Pooran Singh Rahi v. State of U. P — 1988 DIGILAW 633 (ALL)

JUDGMENT B.N. Misra, J. - Challenge in this writ petition is to the order dated 6.3.1986 (Annexure - 7) removing the petitioner from service. His case is stated hereunder. 2. He was appointed as a Conductor under the U.P. State Road Transport Corporation by the Assistant Regional Manager, U.P.State Road Transport Corporation, Dehradun on 24.11.1978 and was posted at the rural depot under the administrative control and jurisdiction of Dehradun region. In March 1983 he was transferred and posted at the hill depot, Dehradun. In June 1984 respondent No. 5 was working as the Assistant Regional Manager Incharge of the hill depot and the petitioner was serving under him. On 7.6.1984 the petitioner was detailed for duty on Dehradun - Rishikesh - Narendra Nagar route in the bus bearing registration No. UTL 3394. After the scheduled halt at Rishikesh around 8 p.m. the bus left for Narendra Nagar and several passengers boarded the bus. According to the petitioner most of the passengers having boarded the bus at the crowed market place where the bus could not be kept stationary and as he did not have sufficient coins to facilitate quick transaction and also as the lighting inside the bus was defective, he had handed over tickets to 22 passengers who had boarded the bus at Rishikesh on promise that those passengers would themselves collectively pay him the total fare 3.35 per passenger. However, before he could collect the fare from the passengers, respondent No. 5 and Traffic Inspector Varma, stopped and checked the bus. He handed over way - bill No. 254038 and the tickets for the purpose of checking. It is alleged that as the checking officials falsely accused the petitioner for having taken passengers without tickets with a motive for personal gain, the passengers resented and supported the petitioner. At that lime the local Sub - Divisional Magistrate arrived at the spot and the petitioner was forced by the Sub Divisional Magistrate, respondent No. 5 and the Traffic Inspector to go the Narendra Nagar Police Station along with them. The petitioner was further forced under threat and duress to make a confessional statement to the effect that he was carrying 34 passengers in the bus without tickets though he had collected the fares from them and that he was ready to deposit ten times the total amount for fare as penalty in addition to the actual fare. The petitioner was further forced under threat and duress to make a confessional statement to the effect that he was carrying 34 passengers in the bus without tickets though he had collected the fares from them and that he was ready to deposit ten times the total amount for fare as penalty in addition to the actual fare. Thereafter respondent No. 5 and Traffic Inspector Varma, fraudulently lodged F.I.R. at Narendra Nagar Police Station against the petitioner. A sum of Rs. 229.60 was recovered and seized from him at the police station. He offered a bearer cheque procured by him from one of his local acquaintances and promised to pay the total amount in cash by 9 a.m. the next day. Early in the morning on 8.6.1984 he collected Rs. 1252.90 (Rs. 1139.00) from his relatives and deposited the amount. It is also alleged that the concerned way - bill was lorn by respondent No. 5 and Traffic Inspector Varma. Thereafter, proceedings were drawn up against the petitioner by respondent No. 5, who also placed him under suspension vide order dated 8.6.1984 (Annexure - 1). The charge - sheet dated 25.6.1984 was served on the petitioner and he was also given photo - state copies of the connected documents. He submitted a written statement on 19.8.1984 (Annexure - 3). The respondent No. 5 then appointed the Assistant Regional Manager, U.P., State Road Transport Corporation, Saharanpur as the enquiry officer. The enquiry report was duly submitted to respondent No. 5 as per intimation conveyed to him on 19.4.1985. In the meanwhile the petitioner was transferred and posted at the rural depot undgrjhe administrative control and jurisdiction of respondent No. 5 under orders of the Regional Manager, Dehradun region, respondent No. 3. By notice dated 31.8.1985, respondent No. 4 required the petitioner to show cause as to why he should not be dismissed from service and along with the notice, two enquiry reports, one by the Assistant Regional Manager, Saharanpur and the other by respondent No. 4 himself, were supplied to the petitioner. The petitioner filed objections against the reports. The objections were rejected by respondent No. 4, vide Annexure 5. It is alleged that copies of the evidence of witnesses adduced in the enquiry were not given to the petitioner and that he was not allowed to inspect the records also. The petitioner made representations to the higher authorities. The petitioner filed objections against the reports. The objections were rejected by respondent No. 4, vide Annexure 5. It is alleged that copies of the evidence of witnesses adduced in the enquiry were not given to the petitioner and that he was not allowed to inspect the records also. The petitioner made representations to the higher authorities. However, by order dated 6.3.1986 passed by respondent No. 5, the petitioner was removed from service. It is alleged that the enquiry against the petitioner suffered from procedural irregularities and that the respondents were prejudiced and biased against the petitioner. The petitioner has accordingly prayed that the order dated 6.3.1986 passed against him should be quashed. 