Ajit Kumar Srivastava vs State Of U.P. Thru ...
2019 Latest Caselaw 4348 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

									A.F.R.        
 
						  Reserved on: 12.12.2018
 
						Delivered on: 10.05.2019 
 
Court No. - 24
 
Case :- SERVICE SINGLE No. - 16302 of 2016
 
Petitioner :- Ajit Kumar Srivastava
 
Respondent :- State Of U.P. Thru Prin.Secy.Transport Govt.Of Up Lko.& Ors.
 
Counsel for Petitioner :- Jayshanker Shukla,Anubhuti Agnihotri,L.P.Misra,Naveen Shukla,Rajedra Pratap Singh
 
Counsel for Respondent :- C.S.C.,Anuj Kudesia,C.S. Pandey
 

 
Hon'ble Irshad Ali,J.

(1) Heard Sri L.P. Misra and Sri Jayshanker Shukla, learned counsel for the petitioner, learned Standing counsel on behalf of the respondent No.1 and to Sri Anuj Kudesia, learned counsel for the respondent Nos.2 to 5.

(2) Factual matrix of the case is that the petitioner was appointed as Conductor in the respondent department vide appointment letter dated 2.12.1989.

(3) Vide letter dated 23.4.1991, issued by the Manager (Personnel), U.P. State Road Transport Corporation, Lucknow, the petitioner was transferred to Kumaun Region (now in the State of Uttarakhand) and was posted at Ranikhet Region.

(4) The service of the petitioner was regularized as Conductor vide order dated 2.6.1992 issued by the Regional Manager, U.P. State Road Transport Corporation, Kumaun Region while he was posted at Haldwani Depot. The petitioner was again transferred from Haldwani Depot of Kumaun Region to Sultanpur Depot of Faizabad Region, Faizabad vide order dated 27.10.1994 and since then, he is continuously discharging his duties in the corporation.

(5) On 7.9.2014, the petitioner was with the bus No. U.P.-44-T/5050 and plying from Sultanpur to Gonda along with the driver Mohd. Muslim. When the bus was plying from Faizabad Depot to Gonda Depot with 9 passengers, at Devkali Chauraha, 3 students of Nandani Nagar Mahavidyalaya entered into the bus. The petitioner asked them to purchase the tickets from Devkali Chauraha up to Nandani Nagar Mahavidyalaya, the students were not ready to pay the fare, in spite of insistence by the petitioner to purchase the ticket. In the meantime, one B.R. Gautam, Traffic Superintendent, State Flying Squad of U.P.S.R.T.C., Lucknow stopped the bus and started checking. The checking squad found that out of total 12 passengers, three students were without ticket while the rest 9 passengers were having valid tickets issued by the petitioner.

(6) The checking squad charged ticket amount from the three students of Rs.90/- each along with penalty of Rs.810/-, total Rs.900/- and a report in this regard was submitted on 19.9.2014 to the Regional Manager.

(7) The petitioner was issued a charge-sheet on 8.12.2014 levelling six charges enclosing the report submitted by the Traffic Superintendent on 19.9.2014.

(8) The petitioner submitted his reply to the charge-sheet dated 8.12.2014 on 20.12.2014, whereby the allegation levelled was denied. In the reply, the petitioner stated that students of Nandani Nagar Mahavidyalaya, which is an educational institution run and managed by Sri Brij Bhushan Sharan Singh, Member of Parliament are in habit not to purchase the tickets and on insistence to purchase tickets, the drivers and conductors of the buses are misbehaved and this fact was in full knowledge of the opposite parties and to the district administration.

(9) The Enquiry Officer submitted enquiry report on 13.1.2015 and thereafter, a show-cause notice dated 27.3.2015 along with the enquiry report was given to the petitioner to show-cause within 7 days as to why the petitioner may not be removed from service and seizure of his entire dues including his gratuity.

(10) The petitioner submitted his reply on 7.4.2015 to the show-cause notice dated 27.3.2015 before the opposite party No.5 detailing all the facts and circumstances as also stating that the petitioner has not committed any offence. The disciplinary authority passed an order on 18.6.2015, imposing major penalty of removal of the petitioner from service with the punishment of seizure of entire dues including gratuity.

