# Farooque Ahmad v. U.P.S.R.T.C. and another

- **Citation:** (2008) 2 ILRA 671
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2008-05-02
- **Case number:** Civil Misc. Writ Petition No.48643 of 2006
- **Bench:** Sabhajeet Yadav
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/farooque-ahmad-v-u-p-s-r-t-c-and-another-41102
- **Pages:** 6

## Headnote

Constitution of India Art. 226-Judicial
Review-scope
thereof-discussedpetitioner working as conductor carrying
passenger without ticket-investigation
team given signal to stop-but runawayno place and time of enquiry givenalongwith
enquiry
report-No
cause
notice issued-even during enquiry the
most relevant witness-the member of
inspection
team
not
examinedpunishment based on suspension and
speculation-held-can
not
survivedirection issued for reinstatement with
full salary.

Held: Para 9

Now applying the aforestated principle in
given facts and circumstances of the
case I find that respondent Corporation
has not led any evidence in support of
the charges levelled in the charge sheet
against the petitioner, as neither any
member
of
checking
squad
was
examined before inquiry officer and
made out any case against the petitioner
and
thereafter
he
was
given
any
opportunity to repel those charges. The
letter of Sri Bhagirathi Singh, who was
member of the checking squad, was also
not proved by any person before Inquiry
Officer. Even the said letter is taken as
true, even then it cannot be assumed
that since the bus was not stopped on
receipt of signal from checking squad,
therefore, it was carrying passengers
without ticket. In my opinion such fact
could be proved only after getting it
stopped by chasing and checking done
thereafter. But since no such steps were
taken by the checking squad, therefore,
it
cannot
be
assumed
merely
by
suspicion and speculation which cannot
take the place of proof, howsoever
strong such suspicion may be. Therefore,
the petitioner can not be held to be
guilty of the charges on mere suspicion
and speculations without any proof of
the same, accordingly the conclusion
drawn by Disciplinary Authority cannot
be sustained and the impugned order
dated 5.8.2006 is hereby quashed.
Case law discussed:
A.I.R. 1964 SC 364, (2001) 9 SCC 575, (2002)
7 SCC 142

## Text

2 All] Farooque Ahmad V. U.P.S.R.T.C. and another
671
Respondents no.2 and 3 respectively are
quashed.

6. The office is directed to issue a
certified copy of this order to the learned
counsel for the petitioner within 48 hours
on payment of usual charges.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 02.05.2008

BEFORE
THE HON'BLE SABHAJEET YADAV, J.

Civil Misc. Writ Petition No.48643 of 2006

Farooque Ahmad

...Petitioner
Versus
U.P. State Road Transport Corporation
Lucknow and another
...Respondents

Counsel for the Petitioner:
Sri V.K. Singh
Sri S. Shekhar

Counsel for the Respondents:
Sri P.S. Chauhan
Sri B.S. Chauhan

Constitution of India Art. 226-Judicial
Review-scope
thereof-discussedpetitioner working as conductor carrying
passenger without ticket-investigation
team given signal to stop-but runawayno place and time of enquiry givenalongwith
enquiry
report-No
cause
notice issued-even during enquiry the
most relevant witness-the member of
inspection
team
not
examinedpunishment based on suspension and
speculation-held-can
not
survivedirection issued for reinstatement with
full salary.

