Hon''ble Sudhir Agarwal, J.@mdashHeard Sri Rahul Jain, learned counsel for the petitioner. Learned Standing Counsel appearing on behalf of State of U.P. do not propose to file any separate counter-affidavit but adopts the stand taken by respondent Nos. 1, 2 and 3 hence as jointly agree I proceed to decide the matter under the rules of the Court at this stage. A short question up for consideration in this case as to whether the order impugned in this writ petition has been passed by competent authority or not.
2. The writ petition is directed against the order dated 30.5.1991 (Annexure 7 to the writ petition) whereby Regional Manager, U.P. State Road Transport Corporation Ltd., Azamgarh by means of impugned order dated 30.5.1991 has imposed punishment of compulsory retirement without payment of gratuity and forfeiture of remaining dues for the period of suspension. The petitioner has been held to be guilty of certain allegations constituting misconduct which is said to have been proved in a departmental enquiry.
3. The submission on behalf of the petitioner is that an employee/staff of Uttar Pradesh State Road Transport Corporation (hereinafter referred to as "UPSRTC") could not have been proceeded at the instance of State Government by conducting an enquiry by officers of State Government under U.P. Disciplinary Proceedings (Administrative Tribunal) Rules, 1947 and disciplinary authority in UPSRTC cannot act as a rubber stamp to simply pass an order of punishment passed on the enquiry conducted by officers of State Government. It is contended that petitioner was absorbed in UPSRTC and therefore ceased to be governed by provision applicable to the employees of U.P. Government holding ''civil post''.
4. Brief facts to support the above submissions which are not disputed may be referred to as under.
5. The petitioner was appointed as Assistant Booking Clerk in erstwhile U.P. State Government Roadways in the year 1956 and promoted as Booking Clerk in the year 1965. In 1972, UPSRTC was incorporated and established. All the employees working in U.P. State Government Roadways were transferred to UPSRTC. Initial transfer was on deputation till the employees are absorbed in UPSRTC. U.P. State Road Transport Corporation Employees (Other than Officers) Service Regulation, 1981 (hereinafter referred to as "Regulation 1981") came into force on 19.6.1981. Simultaneously U.P. State Roadways Organisation (Abolition of Posts and Absorption of Employees) Rules, 1982 (hereinafter referred to as "1982 Rules") was published on 28.4.1982 for absorption of employees of U.P. State Government Roadways came on deputation to UPSRTC. The aforesaid 1982 Rules came into force on 28.7.1982.
6. The petitioner thus became employee of UPSRTC on 28.7.1982. However, State Government by order dated 25.3.1983 referred departmental enquiry against petitioner to be conducted by Administrative Tribunal-II, U.P. under Rule 4 of U.P. Disciplinary Proceedings (Administrative Tribunal) Rules, 1947 (hereinafter referred to as "1947 Rules"). The Tribunal issued a charge-sheet to the petitioner on 24.5.1983 which was replied by petitioner on 4.7.1983 denying the charges. After holding enquiry, Tribunal vide order dated 8.5.1986 held charges proved and recommended for compulsory retirement, forfeiture of gratuity and salary restricted to the amount of subsistence allowance paid during suspension.
7. It may be noted at this stage during pendency of enquiry before Tribunal, Regional Manager, UPSRTC suspended the petitioner on 31.1.1985. At the initial stage of suspension, petitioner was paid 50% of salary but vide order dated 8.11.1985, salary was enhanced to 3/4th of the pay and later on suspension itself was revoked on 30.8.1986.
8. After receiving Tribunal''s order dated 8.5.1986, the Regional Manager, UPSRTC issued show-cause notice to the petitioner on 8.5.1986 annexing copy of Tribunal dated 8.5.1986 proposing punishment of compulsorily retirement and other punishments. The petitioner submitted his reply and thereafter the impugned order has been passed.
