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2014 DIGILAW 1162 (ALL)

BHAGAWATI PRASAD OJHA v. STATE OF U. P.

2014-04-10

SURYA PRAKASH KESARWANI

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JUDGMENT Hon’ble Surya Prakash Kesarwani, J.—Heard Dr. H.N. Tripathi, learned counsel for the petitioner, Sri B.P. Singh Kachhawah, learned Standing Counsel for respondent No. 1 and Sri R.P. Ram, learned counsel for respondent Nos. 2 and 3. 2. Briefly stated the fact of the present case are that the petitioner, was Conductor of Bus of Respondent No. 3, bearing registration No. U.P. 81/9078, which was intercepted on 16.10.2001 at about 13:45 hours at Samramai by the inspecting team led by Sri S.K. Sharma, Assistant Regional Manager, Etah. The Inspecting Team inspected the aforesaid bus and found that 73 persons, were travelling while tickets were issued to only 26 passengers. The petitioner alongwith his associates did not allow the inspecting team to check the tickets passenger-wise and misbehaved with the Inspecting Team and compelled them to score out the figure 73 and instead to write the figure as 26. They threatened the inspecting team. When the inspecting team tried to return by their staff car No. U.T.L/3577, then the petitioner with others intercepted the staff car and took out the members of the inspecting team namely Sri B.D. Sonkar, and Sri Rajendra Singh, both Assistant Traffic Inspectors and compelled them to write that 47 persons/passengers are staff members. They also used vulgar words and threatened to kill them. They did not allow physical verification. A report of the aforesaid incident was sent by the Assistant Regional Manager ? Sri S.K. Sharma on 16.10.2001 itself. On the basis of these allegations contained in the report sent by the aforesaid Assistant Regional Manager, Etah ? Sri S.K. Sharma, the petitioner was suspended vide office order/letter No. 6547 dated 17.10.2001 and was attached with the Naraura Depot. A charge-sheet vide letter No. 6803 dated 30.10.2001 was issued to the petitioner. The charges were two fold namely, that 47 passengers were found without tickets and secondly that the petitioner alongwith his associates and unsocial elements misbehaved and used vulgar words, compelled the inspecting team to score out the noting of 47 persons without tickets and also threatened to kill the members of the inspecting team. The petitioner did not submit the reply against the charges levelled in the charge-sheet. In the circumstances a reminder letter No. 7283 dated 13.11.2006 was issued to him granting three days’ further time to submit the reply. The charge-sheet was served upon the petitioner on 8.11.2001. The petitioner did not submit the reply against the charges levelled in the charge-sheet. In the circumstances a reminder letter No. 7283 dated 13.11.2006 was issued to him granting three days’ further time to submit the reply. The charge-sheet was served upon the petitioner on 8.11.2001. The petitioner submitted his reply on 8.1.2002. He took the stand that 47 persons found without tickets in the Bus, were members of the staff. He filed affidavits of twelve persons, in which it is stated that 47 persons were not passenger without tickets, but they were staff members. The Reporting Officer i.e. Assistant Regional Manager, Etah, Sri S.K. Sharma and Traffic Superintendent - Sri Chakkar, appeared during the inquiry proceedings and confirmed the report. The Enquiry Officer considered all the affidavits and came to the conclusion that even the members of the staff are not authorized to travel in a bus of the corporation on the basis of identity card. The facility of free travelling is available only on the basis of passes. He recorded the findings of fact that these 47 persons/passenger were travelling illegally without obtaining their tickets for which the petitioner is fully responsible. The Enquiry Officer submitted the report dated 3.1.2005, thereafter a show-cause notice dated 02nd May, 2005 was issued to the petitioner. The petitioner submitted his reply dated 01st of June, 2005. The Competent Authority afforded opportunity to the petitioner and after considering all the evidence on record, recorded a finding of fact that there is no error in the enquiry report, in which all the charges levelled against the petitioner were found proved. He observed that petitioner has not adduced any evidence. He came to the conclusion that no case is made out by the petitioner for relaxation in punishment proposed in the show-cause notice. vide order dated 13.11.2006 passed by the competent authority, the petitioner was awarded punishment of dismissal from service and all his retiral benefits were forfeited. 3. Aggrieved with this order the petitioner preferred a departmental appeal, which was rejected by an order dated 26th April, 2007. Thereafter the petitioner filed a representation, which was also rejected by an order dated 22nd December, 2008. Aggrieved with these three orders namely, impugned order dated 13.11.2006, appellant order dated 26th April, 2007 and the revisional order dated 22nd December, 2008, the petitioner has filed the present writ petition. 4. Dr. Thereafter the petitioner filed a representation, which was also rejected by an order dated 22nd December, 2008. Aggrieved with these three orders namely, impugned order dated 13.11.2006, appellant order dated 26th April, 2007 and the revisional order dated 22nd December, 2008, the petitioner has filed the present writ petition. 