Bijendra Pal vs The Chairman Parivahan Nigam ...

1. Heard Sri S.K. Rao, learned counsel for petitioner and Sri Ramanuj Pandey, learned counsel for respondents.

2. This writ petition under Article 226 of Constitution of India has been filed by sole petitioner Bijendra Pal, assailing order dated 11.04.2002 (Annexure- 6 to the writ petition) passed by Regional Manager, U.P. State Road Transport Corporation, Aligarh (hereinafter referred to as "Disciplinary Authority") imposing punishment of removal; order dated 10.06.2003 (Annexure- 8 to the writ petition) passed by Regional Chief Manager, U.P. State Road Transport Corporation, Meerut rejecting appeal of petitioner and Revisional Order dated 17.11.2003 (Annexure-10 to the writ petition) passed by Chairman, Transport Corporation, Lucknow rejecting petitioner's representation. A mandamus has also been prayed by petitioner directing respondents to reinstate him in service with all consequential benefits.

3. Facts in brief, giving rise to the present writ petition are, that petitioner was initially appointed as Driver in U.P. State Road Transport Corporation (hereinafter referred to as "UPSRTC") and posted in Aligarh Depot, Iind, (Budha Bihar Depot). He met an accident in 1994 and was declared disabled to work as Driver vide UPSRTC's order dated 15.03.1995. Hence, he was accommodated to work as Conductor and posted in Hathras Depot.

4. On the allegation of carrying passengers without ticket and causing loss to UPSRTC, petitioner was suspended vide order dated 30.04.2001. A charge-sheet dated 10.05.2001 was served upon him containing single charge, which reads as under:-

^^vkids fo:) Jh eukst dqekj f=osnh lgk;d {ks=h; izcU/kd] cqyUn'kgj us fjiksVZ izLrqr dh gS fd fnukad 25-4-2001 dks ujkSjk fMiks dh cl la0 ;w0ih0 [email protected] 9328 ftldk lapkyu vki Jh juohj flag pkyd ds lkFk ccjkyk &fnYyh ekxZ ij dj jgs Fks] dk vkdfLed fujh{k.k vius lg;ksxh ofj"B LVs'ku izHkkjh o vU; ds lkFk cqyUn'kgj igqaprs gq;s 17-00 cts fd;kA fujh{k.k ds le; vkidh cl esa dqy 41 ;k=h ;k=kjr ik;s x;sA cl dk HkkSfrd fujh{k.k djus ij ik;k x;k fd cl esa 18 ;k=h f'kdkjiqj ls fnYyh ds fcuk fVdV ik;s rFkk 09 ;k=h tks f'kdkjiqj ls fnYyh ds fy;s cSBs Fks rFkk fdjk;k Hkh fnYyh ls f'kdkjiqj rd dk fn;k x;k] ijUrq bu 09 ;kf=;ks dks vkids }kjk f'kdkjiqj ls fnYyh ds fVdV u nsdj de nwjh ds fVdV cqyUn'kgj ls fnYyh dk fn;k x;k FkkA fujh{kdksa }kjk fcuk fVdV ;kf=;ksa ds fVdV vkids fVdV fjDr iqfLrdk ls fVdV la0 5927191 ij 45 x 9 = 405 rFkk 592192 ij 45 x 9 = 405 tkjh dj ;kf=;ksa dks fn;k rFkk f'kdkjiqj ls cqyUn'kgj dk vUrj fVdV la0 5927190 ij 10 x 9 = 90 dk tkjh dj ;kf=;ksa dks fn;k x;kA fcuk fVdV ;kf=;ksa ls vki fdjk;k /kujkf'k fujh{k.k ls iwoZ gh olwy dj pqds FksA fujh{kdks }kjk ekxZ i= esa vko';d fVIi.kh vafdr dj ekxZ i= dh ,oa tkjh fd;s x;s fVdVksa dh ewy izfr;ksa dks fujh{k.k LFky ij gh jksd fy;k x;k rFkk ekxZ i= ij vkids Hkh gLrk{kj djk;s x;sA ;fn cl dk vkdfLed fujh{k.k u fd;k x;k gksrk rks vki fuxe fdj;k /kujkf'k [email protected]& vius futh LokFkZ esa gM+ius esa lQy gks tkrs vkSj fuxe dks gkfu mBkuh iM+rhA vkidk ;g d`R; Hkz"Vkpkj es fyIr ik;s tkus dk |ksrd gSA vr% vki ij ¼1½ fnukad 25-4-2001 esa 18 ;k=h fcuk fVdV ,oa 09 ;kf=;ksa dks de nwjh ds fVdV nsdj Hkz"Vkpkj esa fyIr ik;k tkuk] ¼2½ fuxe fgrksa ds izfrdwy dk;Z djus] ¼3½ vius drZO;ksa ,oa nkf;Roksa ds fo:) dk;Z djus ¼4½ deZpkjh vkpj lafgrk ds izfrdwy dk;Z djus ,oa ¼5½ deZpkjh lsok fofu;ekoyh ds fo:) dk;Z djus vkfn ds vkjksi yxk;s tkrs gSaA** "Shri Manoj Kumar Trivedi, Asstt. Regional Manager, Bulandshahr has presented a report against you that he along with his colleagues, the Senior Station Incharge and others, reached Bulandshahr and made a surprise inspection of Bus No. UP 81/9328 of Narora Depot, which you were plying along with the driver Ranveer Singh, on 25.04.2001 at 17 o'clock. At the time of the inspection, total 41 passengers were found travelling in your bus. On physical inspection of the bus,18 passengers were found to be travelling without ticket in the bus from Shikarpur to Delhi and 09 passengers were travelling from Shikarpur to Delhi and they had paid fare for Delhi to Shikarpur. Despite all this, all the 09 passengers were given tickets by you for Bulandshahr to Delhi, that is for a lesser distance instead of tickets from Shikarpur to Delhi. The passengers travelling without tickets were issued tickets by the Inspectors, 45x9 =405 on ticket no. 5927191 from your ticket blank book and the passengers were issued 45x9 on ticket number 592192. The passengers were issued tickets for differential distance for Shikarpur to Bulandshahr, 10x9=90 on ticket no. 5927190. You had realized fare from the ticket-less passengers prior to the inspection. The inspectors on inspection site itself recorded necessary remarks in the Route Book and withheld the originals of the tickets issued, and even your signature was obtained. If surprise inspection of the bus had not been made, you would have managed to grab the fare amount of Rs. 900 for your private ends and the Corporation would have to suffer the said loss. This act of yours is reflective of your involvement in corruption.