(11) Against the impugned order dated 18.6.2015 passed by the opposite party No.5, the petitioner filed an appeal on 26.6.2015 before the opposite party No.4, which has also been rejected vide order dated 21.8.2015.

(12) Against the order of removal and the order passed in appeal, the petitioner preferred revision before the opposite party No.2 on 8.9.2015, which has also been rejected vide order dated 15.3.2016.

(13) The petitioner has filed this petition challenging the order of removal dated 18.6.2015 passed by the opposite party No5, the order passed in appeal dated 21.8.2015 and the order passed in revision dated 15.3.2016.

(14) Assailing the impugned orders, submission of learned counsel for the petitioner is that under U.P. State Road Transport Corporation Employees (Other than Officers) Service Regulations, 1981, there is no provision of seizure of entire dues of any employee including the gratuity, thus, his submission is that it clearly demonstrates the non application of mind on the part of the opposite parties while passing the impugned orders.

(15) His next submission is that there is no misconduct on the part of the petitioner neither any financial loss has occurred to the corporation, the entire fare including the penalty had already been realized from the three students found without tickets, therefore, submission is that the impugned orders are illegal and are not sustainable in law.

(16) He next submitted that the major penalty imposed to the petitioner for removal from service is not commensurated to the allegation levelled against the petitioner as there was no fault on the part of the petitioner. He was insisting the students to purchase the tickets and in the meantime, the checking squad inspected the bus and found three students without ticket.

(17) He next submitted that the department is fully aware about the fact that the students on the route in question from Faizabad to Gonda of Nandani Nagar Mahavidyalaya are in habit of not purchasing the tickets and on being insisted to purchase the tickets, the drivers and conductors of the buses are being misbehaved and beaten apart from damaging the buses due to which no buses were operating on the route for long time, therefore, submission of learned counsel for the petitioner is that order of removal passed by awarding major penalty to the petitioner is not justifiable in law.

(18) He further submitted that the opposite parties have not considered while awarding the major penalty to the petitioner that the entire service record of the petitioner since the year 1989 remain unblemished and the petitioner always performed his duties with full sincerity and dedication and he was not involved in any misconduct or corruption.

(19) Learned counsel for the petitioner next submitted that the students who were found without ticket were not examined by the Enquiry Officer while awarding the major penalty to the petitioner, thus, his submission is that the impugned order vitiates in law.

(20) During the course of submission, learned counsel for the petitioner invited attention of this Court on the statement of fact made in paragraph 21 of the writ petition, wherein he has placed reliance upon a circular dated 28.2.1996, which empowers the employees of the corporation in the event of being without ticket, the names, addresses and statements of the passengers who are found to be without ticket be necessarily recorded, but in the case of the petitioner, no names, addresses and statements of the passengers who were found to be without ticket have been recorded. The reply to the statement of fact made in the aforesaid paragraph has been given in paragraph 23 of the counter affidavit, wherein the same has not been denied.

(21) He further invited attention of this Court to paragraph 13 of the writ petition in regard to the statement of fact that in Nandani Nagar Mahavidyalaya, which is an institution run and managed by Sri Brij Bhushan Sharan Singh, Member of Parliament, the students are in habit of not purchasing the tickets and on being insisted to purchase tickets, drivers and conductors of the buses are misbehaved and beaten apart from damaging the buses and the same statement of fact has also not been denied in paragraph 6 of the counter affidavit.

(22) Last submission of learned counsel for the petitioner is that the petitioner has completed more than 26 years in service and in the entire service career, there was no charge against the petitioner of misconduct, therefore, imposing major penalty to him is very harsh.