Held: Para 9

Now applying the aforestated principle in
given facts and circumstances of the
case I find that respondent Corporation
has not led any evidence in support of
the charges levelled in the charge sheet
against the petitioner, as neither any
member
of
checking
squad
was
examined before inquiry officer and
made out any case against the petitioner
and
thereafter
he
was
given
any
opportunity to repel those charges. The
letter of Sri Bhagirathi Singh, who was
member of the checking squad, was also
not proved by any person before Inquiry
Officer. Even the said letter is taken as
true, even then it cannot be assumed
that since the bus was not stopped on
receipt of signal from checking squad,
therefore, it was carrying passengers
without ticket. In my opinion such fact
could be proved only after getting it
stopped by chasing and checking done
thereafter. But since no such steps were
taken by the checking squad, therefore,
it
cannot
be
assumed
merely
by
suspicion and speculation which cannot
take the place of proof, howsoever
strong such suspicion may be. Therefore,
the petitioner can not be held to be
guilty of the charges on mere suspicion
and speculations without any proof of
the same, accordingly the conclusion
drawn by Disciplinary Authority cannot
be sustained and the impugned order
dated 5.8.2006 is hereby quashed.
Case law discussed:
A.I.R. 1964 SC 364, (2001) 9 SCC 575, (2002)
7 SCC 142

(Delivered by Hon'ble Sabhajeet Yadav, J.)

1. By this petition petitioner has
challenged the order dated 5.08.2006
passed by respondent no.2 contained in
Annexure-6 of the writ petition, whereby
the petitioner has been removed from
service while working as bus conductor in
U.P.S.R.T.C.. It is stated that earlier also
the petitioner was removed from service
and he approached this Court by means of
672 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
Writ Petition No.24378 of 2001. While
allowing the writ petition petitioner's
removal from service has been quashed
by this Court vide order dated 3.4.2002.
After
the
aforesaid
judgement
the
petitioner was reinstated in service and
was performing his duties without any
complaint. It is further stated that due to
aforesaid reinstatement of the petitioner
the Assistant Regional Manager Sri Girish
Chandra Sharma was carrying malice
against the petitioner and in furtherance of
the same he again carved out a case
against him and in July 2000 a charge
sheet was served upon the petitioner. The
charges levelled in the said charge sheet
were grounded merely on the fact that the
petitioner was conductor of the bus No.
URY 907 and carrying the passengers in
bus on 6.7.2000 on Orai-Jhansi route. It
was alleged that the said bus was given
signal to stop for checking by checking
squad consisting of Sri Bhagirathi Singh
and Radhey Shyam- Depot Incharge but
the petitioner did not stop the bus,
consequently bus could not be checked by
the checking squad of the Corporation,
therefore, the petitioner is guilty of
misconduct carrying illegal passengers
causing loss to Corporation and flouting
the order of Superior authorities of the
department. In support of the said charges
only material upon which the reliance was
sought for in the charge sheet was letter of
Sri Bhagirathi Singh, who was alleged to
be member of checking squad of the
Corporation. The charge sheet was given
to the petitioner on 22.7.2000 which was
replied by him on 12.8.2000. The copy of
the charge sheet and reply to the charge
sheet are on record as Annexures-3 and 4
of the writ petition. The petitioner has
also filed copy of the said letter of Sri
Bhagirathi Singh as Annexure-5 of the
writ petition. It is further stated that the
Inquiry Officer has considered only
written complaint given by Sri Bhagirathi
Singh, wherein it was alleged that the bus
was tried to be stopped through signal
given by driver of the car of checking
squad but bus did not stop for checking. It
is also stated that after submission of
reply of the charged sheet, the Inquiry
Officer has submitted his report but the
copy of which has never been supplied to
the petitioner. On the basis of said inquiry
report the petitioner has been removed
from service by respondent no.2 vide
order
dated
5.8.2006
contained
in
Annexure-6 of the writ petition. It is
further stated that in the impugned order
incorrect statement of fact has been made
to the effect that inquiry report along with
show cause noticed dated 29.7.2004 was
given to the petitioner. In fact the
petitioner was never given any copy of
the inquiry report and show cause notice
dated 29.7.2004 and reminder dated
13.4.2005.

2. Heard Sri V.K. Singh, learned
Senior Counsel assisted by Sri S. Shekhar
for the petitioner and Sri B.S. Chauhan
holding brief of Sri P.S. Chauhan for
respondents no.1 and 2.

