Bimal Koner vs State Of West Bengal & Ors.

The Writ Petitioner was a conductor of a public transport bus being operated by the South Bengal State Transport Corporation (S.B.S.T.C.) A

charge-sheet was issued to him on 3rd January, 1998 enumerating the following charges;-

“ARTICLE OF CHARGE â€" I

On 28.11.97 Sri Bimal Koner, Conductor, Habra Depot was performing his duty in the vehicle no. WB-23/3959 of Haldia â€" Birsingha route in

‘B’ Shift. When the vehicle reached at Ghatal, checking squad personnel boarded the bus and checked the tickets of all alighting passengers.

During checking 04 nos. of passengers found travelling unbooked and without tickets. Such passengers were kept unbooked with unterior motive of

realising money illegally for his personal gain after completion of journey and with an intention to cause financial loss to the Corpn. By

misappropriating this money thus realised. Sri Koner is, therefore, charged for wilful negligence in performing his duties faithfully and diligently in

violation of Section 2592) of SBSTC Employees Service Regulations and also for attempt of causing wilful financial loss to the Corporation for his

personal gain and thereby violated Regulation 25(6) of SBSTC Employees Service Regulations.

ARTICLE OF CHARGE â€" II

On 28.11.97 while he was performing duty in the vehicle no. WB-23/3959 of Haldia â€" Birsingha route, checking squad personnel checked the cash

bag of Sri Koner at Birsingha. During checking an amount of Rs. 70.75 (Rupees Seventy and paise Seventy five only) found excess in the cash bag

against actual sale of Rs. 724/including bag money. Sri Koner did not account for his excess cash found in the cash bag. Moreover, such unaccounted

excess being the accumulated by realising from the passenger against fare without issue of tickets with an ulterior motive after misappropriation of the

money for his illegal personal gain. Sri Koner is, therefore, charged for having an excess amount of Rs.70.75 in the cash bag by not performing his

duty faithfully, diligently, honestly, with due care and devotion Sri Koner is, therefore, charged for violation of Regulation 25(1), (2), (3) and (6) of

SBSTC Employees Service Regulations.

ANNEXURE â€" II

STATEMENT OF IMPUTATIONS OF MISCONDUCT OR MISBEHAVIOUR IN SUPPORT OF THE ARTICLES OF CHARGES FRAMED

AGAINST SRI BIMAL KONER, A CONDUCTOR OF HABRA DEPOT, S.B.S.T.C.

 (Same as mentioned in the Article of Charges I & II vide Annexureâ€"I with reference to Annexureâ€"II).

 ANNEXURE â€" III

 LIST OF DOCUMENTS BY WHICH THE ARTICLE OF CHARGES FRAMED AGAINST SRI BIMAL KONER, A CONDUCTOR OF

HABRA DEPOT, S.B.S.T.C. ARE PROPOSED TO BE SUSTAINED.

Conductor’s Bag checking report with check sheet no. 1378 dated 28.11.97 submitted by Sri Jhantulal Pakre, ST/TE, in respect of the bag of Sri

Bimal Koner, Conductor performing duty in Vehicle No. WB-23/3959 plying in Haldia- Birsingha route.

ANNEXURE â€" IV

 LIST OF WITNESSES BY WHOM THE ARTICLE OF CHARGES FRAMED AGAINST SRI KONER, A CONDUCTOR OF HABRA

DEPOT, S.B.S.T.C. ARE PROPOSED TO BE SUSTAINED.

 1) Sri Jhantulal Pakre, ST/TE, Mecheda Beat Point,

(2) Sri Samir Banerjee, ST/TE Mecheda Beat Point, (3) Sri Animesh Dutta, T.I. Mecheda Beat Point, S.B.S.T.C. O R D E R

In exercise of the power conferred by Regulation 38 of SBSTC Employees Service Regulations 1987, the undersigned hereby appoint Smt. Susmita

Biswas, Asstt. Manager (Admn. & A/CS.), Belghoria Divn. as Enquiry Officer to enquire into the charges framed against the said Sri Bimal Koner, a

Conductor of Habra Depot.â€​

As seen from the charge-sheet above an Inquiury Officer was also appointed in the same order. The Writ Petitioner replied to the charge-sheet on

10th February, 1998. The said reply has been produced in Court. The Disciplinary Authority proceeded with the Inquiry in which witnesses were

examined and an Inquiry Report was submitted by the Inquiury Officer. The Disciplinary Authority upon receipt of the Inquiry Report and considering

the Writ Petitioner’s representation, the evidence in the course of Inquiry as also the deposition of the witnesses.

