1. Heard Sri Akhilesh Kumar Srivastava, learned counsel for petitioner and perused the material available on record.
2. This writ petition is directed against award dated 14.02.2008 passed by Industrial Tribunal II, U.P., Lucknow (hereinafter referred to as "Tribunal") in Adjudication Case No. 277 of 2006.
3. Respondent-workman, Ram Sahodar Tewari (now deceased and substituted by legal heirs who are respondents-1 to 3), was a driver in U.P. State Road Transport Corporation (hereinafter referred to as "UPSRTC"). He met an accident on 05.09.1986 while driving bus No. UGO-9040 running from Kanpur to Lucknow in night, with another bus of UPSRTC no. No. 8691. Respondent-workman also sustained serious injuries. Alleging that he was driving vehicle rashly and negligently and caused loss to UPSRTC, he was placed under suspension on 31.12.1988 and charge-sheet dated 24.02.1987 was served upon him containing a single charge which reads as under:-
";g fd tc vki pkjckx fMiks esa rSukr Fks fnukad 5-9-86 dks tc vkidh fu;qfDr dkuiqj&y[kuÅ lsok dh cl la[;k ;w0th0vks0 9040 ij Fkh] vkius cl dks fu/kkZfjr xfr ls vf/kd rst rFkk vlko/kkuh iwoZd pykdj ekXkZ esa ngh dh pkSdh ds ikl cl la[;k 8691 dks vksojVsd djkus dh ps"Vk dhA rhoz xfr ls cl pykus ds dkj.k vki cl dks dUVªksy u dj lds rFkk cl la[;k 8691 esa VDdj ekj dj mDr nksuksa clksa dks nq?kZVuk xzLr dj fn;k ftlds QyLo#i fuxe dks vkfFkZd {kfr ds lkFk&lkFk cl esa lokj ;kf=;ksa dks Hkkjh vlqfo/kk o 'kkjhfjd pksV igq¡ph rFkk viuh bl ykijokgh ls ifjogu fuxe dh izfr"Bk ij xgjk vk?kkr yxkA** "That when you were posted at Charbagh Depot; on 5.9.86 when you were deputed on Bus Number U.G.O. 9040 of Kanpur- Lucknow Bus Service then you tried to overtake Bus Number 8691 near Dahi Ki Chauki by driving the bus more than the prescribed speed rashly and negligently. Due to driving the bus in fast speed you could not control the bus and collided with Bus Number 8691 and caused accident to both the buses; in consequence whereof the Corporation suffered financial loss as well as the bus passengers suffered serious discomfort and physical injury; and the Corporation faced serious blow to its reputation due to this negligence of yours." (English Translation by Court)
4. Enquiry Officer fixed various dates but it is said that no oral enquiry was conducted and only the person who conducted a preliminary enquiry was examined and, thereafter, he submitted report holding charge proved whereupon order of punishment dated 31.12.1989 was imposed upon respondent-workman by removing him from service. Workman raised an industrial dispute in exercise of power under Section 4K of U.P. Industrial Disputes Act, 1947 (hereinafter referred to as "Act, 1947") following Reference was made:-
ÞD;k lsok;kstdkas }kjk vius Jfed Jh vkj0,l0 frokjh iq= Jh jke la[k/kj] cl pkyd dks fnukad 31&12&88 ls dk;Z ls i`Fkd fd;k tkuk vuqfpr rFkk voS/kkfud gS] ;fn ugha rks lacaf/kr Jfed D;k fgrykHk ikus dk vf/kdkjh gS rFkk mlds ns;ksa ds fooj.k D;k gS\ß "Whether removal of their workman Shri R.S. Tiwari son of Shri Ram Shankhdhar, Bus Driver from service by the employers from 31.12.88, is improper and illegal? If not, then for which benefit the concerned workman is entitled and what are the details of his dues?" (English Translation by Court)
5. Tribunal has held that no oral enquiry was conducted in which charge of petitioner was proved and he was not given any opportunity to place his defence. It has declared order of termination illegal and directed for giving benefit of back wages. Since workman died on 15.04.1999 hence there was no question of reinstatement. Operative part of Tribunal's order reads as under:-
**esjs }kjk oknh Jfed dks vuqrks"k fn;s tkus ds iz'u ij fopkj fd;k gSA lkekU;rkSj ij ,sls ekeys esa oknh Jfed lsok esa iquZcgkyh dk vf/kdkjh gSA ijUrq bl ekeys esa oknh Jfed dh e`R;q fnukad 15&4&99 dks gks pqdh gSA vr,o lsok es iquZcgky fd;s tkus dk dksbZ iz'u gh ugha mBrk gSA lsok ls foBk;s tkus dh frfFk fnukad 31&12&88 ls e`R;q dh frfFk 15&4&99 rd dh vof/k dk lEiw.kZ osru mls ns; gksxkA mls ;g ossru fuyacu dh vof/k ds fy, Hkh ns; gksxk ;fn mls bldk Hkqxrku ugha fd;k x;k gSA oknh Jfed o bl izdkj ds ns; ykHk dk Hkqxrku mlds okfjlku ftUgsa bl okn esa i{kdkj izfr"Bkfir fd;k x;k gS dks cjkcj va'k esa ns; gksxkA** "The question of granting relief to the applicant workman has been considered by me. Usually in such matters the applicant workman is entitled to be reinstated in service but in the present matter the applicant workman has died on 15.4.99. Therefore no question of reinstatement in service arises. The full salary of the period from the date of his lay-off from service i.e. 31.12.88 upto the date of death i.e. 15.4.99, shall be payable to him. This salary shall be payable to him for the period of suspension also if it has not been paid to him. The payment of such dues of applicant workman shall be payable to his successors, who have been substituted in this case as party, in equal share."
