Hon'ble Saurabh Lavania,J.
1. Case called out in the revised list. No one is present on behalf of the respondent.
2. Heard learned counsel for the petitioner Sri Prabhu Ranjan Tripathi and learned State counsel.
3. Under challenge is the judgment and order dated 18.11.2013 passed by the U.P. State Public Services Tribunal, U.P. Lucknow (in short "Tribunal") in the claim petition No.1769 of 2008 Hawa Singh Vs. Managing Director, U.P.S.R.T.C. and others.
4. By means of the impugned order dated 18.11.2013 the Tribunal allowed the claim petition. The operative portion of the order impugned order dated 18.11.2013 is quoted here in under:-
"In view of appreciation of facts, records and arguments, claim petition is allowed impugned orders dated 29.11.2004 and 01.01.2008 as contained in Annexure Nos. 1 & 2 to the claim petition are set aside and opposite parties are directed to reinstate the petitioner in service alongwith all consequential service benefits as per rules. Compliance of this judgment and order shall be made by the opposite parties within a period of three months from the date on which a certified copy of the same is presented before them."
5. While allowing the claim petition the Tribunal observed that the enquiry officer failed to conducted the inquiry as required under the law and the punishment of termination awarded against the Hawa Singh (now deceased)/claimant-respondent is too harsh. The relevant portion of the judgment and order dated 18.11.2013 is quoted below for ready reference:-
"On consideration of arguments put up by both the parties the point for consideration is whether proper procedure has been adopted by the opposite parties before passing the impugned punishment order dated 29.11.2004 or not? Whether punishment awarded to the petitioner is proportionate to the guilt proved against petitioner or not? While considering these aspects of the matter, on perusal of the enquiry report dated 17.05.2004 we find that it is the only two page enquiry report, in which, only factual aspects of the matter have been mentioned. It does not reveal as to how the reporting officer came to the conclusion that petitioner has consumed excess diesel against the norms. Reporting officer has not properly been examined nor petitioner has been given fair and reasonable opportunity to cross-examine the witnesses. It is also not revealed as to what were the documentary evidences on the basis of which enquiry officer has concluded his recommendation. On perusal of charge sheet available as Annexure No.4 it is found that this charge sheet does not contain any documentary evidences in support of the charges leveled against the petitioner nor it reveals the names of the witnesses who have prepared the report regarding consumption of diesel. These lapses on behalf of the enquiry officer makes charge sheet incomplete and insufficient. Unless some documentary evidences are made part of the charge sheet and copies of the same are supplied to the petitioner, the charge sheet cannot be said to be supported by documentary evidences/witnesses. Thus, charge sheet given to the petitioner is incomplete which proves that petitioner has been served with a charge sheet which does not contain any documentary evidence. Charge sheet without any evidence is not legally sustainable. Once it is established that charge sheet is not legally sustainable, then report of the enquiry officer based on this charge sheet become illegal and suffers from procedural infirmity.
So far as, the point of quantum of punishment is concerned, petitioner has been terminated from service for charge of excess consumption of diesel of Rs.1382.40 which is definitely not only too harsh but also disproportionate to the guilt proved against him. This discussion discloses that procedure adopted by the opposite parties in charge sheeting the petitioner and conducting the departmental enquiry is not legally sustainable nor petitioner has been given fair and reasonable opportunity of defence. So far as, the appellate order dated 01.01.2008 is concerned, on perusal of this order we find that appellate authority has not considered above aspects while passing the appellate order. Therefore, order passed by the appellate authority dated 01.01.2008 also suffers from procedural and legal infirmity and is not sustainable in the eyes of law."
6. Being aggrieved by the judgment and order dated 18.11.2013 the present writ petition has been filed by the U.P. State Road Transport Corporation.
7. While entertaining the writ petition, this Court was pleased to pass the interim order on 12.12.2014, the same reads as under:-
"Issue notice to sole opposite party returnable within next eight weeks.
It has been sought to be submitted on behalf of petitioner-corporation that full fledged opportunity of hearing was given for and then in the instant case punishment order has been awarded and the Tribunal in the present case unnecessary it has taken liberal view by directing his reinstatement.
In the facts of the case, as Tribunal has recorded finding that quantum of punishment of termination of services for the charges of spending consumption of more diesel from the standard distance and thus causing loss of amount of Rs.1302.40/- is too harsh and excessive to the guilt in view of this, this Court proceeds to pass an order that the claimant-respondent should be reinstated back in service within one month from today and he shall also be ensured payment of salary along with other employees of the establishment in question but as far as back wages are concerned, the same is directed to be kept in abeyance till the next date of listing."
8. It appears from the record that the claimant-respondent expired on 25.02.2014 and the information regarding death of the claimant- respondent was brought to the notice of this Court through an application of dismissal of writ petition supported by an affidavit dated 30.03.2018 sworn by Deepak Kumar Singh.