Hence, you stands charged with (1) being involved in corrupt practices by letting 18 passengers travel without tickets and issuing tickets for lesser distance to 09 passengers on 25.04.2001, (2) working against the interest of the Corporation, (3) not performing your duties and responsibilities, (4) working contrary to the employees conduct code and (5) working against the employees service regulations and so on." (Emphasis Added) (English Translation by Court)

5. Assistant Regional Manager (Karmik), Aligarh was appointed as Enquiry Officer to conduct enquiry. Denying the charge, petitioner submitted reply dated 30.05.2001. Enquiry officer after conducting enquiry, submitted report dated 05.11.2001 holding charges proved, whereafter a show cause notice dated 25.01.2002 was issued, supplying copy of enquiry report to petitioner. Disciplinary Authority agreeing with the findings of Enquiry Officer, proposed punishment of "Removal" in the said show-cause notice. Petitioner submitted reply dated 06.03.2002. Thereafter, Disciplinary Authority imposed punishment of removal vide order dated 11.04.2002. Against said order, petitioner preferred appeal which was dismissed vide order dated 10.06.2003 and thereafter revision was also dismissed vide order dated 17.11.2003. These three orders of Disciplinary Authority, Appellate Authority and Revisional Authority are under challenge in the present writ petition.

6. Learned counsel for petitioner contended that charge of carrying 27 passengers without ticket has been held proved though not even a single passenger has been examined and therefore, it cannot be said that charge has been proved by adducing any valid evidence; enquiry has not been conducted properly and charge has been held proved on conjecture and surmises; and that punishment is highly excessive and disproportionate the charge found proved. He has placed reliance on a Supreme Court decision in Roop Singh Negi Vs. Punjab National Bank 2009(2) SCC 570.