3. In the counter filed by respondents Nos. 2, 3 and 4 it is stated that at the time when the bus was checked by respondent No. 5 and Traffic Inspector Varma, the petitioner misbehaved with the checking staff and tore off the concerned way - bill from the hands of the Traffic Inspector and at that time the Sub - Divisional Magistrate arrived at the spot and the petitioner was taken to the Police Station. The allegations of threat, duress, etc. are denied. At the Police Station the Traffic Inspector lodged the FIR and the petitioner himself admitted having carried 34 passengers in the bus without tickets. He deposited the fare collected by him along with the compounding fee. The presence of the Sub - Divisional Magistrate at the spot is sought to he justified on the ground that the petitioner had obstructed the checking officers and had created disturbance at the spot where the bus was being checked and as such the Sub - Divisional Magistrate took the petitioner and the Traffic Inspector to the Police Station. It is again denied that the statement of the petitioner was taken under threat or duress. A sum of Rs. 229/ - was recovered from the bag of the petitioner which he had deposited. It is stated that under notification dated 28.12.1963, the officials of the U.P. State Road Transport Corporation have been empowered to check their own buses and take action under Section 112 - A of the Motor Vehicles Act, vide Annexure B1. It is also stated that as respondent No. 5 was the appointing authorities of the petitioner, he was competent to issue the charge - sheet. It is also stated that as respondent No. 5 was the appointing authorities of the petitioner, he was competent to issue the charge - sheet. The allegations of procedural irregularities, bias and prejudice are denied. It is pointed out that the Regional Manager, U.P. State Road Transport Corporation Dehradun, had issued general instruction to all the officers of Dehradun region to conduct enquiries. There necessary and the Assistant Regional Manager, Saharanpur, had been appointed as the enquiry officer to conduct enquires in respect of disciplinary cases pertaining to hill depots under the administrative jurisdiction of the Assistant Regional Manager, Hill, Dehradun. It is explained that in the light of the aforesaid general instructions the petitioner's case was sent to the Assistant Regional Manager, Saharanpur for enquiry. According to the respondents, the petitioner was given full opportunity to defend himself and opportunity was also given to him to cross - examine respondent No. 5 and Traffic Inspector Varma. The Assistant Regional Manager, Saharanpur, who had held the enquiry was of the view that though the petitioner was guilty of carrying 34 passengers without tickets for personal gain, as the case had been compounded, he was not liable to be further punished in the departmental proceedings. However, respondent No. 4 who had to take the final decision in the matter did not agree with the aforesaid view of the enquiry officer and his reasons for disagreement had been duly communicated to the petitioner. It is asserted that the order removing the petitioner from service was passed by respondent No. 4 on due consideration of the facts and circumstances of the case and as such no interference is called for. 4. Learned counsel for the petitioner urged the following three points on behalf of the petitioner: (i) that the proceeding held against the petitioner was vitiated on account of procedural irregularities; (ii) that the order of removal passed by respondent No. 4 cannot be sustained on account of bias and prejudice; and (iii) that the punishment of removal from service is wholly unwarranted in the facts and circumstances of this case. The grievance as to procedural irregularity is that copies of some documents had not been supplied to the petitioner during the enquiry, that witnesses other than respondent No. 5 and Traffic Inspector Varma had not been summoned and that he had not been allowed to inspect the files. The grievance as to procedural irregularity is that copies of some documents had not been supplied to the petitioner during the