(23) In support of his submission, learned counsel for the petitioner placed reliance upon a judgment in the case of U.P. State Road Transport Corporation & others Vs. Mahesh Kumar Mishra & others; (2000) 3 SCC 450. The relevant are paragraph 6, 7, 8, 9, 10, 11, which are quoted below:

"6. It was in the background of these circumstances that the High Court exercised its discretion under Article 226 of the Constitution and interfered with the quantum of punishment inflicted by the Disciplinary Authority. It may be that the order of dismissal was held to be valid and proper by the U.P. State Public Services Tribunal but the Tribunal also overlooked the fact that though sufficient evidence could have been collected at the spot to indicate that the passengers to whom tickets were issued by the respondent had boarded the Bus at the "High Court" and not at "Zero Road" but this was not done. It was a Bus plied in the City itself and, therefore, the passengers, who were available in the Bus, being local passengers, could have been approached at the spot for stating whether they had boarded the Bus at the "High Court" or at "Zero Road". Learned counsel for the appellants has placed reliance upon an unreported decision of this Court in Civil Appeal No. 9754 of 1995, arising out of SLP(C) No. 1960 of 1994 (U.P. State Road Transport Corporation & Anr. v. Om Prakash Pandey), in which the order of the High Court, by which interference was made with the punishment.inflicted upon the delinquent employee of the Corporation, was set aside. This case is clearly distinguish-able on the ground that a number of passengers were allowed to travel without tickets and, therefore, the misconduct imputed to the employee was serious. This is not the case here as the respondent had issued tickets to all the passengers, who were found travelling in the Bus, but the dispute was only with regard to the spot or place at which they had boarded the Bus. To put it differently, the dispute was whether they had boarded the Bus at "Zero Road" or at the "High Court". In these circumstances, the High Court was justified in interfering with the quantum of punishment.

7. A Three-Judge Bench of this Court in B.C. Chaturvedi v. Union of India & Ors., [1995] 6 SCC 749, laid down as under :-

"A review of the above legal position would establish that the disciplinary authority, and on appeal the appellate authority, being fact-finding authorities have exclusive power to consider the evidence with a view to maintain discipline. They are invested with the discretion to impose appropriate punishment keeping in view the magnitude or gravity of the misconduct. The High Court/Tribunal, while exercising the power of judicial review, cannot normally substitute its own conclusion on penalty and impose some other penalty. If the punishment imposed by the disciplinary authority or the appellate authority, shocks the conscience of the High Court/ Tribunal, it would appropriately mould the relief, either directing the disciplinary/appellate authority to reconsider the penalty imposed, or to shorten the litigation, it may itself, in exceptional and rare cases, impose appropriate punishment with cogent reasons in sup-port thereof."

8. This will show that not only this Court but also the High Court can interfere with the punishment inflicted upon the delinquent employee if, that penalty, shocks the conscience of the Court. The law, therefore, is not, as contended by the learned counsel for the appellants that the High Court can, in no circumstance, interfere with the quantum of punishment imposed upon a delinquent employee after disciplinary proceedings.

9. Another Three-Judge Bench of this Court in Colour-Chem Ltd. v. Alaspurkar and Others, [1998] 3 SCC 192, has also laid down the same proposition and held that if the punishment imposed is shockingly disproportionate to the charges held proved against the employee, it will be open to the Court to interfere.

10. As pointed out earlier, the order of the High Court though extremely brief, must have been based on overall consideration of the facts of the case and it must have exercised its jurisdiction only when it was shocked to notice that though all the passengers had been issued tickets, the only dispute was with regard to the point at which they had boarded the Bus for which the punishment of dismissal from service was highly disproportionate.

11. We have already noticed above that instead of charging a fare of Rs. 1.80, the respondent had charged a fare of Rs. 1.50 from the passengers. While the appellants maintained that the passengers had boarded the Bus at the "High Court" and were to alight at "Manauri", the respondent contended that the passengers had boarded the Bus at "Zero Road" and were to get down at "Manauri" and, therefore, he had rightly charged Rs. 1.50 from those passen-gers. This fact could have been established beyond doubt if any of those passengers was examined at the domestic enquiry, or the Transport Inspector, who checked the Bus, could have recorded their statement at the spot. This was not done and the reliance was placed only upon the report of the Transport Inspector which was signed by the respondent also. It was not a case where the passengers were allowed to travel without tickets so that the amount of fare charged from the passengers could be pocketed by him."

