JUDGMENT Sunil Ambwani, J.
1. Heard Ms. Anuradha Sundram for petitioner and Sri Sameer Sharma for U. P. State Road Transport Corporation.
2. The petitioner has prayed for quashing the order dated 31.5.2003 passed by Assistant Regional Manager, U. P. State Road Transport Corporation, Allahabad removing him from service, and the order dated 11.7.2003 passed by Regional Manager of the Corporation by which the appeal was dismissed, to reinstate petitioner in service as Conductor, and to pay him salary.
3. Brief facts giving rise to this petition are stated as follows.
4. The petitioner was on duty on vehicle No. UMG 9027, on 24.4.1998, operating on Fatehpur-Allahabad route. The Bus was inspected by the Assistant Regional Manager, Fatehpur Depot, Senior Workshop Incharge and others at 14.50 hours at Hasua Mor. Out of 51 passengers 31 were found travelling without ticket. The petitioner had not recorded 20 issued tickets on the way bill. Sri Hardutt Dwivedi, Assistant Regional Manager made a record of closing of the tickets issued by the petitioner, and got 31 tickets prepared by the petitioner, making an entry to this effect on the way bill. An inspection note was prepared. The petitioner was thereafter charged with carrying 31 passengers without ticket, failing to make entry of 20 sold tickets on way bill, and for causing obstructions during the inspection. The charge-sheet dated 23.5.2000, alleged petitioner to be guilty of misconduct, violating Regulation 61 (1), and Regulation 62 (1), (5), (9), (21) and (22) of the U. P. State Road Transport Corporation Employees (other than Officers) Service Regulation, 1981.
5. The Assistant Regional Manager, Civil Lines Depot was appointed as Inquiry Officer. He conducted a disciplinary enquiry and found the charges to be established. A second show cause notice dated 2.5.2002 was given to the petitioner. The petitioner requested for a fresh enquiry. The Disciplinary Authority refused the request and required the petitioner to submit his reply. The petitioner filed a writ petition for staying the enquiry proceedings which was dismissed by this Court. The Assistant Regional Manager recorded the fact in his order dated 31.5.2003 that the petitioner did not submit reply to the second show cause notice and found the charges to be established and punished petitioner with removal from service.
6. The petitioner filed an appeal/representation against the order to the Regional Manager which was rejected by the Regional Manager on 11.7.2003.
7. Ms. Anuradha Sundram appearing for petitioner submits that both the Assistant Regional Manager and Regional Manager have failed to consider petitioner's defence. In his reply to the charges, the petitioner stated that on 24.4.1998 when the bus started its journey from Fatehpur, the passengers were pick up, on the way. The bus was stopped at a short distance at Hasua turning for issuing tickets. A four years girl child travelling in the bus was seriously ill. Her father and the passengers insisted to immediately resume the journey. Taking into account the situation and the pressure of the passengers who were concerned about the child, the bus proceeded with the journey, and that before the tickets could be issued the inspecting party intercepted the bus. The Inspecting Party wanted to issue tickets but the passengers insisted that the ticket, should be issued only by conductor, as he was not at fault.
8. Sri Surya Pal Singh, a Member of the Inspecting Party was examined on 11.5.2002. In his examination, he admitted that the driver and conductor did not misbehave at the time of inspection. The passengers were not pleased. The passengers insisted that the ticket should be issued only by the conductor, and on their request the situation the Assistant Regional Manager leading the inspecting party directed the conductor to issue the tickets to the remaining passengers. He stated that on every route the buses are being operated illegally and that they had stopped the bus by showing the diary. He stated that the inspecting spot was about 10 kms. from Fatehpur and that the passengers had made statement that the conductor was in the process of issuing tickets. In cross-examination, he admitted that the inspecting spot was at the distance of 6-7 kms.
9. The defence witness Sri Sushil Kumar Shukla son of Sri J.N. Shukla stated that he was returning after treatment of his daughter. At about one and half furlong from Fatehpur, the conductor stopped the bus and was issuing tickets. At that time, he requested that the bus may be allowed to proceed, to expedite the journey as his daughter was not feeling well. After a short distance the bus was inspected. The passengers informed the Assistant Regional Manager with the facts. Sri Hardutt Dwivedi, Assistant Regional Manager/leader of the inspecting party did not appear in the departmental enquiry, and did not make any statement in support of his report.
