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Judgment
G.A. Kuchhai, J.—The petitioner has challenged an order No. J&K SRTC. EO IV/2900 dated 31.10.1987 passed by respondent No. 1
whereby the petitioner has been dismissed from the Corporation services.
The brief facts of the case are that respondent No. 1, while on check, allegedly charging the petitioner for misappropriation of ticket money of
nine passengers of Bus No. 2019JKY plying on Kulgam Shopian route on 24.10.1987, removed him from the Corporation services without
inquiry defeating the constitutional provisions and the principles of natural justice.
The respondents while filing the counter, resisted the petition on the ground that the same is not maintainable as the petitioner has an alternative
remedy under the provisions of the Industrial Disputes Act for redress of his grievance of dismissal from the Corporation services.
The respondents did not choose to appear at the hearing stage. I have heard learned counsel for the petitioner and perused the pleadings of both
the parties.
The first point raised by the respondents is regarding the maintainability of the petition due to alternative remedy available to the petitioner under
the J&K Industrial Disputes Act. The petitioner has been removed from the service from a post on which he had a right to continue had the
impugned order dated 31.10.1987 not interrupted. Further the petitioner has challenged the vires of Rule 152 of the J&K Road Transport
Corporation Service Condition Rules and Regulations, 1979, and, he having been removed without inquiry despite major punishment of dismissal
passed against him. In this way even the principles of Natural Justice have been violated. Where the petitioner's right is involved and vires of a
statute are challenged and principles of natural justice offended the aggrieved has been given liberty to choose the forum under the Constitution. In
this connection I am to refer to an earlier Judgment of this court on an identical point in writ petition No. 1530/88 titled 'Mohammad Hafiz v.
Managing Director' delivered on 21.12.1990 wherein while relying on the citation of a Division Bench of this Court reported in SLJ (1989) J and
K 235 alongwith another judgment of Allahabad High Court reported in (1987) Labour and Industrial Cases Volume 20 page 728, holding the
petition in writ jurisdiction on an identical point maintainable. In this case also I am inclined to follow the judgments together with my own
observations in earlier judgment referred to above in the writ petition titled 'Mohd Hafiz v. Managing Director'. Therefore, the writ petition is held
maintainable for the reason principles of natural justice have been violated and on the ground that the vires of the Rule 152 of the J&K Road
Transports Corporation Service Condition Rules and Regulations, 1979 under which the order impugned dated 31.10.1987 has been passed has
also been challenged.
As no arguments due to absence of respondent could be advanced in this case, therefore, the petition is held maintainable in writ jurisdiction for
the reasons given above.
Regarding the order impugned learned counsel for the petitioner argued that the same is arbitrary, without enquiry into the allegation of
misappropriation of ticket money against the petitioner and no record maintained by the respondents. He further argued that the Rule 152 relied by
the respondent No. 2 is contradictory to the provisions of Rule 148 of J&K Road Transport Service Condition Rules and Regulations, 1979
(hereinafter to be referred to as 'the Rules of 1979') itself where enquiry for major punishment is provided.
No doubt, Rule 152 of the Rules of 1979, is applicable to the employees of the Corporation which gives power to the Chairman or in
alternative any other authorised officer of the Corporation to remove Driver/Cleaner/Conductor from service, if he is satisfied that either of the
official has misappropriated the ticket money, then such official has to be dismissed summarily, the powers under this rule are over and above the
other provisions of the Rules of 1979, involving major punishment to an employee in the rule indicated.
To appreciate the point, the Rule 152 of the Rules of 1979 needs to be quoted for appreciation hereunder :
Rule 152. Notwithstanding anything contained in these Regulations if the Chairman or any other officer empowered in this behalf during his
inspection finds passengers travelling without ticket on the Road Transport Corporation vehicles and being satisfied that the
Driver/Cleaner/Conductor has misappropriated the ticket money the Driver/Cleaner/Conductor, as the case may be, will be liable for
dismissal/discharge summarily"".
Apparently the rule gives absolute and unqualified power to the chairman and on authorisation to any other officer of the corporation to remove
from service three categories of officials i.e. Driver, Cleaner, Conductor, if he acquires satisfaction, that ticket money collected from the passengers
is misappropriated by any of the official. But to make deep reading of the rule quoted, it on one side gives the power to the authority for
removal/dismissal and on the other side puts an obligation to such an authority for purposes of operation of the rule, to acquire satisfaction before
passing order of dismissal/discharge. Thus, the rule is selfcontained. To examine the rule in the light of right/natural justice the word 'Satisfaction' is
significant to arrive at the verdict by the officer that the money is misappropriated. Though under Rule 148 of the Rules of 1979, procedure for
major punishment has been laid and whoever is sought to be dismissed or removed before reaching such a conclusion, a full dress inquiry is
anticipated by serving the chargesheet to seek reply of the delinquent official, evidence by both the sides and then the conclusion what is not
expressly contained in the rule quoted. The provisions of the Rule 152, though shown over and above of other rules regarding punishment, but the
barrier to arbitrary nature of the rule is the word 'Satisfaction' as indicated above. To acquire satisfaction rather to settle belief of a certain fact,
state of affairs, state of mind of sincerity or illwill of the delinquent official, the authority can gain satisfaction by ascertaining the truth behind the
allegation regarding payment or nonpayment of the fare and test the allegation of misappropriation by the official. The possibility of nonpayment of
the fare by the passenger has to be made it clear can be fulfilled by taking statement of the passengers in a running enquiry, in reference to an
employees of the Corporation.
