U.P. State Roadways Transport ... vs Sabira Khatoon
2023 Latest Caselaw 5183 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Court No. - 9
 

 
Case :- SPECIAL APPEAL No. - 159 of 2020
 

 
Appellant :- U.P. State Roadways Transport Corporation Thru. M.D. And Ors.
 
Respondent :- Sabira Khatoon
 
Counsel for Appellant :- Ratnesh Chandra
 
Counsel for Respondent :- Vivek Srivastava,Vivek Kumar Srivastava
 

 
Hon'ble Devendra Kumar Upadhyaya,J.

Hon'ble Subhash Vidyarthi,J.

Heard Sri Ratnesh Chandra, learned counsel for appellant and Sri Vivek Srivastava, learned counsel for respondent.

The instant intra-court appeal under Chapter VIII Rule 5 of the Allahabad High Court Rules has been filed by the U.P. State Roadways Transport Corporation challenging the judgment and order dated 24.02.2020 passed by the learned Single Judge, allowing Writ Petition No.6868 (S/S) of 2012, which was filed by the respondent challenging the order dated 31.05.2011 whereby her husband had been removed from the service.

Briefly stated, facts of the case are that the respondent's husband Sohbat Ali was working as a driver in the appellant-Corporation. While he was driving a bus on 26.08.2009, it met with an accident resulting in death of a person who was riding a bicycle. A Claim Petition bearing No.80 of 2009 filed by the dependents of the deceased was allowed by means of the judgment and order dated 01.06.2010 passed by the Motor Accident Claims Tribunal/Additional District Judge, Court No.1, Siddhartnagar, holding that the accident took place as the driver of the bus was driving it rashly and negligently. The Motor Accident Claims Tribunal had awarded a sum of Rs.3,19,000/- as compensation payable to the dependents of the deceased person.

On 10.12.2010, chargesheet was issued to the respondent's husband levelling the following charges against him:

1. disobedience of departmental orders and directions

2. driving the vehicle No.UP-53/T-4227 rashly and negligently and causing injuries and death of a person riding a bicycle

3. causing loss of Rs.3,19,000/- to the department

4. dereliction of duty and failure to perform the duties in a proper manner

5. acting against the provisions of Karamchari Achran Sewa Niyamawali, 1981

The chargesheet mentioned a copy of the judgment and order dated 01.06.2010 passed by the Motor Accident Claims Tribunal as the solitary evidence to be taken into consideration in support of the charges.

The respondent's husband submitted a reply to the charge sheet on 22.12.2010 wherein he denied from all the charges. He stated that he was driving the bus carefully but at the time of the accident, it was raining. The person riding a bicycle was aged about 55-60 years and he could not control the same and after leaving his side, he dashed his bicycle in the rear portion of the body of the bus and he submitted that he was not at fault in the incident. He further stated that he as well as the Conductor of the bus had given their statements before the Motor Accident Claims Tribunal and both of them had stated that the driver was not at fault and the accident occurred due to fault of the person riding the bicycle. He has also stated that the statement of the Contractor Sri Salik Ram should be recorded in the inquiry. The Inquiry Officer submitted his report wherein he stated that the respondent's husband had given a written explanation denying the charges and in his oral statement, he had stated that his written explanation should be read as his statement.

The Inquiry Officer had recorded that as the charges were based on the judgment and order dated 01.06.2010 passed by the Tribunal, there was no requirement of examining any person other than the charged employee and the proceeding of the inquiry was closed after statement of the charged employee. The Inquiry Officer has observed that the Tribunal had held that the accident was caused due to rash and negligent driving by the bus driver and had awarded compensation of Rs.3,19,000/- to the claimant and that he had no authority to make any comments against the judgement and order passed by the Tribunal. He concluded that as the Headquarter of the appellant-Corporation had directed for compliance of the judgment and order passed by the Tribunal, therefore all the charges levelled against the respondent's husband were fully proved.

On 05.05.2011 a notice was issued to the respondent's husband againt him to show cause as to why should he not be punished by removal from service, to which he submitted a reply on 18.05.2011 and on 31.05.2011 an Office Memorandum was issued punishing the respondent's husband by removing him from service.

The respondent's husband filed an appeal against the order of removal and during pendency of the appeal he died on 01.11.2011.

The appeal filed by the respondent's husband was dismissed by means of the order dated 02.12.2011. The respondent challenged the punishment order and the appellate order by filing Writ Petition No.6868 (S/S) of 2012.

The appellant-Corporation had filed a counter affidavit in the said petition.

After hearing the learned counsel for parties and perusing the record, the learned Single Judge found that no details had been given in the counter affidavit regarding any documentary evidence that was adduced against the respondent's husband or any witnesses produced by the Corporation to prove the charges. The learned Single Judge further held that the inquiry report does not refer to any departmental witness, which had proved any documentary evidence and the entire inquiry had been concluded only on the basis of the statement of the charged employee.

