Harendra Bahadur Singh vs U.P.S.R.T.C.

Devi Prasad Singh and S.C. Chaurasia, JJ.—Heard Sri U.K. Srivastava, learned Counsel for the petitioner and Sri Umesh Chandra Pandey, learned Counsel for the respondents Uttar Pradesh State Road Transport Corporation. Present writ petition under Article 226 of the Constitution of India, has been preferred against the impugned order dismissing the petitioner from service in pursuance of the regular departmental inquiry. The petitioner who was a Conductor of Uttar Pradesh State Road Transport Corporation (in short UPSRTC), was served with charge sheet dated 28.8.1993, whereby he was charged that during the surprise checking on 29.7.1993 at Sultanpur-Amethi Route, 61 passengers were found in the Bus and out of which 56 passengers were without tickets. Other charge is based on surprise inspection done on 18.8.1993 of Bus No. UHU 935 and 27 passengers and one cycle were found to be without ticket. In response to the charge sheet, the petitioner submitted reply. Along with the copy of statement of witnesses and other charges and relevant documents. The petitioner was served with a show-cause notice in consequence of which he submitted reply. After considering the reply, by the impugned order dated 28.10.1996, the petitioner was removed from service. The order of removal was upheld by the appellate authority.

While assailing the impugned order it has been submitted by Sri U. K. Srivastava learned Counsel for the petitioner that since no oral inquiry was held, the submission of show-cause notice along with the inquiry report shall not meet requirement of principles of natural justice. According to him, and the impugned order vitiates. He has relied upon the cases in Punjab National Bank and Others Vs. Sh. Kunj Behari Misra,

On the other hand, learned Counsel for the petitioner relied upon the judgment of the Division Bench of which one of us [Hon''ble Mr. Justice Devi Prasad Singh] was a member Kamla Charan Misra Vs. State of U.P. and Others,

The short question involved in the present case is, whether oral inquiry is necessary that too, under the teeth of Regulation 64 of the U.P. State Road Transport Corporation Employees (Other than Officer) Service Regulations, 1981 (in short Regulations). The procedure with regard to disciplinary proceedings and awarding punishment has been provided under the Regulations. For convenience, Regulation 64 of the Regulations is reproduced as under:

(1) Without prejudice to the right to terminate the service in accordance with Regulation 29 no order (other than order based on facts which had led to his conviction in a Criminal Court) of dismissal, removal or reduction in rank, which includes, reduction to a lower post or time scale or to a lower stage in the time scale but excludes the reversion to a lower post of a person who is officiating on a higher post, shall be passed against an employee unless he has been afforded adequate opportunity of defending himself.

(2) The ground on which it is proposed to take action shall be reduced in the form of a definite charge or charges which along with the evidence proposed to be relied upon in support of the charge shall be communicated to the person charged and he shall be required, within a reasonable time, to put in a written statement of his defence and to state whether he desires to examine or cross-examine any witness and whether he desires to be heard in person. He shall also be informed that, in case he does not file a written statement of his defence, it will be presumed that he has none to furnish and orders will be passed (ex parte).

(3) If the employee desires or the Enquiry officer considers it necessary an oral inquiry shall be held in respect of such allegations as are not admitted. At the enquiry such oral evidence shall be heard as the Enquiry Officer considers necessary. The person charged shall be entitled to cross-examine the witnesses, to give evidence in person and to have such witness called as he may wish, provided that the officer conducting the enquiry may for sufficient reasons to be recorded in writing refuse to call or examine any witness.

(4) The proceedings shall contain sufficient record of evidence and the statement of findings and grounds thereof. The enquiry Officer may also, separately from the proceedings, make his own recommendation regarding the penalty to be imposed. The proceedings and the record shall be forwarded to the appointing authority.

(5) The appointing authority shall pass such orders as he considers proper on the basis of record and report.

NOTE.--(i) Where the punishing authority himself enquires into the charges, he may, if he considers proper, appoint any employee to present the case on his behalf.

(ii) The employee may take the assistance of any other employee to present the case on his behalf but shall not be entitled to engage a legal practitioner or any person other than an employee.

Clause (3) of Regulation 64 (supra) provides that if employee desires or the Enquiry Officer considers it necessary an oral inquiry shall be held in respect of such allegations as are not admitted. The Regulation 64 relied upon by the respondents Counsel, seems to have got statutory force being framed in pursuance of statutory powers conferred to the respondents.