7. Learned counsel for respondents, however, submitted that petitioner was a Conductor in the bus and Inspection Team of UPSRTC checked the vehicle; inspection Report has been duly proved and non-examination of passengers, who were found travelling in the bus without ticket, is of no legal consequences since examination of passengers was not necessary in such cases; adequate opportunity was given to petitioner and punishment imposed upon him is just and valid, hence, no interference is called for.

8. From the record, it transpires that on 25.04.2001, petitioner was working as Conductor in Bus No. UP-81/9328 of Naraura Depot, running on Babrala-Delhi route. A surprise checking was conducted by Senior Station In-charge and others at around 5:00 p.m. when bus was reaching at Bulandshahr. Inspection Team found a total 41 passengers travelling in the bus, out of which 18 passengers, travelling from Shikarpur to Delhi were without any ticket and 9 passengers who boarded bus at Shikarpur and their destination was Delhi had paid fare from Shikarpur to Delhi but tickets were issued by petitioner for a shorter distance i.e. Bulandshahr to Delhi, instead of Shikarpur to Delhi. Further, petitioner had already charged fare from passengers who were found travelling without ticket. Inspection Team issued tickets to passengers travelling without ticket from Ticket Book possessed by petitioner. Ranveer Singh was driver of the bus.

9. In the reply to charge-sheet submitted by petitioner, he admits this fact that he was working as Conductor in Bus No. UP-81/9328 on 25.04.2001, when bus was running from Babrala to Delhi route. When bus reached Shikarpur, 27 passengers boarded and when they were boarding, Sri Manoj Kumar Trivedi, Assistant Regional Manager, Bulandshahr along with checking squad came. Petitioner asked checking team that let passengers sit in the bus and thereafter petitioner may be allowed to issue tickets and then checking be conducted but checking team snatched Ticket Book from petitioner and arbitrarily issued tickets and under threat obtained signature of petitioner on the inspection note. He alleged that Assistant Regional Manager, who conducted checking has concealed the fact that bus was at halt and not running which was got stopped and thereafter checked. He further said that checking was made at Shikarpur and not while bus was reaching Bulandshahr.

10. Thus, preparation of Inspection Report mentioning the fact that checking was conducted when bus was reaching at Bulandshahr and passengers were found without ticket and that checking report was signed by petitioner are the facts which are admitted by petitioner. He, however, has disputed contents of inspection note.

11. In these circumstances, onus shifted upon petitioner to show that contents of checking report were not correct and his signature was obtained under threat for which he did not adduce any evidence whatsoever. Even Driver of bus who was in a position to give correct facts, was not produced by petitioner in support of his defence whereby he challenged correctness of the facts stated in checking report which admittedly contained petitioner's signature.

12. The question as to how oral enquiry would be conducted depends on facts of each case.

13. It cannot be disputed when a charge is completely denied, Employer has to prove the charge first and thereafter employee would be required to adduce his defence to disprove the allegations, but when some part of the incident is admitted that the manner in which it happened is disputed by employee, the fact given by employee in his defence is to be proved by him.

14. In the present case, a checking report was prepared mentioning the factum that petitioner was carrying passengers without ticket and thereby caused loss to UPSRTC. This checking report was duly signed by petitioner. This document was an evidence relied in the charge-sheet. Since in reply, aforesaid document itself was not disputed by petitioner, instead his stand was that the facts stated in the report do not depict correct facts and contain some incorrect facts, hence, onus was upon petitioner to show that checking report contained incorrect facts.

15. One of the best witness which would have been able to make his statement on this aspect, whether checking was conducted when bus was reaching Bulandshahr or Shikarpur and whether passengers were boarding the bus at Shikarpur when checking was made or passengers had actually travelled distance from Shikarpur and while reaching Bulandshahr, checking was made and they were found without ticket, could have been got verified by petitioner through Driver of bus but he made no such attempt. Since documents of department, as such, was not denied but correctness thereof was denied, hence, non-examination of any oral evidence on behalf of Employer makes no difference in the facts of this case and onus itself shifted upon petitioner to show that facts stated in the report were not correct as he put his defence in reply to charge-sheet.

16. In these facts and circumstances, the judgment cited by learned counsel for petitioner in his support, I find has no application to the facts of this case.

17. So far as non-examination of ticket-less passengers is concerned, I find that in the case of charge of travelling of passengers without tickets, factum that passengers were not made witnesses or their statements were not recorded, has not been found to be relevant or a crucial aspect for valid inquiry.

