Sanjeev Kumar v. Himachal Pradesh Transport Corporation
2012-01-12
KURIAN JOSEPH, SANJAY KAROL
body2012
DigiLaw.ai
JUDGMENT : Sanjay Karol, J. Petitioners have prayed for the following reliefs:- (i) That a writ in the nature of Certiorari may kindly be issued against the respondents by quashing and setting aside the impugned order Office Order dated 13.1.2009 Annexure P-5 and Office Order dated 13.8.2010 Annexure P-10. (ii) That a writ in the nature of mandamus may kindly be issued directing the respondents to re-engage the petitioner on the post of TMPA on which post the petitioner was already working, with all consequential benefits like seniority and back wages alongwith interest @ 9% per annum. 2. Pursuant to policy framed by respondent-HRTC, petitioner was engaged on 23.9.2006 as Transport Multipurpose Assistant (conductor) (in short TMPA) on contract basis, on a monthly remuneration of Rs. 2000/- plus 2% commission on sale of actual tickets. Contract which was initially for a period of one year was subsequently renewed on yearly basis. 3. HRTC found that TMPAs were not properly accounting the amount collected from the passengers, as such, it framed a policy for taking action against the TMPAs in ticketless travelling cases. It is annexed with letter dated 6.10.2005 (Annexure P-1). Action proposed under the Policy is as follows:- 1st case Penalty equivalent to five times of the amount of the case and a warning. 2nd case Penalty equivalent to ten times of the amount of the case with a warning. 3rd case Penalty equivalent to twenty times of the amount of the case involved in the case and a warning. 4th case Penalty equivalent to twenty times of the amount involved in the case with final warning for cancellation of the contract. 5th case Contract to be cancelled. (i) In case any TMPA is involved in a case of Rs. 100/- or more first time, he is to be imposed fine at 10 times of the amount and in case the same TMPA is involved in a case of Rs. 100/- or more second time, his contract is to be cancelled. (ii) In case 25% or more passengers are detected travelling without tickets in the bus and the TMPA is found at fault i.e. fare collected and tickets not issued, then action as proposed above (i) is to be taken in the first case and if the offence is repeated second time as per this clause or as per (i) above then his contract is to be cancelled.
(iii) In addition before the contract is cancelled, a proper show cause notice be issued and the contract may be cancelled only on receipt and consideration of the reply furnished by the TMPA. However, where the offence is likely to lead to the termination of the contract the TMPA may not be put on duty till the notice period and other formalities are completed. In such cases, he has to be disengaged from duty immediately. 4. To put it shortly, in effect, if a contract employee embezzles public money four times then only a lenient view of imposition of penalty is to be taken. However, if an employee persists with his misconduct then only in a case of 5th default, a strict action of canceling his contract would be taken. This is a very peculiar and unethical policy framed by the respondent-HRTC. 5. In the instant case, petitioner was found to have embezzled public money not once but more than nine occasions. As per grading of category, in terms of the policy, which the respondent categorized him as A, his misconduct is rated as 6.2., which is more than 5 defaults. It was only when petitioner did not mend his ways and continued to perpetuate his dishonest conduct, respondents issued memorandum dated 10.11.2008 (Annexure P-3), asking him to show cause as to why his contract/agreement be not cancelled. Petitioner responded to the same. His explanation was found unacceptable and as such his agreement terminated in terms of order dated 13.1.2009 (Annexure P-5). 6. Petitioner preferred an appeal before the appropriate Authority. Pending decision, he also independently filed a writ petition before this Court, which was disposed of in terms of judgment dated 27.5.2010 passed in CWP No. 2649 of 2010, titled as Sanjiv Kumar vs. HRTC and others, with directions to the appellate authority to decide the appeal expeditiously. 7. In terms of impugned order dated 13.8.2010 (Annexure P-10), the same stands decided. The Appellate Authority, in our considered view has rightly held that petitioner issued tickets of lower denomination, collected money from passengers but did not issue any tickets and also in certain cases collected money but issued tickets for shorter distances. 8. On earlier defaults, authorities did not take any harsh action against the petitioner, perhaps hoping that he would mend his ways. Regretfully, respondents leniency was misused and taken as licence to perpetuate dishonesty.
8. On earlier defaults, authorities did not take any harsh action against the petitioner, perhaps hoping that he would mend his ways. Regretfully, respondents leniency was misused and taken as licence to perpetuate dishonesty. Offence in a particular year of contract cannot be restricted to the relevant year of contract. Offences for the entire service period has to be considered while implementing the policy and imposing penalty in terms thereof. In the instant case, we find that competent authorities fully complied with principles of natural justice. Action has been taken in accordance with law. There is no breach of terms of policy either. As such, we find no ground to interfere with the same. Petition is devoid of any merit and as such merits dismissal. 9. However, we are of the considered view that respondent must have a re-look into the policy for the simple reason that there cannot be any premium on dishonesty. Normally an employee should not be retained in service, the moment it comes to the notice of the employer that he lacks financial integrity. Default, as categorized by the respondents pertains to embezzlement of public funds. Conductors take money from passengers and instead of issuing tickets and accounting for the same pocket it for their personal use. Policy in our considered view perpetuates corruption and it is definitely not in public interest, apart from being unethical, unconscionable and unfair. It results into perversity and travesty of justice and rule of law. All public actions must advance public good and public cause and not promote, perpetuate and propagate dishonesty or benefit dishonest persons. In this regard, we refrain from passing any further orders, save and except that respondents are directed to have a re-look into their policy. 10. With the aforesaid observations, the present petition is dismissed.