Hon'ble Ashok Pal Singh,J.
(Delivered by Hon'ble Rakesh Tiwari, J.)
1. Heard learned counsel for the parties and perused the record.
2. Respondent no.1 Umesh Kumar was a conductor in U.P. State Road Transport Corporation. On 23.1.2002, he was found by the checking squad to be carrying some passengers without ticket. He was served with charge sheet dated 31.1.2002. The respondent no.1 participated in the inquiry and also made an application for summoning the officers of Taj Depot under the service of the Corporation for the purpose of establishing his innocence by oral evidence. These officers were not summoned by the inquiry officer and only the traffic inspector and the traffic superintendent appeared on behalf of the employer to give evidence. The explanation of the workman was that after his bus had left the Saiyan Bus Station behind, just then several passengers who were travelling in another bus which had developed a mechanical defect boarded in his bus. He was in the process of issuing tickets to them and wanted to stop the bus till it was completed, but all the passengers insisted that the bus should be first allowed to cross the approaching railway line and then only the tickets be issued to avoid any possibility of railway line being closed due to arrival of the train as it may then cause unnecessary delay. It is while the bus was moving to cross the railway line that checking staff stopped the bus and found that some passengers by that time had not been issued tickets.
3. After inquiry, the inquiry officer submitted his report saying that there was no intention of the workman to embezzle any amount but he was found a bit irresponsible for having allowed the passengers to board the bus in violation of the principle of "Pay and Board". Reason given by the inquiry officer for these findings is based on the facts that a mechanical failure had developed in another bus at a little distance away from Saiyan Bus Station and passengers of that bus had boarded the corporation bus which the respondent no.1 was conducting. He also found that the respondent no.1 had already issued tickets to ten such passengers but could not issue tickets of other passengers of the other bus. This finding was based on the record.
4. The respondent moved statutory appeal to the Zonal General Manager of the corporation, who rejected the appeal vide his order dated 31.1.2003. Aggrieved the respondent workman preferred a claim petition in the U.P. State Services Tribunal,which was registered as case no. 910 of 2004 - Umesh Kumar vs. U.P. State through U.P.S.R.T.C. Headquarters at Lucknow and two others. The Tribunal after hearing the parties and appreciating the evidence from original records granted him the relief of reinstatement with continuity of service and full back wages except forfeiture of arrears of salary during the period of his suspension. Paragraph 5 to 7 of the order passed by the Tribunal dated 8.11.2006 reads thus:
