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2010 DIGILAW 1496 (ALL)

Vinod Kumar v. U. P. State Transport Corporation

2010-05-06

ANIL KUMAR

body2010
JUDGMENT : Anil Kumar, J. Heard learned counsel for the parties. 2. By means of the present writ petition, the orders dated 8.9.1986 and 2.1.1988 passed by the Service Manager, U.P.S.R.T.C., Lucknow as contained in Annexure 10-A and 13 to the writ petition respectively and the order dated 14.3.1989 passed by the Manager (Personnel) U.P. State Road Transport Corporation, Lucknow as contained in Annexure no.16 to the writ petition are under challenge. Facts In Brief 3. In the year, 1966 the post of Fitter (Electrician) had fallen vacant in the erstwhile U.P. Road Transport Corporation under the control of the State Government of Uttar Pradesh so applications were invited for appointment. In response to the same, the petitioner had submitted his candidature, thereafter a "trade test" was held on 13.9.1966 in Regional Workshop of the Service Manager of the U.P. Government Roadways and he successfully cleared the said test. 4. On 14.10.1966 the Deputy Transport Commissioner, Roadways, issued an order directing the Service Manager, U.P. Government Roadways, Lucknow to appoint the petitioner as Fitter (Electrician) in the region after completing necessary formalities. In pursuance of the same by order dated 9.11.1966 the Service Manager appointed him on the post of Fitter (Electrician) at Charbagh Depot., Lucknow. Subsequently, U.P. Road Transport Corporation was created on 1.6.1972 and the services of the petitioner were transferred to the Corporation and by order dated 29.9.1972, were regularized on the said post. Thereafter the petitioner was promoted to the post of Assistant Electrician with effect from 9.1.1974 in the U.P. State Road Transport Corporation (hereinafter referred to as' Corporation'). 5. While working and discharging his duty on the post of Assistant Electrician at Charbagh Depot of the Corporation, a chargesheet dated 4.11.1985 was served on the petitioner and he was required to submit his reply on 10.11.1985, an enquiry officer was appointed to conduct the enquiry proceedings, after conducting the same, the inquiry officer submitted enquiry report to the punishing authority/Service Manager of the Corporation. By order dated 8th September, 1986 passed by the Service Manager of the Corporation, the petitioner was reverted back to the post of Fitter on the initial pay scale of the said post. 6. By order dated 8th September, 1986 passed by the Service Manager of the Corporation, the petitioner was reverted back to the post of Fitter on the initial pay scale of the said post. 6. Aggrieved by the reversion order dated 8.9.1986, the petitioner challenged the same before this Court by means of Writ Petition No. 652 of 1987 (Vinod Kumar v. U.P. State Road Transport Corporation and other), the said writ petition alongwith the connected Writ Petitions, leading one Writ Petition no. 4907 of 1983 Jai Ram Chaudhari v. U.P. State Road Transport Corporation, Lucknow through its Chairman and others were allowed by order dated 6.2.1987 with the following directions:- "In view of the above, the petitions are allowed and the orders impugned in the various petitions are hereby quashed. It will be open to the competent authority to pass fresh orders accordance with law. There shall be no order as to costs." 7. Thereafter, U.P. Act no. 15 of 1987 had come into force and in view of the said fact the Board of Directors of the Corporation, who are appointing authority as per Regulation 9 of the U.P. State Road Transport Corporation Employee (other than officers) Service Regulation 1981 on the post of Conductor and Drivers who had earlier delegated the said power to the other authorities of the Corporation i.e. Assistant Regional Manager and the Service Manager of the Corporation had become valid. Due to said development, the Service Manager on 2.1.1988 passed an order thereby maintaining the earlier order dated 8.9.1986 by which the petitioner was reverted. 8. Aggrieved by the said order, the petitioner filed an appeal before the appellate authority i.e. Manager (Personnel) of the Corporation which was dismissed by order dated 4.3.1989 on the ground that the appeal/representation filed by the petitioner was barred by limitation and without force, hence the present writ petition has been filed before this Court challenging the orders dated 8.9.1986, 2.1.1988 (Annexure nos. 10 A and 13) and the order dated 14.3.1989 (Annexure-16) passed by Service Manager and by the Manager (Personnel) of the Corporation. Submission Made By The Parties 9. Learned counsel for the petitioner while assailing the orders which are under challenge submits as under:- (a) petitioner having worked on the post of Assistant Electrician for a period of 13 years, there was no complaint whatsoever in respect to work discharged by him. Submission Made By The Parties 9. Learned counsel for the petitioner while assailing the orders which are under challenge submits as under:- (a) petitioner having worked on the post of Assistant Electrician for a period of 13 years, there was no complaint whatsoever in respect to work discharged by him. (b) with oblique motive and purpose the charge-sheet levelling incorrect and baseless charges was issued against him and without considering his reply, by way of non speaking impugned passed by respondent no.2 by which the petitioner was reverted. 