(24) On the other hand, learned Standing counsel and Sri Anuj Kudesia, learned Advocate representing U.P.S.R.T.C. submitted that there is no illegality in the impugned orders. The claim setup by the petitioner was duly considered and on the basis of material on record, the order of removal was passed with the seizure of his entire dues including his gratuity, therefore, their submission is that the impugned orders do not suffer from any infirmity or illegality and are just and valid orders.

(25) Sri Anuj Kudesia, learned Advocate representing U.P.S.R.T.C. placed reliance upon the judgments rendered in the following cases:

(i) Regional Manager, RSRTC Vs. Ghanshyam Sharma; (2002) 10 SCC 330

(ii) Regional Manager, Rajasthan State Road Transport Corporation Vs. Sohan Lal; (2004) 8 SCC 218

(iii) Divisional Controller, KSRTC (NWKRTC) Vs. A.T. Mane; (2005) 3 SCC 254

(iv) Uttaranchal Transport Corporation Vs. Sanjay Kumar Nautiyal; (2008) 12 SCC 131

(v) Divisional Manager, Rajasthan State Road Transport Corporation Vs. Kamruddin; (2009) 7 SCC 552

(26) After Having heard the rival contentions of the learned counsel for the parties, I perused the material on record and the law report relied upon by learned counsel for the parties.

(27) On perusal of the material on record, it is established that the students who were found to be without ticket were not examined by the Enquiry Officer, therefore, there is violation of the circular of the department. The students were forced to deposit the value of the ticket along with the penalty, which was deposited by them, therefore, there is no monetary loss on the part of the department.

(28) It has further been established that the petitioner is having unblemished career of 26 years of service. While conducting the enquiry, the disciplinary authority has nowhere considered this aspect of the matter.

(29) In the case of U.P. State Road Transport Corporation & others Vs. Mahesh Kumar Mishra & others (Supra), the circular of the department was considered and the Hon'ble Supreme Court has recorded following finding in paragraph 12, which is being quoted below:-

"12. Under these circumstances, we do not agree with the contention of the counsel for the appellants, that the High Court should not have interfered with the quantum of punishment inflicted upon the respondent. The appeal is, therefore, dismissed but without any order as to costs."

(30) On perusal of the above referred judgment, similar is the matter of the petitioner also. Here in the present case, the students who were found to be without ticket were not examined by the Enquiry Officer nor by the disciplinary authority. Merely on the basis of the report of the Traffic Superintendent major penalty against the petitioner has been awarded.

(31) The judgment relied upon by Sri Anuj Kudesia, learned Advocate is in regard to the fact that wherein one passenger was found to be without ticket and upon consideration of the facts and circumstances of the case, it was found that full fledged procedure was adopted while conducting the enquiry and thereafter, the Supreme Court has held that for the quantum of punishment and establishing charges to be proved against an employee, no interference should be made by the courts. The relevant paragraph of the judgments relied upon by Sri Anuj Kudesia, learned Advocate are being quoted below:-

(i) In the case of Regional Manager, RSRTC Vs. Ghanshyam Sharma (Supra), relevant are paragraph 4 and 5, which are being quoted below:-

"4. This Court in Karnataka SRTC v. B.S. Hullikatti 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 was firmly of the opinion that in cases like the present, orders of dismissal should not be set aside.

5. Furthermore, we agree with the observations of the SIngle Judge in the present case that the Labour Court was not justified in interfering with the punishment of dismissal. Though under Section 11-A the Labour Court has jurisdiction and powers to interfere with the quantum of punishment, however the discretion has to be used judiciously. When the main duty or function of the conductor is to issue tickets and collect fare and then deposit the same with the Road Transport Corporation and when a conductor fails to do so, then it will be misplaced sympathy to order his reinstatement instead of dismissal."