"5- mHk;i{kksa ds fo}ku vf/koDrkvksa dks foLrkj ls lquk x;k rFkk i=koyh ij miyC/k vfHkys[kksa dk HkyhHkakfr voyksdu fd;k x;kA ;g rF; vfookfnr gS fd dfFkr cl esa dqN ;k=hx.k lSa;k cl LVs'ku ls lokj gq, Fks vkSj muds fVdV jkLrs esa gh cuk;s tk jgs Fks ek++= nl fVdV gh cu ik;s Fks blh chp fujh{k.k ny us cl jksddj psfdax dh] ftlds vk/kkj ij fujh{k.k fjiksVZ rS;kj dh x;h vkSj ;kph dks vkjksfir fd;k x;kA ;kph ds fo:) tkap lEiUu dh x;h ftlesa tkap vf/kdkjh us ;g Li"V mYys[k fd;k gS fd fcuk fVdV ;kph lSa;k cl LVs'ku ds ckn gh cSBs Fks D;ksafd fujh{k.k ds le; bldh iqf"V dj nh x;h FkhA takp esa ;g Li"V dgk x;k Fkk fd ifjpkyd fVdV cukrk pyk vk jgk Fkk rFkk fcuk fVdV cSBs ;kf=;ksa ls fujh{k.k ds le; gh /ku Hkh fy;k x;k rFkk mldh fu;r [kjkc ugha Fkh ijUrq ;g ykijokgh ,oa drZO;f'kfFkyrk vo'; gS fd mlus cl dks jksddj fVdV ugha cuk;sA bl izdkj ;kph ij yxk;k x;k vkjksi vkaf'kd :i ls fl) FkkA tkap vk[;k ns[kus ls ;g Li"V gS fd ;kph dh fu;r [kjkc ugha Fkh vkSj ;kph us fdlh izdkj ls ljdkjh /ku dk dksbZ nq:i;ksx ugh fd;k vkSj u gh ljdkjh /ku dk xcu fd;kA tWkp vk[;k esa ;g Hkh Li"V gS fd ;kph fVdV cuk jgk Fkk blh chp fujh{k.k ny }kjk cl dk fujh{k.k fd;k x;k vkSj fcuk fVdV ;kf=;ksa us fujh{k.k ny ds le{k gh vius fVdV cuok;sA tWkp vf/kdkjh us Lo;a ;g Lohdkj fd;k gS fd ;kph dh fu;r [kjkc ugha Fkh blls Li"V gS fd ;kph }kjk cl jksddj fVdV u cuk;k tkuk gh ,d ek= nks"k gS ftlds ;kph dks lsok ls inP;qr djus tSlk n.M mfpr ugha ekuk tk ldrk gSA tWkp vf/kdkjh us ;kph ds fo:) yxk;s x;s vkjksiksa dks vkaf'kd :i ls fl) ik;k Fkk tcfd n.Mkns'k esa ;g mYys[k fd;k x;k gS fd ;kph ds fo:) yxk;s x;s vkjksi fl) ik;s x;s vr% n.Mkns'k fojks/kkHkk"kh gS ftlds fy, n.Mkf/kdkjh }kjk vlgefr dk dksbZ dkj.k Hkh mfYyf[kr ugha fd;k x;kA vkaf'kd :i ls nks"kh gksus ij lsok ls inP;qr lEcU/kh vkns'k ikfjr djuk fof/kd ,oa U;k;ksfpr ugha Bgjk;k tk ldrk gSA vr% n.Mkf/kdkjh }kjk ikfjr vkns'k LosPNkpkfjrk dh Js.kh esa vkrk gSA 6& ;kph us tWkp ds nkSjku fn;s x;s dkj.k crkvks uksfVl ds mRrj esa ftu rF;ksa dk mYys[k fd;k Fkk ml ij n.Mkf/kdkjh }kjk fopkj ugha fd;k x;k vkSj foi{khx.k dh vksj ls ;g dgk x;k fd ;kph }kjk cl ij lokj ;kf=;ksa dk fVdV ugha dkVk x;k] blds fy, mls tks n.M fn;k x;k og mfpr gSA bl fcUnq ij foi{khx.k ds fo}ku vf/koDrk us ek0 mPpre U;k;ky; dh :fyax fMohtuy daVzksyj] ds0,l0vkj0Vh0lh0 (,u0MCyw0ds0vkj0Vh0lh0) cuke ,0Vh0ekus] 2005 (1) ,y0ch0bZ0,l0vkj0 830 (,l0lh0) dk m)j.k fd;k gS ftlesa ;g fl)kUr izfrikfnr fd;k x;k gS %& "Misconduct that the Conducter was misappropriating the fund by not issuing the tickets to passengers.-Dismissal order from service restored."