3. It is submitted by learned counsel
for the petitioner that in counter affidavit
the fact that no show cause notice along
with inquiry report was served upon the
petitioner, has been denied but no
material has been placed along with the
counter affidavit to establish that as to
when the said show cause notice along
with the inquiry report was served upon
the petitioner. Therefore, in absence of
necessary material in support of the said
assertion
in
counter
affidavit,
the
submission of learned counsel for the
petitioner has to be accepted. Therefore, I
2 All] Farooque Ahmad V. U.P.S.R.T.C. and another
673
am of the considered opinion that no
show cause notice along with inquiry
report has been served upon the petitioner
and the petitioner has been denied
opportunity to defend his case.

4. Not only this but learned counsel
for the petitioner has further submitted
and demonstrated from the record that
there is nothing to indicate that Inquiry
Officer or Disciplinary Authority has ever
informed the petitioner about the date and
place of holding disciplinary inquiry
against him and the petitioner has ever
appeared before Inquiry Officer during
inquiry. From a perusal of the impugned
order also there is nothing to indicate as to
whether any witness was examined in
support of the charge levelled against the
petitioner before Inquiry Officer and
petitioner has ever been asked to crossexamine any such witness and also
adduce his defence evidence before
Inquiry Officer. According to him, as a
matter of fact, no inquiry at all has been
held against the petitioner. It appears that
inquiry report, if any, has been prepared
by the Inquiry Officer and submitted to
the Disciplinary Authority straightway
without
holding
any
such
inquiry.
Thereupon acting on such inquiry report,
the
Disciplinary
Authority
passed
impugned order without any show cause
notice given to the petitioner along with
the copy of inquiry report. Therefore, it is
a case of total non compliance of
principles of natural justice while holding
disciplinary inquiry against the petitioner,
as such entire disciplinary inquiry should
be held to be non est and nullity. I have
considered the aforesaid submission of
learned counsel for the petitioner and
have also gone through records and I
found that the submissions of learned
counsel for the petitioner have substance
and deserve to be accepted as correct.

5. On merits too, learned counsel for
the petitioner has vehemently urged that
the only charge against the petitioner was
that he did not stop the bus in spite of
signal given for stopping the bus by the
checking squad of the Department,
whereas it is not in dispute that the bus
was driven by the driver and the duty to
stop the bus was on the driver on
receiving the signal from checking squad.
The petitioner, who was conductor of the
bus, was not supposed to receive signal
while sitting at back seat of the bus but
the driver of the bus has been exonerated
from the charges merely by giving a
warning to him and petitioner has been
removed from service on mere suspicion,
which could not take the place of proof or
reasonable doubt against the petitioner in
connection of misconduct alleged to have
been committed by him. In the counter
affidavit
filed
on
behalf
of
the
Corporation aforesaid fact that driver of
the bus has been given merely warning
has not been denied. Besides this, learned
counsel for the petitioner has further
submitted that it was nowhere mentioned
in the findings of Disciplinary Authority
that the petitioner was aware of the said
signal despite thereof he could not direct
the bus driver to stop the bus and there is
no material on record that even in spite of
non stop of the bus, the checking squad
had chased the bus and checked up
thereafter and found some passengers
carrying by the petitioner without any
ticket, therefore, mere suspicion by the
departmental
authorities
that
the
petitioner's bus was not stopped despite
signal given to it by the departmental
authorities, he might have been carrying
the passengers without ticket for some
674 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
monetary gain cannot take the place of
proof or reasonable doubt against the
petitioner.
6. In support of his submission
learned counsel for the petitioner has
placed reliance upon a Constitution Bench
decision of Hon'ble Apex Court rendered
in Union of India Vs. H.C. Goel A.I.R.
1964 SC 364, where in para 23 and 27 of
the decision the Hon'ble Apex Court has
been pleased to observe as under:-

