State of Haryana vs Bikar Singh

R.L. Anand, J.—State of Haryana, defendant in the trial Court, has filed the present Regular Second Appeal and it has been directed against the judgment and decree dated 13.5.1999, passed by the Court of learned District Judge, Sirsa, who affirmed the judgment and decree dated 28.7.1997, passed by the Court of Civil Judge (Senior Division), Sirsa, who decreed the suit of the plaintiff for declaration as prayed for.

The brief facts of the case are that Bikar Singh plaintiff was posted as Conductor No. 331 in Haryana Roadways, Sirsa Depot. He was dismissed from service vide order dated 25.8.1994 passed by the General Manager, Haryana Roadways, Sirsa Depot. The appeal preferred by the plaintiff against the order of dismissal was also dismissed by Additional Transport Commissioner vide order dated 28.6.1995. The plaintiff through this suit has challenged both the orders on the ground that the same are illegal, null, void and without jurisdiction and are liable to be set aside. The plaintiff also alleged that the order of dismissal is without jurisdiction and authority because as per the executive instructions of the Government dated 4.6.1993, a Conductor involved in a case of embezzlement/fraud can only be dismissed from service by the Transport Commissioner and not by the General Manager concerned. The plaintiff also alleged that the order of dismissal is punitive in nature and is violatiye of Article 311 of the Constitution and the principles of natural justice. On these averments the plaintiff sought the relief of declaration and for mandatory injunction praying that be taken into service and he may also be given all the benefits of service including the arrears etc.

The suit was contested by the defendants. According to the defendants, the services of the plaintiff were terminated on 25.8.1994. It was pleaded that there was no necessity to record the statements of the passengers who were found travelling without tickets. The plaintiff was given full opportunity to defend himself. He was allowed to cross-examine the prosecution witnesses. The inquiry was conducted in a legal and proper manner, A proper charge-sheet was served upon the plaintiff with list of witnesses and allegations. The services of the plaintiff have been terminated on account of the fact that he embezzled a sum of Rs. 200/-. No previous record of the plaintiff was taken into consideration at the time of the passing of the termination order dated 25.8.1994. With this defence, the defendants prayed for the dismissal of the suit.

Plaintiff filed replication to the written statement in which hereiterated the allegations made in the plaint by denying those of the written statement.

From the pleadings of the parties the trial Court framed the following issues :-

Whether orders dated 25.8.1994 and 28.6.1995 are illegal, null and void and not binding on the rights of the plaintiff as alleged ? If so to what effect ? OPP

Whether the suit of plaintiff is not maintainable in the present form ? OPD

Whether the plaintiff has no cause of action to file the present suit ? OPD

Whether the plaintiff has no locus standi to file the present suit ? OPD

Whether the plaintiff is estopped by his own act and conduct from filing the present suit ? OPD

Whether Civil Court has got no jurisdiction to try the present suit ? OPD

Whether the suit of the plaintiff is false and frivolous and so the same is liable to be dismissed with special costs ? OPD

Relief.

The parties led oral as well as documentary evidence in support of their case and finally the suit of the plaintiff was decreed by the trial Court.

The defendants filed the first appeal before the Court of District Judge, Sirsa, who dismissed the appeal for the reasons given in para Nos. 8 to 17 of the impugned judgment dated 13.5.1999, which are reproduced as under :

"8. On careful consideration of the rival submissions, I am of the view that the jurisdiction of the Civil Court is not barred by the provisions of Industrial Disputes Act as the plaintiff was an employee of the Haryana Roadways under the control of State of Haryana. In Sukhi Ram''s case (supra) it has been held that the Civil Court has the jurisdiction to entertain a suit by a workman in connection with an industrial dispute arising out of the right or liability under the general or common law if no steps had been earlier taken by him to resort to the remedy under the Industrial Disputes Act. The facts of Sukhi Ram''s case are similar to the instant case. Sukhi Ram was also working as Bus Conductor with the Haryana Roadways and proceedings were initiated against him for having misappropriated the bus fare collected by him which culminated in dismissal of his services and after having discussed in detail the provisions of Industrial Disputes Act, it was held by Full Bench of our own High Court that Civil Court had the jurisdiction to entertain the suit by a workman if no steps had been taken by him to resort to the remedy under the Act ibid. In Raj Singh''s case (supra) also the plaintiff was a Conductor with the Pepsu Road Transport Corporation and the Hon''ble High Court had held that the action of dismissal of an employee of the statutory body is of civil nature which could be tried and disposed of by the Civil Court u/s 9 of the Code of Code of Civil Procedure. In this view of the matter, the argument raised by learned Government Pleader is without any substance.

