Uttar Pradesh State Road ... vs Sri Bhuri Singh And Another
2023 Latest Caselaw 11701 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 9
 
AFR
 

 
Case :- WRIT - C No. - 10228 of 2023
 

 
Petitioner :- Uttar Pradesh State Road Transport Corporation
 
Respondent :- Sri Bhuri Singh And Another
 
Counsel for Petitioner :- Sunil Kumar Misra
 
Counsel for Respondent :- CSC,Jamal Ahmad Khan
 

 
Hon'ble Alok Mathur,J.

1. Heard Sri Sunil Kumar Misra, learned counsel for the petitioner as well as Sri Jamal Ahmad Khan, learned counsel appearing for respondent no. 1 - workman.

2. By means of present writ petition the petitioner - Uttar Pradesh State Road Transport Corporation (hereinafter referred to as "the UPSRTC"), has assailed the order of the Labour Court, Agra passed in Claim No. 79 of 2021, there by allowing the claim of respondent no. 1 - workman, against the order of removal from service dated 28.04.2015.

3. Brief conspectus of present case necessary for adjudication of the case are that respondent no. 1 on 05.07.2009, was posed as Driver at Regional Workshop, Agra and assigned duty at Store Truck No. UTF-7775. Sri V.K. Shukla, Traffic Superintendent fort Depot, submitted report by letter no. 995, dated 17.07.2009, disclosing that he alongwith his assistants Vishambhar Dayal, Assistant Traffic Inspector, Shivkaran, Office Assistant on Staff Car UP-32-6842 were coming from Saunkh to Mathura and at village Nagala Bhuria found that diesel was being siphoned off from the diesel tank of Store Truck No. UTF-7775 and filled in steel Tanks and other plastic cans which was total 16 liters by respondent no. 1.

4. Complaint was forwarded to Regional Manager, UPSRTC Agra and disciplinary proceedings were initiated against respondent no. 1 in pursuance to which he was suspended on 31.07.2009 and charge sheet was also issued to him on the same day. Assistant Regional Manager, Mahanagar Depot, was appointed as Inquiry Officer. An oral inquiry was initiated where complainant appeared before the Committee and stated that on the date of occurrence he had found respondent no. 1 stealing diesel from the said vehicle. Respondent no. 1 has cross examined the complainant and Inquiry Officer concluded the inquiry and submitted his report to the Disciplinary Authority who issued show cause notice dated 08.04.2015, to which respondent no. 1 submitted his response and final punishment order was passed on 28.04.2015 where respondent no. 1 was removed from service and his salary for the suspension period was forfeited.

5. Assailing the order of removal from service, respondent no. 1 raised an industrial dispute under the U.P. Industrial Dispute Act, where proceedings were initiated were validity of punishment order was considered by the Deputy Labour Commissioner, Agra under Section 4A of the Industrial Dispute Act. The petitioner filed written statement opposing the claim of respondent no. 1 on 14.03.2022. The Presiding Officer, Labour Court, Agra had set aside the punishment order dated 28.04.2015 and re-instated the petitioner with full back wages.

6. The Labour Court had examined the entire material on record as well as statements made by the witnesses during the said proceedings. The Tribunal was persuaded by the fact that according to complaint there were four employees at the time of incident who were standing around the vehicle in question and amongst four people one of them was mechanic, fitter and helper. Respondent no. 1 in his response has submitted that they detected some blockade in the pipe line and therefore in order to remove the defect the diesel tank was required to be emptied and then the defect/air block was to be removed and for which purpose the mechanic, fitter and helper were present at the spot, and denied that they were trying to steal diesel.

7. The Labour Court has allowed the claim of respondent no. 1 and returned a finding that they were not stealing diesel but were removing air block in the diesel pipe line for which mechanic and fitter were present at the spot and were involved in repair of the vehicle in question when they were noticed by the Traffic Superintendent. Admittedly no further investigation or material was produced by the petitioner which could challenge the stand taken by the workman. It has no were been denied that the diesel tank was in good order and there was no need for removal of air block. In respect of workman, evidence was given by respondent no. 1 himself which is on record, stating that they were repairing the diesel tank which had developed an air block and there was no material adduced by the petitioner to repel the evidence given by the workman.

8. The Labour Court has duly considered the evidence and returned a finding that charge against respondent no. 1 - workman has not been proved and consequently, set aside the order of removal from service with full back wages.

9. Learned counsel for the petitioner has vehemently submitted that the Tribunal should have given another opportunity to the employer -petitioner to proceed against workman. Considering the fact that it has been recorded by the Tribunal that there were three other persons present on the spot but the petitioner chose not to examine any of the three other persons during disciplinary proceedings conducted by them.

