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2016 DIGILAW 3523 (ALL)

U. P. S. R. T. C. v. Babu Ram Yadav

2016-10-21

SUNEET KUMAR

body2016
ORDER : 1. Heard learned counsel for the parties. 2. Petitioner i.e. U.P. State Road Transport Corporation (Corporation) is assailing award dated 1 November 2011, passed by Presiding Officer, Labour Court, U.P. Varanasi, in Adjudication Case No. 02 of 2007, published on 9 April 2012. 3. The first respondent was appointed conductor with the petitioner Corporation on 5 November 1981, while deputed on a Bus plying from Naubastapur to Benigah, a surprise inspection was carried out in 1999 by the checking team, in which, it was found that the fifty passengers were on Board, out of which, forty passengers were travelling without ticket. The checking authorities issued blank ticket and entries was made on the way-bill. The first respondent duly admitted of not issuing tickets to 40 passengers, further, he made an endorsement on the way-bill that in future he shall issue the tickets and had undertaken to deposit the sum with the Corporation. 4. On a report submitted by Sri Hirdaya Narain Dubey, Assistant Regional Manager, who conducted the inspection, pursuant thereof, disciplinary proceedings was initiated by issuing charge sheet dated 13 May 1999, the first respondent appeared before the Enquiry Officer, participated in the enquiry and cross examined the witnesses. In the enquiry, first respondent was found guilty upon the charges having been proved, thereafter, upon considering the reply of the first respondent to the show cause, vide order dated 30 November 1999, service of first respondent was terminated. Aggrieved, an appeal which was preferred before the appellate authority was rejected on 16 February 2000, the revision also failed, consequently, first respondent was dismissed on 26 August 2000. 5. The State Government under Section 4-K of the U.P. Industrial Disputes Act, 1947, referred the dispute to the Labour Court, as to whether the order terminating service of first respondent was lawful or valid. 6. The Labour Court, framed a preliminary issue as to whether the departmental enquiry against the first respondent was fair and proper. The Labour Court vide order dated 15 June 2010 came to a conclusion that the departmental enquiry conducted was not fair and proper, thereafter, opportunity was given to the petitioner corporation to prove the charges. 7. Sri Hirdaya Narain Dubey, Assistant Regional Manager, who had since retired, appeared before the Labour Court and reiterated the contents of the spot report and proved the document. 7. Sri Hirdaya Narain Dubey, Assistant Regional Manager, who had since retired, appeared before the Labour Court and reiterated the contents of the spot report and proved the document. The first respondent also recorded his oral evidence before the Labour Court. By the impugned award Labour Court has set aside the termination order and directed reinstatement of first respondent with 25% back wages, holding that the corporation failed to prove the charges against the first respondent. 8. Sri Sunil Kumar Mishra, learned counsel appearing for the petitioner Corporation would contend that the finding recorded by the Labour Court is perse perverse, the factum of incident was not disputed by the first respondent; on spot inspection it was admitted that 40 passengers were travelling without ticket; an endorsement to that effect was also made by the first respondent himself on the way-bill. In this background, it is sought to be urged that the Labour Court erred in merely taking contradiction in the statement of Hirdaya Narain Dubey to set aside the termination order. 9. In rebuttal Sri V.K. Singh, learned counsel appearing for the first respondent would contend that it is not in dispute that the 40 passengers were travelling without ticket, however, would submit that the first respondent stated that he was in the course of making ticket when the inspection was conducted, therefore, it was incumbent upon the disciplinary authority or the inspecting authority to have recorded the statement of the passengers and Driver so as to establish whether passengers who were not having tickets boarded the Bus immediately. Rival submission calls for consideration. I have heard learned counsel for the parties and perused the record. 10. It is not in dispute that 40 passengers on board were traveling without ticket, a collective ticket was made by the inspecting team and the first respondent was directed to deposit the sum, however, the said sum was not deposited, thereafter, Corporation had to deduct the same from the salary of the first respondent. It is not the case of the first respondent that he had collected the money from the passengers and was in the process of making the tickets but on the contrary it is admitted that 40 passengers on board were travelling without ticket. It is not the case of the first respondent that he had collected the money from the passengers and was in the process of making the tickets but on the contrary it is admitted that 40 passengers on board were travelling without ticket. In the report submitted by Hirdaya Narain Dubey, it was averred that some money were collected but in the statement, he averred that no passengers had given money for the ticket to the first respondent, it is on this contradiction, Labour Court came to a conclusion that the charges were not proved. In the written statement and statement of first respondent, it has no where been stated or recorded that he collected the money from the passengers or that he was in the process of making tickets, the factum that 40 passengers were travelling without ticket was admitted, therefore, it cannot be said that the charges against the first respondent based upon the evidence led before the Labour Court was not proved. In disciplinary proceedings, the degree of proof is of pre-ponderance of doubt and not beyond reasonable doubt. It is no being disputed that there was evidence against the first respondent, recorded on spot inspection to prove the charge, therefore, sufficiency of evidence in proof of the finding in a domestic enquiry is beyond scrutiny. 