10. The Inquiry Officer found that the conductor was in the process of issuing ticket. He had not caused any obstruction in inspection and that he had not charged any amount from the passengers before the bus was stopped for inspection. The Inquiry Officer, however, found that 20 tickets issued by the petitioner were not recorded on the way bill. Ms. Sundram submits that the way bill is prepared after all the tickets are issued and thus the findings of the Inquiry Officer with regard to preparation of way bill was not appropriate. She submits that in the extraordinary situation in which the passengers had requested to proceed with the journey before the tickets could be issued, and the concern shown by petitioner and the driver of the bus to help a sick child should not have been used against him, to impose extreme punishment of removal from service. She submits that even if the charge is found to be established, in the circumstances the punishment is shockingly disproportionate to the allegations.
11. Sri Sameer Sharma, on the other hand, states that duties and functions of a conductor are clearly defined. The passengers are to be picket up by pay at door system. If a passenger entered into bus without ticket and was found travelling without ticket the conductor is responsible. In the present case there were 31 passengers without ticket and that the tickets issued by the conductor were not recorded on the way bill. According to Sri Sameer Sharma, the petitioner did not reply to second show cause and that the disciplinary authority did not commit any error in arriving at a finding that the petitioner was guilty of the charges. According to him, the punishment is proportionate to the charges and that the petitioner should avail the remedy of filing departmental appeal before the Deputy General Manager of the Corporation.
12. Before proceeding to discuss the submissions of the counsel for the parties, I find that the Disciplinary Authority has not taken petitioner's defeance into consideration. The Inquiry Officer found that the first charge relating to misconduct in allowing passengers to travel without ticket was not established. The inspection report was not proved. The Inquiry Officer, however, recorded a finding that the defence witness could not produce the ticket and the defence statement could not establish that the fact about child's illness was informed to the Inspecting party. A doubt was expressed by the Inquiry Officer on the statement of conductor that he was in the process of issuing tickets and further that the 20 issued tickets were not entered on the way bill. The disciplinary authority has neither discussed petitioner's defence nor the findings recorded by the Inquiry Officer. The language of the order of the Disciplinary Authority is wholly mechanical. After recording the fact that the petitioner has not submitted his reply to second show cause notice, and that it is a case of serious corruption, he found that the Inquiry Officer has given full opportunity to the petitioner and that the petitioner/delinquent officer has failed to prove that he is innocent, he recorded a finding that since one of the members of the inspecting party appeared during the enquiry and proved the report, the petitioner is guilty of the charges. Thereafter the Disciplinary Authority proceeded to impose the punishment of removal from service.
13. In the present case, the Assistant Regional Manager, leading the inspecting party filed the report. The prosecuting officer did not examine him to prove the checking report. Sri Surya Pal Singh, one of the inspecting party, admitted the fact that both driver arid conductor did not misbehave, and that in fact the passengers were annoyed. The passengers informed that they had not been charged, and insisted that conductor should issue ticket. He also admitted that inspection took place at about 6-7 kms. on way from Fatehpur. These facts were not reported in his checking report. The Inquiry Officer did not disbelieve Sri Sushil Kumar Shukla but only raised a doubt on his statement on the ground that he could not produce the bus ticket. In normal circumstances the passengers do not retain the ticket after the journey. The fact that Sri Shishir Kumar Shukla could produce the ticket, should not have been a ground to disbelieve his statement. In his statement Sri Shishir Kumar Shukla stated that he was travelling in the bus with his sick daughter and that when the conductor stopped the bus at short distance for issuing ticket he requested to proceed with the journey. There was absolutely no reason to disbelieve his statement specially in view of the fact that one of the members of the inspecting party had admitted that the passengers expressed their displeasure and were not happy that the conductor being taken to task by the inspecting party.