"23.... The only test which we can
legitimately apply in dealing with this part
of respondent's case is, is there any
evidence on which a finding can be made
against the respondent that charge No. 3
was proved against him. In exercising its
jurisdiction under Art.226 on such a
plea, the High Court cannot consider the
question
about
the
sufficiency
or
adequacy of evidence in support of a
particular conclusion. That is a matter
which is within the competence of the
authority which deals with the question;
but the High Court can and must
enquire whether there is any evidence at
all
in
support
of
the
impugned
conclusion. In other words, if the whole
of the evidence led in the enquiry is
accepted as true, does the conclusion
follow that the charge in question is
proved against the respondent? This
approach
will
avoid
weighing
the
evidence. It will take the evidence as it
stands and only examine whether on that
evidence
illegally
the
impugned
conclusion follows or not. Applying this
test, we are inclined to hold that the
respondent's grievance is well founded,
because, in our opinion, the finding
which is implicit in the appellant's order
dismissing the respondent that charge
number 3 is proved against him is based
on no evidence.
27. ..... But the suspicion entertained
by Mr. Rajagopalan cannot, in law, be
treated
as
evidence
against
the
respondent even though there is no doubt
that Mr. Rajagopalan is a straightforward and an honest officer. Though we
full appreciate the anxiety of the appellant
to root out corruption from public service,
we cannot ignore the fact that in carrying
out the said purpose, mere suspicion
should not be allowed to take the place of
proof even in domestic enquires. It may be
that the technical rules which govern
criminal
trials
in
court
may
not
necessarily
apply
to
disciplinary
proceedings,
but
nevertheless,
the
principle that in punishing the guilty
scrupulous care must be taken to see that
the innocent are not punished, applies as
much to regular criminal trials as to
disciplinary enquiries held under the
statutory rules."

7. In this connection it would also be
useful to refer few decisions of Hon'ble
Apex Court which have material bearing
with the question in controversy involved
in the case. In Syed Rahimuddi Vs.
Director General C.S.I.R. and others
(2001) 9 SCC 575 while dealing with the
scope of judicial review in context of
conclusion or finding of fact arrived at in
a departmental inquiry by the Inquiry
Officer and/or Disciplinary Authority in
para 5 of the decision Hon'ble Apex Court
held as under:

"5. It is well settled that a conclusion
or a finding of fact arrived at in a
disciplinary inquiry can be interfered with
by the court only when there are no
materials for the said conclusion, or that
on the materials, the conclusion cannot be
that of a reasonable man. Having
examined the report of the Inquiry
2 All] Farooque Ahmad V. U.P.S.R.T.C. and another
675
Officer, we are unable to accept the
contention of the learned counsel for the
appellant that the findings of the Inquiry
Officer cannot be held to be findings
based on no evidence."

In Sher Bahadur Vs. Union of India
and others (2002) 7 SCC 142 = JT 2002
(6) SC 152, while explaining the meaning
of expression "sufficiency of evidence"
Hon'ble Apex Court in para 7 of the
decision
held
that
"sufficiency
of
evidence" postulates existence of some
evidence which links the charged
officer with the misconduct alleged
against him. Evidence which is neither
relevant
in
a
board
sense
nor
establishes any nexus between the
alleged misconduct and the charged
officer, is no evidence in law. Para 7 is
quoted as under:-
"7. It may be observed that the
expression
"sufficiency
of
evidence"
postulates existence of some evidence
which links the charged officer with the
misconduct
alleged
against
him.
Evidence, however voluminous it may be,
which is neither relevant in a broad sense
nor establishes any nexus between the
alleged misconduct and the charged
officer, is no evidence in law. The mere
fact that the Inquiry Officer has noted in
his report. "in view of oral, documentary
and circumstantial evidence as adduced
in the enquiry", would not in 'principle
satisfy the rule of sufficiency of evidence..
.... "
8. Thus, from the aforestated legal
principles it is clear that in exercising
jurisdiction under Article 226 of the
Constitution, the High Court cannot
consider the question about the sufficiency
or adequacy of evidence in support of a
particular conclusion, that is a matter which
is within the competence of the authority
which deals with the question; but High
Court can and must require whether there is
any evidence at all in support of the
impugned conclusion or on the basis of
such evidence or materials the conclusion
can be that of a reasonable man? In other
words, if whole of the evidence led in the
inquiry is accepted as true, does the
conclusion follow that the charge in
question is proved against delinquent? And
further the expression sufficiency of
evidence postulates existence of some
evidence which links the charged officer
with the misconduct alleged against him.
Evidence however voluminous, it may be,
which is neither relevant in a broad sense
nor establishes any nexus between the
alleged misconduct and charged officer is
no evidence in the eye of law.

