Ram Sewak vs State Of U.P. And 4 Others
2023 Latest Caselaw 8334 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Reserved
 
Court No. 33
 
Case :- WRIT - A No. - 43988 of 2015
 

 
Petitioner :- Ram Sewak
 
Respondent :- State Of U.P. And 4 Others
 
Counsel for Petitioner :- M.I. Farooqui,Krishna Kumar Srivastava,Mohammad Yunus Khan,Neeraj Tripathi,Sanjeev Singh
 
Counsel for Respondent :- C.S.C.,Adarsh Bhushan,Krishna.Agarwal,S.K. Mishra
 

 
Hon'ble Rajiv Joshi,J.

1. Heard Sri Mohammad Yunus Khan, Advocate along with Sri Sanjeev Singh, learned counsels for the petitioner and Sri S.K. Mishra, learned counsel for the respondent nos. 2 to 5.

2. The instant writ petition under Article 226 of the Constitution has been filed for the following reliefs:-

" A. Issue a writ, order or direction in the nature of certiorari quashing the impugned orders dated 13.9.2014, 21.1.2015 and 7.7.2015 passed by the Assistant Regional Manager, Kidwai Managar Depot, U.P. State Road Transport Corporation, District Kanpur/respondent no.2, Regional Manager, U.P. State Road Transport Corporation, Kanpur Region, Kanpur/respondent no.3 and Managing Director, U.P. State Road Transport Corporation, Head Office at Lucknow/respondent no.4 respectively (Annexure No.7, 9 and 11 to this writ petition)."

3. The facts in brief are that the petitioner was appointed as Bus Conductor in the year 1978 by the respondent-Corporation and on 17.3.2011, while working as conductor in Bus No. U.P.-78 BT-2634, it was stopped by checking staff and alleged that out of 64 passengers, 35 passengers were having valid ticket while 07 passengers travelling from Allahabad to Saini, 08 passengers from Allahabad to Fatehpur and 14 passengers from Allahabad to Khaga were found having used tickets i.e. they were not having valid ticket.

4. On the basis of said allegation, the petitioner was suspended vide order dated 17.03.2011 passed by the Assistant Regional Manager, U.P.S.R.T.C., District- Fatehpur, thereafter, inquiry officer was appointed on 26.04.2011, charged-sheet was served in which, five charges were levelled including the name of departmental witnesses. The petitioner submitted his reply on 03.06.2011 denying all the charges levelled against him, subsequently, the suspension order was revoked and the petitioner was reinstated during pending inquiry vide order dated 5.5.2012. The undated inquiry report was submitted, which is appended as annexure -4 to the writ petition, in which, charges against the petitioner were fully proved.

5. Relying upon the report of the inquiry officer, dismissal order was passed by the Assistant Regional Manager, Kidwai Nagar Depot, U.P.S.R.T.C., Kanpur on 13.9.2014 whereby the petitioner has been removed from his services and salary during suspension period has been forfeited.

6. Against that order, petitioner filed an appeal under U.P.S.R.T.C. Employees (Other Than Officers) Service Regulation 1981(hereinafter referred to as the 'Regulation 1981') before the respondent no. 3 Regional Manager, U.P.S.R.T.C. Kanpur Region, Kanpur which too was dismissed vide order dated 21.01.2015.

7. The revision was preferred by the petitioner before the respondent-4 i.e. Managing Director, U.P.S.R.T.C. Head Office at Lucknow which too was dismissed vide order dated 7.7.2015 affirming the order passed by disciplinary authority as well as appellate authority.

8. The order passed by the disciplinary authority, appellate authority as well as revisional authority are impugned in the writ petition.

9. Learned counsel for the petitioner submits that no oral inquiry has been held and no affording opportunity has been given to the petitioner to examine the witnesses, which was mentioned in the reply to the show cause notice although the reference has been given in the charged-sheet regarding holding the oral inquiry of the witnesses named in the charged-sheet.

10. Learned counsel for the petitioner further submits that in view of the Regulation 64 (3) of Regulation 1981 clearly caste duty upon the inquiry officer to hold oral inquiry ones the delinquent (petitioner) has desired and given the name of the witnesses and in absence of the said witnesses, the major penalty of dismissal cannot be awarded and vitiate the inquiry disciplinary proceeding. In support of his contention, he has placed upon the judgment dated 20.11.2018 passed in Writ-A No. 42266 of 2001 vide order dated 20.11.2018 (Ram Abhilash Srivastava Vs. Commissioner Allahabad & Ors which is affirmed in Special Appeal Defective No. 290 of 2019 (Nagar Panchayat Bharwari Vs. The Commissioner & Anr) vide order dated 02.04.2019.

11. On the other hand, learned Standing counsel supported the impugned orders passed by the disciplinary authority, appellate authority as well as revisional authority and submits that the said orders were passed after the report of the inquiry officer and considering reply to the show cause notice and considering the documents, impugned order has been passed, there is no illegality or infirmity in the orders impugned.

