Baleshwar Prasad Mishra vs Uttar Pradesh State Roadways Transport Corporation and Others

S.S. Chauhan, J.—The present petition has been filed for quashing of the orders dated 10.8.1983 and 18.6.1987, contained in Annexure Nos. 1 and 3 to the writ petition.

The facts giving rise to the present petition are that petitioner was initially appointed in the U.P. Government Roadways department in the year 1965 as Conductor at District Basti and his services were confirmed in the year 1970. The petitioner in pursuance to creation of the Uttar Pradesh State Roadways Transport Corporation in June, 1972 was sent on deputation to the Corporation in pursuance to the Government Order dated 5.7.1972 and kept serving the Corporation on deputation. On 10.9.1982 when the petitioner was conducting Bus No. UAJ-9023 on Gonda-Utraula route, which was driven by regular driver Rahat Hussain was signalled by the checking squad to stop the bus for the purpose of checking, but the driver did not stop the bus and stopped it at some distance. The checking squad comprised of Sri A.A. Khan, Traffic Superintendent attached with Deputy General Manager (Central Zone, Lucknow) checked the bus and it was found that wrong entries have been made in regard to 38 passengers, out of which 13 passengers traveling from Mahadiya to Utraula were having unpunched tickets and two other passengers travelling from Babaganj to Utraula were having unpunched tickets from Chamrupur to Utraula and remaining 25 passengers were having tickets from Chamrupur to Utraula and the petitioner declined to inform the place from which they have boarded the bus and the passengers revealed that they are travelling from Chamrupur to Utraula. Apart from it, 11 passengers who were having unpunched tickets, were found travelling on tickets from Chamrupur to Utraula and they have informed that they have actually boarded the bus at Gonda. Seven passengers, who were also having unpunched tickets for destination from Chamrupur to Utraula informed that they are travelling from Babaganj to Utraula. Thus, it was found that the petitioner has issued short distance tickets. Oral statements of the passengers were taken, but they refused to give written statement, but anyhow one passenger, namely, Yashvir Singh gave his statement, who was travelling from Gonda to Utraula. However, the petitioner refused to sign the said statement, from which it appears that the petitioner has issued the short distance tickets and other tickets in the meantime. Upon these allegations, a charge sheet was issued to the petitioner on 8.10.1982. The charge sheet also indicated that at the time of checking 72 passengers were found travelling, but upon verification of the way bill it was found that 34 passengers were recorded. An entry was also made in respect of 38 passengers to make it equal with the number of passengers travelling in the bus i.e. 72. The petitioner submitted reply to the charge sheet on 24.10.1982. After submission of charge sheet, the enquiry officer fixed the date for holding oral enquiry as 9.11.1982, but the checking squad could not appear on the said date and the statements of the petitioner''s witnesses Sarvsri Kedar Nath and Kunj Bihari were recorded by the enquiry officer. Thereafter, 23.11.1982, 3.12.1982 and 15.12.1982 were fixed, but the checking squad in-charge and other members could not appear. The enquiry thereafter was shifted from Gonda to the office of the Assistant Regional Manager, Charbagh, Lucknow and on 4.1.1983 the members of the checking squad i.e. Sarvsri A.A. Khan, Traffic Superintendent, S.N. Bhasin and Mohan Singh, Traffic Inspectors as well as the petitioner and the concerned Driver Rahat Hussain appeared before the enquiry officer and their statements were recorded separately. After considering the entire evidence and material the dismissal order was passed on 10.8.1983 jointly amongst the petitioner and driver, Rahat Hussain providing therein that the petitioner will not be entitled any back wages during suspension period except the amount received by him as suspension allowance and the petitioner was dismissed from service. The aforesaid dismissal order was subjected to challenge in Writ Petition No. 5542 (SS) of 1985 and since the question of jurisdiction of the appointing authority was raised, therefore, the writ petition was allowed by means of order dated 5.2.1987 and opportunity was given to the opposite parties to pass fresh orders in accordance with law. Thereafter, fresh order was passed by the opposite parties upholding the earlier dismissal order valid by means of order dated 18.6.1987. The aforesaid order was challenged jointly by means of Writ Petition No. 4418 (SS) of 1993. In the said writ petition a preliminary objection was raised in regard to maintainability of the joint writ petition and the said writ petition was got withdrawn with liberty to file a fresh petition. Hence this petition.

