Samiullah Khan vs U.P.State Road Transport Corporation & Ors.

Rakesh Sharma, J.—Heard Mohd. Mansoor Ahmad, learned Counsel for the petitioner and Sri Mahesh Chandra, learned Counsel for the U.P.S.R.T.C.

Under the challenge is an order dated 2481998 by which the petitioner, a Bus conductor belonging to Faizabad Depot of U.P.S.R.T.C. was dismissed from the services as a result of inquiry.

The learned Counsel for the petitioner has submitted that a departmental inquiry was initiated against the petitioner. A chargesheet dated 1521996 was issued against him to which he has replied. After considering the reply, the Inquiry Officer has submitted the report against the petitioner. Thereafter a showcause notice was issued against him on 1551998 alongwith the Inquiry Officer''s report. The petitioner submitted his reply to the showcause notice on 961998 and thereafter he was dismissed from the services on 2481998. The petitioner had preferred an appeal, which was also rejected on 3041999.

Mohd. Mansoor Ahmad, learned Counsel for the petitioner has assailed the inquiry on the main ground that the Inquiry Officer''s report does not contain the reasons, grounds for arriving at the conclusions drawn by the said officer. A bare perusal of the Enquiry Officer''s report reveals that immediately after considering the chargesheet and reply of the petitioner, the Inquiry Officer has arrived at the conclusion that the petitioner was guilty of the charges. The conclusions recorded are as follows :

The learned Counsel for the petitioner has drawn attention of this Court towards Subclause 4 of Regulation 64 as contained in U.P.S.R.T.C.E.S. Regulations, 1981. The procedure for holding departmental inquiry and punishment is provided in Regulation 64. The relevant Subclause 4 of Regulation 64 is quoted below :

�(4) The proceedings shall contain sufficient record of evidence and the statement of finding 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.�

The learned Counsel for the petitioner has submitted that the inquiry has not been conducted in accordance with the aforementioned regulation. The Inquiry Officer has not given his reasons and discussed the evidences available on record. The grounds for forming opinion that the charges were found proved were not indicated. It appears that the whole inquiry was conducted with a predetermined mind and the Inquiry Officer has prejudged the issues. It is evident from the record that Sri B.B. Singh, the author of the report dated 621996 (a witness of prosecution) did not appear before the Inquiry Officer to prove his report dated 621996 which was used by the Inquiry Officer for finding the charges proved against the petitioner.

The learned Counsel for the petitioner has led the Court''s attention towards the observations made by the punishing authority in the order of removal dated 2481998 which reads as follows :

This observation, finding recorded by the punishing authority shows that the prosecution witnesses did not appear before the Inquiry Officer nor the same were put for crossexamination of the delinquent employee. The whole actions and proceedings were violative of the principles of natural justice and were also against the relevant service regulations.

The learned Counsel for the petitioner has cited the following judgments in support of his submissions :

Anil Kumar v. Presiding Officer & Ors., 1986 (52) FLR 487 (SC).

Sher Bahadur v. Union of India & Ors., 2002 (95) FLR 11 (SC).

Subhash Chandra Sharma v. Managing Director & Anr., 2000(1) LBESR 342 (All) : 2000 (86) FLR 19 (Alld.) (Sum.) : (2000) 1 UPLBEC 541.

Rajendra Prasad Tripathi v. State of U.P. & Ors., 2004 (22) LCD 1551.

Avadhesh Kumar Rastogi v. State of U.P. & Ors., 2004 (22) LCD 1.

The petitioner has placed reliance on Para 7 of the judgment reported in (2002) 7 SCC (supra) in which the Hon''ble Supreme Court of India has held as under :

�(6) It may be observed that the expression `sufficiency of evidence'' postulates existence of some evidence which links the charged officer with the misconduct alleged against him. Evidence, however, voluminous it may be, which is neither relevant in a broad sense nor establishes any nexus between the alleged misconduct and the charged officer, is no evidence in law. The mere fact that the Enquiry Officer has noted in his report, �in view of oral, documentary and circumstantial evidence as adduced in the enquiry� would not in principle satisfy the rule of sufficiency of evidence. Though, the disciplinary authority cited one witness Sri R.A. Vashist, Ex CVI/Northern Railway, New Delhi, in support of the charges, he was not examined. Regarding documentary evidence, Ext. P1, referred to in the enquiry report and adverted to by the High Court, is the order of appointment of the appellant which is neutral fact. The Enquiry Officer examined the charged officer but nothing is elicited to connect him with the charge. The statement of the appellant recorded by the Enquiry Officer shows no more than his working earlier to his reengagement during the period between May, 1978 and November, 1979 in different phases. Indeed, his statement was not relied upon by the Enquiry Officer. The finding of the Enquiry Officer that in view of the oral, documentary and circumstantial evidence, the charge against the appellant for securing the fraudulent appointment letter duly signed by the said APO (Const.) was proved, is, in the light of the above discussion, erroneous. In our view, this is clearly a case of finding the appellant guilty of charge without having any evidence to link the appellant with the alleged misconduct. The High Court did not consider this aspect in its proper perspective, as such the judgment and order of the High Court and the order of the disciplinary authority, under the challenge, cannot be sustained, they are accordingly, set aside.�

On the basis of above submissions, Mohd. Mansoor Ahmad has concluded his arguments that the inquiry is vitiated and the removal order deserves to be set aside in the light of aforesaid decisions.