10. He further submits that main charge which was the basis of passing of impugned order was that he was absent without leave, for the said periods, the petitioner had given applications for leave, duly considered, sanctioned and even the salary for the periods had been deducted, so there was no justification or reason on the part of the respondent no. 2 to punish him on the ground that he was absent without leave for the said periods. Accordingly, the petitioner was subjected to hostile discrimination rather he was punished twice for the same charges i.e. absent without leave, as firstly his salary was deducted and secondly he was reverted, the said action on the part of the respondent no. 2 is arbitrary in nature thus violative of Article 14 of the Constitution of India. 11. Sri Neerav Chaturvedi further submits that impugned orders dated 8.9.1986 and 2.1.1988 as well as the appellate order dated 14.3.1989 passed by the Service Manager and the Manager (Personnel) of the Corporation respectively are non speaking orders because the petitioner's version was not considered and dealt with while passing the said orders, so the same are in violation of principles of natural justice and are liable to be set aside. In this regard he relied on the following judgments :- (1) U.P.S.R.T.C v. Jagdish Prasad Gupta, 2009 (2) AWC 1928 (SC). (2) Chairman, Disciplinary Authority Rani Lakshmi Bai Kshetriya Gramin Bank v. Jagdish Sharan Varshney and others, (2009) 4 SCC 240 . 12. In this regard he relied on the following judgments :- (1) U.P.S.R.T.C v. Jagdish Prasad Gupta, 2009 (2) AWC 1928 (SC). (2) Chairman, Disciplinary Authority Rani Lakshmi Bai Kshetriya Gramin Bank v. Jagdish Sharan Varshney and others, (2009) 4 SCC 240 . 12. Sri Neerav Chaturvedi learned counsel for the petitioner further submits that by means of impugned order dated 8.9.1986, two punishments were awarded to him: (a) the petitioner who was working on the post of Assistant Electrician was reverted to the post of Fitter and ; (b) the initial pay scale of the post of fitter was awarded him to fix the salary on the initial pay scale of the Fitter 13. Both are in contravention to the unreported judgment and order dated 8.1.1999 passed by this Court in the case of Sunil Kumar Srivastava v. Regional Manager, U.P.S.R.T.C, Varanasi and others. 14. Next submission which has been made by learned counsel for the petitioner is to the effect that taking into consideration the charges levelled on him and punishment which has been awarded is disproportionate and in view of the law as laid down in the case of Chairman and Managing Director, United Commercial Bank and others v. P.C. Kakkar, (2003) 4 SCC 364 , thus cannot be sustained. 15. Learned counsel for the respondents Sri Prabhakar Tiwari in rebuttal submits that in the present case charge-sheet was issued to the petitioner in which the charges were levelled that the petitioner was unauthorizedly absent from his duties and after taking into consideration the said fact and the reply given by him, the enquiry officer had submitted his report and taking into consideration the same on 8.9.1986, Service Manager passed impugned order of reversion which was again revived by order dated 2.1.1986 in view of U.P. Act no. 15 of 1987. 16. So, the impugned order of reversion, later confirmed by the appellate authority by order dated 14.3.1989 is perfectly valid order in accordance with law, needs no interference, as such present writ petition is liable to be dismissed. Findings and Conclusion 17. I have heard the learned counsel for the parties and perused the record as well as the judgment cited by the learned counsel for the parties. 18. Findings and Conclusion 17. I have heard the learned counsel for the parties and perused the record as well as the judgment cited by the learned counsel for the parties. 18. In the present case, the petitioner was working on the post of Assistant Electrician in the Corporation was reverted by order dated 8.9.1986 to the post of Fitter and also punishment was awarded to him that he should be paid basic salary of the pay scale of Fitter, the same was initially set aside by this Court vide judgment and order dated 6.2.1987 passed in Writ Petition No. 4907 of 1983, Jai Ram Chaudhari v. U.P. State Road Transport Corporation Lucknow and other connected matters. However, after coming into force the U.P. Act no. 15 of 1987 by order dated 2.1.1988 the Service Manager of the Corporation only revived the order dated 8.9.1986 against which the petitioner filed appeal/representation which was dismissed by the Manager (Personnel) on the ground that it is barred by limitation and without force by way of non speaking order 19. Further as the inquiry report is not on record so this Court had directed the learned counsel for the respondents to produce the same. Inquiry report along with relevant records, are produced and I have gone through it. 20. In the instant case, while passing the impugned order dated 8.9.1986, Service Manager has not given any reasons whatsoever that how he was agreeing with the report submitted by the enquiry officer and only in the impugned order dated 8.9.1986 it is written by punishing authority that after scrutinizing the the documents on record carefully he agreed with the report submitted by the enquiry officer that the charges against the petitioner stood proved and on the basis of the same the impugned order of reversion was passed. 