izLrqr izdj.k esa ;kph ds mij ;g vkjksi ugha gS fd mlus ;kf=;ksa ds fVdV u dkV dj iSlk ys fy;k rFkk ljdkjh /ku dk xcu fd;k vr% foi{khx.k }kjk izLrqr :fyax izLrqr izdj.k esa ykxw ugha gksrh gSA D;ksafd ;g rF; tWkp esa fl) ugha gqvk fd ;kph us fVdV u dkVdj ;kf=;ksa ls /ku ys fy;k rFkk vius ikl j[k fy;k rFkk ljdkjh /ku dk xcu fd;k cfYd tWkp vk[;k esa ;g fl) ik;k x;k fd tks ;k=h lSa;k ls cSBs Fks muds fVdV dkVs tk jgs Fks vkSj 10 fVdV dkV Hkh fy;s x;s ftldk /ku ;kph }kjk ys fy;k x;k rFkk rFkk 'ks"k ;kf=;ksa dk fVdV fujh{k.k ny ds lkeus Lo;a dkVs x;s bl izdkj ;kph ds mij ljdkjh /ku ds xcu dk vkjksi ugha gS vkSj u gh ;kph }kjk xcu fd;k x;k vr% ;kph ds fo:) ikfjr n.Mkns'k iw.kZ :i ls euekuk ,oa i{kikriw.kZ gS tks fd fof/k ds vUrxZr iks"k.kh; ugha gSA 7& ;kph us ;kfpdk esa ;g Hkh rF; mBk;k gS fd tWkp ds nkSjku ;kph us ;g Li"V mYys[k fd;k gS fd rkt fMiks ds vf/kdkfj;ksa dks tWkp ds nkSjku lk{; gsrq izLrqr fd;k tk;A fyf[kr foospu esa foi{khx.k dk dguk gS fd tWkp ds le; mDr vf/kdkjh mifLFkr gq, Fks vkSj muds c;ku Hkh fy;s x;s Fks ysfdu tWkp vk[;k ls ;g iqf"V ugha gksrh gS fd ;kph dks muls izfrijh{k.k djus dk volj iznku fd;k x;k vFkok ugha fyf[kr foospu esa foi{khx.k dk ;g Hkh dFku gS fd ;kph us izfr ijh{k.k dh dksbZ eWkx ugha dh vkSj u gh mlus dksbZ fyf[kr izkFkZuk i= fn;kA bl lEcU/k esa ;g izfrikfnr fl)kUr gS fd ;fn dehZ }kjk tWkp ds nkSjku izfrijh{k.k dh eWkx dh x;h gks vFkok u dh x;h gks] fu;ekuqlkj mls xokgksa ls izfrijh{k.k djus dk vf/kdkj izkIr gS vkSj ;g volj mls fn;k tkuk pkfg,A izLrqr izdj.k esa ;kph dks xokgksa ls ftjg djus dk volj ugha fn;k x;k vr% tWkp izfdz;k izkd`frd U;k; ds fl)kUr ds foijhr gS vr% lHkh rF;ksa dks ns[krs gq, ;g Li"V gS fd ;kph dks tWkp ds nkSjku vius cpko dk iwjk volj iznku ugha fd;k x;k tks izkd`frd U;k; ds fl)kUr ds foijhr gSA ;kph }kjk izLrqr dh x;h vihy ,oa fuxjkuh ij lEcfU/kr vf/kdkfj;ksa }kjk Hkh fopkj ugha fd;k x;k vkSj vihy ,oa fuxjkuh dks fujLr dj fn;k x;kA tWkp esa ;g Hkh Li"V gS fd ;kph dh fu;r [kjkc ugha Fkh dsoy mlus cl jksdj fVdV u cukus dh vfu;ferrk dh gSA vr% mDr rF;ksa dks n`f"Vxr j[krs gq, ;kfpdk Lohdkj fd;s tkus ;ksX; gS rFkk fookfnr vkns'k fujLr fd;s tkus ;ksX; gSA ;kph dk ;g Hkh dFku gS fd fuyEcu vof/k dk osru Hkh fnyk;k tk; bl lEcU/k essa ;kph dks tks dkj.k crkvks uksfVl tkjh fd;k x;k mlesa bl rF; dk Hkh mYys[k fd;k x;k gS fuyEcu vof/k dk osru ugha fn;k tk;A vr% n.Mkf/kdkjh }kjk foRrh; gLr iqfLrdk esa mYysf[kr izkfo/kkuksa dk iw.kZ :i ls ikyu fd;k x;k vr% ;kph fuyEcu vof/k ds cdk;k osru dks ikus dk vf/kdkjh ugha gSA bl lEcU/k esa tks vkns'k foi{khx.k }kjk ikfjr fd;s x;s gSa mls U;k;ksfpr gS blesa fdlh izdkj ds gLr{ksi dh vko';drk ugha gSA "
5. Learned counsel for the petitioner has contended before us that principle of natural justice was fully complied with by the Corporation and that punishment awarded by the petitioner upon the workman is not disproportionate to the charges as is evident from the record. He submits that the reasoning given in the judgment impugned is not correct for the reasons that the Tribunal has found:
(a) The workman has been dismissed from service which is incorrect as he was removed from service;
(b) Finding recorded by the Tribunal that order of punishment is contradictory to the inquiry report, is incorrect as it is not based on record;
(c)Finding recorded in para 7 of the judgment impugned as to who were the officers summoned by means of application by the respondent is not mentioned.
