Ram Darash Vs State of U.P. and Others

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9. The petitioner preferred statutory appeal against the aforesaid order dated 5.3.2004 under Regulation 69 of the U.P. State Road Transport Corporation Employees (other than Officers) Service Regulations, 1981 before the appellate authority on 15.3.2004. The appeal was dismissed by the Chief Manager (Personnel) vide order dated 6.10.2004 holding that the appellant had not given any such argument or evidence which may warrant any modification or variation .

The contention of petitioner

10. It has been urged by Counsel for the petitioner that the U.P. State Road Transport corporations incorporated under the Road Transport Corporation Act, 1950 (hereinafter referred to as ''the Act'') which in itself is a complete Code regarding entire functioning of the Corporation. He submits that u/s 34 of the Act, the Corporation is empowered to frame Regulations regarding recruitment, conditions of service, training of its employees, wages to be paid to them etc. The U.P. State Road Transport Corporation has accordingly framed U.P. State Road Transport Corporation Employees (other than Officers) Service Regulations, 1981 and that Regulations 61 to 69 deal with the conduct, punishment and appeal for the employees of the Corporation. Under the aforesaid provisions, the order passed by the appellate authority is final.

11. It is vehemently urged by the Counsel for the petitioner that from the perusal of records, report of the enquiry officer and findings recorded by the disciplinary authority, etc., the charges of accident of bus and loss suffered by the Corporation alleged to be result of misconduct of the petitioner were not proved against him. The Counsel, therefore, submits that the order passed by the appellate authority is not supported by record. According to him the order impugned is an example of arbitrariness and non-application of mind as the same is in clear contradiction to the report of the enquiry officer and the findings recorded by the disciplinary authority. It is further urged that the punishment awarded to the petitioner does not commensurate to the gravity of the charges levelled against him which admittedly had not been proved. In support of his contention, he placed implicit reliance on the decisions in Bharat Forge Co. Ltd. Vs. Uttam Manohar Nakate, ; Regional Manager, Shri Gandhi Ashram and Others Vs. Labour Court and Another, Ram Prasad Prajapati Vs. Labour Court and Another, and Mahindra and Mahindra Ltd. Vs. N.B. Naravade etc.,

Respondents case

12. A preliminary objection was raised by Counsel for the respondents that the petitioner has an alternative remedy for redressal of his grievance by way of filing revision under Regulation 69-A of the U.P. State Road Transport Corporation Employees (other than Officers) Service Regulations, 1981 before the Chairman/Managing Director, U.P. State Road Transport Corporation, Lucknow as well as of raising an industrial dispute under the U.P. Industrial Disputes Act, 1947 which has not been exhausted by him, as such, the writ petition is not maintainable. He supported his argument by placing reliance on decisions of Hon''ble the Apex Court in K. Vidya Sugar v. State of U.P. and Ors. (2005)5 SCC 590 ; Secretary, Minor Irrigation and Rural Engineering Services, U.P. and Others Vs. Sahngoo Ram Arya and Another, and Central Coalfields Ltd. Vs. State of Jharkhand and Others,

13. On merits, he contended that the petitioner, his co-driver and the conductor acted against the instructions to halt at Sonauli for night on 6.7.2003; they consumed liquor and due to their drunken position deliberately got the wheel of the bus struck in the mud, hence with motive to conceal their misconduct, they put fire to the bus and subsequently a false F.I.R was lodged by them at Farenda Police Station and that the fire by which the bus was burnt was caused due to short-circuit. He also submits that when inspection team of the Corporation reached the spot, all the three persons ran away but, however, it was found by the inspection team that the cause of fire was not short-circuit and the bus was deliberately burnt down by them. It is strenuously urged by him that as a result of aforesaid misconduct the Corporation suffered a loss of Rs. 4 lacs and the petitioner along with other aforesaid staff were fully responsible for it. He submitted that the punishment awarded to the petitioner is not disproportionate but commensurate with the charge proved against him.

Conclusions

14. Having heard rival submissions and perused the enquiry report as well as the subsequent orders passed by the punishing authority and the appellate authority, there is no dispute about the fact that the petitioner was under medical treatment and confined to bad at Sonauli. He was attended by Government doctor at Government hospital who gave in writing that he had administered medicine to the petitioner and had advised him rest for the night on 6.7.2003. In fact, the enquiry officer has given a categorical finding of fact that on the basis of documentary and oral evidence, it is evident that the petitioner/charged employee, clue to circumstances beyond his control was not driving the bus nor it was burnt in his presence nor the bus was in his charge as he was under medical treatment at the relevant time. These findings of facts have also been endorsed and approved by the punishing authority. The charge that petitioner along with other staff " on bus had deliberately got the bus struck in the mud in drunken condition and to conceal this misconduct had burnt down the bus, is not only not proved but also falsified by the Police as well as departmental enquiry. It also appears to be frivolous. How could the burning of the bus conceal the drunkenness of the accused? There was neither any evidence of drunkenness nor any inflammable material found and proved by the department in support of the charge. It is an admitted fact that the petitioner was not on spot due to his being under medical treatment, hence, the charge that he absconded from the site of accident also was not proved .

15. As regards the punishment of token recovery of 1/3 amount if loss suffered by the Corporation from the salary of the petitioner, the authorities below have failed to apply their judicious mind to the fact that there was no charge against the petitioner that he had not informed the authorities about his illness and petitioner has not been found responsible for it in the enquiry, he cannot be held liable to recovery of any amount for the alleged loss to the Corporation. It appears that recovery is not of token amount but of equal division on the petitioner, the co-driver and the conductor.

16. The Court in the circumstances is not inclined to relegate the petitioner to alternate remedy in the instant case where the miscarriage of justice is apparent on face of record. Once the Court is satisfied that a gross injustice has been caused to the petitioner by the arbitary and whimsical orders, impugned in the present petition, The Court, under Article 226 of the Constitution is duty bound to not only ensure that justice is done but is also bound to see that there is no miscarriage of justice.

17. For the reasons stated above, the writ petition succeeds and is allowed. The impugned orders dated 5.3.2004 passed by respondent No. 3 land dated 6.10.2004 passed by respondent No. 2 are quashed. The petitioner shall be entitled to full salary with 10% simple interest from the due date till the date of payment during the period of his suspension and the respondents shall also not recover any amount from from the salary of the petitioner. Cost of Rs. 5000/- is assessed on the respondents payable to the petitioner within two months from today.