14. In Orissa Mining Corporation v. Ananda Chandra Prusty, 1997 (75) FLR 100, the Supreme Court held that the burden of proof in disciplinary proceedings depends upon the nature of charges and the explanation given by the delinquent officer. There is nothing as an absolute burden of proof. In the present case both, the department as well as the delinquent officer led the evidence. There was nothing to show that the explanation put forward by the petitioner was incorrect or was taken only as an excuse. In U. P. State Road Transport Corporation v. State of U. P. and Ors., 1991 (62) FLR 263, this Court held that where the main officer who conducted the checking and submitted a report was not examined, an adverse inference was rightly drawn. In the present case, the checking report dated 24.4.1998 annexed as Annexure-1 to the writ petition states that at the time of inspection 31 passengers were without ticket and that the tickets issued to 20 passengers was not recorded in the way bill. The passengers surrounded the inspecting party and insisted that the ticket may be issued only by the conductor and in these circumstances the petitioner was required to issue tickets to the passengers and to make an entry on the way bill. The inspector report on the fact of it, is an incomplete report. It does not give the full facts. The reporting officer has not given the circumstances in which the passengers surrounded the inspecting party and requested that the ticket to be issued by the conductor, and this fact was established by the petitioner in the enquiry. The Disciplinary Authority failed to take into account the defence put forward by the petitioner, which was established on record.
15. Every breach of rules or regulations or instructions of the department cannot be taken to be misconduct. The allegations must be examined and the violation of the rules, taken into consideration along with explanation given by the delinquent employee. A technical approach in proving the charges and a mechanical narration of facts in conclusion defeats the ends of justice. Where the Disciplinary Authority fails to consider the explanation, the order violates the principle of natural justice. In the present case, the petitioner has not only explained but also established the circumstances in which he was required to proceed with the journey without completing the process of issuing the tickets. A sick child was travelling in the bus, and on the request of her father and other passengers to expedite the journey, the conductor permitted the bus to proceed and was in the process of issuing the ticket, when the inspection was made. The passengers compelled the inspecting party that the tickets should be issued only by the petitioner. There was no complaint that the petitioner had taken the money, and had not issued ticket or was carrying the passengers, with an intention not to charge or cause loss to the Corporation. In these circumstances I find that the charges were not established. There was no case of dishonesty or misappropriation. The Corporation did not suffer any loss.
16. The facts and circumstances in the judgments cited by Sri Sameer Sharma are materially different than the present case. In Sri Kishan Sharma v. Assistant Regional Manager, U. P. State Road Transport Corporation, in W. P. No. 9102 of 1980, decided on 26.2.1988, it was found that the petitioner obstructed checking party squad and preventing them from taking statement. In Ram Sanam Dwivedi v. General Manager II, U. P. State Road Transport Corporation, Varanasi, in W. P. No. 38440 of 1992, decided on 22.7,1997, it was held that the findings were not perverse requiring interference of the Court. In Regional Manager, U. P. State Road Transport Corporation v. Hoti Lal and Anr., 2003 (2) AWC 1070 (SC) : (2003) 3 SCC 605, it was held that where the conductor was carrying ticketless passengers in U. P. State Road Transport Corporation bus, the scope of judicial review, even if the loss of only Rs. 16 is limited and where the charges are of breach of trust and dishonesty, the matter should be dealt with iron hands and not leniently. In this case the Apex Court was considering the scope of interference on proportionality of the allegations and the punishment, on the established findings that the employee hurriedly tried to issue tickets to the passengers who were travelling, and old tickets were found in his possession with the intent to use them again.
17. Having given a thoughtful consideration to the matter and the fact and circumstances, in which the petitioner was required to proceed with the journey, and was in the process of issuing the tickets, and further the fact that the passengers had pressed the conductor in proceeding with the journey on account of illness of a child, I find that the charge of carrying unauthorised passenger with an intent of dishonesty causing loss to the Corporation was not established. The Disciplinary Authority and thereafter the Regional Manager in deciding the representation/appeal have not considered the report of the Inquiry Officer, and have not considered the defence of the petitioner. The order was passed mechanically without application of mind. These orders as such are not only arbitrary but violative of principles of natural justice.
18. The writ petition is allowed. The impugned order dated 31.5.2003 passed by the respondent No. 3 and the order dated 11.7.2003 passed by the respondent No. 2 are set aside. The petitioner shall be reinstated in service with all consequential benefits, including the arrears of salary and seniority. Costs are made easy.