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Himachal Pradesh High Court · body

2009 DIGILAW 487 (HP)

HEM RAJ v. H. R. T. C.

2009-05-21

KULDIP SINGH

body2009
JUDGMENT Kuldip Singh, Judge-The petitioner had filed O.A. No.1852/95 in the erstwhile Tribunal. The Original Application was transferred to this Court in view of Himachal Pradesh Administrative Tribunal (Transfer of decided and pending cases and applications) Act, 2008. Thereafter, it was registered as CWP(T) No.2166 of 2008 in this Court. In the petition, the petitioner has prayed the following reliefs:- (i) That impugned annexures:A-3 & A-4, dated 14.7.92 & 27.5.95 respectively may be quashed and set aside; (ii) That the respondents may be directed to re-engage the applicant as conductor forthwith; (iii) That the respondents may be directed to produce the entire record pertaining to the case for the perusal of this Hon’ble Tribunal; (iv) Anyother relief deemed just and proper in the facts and circumstances of the case may also be granted. 2. The grievance of the petitioner is that he was engaged as a conductor on 27.6.1989 on daily wages by respondent No.1- Himachal Road Transport Corporation ( for short Corporation), his services were regularized on 1.9.1989 and he was put on probation for a period of two years, which was extended by one year. 3. The petitioner was suspended on 14.1.1992 and a charge sheet was served on petitioner on the ground that while on duty as conductor in Bus No.HIM-3079 plying between Pathankot-Gagal on 11.11.1991, it was found that 21 passengers were travelling in that bus without tickets. The petitioner thus caused loss of revenue to the Corporation to the tune of Rs.35.00. The charge sheet and suspension order were withdrawn on 21.5.1992. 4. The petitioner was served a show cause notice on 1.6.1992, alleging therein that the petitioner had allowed travelling of passengers without tickets. The petitioner submitted reply to the charge sheet on 18.6.1992. The petitioner was removed from service on 14.7.1992. He preferred an appeal on 30.7.1992 against the order of removal from service dated 14.7.1992 but that was not decided. The petitioner had filed CWP No.823 of 1993 in this Court which was held not maintainable. Thereafter petitioner filed OA No.235/95 before the erstwhile Tribunal. On 8.3.1995, the Tribunal ordered the Corporation to treat the OA No.235/95 as representation and decide the same within a period of three months. 5. The Corporation had rejected the representation of the petitioner on 27.5.1995 without application of mind. Thereafter petitioner filed OA No.235/95 before the erstwhile Tribunal. On 8.3.1995, the Tribunal ordered the Corporation to treat the OA No.235/95 as representation and decide the same within a period of three months. 5. The Corporation had rejected the representation of the petitioner on 27.5.1995 without application of mind. It was alleged that order dated 14.7.1992 removal from service and communication of order dated 27.5.1995 of rejection of representation are wrong, illegal and in violation of Articles 14,21 of the Constitution of India. It was pleaded that orders dated 14.7.1992 and 27.5.1995 are apparently based on show cause notice dated 1.6.1992, if the veil is pierced, it becomes clear that show cause notice dated 1.6.1992 is the foundation for passing order dated 14.7.1992 and order dated 27.5.1995. The order dated 14.7.1992 and order dated 27.5.1995 are penal in nature and cast stigma and the same could not be passed without complying with the principles of natural justice and holding an inquiry. The petitioner was removed from service without considering his reply dated 18.6.1992, annexure A-2. The penalty is excessive and disproportionate to the alleged misconduct. 6. The respondents contested the petition and have submitted that order dated 14.7.1992 and order dated 27.5.1995 were passed in accordance with the appointment letter of the petitioner. It was contended that during the probation period of the petitioner he was found guilty various times for his acts of misconduct and dishonesty. The history sheet of the petitioner speaks about the omissions and commissions of petitioner. The order dated 14.7.1992 for removal from service was passed after considering the reply of the petitioner to the show cause notice which was issued to him. It was contended that order dated 14.7.1992 and order dated 27.5.1995 are legal. 7. The petitioner in para 6(8) of the petition has pleaded that the Tribunal on 8.3.1995 had ordered that OA No.235/95 be treated as representation to the Corporation, who was directed to consider the case of the petitioner on merits in accordance with law and decide the same within a period of three months. The respondents have not denied this contention of the petitioner in the reply. 8. The respondents have not denied this contention of the petitioner in the reply. 