(English Translation by Court)
6. Learned counsel for petitioner submitted that various dates were fixed and officer who conducted preliminary enquiry was examined, therefore, it cannot be said that no oral enquiry was conducted.
7. Admittedly, Ram Chadra, Junior Station Incharge, was not an eye witness to accident. He only conducted preliminary enquiry pursuant whereto charge-sheet was served. In order to prove charge of misconduct against petitioner, no evidence was examined.
8. Moreover, I also find from a bare reading of charge that it does not constitute a "misconduct" at all. It would at the best, shows that workman concerned may not be a very good driver at particular time of point and inefficient but that cannot be said to be a "misconduct".
9. 'Misconduct' has been defined in Black's Law Dictionary, Sixth Edition at page 999:
"A transgression of some established and definite rule of action a forbidden act, a dereliction from duty, unlawful behavior, wilful in character, improper or wrong behavior, its synonyms are misdemeanor, misdeed, misbehavior, delinquency, impropriety, mismanagement, offence, but not negligence or carelessness."
10. 'Misconduct in Office' has been defined as:
"Any unlawful behavior by a public officer in relation to the duties of his office, wilful in character. Term embraces acts which the office holder had no right to perform, acts performed improperly and failure to act in the face of an affirmative duty to act."
11. P. Ramanatha Aiyar's Law Lexicon, Reprint Edition 1987 at page 821 defines ''misconduct' thus:
"The term misconduct implies a wrongful intention, and not a mere error of judgment. Misconduct is not necessarily the same thing as conduct involving moral turpitude. The word misconduct is a relative term, and has to be construed with reference to the subject matter and the context wherein the term occurs, having regard to the scope of the Act or statute which is being construed. Misconduct literally means wrong conduct or improper conduct. In usual parlance, misconduct means a transgression of some established and definite rule of action, where no discretion is left, except what necessity may demand and carelessness, negligence and unskilfulness are transgressions of some established, but indefinite, rule of action, where some discretion is necessarily left to the actor. Misconduct is a violation of definite law; carelessness or abuse of discretion under an indefinite law. Misconduct is a forbidden act; carelessness, a forbidden quality of an act, and is necessarily indefinite. Misconduct in office may be defined as unlawful behaviour or neglect by a public officer, by which the rights of a party have been affected."
12. Meaning of 'misconduct' came up for consideration in Union of India Vs. J. Ahmed, AIR 1979 SC 1022, wherein, explaining the term 'misconduct', Court held as under:
"It would be appropriate at this stage to ascertain what generally constitutes misconduct, especially in the contest of disciplinary proceedings entailing penalty." (para 10) "Code of conduct as set out in the Conduct Rules clearly indicates the conduct expected of a member of the service. It would follow that that conduct which is blameworthy for the Government servant in the context of Conduct Rules would be misconduct. If a servant conducts himself in a way inconsistent with due and faithful discharge of his duty in service, it is misconduct (see Pearce v. Foster) (1988) 17 QBD 536 (at p.542). A disregard of an essential condition of the contract of service may constitute misconduct [see Laws v. London Chronicle (Indicator Newspaper)]. (1959) 1 WLR 698. This view was adopted in Shardaprasad Onkarprasad Tiwari v. Divisional Supdt., Central Railway, Nagpur Divn., Nagpur, 61 Bom LR 1596: (AIR 1961 Bom 150) and Satubha K. Vaghela v. Moosa RazaF, (1969) 10 Guj LR 23. The High Court has noted the definition of misconduct in Stroud's Judicial Dictionary which runs as under: -
"Misconduct means, misconduct arising from ill motive; act of negligence, errors of judgment, or innocent mistake, do not constitute such misconduct."