21. Needless to mention herein from the perusal of inquiry report dated 26.8.1986 and the impugned punishment order dated 8.9.1986 it transpires that the language used in Second to Five paras of the impugned order are same and identical as mentioned in the inquiry report and has not applied mind in the present case. Further, the reply submitted by the petitioner in his defence was also not considered and discussed by the respondent no. Further, the reply submitted by the petitioner in his defence was also not considered and discussed by the respondent no. 2 while passing the impugned order, He simply wrote that after going through the documents on record, he agrees with the conclusion given by the inquiry officer and the petitioner is guilty of charges levelled on him and thereafter without assigning any reasons whatsoever the punishment order was passed. Further, the appeal/representation filed by the petitioner against the impugned order dated 8.9.1986 was also dismissed by the appellate authority by non speaking and unreasoned order merely stating that the same was barred by limitation without force. 22. It is settled proposition of law that not only administrative order but also judicial order must be supported by a reason recorded in it because the reasons are like a wire which connects the mind of the decision making authority and the decision given by him and if the link or wire is broken i.e. to say no reasons are given in the impugned order then it will not be possible to know as what was going in the mind of the decision making authority so as to come to the conclusion on the basis of which the impugned punishment is awarded. The said requirement is also in accordance with the principles of natural justice as an employee against whom the impugned decision is taken should know that under what circumstances the same is taken and as in the present case, impugned order dated 8.9.1986 and the appellate order dated 14.3.1989 are non-speaking orders so the same is violative of principles of natural justice and arbitrary in nature. 23. In the case of Jagdish Prasad Gupta (supra) Hon'ble Supreme Court has held as under:- "Even in respect of administrative orders Lord Denning M.R. in Breen v. Amalgamated Engineering Union, 1971 (1) All ER 1148, observed: " The giving of reasons of one of the fundamentals of good administration." In Alexander Machinery (Dudley) Ltd. v. Crabtree, 1974 LCR 120, it was observed: "Failure to give reasons amounts to denial of justice. Reasons are live links between the mind of the decision taker to the controversy in question and the decision or conclusion arrived at." Reasons substitute subjectivity by objectivity. Reasons are live links between the mind of the decision taker to the controversy in question and the decision or conclusion arrived at." Reasons substitute subjectivity by objectivity. The emphasis on recording reasons is that if the decision reveals the " inscrutable face of the sphinx", it can, by its silence, render it virtually impossible for the Courts to perform their appellate function or exercise the power of judicial review in adjudging the validity of the decision. Right to reason is an indispensable part of a sound judicial system, reasons at least sufficient to indicate an application of mind to the matter before Court. Another rationale is that the affected party can know why the decision has gone against him. One of the statutory requirements of natural justice is spelling out reasons for the order made, in other words, a speaking out. The "inscrutable face of a sphinx" is ordinary incongruous with a judicial or quasi-judicial performance. This Court in State of Orissa v. Dhaniram Luhar, 2004 (5) SCC 568 , has while reiterating the view expressed in the earlier cases for the past two decades emphasised the necessity, duty and obligation of the High Court to record reasons in disposing of such cases. The hallmark of a judgment/order and exercise of judicial power by a judicial forum is to disclose the reasons for its decision and giving of reasons has been always insisted upon as one of the fundamentals of sound administration of justice-delivery system to make known that there had been proper and due application of mind to the issue before the Court and also as an essential requisite of principles of natural justice. Any judicial power has to be judiciously exercised and the mere fact that discretion is vested with the Court/Forum to exercise the same either way does not constitute any license to exercise it at whims or fancies and arbitrarily as used to be conveyed by the well known saying : varying according to the Chancellors foot". Arbitrariness has been always held to be the anathema of judicial exercise of any power, all the more so when such orders are amenable to challenge further before higher forums. Such ritualistic observations and summary disposal which has the effect of at times, cannot be said to be a proper and judicial manner of disposing of judiciously the claim before the Courts. Such ritualistic observations and summary disposal which has the effect of at times, cannot be said to be a proper and judicial manner of disposing of judiciously the claim before the Courts. The giving of reasons for a decision is an essential attribute of judicial and judicious disposal of a mater before Courts, and which is the only indication to know about the manner and quality of exercise undertaken, as also the fact that the Court concerned had really applied its mind." 24. In the case of Chairman, Disciplinary Authority, Rani Lakshmi