8. The word ‘consider’ in Rule 27(2) of the Central Civil Services ( Classification, Control and Appeal ) Rules, 1965 has been interpreted by the Hon’ble Supreme Court in R.P. Bhatt vs. Union of India and others (1986) 2 SCC 651 as follows:- “The word ‘consider’ in Rule 27(2) implies ‘due application of mind’. It is clear upon the terms of Rule 27(2) that the appellate authority is required to consider (1) whether the procedure laid down in the rules has been complied with; and if not, whether such noncompliance has resulted in violation of any provisions of the Constitution or in failure of justice; (2) whether the findings of the disciplinary authority are warranted by the evidence on record; and (3) whether the penalty imposed is adequate, and thereafter pass orders confirming, enhancing etc. the penalty, or may remit back the case to the authority which imposed the same. Rules 27(2) casts a duty on the appellate authority to consider the relevant factors set forth in clauses (a), (b) and (c) thereof. There is no indication in the impugned order that the Director General was satisfied as to whether the procedure laid down in the Rules had been complied with; and if not, whether such non-compliance had resulted in violation of any of the provisions of the Constitution or in failure of justice. We regret to find that the Director General has also not given any finding on the crucial question as to whether the findings of the disciplinary authority were warranted by the evidence on record. It seems that he only applied his mind to the requirement of clause ( c ) of Rule 27(2), viz. whether the penalty imposed was adequate or justified in the facts and circumstances of the present case. There being non-compliance with the requirements of Rule 27(2) of the rules, the impugned order passed by the Director General is liable to be set aside” 9. In the present case, the direction of the Tribunal was to consider the representation of the petitioner on merits in accordance with law, therefore, what was required from the Corporation or its Managing Director was to record a finding that the evidence on record justifies removal of petitioner from service. It was also to be seen whether penalty imposed was adequate. It was also to be seen whether penalty imposed was adequate. In the communication dated 27.5.1995 annexure A-4, there is no indication that representation of petitioner alongwith evidence was considered by the Managing Director or he considered the case of the petitioner on the penalty while rejecting the representation. 10. In the order dated 14.7.1992 annexure A-3 the Regional Manger has observed that after careful consideration of the service record of the petitioner i.e. work and conduct and in exercise of the powers under various Service Rules applicable in the Corporation the petitioner is removed from the services of the Corporation with immediate effect. In the order dated 14.7.1992 reference of ‘various’ Service Rules applicable in the Corporation have been given without indicating such Rules. 11. It has been contended on behalf of the petitioner that foundation for removal of the petitioner from the service is his alleged misconduct when he was on duty on route Pathankot-Gagal in Bus No.HIM-3079 on 11.11.1992 and it was allegedly found that 21 passengers were travelling in that bus without tickets . The petitioner had filed reply to the show cause notice. The respondent No.2 without application of mind mechanically passed the order dated 14.7.1992 annexure A-3 removing the petitioner from service. The Corporation has not placed on record the order of the Managing Director for rejecting the representation of the petitioner but has placed on record the communication dated 27.5.1995 addressed by Dy. General Manager (P & A) of the Corporation, informing the petitioner that his representation was rejected. 12. The Supreme Court in Radhey Shyam Gupta vs. U.P. State Agro Industries Corporation Ltd. and another (1999) 2 SCC 21 in para 34 has held as follows:- “But in cases where the termination is preceded by an enquiry and evidence is received and findings as to misconduct of a definitive nature are arrived at behind the back of the officer and where on the basis of such a report, the termination order is issued, such an order will be violative of the principles of natural justice inasmuch as the purpose of the enquiry is to find out the truth of the allegations with a view to punish him and not merely to gather evidence for a future regular departmental enquiry. In such cases, the termination is to be treated as based or founded upon misconduct and will be punitive. In such cases, the termination is to be treated as based or founded upon misconduct and will be punitive. These are obviously not cases where the employer feels that there is a mere cloud against the employee’s conduct but are cases where the employer has virtually accepted the definitive and clear findings of the enquiry officer, which are all arrived at behind the back of the employee even though such acceptance of findings is not recorded in the order of termination. That is why the misconduct is the foundation and not merely the motive in such cases” 13. In Dipti Prakash Banerjee vs. Satyendra Nath Bose National Centre for Basic Sciences , Calcutta and others (1999) 3 SCC 60, the following points formulated in paragraph 18 of the report came for consideration before Supreme Court:- (1) In what circumstances, the termination of a probationer’s service can be said to be founded on misconduct and in what circumstances could it be said that the allegations were only the motive? (2) When can an order of termination of a probationer be said to contain an express stigma? (3) Can the stigma be gathered by referring back to proceedings referred to in the order of termination? (4) To what relief? 