enquiry, that witnesses other than respondent No. 5 and Traffic Inspector Varma had not been summoned and that he had not been allowed to inspect the files. It is seen that along with the charge - sheet dated 25.6.1984 copies of the report of Traffic Inspect Varma, petitioner's own statement dated 7.6.1984, report lodged at the Narendra Nagar Police Station and report of Station House Officer Police Station Narendra Nagar when supplied to the petitioner and he was also informed that Way - Bill No. 254038 and ticket No. 783176 could be inspected by him in the office. The aforesaid grievances of the petitioner were looked into the rejected by respondent No. 4 vide letter dated 16.10.1985 from respondent No. 4 to the petitioner, Annexure - 5. In this letter respondent No. 4 pointed out the petitioner that in his show cause dated 19.8.1984 the petitioner had not asked for examination of any witnesses or inspection of any record, but had pleaded, that as the criminal offence against the petitioner had been compounded, there was no question of starting departmental proceeding against him. It was also noted in Annexure - 5 that the petitioner was given a personal hearing by the enquiry officer and at that time also the petitioner had neither asked for examination of any witness nor record, that in his oral statement before the enquiry officer on 29.1.1985 the petitioner had clearly stated that he had nothing more to add to his show cause dated 19.8.1984 add that he had been given full and adequate opportunity to cross - examine respondent No. 5 and Traffic Inspector Varma who had deposed against him during the enquiry. As stated in Annexure - 5 when during the enquiry the petitioner did not himself avail of the opportunity to adduce evidence or inspect records, he could not raise any grievance on that score after the enquiry was over. He had given his explanation to the charge - sheet, fully participated in the enquiry and had not availed of the opportunity to call for any evidence in support of his case. In these circumstances it cannot be said that the enquiry held against him suffers from any procedural irregularity. He had given his explanation to the charge - sheet, fully participated in the enquiry and had not availed of the opportunity to call for any evidence in support of his case. In these circumstances it cannot be said that the enquiry held against him suffers from any procedural irregularity. The enquiry was held by the Assistant Regional Manager, Saharanpur and on the basis of his enquiry he found that the charges against the petitioner had been established, but he recommended that no further action,should be taken against the petitioner as the offence under Section 112 - A of the Motor Vehicles Act, 1939 had been compounded under sub - section (3) of the said section. The enquiry report was placed before respondent No. 4 under them the petitioner had been posted with effect from 28.5.1985 and he agreed with the finding that the petitioner was guilty of carrying 34 passengers without, tickets, but be did not accept the recommendation of the Assistant Regional Manager, Saharanpur that no further departmental action should be taken against the petitioner as the offence against him had been compounded under the Motor Vehicles Act. There is nothing wrong with this decision of respondent No. 4. Thereafter, notice was issued to the petitioner on 31.8.1985 to show cause why he should not be dismissed from service (Annexure - 4). The petitioner submitted his show - cause, vide Annexure - 6. Finally after considering the whole matter respondent No. 4 removed the petitioner from service vide his order dated 6.3.1986 (Annexure - 7). On examination of the materials on record we do not find any procedural irregularity in the departmental enquiry held against the petitioner. 5. The petitioners allegations of bias and prejudice are directed mainly against respondent No. 5. It has been pointed out that respondent No. 5 had checked the bus on 7.6. 84, suspended the petitioner on 8.6.84, issued charge - sheet on 25.6.1984, appointed the Assistant Regional Manager, Saharanpur as the enquiry officer and had deposed at the enquiry against the petitioner and, as such, the entire proceeding has been vitiated on account of the bias and prejudice of respondent No. 5. In support of this stand of the petitioner learned counsel appearing for him cited the case of A.K. Kraipak and others v. Union of India and others, reported in AIR 1970 SC 150 . In support of this stand of the petitioner learned counsel appearing for him cited the case of A.K. Kraipak and others v. Union of India and others, reported in AIR 1970 SC 150 . On the question of bias the Supreme Court observed : "It is unfortunate that Naqishbund was appointed as one of the members of the selection board. It is true that ordinarily the Chief