4. Dr. H.N. Tripathi, submits that impugned orders are wholly arbitrary and illegal and thus not sustainable, since the Enquiry Officer has not applied his mind and not recommended any penalty as required under Rule 64 (4) of the State Road Transport Corporation Employees Service Regulation, 1981. The Enquiry Officer has not recorded any finding that the negligence committed by the petitioner in not issuing the tickets to all the 47 passengers, was for his personal gain and as such major penalty for dismissal from service and for forfeiture of his retiral benefits is illegal. Dr. Tripathi further submits that Rule 64 of the Regulation provides for four types of major penalties. In the impugned order, none of the authorities have recorded any reason that why lesser punishment as provided under Rule 64 under the heading ‘Major Penalties’ should not be given. He submits that the order of dismissal from service is wholly disproportionate that may be awarded under the facts and circumstances of the case. 5. Sri R.P. Ram, submits that the charges were found proved against the petitioner. The enquiry was conducted well in accordance with law and it does not suffer from any error or infirmity. The findings recorded in the impugned order are the findings of fact based on evidence and therefore the same cannot be interfered in the writ jurisdiction under Article 226 of the Constitution of India, unless the petitioner shows that the finding recorded is perverse. He submits that it is admitted to the petitioner that 47 passengers were found without tickets. He submits that the report was confirmed by the Reporting Officer i.e. Assistant Regional Manager and the Traffic Inspector, who were members of the Inspecting Team. He submits that under the facts and circumstances, the impugned order are just and proper and the writ petition deserves to be dismissed. 6. I have carefully considered the submissions of learned counsel for the parties and perused the record of the writ petition. It is wholly undisputed that 47 passengers were found without tickets. He submits that under the facts and circumstances, the impugned order are just and proper and the writ petition deserves to be dismissed. 6. I have carefully considered the submissions of learned counsel for the parties and perused the record of the writ petition. It is wholly undisputed that 47 passengers were found without tickets. The stand of the petitioner is that these 47 persons were staff members and there was no illegality if they were accommodated to travel in the bus in question belonging to the corporation. 7. The case of the respondents corporation is that these 47 passengers were found travelling without tickets. Rule 73 of the State Road Transport Corporation Employees Service Regulation 1981 provides as under : “73. Free passes.—(1) An employee shall be given free passes to travel in the corporation buses in the city area only from his residence to the place of work and vice versa. Passenger Tax shall be borne by the employee.” (2). An employee shall enjoy the privilege of the two free family passes and three P.T.O family passes during a calendar year. (3). Free passes to the school children, of the employees, shall be given for going to their schools and back to their residence in the city buses but the passenger tax shall be borne by the employee.” 8. Bare perusal of the afore-quoted provision clearly shows that even an employee of the corporation cannot travel without ticket unless he possess Free Pass. Even an employee holding a free pass is required to bear passenger tax. The petitioner has completely failed to refer to any provision under the Regulation, 1981, which entitles an employee of the corporation to travel without tickets and merely for reason that he possess an identity card. 9. The report of misbehave, using of vulgar words and threatening to kill the inspecting team by the petitioner and his allies was confirmed by the Reporting Officer as well as another member of the Inspecting Team. The petitioner has not produced any evidence to contradict the report. The authorities, while passing the impugned orders have recorded the findings of fact and held that the charges were found proved by the Enquiry officer. 10. The petitioner has not produced any evidence to contradict the report. The authorities, while passing the impugned orders have recorded the findings of fact and held that the charges were found proved by the Enquiry officer. 10. The findings recorded by the authorities in the impugned order are on findings of fact, which cannot be interfered in writ jurisdiction under Article 226 of the Constitution of India, unless the petitioner shows that the findings are perverse. No perversity could be shown by the petitioner. Dr. Tripathi has relied upon a judgement of Hon’ble Supreme Court in Civil Appeal No. 3617 of 1997, Kailash Nath Gupta v. Enquiry Officer and others, 1997 All CJ 896, in support of his submission that for negligence in duty by allowing 47 members of staff to travel in corporation’s bus in question without tickets, punishment of dismissal from service, could not have been awarded since there is no allegation that the petitioner has allowed these persons to travel for his personal gain. The submission of Dr. Tripathi at first instance appears to be attractive, but when looked deeper in the fact and circumstances of the case and findings recorded in the impugned order, the same is without any force. As per finding of facts recorded in the impugned order, it is evident that 47 passengers were found without tickets in the bus-in-question, in which the petitioner was posted as Conductor. He obstructed the inspecting team and did not allow to complete their work and to carry out the physical verification. The members of the inspecting team were threatened and compelled to score out the noting and to write as dictated by the petitioner. 11. In view of these facts and circumstances I do not find any error either of law or facts in the punishment awarded to the petitioner by the authority concerned. In view of the above discussions I do not find any merit in this writ petition. The writ petition fails and is hereby dismissed. There shall be no order as to costs. ————