12. I have considered the rival submissions of the learned counsel for the parties and perused the record.

13. The main argument of the learned counsel for the petitioner is that no oral inquiry has been conducted even though the petitioner had given the names of the witnesses but without holding any oral inquiry, the inquiry officer submitted his report, which was accepted by the disciplinary authority removing the petitioner from service which was upheld by the appellate authority and revisional authority.

14. Regulation 64 (3) of Regulation 1981 clearly caste duty upon the inquiry officer to hold oral inquiry ones the delinquent (petitioner) has desired and given the names of the witnesses and in absence of the oral inquiry, major punishment for dismissal of service cannot passed and all the authorities has committed illegality while passing the impugned order and without considering the Regulation 64 (3) of Regulation 1981. Regulation 64 (3) is quoted as under:-

"64(3). If the employee desires or the Enquiry Officer considers it necessary, an oral inquiry shall be held in respect of such allegations as are not admitted. At the enquiry such oral evidence shall be heard as the Enquiry Officer considers necessary. The person charged shall be entitled to cross-examine the witnesses, to give evidence in person and to have such witnesses called as he may wish, provided that the officer conducting the enquiry may for sufficient reasons to be recorded in writing refuse to call or examine any witness.

15. As per the counsel for the petitioner, the petitioner has attained the age of superannuation on 30.9.2018.

16. In view of the judgment dated 20.11.2018 passed in Writ-A No. 42266 of 2001 which was affirmed in Special Appeal (D) No. 290 of 2019 vide order dated 02.04.2019. The relevant paragraphs nos. 6 to 12 of the judgment dated 20.11.2018 is quoted as under:-

"6. Then, it has also been submitted that during the pendency of these proceeding, the petitioner attained the age of superannuation and retired from service in the year 2005. Therefore, in view of the decision of the Division Bench in the case of Raj Kishore Dubey Vs. State of Warehousing Corporation and Anr. reported in 2014 (Volume II) UPLBEC 956 and in Special Appeal No. 468 of 2015 (Nagar Panchayat Chandauli Thru, President And Anr. Vs. State of U.P. And 3 Others) decided on 11.5.2017, it has been submitted that no enquiry can be conducted now against the petitioner. Even as to the proceeding to recover any amount the same became time barred in the year 2010.

7. Learned counsel for the respondents on the other hand submitted that there is no infirmity in the enquiry proceeding inasmuch as specific charge sheet was issued to the petitioner and he was given an opportunity to tender his reply thereto. Such reply had been furnished and the enquiry officer examined the same and thereafter recorded his finding as to the guilt of the petitioner. Therefore, it has been submitted that the rules of natural justice stood substantially complied and the petitioner cannot be permitted to question the domestic enquiry proceeding on a technicality.

8. Having considered the arguments so advanced by learned counsel for the parties, it is seen that the punishment of dismissal is undoubtedly a major punishment. Also, in view of Rule 5 of Rules noted above an oral enquiry was necessary to be held in such cases.

9. Heavy punishment of dismissal may not be awarded upon summary proceeding or on a summary enquiry. Charge being one of embezzlement, the same should have been proven in the domestic enquiry on reliable evidence, in an oral inquiry. In this regard after issuance of the charge sheet no fact/charge appears to have been proven during the enquiry. As to the defence of the petitioner he was only allowed an opportunity to furnish reply but not to lead any evidence.In any case the burden to prove the charge was on the respondents. Thus, in the context of the governing Rule, keeping in mind the nature of the charge levelled and the the nature of punishment awarded, the enquiry proceeding was completely vitiated.

10. The consequence would be, the punishment order as also the appeal order arising therefrom must be set aside. Also, in view of the fact that the petitioner has since retired in the year 2005 and the service Rules do not appear to allow for any enquiry to be now continued or concluded against him and in view of the decision of the Division Bench in the case of Raj Kishore Dubey Vs. State of Warehousing Corporation and Anr. (Supra), no further proceedings be continued.

11. Last, even as to the recovery proceedings it has been rightly submitted by learned counsel for the petitioner the same has become time barred inasmuch as period of five years of retirement expired in year 2010 and there was no restrain placed by this court on the respondent from passing any order during pendency of this writ petition. Therefore, no further proceeding may be possible to be initiated or continued.

12. Accordingly, the writ petition is allowed. The order dated 22.10.1996 and 15.12.1998 are quashed. No order as to costs. "

17. In view of the above, the orders dated 13.9.2014, 21.1.2015 and 7.7.2015 passed by the Assistant Regional Manager, Kidwai Nagar Depot, U.P. State Road Transport Corporation, District Kanpur/respondent-2, Regional Manager, U.P. State Road Transport Corporation, Kanpur Region, Kanpur/respondent-3 and Managing Director, U.P. State Road Transport Corporation, Head Office at Lucknow/respondent -4 are hereby quashed.

18. The writ petition is allowed.

19. Since there is no evidence to hold regular inquiry or to lead the evidence, the petitioner shall be entitled to all the consequential reliefs, which may be given within a period of six months from the date of the productions of a certified copy of this order. Failing which, the entire amount may invite interest at the rate of 6% per annuam.

Order Date:22.3.2023

Akbar