Sarup Singh vs The State of Punjab and Others

A.P. Chowdhari, J

This second appeal is directed against the judgment and decree of learned Additional District Judge, Gurdaspur, affirming the judgment and decree of the trial Court dismissing the plaintiffs suit.

The factual background is that the appellant was working as a Conductor in Punjab Roadways, Batala Depot. On 15th January 1984 he was on duty as Conductor in bus No. 1762 which left Batala for Dera Baba Nanak. When the bus had covered about seven kilometres from Batala, it was checked near Dharamkot. The checking party comprised Inspectors Raj Singh and Banarsi Lal. Out of 60 passengers travelling in the bus 42 had not yet been issued tickets nor they had paid fare to the Conductor. Five persons had paid fare and held valid tickets. The remaining thirteen passengers were such who had paid fare to the Conductor but had not been issued any ticket. There were five persons bound for Dera Baba Nanak who had paid fare at the rate of Rs. 2.30 per ticket and equal number were going to village Shikar who had paid fare to the conductor at the rate of Rs. 1.60 P. each. Three other persons were going to village Kotli and had paid fare to the Conductor at the rate of Rs. 1.20 Paise each. The Conductor was thus alleged to have received Rs. 23.10 P. from the aforesaid 13 passengers but had issued them no tickets. On a report having been made by the checking staff, the General Manager ordered departmental enquiry on two charges, namely embezzlement of a sum of Rs. 23.10 P. and intentional failure to issue tickets to 42 passengers. The enquiry was conducted by Mr. R.S. Sharma from the office of the Divisional Manager, Transport Department, Jalandhar. The charges were held established. After show cause notice, the punishing authority i.e. the General Manager, Punjab Roadways, Batala, removed the said Conductor from service by order dated March 30, 1985. The appeal filed by the alleged delinquent was dismissed by the Divisional Manager, Transport Department, Jalandhar, on 13th December 1985. After serving notice u/s 80 of the Code of Civil Procedure, the delinquent instituted a regular suit challenging the order of removal on a number of grounds.

The suit was contested. The learned trial Court framed the following issues: --

(1) Whether the Civil Court has no jurisdiction to try the present suit? OPD

(2) Whether the impugned orders dated 30th March 1985 and 13th December 1985 are illegal null and void? OPD.

(3) Relief.

Issue No. 1 was not pressed by the defendants.

It was accordingly decided against the defendants. Issue No. 2 was decided against the plaintiff and the suit was dismissed. The plaintiff preferred appeal which was dismissed by the learned Additional District Judge. The plaintiff has preferred this second appeal.

The learned counsel for the appellant has raised three contentions before me.

His first contention is that this is a case of ''no evidence'' in support of the charges and the finding of the enquiry officer which was the basis of the order of removal, thus stood vitiated. The contention of the learned counsel, in fact, amounts to saying that there was no legal evidence against the plaintiff. At the enquiry, both the Inspectors who carried out the checking were examined. They are Banarsi Lal, PW1, and Raj Singh, PW2. They gave a complete account of the checking carried out by them in the bus in which the plaintiff was on duty as a Conductor. They deposed about 13 passengers have stated before them that they had paid the fare but had not been issued tickets by the Conductor. In cross-examination, there was no suggestion of any personal animosity between the plaintiff and the punishing authority i.e. the General Manager on the one hand and between the plaintiff and the checking staff on the other hand. It was submitted that the Inspectors who carried out the checking failed to record the statements of any of the passengers and especially those who claimed to have paid the fere to the plaintiff without obtaining the requisite ticket in lieu thereof. The statement of the Inspectors, it was argued, was thus hearsay and inadmissible in evidence. The learned counsel emphasised that the collection of fare by the Conductor from 13 passengers had not taken place in the presence of the checking staff and, therefore, the testimony of the two Inspectors was solely based on the ipse dixit of those 13 passengers who have remained unnamed and unidentified till today, According to the learned counsel, therefore* there was no legal evidence on which the Enquiry Officer based his report.

In State of Haryana and Ors. v. Shri Ram Chander 1976(2) SLR 690 a Full Bench of this Court held that there is no bar against the reception of hearsay evidence by domestic tribunals. It was further held that the extent to which such evidence may be received and used must depend on the facts and circumstances of each case and the principles of natural justice. O. Chinnappa Reddy, Acting Chief Justice (as his Lordship then was), speaking for the Bench referred to Phipson in his "Law of Evidence", in which the learned author had observed that nine-tenth of the world''s business is conducted on the basis of hearsay. It was also pointed out that considerable inroad had been made by statute recently in England and first hand hearsay was now admissible in evidence in Courts of law. Exception to the rule of hearsay already existed under the Evidence Act, in that dying declaration and retracted confession were admissible. What ; is more, the domestic tribunals were masters of their own procedure as long as they observed rules of natural justice. Apart from the rules of natural justice, the other safeguard in connection with the reception of hearsay evidence was that it should be "logically probative". In this connection, the Bench took two hypothetical examples to bring out the real legal position and stated: "If half a dozen persons go to the office of the Haryana Roadways and complain that the conductor of a -certain bus collected fare from them but did not issue tickets to them and if later on the passengers are not examined as witnesses, a finding of guilt based solely upon the complaint given by the passengers would amount to a finding based on pure hearsay and would involve violation of principles of natural justice. On the other hand, where a bus is checked and if it is found that tickets have not been issued to several passengers and the passengers state in the presence of the conductor that they paid the fare, the enquiry officer would be justified in acting upon the evidence of the checkers stating these facts even though the passengers themselves are not examined as witnesses. A finding of guilt arrived at by him would not be based on pure hearsay."