Relying upon the decision in the cases of State of State of Uttar Pradesh vs. Saroj Kumar Sinha (2010) 2 SCC 772, Roop Singh Negi vs. Punjab National Bank (2009) 2 SCC 570 and Chamoli District Cooperative Bank Ltd. vs. Raghunath Singh Rana (2016) 12 SCC 204, the learned Single Judge held that once an Inquiry Officer was appointed, holding of an oral inquiry was mandatory. The learned Single Judge allowed the writ petition and quashed the order of removal from service of the respondent's husband and provided that he will be entitled to all consequential benefits.

Assailing the order passed by the learned Single Judge, Sri Ratnesh Chandra, the learned counsel for appellant-Corporation has submitted that an oral inquiry was held by the Inquiry Officer which is proved from the statement of the charged employee recorded on 14.02.2011 wherein he stated that his written explanation dated 22.12.2010 should be treated as his statement and he had nothing more to state. His submission is that the finding given by the learned Single Judge that no oral inquiry was held, is incorrect. He further stated that the evidence relied upon by the appellant-Corporation was a copy of the judgment and order dated 01.06.2010 passed by the Motor Accident Claims Tribunal and there was no requirement to examine any witness to prove a copy of the judgment and order passed by the Tribunal.

We have considered the facts and circumstances of the case and the submissions advanced by the learned counsel for the parties. As has been noted above, the chargesheet contained five charges against the respondent's husband. The judgment and order dated 01.06.2010 contained no finding regarding charge no.1 i.e disobedience of departmental order and directions, charge no.4 i.e. dereliction of duty and failure to perform the duties in a proper manner and charge no.5-for dereliction of duty and acting against the provisions of Karamchari Achran Sewa Niyamawali, 1981.

So far as the judgment being read as conclusive proof of charge nos. 2 and 3 i.e. causing injury and death of a person by driving the bus rashly and negligently and causing loss of Rs.3,19,000/- to the department is concerned, it would be significant to note that the judgement contains a narration that the defendant no.1-UPSRTC had filed a written statement wherein the Corporation had taken a stand that while the bus was going from Naugarh to Kakarhawa, on the way a person riding the bicycle suddenly left his side and collided with the bus after coming to wrong side. The Corporation took a categorical stand that the accident was not caused due to any error or negligence of the driver and any allegation levelled against him, was entirely false. The judgment also records that the driver and the Conductor of the bus were examined as witnesses and both of them had supported the stand taken by the UPSRTC in its written statement. However, the Tribunal did not accept the stand taken by the UPSRTC and allowed the claim petition.

When the appellant-Corporation itself had filed written statement taking a categorical stand that the bus was not being driven by the driver rashly and negligently and he was not at fault and this stand was supported by the statement of the Conductor of the bus recorded on oath, merely because the claim petition was allowed and the appellant-Corporation decided to comply with the award and not to challenge it by filing an appeal, it cannot be inferred that the copy of the judgment passed by the Tribunal could be taken as the conclusive proof of guilt of the driver in the disciplinary proceedings, without any other evidence having been produced or witness having been examined to prove the charges.

The inquiry report merely states that the Inquiry Officer had no authority to make any comments against the order passed by the Tribunal and as the Corporation had issued direction for compliance of the judgment and order dated 01.06.2010, all the charges levelled against the driver were fully established.

The sole reason assigned by the Inquiry Officer for treating all the charges as having been proved is that the Corporation had taken a decision to comply with the judgment and order dated 01.06.2010 and not to challenge the same by filing appeal.  The charges cannot be taken to have been proved merely because the Corporation took a decision to comply with the judgment and order passed by the Tribunal and not to challenge the same by filing appeal.  It was incumbent upon the appellant-Corporation to have proved the charges levelled against the respondent's husband by adducing the relevant evidence.

It is also relevant to note that the respondent's husband had made a request that the Conductor of the bus, who was present in the bus at the time of the accident, should be examined as a witness by the Inquiry Officer. The Conductor was only person, apart from the driver, who was present at the time of accident and who could have given evidence regarding the manner in which accident took place. The Conductor had categorically stated before the Motor Accident Claims Tribunal that the driver was not driving the bus rashly and negligently and the accident did not take place due to his fault.  It appears that had the Conductor been examined by the Inquiry Officer, his evidence would have been unfavourable to the Corporation. This presumption finds support from the Illustration-G appended to Section 114 of the Evidence Act which provides that it may be presumed that the evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it. 

In view of the aforesaid discussions, we are of the considered opinion that the appellant-Corporation had failed to prove the charges by producing any evidence or witness in support of the charge. The punishment order having been passed without any evidence having been adduced in support of the charges, is not sustainable in law and so is the appellate order.

Therefore, we are in agreement with the view taken by the learned Single Judge.

The special appeal lacks merits which is hereby dismissed.

The appellant-Corporation is directed to comply with the order passed by learned Single Judge within a period of two months from today.

Order Date :- 16.2.2023

Renu/-