9. Now applying the aforestated
principle in given facts and circumstances
of the case I find that respondent
Corporation has not led any evidence in
support of the charges levelled in the charge
sheet against the petitioner, as neither any
member of checking squad was examined
before inquiry officer and made out any
case against the petitioner and thereafter he
was given any opportunity to repel those
charges. The letter of Sri Bhagirathi Singh,
who was member of the checking squad,
was also not proved by any person before
Inquiry Officer. Even the said letter is taken
as true, even then it cannot be assumed that
since the bus was not stopped on receipt of
signal from checking squad, therefore, it
was carrying passengers without ticket. In
my opinion such fact could be proved only
after getting it stopped by chasing and
checking done thereafter. But since no such
steps were taken by the checking squad,
therefore, it cannot be assumed merely by
suspicion and speculation which cannot
take the place of proof, howsoever strong
676 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
such suspicion may be. Therefore, the
petitioner can not be held to be guilty of the
charges on mere suspicion and speculations
without any proof of the same, accordingly
the conclusion drawn by Disciplinary
Authority cannot be sustained and the
impugned order dated 5.8.2006 is hereby
quashed.

10. The respondents are directed to
reinstate the petitioner in service with full
back wages and continuity of service from
the date of removal from service till date of
his actual reinstatement and further continue
him in service and pay his salary unless his
services are dispensed with in accordance
with law.

With the aforesaid observation and
direction, writ petition succeeds and is
allowed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 09.05.2008

BEFORE
THE HON'BLE SUDHIR AGARWAL, J.

Civil Misc. Writ Petition No. 49313 of 2006

Akhilesh Kumar Awasthi
...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri Vijay Gautam
Sri Anand Mishra

Counsel for the Respondents:
S.C.

Fundamental
Rule
54-Reinstatement
without Salary-for suspension-dismissal
to the period of reinstatement-without
opportunity of hearing without show
cause
notice-held-'illegal'-order
withholding salary-passed without show
cause notice-can not sustained.

Held: Para 12 & 13

A bare perusal of the aforesaid provision
makes it clear that before passing an
order depriving the Government servant
of full salary for the period of suspension
or when he was out of employment, a
show cause notice has to be issued to
the concerned Government servant and
only thereafter, the competent authority
may pass appropriate order considering
various aspects.

Admittedly, no such procedure has been
followed, therefore, the impugned order,
to the extent the petitioner has been
denied arrears of salary for the period of
suspension as well as during the period
he was out of employment pursuant to
the dismissal order, which was modified
by the revisional order, is set aside. The
writ petition is, accordingly, allowed
partly.
Case law discussed:
1992 Supple. (1) SCC 222, AIR 1996 SC 326,
JT 1996 (8) SC 550, AIR 2003 SC 1344

(Delivered by Hon'ble Sudhir Agarwal, J.)

1. Heard Sri Vijay Gautam, learned
counsel for the petitioner and learned
Standing Counsel for the respondents.

2. Since counter and rejoinder
affidavits have already been exchanged
between the parties, as requested and
agreed by the learned counsel for the
parties, the matter is heard finally under
the Rules of the Court and is being
decided at this stage.

3. Aggrieved by the order dated
26.5.2004 passed by Inspector General of
Police,
Allahabad
Zone,
Allahabad
modifying punishment imposed upon the
petitioner by converting dismissal from