The learned counsel for the appellant has tried to build a good part of his argument on the fact that it was nowhere shown that the thirteen passengers concerned made the incriminating statements in the presence of the conductor in order to make it "logically probative". He sought to rely on two decisions of this Court in State of Haryana v. Mohan Singh 1985(2) SLR 116 and Punjab State and Anr. v. Harnam Singh 1988(1) SLR 97. I am unable to accept the contention of the learned counsel. The ratio in the Full Bench decision is quite clear and categorical that there is no bar against the reception of hearsay evidence by domestic tribunals. What value is to be attached to such evidence depends upon the facts and circumstances of each case. What is required to be ensured is that rules of natural justice are observed and the evidence is logically probative.

In the facts of the present case, I am not at all prepared to hold that the statements alleged to have been made by the thirteen passengers who had paid the fare but had not been given the tickets were not made within the immediate presence of the conductor. The checking was carried out in the bus itself when it was on its journey. The presence of the conductor must, in the circumstances, be presumed so that if any allegations were made that the conductor had collected the fare but had not issued the ticket, he could be confronted there and then as to what he had to say. My conclusion, therefore, is that the checking was carried out in the presence of the conductor and the aforesaid statements must have been made in his presence. In the facts and circumstances, the statement ascribed to those passengers are at once logically probative. It deserves to be highlighted that there is not so much as even a suggestion that the checking staff had any personal animosity against the plaintiff. On the contrary, what the two checking Inspectors deposed before the Enquiry Officer corroborated each, other besides being corroborated by their report in writing made to the General Manager as a result of the checking. I, therefore, reject the first contention.

The second contention of the learned counsel for the appellant is that the General Manager, Punjab, defendant No. 2, having supervised the checking was biased and he was, therefore, not competent to charge-sheet the plaintiff. In this connection, the learned counsel referred to the report of the Inspectors with regard to the result of the checking in which it was stated that the checking was carried out under the supervision of the General Manager. Reliance was placed on D.J. Warkar v. K.V. Karanjkar 1980-2-LLJ-270. This authority is distinguishable for two reasons. One, the Enquiry Officer had exonerated the delinquent of the charge of theft of bearings, but the punishing authority reversed that finding and imposed major punishment on the delinquent. Two, in the facts of that case the recovery of the bearings had, in fact, taken place in the presence of the Chief Engineer, who was the punishing authority and in the course of the investigation of a criminal case for theft, the police had recorded statement u/s 161 of the Code of Criminal Procedure of the Chief Engineer in which he stated about the recovery of the stolen bearings from the delinquent in his presence. In view of these peculiar facts it was observed that the enquiry was vitiated by vfolation of the principles of natural justice as the Chief Engineer was both a witness as well as a Judge. In the present case, on the other hand, there is nothing to show that the General Manager was physically present at the time of the checking. The General Manager is the seniormost officer who heads a depot. He can supervise various checking parties without being physically present with any of those parties. Moreover, the enquiry was held by an officer of the office of Divisional Manager, Transport Department, Jalandhar. There is total absence of any personal bias of the General Manager against the appellant. This is, therefore, not a case of personal bias nor in the facts of the case can it be held that there was bias in law. The supervision of the employees in regard to their duties is an important function of the General Manager and if he discharges that function it cannot be said that there is legal bias in his action. I have, therefore, no difficulty in rejecting this contention.

The last contention of the learned counsel for the appellant is that the appellate authority i.e. the Divisional Manager, Transport Department, failed to observe Rule 19 of the Punjab Civil Services (Punishment and Appeal) Rules, 1970. The rule in so far as relevant lays down as under:--

(1) XX XX XX XX XX

(2) In the case of an appeal against an order imposing any of the penalties specified in Rule 5 or enhancing any penalty imposed under the said rule, the appellate authority shall consider-

(a) Whether the procedure laid down in these rules has been complied with, and if not, whether such non-compliance has resulted in the violation of any provision of the Constitution of India or in the failure of justice;

(b) Whether the findings of the punishing authority are warranted by the evidence of the record; and

(c) whether the penalty or the enhanced penalty imposed is adequate, inadequate or servere; and pass orders-

(i) confirming, enhancing, reducing or setting aside the penalty; or

(ii) remitting the case to the authority which imposed or enhanced the penalty or to any other authority with such direction as it may deem fit in the circumstances of the case;

XX XX XX XX XX XX

In the impugned order passed by the appellate authority the factual background was given. The material facts with regard to the enquiry leading to the order of removal were mentioned giving details of the progress of the enquiry on various dates and the conduct of the delinquent. The various grievances raised by the delinquent in the appeal were listed and an attempt was made to show that there was no merit in any of those grievances. The order cannot, therefore, be considered to have been passed in violation of the provisions of the above rule.

It was also pointed out that the Inspectors failed to check the cash being carried by the Conductor at that time to corroborate the alleged version" of the passengers. The driver of the bus was supposed to have witnessed the checking and even he was not produced to corroborate the testimony of the Checking Inspectors. There is no substance in this submission. It must be borne in mind that this Court is not sitting in appeal against the order of removal. Adequacy or sufficiency of evidence is for the departmental authorities. The Civil Court would intervene if it were found to be a case of no evidence at all. Viewed in this context, it is for the department to decide the evidence to be led to prove the charge. It is idle to speculate what evidence could have been produced. This is an addition to the fact that nothing has been brought on record to show that cash amount being carried by the conductor is checked and recorded at the commencement of journey and he is forbidden to keep his own money in cash while performing his duty. In the absence of such a material it would be meaningless to carry out a physical check of the cash being carried by the conductor.

In the result the appeal fails and the same is dismissed with no order as to costs.