Hon'ble Kashi Nath Pandey, J.
1. We have heard Shri Samir Sharma for the UP State Road Transport Corporation- the respondent-appellant. Shri M.K. Sharma appears for the petitioner-respondent.
2. This intra court appeal under Chapter VIII Rule 5 of the Allahabad High Court Rules, 1952, arises out of a judgement of learned Single Judge dated 21.3.2001 allowing the writ petition filed by Shri Sudhir Nigam- a Boiler Attendant at the Regional workshop of the Corporation at Bareilly, setting aside the order dated 29.6.1999 passed by Service Manager, Bareilly Region, Bareilly terminating his services, after a departmental enquiry.
3. Brief facts giving rise to the writ petition are that the petitioner was appointed as Boiler Attendant Fitter in the Regional Workshop at Bareilly (Tyre Plant of the Corporation) on 29.4.1986. He was transferred on 18.4.1992 from Bareilly to Gola Depot. The petitioner challenged the order. The High Court stayed the transfer order on 1.5.1995, subject to decision of his representation. His representation was rejected, on which he filed a fresh writ petition, which was again disposed of on 11.6.1992 to decide his representation. He was transferred to Kanpur on 27.11.1996, without deciding his fresh representation on which the petitioner filed a Contempt Petition No. 3040 of 1997. The transfer order was ultimately cancelled on 16.3.1998. The petitioner was suspended on 27.1.1999 and was given a charge sheet for indisciplined behaviour, with the Assistant Regional Accounts Officer and the Assistant Regional Manager (T) on 25.1.1999.
4. The charge sheet was served upon the petitioner and the date of enquiry was fixed. The petitioner fell seriously ill on account of 'Malaria' and 'Dysentery'. He sent medical certificate to justify his absence during enquiry. After the petitioner recovered from illness he sent a reply, after which it is admitted that he was not given any opportunity to defend himself. An enquiry report was submitted on which a show cause notice was given to petitioner on 21.4.1999. The petitioner was permitted to cross-examine Shri J.P. Singh, Assistant Regional Account Officer and Shri R.B.L. Sharma, Assistant Regional Manager (Technical). Thereafter relying upon the same show cause notice dated 21.4.1999, issued prior to the cross examination of the witnesses, the petitioner's services were terminated.
5. In his reply the petitioner submitted that the officers were annoyed with him for obtaining interim orders from High Court, against the transfer order. The petitioner was elected as General Secretary of the employees association, which was registered and for which he had forwarded information to the Managing Director on 23.1.1999. On 24.1.1999, a five-year old son of Shri Ashok Kumar Sharma, Boiler Attendant had fallen down from the roof of his house, in which there was no staircase. In order to save his son Shri Ashok Kumar Sharma jumped from his roof. He badly injured himself from the protruding angles on the wall. Both the father and son were admitted to the hospital. They required financial help and requested the petitioner to get some advance from the Corporation. When the petitioner came to the workshop to apply and get the advance, he found Shri R.B.L. Sharma and Shri J.P. Singh present in the office. The petitioner gave an application for advance to be given to Shri Ashok Kumar Sharma, on which they signed and thereafter after thanking them for having given an advance of Rs.2000/- as against Shri Sharma's salary of the month of Rs. 2849/-, the petitioner left the workshop. He did not have any further talk with the officers and did not use any abusive language.
6. The petitioner was charged in the charge sheet dated 27.1.1999 with the allegations for approaching the aforesaid two officers Shri J.P. Singh and Shri R.B.L. Srivastava, on 25.1.1999, without any reason. On their request the petitioner did not give any reason for visiting them. It is alleged that the petitioner abused them, as the petitioner wanted to prove himself as a hero of the employees. His act was alleged to have constituted gross indiscipline and, which vitiated the atmosphere in the workshop. The petitioner acted against the employees code of conduct. The statement of Shri J.P. Singh, Assistant Regional Accounts Officer and Shri R.B.L. Sharma, Assistant Regional Manager (Technical) dated 25.1.1999, was disclosed in charge sheet, to be used as evidence against the petitioner.