On merits, the learned Government Pleader argued that a regular inquiry was held against the plaintiff/respondent wherein full opportunity of hearing was afforded to him. He contended that mere non-examination of some witnesses does not have any effect of vitiating the impugned order. He further argued that the respondent has failed to prove that any prejudice was caused to him on account of alleged failure of the defendants to produce certain witnesses and the trial Court was not justified in passing a decree in his favour.

On the other hand, learned Counsel for the appellant argued that it was a case of no evidence against the plaintiff-respondent as the statements of the passengers from whom the plaintiff had allegedly charged the fare, but had not issued tickets, were not recorded during the course of enquiry nor any of them was produced in the Court. He further argued that a perusal of the impugned order clearly shows that previous service record of the plaintiff and various acts of commission and omission were considered by the punishing authority before passing the order dated 25.8.1994, which clearly pointed out the biased attitude of the punishing authority. He contended that the evidence before the Enquiry Officer consisted of the statement of the Inspector alone, which can at best be termed as hearsay evidence. In support, the learned Counsel placed reliance on the decision of Full Bench of our own High Court, reported as AIR 1976 P H 381, State of Haryana and Ors. v. Ram Chander. Learned Counsel also referred to 1995(3) S C T 463, State of Punjab and Anr. v. Mander Singh; 1996(4) S L J 2848, Pepsu Road Transport Commission, Patlala v. Gurdev Singh; 1996(1) RSJ 187", Kuldip Singh v. Pepsu Road Transport Corporation,. Patiala and Anr.; 1993(3) RSJ 431, Binny Ltd. Vs. Their Workmen, , Binny Ltd. v. Their Workmen and Anr.

The learned Counsel for the plaintiff-respondent further argued that even the enquiry report has not been proved. The Enquiry Officer was not produced which deprived the plaintiff-respondent opportunity of cross-examining him. He argued that the person who produced the enquiry file had no personal knowledge about the file or the documents contained therein. He, thus, contended that the defendants have withheld the best evidence and for that adverse inference be drawn against them. In support, the learned Counsel referred to AIR (sic) SC 1413 Gopal Krishnaji Ketkar v. Moltamed Haji Latif and Ors. and 1993(4) SCT 633 (P&H) : 1993(4) RSJ 346, The Director, State Transport Punjab, Chandigarh and Anr. v. Gurbachan Singh and Anr.

The learned Counsel for the respondent then contended that the order of the appellate Authority dated 28th June, 1995 also does not stand the judicial scrutiny as the grounds of appeal raised by the appellant have not been discussed. The Appellate Authority did not even given personal hearing to the appellant. In support, the learned Counsel referred to the decision of Hon''ble Supreme Court reported as 1986(2) SCR 608, Ram Chander v. Union of India wherein the Hon''ble Supreme Court has held that the Appellate Authority must not only give a hearing to the Government servant concerned but also pass a reasoned order dealing with the contentions raised by him in the appeal. He also referred to 1996(3) SCT 14, Ram Phal v. Govt. of Haryana and 1996(1) SCT 709 (P&H) : 1996(1) RSJ 515, Ex-Head Constable Paramjit Singh v. State of Punjab.

On careful consideration of the rival submissions and the case law cited, I do not find any ground to interfere with the impugned judgment and decree passed by the learned trial Judge. In the present case, the charge against the plaintiff-respondent is that he did not issue tickets to the various passengers travelling in the bus from Sirsa to Amritsar via Bathinda though he charged fare (total Rs. 200/-) from them and thereby defrauded the transport Department to that extent. Since the entire case was based on non-issuance of the tickets to the passengers, the testimony of those passengers was the material evidence. However, admittedly, these passengers were not produced either before the Enquiry Officer or before the trial Court. Hon''ble Full Bench of our own High Court in the State of Haryana and Ors. v. Ram Chander (supra) has considered the matter with similar set of facts and circumstances and observed as under :-

"Where a bus is checked and it is found that tickets have not 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 on guilt arrived at by him would not be passed on pure hear-say. It would be based (1) the evidence of the checker that he found passengers travelling without tickets; and (2) the statements made by the passengers to the checkers at the time of checking. The second item of evidence alone would be hearsay but it would be hearsay of high probative value because of the circumstance that statements were made in the presence of the conductor and on the spot. In such a case, it cannot be said that the Enquiry Officer''s findings are based on pure hearsay or hearsay (of) unreliable nature."

Even in the instant case, admittedly, statements of the passengers were not recorded by the checking staff in the presence of the Conductor. The Enquiry Officer would have been justified in acting upon the evidence of the checkers if they had recorded the statements of the passengers. From whom the plaintiff had allegedly charged the fare but had not issued tickets, even though the passengers themselves were not examined by the (sic). However, in the present case a finding of guilt has been arrived at by the Enquiry Officer purely on the basis of hearsay evidence of the checker (Inspector) alone.