18. The scope of judicial review in such matter was examined in State of Haryana and Another v. Rattan Singh 1977 (2) SCC 491, wherein Court held that sufficiency of evidence in proof of finding by a domestic Tribunal is beyond scrutiny but in absence of any evidence in support of ending his certainty justified judicial review and interference by Court. However, evidence of Inspector of flying squad was relevant and if it supports the charge, it cannot be said that finding recorded by domestic Tribunal proving the charge is based on no evidence. Court specifically held "We cannot hold that merely because statements of passengers were not recorded the order that followed was invalid. Likewise, the re-evaluation of the evidence on the strength of co-conductor's testimony is a matter not for the Court but for the administrative Tribunal."

19. A similar view was taken in Divisional Manager, Rajasthan S.R.T.C. vs. Kamruddin (2009) 7 SCC 552.

20. Both the above authorities were followed while repelling similar argument that non-examination of passengers would vitiate findings of guilt raised in North West Karnataka Road Transport Corporation v. H.H. Pujar (2008) 12 SCC 698.

21. Learned counsel for petitioner urged that in fact, no oral enquiry was held since dates were fixed but no witness by Employer was examined and, therefore, here is a case where major penalty of removal has been imposed without holding any oral enquiry. He placed reliance on a Division Bench Judgment of this Court in Writ A No. 7500 of 2016, Kunwar Pal vs. State of U.P. and Another, decided on 29.05.2018.

22. As I have already held that here is a case where charge is founded on a checking report existence thereof was not disputed by petitioner. In fact, he has also signed the said report but what he claimed is that report contained incorrect facts and for proving this aspect, onus lay upon petitioner to adduce evidence but he did not adduce any evidence, therefore, it cannot be said that non-production of any witness by Employer vitiates disciplinary proceedings in the case in hand. Hence, the aforesaid judgment and the principle of law is not applicable to the facts of this case.

23. Lastly, it is contended that punishment imposed upon petitioner is highly excessive or disproportionate to the gravity of charge and, therefore, it deserves to be set aside.

24. Here also, I find no force in the submission. It is not a case where misconduct of petitioner has not been found proved. It is also not a case where disciplinary enquiry was not conducted in a fair manner or principles of natural justice have been denied. The question of imposition of major penalty upon a Conductor of a Transport Corporation who has been found short charging of fare or carrying passengers without ticket was considered by Supreme Court in Karnataka S.R.T.C. v. B.S. Hullikatti (2001) 2 SCC 574, and Court said as under:-

"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. Further-more, 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 fund 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."

25. The above decision was followed by a three Judges Bench of Supreme Court in Regional Manager, Rajasthan State Road Transport Corporation vs. Ghanshyam Sharma SCC (2002) 10 330, wherein Court said "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 re-employment instead of dismissal."

26. The above authorities show that a Conductor held fiduciary relation with Employer and if he is found allowing travelling by passengers without tickets, it is a serious misconduct justifying maximum penalty of dismissal. Mere fact that subsequently fare was relied by checking squad it found sufficient to condone the misconduct committed by person concerned. Further it is not a number of passengers or quantum of ticket which will weigh the penalty but is the conduct which is of substance to examine whether penalty is justified or not. A Conductor who has failed to discharge his only duty of allowing passengers to travel after paying appropriate fare and to deposit the same with Employer is guilty of serious misconduct and deserves to be given maximum punishment.

27. In Writ Petition No. 4253 (S/S) of 1991 Jagdish Prasad Sharma Vs. U.P. State Public Services Tribunal & Others, decided on 15.2.2017, which was also case of bus conductor of UPSRTC. This Court in para 14 and 15 said as under :-

"14. We do not propose to multiply authorities on this aspect and suffice it to mention that dishonesty, lack of integrity on the part of an official of Corporation, going to the extent of causing loss to Corporation, of which the official is holding position in trust, is a very serious matter. It is the aptitude of a person which leans towards dishonesty and corruption or bad conduct, that needs punished. The circumstances or quantum of loss or amount of misappropriation or other things cannot be considered as a justification for such misconduct on the part of official concerned, so as to justify a lenient view on the issue of punishment.

