Heard learned Counsel for the petitioner and Sri Akhilesh Kumar Srivastava, learned Counsel appearing for the respondent-Corporation.
Vijay Prakash Mishra- Petitioner, who was a Bus Conductor under Uttar Pradesh State Road Transport Corporation, Akbarpur, District Ambedkar Nagar [in short referred to as the 'UPSRTC'], was removed vide order dated 28.5.1998 passed by the Assistant Regional Manager/opposite party no.2 upon which he filed appeal before the Regional Manager, which was also dismissed vide order dated 12.3.1999.
It is said that on 14.12.1996, when the vehicle i.e. Bus No. UP 42/2470 conducted by the petitioner was inspected at Ariya near Akbarpur depot on Akbarpur-Tanda Road, the Inspecting Squad headed by Sri Prabhu Singh Chauhan, Assistant Traffic Inspector found that all the 36 passengers travelling on the bus were travelling without tickets. Among these 36 passengers 30 were travelling from Akbarpur to Tanda and 06 were travelling from Akbarpur to Ariya. Consequently, the petitioner was placed under suspension vide order dated 16.12.1996 and a charge sheet was served upon the petitioner on 31.1.1997. The main charge against the petitioner was that he was carrying all the 36 passengers without tickets in the Vehicle No. UP-42/2470 on 14.12.1996 thus acted against the order and direction of the department; his conduct was against the Service Rules and amounts to dereliction of duty.
Learned Counsel for the petitioner has submitted that the Enquiry Officer without conducting the inquiry in the manner as prescribed under the law, without giving opportunity of examination of witnesses and in utter disregard of the principles of natural justice concluded the inquiry and submitted the report to the Disciplinary Authority, who issued a show cause notice dated 1.4.1998 to the petitioner. The petitioner submitted his reply on 13.5.1998 reiterating his version given before the Inquiry Officer that at the time of checking, the reporting officer did not record statement of any passenger and also pointed out that the Inquiry Officer had conducted the inquiry behind the back of the petitioner. However, the opposite party no.2 without considering the reply submitted by the petitioner passed the order of removal dated 28.5.1998. The Appellate Authority also did not consider the pleas raised by the petitioner in his appeal and rejected the same in a cursory manner.
Refuting the allegations of the petitioner, learned Counsel for the Corporation has submitted that in the inquiry, sufficient opportunity was afforded to the petitioner for putting his version but he failed to avail it and as such report of inquiry officer cannot be faulted. He also pointed out that the petitioner presented himself before the inquiry officer on the last date of the inquiry i.e. on 7.3.1998 and stated that he did not want to examine or cross examine any person. Thereafter, the Inquiry Officer concluded the inquiry and submitted report to the Disciplinary Authority, who on being found the delinquent Conductor guilty as per inquiry report, issued a show cause notice and after considering the reply so submitted by the petitioner, passed the order of removal. Therefore, it is incorrect to say that the inquiry has been conducted in violation of the principles of natural justice.
Before dealing with the merits of the instant case, it would be useful to refer few decisions of the Apex Court rendered with regard to procedure to be adopted during disciplinary proceedings. In Kashinath Dikshita versus Union of India and others; (1986)3 SCC 229 the Hon'ble Supreme Court emphasized that the delinquent employee facing a departmental enquiry cannot effectively meet the charges unless the copies of the relevant statements and documents to be used against him are made available to him. In the absence of such copies the concerned employee cannot prepare his defence, cross examine the witnesses and point out the inconsistencies with a view to show that the allegations are incredible. Observance of natural justice and due opportunity has been held to be an essential ingredient in disciplinary proceedings.
A Division Bench of this Court in Radhey Kant Khare vs. U.P. Cooperative Sugar Factories Federation ltd. [2003](21) LCD 610 held that after a charge-sheet is given to the employee an oral enquiry is a must, whether the employee requests for it or not. Hence a notice should be issued to him indicating him the date, time and place of the enquiry. On that date so fixed the oral and documentary evidence against the delinquent employee should first be led in his presence. Thereafter the employer must adduce his evidence first. The reason for this principle is that the charge-sheeted employee should not only know the charges against him but should also know the evidence against him so that he can properly reply to the same. The person who is required to answer the charge must be given a fair chance to hear the evidence in support of the charge and to put such relevant questions by way of cross-examination, as he desires. Then he must be given a chance to rebut the evidence led against him.
In State of Uttaranchal & ors. V. Kharak Singh, JT 2008(9) SC 205, the Apex Court has enumerated some of the basic principles to be observed while conducting the departmental inquiries and consequences in the event, if these basic principles are not adhered to, the order is to be quashed. The principles enunciated are reproduced herein:
(a) The inquiries must be conducted bona fide and care must be taken to see that the inquiries do not become empty formalities.
(b) If an officer is a witness to any of the incident which is the subject matter of the inquiry or if the inquiry was initiated on the report of an officer, then in all fairness he should not be the Enquiry Officer. If the said position becomes known after the appointment of the Enquiry Officer, during the enquiry, steps should be taken to see that the task of holding an enquiry is assigned to some other officer.