7. The petitioner denied that he had used harsh language and had abused the officers. In his reply he stated that he had approached them for sanction of payment of advance of the salary of Shri Ashok Kumar Sharma. As soon as his application was accepted, he left the place. In the ex-parte enquiry report after narrating the facts, as above, the enquiry officer observed that since the petitioner was elected as the leader of the employees, he had purposely misbehaved with the officers. In the last paragraph of the enquiry report the Assistant Regional Manager observed that since the petitioner did not appear during the departmental enquiry, it was apparent that he has no material to defend himself and thus the charges were established. In the cross-examination of Shri J.P. Singh by the petitioner, the officer accepted that the petitioner never met them for any work since 31.3.1998. He had no knowledge of the purpose for which he had approached him on 25.1.1999. When the petitioner reminded him that he had approached him in connection with the advance of Shri Ashok Kumar Sharma, who was admitted in the hospital along with his son and that the officer had recommended for advance of Rs. 2000/-, the officer replied that he was not sitting in the shed nor any application of Shri Ashok Kumar Sharma was brought before him. Shri R.B.L. Sharma in his answers to the questions put by the petitioner, admitted that the petitioner had never misbehaved with him prior to 25.1.1999. The officer stated that he had no knowledge of the purpose for which the petitioner had approached him. On a question put to the officer as to whether the petitioner had misbehaved with both the officers Shri Sharma stated that the petitioner had misbehaved with the Assistant Accounts Officer and thereafter with both of them. He did not give any answer to the questions about the purpose for which the petitioner had visited him.
8. Shri Ashok Kumar Sharma in his statement stated that he needed money to arrange for blood for his son. The hospital was about 8 k.m away from the workshop. The Service Manager had come in his car to visit him at the hospital and informed him that the advance of salary had been approved. The Service Manager did not inform him that Shri Sudhir Nigam had picked up any fight or misbehaved with the officers. The Service Manager had consoled him and assured to help him. The Service Manager thereafter on 11.6.1999 reiterated the contents of the enquiry report to which the petitioner had submitted his reply on 26.6.1999, stating all over again that he had not misbehaved with the officers. The Service Manager did not accept his defence and terminated his service by order dated 29.6.1999, giving rise to the writ petition.
9. Learned Single Judge held that the order of termination was not sustainable in law for the reasons; (i) the petitioner repeatedly approached the High Court and was successful in getting interim orders against his transfer, causing prejudice to the employer; (ii) the enquiry officer narrated the facts and in the end jumped to the conclusion of misconduct without referring to the explanation given by the petitioner in his defence; (iii) the conclusions drawn by the enquiry officer and the disciplinary authority, were not supported by reasons, and do not show application of mind; (iv) the disciplinary authority also like the enquiry officer was influenced by the circumstances that the petitioner did not appear in the proceedings inspite of fixing several dates; (v) the defence taken by the petitioner prima facie disclosed a valid reason for visiting the office on the fateful day of alleged event, was not considered; (vi) the statement of Shri Ashok Sharma, who was present on the spot, could not be treated as a circumstance against the petitioner or his statement was relevant for the purposes of showing that the petitioner had valid reasons to visit the concerned officers; (vii) the reasons given in the order of dismissal were treated merely as an apology given by the petitioner in complete ignorance to the material on record and (viii) the alternative remedy of filing statutory appeal under Regulation 69 of the U.P. State Road Transport Corporation Employees (Other Than Officers) Service Regulations, 1981, could not be a ground to dismiss the petitioner as the writ petition was pending in the High Court for almost two years, after exchange of affidavits.