Submission of learned Counsel for the petitioner is that charge against the petitioner could not be proved during the course of enquiry and the evidence, which has been relied upon could not have been relied upon by the opposite parties to prove the charge. It is further submitted that only one witness, namely, A.A. Khan, Traffic Superintendent was examined and the rest of the members of the checking squad were not examined and the evidence of the defence witnesses have also not been taken into consideration. Reliance placed by one of the passenger, namely Yashvir Singh has also not been produced during the course of enquiry to prove the charge. Evidence of Badri Prasad Mishra, Lallu, Sri Ram, Kedar Nath, Chhedi and Yashvir Singh were not taken into consideration in the correct perspective and the statement of Yashvir Singh could not have been made the basis for dismissal and hence the alleged enquiry is no enquiry in the eye of law. Reliance has also been placed on the judgment rendered in Writ Petition No. 9005 (SS) of 1992, Virendra Kumar Awasthi v. UPSRTC and Ors., to assert that in identical circumstances the writ petition was allowed. It is also submitted that neither any show cause notice nor any enquiry report was supplied to the petitioner.

Counsel for the U.P.S.R.T.C. on the other hand has submitted that enquiry was held in accordance with law. The petitioner was given full opportunity to cross-examine the witnesses adduced by the department and he cross-examined the said witness, namely A.A. Khan at length, but nothing material would come out from the evidence to deny the charge, but in fact the charge has been proved in accordance with law by the department. Member of the checking squad Sri A.A. Khan, Traffic Superintendent produced himself in the enquiry. He has further submitted that the witnesses, who were adduced by the defence were not travelling in the bus and were not the passengers on the said date. The petitioner also played fraud during the course of enquiry by placing the statement of Yashvir Singh, which was tallied with the original statement of Yashvir Singh and it was found that statement of some other person was produced as an evidence in the name of Yashvir Singh. So, the submission is that such type of employee does not deserve any sympathy from the Court and requires that the matter should be dealt with iron hand and the dismissal order may be upheld.

I have heard learned Counsel for the parties and gone through the record.

It is evident from the record that after submission of the charge sheet and receiving reply to the charge sheet the enquiry officer fixed the date for holding oral enquiry on 9.11.1982, but on the said date the checking squad could not appear and the driver and conductor appeared along with their witnesses, namely, Kedar Nath and Kunj Bihari and their statements were recorded. Thereafter, three dates were fixed by the enquiry officer as 23.11.1982, 3.12.1982 and 15.12.1982, but the checking squad did not appear before the enquiry officer, so on 4.1.1983 the date was fixed in the office of the Assistant Regional Manager, Charbagh, Lucknow. On 4.1.1983 the members of the checking squad i.e. Sarvsri A.A. Khan, Traffic Superintendent, S.N. Bhasin and Mohan Singh, Traffic Inspectors as well as the petitioner and the concerned driver Rahat Hussain appeared before the enquiry officer and their statements were recorded separately. The petitioner and the driver, Rahat Hussain were given opportunity to cross-examine the aforesaid witnesses. The petitioner and the Driver Rahat Hussain refused to cross-examine the other members of the checking squad except Sri A.A. Khan, Traffic superintendent, who has stated that out of 72 passengers 38 were found without ticket and their tickets were prepared and issued during the period when the bus was stopped at a distance of 300 metres from where it was signalled to be stopped. Out of these 38 passengers 13 were issued short distance tickets and 18 were also found travelling on short distance tickets. During the course of checking it was found that the passengers were under the influence of the driver and the Conductor and, therefore, they did not give any written statement except one person, namely, Yashvir Singh, who gave his written statement, which the petitioner refused to sign and from his statement it was found that all the 38 passengers were travelling without ticket and, therefore, tickets have been prepared hurriedly and hence they were having unpunched tickets which prove that the tickets have been issued in a hurried manner. Sri A.A. Khan, Traffic Superintendent proved the charge against the petitioner in regard to carrying of 38 passengers without ticket. He also prepared the amount of the short distance tickets, which were issued by the petitioner and the same was realised in accordance with law. The persons, namely, Badri Prasad Mishra, Lallu So/ Mathura Prasdad, Sri Ram S/o Sri Jagdev, Kedar Nath S/o Sri Kamta Prasad, Chhedi S/o Sri Badal and Yashvir Singh were produced as defence witnesses and it was found by the enquiry officer that in place of Yashvir Singh, whose statement was alleged to be recorded by Sri A.A. Khan, Traffic Superintendent some other person was produced with a view to get the statement of Yashvir Singh recorded by the Traffic Superintendent nullified, but when the signatures of Yashvir Singh were tallied it was found that he was an impostor and some other person was produced in place of Yashvir Singh. In regard to the evidence of other witnesses, who were adduced as defence witnesses, it was found that these persons were not travelling in the bus on the said date and, therefore, they were not in a position to explain as to what has happened after the checking squad signalled for stopping the bus. Hence, the requirement of producing Yashvir Singh cannot be argued by the learned Counsel for the petitioner when the petitioner himself produced Yashivr Singh to disapprove the case against him.