In industrial jurisprudence amongst others, habitual or gross negligence constitute misconduct but in Management, Utkal Machinery Ltd. v. Workmen, Miss Shanti Patnaik, (1966) 2 SCR 434: (AIR 1966 SC 1051), in the absence of standing orders governing the employee's undertaking, unsatisfactory work was treated as misconduct in the context of discharge being assailed as punitive. In S. Govinda Menon v. Union of India, (1967) 2 SCR 566: (AIR 1967 SC 1274), the manner in which a member of the service discharged his quasi judicial function disclosing abuse of power was treated as constituting misconduct for initiating disciplinary proceedings. A single act of omission or error of judgment would ordinarily not constitute misconduct though if such error or omission results in serious or atrocious consequences the same may amount to misconduct as was held by this Court in P.H. Kalyani v. Air France, Calcutta, (1964) 2 SCR 104: (AIR 1963 SC 1756), wherein it was found that the two mistakes committed by the employee while checking the load-sheets and balance charts would involve possible accident to the aircraft and possible loss of human life and, therefore, the negligence in work in the context of serious consequences was treated as misconduct. It is, however, difficult to believe that lack of efficiency or attainment of highest standards in discharge of duty attached to public office would ipso facto constitute misconduct. There may be negligence in performance of duty and a lapse in performance of duty or error of judgment in evaluating the developing situation may be negligence in discharge of duty but would not constitute misconduct unless the consequences directly attributable to negligence would be such as to be irreparable or the resultant damage would be so heavy that the degree of culpability would be very high. An error can be indicative of negligence and the degree of culpability may indicate the grossness of the negligence. Carelessness can often be productive of more harm than deliberate wickedness or malevolence. Leaving aside the classic example of the sentry who sleeps at his post and allows the enemy to slip through, there are other more familiar (examples) instances of which (are) a railway cabinman signalling in a train on the same track where there is a stationary train causing headlong collision; a nurse giving intraveious injection which ought to be given intramuscular causing instantaneous death; a pilot overlooking an instrument showing snag in engine and the aircraft crashing causing heavy loss of life. Misplaced sympathy can be a great evil (see Navinchandra Shakerchand Shah v. Manager, Ahmedabad Co.-op. Department Stores Ltd., (1978) 19 Guj LR 108 at p.120). But in any case, failure to attain the highest standard of efficiency in performance of duty permitting an inference of negligence would not constitute misconduct nor for the purpose of Rule 3 of the Conduct Rules as would indicate lack of devotion to duty." (para 11)
13. Again in State of Punjab and others vs. Ram Singh Ex-Constable, (1992) 4 SCC 54, Court has held as under: -
"Thus it could be seen that the word ''misconduct' though not capable of precise definition, on reflection receives its connotation from the context, the delinquency in its performance and its effect on the discipline and the nature of the duty. It may involve moral turpitude, it must be improper or wrong behaviour; unlawful behaviour, wilful in character; forbidden act, a transgression of established and definite rule of action or code of conduct but not mere error of judgment, carelessness or negligence in performance of the duty; the act complained of bears forbidden quality or character. Its ambit has to be construed with reference to the subject matter and the context wherein the term occurs, regard being had to the scope of the statute and the public purpose it seeks to serve. The police service is a disciplined service and it requires to maintain strict discipline. Laxity in this behalf erodes discipline in the service causing serious effect in the maintenance of law and order." (para 6)
14. In the context of Section 31 of Advocates Act, 1961, Court in Noratanmal Chouraria Vs. M.R. Murli & another 2004 (5) SCC 689 said:
"Misconduct, inter alia, envisages breach of discipline, although it would not be possible to lay down exhaustively as to what would constitute conduct and indiscipline, which, however, is wide enough to include wrongful omission or commission whether done of omitted to be done intentionally or unintentionally. It means, "improper behaviour, intentional wrongdoing or deliberate violation of a rule or standard of behaviour".
Misconduct is said to be a transgression of some established and definite rule of action, where no discretion is left except what necessity may demand, it is a violation of definite law."
15. In Baldev Singh Gandhi Vs. State of Punjab & others AIR 2002 SC 1124, with reference to provisions of Punjab Municipal Act, Court, considering term 'misconduct' held as under :
" 'Misconduct' has not been defined in the Act. The word 'misconduct' is antithesis of the word 'conduct.' Thus, ordinarily the expression 'misconduct' means wrong or improper conduct, unlawful behaviour, misfeasance, wrong conduct, misdemeanour etc."
16. The allegations at the best show that petitioner may be a non serious employee. It may show that he was an inefficient Driver but in the absence of anything further, the charge, ipso facto would not amount to 'misconduct' warranting punishment as held in J. Ahmed (supra) that lack of efficiency or failure to attain highest standards in discharge of duties attached to public office would not constitute misconduct, unless the consequences directly attributable to negligence would be such as to be irreparable or the resultant damage would be so heavy that the degree of culpability would be very high, which is not the case in hand.
17. Though Tribunal has not examined this aspect of the matter but it is evident from record and with the consent of parties, I have examined this aspect also.
18. In view of above, award of Tribunal cannot be said to be faulty in any manner and I do not find any reason to interfere therewith.
19. Writ petition lacks merit and is, accordingly, dismissed.
Order Date :- 26.7.2019 Siddhant Sahu