6. On the basis of the above, it is argued by the counsel for the petitioner that the finding recorded by the Tribunal that it does not appear from the record as to whether the workman was given opportunity to cross-examine the witnesses of the Corporation in support of his charge, is incorrect.
7. We have already reproduced paragraphs 5 to 7 of the judgment, on the basis of which the aforesaid argument has been advanced by the counsel for the corporation. The finding has been recorded by the Tribunal after looking the original record of the inquiry and appeal etc. From a bare reading of paragraph 5 of the impugned judgment it appears that on perusal of the record the case of the Corporation was that the passengers had boarded from bus station at Saiyan. If that was a case, it was incumbent upon the passengers to have taken tickets from the bus station itself. However, it appears from the record that some of the passengers had boarded at a distance from the bus, which had developed mechanical fault and not from but station at Saiyan. Ten of those passengers had been issued tickets and the workman was in the process of issuing tickets to other such passengers when the passengers insisted upon him to issue tickets after crossing the railway line and upon such insistence when the bus was about to cross the railway line it was checked by the checking staff before it could actually cross the railway line. Technically it may be a violation of rule to "Pay and Board" but the inquiry officer itself in the departmental proceeding came to a conclusion that the intention of the workman was not to embezzle the amount and he had only acted in irresponsible manner succumbing to the insistence of the passengers for issuance of tickets after crossing the railway line.
8. From this finding of the inquiry officer it is apparent that act of the workman could not be termed as major misconduct. In the circumstances the punishment of removal from service awarded to him is highly disproportionate to the part of the charge proved against the workman. The punishment is to be awarded on the charges proved and not on the charges levelled, therefore, the order of removal from service can not be sustained. As regards the question that the Tribunal has used term of 'dismissal from service' in place of 'removal from service' and that it has not rightly appreciated the evidence in recording the finding that witnesses were not allowed to cross examine, therefore, action of the petitioner is against the principles of natural justice etc. are concerned, they are also not sustainable. The Tribunal after perusal of the record has given a concrete finding that in spite of the fact that respondent requested for summoning the checking staff, they were not summoned to prove his innocence and to defend himself. Thus denial of natural justice is established and therefore, there is no error in the findings of the Tribunal.
9. In our considered opinion, the contention of the counsel for the petitioner that full back wages could not have been granted to the workman as he was found to be negligent is also not sustainable as that would also amount to be disproportionate to the charges proved against the workman. In our opinion, punishment of withholding the arrear of back wages for eighteen months is sufficient for his negligence for the charges which have been proved against the workman.
10. As regards the availability of opportunity to cross-examine the traffic superintendent and assistant traffic inspector of the Corporation who are also said to have been produced for cross-examination is concerned it will not obliviate the action of the petitioner in not providing opportunity to the respondent to prove his case by the witnesses which were sought to be summoned by him during the course of inquiry. The finding recorded by the Tribunal being based on perusal of original records of the Corporation, the punishment order dated 8.11.2006 of removal from service could not have been sustained. Therefore, the Tribunal has rightly passed the order of reinstatement of workman with continuity of service and full wages except the stoppage of wages during the period of suspension, which in our opinion is for committing technical default in moving the bus to cross the railway crossing before issuing tickets to all the passengers of the private bus which had received a mechanical breakdown. There is also no illegality committed in directing the employer for payment of the amount due as the Tribunal could not have calculated the benefits itself in absence of complete materials regarding the matter made available to it.
11. For the aforesaid reasons, We uphold the impugned judgment dated 8.11.2006 passed by the U.P. State Services Tribunal. The petition is accordingly dismissed, with no order as to costs.
Order Date :- 14.3.2012 RKSh