10. Shri Samir Sharma has relied upon judgements of the Supreme Court in Union of India and others vs. Mohd. Ramzan Khan AIR 1991 SC 471; Dr. J.N. Banavalikar v. Municipal Corporation of Delhi and another AIR 1996 SC 326; All India State Bank Officers Federation and others vs. Union of India and others JT 1996 (8) S.C. 550; U.P.S.R.T.C. vs. Ram Kishan Arora (2007) SCC 627 and Sarva Uttar Pradesh Gramin Bank vs. Manoj Kumar Sinha (2010) 3 SCC 556 in support of his submissions. He submits that in these judgements the Supreme Court had held that for proving prejudice and malafides, the person, against whom such allegations have been made, must be impleaded as a party to the proceedings. The non-supply of enquiry report does not ifso facto vitiate the punishment unless the employee shows any prejudice to him, and that even if the High Court finds that the punishment is disproportionate, the course ordinarily open to the High Court was to remit the matter to the employer for reconsideration of the quantum of punishment. Shri Samir Sharma has relied upon U.P.S.R.T.C. vs. Ram Kishan Arora's case (supra) in submitting that at best if the High Court was not satisfied with the reasons given by the enquiry officer and the disciplinary authority, the High Court should have remanded the matter. He has relied upon para-9 of the judgment quoted as below:-
9. In U.P.S.R.T.C. v. Suresh Pal2 this Court stated the law, thus: (SCC pp.110-11, paras 8-9)
8. Normally, courts do not substitute the punishment unless they are shocking disproportionate and if the punishment is interfered or substituted lightly in exercise of their extraordinary jurisdiction then it will amount to abuse of the process of court. If such kind of misconduct is dealt with lightly and courts start substituting the lighter punishment in exercising the jurisdiction under Article 226 of the Constitution then it will give a wrong signal in the Society. All the State Road Transport Corporations in the country have gone in red because of the misconduct of such kind of incumbents, therefore, it is the time that misconduct should be dealt with iron hands and not leniently.
9. Learned counsel for the appellant invited our attention to a decision of this Court in Regional Manager, U.P. S.R.T.C., Etawah and Ors. v. Hoti Lal, wherein, this Court has very categorically held that a mere statement that it is disproportionate would not suffice to substitute a lighter punishment. This Court held as under (SCC p.606):
"The court or tribunal while dealing with the quantum of punishment has to record reasons as to why it is felt that the punishment was not commensurate with the proved charges. The scope for interference is very limited and restricted to exceptional cases. In the impugned order of the High Court no reasons whatsoever have been indicated as to why the punishment was considered disproportionate. Failure to give reasons amounts to denial of justice. A mere statement that it is disproportionate would not suffice. It is not only the amount involved but the mental set-up, the type of duty performed and similar relevant circumstances which go into the decision-making process while considering whether the punishment is proportionate or disproportionate. If the charged employee holds a position of trust where honesty and integrity are inbuilt requirements of functioning, it would not be proper to deal with the matter leniently. Misconduct in such cases has to be dealt with iron hands. Where the persons deals with public money or is engaged in financial transactions or acts in a fiduciary capacity, the highest degree of integrity and trustworthiness is a must and unexceptionable. Judged in that background, conclusions of the Division Bench of the High Court are not proper."
In view of the above observation made by this Court there remains nothing more to be added."
11. Shri Manoj Kumar Sharma appearing for the petitioner-respondent submits that the stay of the transfer orders, and the filing of the contempt petition had prejudiced the officers of the workshop. The petitioner was elected as the General Secretary of the employees association. The officers were looking for an opportunity to get rid of him, and grabbed the occasion, when the petitioner had approached them for sanctioning advance salary to one of the employees admitted in hospital with his son. The charge sheet did not speak of the words used by the petitioner to abuse the officers. The disciplinary authority had accepted the explanation given by the petitioner for his absence during the enquiry proceedings and allowed him to cross-examine the officers. They did not mention anything about the misbehaviour of the petitioner. They also did not deny that the petitioner had approached them for sanction of advance of the salary of Shri Ashok Kumar Sharma.