Counsel for the petitioner has also relied upon a decision of this Court rendered in Writ Petition No. 9005 (SS) of 1995, Virendra Kumar Awasthi v. State of U.P. and Ors., but from the said case the petitioner cannot get any support on account of the fact that the said case was allowed on the premise that no evidence was led to prove the charges by the Corporation during the course of enquiry, whereas in the case of the petitioner it is altogether different position and the things are in the reverse gear.

The apex Court while considering the law in regard to dismissal of Conductor has laid down the law succinctly and has held that Conductor holds a post of trust, therefore, loss or no loss is not of any consequence, but if it is found that he is responsible for the misconduct, then dismissal order is not required to be interfered with vide Regional Manager, U.P.S.R.T.C., Etawah and Others Vs. Hoti Lal and Another, V. Ramana Vs. A.P.S.R.T.C. and Others,

Recently, while dealing with the similar question the apex Court in the case of Divisional Manager, Rajasthan S.R.T.C. Vs. Kamruddin, held as under:

The question with regard to imposition of appropriate punishment upon a conductor of a bus belonging to a corporation constituted under the Road Transport Corporation Act, 1950 came up for consideration before this Court in Karnataka State Road Transport Corporation v. B.S. Hullikatti (2001) 2 SCC 574, wherein it was held:

On the facts as found by the Labour Court and the High Court, it is evident that there was a short-charging of the fare by the respondent from as many as 35 passengers. We are informed that the respondent had been in service as a Conductor for nearly 22 years. It is difficult to believe that he did not know what was the correct fare which was to be charged. Furthermore, the appellant had during the disciplinary proceedings taken into account the fact that the respondent had been found guilty on as many as 36 times on different dates. Be that as it may, the principle of res ipsa loquitur, namely, the facts speak for themselves, is clearly applicable in the instant case. Charging 50 paise per ticket more from as many as 35 passengers could only be to get financial benefit by the Conductor. This act was either dishonest or was so grossly negligent that the respondent was not fit to be retained as a Conductor because such action or inaction of his is bound to result in financial loss to the appellant-Corporation.

It is misplaced sympathy by the Labour Courts in such cases when on checking it is found that the Bus Conductors have either not issued tickets to a large number of passengers, though they should have, or have issued tickets of a lower denomination knowing fully well the correct fare to be charged. It is the responsibility of the Bus Conductors to collect the correct fare from the passengers and deposit the same with the Company. They act in a fiduciary capacity and it would be a case of gross misconduct if knowingly they do not collect any fare or the correct amount of fare.

A three judge Bench of this Court in Regional Manager, RSRTC v. Ghanshyam v. Sharma, (2002) 1 LLJ 234 SC reiterated the said principle, stating:

This Court in Karnataka SRTC v. B.S. Hullikatti has held that in such cases where the bus conductors carry passengers without ticket or issue tickets at a less rate than the proper rate, the said acts would inter alia amount to either being a case of dishonesty or of gross negligence and such conductors were not fit to be retained in service because such inaction or action on the part of the conductors results in financial loss to the Road Transport Corporation. This Court was firmly of the opinion that in cases like the present, orders of dismissal should not be set aside.