15. There is no question of leniency or sympathy. In fact any indulgence in such matter will make even Court a party to such dishonest action, which has to be avoided, prevented and is totally uncalled for. Court cannot be a party to a misdeed of a person. On the contrary, once a person had indulged in misconduct, shown lack of integrity or honesty etc., adequate preventive punishment, which may be a lesson to others also, is need of the day."

28. In Regional Manager, U.P.S.R.T.C, Etawah & Ors. vs Hoti Lal & Anr 2003(3) SCC 605, where Court said that it is the responsibility of Bus Conductor to collect correct fare from passengers and deposit the same with Corporation. 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.

29. In Divisional Controller, KSRTC (NWKRTC) Vs. A.T. Mane, (2005) 3 SCC 254, amount found in possession being unaccounted money was only Rs. 93/-, but dealing with the question of quantum of punishment, Court said;

"............ 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."

(emphasis added)

30. In Divisional Controller, N.E.K.R.T.C. Vs. H. Amaresh (2006) 6 SCC 187, Court held that even short remittance amounts to mis-conduct and justifies major penalty.

31. In Uttar Pradesh State Road Transport Corporation Vs. Nanhe Lal Kushwaha, 2009 (8) SCC 772, Court held that a Conductor depositing lesser amount, irrespective of fact that the amount was small and the incumbent has retired, no interference would be justified in the matter of penalty.

32. In Rajasthan State TPT Corporation and another Vs. Bajrang Lal, (2014) 4 SCC 693, Court said;

"in cases involving corruption-there cannot be any other punishment than dismissal. Any sympathy shown in such cases is totally uncalled for and opposed to public interest. The amount misappropriated may be small or large; it is the act of misappropriation that is relevant." (emphasis added)

33. Applying the exposition of law as discussed above to the facts of the case, I find that petitioner was a Conductor whose responsibility was to ensure that any passenger who travel in the bus in which he is working as Conductor has paid due fare for the distance he has to travel and no person is allowed to travel without ticket so that no loss is caused to UPSRTC. Petitioner has not discharged his above duty and committed a serious misconduct in discharge of his duty.

34. When an employee fails to discharge fundamental duties he is supposed to perform, which includes even financial aspects, Courts are not supposed to interfere in the discretion of selection of punishment by Disciplinary Authority since they are the best judge to decide what punishment should be impose upon erring official. The role of Court in the matter of departmental proceedings is very limited and Court cannot substitute its own views and findings by replacing findings arrived at by authority on detailed appreciation of evidence on record. In the matter of imposition of sentence, scope of interference by Court is very limited and restricted to exceptional cases. Punishment imposed by Disciplinary Authority or Appellate Authority unless, shocking to the conscience of the Court, cannot be subjected to judicial review. Court has to record reasons as to why punishment is disproportionate. Failure to give reasons amounts to denial of justice.

35. In Union of India v. Bodupalli Gopalaswami, (2011) 13 SCC 553, Sanjay Kumar Singh v. Union of India & Ors., (AIR 2012 SC 1783) and S.R. Tewari v. Union of India, (2013) 6 SCC 602, Court said that mere statement that punishment is disproportionate to charge is not sufficient and appropriate reasons have to be recorded by Court if it proposed to interfere with quantum of punishment.

36. Explaining the earlier judgment In Ranjit Thakur v. Union of India & Ors., AIR 1987 SC 2386, where Court held that punishment has to suit the offence and the offender. It should not be vindictive or unduly harsh. It should not be so disproportionate to the offence as to shock the conscience and amount in itself to conclusive evidence of bias.

37. In Union of India & Ors. v. R.K. Sharma, AIR 2001 SC 3053, Court said that if the charge was ridiculous, the punishment was harsh or strikingly disproportionate it would warrant interference. However, it is only in extreme cases, which on their face, show perversity or irrationality, there could be judicial review and courts should not interfere merely on compassionate grounds. The employees when act in fiduciary capacity and commits default, in financial matters, major penalty has been upheld.

38. In the entirety of the facts as discussed above and the exposition of law, I do not find any manifest error in the orders impugned in the present petition so as to justify interference by this Court.

39. Writ petition lacks merit and is accordingly dismissed.

Order Date :- 14.8.2019 Siddhant Sahu