It has been submitted by the learned Counsel for the respondents that at no stage of inquiry either before the Inquiry Officer or the disciplinary authority the petitioner has made request for oral inquiry. Attention has not been invited to any material on record by either side which may reveal that either the Inquiry Officer has taken a decision for oral inquiry or the petitioner has made request for oral inquiry.

Now, it is settled principles of law that regular inquiry means after service of charge-sheet and receipt of reply to the charge-sheet, oral evidence should be recorded with opportunity to cross-examine the witnesses. Thereafter, the delinquent employee has a right to lead evidence in defence and opportunity of personal hearing should be given by the enquiry officer, vide Jagdish Prasad Singh v. State of U.P. 1990 LCD 486, Avatar Singh v. State of U.P. 1998 LCD 199, Town Area Committee, Jalalabad Vs. Jagdish Prasad and Others, Managing Director, Managing Director, Uttar Pradesh Warehousing Corporation and Another Vs. Vijay Narayan Vajpayee, State of U.P. Vs. Shatrughan Lal and Another, Chandrama Tewari Vs. Union of India (UOI) (through General Manager, Eastern Railways), and Anil Kumar Vs. Presiding Officer and Others, and Uma Shanker Yadav v. Registrar Co-operative Societies, Lucknow and others 1993 (11) LCD 495, as well as Satya Prakash Pandey v. Town Area Committee and others 1994 (12) 262. The Inquiry Officer is supposed to work as independent body having no concern either with prosecution or the defence and ensure that the allegations are proved with due compliance of principles of natural justice.

However, in the present case, whether in the teeth of clause (3) of Regulation 64 of the Regulations, the aforesaid settled proposition of law can be invoked to assail the impugned order.

It is settled law in catena of judgments of Hon''ble Supreme Court, that even a wrong order or statutory provision shall occupy the field unless the same is set aside or declared ultra vires by the competent Court. Accordingly, clause (3) of Regulation 64 of the Regulation, seems to regulate the procedure with regard to departmental proceeding. Unless same is declared ultra vires by the Court being violative of Article 14 of the Constitution, it shall regulate the enquiry.

While filing the present writ petition, the petitioner has not challenged the constitutional validity of clause (3) of Regulation 64 of the Regulations. Accordingly, acceptance of the argument of the petitioner''s Counsel, will amount to record finding against the statutory provision. It is well settled proposition of law that neither a writ of mandamus can be issued nor the Court can take decision in derogation of statutory provisions, vide Secretary State of Karnataka v. Umadevi 2006 (109) FLR 826 (SC) : 2006 (42) AIC 935 (SC), National Fertilizers Ltd. and Others Vs. Somvir Singh, State of U.P. Vs. Neeraj Awasthi and Others, A. Umarani Vs. Registrar, Cooperative Societies and Others, State of Haryana and others Vs. Piara Singh and others etc. etc., Union of India (UOI) and Others Vs. Mahender Singh and Others, Ashwani Kumar v. State of Bihar (1997) 1 SCC 1 : 1997 (75) FLR 25 (SC) (Sum.), Delhi Development Horticulture Employees'' Union Vs. Delhi Administration, Delhi and others, Director, Institute of Management Development v. Pushpa Srivastava 1992 (65) FLR 571 (SC), Ramakrishna Kamat and Others Vs. State of Karnataka and Others, and Hindustan Shipyard Ltd. and Others Vs. Dr. P. Sambasiva Rao and Dr. S. Prasada Rao,

Accordingly, submission of the learned Counsel for the petitioner pressing for oral inquiry that too, in absence of any demand during the course of departmental inquiry, seems to be not sustainable. In the case of Kunj Behari Misra (supra), relied on by the petitioner''s Counsel, Hon''ble Supreme Court held that in the event of difference of opinion between the Inquiry Officer and the disciplinary authority, it shall be obligatory to the disciplinary authority to serve show-cause notice pointing the difference of opinion with regard to charges. The present case is based on different facts and circumstances. In the present case, the Inquiry Officer himself recorded finding that the charges with regard to charge No. 1 is partially proved. The 56 passengers were found without tickets. Even if other charge has not been proved, the non-issuance of tickets on the basis of one charge, seems to make out a case to pass order of removal.

The duty of the Conductor is based on trust and fairness in action. In case the Conductor of the Bus does not issue tickets to all the passengers who are travelling in the bus and they are charged for such misconduct, then they require major penalty which has rightly been awarded by the impugned order. We do not find any good ground to interfere in the impugned order.

The writ petition is accordingly dismissed. No orders, as to costs.