, after permitting parties to lead evidence and pass fresh orders within three months next from the date of receipt of a certified copy of this order, in accordance with law, and whatever has been said in this judgment.

There shall be no order as to costs.

Order Date :- 08.07.2019

NSC