At this stage the Writ Petitioner approach this hon’ble Court in W.P. 24147(W) of 1998. By an interim order dated 1st April 1999 the Writ

Petitioner was granted access to all the documents and depositions of the witnesses both examination-inchief and cross-examination. By the said order

the petitioner was also granted leave to represent, with a copy of the Inquiry Report, before the Disciplinary Authority. The Disciplinary Authority

after examining and discussing the entire records of the Inquiry and passed an order of removal from service of the Writ Petitioner.

The Writ Petitioner brought the issue of passing of final order before this Court in the same writ petition being W.P. 24147(W) of 1998. Based on the

said submission by order dated 6th February, 2013 the writ petition was disposed of directing the Appellate Authority to dispose of the appeal

preferred by the Writ Petitioner after giving him personal hearing. The Appellate Authority concurred with the findings of the Disciplinary Authority

and confirmed the same. Detailed reasons were however not given. The Writ Petitioner made detailed arguments and the Respondent replied to the

same. The Writ Petitioner first argued that the Respondent, by reason of appointing the Inquiry Officer while issuing a charge sheet, must be deemed

to be proceeding with a closed mind.

A Disciplinary Authority cannot be deemed to be proceeding with a closed mind merely because of appointment of Inquiry Officer is made at the

same time as the charge-sheet issued. The Writ Petitioner could not demonstrate any prejudice or any bias on the part of the authorities at that stage.

The Writ Petitioner relies upon a Division Bench Judgement in which there is reference to the order passed by the Single Bench there which upheld a

similar contention of bias found by the Single Bench there.

The said judgment dated 24th March, 1999 was rendered in MAT 2281 of 2002, FMA 593 of 2002 in the case of Md. Amir Hossain vs. The State of

West Bengal & Ors. I am of the view that the aforesaid judgement may not come to the aid of the Writ Petitioner as the Division Bench neither

confirmed nor approved the finding of the Single Bench as regards bias of a management by reason of appointing an Inquiry Officer at the time of

issuance of the charge-sheet. I am not persuaded that bias can be presumed by reason thereof. In answering the submission, learned counsel for the

Respondent relied upon the decision of South Bengal State Transport Corporation vs. Ashok Kumar Ghosh and Others reported in (2010) 11 SCC 71.

At paragraphs 13 and 14 the hon’ble Supreme Court has stated as follows;-

“13. In our opinion, it may be open for a disciplinary Authority to initiate the departmental proceedings on consideration of the reply of an employee

but as an absolute proposition of law it cannot be said that before initiating departmental enquiry or appointing Enquiry Officer, reply of the delinquent

employee is required to be obtained and considered unless it is the requirement of the rules. There may be cases where the charges are of such a

nature that the disciplinary Authority may not require any reply from the delinquent employee but straightway initiates the departmental enquiry and

appoint an Enquiry Officer.

In the present case the Bus was checked by the flying squad of the appellant-Corporation itself and in view of what has been found by it, the

disciplinary Authority while framing the charge had appointed the Enquiry Officer. We are of the opinion that mere appointment of Enquiry Officer

while framing the charge sheet, even before considering the reply of the delinquent employee, does not reflect any bias.†From the above it is

abundantly clear that there may be cases where the charges an ex facie grave. Therefore, merely by naming of the Inquiury Officer in the charge

sheet an imputation of bias cannot be inferred. I am, therefore, compelled to reject the first argument of the learned counsel for the Writ Petitioner.