Conservator of Forests in a State should be considered as the most appropriate person to be in the selection board. He must be expected to know his officers thoroughly, their weaknesses as well as their strength. His opinion as regards their suitability for selection to the All India Service is entitled to great weight. But then under the circumstances it was improper to have included Naqishbund as a member of the selection board. He was one of the persons to be considered for selection. It is against all canons of justice to make a man judge in his own cause. It is true that he did not participate in the deliberations of the Committee when his name was considered. But then the very fact that he was a member of the selection board must have had its own impact on the decision of the selection board. Further admittedly he participated in the deliberations of the selection board when the claims of his rivals particularly that of Basu was considered, he was also party to the preparation of the list of selected candidates in order of preference. At every stage of his participation in the deliberations of the selection board there was a conflict between his interest and duty. Under those circumstances it is difficult to believe that he could have been impartial. The real question is not whether he was biased. It is difficult to prove the state of mind of a person. Therefore what we have to see is whether there is reasonable ground for believing that he was likely to have been biased. He agree with the learned Attorney General that a mere suspicion of bias is not sufficient. There must be a reasonable likelihood of bias. In deciding the question of bias we have to take into consideration human probabilities and ordinary course of human conduct. It was in the interest of Naqishbund to keep out his rivals in order to secure his position from further challenge. There must be a reasonable likelihood of bias. In deciding the question of bias we have to take into consideration human probabilities and ordinary course of human conduct. It was in the interest of Naqishbund to keep out his rivals in order to secure his position from further challenge. Naturally he was also interested in safeguarding his position while preparing the list of selected candidates." The next decision of the Supreme Court cited on behalf of the petitioner is S. Parthasarathi v. State of Andhra Pradesh, (1974) 3 Supreme Court Cases 459, wherein it was held: "The tests of "real likelihood" and "reasonable suspicion" are really inconsistent with each other. We think that the reviewing authority must make a determination on the basis of the whole evidence before it, whether a reasonable man would in the circumstances infer that there is real likelihood of bias. The. Court must look at the impression which other people have. This follows from the principle that justice must not only be done but seen to be done. If right minded persons would think that there is real likelihood of bias on the part of an inquiring officer, he must not conduct the enquiry nevertheless, there must be a real likelihood of bias. Surmise and conjecture would not be enough. There must exist circumstances from which reasonable men would think it probable or likely that the inquiring officer will be prejudiced against the delinquent. The Court will not inquire whether he was really prejudiced. If a reasonable man would think on the basis of the existing circumstances that he is likely to be prejudiced, that is sufficient to quash the decision (See per Lord Denning, H.R. in Metropolitan Properties Co. (FGC) Ltd. v. Lanon and others, etc) We should not, however, be understood to deny that the Court might with greater propriety apply the reasonable suspicion" test in criminal or in proceedings analogous to criminal proceedings." While considering the allegation of bias, it has to be kept in view that on '.6.1984 when the bus in which the petitioner was the Conductor was checked by respondent No. 5 and Traffic Inspector Varma. The petitioner was working under respondent No. 5 who was the appointing authority in respect of the post held by the petitioner. Therefore, respondent No. 5 was competent to initiate departmental proceedings against the petitioner. The petitioner was working under respondent No. 5 who was the appointing authority in respect of the post held by the petitioner. Therefore, respondent No. 5 was competent to initiate departmental proceedings against the petitioner. It was necessary for him to act and he acted. Suspending the petitioner and issuing charge - sheet to him were part of his duties which he performed. The fact that he was present while the bus was checked on 7.6.84 did not render him incompetent to perform his duties. It has been explained by the respondents that the enquiry against the petitioner was held by the Assistant Regional