(c) In an enquiry, the employer/department should take steps first to lead evidence against the workman/delinquent charged, give an opportunity to him to cross-examine the witnesses of the employer. Only thereafter, the workman/ delinquent be asked whether he wants to lead any evidence and asked to give any explanation about the evidence led against him. [emphasis supplied] In Meenglas Tea Estate v. Their Workmen AIR 1963 SC 1719 the Supreme Court observed that it is an elementary principle that a person who is required to answer the charge must know not only the accusation but also the testimony by which the accusation is supported. He must be given a fair chance to hear the evidence in support of the charge and to put such relevant questions by way of cross-examination as he desires. Then he must be given a chance to rebut the evidence led against him. This is the barest requirement of an enquiry of this character and this requirement must be substantially fulfilled, if the result of the enquiry is to be accepted.
In State of U.P. v. C.S. Sharma, AIR 1968 SC 158 the Supreme Court held that omission to give opportunity to an employee to produce his witnesses and lead evidence in his defence vitiates the proceedings.
It is no doubt true that in cases arising out of disciplinary proceedings culminating in punishment of an employee, scope of judicial review is somewhat restricted in the sense that it is a decision making process which is up for judicial review and not the decision itself. The Court does not sit in appeal. If the procedure prescribed is followed strictly in accordance with rules and the delinquent employee has been given adequate opportunity of defence, the disciplinary authority by assessing record has reached to a conclusion which a person of ordinary prudence in a given set of circumstances may arrive, this Court shall not interfere with the order of punishment, if any, unless it is shown that the same is without jurisdiction or is otherwise bad on account of mala fide etc. It may be added that a person cannot be denied his right to earn livelihood enshrined under in our Constitution unless he has been given adequate opportunity of hearing and the conclusion drawn by authorities is one, which is probable and permissible from bare perusal of documents and not otherwise. The scope of judicial review in such matters is well settled. It travels in a narrow sphere. It is confined to the extent of decision making process. It would not allow the Court to appreciate decision itself unless the decision is vitiated in law on account of mala fide, bias or based on no evidence at all. The authorities exercising quasi judicial functions are not courts. They are not bound by principles of evidence yet certain basic principles will have to be observed which may dispel a complaint against fairness, impartiality and pre- determination of mind on the part of the employer.
At this juncture it would be relevant to point out that a Division Bench of this Court in the case of Salahuddin Ansari Vs. State of U.P. and others, 2008 (3) ESC 1667 held that non holding of oral inquiry is a serious flaw which can vitiate the order of disciplinary proceeding including the order of punishment has observed as under:-
" 10....... Non holding of oral inquiry in such a case, is a serious matter and goes to the root of the case.
11. A Division Bench of this Court in Subash Chandra Sharma Vs. Managing Director & another, 2000 (1) U.P.L.B.E.C. 541, considering the question as to whether holding of an oral inquiry is necessary or not, held that if no oral inquiry is held, it amounts to denial of principles of natural justice to the delinquent employee. The aforesaid view was reiterated in Subash Chandra Sharma Vs. U.P.Cooperative Spinning Mills & others, 2001 (2) U.P.L.B.E.C. 1475 and Laturi Singh Vs U.P.Public Service Tribunal & others, Writ Petition No. 12939 of 2001, decided on 06.05.2005."
In Mohd. Yunus Khan v. State of U.P. & Ors. reported in (2010) 10 SCC 539, the Hon'ble Supreme Court has held that inquiry is to be conducted fairly and reasonably and inquiry report must contain reasons for reaching the conclusion that charge framed against delinquent stood proved against him. It cannot be ipse dixit of enquiry officer. Punishment for misconduct can be imposed in consonance with statutory rules and principles of natural justice.
In the case of State of U.P. and others Vs. Saroj Kumar Sinha, (2010) 2 SCC 772, the Hon'ble Apex Court pleased to observe that an inquiry officer acting in a quasi-judicial authority is in the position of an independent adjudicator. He is not supposed to be a representative of the department/ disciplinary authority/ Government. His function is to examine the evidence presented by the Department, even in the absence of the delinquent official to see as to whether the un-rebutted evidence is sufficient to hold that the charges are proved and when a departmental inquiry is conducted against the government servant it cannot be treated as a casual exercise. The inquiry proceedings also cannot be conducted with a closed mind. The inquiry officer has to be wholly unbiased. The rules of natural justice are required to be observed to ensure not only that justice is done but is manifestly seen to be done. The object of rules of natural justice is to ensure that a government servant is treated fairly in proceedings which may culminate in imposition of punishment including dismissal/removal from service.