The next argument of the Writ Petitioner is that he had asked for documents and depositions of the witnesses and the evidence from the Enquiry

Officer but was not provided the same. It appears to me from the records by an order dated 01.04.1999 passed in W.P. 24147 (W) of 1998 the Writ

Petitioner was allowed to inspect the entire records of Inquiry. The Writ Petitioner did so with the assistance of a Co-Worker and also took down

details of the entire record of Inquiry. In those circumstances I am of the opinion that the Writ Petitioner’s contention are baseless. The Writ

Petitioner in support of the said argument relied upon the decision of The State of Punjab vs. Bhagat Ram reported in AIR 1974 SC 2335 at paragraph

8 the Supreme Court has held as follows;-

 “8. It is unjust and unfair to deny the Government servant copies of statements of witnesses examined during investigation and produced at the

Inquiry in support of the charges levelled against the Government servant. A synopsis does not satisfy the requirements of giving the Government

servant a reasonable opportunity of showing cause against the action proposed to be taken.†It would be useful to note that in the facts of that case

the delinquent employee was neither supplied copies of the statements recorded by the police in course of investigation of the person proposed to be

examined in course of the Departmental Inquiry.

In the instant case firstly no document or report or statement prior to the Inquiry was relied upon by either of Inquiry Officer or the Disciplinary

Authority. It is important to note that the ratio of a judgement must bee seen in the light of the facts of the relevant case. Hence, in my view the said

judgement may not be come to the aid of the Writ Petitioner. The argument of the Writ Petitioner in this regard cannot be sustained in the facts of the

instant case.

The petitioner next argued that the order of the Disciplinary Authority is perverse by reason of the fact that his defence was not discussed in detail.

The principal defence of the Writ Petitioner as regards detection of Rs.71/- in excess lying in his official money bag was that the same was money

refundable to a passenger who did not have the exact change. The said passenger is stated to have tendered a Rs.100 note for a ticket of Rs.4/-. The

Writ Petitioner contended that he had returned Rs.25/- to the passenger that was available and asked the latter to collect the balance when he reaches

his destination. The other four passengers from whom he had not collected the fare according to the Writ Petitioner were being aggressively

persuaded by him at the time when the Inspection Squad boarded the bus. The Inspectors however, found no statement made in that regard. Such

inspectors have deposed evidence in course of the Inquiry.

In the light of the above facts it is seen that the Disciplinary Authority had applied the right test of ‘preponderance’ of probabilities.’ It is for

a person who is well versed with the functioning of a transport corporation operating public buses, to best determine such preponderance of the

probabilities. It is well settled now that a Court under Articles 226 cannot substitute its own view over that of a quasi-judicial Authority. It is the quasi

judicial Authority by reason of its experience within an organisation in which the delinquent is also functioning who can best assess the conclusion that

can be drawn from the admitted facts. I find in the instant case that the conclusion is definitely based on some evidence and not wholly de hors the

evidence on record. There is no perversity in the finding of the Disciplinary Authority according to me.

The next contention of the Writ Petitioner was with regard to the non-production of the passenger who had to fail collect the amount of Rs. 71/- from

the Writ Petitioner as a witnesses in the Inquiry. The Writ Petitioner submits that the said passenger was not summoned as a witness in the Inquiry

despite being so requested by him. It is the responsibility of delinquent to produce his own witnesses in support of his defense. The only exception to

this rule is where the witness was under control of the management of the establishment where delinquent was functioning. In the instant case the

witness that the Writ Petitioner wanted the Inquiry Officer to produce was outsider. The Writ Petitioner himself not having brought such person as a

witness, cannot turn around and blame the Inquiry Officer for not enforcing his attendance in the enquiry. The enquiry officer has no control over such

outsider. The argument of the Writ Petitioner in this regard according to me does not hold water. The findings of Disciplinary Authority cannot be,

therefore, faulted.