Bai Kshetriya, Gramin Bank (supra), the apex Court has held as under:- "In our opinion, an order of affirmation need not contain as elaborate reasons as an order of reversal, but that does not mean that the order of affirmation need not contain any reasons whatsoever. In fact, the said decision in Prabhu Dayal Grover Case (1995) 6 SCC 279 has itself stated that the appellate order should disclose application of mind. Whether there was an application of mind or not can only be disclosed by some reasons, at least in brief, mentioned in the order of the appellate authority. Hence, we cannot accept the proposition that an order of affirmation need not contain any reasons at all. That order must contain some reasons, at least in brief, so that one can know whether the appellate authority has applied its mind while affirming the order of the disciplinary authority." 25. Recently, the Apex Court in the case of Secretary and Curator, Victoria Memorial Hall v. Howrah Ganatantrik Nagrik Samity and others, (2010) 3 SCC 732 has held that reasons is the heart beat of every conclusion, it introduces clarity in an order and without assigning the same, it becomes lifeless. Reasons substitute subjectivity by objectivity. Absence of reasons render the order indefensible/unsustainable particularly when the order is subject to further challenge before a higher forum. It was further held that thus recording of reasons is a principle of natural justice and every judicial order must be supported by reasons recorded in writing. It ensures transparency and fairness in decision making. The person who is adversely affected comes to know as to why his application has been rejected. 26. It was further held that thus recording of reasons is a principle of natural justice and every judicial order must be supported by reasons recorded in writing. It ensures transparency and fairness in decision making. The person who is adversely affected comes to know as to why his application has been rejected. 26. In view of the said para meters and scale as laid down by the Apex Court in various judicial pronouncement, the orders which are under challenge in the present writ petition i.e. the orders dated 8.9.1986/2.1.1988 passed by the Service Manger of the Corporation and the order dated 14.3.1989 passed by the Manager (Personnel) of the Corporation, are in contravention to law as stated herein above so only on this said grounds the present writ petition deserves to be allowed. 27. Moreover, the other pleas and arguments advanced in support of the same by the learned counsel for the petitioner while assailing the impugned orders which are under challenge in the present case need not to be adjudicated and decided as the present writ petition deserves to be allowed only on the ground that the impugned order dated 8.9.1986 and 2.1.1988 passed by Service Manager of the Corporation as contained in annexure nos.10A and 13 to the writ petition and the appellate order dated 14.3.1989 passed by Manager (Personnel) of the Corporation as contained in annexure no.16 to the writ petition are non-speaking and unreasoned orders without considering the fact and thus the same is in contravention to the settled proposition of law as stated herein above and also in violation of principles of natural justice, so liable to be set aside. 28. Now the next question which is to be considered in the present case that if the impugned orders are set aside on technical ground as the same are non-speaking and unreasoned one then what relief is to be given to the petitioner as per law. 28. Now the next question which is to be considered in the present case that if the impugned orders are set aside on technical ground as the same are non-speaking and unreasoned one then what relief is to be given to the petitioner as per law. In order to determine the same, keeping in view the peculiar facts and circumstances of the present case that since the petitioner had retired from the post of Fitter on which he was reverted during the pendency of the writ petition so the interest of justice, it will be appropriate that the matter should not be remanded back to the authorities concerned for reconsideration on the one hand and on the other hand keeping in view the principal of 'No work and No pay', the petitioner should not be allowed any pay of the post of Assistant Electrician for the period during which he worked on the reverted post of Fitter, but entitled for other consequential and service benefits admissible to the post of Assistant Electrician. Accordingly, the opposite parties are directed to pay the post of retiral benefits to the petitioner treating him to be retired from the post of Assistant Electrician after attaining the age of superannuation. 29. For the foregoing reasons, the writ petition is allowed and the impugned orders dated 8.9.1986 and 2.1.1988 passed by Service Manager of the Corporation as contained in annexure nos. 10A and 13 respectively and the appellate order dated 14.3.1989 (Annexure no.16) passed by Manager (Personnel) of the Corporation are set aside. 30. Further, in the present case the end of justice will meet and satisfied if the petitioner is being compensated for mental agony and other harassment which he suffered and faced on account of reversion on the post of Fitter in pursuance to impugned orders. Accordingly, a sum of Rs. 25,000/- is awarded by way compensation to him which shall be payable by the opposite parties within a period of two months from today.