Manager, Saharanpur as per the general instructions issued by the Regional Manager, U.P. State Road Transport, Corporation, Dehradun and the case was merely sent by respondent No. 5 to the Assistant Regional Manager, Saharanpur for enquiry. Further, there was nothing wrong in respondent No. 5 and Traffic Inspector Varma being examined as witnesses at the enquiry as they had checked the bus in which the petitioner was the Conductor. Is is worthy of note that vide order dated 28.5.1985 the petitioner was transferred and posted under respondent No. 4 at the Rural depot, Dehradun and since that date the proceeding was dealt with by respondent no. 4 and respondent No. 5 had nothing to do with the final order which was passed by respondent No. 4. Therefore, Kraipak's case (supra) can have no application to the facts of this case. In that case Naqishbund was himself a candidate for selection and at the same time a member of the selection board. Facts of the present case are entirely different and they do not lead to the conclusion of a reasonable likelihood of bias. The ratio of S. Parthasarthi's case (supra) is also not applicable to this case as the facts do not disclose a real likelihood of bias. As already noted the final decision in the proceeding against the petitioner was taken by respondent No. 4 and not respondent No. 5, though the latter had initiated the proceeding against the petitioner which indeed he was required to do as the appointing authority. 6. Learned counsel for the petitioner has also urged that as respondent No. 5 has not filed any affidavit denying the allegations of bias and prejudice made against him by the petitioner, the Court should accept die petitioner's version as to bias and prejudice. 6. Learned counsel for the petitioner has also urged that as respondent No. 5 has not filed any affidavit denying the allegations of bias and prejudice made against him by the petitioner, the Court should accept die petitioner's version as to bias and prejudice. In support of this contention reliance is placed on a case report in Juggi Lal Kamla Pat v. Ram Janki Gupta and another, AIR 1962 All 407 , where in it was held: "The learned counsel for the defendants sought to argue that it was no necessary to file any counter - affidavit as the allegations of the plaintiff were on the fact of it absurd and self - contradictory. We do not think it is open to a party to brush aside the averments of his opponent by merely stating that the allegations were untrue. A Statement on oath whether true or false, has to be met by a counter - affidavit in reply, or be challenging the statement by cross - examining the deponent. If that is not done it would be presumed that the allegations, if untrue, would have been rebutted by the other side." 7. However, in the instant case the petitioner has miserably failed to show that there was any reasonable or real likelihood of bias of respondent No. 5 against him and the facts of the case as discussed above do not raise any presumption in favour of the petitioner. The petitioner has also failed to establish that either the Assistant Regional Manager, Saharanpur who held the enquiry against him or respondent No. 4 who passed the final order in the proceeding has any basis against him. Therefore, the allegations of bias and prejudice alleged by the petitioner must be rejected. 8. Learned counsel for the petitioner lastly submitted that punishment of removal from service passed against the petitioner is wholly unwarranted in the facts and circumstances of this case. In support of this contention reliance is placed on a decision of the Supreme Court reported in, Rama Kant Misra v. State of U.P. and others, AIR 1982 SC 1552 wherein an order of dismissal on the ground of misconduct consisting of indiscreet and improper language and disclosing threatening posture, was converted to the punishment of withholding of two increments with future effect. On behalf of the petitioner reliance is also placed on another decision of the Supreme Court reported in Hussaini v. The Hon the Chief Justice of High Court of Judicature at Allahabad and others., AIR 1985, SC 75, wherein dismissal of an employee who had rendered service for over twenty years was converted to compulsory retirement from service. As is apparent the aforesaid two cases were decided by the Supreme Court in the facts and circumstances peculiar to the said cases. No universal rule has been laid down. In the present case the punishment imposed is that or removal iron service and this punishment shall not be a disqualification for future appointment. Keeping in view the facts and circumstances of the present case we do not think that the punishment falls for interference by this Court. 9. For the reasons stated above, this writ petition fails and is dismissed. Parties are left to bear their own costs.