9. On coming to know about the death of the claimant-respondent the application for substitution was preferred by the petitioner on 02.12.2017 and subsequently the application was allowed vide order dated 11.09.2018 and pursuant to the same the legal heirs of the claimant-respondent were substituted in the writ petition on 15.09.2018.
10. In the aforesaid background we are considering the present case as well as impugned judgment and order dated 18.11.2013.
11. The brief facts of the case which are relevant for the proper disposal of the present writ petition are that the claimant-respondent was initially appointed on the post of driver in the year 1998 in the District Muradabad and thereafter he was transferred to the Faizabad Region, Faizabad.
12. While he was posted as driver in Faizabad Region, Faizabad, the Senior Foreman submitted his report on 29.09.2003 to Assistant Regional Manager, Faizabad, stating therein that on 29.09.2003 the claimant-respondent (now deceased), while driving the bus on Gonda-Allahabad route consumed excess diesel in comparison to other vehicles on the same route on the same day. The said report also contains the facts that on 08.03.2003 the claimant-respondent consumed excess diesel. It also contains the similar facts mentioned in the report dated 16.09.2003.
13. Pursuant to report dated 29.09.2003, the claimant-respondent was charge sheeted. The charges as mentioned in the charge-sheet are quoted here in under:-
ÞfofHkUu frfFk;ksa esa ekud ls vf/kd Mhty ysdj fuxe dks :i;k 1382-40 dh {kfr igqapkbZA Ikfjpkyd ls Hkz"Vkpkj djus ds mn~ns'; ls ekxZ cnydj ;k lapkyu vkns'kksaA lk{; tks nks"kkjksi.k dk leFkZu djrs gSa] vkSj ftlds vk/kkj ij vkids ekeys esa fopkj fd;k tkuk gSAß
14. The claimant-respondent submitted his reply to the charge-sheet on 13.05.2004 and in its reply it has been stated that on account of bad road condition and the mechanical defects in the bus the excess diesel was consumed. In this regard the Tribunal in the impugned judgment has observed as under:-
"That the applicant present his defence before the Opposite Party No.2 on 13.05.2004 wherein he stated that his all complaints and reports submitted in the register of Depot regarding those vehicles will enough to provide him innocent. He made clear that due to heavy rush and Road jam the consumption of fuel i.e. diesel in the vehicles was too much. He also stated that the pump of the vehicle was not working properly that was also the reason of consumption of extra fuel. But the opposite party no.2 did not paid any heed to the defence of the applicant."
15. Thereafter the enquiry officer submits his report holding that the charges leveled against the claimant-respondent are found proved. The relevant portion of the enquiry report is quoted below for ready reference:-
Þizdj.k i=koyh esa fjiksVZ vkjksi i= ,oa vkjksih }kjk izLrqr mRrj rFkk fjiksVZdrkZ ,oa vkjksiha ls fd;s x;s iz'u vkfn dk lw{e o xgu v/;;u fd;k x;k vkSj ik;k x;k fd vkjksih }kjk vius mRrj ,oa fjiksVZdrkZ ls fd;s x;s izfr ijh{k.k esa lM+d [kjkc ,oa okgu dh rduhdh n'kk [kjkc gksus ds dkj.k vf/kd Mhty [kir dh ckr dgh x;h ijUrq mldk dksbZ izek.k izLrqr ugha fd;k x;kA izdj.k ls lEcfU/kr okgusa lHkh ubZ Vh0lh0 okgus gSa vkSj mudk vkSlr fdlh Hkh n'kk esa 5 ls de ugha vkuk pkfg, vkSj mUgh okguksa ij vU; pkydksa }kjk vPNk vkSlr Hkh fn;k x;k gSAß
16. Thereafter the show cause notice was issued to the claimant-respondent, to which the claimant/respondent submitted his reply, thereafter the Disciplinary Authority vide order dated 29.11.2004 terminated the services of the claimant-respondent.
17. Aggrieved by the said order of termination dated 29.11.2004 the claimant-respondent filed a statutory appeal and same was decided on merits pursuant to the order passed by this Court dated 19.07.2007 in (Writ Petition No.3996 S/S of 2007). The appellate authority dismissed the appeal of the claimant-respondent vide order dated 01.01.2008.
18. Feeling aggrieved by the order dated 29.11.2004 and 01.01.2008 the claimant-respondent filed the claim petition No. 1769 of 2008 (Hawa Singh Vs. Managing Director U.P.S.R.T.C.), before the Tribunal. The present petitioner contested the claim petition by filing detailed counter affidavit before the Tribunal stating therein that enquiry officer conducted the enquiry in the proper manner and the enquiry officer held that the charges leveled against the claimant/respondent are found proved and considering same, show cause notice was issued, to which reply was submitted thereafter the Disciplinary Authority as well as the Appellate Authority, after considering the entire material on record, passed the order of punishment dated 29.11.2004 and the order dated 01.01.2008, respectively.