The next point urged by the Writ Petitioner was with regard to the order passed by the Appellate Authority. He contends that the order of the

Appellate Authority is completely devoid of any reasons whatsoever. He submits that the Appellate Authority has mechanically agreed with the

findings of the Disciplinary Authority. Reference in this regard may be made to the caseof S. N. Mukherjee vs. Union of India reported in AIR 1990

SCC 1984 at paragraph 47. After a detailed discussions of court-martial proceedings under the Army Act, the Supreme Court held as follows;-

“47. For the reasons aforesaid it must be held that reasons are not required to be recorded for an order passed by the confirming Authority

confirming the findings and sentence recorded by the court-martial as well as for the order passed by the Central Government dismissing the post-

confirmation petition. Since we have arrived at the same conclusion as in Som Datt Datta case (AIR 1969 SC 414) (supra) the submission of Shri

Ganguli that the said decision needs reconsideration cannot be accepted and is. therefore, rejected.â€​

The said judgement is still holds the field today. Learned Counsel for the Writ Petitioner however, placed paragraph 48 of the said judgement and

contended that the issue has not been finally deciding and that there were other situation also addressed where a quasi judicial Authority is in fact

required to give some reasons. The Writ Petitioner next relied upon the judgement of the Hon’ble Supreme Court in the case of Kranti Associates

Private Limited and Another vs. Masood Ahmed Khan and Others reported in (2010)9 SCC 496. The facts of the said case were that while

confirming the Judgement passed by the State Commission under Consumer Protection Act, 1986, the National Commission had passed a three line

order. In the said case concurrent findings were rendered by the State Commission in more than one case. It is in that context that the hon’ble

Supreme Court laid down detailed dicta summarizing the principle to be followed by the quasi judicial Authority. It was inter alia held in the said

decision that an order passed by any quasi judicial Authority should ‘speak’. The Court went on to hold that even an Appellate Authority is

required to assign reasons for agreeing with the findings of a subordinate Authority.

The said judgement does consider the decision of the Hon’ble Supreme Court Constitution Bench judgement i.e, case of S.N. Mukherjee case

(supra). I would apply the principles laid down in S.N. Mukherjee case (supra) herein as the S.N. Mukherjee case (supra) also dealt with employment

matters as in the instant case. One being the Army and the other a Road Transport Corporation. I am however of the view that it is desirable for an

Appellate Authority to give some reasons. However mere absence of reasons will not by itself vitiate, the ultimate conclusion of the Appellate

Authority. A writ court may definitely go into the perversity or otherwise of the subordinate Authority which in the instant case is the Disciplinary

Authority. I find no perversity in the findings of the Disciplinary Authority.

The Writ Petitioner finally argues that a sum of Rs.1,000/was already collected from him by deduction from his salary and emoluments. By reason

thereof the Writ Petitioner submits that the employer in this case has already pre-judged the petitioner’s guilt. Learned counsel for the Corporation

however submits that collection of Rs. 1,000/- was done in compliance of Section 178 of the Motor Vehicles Act which is mandatory. The argument

of the petitioner in this regard also cannot be sustained.

The Writ Petitioner lastly argues that the punishment of removal from service is grossly disproportionate of the charges against him. With a view to

examine the records and determine the veracity of the Writ Petitioner’s contentions as regard the Inquiry, this Court had directed the Corporation

to produce the records of the Inquiry. It transpires from the said records that prior to the incident for which he was punished there was one earlier

charge of a similar nature for which the minor punishment was awarded to him. After the incident that was subject matter of the charge sheet in the

instant case there were five other instances of a similar nature. The Writ Petitioner was awarded a minor penalty, in the said cases.

While it is true that petitioner was not formally confronted with these facts by the Disciplinary or Appellate Authority for the purpose of the quantum

of punishment, I am of the view that the same could not have prejudiced the Writ Petitioner. The petitioner could not have improved or stated anything

else with regard to the earlier and subsequently proved charges. A bus conductor collects sums of money which is the only source of revenue for a

Transport Corporation. A defalcation at that stage can have very serious consequences for the Corporation. The petitioner is also a habitual offender

who has already been warned six times. The punishment of removal is, therefore, fully justified and appropriate. For those reasons the writ petition

must fail. W. P. 18061(W) of 2013 is dismissed. There shall be no order as to costs.