Moreover, a perusal of the dismissal order of termination order) Ex.P-3 and the Appellate Order Ex.P-5 show that these were passed as a result of cumulative effect of the charge alleged against the plaintiff as well as the last lapses for which no opportunity to submit his explanation was given to the plaintiff-respondent. Hon''ble Supreme Court in Binny Ltd.''s case (supra) has held such an order to be bad where the past conduct of the delinquent was taken into consideration without affording him an opportunity to offer explanation and to rebut the same. In this view of the matter, I am of the considered opinion that the principle of natural justice stood violated in the case of the plaintiff-respondent.

Besides the above grounds, it is also evident that the enquiry report has not been proved in accordance with law and the defendants have withheld the best evidence available with them as the Enquiry Officer has not been produced. The enquiry report and other documents were produced on record by DW-1 Rajinder Singh Clerk, Haryana Roadways, Sirsa, who clearly stated that the enquiry was not conducted in his presence and he had no knowledge about the proceedings of the enquiry. In fact, the proceedings of the enquiry were also not placed on the record. Since the enquiry report has not been proved in accordance with law, it is admissible (inadmissible ?) in evidence.

It may be further added that even the Appellate Authority i.e. Transport Commissioner did not adhere to the principles of natural justice. Even at the appellate stage, the delinquent official should have been afforded a reasonable opportunity by giving him personal hearing. Moreover, a perusal of the Appellate Order Ex.P.5 shows that the Appellate Authority has not discussed all the grounds of appeal taken by the delinquent official. It is well settled and Hon''ble Supreme Court as far back as in 1985 in the case of Union of India v. Tulsi Ram Patel 1985(3) SCC 338 has held that Appellate Authority must not only give a hearing to the Government servant concerned, but also pass a reasoned order dealing with the contentions raised by him in the appeal. The Hon''ble Supreme Court in Ram Chander''s case (supra) observed that reasoned decisions by the Tribunal and Appellate Authority will promote public confidence in the administrative process. It was also held that an objective consideration is possible only if the delinquent servant is heard and given a chance to satisfy the authority regarding the final orders that may be passed on his appeal and that consideration of fair play and justice also require that a personal hearing should be given.

Still not satisfied with the judgments and decrees of the Courts below the present appeal has been filed by the State of Haryana.

I have heard Shri Vijay Dahiya, learned AAG, Haryana, appearing on behalf of the State of Haryana and Shri Rajesh Punj, learned Counsel appearing on behalf of the respondent and with their assistance have gone through the records of the case.

The learned Counsel for the appellant has relied upon 1976(2) S L R 690, a judgment of the Full bench of this Court, titled State of Haryana v. Ram Chander and submitted that in the departmental inquiry there is no bar against the reception of hearsay evidence by the domestic Tribunal and if the Inquiry Officer has acted upon the evidence of the checkers against the conductor in whose presence the passengers had made a statement on the spot, in such a situation, the passengers need not be examined in the departmental inquiry. In the present case the Checkers have been examined who deposed that plaintiff did not issue the tickets to the passengers and has caused a loss of Rs. 200/- to the State exchequer and, therefore, even on the weak evidence of the checkers, if a finding has been given by the Inquiry Officer against the plaintiff, that can be acted upon for the purpose of terminating the services of the plaintiff and the Civil Court has no jurisdiction to interfere with the findings of the domestic Tribunal, which have been affirmed up to the Appellate Authority.

On the contrary, learned Counsel appearing on behalf of the respondent submitted that the finding of the Inquiry Officer was purely based on hearsay evidence. It was a case of "no evidence". In these circumstances, both the Courts have rightly set aside the order of termination passed against the plaintiff.

I have considered the rival contentions of the parties and am of the opinion that this appeal is totally devoid of any merit. However, the plaintiff is not entitled to full back wages as he had not served the department. He would only be entitled to future wages on his joining the duties.

In my opinion, the impugned order of termination, cannot be sustained for the various reasons. First of all, I would like to deal with the solitary argument which was raised by the learned Counsel for the appellant as to whether it was a case of some evidence or of no evidence. There is no quarrel with the preposition of taw about the ratio of the Full Bench judgment that in the domestic inquiries the charge against the delinquent officials is not supposed to be proved like a criminal charge nor preponderance of evidence is required while deciding a issue in a Civil Court. Even on some evidence, the Inquiry Officer can give a finding against the delinquent official but in this very judgment the Hon''ble Full Bench was also pleased to hold that if the findings are based on purely hearsay evidence or such type of hearsay evidence which is totally unreasonable, then the Civil Court can certainly interfere in the order of punishment.