11. Learned counsel for the petitioner Corporation has referred to and relied upon a recent judgment of the Apex Court in the case of U.P.S.R.T.C. and others Vs. Gopal Shukla and others, passed in Civil Appeal No.2038 of 2012, decided on 1.9.2015, in which it was contended before the Apex Court that considering the fact that a petty amount was shown to have been misappropriated, as such, punishment of dismissal was bad. Reliance was placed upon an earlier judgment of Apex Court in Municipal Committee, Bahadurgarh Vs. Krishnan Bihari & Ors., [ AIR 1996 SC 1249 ] to contend that in cases involving corruption, there cannot be any punishment other than dismissal, and the fact whether amount misappropriated is small or large, is not material. It was observed that degree of corruption is immaterial and substitution of punishment of dismissal with a lesser punishment was not approved. Reliance has also been placed upon the judgments of the Apex Court in the case of State of Haryana and another Vs. Rattan Singh [ AIR 1977 SC 1512 ]. It was observed that degree of corruption is immaterial and substitution of punishment of dismissal with a lesser punishment was not approved. Reliance has also been placed upon the judgments of the Apex Court in the case of State of Haryana and another Vs. Rattan Singh [ AIR 1977 SC 1512 ]. Hon'ble Supreme Court was dealing with a case of simple termination and the plea that statement of passengers were not recorded by Inspector of Flying Squad, was rejected. The decision of termination, based solely upon the evidence of Inspector, was approved by the Hon'ble Supreme Court. Paragraphs 3 to 5 of the judgment is reproduced:- "3. The principal ground on which the courts below have declared the termination bad is that none of the 11 passengers have been examined at the domestic enquiry. Secondly, it has been mentioned that there is a departmental instruction that checking inspectors should record the statements of passengers, which was not done in this case. The explanation of the State, as done out by the record, is that the inspector of the flying squad who had said that they had paid the fares but they declined to give such written statement. The third ground which weighted with the courts was, perhaps, that the co-conductor in the bus had supported with this evidence, the guiltlessness of the respondent. 4. It is well settled that in a domestic enquiry the strict and sophisticated rules of evidence under the Indian Evidence Act may not apply. All materials which are logically probative for a prudent mind are permissible. However, the courts below mis-directed themselves, perhaps, in insisting that passengers who had come in and gone out should be chased and brought before the tribunal before a valid finding could be recorded. The simple point is, was there some evidence or was there no evidence not in the sense of the technical rules governing regular court proceedings but in a fair common-sense way as men of understanding and wordly wisdom will accept. Viewed in this way, sufficiency of evidence in proof of the finding by a domestic tribunal is beyond scrutiny. Absence of any evidence in support of a finding is certainty available for the court to look into because it amounts to an error of law apparent on the record. Viewed in this way, sufficiency of evidence in proof of the finding by a domestic tribunal is beyond scrutiny. Absence of any evidence in support of a finding is certainty available for the court to look into because it amounts to an error of law apparent on the record. We find, in this case, that the evidence of Chamanlal, Inspector of the flying squad, is some evidence which has elevance to the charge leveled against the respondent. Therefore, we are unable to hold that the order is invalid on that ground. 5. The Inspector tried to get the statements but the passengers declined, the psychology of the latter in such circumstances being understandable, although may not be approved. We cannot hold that merely because statements of passengers were not recorded the order that followed was invalid". 12. Learned counsel for the petitioner Corporation has also relied upon the judgments of the Apex Court in the case of Divisional Controller, KSRTC (NWKRTC) Vs. A.T. Mane [ 2005 (3) SCC 254 ], Devendra Swamy Vs. Karnataka State Road Transport Corporation [ 2002 (9) SCC 644 ], North West Karnataka Road Transport Corporation Vs. H.H. Pujar [ AIR 2008 SC 3060 ], Divisional Manager, Rajasthan S.R.T.C. Vs. Kamruddin [ AIR 2009 SC 2528 ], as well as, judgments of this Court in the case of Uttar Pradesh State Road Transport Corporation, Jhansi Vs. Presiding Officer, Labour Court (4), Kanpur [2011 (3) UPLBEC 1979] and U.P.S.R.T.C & Others Vs. K.K. Gupta and others, passed in Writ Petition No.24968 of 1998, dated 4.7.2011 along with connected matters, in order to contend that once conductor has mis-conducted by carrying passengers without proper tickets, then no interference is warranted with the punishment imposed. 13. Having due regard to the facts and circumstances of the case, I find merit in the submission of learned counsel for the petitioner that the finding recorded by the Labour Court is not only perse, perverse, but in the backdrop of admitted facts and evidence available on record, coupled with the statements recorded before the Labour Court, it cannot be said that the charges were not proved against the first respondent. 14. In the circumstances, I am of the opinion that the Labour Court committed an error which is apparent on the face of the record, in interfering with the disciplinary proceedings. 15. In view of above, the writ petition stands allowed. 14. In the circumstances, I am of the opinion that the Labour Court committed an error which is apparent on the face of the record, in interfering with the disciplinary proceedings. 15. In view of above, the writ petition stands allowed. The impugned award dated 1 November 2011, is set aside. No order as to costs.