(ii) In the case of Regional Manager, Rajasthan State Road Transport Corporation Vs. Sohan Lal (Supra), relevant are paragraph 10 and 11, which are being quoted below:-

"10. We notice from the finding of the Industrial Tribunal that the respondent-workman had indulged in misconduct which has not only led to monetary loss to the Corporation but the Corporation has also lost confidence in the said workman. Therefore, to continue such an employee in the employment of the Corporation by virtue of a judicial order, in our opinion, is an act of misplaced sympathy which can find no foundation in law or in equity. The finding that the workman has committed the misconduct in question of not issuing tickets to passengers is a finding of fact arrived at by the Tribunal after taking into consideration the evidence recorded therein. This finding was affirmed by the learned Single Judge and the High Court has not set aside the finding. Therefore, the question of moulding the relief on the facts of this case did not arise at all. The offer of the respondent to forego the back wages in lieu of his being re-instated is not an offer to be taken into consideration by the court unless and until the finding of the tribunal on misconduct was set aside and having perused the records including the order of the tribunal, we are satisfied that this is not one of those cases in which there was room for setting aside such a finding.

11. Assuming for argument sake that the High Court by the impugned order proceeded on the basis that though the misconduct is proved the punishment was disproportionate and it is on that basis that the impugned order is made, even then we are unable to agree with the order of the Appellate Bench of the High Court because it is not the normal jurisdiction of the superior courts to interfere with the quantum of sentence unless the said sentence is wholly disproportionate to the misconduct proved. No such finding has been recorded by the Appellate Bench in the impugned order. Since the misconduct proved is one of dishonesty, the quantum of loss is immaterial, it is the loss of confidence that matters. In such a situation if the Tribunal chooses to uphold the order of dismissal and refuse to interfere with such termination and the learned single Judge of the High Court agreed with the said order of the Tribunal, then Appellate Bench ought not to have interfered with the quantum of sentence. Having perused the facts of the case we are in agreement with the finding of the Tribunal as well as learned single Judge, hence, we are of the considered opinion that the Appellate Bench fell in error in interfering with the orders of the courts below merely on the basis of offer made by the appellant before it."

(iii) In the case of Divisional Controller, KSRTC (NWKRTC) Vs. A.T. Mane (Supra), relevant is paragraph 12, which is being quoted below:-

"12. Coming to the question of quantum of punishment, one should bear in mind the fact that it is not the amount of money misappropriated that becomes a primary factor for awarding punishment, on the contrary, it is the loss of confidence which is the primary factor to be taken into consideration. In our opinion, when a person is found guilty of misappropriating corporation's fund, there is nothing wrong in the corporation losing confidence or faith in such a person and awarding a punishment of dismissal."

(iv) In the case of Uttaranchal Transport Corporation Vs. Sanjay Kumar Nautiyal (Supra), relevant are paragraph 12, 13 and 14 which are being quoted below:-

"12. Before the High Court primary stand of the appellant was that in view of the proved mis-conduct of respondent the punishment awarded was fully justified and the Labour Court should not have interfered with the punishment. The High Court did not accept the stand. It noted that the amount involved was meager and therefore the punishment awarded was dis-proportionate. However, the High Court held that the respondent shall not be paid any back wages but other punishments awarded were maintained.

13. In support of the appeal, learned counsel for the appellant submitted that the Labour Court and the High Court had unnecessarily given consideration to the amount involved without appreciating the fact that the conductor holds a post of trust and therefore the punishment of removal from service as awarded cannot be considered dis-proportionate.

14. It is submitted that order of the High Court has been passed without appreciating the fact that termination of service is very appropriate to the seriousness of charges levied against the respondent in view of fraud and misappropriation of public money by the respondent clearly proved by the surprise checking team as well. The station in charge and the court below have also held respondent to be guilty of fraud and mis-appropriation of public money and the charges levied on respondent were clearly proved after proper enquiry."