Whether it is a case of some evidence or of no evidence is a question of fact and both the Courts after the appraisal of the evidence led by the Department have come to the conclusion that it was a case of no evidence.

Now let us see what was the charge against the plaintiff. The charge was that plaintiff was a Conductor on a bus belonging to Haryana Roadways, Sirsa Depot and on the relevant day he did not issue the tickets to the various passengers who were travelling from Sirsa to Amritsar via Bhatinda though he charged Rs. 200/- from those passengers and thus allegedly caused the loss to the State exchequer.

In these circumstances, the best evidence which can prove the charge against the plaintiff was the statements of the passengers who according to the case of the department, actually paid the fare to the plaintiff. Even if the passengers have not been produced in the departmental inquiry, still some weightage could be given to the allegations of the prosecution/department, if the checking staff had recorded the statements of the passengers in the presence of the plaintiff In the absence of the statements of the passengers either before the domestic Tribunal or before the checking staff, the plaintiff cannot be held responsible for the alleged embezzlement. In the absence of statement of the passengers, the statement of the checking staff before the Inquiry Officer, will be in the air as they had no basis to say that passengers were not issued the tickets. Therefore, the distinction is very fine. If the department and its officials had been in possession of the statements of the passengers and those statements would have been tendered in the domestic inquiry, though the passengers were not examined, the Inquiry Officer could act upon such statements and documents and in such a situation, it could not be said that the findings were based on ''no evidence'' but the statements of the passengers have not been produced before the Inquiry Officer nor those have been recorded by the checking staff, still the checking staff has the audacity to say that they were orally informed by the passengers that they were not issued the tickets by the Conductor. In such a situation, it will be a case of ''no evidence'' before the domestic Tribunal and to rely upon the bald statement of the checkers, who had no basis to depose, will be a bad exercise. In the present case, admittedly, the statement of the passengers were not recorded by the checking staff in the presence of the Conductor, in such a situation, the order of termination passed by the General Manager and confirmed by the Appellate Authority cannot be sustained.

There is one more reason for affirming the judgment and decree of the trial Court. The termination order Ex.P.3 and the appellate order Ex.P.5 have been passed by the authorities who had taken into consideration the past record of the plaintiff for which he was not issued a charge-sheet. In such a situation, it has been rightly observed by the first appellate Court, that the principles of natural justice have been violated. I do not subscribe to the conclusion of the first appellate Court that since the Inquiry Officer has not appeared in the witness box, therefore, the inquiry report cannot be acted upon or looked into. The onus is for the plaintiff if he was not satisfied with the report of the Inquiry Officer. It was always within his domain to summon the Inquiry Officer in the witness box and to cross-examine him.

The record of the trial Court in this case was also summoned. The order of the Appellate Authority is Ex.P.5 on the record. This order is a cryptic one clearly indicating that the Appellate Authority did not apply its mind before affirming the finding of the punishing authority. Rather it shows that the Appellate Authority had taken into consideration the past conduct the plaintiff when it has been stated in the order that in the past also the plaintiff had been committing serious embezzlement and that he was warned to be careful on nine occasions. So much so on six occasions he was placed under suspension and further on several occasions his annual increments were stopped. The Appellate Authority also has further stated in the order that the plaintiff has not improved his conduct. Finally it was averred in the order that this punishment is being affirmed keeping in view the past record of the plaintiff also. In such a situation, when the past record of the plaintiff has been taken into consideration, which was not the subject-matter of the charge Ex.P.1, the findings cannot be affirmed as those are violative of the principles of natural justice and against the recognised statutory procedure, giving jurisdiction to the Civil Court to interfere in such orders.

It is an admitted case of the plaintiff that after passing the order of termination he did not work in the department. Therefore, he is not entitled to back wages. Thus, the impugned judgments and decrees are hereby modified to a limited extent. The suit of the plaintiff is hereby decreed and a declaration is granted in his favour that the orders dated 25.8.1994 and 28.6.1995 are illegal, null and void and against the service rules and Article 311 of the Constitution of India and that they are against the principles of natural justice. Further declaration is granted that plaintiff is entitled to retain his last service in Haryana Roadways, Sirsa Depot. He shall get the benefit of his seniority but he would not be entitled to any back wages. The absence period of the plaintiff shall be considered without pay and it will be regularised for the purpose of completion of the service book only but with no emoluments/subsistence allowance for the period starting from 25.8.1994 onwards and till he resumes the duty in pursuance of this judgment. Directions are given to the State of Haryana, Transport Department, General Manager, Haryana Roadways Sirsa Depot, the Transport Commissioner, Haryana, and Additional Transport Commissioner, Haryana to allow the plaintiff to join the duty immediately on receipt of the copy of this order. There shall be no order as to costs.

Appeal dismissed