Furthermore, we agree with the observations of the Single Judge in the present case that the Labour Court was not justified in interfering with the punishment of dismissal. Though u/s 11-A the Labour Court has jurisdiction and powers to interfere with the quantum of punishment, however the discretion has to be used judiciously. When the main duty or function of the conductor is to issue tickets and collect fare and then deposit the same with the Road Transport Corporation and when a conductor fails to do so, then it will be misplaced sympathy to order his reinstatement instead of dismissal.

The apex Court while dealing with the question of non-issuance of tickets has held that non-issuance of tickets to passengers does not only lead to monetary loss to Corporation, but also to loss of confidence in employee.

In the case of The Regional Manager, Rajasthan State Road Transport Corporation Vs. Sohan Lal etc., the apex court held as under:

We notice from the finding of the Industrial Tribunal that the respondent-workman had indulged in misconduct which has not only led to monetary loss to the Corporation but the Corporation has also lost confidence in the said workman. Therefore, to continue such an employee in the employment of the Corporation by virtue of a judicial order, in our opinion, is an act of misplaced sympathy which can find no foundation in law or in equity. The finding that the workman has committed the misconduct in question of not issuing tickets to passengers is a finding of fact arrived at by the Tribunal after taking into consideration the evidence recorded therein. This finding was affirmed by the learned Single Judge and the High Court has not set aside the finding. Therefore, the question of moulding the relief on the facts of this case did not arise at all. The offer of the respondent to forego the back wages in lieu of his being re-instated is not an offer to be taken into consideration by the Court unless and until the finding of the Tribunal on misconduct was set aside and having perused the records including the order of the Tribunal, we are satisfied that this is not one of those cases in which there was room for setting aside such a finding.

Similarly, in the case of Depot Manager, A.P.S.R.T.C. Vs. Raghuda Siva Sankar Prasad, the apex Court held as under:

The learned Judges of the High Court have also failed to appreciate that once an employee has lost the confidence of the employer, it would not be safe and in the interest of the Corporation to continue the employee in the service. The punishment, imposed by the management in the facts and circumstances of the case, is not disproportionate and that the punishment of removal from service is just and reasonable and proportionate to the proved misconduct.

In our view, the theft committed by the respondent amounts to misconduct and, therefore, we have no hesitation to set aside the orders passed by the learned Single Judge and also of the Division Bench and restore the order of removal of the respondent from service. When the Labour Court has proved the charges, no interference by the learned Single Judge or by the Division Bench of the High Court was called for. In the instant case, the jurisdiction vested with the Labour Court has been exercised judiciously and fairly. In our opinion, the conclusion arrived at by the High Court in ordering reinstatement, continuity of service was shockingly disproportionate to the nature of charges already proved which is in the nature of theft.

Interfering therefore with the quantum of punishment of the respondent herein, is not called for. In our opinion, the respondent has no legal right to continue in the Corporation. As held by this Court, in a catena of judgments that the loss of confidence occupies the primary factor and not the amount of money and that sympathy and generosity cannot be a factor which is permissible in law in such matters. When the employee is found guilty of theft, there is nothing wrong in the Corporation losing confidence or faith in such an employee and awarding punishment of removal. In such cases, there is no place of generosity or place of sympathy on the part of the judicial forums and interfering with the quantum of the punishment.

Thus, having considered the case of the petitioner from all corners, I find that the Corporation has proved the case beyond hilt and the charge against the petitioner as alleged in the charge sheet is fully established. Hence, the opposite parties have committed no illegality in dismissing the petitioner from service. The petitioner has also filed writ petition at a very belated stage i.e. in the year 2007, whereas the controversy stood decided in 1987. The validity of the Validating Act has been upheld by this Court and so nothing wrong can be found in the exercise of powers by the opposite parties in dismissing the petitioner from service.

Petition is devoid of merit. It is accordingly dismissed.