(v) In the case of Divisional Manager, Rajasthan State Road Transport Corporation Vs. Kamruddin (Supra), relevant is paragraph 18 which is being quoted below:-

"18. The question with regard to imposition of appropriate punishment upon a conductor of a bus belonging to a corporation constituted under the Road Transport Corporation Act, 1950 came up for consideration before this Court in Karnataka State Road Transport Corporation vs. B.S. Hullikatti [(2001) 2 SCC 574], wherein it was held:

"5. On the facts as found by the Labour Court and the High Court, it is evident that there was a short-charging of the fare by the respondent from as many as 35 passengers. We are informed that the respondent had been in service as a Conductor for nearly 22 years. It is difficult to believe that he did not know what was the correct fare which was to be charged. Furthermore, the appellant had during the disciplinary proceedings

taken into account the fact that the respondent had been found guilty for as many as 36 times on different dates. Be that as it may, the principle of res ipsa loquitur, namely, the facts speak for themselves, is clearly applicable in the instant case. Charging 50 paise per ticket less from as many as 35 passengers could only be to get financial benefit by the Conductor. This act was either dishonest or was so grossly negligent that the respondent was not fit to be retained as a Conductor because such action or inaction of his is bound to result in financial loss to the appellant-Corporation.

6. It is misplaced sympathy by the Labour Courts in such cases when on checking it is found that the Bus Conductors have either not issued tickets to a large number of passengers, though they should have, or have issued tickets of a lower denomination knowing fully well the correct fare to be charged. It is the responsibility of the Bus Conductors to collect the correct fare from the passengers and deposit the same with the Company. They act in a fiduciary capacity and it would be a case of gross misconduct if knowingly they do not collect any fare or the correct amount of fare."

(32) On perusal of the judgments relied upon by the learned counsel for the respondents, there was no case that the circular issued by the department was not considered while concluding the disciplinary proceeding against the employee. Here in the present case, it has been admitted by the respondents that the circular issued by the department was not followed and the students who were found to be without ticket were examined in the disciplinary proceedings. Once the very basis of the disciplinary proceeding initiated against the petitioner was not examined in a proper manner, by taking statement of the students who were found to be without ticket, the charge against the petitioner would not have been established.

(33) It was the case of the petitioner that in spite of repeated insistence to the students to take ticket, they were pressurizing the petitioner and the petitioner was threatened for dire consequences.

(34) It has also not been taken into consideration that the petitioner has never been involved in misconduct or in corruption, therefore, while conducting the disciplinary proceeding against him, this aspect was also to be taken into consideration by the opposite parties.

(35) There are decisions on both ways of this Court as well as of the Hon'ble Supreme Court that the Court should not interfere in the quantum of punishment and it is to be done in rarest cases.

(36) On perusal of the entire material on record and the law report cited by both the parties, this Court is of the opinion that in these days, it is very difficult to tackle students, if they are travelling for an institution to attend the classes. The Conductor, who has not been given adequate security in the bus can only request to the students to take ticket, but he cannot force them for the same and in case he refuses to run the bus, he has to face the consequences of the other passengers who have taken the ticket, therefore, this aspect of the matter would have been taken care of, while conducting the disciplinary proceeding and awarding major penalty against the petitioner.

(37) It was not the case of the petitioner that he took money from the students and did not issue tickets to them. The Traffic Superintendent issued tickets to the students and imposed penalty which was deposited by the students, therefore, no loss occurred to the department in terms of money.

(38) On overall consideration of material on record, this Court is of the view that punishment awarded to the petitioner is disproportionate to the charges levelled against him, therefore, the Court is of the view that the respondent-department be directed to reconsider the matter and to pass appropriate order taking into consideration the circular issued by the department.

(39) In view of the above, due to non-consideration of the aforesaid aspect of the matter, the impugned orders are wholly illegal and arbitrary in nature. Accordingly, the impugned orders dated 18.6.2015, 21.8.2015 and 15.3.2016 are hereby quashed.

(40) The writ petition succeeds and is allowed.

(41) However, liberty is given to the respondent-department to make a fresh enquiry, if permissible in law, and to pass appropriate reasoned speaking order taking into consideration the observation made above and the circular in regard to the statement to be taken from the person who was found without ticket. The entire exercise shall be completed within a period of three months from the date of production of certified copy of this order.

(42) It is however made clear that consequential benefits shall be paid to the petitioner after fresh consideration by the respondent-department. The petitioner shall be treated to be placed under suspension during the course of conclusion of fresh disciplinary proceeding against him.

Order Date :- 10.5.2019

Adarsh K Singh / Gautam

[Irshad Ali]