9. Sri Rahul Jain, learned counsel for the petitioner submitted that petitioner ceased to be a Government servant on 28.7.1982 and became an employee of UPSRTC. Thereafter, the Governor had no authority to interfere in the service matter of petitioner and enquiry could not have been referred to the Tribunal under the provisions of 1947 Rules since the aforesaid Rules are not applicable to the employees of Corporation or Company but are confined to the employees of State Government holding a civil post. It is contended that 1947 Rules are applicable only to those employees who are governed by Rules framing power under proviso to Article 309 of Constitution and not to others. Employees of UPSRTC are not holder of civil post and therefore aforesaid Rules are not applicable hence entire enquiry conducted against petitioner is without jurisdiction rendering entire enquiry and impugned order founded thereon illegal. He also contended that since no departmental enquiry has been held against the petitioner by UPSRTC under the rules applicable to its own employees, therefore, impugned order founded on an enquiry held by an authority who had no jurisdiction in the matter, is vitiated in law and void ab initio.
10. Sri Sameer Sharma, learned counsel appearing for UPSRTC did not dispute that erstwhile UP State Roadways ceased when its assets liabilities and employees etc. stood transferred to UPSRTC created u/s 3 of Road Transport Corporation Act, 1950 w.e.f. 1.6.1972. He has also not disputed that petitioner ceased to be a Government employee on 28.7.1982 and became employee of UPSRTC from then. These averments contained in para 5 of the writ petition have been admitted in para 5 of the counter-affidavit.
11. In the circumstances the only question need be adjudicated by this Court, whether Tribunal under 1947 Rules had any jurisdiction to hold enquiry against petitioner.
12. Here in this regard I would prefer to refer Rule 3 and 4 of 1982 Rules which came into force on 28.4.1982 and reads as under:
3. Applicability and overriding effect.--(1) These rules shall apply to the U.P. State Roadways Organisation employees working on deputation with the U.P. State Road Transport Corporation.
(2) They shall have effect notwithstanding anything to the contrary contained in any rules, regulations or order.
4. Option to employees and absorption in Corporation service.--(1) An employee of the U.P. State Roadways Organisation, who was placed on deputation with the Corporation and who does not wish to be absorbed in the service of the Corporation, shall, within 3 months from the notification of these rules in the Gazette, intimate the Secretary to Government in the Transport Department that he does not wish to be so absorbed.
(2) Every other employee who does not give an intimation, in accordance with sub-rule (1), shall be deemed to have exercised his option for absorption in the service of the Corporation.
(3) An employee, who is deemed to have opted for absorption in the service of the Corporation, in accordance with sub-rule (2), shall stand so absorbed with effect from the date of expiry of three months from the date of notification of these rules and his service under the State Government shall, with effect from the same date cease.
13. The consequence of absorption in Rule 4 has been provided in Rule 5 that the relevant posts in U.P. State Roadways organization shall stand abolished. Now the question would be as to whom 1947 Rules are applicable. Sub-rule 3 of Rule 1 of 1947 Rules itself read as under:
They shall apply to all Government servants under the rule-making control of the Governor, and will be applicable to any acts, omissions or conduct arising before the date of commencement of these rules as they are applicable to those arising after that date.
14. Rule 4 of 1947 Rules, which confer power upon Government to refer the matter to the Tribunal also provides that such a reference shall be made in respect to an individual Government servant or class of Government servant. Admittedly, the petitioner having already ceased to be a Government servant w.e.f. 28.7.1982, as admitted by respondents also, ceased to be governed by 1947 Rules and his matter could not have been referred to Tribunal under Rule 4 thereof.
15. That being so, the enquiry conducted against petitioner by Tribunal on a reference made by Government was ex facie illegal and without jurisdiction. It is admitted that no enquiry has been conducted against petitioner by UPSRTC under the rules applicable to the employees of UPSRTC. The impugned order is an order of punishment. It is not disputed that under the rules applicable to employees of Corporation, an order imposing punishment could have been passed only i.e. after holding departmental enquiry after giving opportunity of hearing to the concerned employees in accordance with procedure of enquiry provided in the rules applicable to such employees of UPSRTC and not otherwise.
16. In view of above, the impugned order cannot sustain. The writ petition is allowed. The impugned order dated 30.5.1991 (Annexure 7 to the writ petition) is hereby quashed. However this order shall not preclude the respondents from passing a fresh order in accordance with law after making such enquiry as prescribed in law.