In this case, once the outcome of satisfaction is to be acquired by reducing it is writing rather in black and white what is meant under the rule,
the authority too despite unqualified power under the regulation is under an obligation to collect the material or raise the record, particularly, when
a decision to take summarily to clean it from the blame of arbitrariness. Thus, the authority in order to acquire the satisfaction has to draw the
charge of allegations against the official and put the same to him to seek his explanation. The explanation, if any, of the delinquent official has to be
considered on the basis of material collected in support of the allegation if need arises, unless the allegation is accepted by the official.
In the case in hand the satisfaction could be assumed by the authority at least by recording statements of those passengers who may have paid
fare alleged to be misappropriated to remove the apprehension that the fare was never paid and innocent official is condemned without
substantiating the allegations of misappropriation against him. In the circumstances even Rule 152, on the face of it, appears arbitrary. Legislation
requires maintenance of record to assume satisfaction which in no case can be oral satisfaction to eliminate the smell of arbitrariness or liking or
disliking of the authority of such delinquent official. Therefore, maintenance of record is essential which even under the Rule is presumed to
summarily dispose the allegation. The officials indicated are the servants of the Corporation and at large governed by the Rules of 1979, which
affords them full dress inquiry regarding major punishments in accordance with the procedure laid in Rule 148. If the procedure in Rule 148 is
deviated as relied by the respondents on the basis of Rule 152, this is then a discriminating legislation for treatment of a certain category of
delinquent officials from the normal course laid in the Rule as contained in subrule (ii) of Rule 148, for major punishment. The Corporation cannot
afford to make extraordinary legislation to remove/dismiss/discharge from service one set of employees without enquiry and giving different
treatment to remaining officials for same punishment under the normal rules affording them full enquiry. In the circumstances, even word 'summarily'
in Rule 152, despite its arbitrary face reading and in respect of major punishment, the Corporation cannot justify the punishment impugned under
the Rule in the light of bar of (Satisfaction) which can only be by maintaining record on either side. The Corporation is under an obligation to supply
charges of allegation to delinquent category of officials, seek explanation and support such allegation by evidence corroborating such allegation
otherwise the punishment whatever passed is imaginary and cannot be justified by any rule/regulation least under the Constitution which for all
types of indictments requires adoption of principles of natural justice, whatever may be the case or wording of a particular Rule or Regulation,
particularly, in the Rule 152 impugned word 'Summarily' without maintaining the record acquiring satisfaction deserves to be struck off from the
statute book and the provisions of Rule 148 for purposes of inquiry in case of major punishment has to be read in this case also as the punishment
of dismissal awarded is a major one and Rule 148 requires enquiry before it is awarded.
The respondents in their counter, have made an eyewash to the pleadings of the petitioner by stating that sufficient opportunity was given to the
delinquent official who failed to explain but no record whatsoever to that effect has been projected not even referred before the court, therefore,
the order impugned on 31.10.1987 on the face of it and in the absence of maintenance of record is an arbitrary action hitting the principles of
natural justice even the Rule 148 of the Rules of 1979. The order over and above hits the constitution provision to the employee of the
Corporation of being heard when such provision exists in the very Rules of 1979, as indicated and discriminatory treatment to the petitioner not
justified even under the common law.
For the purposes of word 'Satisfaction' Rule 152 gets saved but the word 'Summarily' contained in the Rules of 1979, deserves to be scraped
and to make the Rule understandable and in tune with the Rule 148 of the said Rules of 1979.
The order impugned lacks apparently competence because it has been passed by Vice Chairman/Managing Director, to whom there is no
direct authority to pass the punishment, they have to be authorised to pass the punishment, they have to be authorised by the Board/Corporation
whoever is competent to give authority, not otherwise. Rule 152 of the Rules, clearly gives, however, to the chairman authority only to take action
and any other officer of the Corporation has to be authorised as indicated. The respondents have not projected any Resolution of the
Corporation/Board to the effect that the viceChairman/Managing Director has been authorised to take the action impugned. On this point also, in
my opinion, the order impugned is rendered illegal and inoperative.
Keeping in view the observations made above, the writ petition is treated maintainable before this court and the impugned order dated
31.10.1987 of respondent No. 1, for the reasons given above, is quashed and the petitioner is ordered to be restored to the position he held
before the impugned order was passed. The petitioner will be entitled to costs assessed at Rs. 300/.
The writ petition is accordingly allowed and disposed of and so also the connected.
Petition allowed.