19. The Tribunal after considering the material available on record allowed the claim petition vide impugned Order dated 18.11.2013, with a direction to the petitioner to reinstate the claimant-respondent with all the consequential benefits.
20. Challenging the order passed by Tribunal dated 18.11.2013, the present writ petition has been filed. This Court while entertaining the writ petition passed an interim order dated 12.12.2014. On account of interim order dated 12.12.2014 claimant-respondent could not reinstated in service and expired on 25.02.2014.
21. The learned counsel for the petitioner, Sri Prabhu Ranjan Tripathi, while assailing the order dated 18.11.2013 passed by the Tribunal, on the basis of pleadings and documents on record, submitted that the reasons/findings recorded by the Tribunal in paragraph 7 of the impugned order are contrary to record as the proper opportunity of hearing was given to the claimant-respondent and the documents as mentioned in the charge sheet were provided. The document mentioned in the charge sheet i.e. report of the Senior Foreman was provided to the delinquent and the concerned were also examined and cross-examined before the enquiry officer, for which dates were fixed in the enquiry proceedings.. The enquiry officer after considering the reply of the delinquent and the material available on record held that the charges against the delinquent found proved.
22. In regard to the reasons recorded by the Tribunal in paragraph 8 of the impugned judgment, the learned counsel for the petitioner submitted that the amount, which is meager in nature, is not relevant for considering the proportionality of the order of punishment, if guilt pertaining to meager amount is found proved then the major punishment can be awarded.
23. The prayer is to interfere in the impugned judgment and order dated 18.11.2013.
24. We have considered the submissions made by learned counsel for the petitioner and perused the record.
25. We find from the charges mentioned in the charge-sheet, quoted hereinabove, that first charge mentioned in the charge-sheet, is to the effect that on account of higher consumption of diesel, the Corporation has suffered loss of Rs.1382.40/- and the second charge is to effect that for the purposes of mis-appropriation of fund, the route was diverted.
26. In the light of the aforesaid charges, we have also considered the enquiry report. We find from the enquiry report, particularly the portion which is quoted hereinunder, that enquiry officer has rejected the plea taken by the claimant-respondent, which was to the effect that on account of bad road condition and mechanical defects in bus the excess diesel was consumed, but there is no finding in the enquiry report on the charge no.2, which is to the effect that for the purposes of mis-appropriation of funds the route was diverted by the claimant-respondent, and the enquiry officer has also not in recorded any finding, that the meager amount i.e. sum of Rs.1382.40/- was mis-appropriated by the claimant-respondent.
27. In absence of any finding of mis-appropriation of fund, we are of the view that the order of punishment awarded by the Disciplinary Authority vide order dated 29.11.2004 i.e. order of termination is not proportionate, keeping in view the meager amount i.e. sum of Rs. 1382.40/- which relates to consumption of diesel.
28. Considering the entirety of the case including the facts that the claimant/respondent has expired on 25.02.2014, we are not dwelling on the issue related to the holding regular enquiry conducted by the enquiry officer as well as reasons recorded on the same by the Tribunal in impugned judgment and order dated 18.11.2013, in paragraph 7.
29. For the reasons aforesaid, we are only confining ourselves on the issue that whether the punishment of termination awarded to the claimant/respondent is harsh or not.
30. On the findings given by the enquiry officer, we are of the view that in absence of any finding on the issue of mis-appropriation of fund the punishment of Termination awarded to the claimant-respondent on 29.11.2004 is too harsh.
31. Accordingly, we are not inclined to interfere, for the aforesaid reasons as well as for the reasons that the claimant-respondent has already expired on 25.02.2014, in the impugned judgment and order dated 18.11.2013 passed by Tribunal, so far as it relates to quashing of order of punishment dated 29.11.2009 and order of Appellate Authority dated 01.01.2008. However, keeping in view the fact that the claimant-respondent expired on 25.02.2014 and on 12.12.2014 this Court was pleased to pass an interim order in favour of the petitioner and prior to the death of the claimant-respondent was not reinstated in service and w.e.f. 29.11.2004, the date of termination, till date of death i.e. 25.02.2014, he was not serving the department, we, in the interest and ends of justice provide that the legal heirs of the claimant-respondent would be entitled to only 25% of back wages alongwith interest @ 6% per annum and other service benefits treating the claimant-respondent in service till date of his death i.e. 25.02.2014, meaningthereby that period with effect from 29.11.2004 to 25.02.2014 would be counted for the purposes of service benefits available to the legal heirs of the claimant-respondent.
32. In the above terms the writ petition is disposed of.
Order Date :-27.09.2019 Vinay/-