Needless to mention here that when it is made obligatory under law upon an authority to do a thing in a particular manner that thing has to be done in that very manner. In my considered opinion that any punishment awarded on the basis of an inquiry not conducted in accordance with the inquiry rules meant for that very purposes is unsustainable in the eye of law. It may be added that the procedure prescribed under the inquiry rules for imposing major penalty is mandatory in nature and unless those procedures are followed, any out come inferred thereon will be of no avail unless the charges are so glaring and unrefutable which does not require any proof. The aforesaid view expressed by me is strengthen support from the judgment of the Apex Court in State of U.P. & another Vs. T.P. Lal Srivastava, 1997 (1) LLJ 831 as well as by a Division Bench of this Court in Subash Chandra Sharma Vs. Managing Director & another, 2000 (1) U.P.L.B.E.C. 54.
The instant case is to be examined in the light of the principle enunciated in the aforesaid judgments. On scrutiny of original record pertaining to the inquiry conducted against the petitioner, it comes out that undoubtedly, the Inquiry Officer has examined only the reporting officer/complainant that too not in presence of the petitioner and none other witness has been examined either before the petitioner or behind the back of the petitioner. This fact is admitted in paragraph 15 of the counter affidavit. In paragraph 18 of the writ petition the petitioner had stated that he made request for cross examination of the complainant but the Inquiry Officer did not consider the request of the petitioner as would be evident from the inquiry report itself. This fact has not been specifically denied in the counter affidavit also and respondents stated in paragraph 17 of their counter affidavit that inquiry proceeding was concluded with the satisfaction of petitioner. Nowhere from the record it comes out that either the Inquiry Officer or the Disciplinary Authority fixed any date for oral hearing.
It is pertinent to add that petitioner in his reply dated 13.5.1998 categorically explained that the checking was not done at Ariya, but was done at the place known as "Ragadganj Hawai Patti". When the place of checking of bus was disputed by the delinquent employee, the proper course available to the Inquiry Officer was to summon the Driver of the vehicle and ought to have recorded his statement to ascertain the truth. Surprisingly, neither the Checking Squad recorded the statement of the Driver while checking the vehicle nor the Inquiry Officer called the Driver to the witness box. Further, it was also the duty of the Inquiry Officer to got the way-fare bill and other documents proved during the inquiry. Moreover, the Inspecting Officers have not recorded statement of any passenger either orally or in writing to know the truth of the matter. There is also no rebuttal of the fact that limit for making ticket was 5 Kms whereas the bus was checked at 3 Km on the outskirt of the city Akbarpur as in the case of long route, the tickets are normally made after coming out of the city due to rush in the way and passengers use to board on bus at different places and conductor has to open and shut the door. Apart from above, on examination of record this Court finds that there is nothing on record which indicates that what amount was recovered from the petitioner at the time of checking and whether the said amount corresponds to the number of passengers alleged to have been found travelling without ticket. Therefore, it can easily be inferred that the Inquiry Officer has noted acted fairly rather had acted as a representative of the Disciplinary Authority.
Taking the holistic view of the matter, the Court has no hesitation in saying that the inquiry has been conducted in utter disregard to the principles of natural justice. Since the impugned order has been passed on the basis of the inquiry report, which suffers from procedural illegality and in violation of principles of natural justice, it vitiates the order of punishment. The Appellate Authority has also not dealt with the pleas raised by the petitioner but rejected the appeal in a cursory manner. It was the onerous duty of the Appellate Authority to have applied its independent mind and should have recorded cogent reasons for rejecting the pleas/submissions raised by the petitioner in his appeal. It would also be relevant to mention at this juncture that it seems from the record that immediately after placing the petitioner under suspension, the authorities of the Corporation asked the petitioner to deposit the penalty-money for carrying passengers without ticket, on which an application dated 15.12.96 was moved by the petitioner mentioning therein that he is unable to pay the penalty and the amount of penalty be recovered from his salary. In these circumstances the alleged loss to the Corporation was recovered prior to the outcome of the result of th inquiry and it appears that the said amount was recovered from the salary of the petitioner.
For the reasons aforesaid the impugned order of removal dated 28.5.1998 passed by the Assistant Regional Manager/opposite party no.2 as well as the appellate order dated 12.3.1999 are hereby quashed. As the petitioner is litigating since last 18 years, the ends of justice would be served by reinstating the petitioner in service forthwith. The Appointing Authority is granted liberty to conduct the inquiry afresh from the date of issuance of charge-sheet within six months of receipt of the certified copy of this order and the arrears of salary from the date of removal to the date of reinstatement shall be subject to the final outcome of the inquiry. The petitioner will co-operate with the enquiry proceedings. However, for any reason, if the Appointing Authority decides not to proceed with the inquiry, in that eventuality, the petitioner would be entitled for 50% of back wages from the date of removal to the date of reinstatement, which shall be paid to the petitioner within six months failing which he would be entitled for interest @9% on the delayed payment after completion of six months. It is clarified that the period from the date of removal to the date of reinstatement shall be counted as period rendered in service for the purposes of retiral benefits.
The writ petition stands allowed in above terms.
Date: 9th June, 2016 HM/-