14. In answer to point No.1 the Supreme Court followed the principle laid down in Radhey Shyam Gupta supra. The Supreme Court while deciding point No.2 has observed that it depends on the facts and circumstances of each case and the language or words employed in the order of termination of the probationer to judge whether the words employed amount to a stigma or not. The Supreme Court while deciding point No.3 has held that the words amounting to stigma need not be contained in the order of termination but may also be contained in an order or proceedings referred to in the order of termination or in an annexure thereto and would vitiate the order of termination. The termination order was quashed by the Supreme Court while considering point No.4. 15. The termination order was quashed by the Supreme Court while considering point No.4. 15. In Chandra Parkash Shahi vs. State of U.P. and others (2000) 5 SCC 152, the Supreme Court has held:- “The important principles which are deducible on the concept of “motive” and “foundation”, concerning a probationer, are that a probationer has no right to hold the post and his services can be terminated at any time during or at the end of the period of probation on account of general unsuitability for the post in question. If for the determination of suitability of the probationer for the post in question or for his further retention in service or for confirmation, an inquiry is held and it is on the basis of that inquiry that a decision is taken to terminate his service, the order will not be punitive in nature. But if there are allegations of misconduct and an inquiry is held to find out the truth of that misconduct and an order terminating the service is passed on the basis of that inquiry, the order would be punitive in nature as the inquiry was held not for assessing the general suitability of the employee for the post in question, but to find out the truth of allegations of misconduct against that employee. In this situation, the order would be founded on misconduct and it will not be a mere matter of “motive”. “Motive” is the moving power which impels action for a definite result, or to put it differently, “motive” is that which incites or stimulates a person to do an act. An order terminating the services of an employee is an act done by the employer. What is that factor which impelled the employer to take this action? If it was the factor of general unsuitability of the employee for the post held by him, the action would be upheld in law. If, however, there were allegations of serious misconduct against the employee and a preliminary inquiry is held behind his back to ascertain the truth of those allegations and a termination order is passed thereafter, the order, having regard to other circumstances, would be founded on the allegations of misconduct which were found to be true in the preliminary inquiry”. 16. If, however, there were allegations of serious misconduct against the employee and a preliminary inquiry is held behind his back to ascertain the truth of those allegations and a termination order is passed thereafter, the order, having regard to other circumstances, would be founded on the allegations of misconduct which were found to be true in the preliminary inquiry”. 16. In the present case foundation for removal of petitioner from service is his alleged misconduct indicated in show cause notice dated 1.6.1992 annexure A-1, therefore, removal of petitioner is penal and stigmatic. In absence of inquiry in accordance with rules such removal from service is not sustainable. This is in addition to the fact that there is nothing on record to show that representation of the petitioner was rejected by the Corporation or Managing Director after considering the service record of petitioner and relevant material. 17. The petitioner has made prayer for re-engagement as conductor after setting aside the annexure A-3 dated 14.7.1992 and annexure A-4 dated 27.5.1995. No other point was urged. 18. The result of the above discussion. The petition is allowed and annexure A-3 dated 14.7.1992 and annexure A-4 dated 27.5.1995 are quashed and set aside. The respondents are directed to reengage the petitioner as conductor immediately w.e.f. 14.7.1992 with continuity of service. No costs.