10. Heard learned counsel for the parties and perused the record.

11. This Court is of the considered view that before the Labour Court order of removal from service was under examination. While considering the order of removal, the inquiry conducted by the employer against the workman was duly considered and found that there was insufficient material adduced by the employer to inflict penalty of removal from service upon the workman. It could not be proved that respondent no. 1 tried to steal diesel from the tank of the vehicle in question. The defense taken by the respondent that he was attempting to remove the defect of the truck which developed air block and for which purpose mechanic and fitter were present on the spot, was duly accepted as being reasonable, and no challenge to the said plea was raised by the petitioner so as to disbelieve the workman. No reason or reply has been submitted by the petitioner to record a different finding then the one which has been recorded by the Labour Court.

12. This Court does not find any merit in the arguments raised by the petitioner. It is submitted that the Labour Court has returned finding that there was no material to implicate respondent no. 1 with the charge of stealing diesel and hence has held the order of removal from service to be illegal and arbitrary and has accordingly set aside the said order.

13. The counsel for the petitioner has submitted that in light of the finding recorded by the Labour court that there were other witnesses present on the spot who were never examined by the petitioner who was prosecuting the respondent workman, and in light of the said finding the matter may be remitted to re-enquiry, so that they can take an record fresh evidence which was available but not recorded during the proceedings against respondent no. 1.

14. I have considered the submissions of the petitioner. It is only at the behest of employer that inquiry proceedings were conducted against respondent no. 1/employee where there were serious allegations levelled against him. The employer is mandated to proceed against delinquent employee in accordance with law and to give him full opportunity to defend himself before recording any finding holding him guilty of charges levelled against him of misconduct. It is duty of employer who is prosecuting the employee to bring forthwith all the material in support of charges levelled against him and to inform the delinquent employee about the said material so that he has full opportunity of defend himself adequately.

15. In the present case, in the proceedings the employee was found guilty of misconduct and accordingly has been awarded punishment/penalty of removal from service. The Labour Court after examining entire material on record and findings adduced by the prosecution in support of charges came to a conclusion that charges against the employee are not proved.

16. This Court has also examined the findings recorded by the Labour Court and found the same to be reasonable and there is no infirmity in the findings returned by the Labour Court. Prayer of the employer that he may be permitted to re-conduct inquiry so that they can record further evidence which were not adduced in the previous inquiry. Such prayer is misconceived and is accordingly rejected for the following reasons:

Firstly a person cannot get the benefit of his own fault. The petitioner was duty bound to present all the available material in support of the charges levelled against delinquent employee and when inquiry has concluded and Labour Court has found that charges are not proved, then the employee is exonerated of the said charges. Permitting the employer to proceed afresh with the same inquiry would be hit by the principle of 'double jeopardy' as it is well settled principle that once a person has been acquitted or is exonerated of the charges, no fresh proceedings, trial or inquiry can be commenced in relation to the said charges. The said principle finds its roots under Article 20(2) of the Constitution of India and it is the principle of atrophoise acquit/atrophoise convict as a person has right not to be tried again for the same offence for which he has been either acquitted or convicted and same principle applies even to disciplinary proceedings.

17. It is only where inquiry proceedings are conducted in violation of principles of natural justice, the employer is permitted to proceed against employee from the stage where there has been infirmity in the proceedings noticed by superior authority only to ensure that due opportunity is given to the delinquent employee and that he is not punished unheard. The petitioner who is employer of respondent no. 1, was under mandate to conduct disciplinary proceedings against the employee in accordance with law and for that purpose a charge was required to be framed and all the evidence and material which were available to prove the charge are disclosed to the delinquent employee and are also considered by the Inquiry Officer. In case there is material available which has not been taken into consideration by the prosecuting authority, they cannot be permitted to re-inquire into the matter and be given a chance to take into account the available material which was not considered in the previous inquiry. In case same is permitted it will run counter to settled legal principle of atrophoise acquit/atrophoise convict, as has been discussed above.

18. If there was some material available with the employer and the same was not deliberately or otherwise adduced in the disciplinary proceedings/domestic inquiry then action can be taken against persons responsible for such act/omission but no fresh proceedings can be directed to be instituted to make good the deficient material/evidence, in support of charges.

19. The other ground raised by learned counsel for the petitioner is with regard to back wages. It has been submitted by counsel for the petitioner that Tribunal has wrongly granted full back wages to respondent no. 1 - workman. this Court has examined the judgment passed by the Tribunal and also submissions made in the writ petition. There is no reason for us to interfere in the findings recorded by the Tribunal as there is no material before this Court to show that respondent no. 1 was gainfully employed during period he was placed under suspension or there is any other circumstance which may compel this Court to interfere in the findings recorded by the Labour Court in this regard.

20. In the light of above discussion, this Court does not find any illegality or infirmity in the judgment of Labour Court. Accordingly, the writ petition being devoid of merits is dismissed.

Order Date :- 19.4.2023/A. Verma

(Alok Mathur, J.)