12. Shri Manoj Kumar Sharma submits that in the absence of evidence with regard to the behaviour and conduct of the petitioner, the findings that the petitioner had abused the officers is, without any material brought on record. There was absolutely no material on record to support the findings that the petitioner had used harsh or unparliamentary language and had abused the officers. The background, in which the petitioner had obtained interim orders and was elected as General Secretary, was used against him, and the suggestion that the petitioner wanted to prove himself as a hero of the employees and thus he misbehaved with the officers proves prejudice against him. He has relied upon judgments in Yoginath D. Bagde v. State of Maharashtra and another JT 1999 (6) SC 62; Ram Kishan v. Union of India & ors JT 1995 (7) S.C. 43 in support of the submission that where the findings are perverse and are not supported by the evidence on record, or the findings recorded at the domestic trial are such to which no reasonable person would have reached, it is open to the High Court as also the Supreme Court to interfere in the matter. Although the Court does not sit in appeal over the findings recorded by the enquiry officer and disciplinary authority in the departmental enquiry, it does not mean that in no circumstances can the Court interfere. An opportunity was given to the petitioner after the enquiry officer submitted his report but that without considering the material brought on record in the enquiry proceedings and the reply given by the petitioner, the disciplinary authority proceeded to agree with the report of the enquiry officer. In their cross examination the two officers were asked specific questions about the manner the petitioner had misbehaved with them. They chose to remain silent and simply reiterated that the petitioner had misbehaved without giving any details. Shri M.K.Sharma has also relied upon a Division Bench judgment of this Court in R.P. Pandey vs. U.P. Power Corporation Ltd and others (2004) 3 UPLBEC 3110 in which the alternative remedy was not held to be absolute bar and where the writ petition was entertained and was pending for longer, it was not thought appropriate to relegate the petitioner to alternative remedy.
13. In this case learned Single Judge has not given sufficient reasons but that after examination of facts and circumstances of the case, we do not find that his conclusions suffer from any legal error. The petitioner had twice succeeded in getting interim orders from the High Court against his transfer orders, and had also filed the contempt petition on which his subsequent transfer order was cancelled. He was elected as General Secretary of the employees association. The association was recognised a few day before the incident. It was not denied by the Disciplinary Authority that one of the employee's son had suffered serious injuries on falling from the roof and that the employee in order to save his son had also injured himself. The petitioner had approached the officers in the workshop for advance of the salary to the employee. The Assistant Accounts Officer had recommended for giving the advance. At the time when the petitioner had approached the two officers, no one else is said to be present, on the spot. The officers have not given any details about the attitude of the petitioner and the language, which he may have used and which was stated to be abusive in the charge sheet to constitute misconduct. They did not examine themselves before the Enquiry Officer to prove the allegations. The petitioner had fallen ill when the enquiry had initially proceeded against him. The disciplinary authority found it fit, to allow him to cross-examine the officers, even after submission of the enquiry report. The petitioner put questions to the officers, to which they did not deny that they were approached in connection with the advance of salary of the injured employee. They did not choose to give answers to the questions put to them about the manner in which the petitioner had misbehaved with them and did not choose to mention the words or the gestures, which were treated to be offensive and amounted to misconduct. There is absolutely no material on record to show that the petitioner had abused them, except their own statement in the preliminary enquiry, in which they have not given out the words, which the petitioner may have spoken to them.
14. We are of the opinion, that where the allegations of misconduct constitute a set of facts alleging misbehaviour and use of abusive language, it was necessary for the person, who levels the allegations, to give out some details, of the manner in which the delinquent employee had addressed them and some indication of the words, language, or gestures which he may have used to be treated as abusive. If they choose to remain silent, and do not give out the details, the disciplinary authority cannot be said to be justified in accepting their allegations. The disciplinary authority has not given any reasons in proof of the allegations against the petitioner except the statements of the two officers in which they did not give out any such facts which may constitute misconduct to award the punishment of termination of his services.
15. The officers admitted in their cross examination that the petitioner had never talked to them prior to approaching them on the relevant date for sanction of advance salary for the injured officers. There was no material to show that the petitioner has misbehaved with any person in the past, or was used to speak in abusive language. The allegations, that the petitioner used abusive language to prove himself to be a leader of the employee, were only a presumption based on the facts, which did not prove misconduct.
16. We are in agreement with learned Single Judge in his finding that there was no material on record to suggest that the petitioner had abused the officers, and had thus committed misconduct inviting the punishment of termination of his service.
17. The Special Appeal is dismissed.
Dt. 02.11.2010 RKP/