Sri Mahesh Chandra, learned Counsel for the respondents has strenuously argued that in the present case a detailed departmental inquiry was conducted against the petitioner. A chargesheet was issued against the petitioner, delinquent employee and he was afforded opportunity to make his submissions. The petitioner did not submit a proper reply in his defence. However, the Inquiry Officer has taken into account the material on record. The charges against the petitioner were serious as 20 passengers were travelling without tickets in the Bus, thus causing substantial pecuniary loss to the Corporation whereas the Corporation was already running in losses at the relevant time. According to Sri Mahesh Chandra, there is no infirmity in the Inquiry Officer''s report. The Inquiry Officer has dealt with the submissions made by the petitioner. He has discussed all the charges. Several dates were fixed for oral inquiry but the petitioner avoided to cooperate with the Inquiry Officer. Ultimately the Inquiry Officer had no option except to submit his report and the same was done in the present case. Since all the charges were found proved, the petitioner was rightly dismissed from the services.

According to Sri Mahesh Chandra, learned Counsel for the respondents the judgment cited by the learned Counsel for the petitioner are not applicable in the present set of circumstances. In the present case the departmental inquiry was held in accordance with service rules and regulations and the principles of natural justice were followed while holding the departmental inquiry. The order of penalty, dismissed is just, legal, valid and proper.

I have heard the learned Counsel for the parties and perused the record.

A perusal of the chargesheet reveals that there were 9 charges against the petitioner. In support of the 9 charges, the Inquiry Officer had relied on the report of Sri B.B. Singh, Traffic Superintendent who submitted the report against the petitioner on 621996. The documentary evidences cited in the chargesheet were bus tickets.� mecyeefOele ef<212>ke�<212>� Thus the 9 charges were based on only one documentary evidence i.e. the report of Sri B.B. Singh. It was incumbent upon the Inquiry Officer to call for Sri B.B. Singh, the author of the report dated 621996 to prove the charges at the time of departmental trial. Admittedly Sri B.B. Singh was not summoned at the time of inquiry nor he was examined to prove the charges. The Inquiry Officer and the punishing authority clearly indicated in the Inquiry report and in the order of penalty respectively that no witnesses of prosecution had appeared and the inquiry had to be concluded on the basis of material available on record. Thus the inquiry is vitiated on this ground alone as the petitioner was denied opportunity of crossexamining Sri B.B. Singh. Even if he did not appear on the date fixed, it was the duty of the Inquiry Officer to summon Sri B.B. Singh and his statement should have been recorded by the Inquiry Officer and thereafter the petitioner could have been afforded an opportunity of cross examining the said witness. This Court has already held that when a delinquent employee does not appear during the departmental trial, it is the duty of the Inquiry Officer to summon the witness of prosecution by fixing dates. It was also incumbent upon the Inquiry Officer to prove the charges and record his conclusions, which may be ex parte or may be after hearing the delinquent employee.

On the basis of above decisions I hold that the departmental inquiry was not held properly.

Now coming to the Inquiry Officer''s report, it emerges that in the first para, the Inquiry Officer has recorded the subject matter of accusation against the delinquent employee and in the next para, he has recorded about the explanation of the petitioner and in the third para, he has indicated the dates fixed by him for holding the inquiry. The conclusions have been recorded in about 56 lines straightaway concluding that the petitioner was guilty of all the 9 charges. There is no discussion about the said aforementioned 9 charges. Neither the charges nor the evidence available on record were discussed. The Inquiry Officer did not even care to justify his findings and conclusions drawn by him for finding these 9 charges proved against the petitioner. Thus the inquiry conducted in this way was wholly unjust and improper. It is also violative of Regulation 64 of the aforementioned Regulation, 1981. The procedure prescribed for holding inquiry has not been followed. There is no sufficient record of evidence, statement of facts, grounds etc. in the Inquiry Officer''s report.

Now coming to the arguments of Sri Mahesh Chandra regarding sufficiency of evidence and accepting of evidence, relating to the charges. In the present case there was availability of 2 evidence, i.e. Sri B.B. Singh and the bus tickets. Sri B.B. Singh was not examined nor he appeared before the Inquiry Officer. There is no discussion of the tickets by the inquiry Officer as to how he has relied on �**� in the charges and how the findings have been recorded for proving the accusation against the delinquent employee.

In view of this, the principles of existence of evidence and sufficiency of evidence cannot be applicable while dealing with the matter.

In view of above discussion, I hold that the departmental inquiry was not conducted in accordance with law.

The writ petition is allowed. A writ of certiorari is issued quashing the order dated 2481998 as contained in Annexure No. 1 to the writ petition. The consequential shall follow. The petitioner shall be reinstated in the services forthwith and shall be paid his full back wages alongwith 6% interest within three months from today. This judgment and order has been passed in the presence of Sri Mahesh Chandra, learned Counsel for the U.P.S.R.T.C. for compliance of the Court''s order.

However, in the circumstances of the case, it shall be open for the opposite parties to hold a fresh inquiry, if they so desire.