# U.P.S.R.T.C v. Bulaki Das and another

- **Citation:** (2008) 3 ILRA 743
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2008-07-07
- **Case number:** Civil Misc. Application No. 8617 of 2003
- **Bench:** Yatindra Singh, Shashi Kant Gupta
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/u-p-s-r-t-c-v-bulaki-das-and-another-41148
- **Pages:** 7

## Headnote

(A) Constitution of India, Article 226Service Law-forfeiture of future salaryworkman working as driver allowed the
cleaner to play the bus-which resulted
death
of
3
passengers-disciplinary
authority while passing dismissal order
forfeited
the
balance
salary
of
suspension
period-no
opportunity
of
hearing required in absence of statuary
provision.
744 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
Held: Para 13

The order forfeiting the balance salary
and allowance for the suspension period
is a consequential order. Respondent has
further failed to show that any prejudice
has been caused to him due to non
issuance of notice for forfeiting the
balance salary and allowances of the
suspension
period.
Respondent
has
failed
to
place
any
service
rules
applicable at the relevant time requiring
the
issuance
of
any
notice
before
forfeiting the balance salary of the
employee while passing the order of
termination. In view of the above, we do
not find any illegality in the order of
disciplinary
authority
forfeiting
the
balance salary and allowances of the
suspension period of the respondent.

(B) service Law-Misconduct-delinquent
employee a driver-allowed an unskilled
person to drive the passenger busamounts
to
gross
misconduct
termination held-proper considering his
past conduct also-cannot be interfered
by Tribunal.

Held: Para 16

The omission and misconduct on the part
of the respondent to delegate the
authority to an unskilled cleaner to drive
the bus, is sufficient to hold him guilty
and the act of the respondent is so
grossly negligent that he could not have
been retained as a driver.
Case Law discussed:
AIR 1976 Supreme Court 2490, (1998) 4 SCC
39, AIR 1962 SC 1.

## Text

3 All] U.P.S.R.T.C. V. Bulaki Das and another
743
argument of learned counsel for applicant
is that thereafter the government never
conferred the said power upon C.R.O.
Learned counsel for the applicant has also
relied upon Section 234 of Uttar Pradesh
Land Revenue Act wherein it has been
mentioned that Board may with the
previous sanction of the Government
make rules.

6. In this regard reference may be
made
to
a
Government
Order
dated.07.03.1996
no.1805/1I-(2)
1996
communicated by Kalika Prasad Secretary
Government of Uttar Pradesh to different
authorities including Commissioners and
D.M.
The
first
para
of
the
said
Communication/Government
Order
translated in English reads as under:

"On the above subject, I have been
directed to say that Governor was pleased
to grant permission for change of
designation of those P.C.S. Officers who
were appointed on the post of Chief
Revenue Officer in a District to Chief
Revenue
Officer-Additional
District
Magistrate (land revenue)."

7. From the above it is quite clear
that Chief Revenue Officer have been redesignated as C.R.O.- A.D.M. (Land
Revenue).
This
clearly
amounts
to
conferring the power upon them to hear
the cases under Land Revenue Act. In fact
by virtue of the aforesaid G.O. it is
evident that the main duty of Chief
Revenue Officer is to hear the cases under
Land Revenue Act.

8. In a recent full bench authority in
Civil Misc. writ petition No.40986 of
2001 Brahm Singh Vs. Board of
Revenue
and
others
decided
on
29.4.2008 it has been held that all
Additional Collectors are entitled to
exercise the power of Collector under
Section 14-A of U.P. Land Revenue Act.

9. Accordingly I do not find any
force in the contention of learned counsel
for the applicant in recall/modification
application that Chief Revenue Officer is
not Additional Collector and can not
exercise the powers of Collector in
respect of matters under Section 28 Land
Revenue Act.

10. Recall/Modification application
is therefore dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 07.07.2008

BEFORE
THE HON'BLE YATINDRA SINGH, J.
THE HON'BLE SHASHI KANT GUPTA, J.

Civil Misc. Application No. 8617 of 2003

U.P.S.R.T.C.

...Petitioner
Versus.
Bulaki Das and another ...Respondents

Counsel for the Petitioner:
Sri Samir Sharma

Counsel for the Respondents:
Sri Brij Raj Singh
Sri R.P. Singh
S.C.

(A) Constitution of India, Article 226Service Law-forfeiture of future salaryworkman working as driver allowed the
cleaner to play the bus-which resulted
death
of
3
passengers-disciplinary
authority while passing dismissal order
forfeited
the
balance
salary
of
suspension
period-no
opportunity
of
hearing required in absence of statuary
provision.
744 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
Held: Para 13

The order forfeiting the balance salary
and allowance for the suspension period
is a consequential order. Respondent has
further failed to show that any prejudice
has been caused to him due to non
issuance of notice for forfeiting the
balance salary and allowances of the
suspension
period.
Respondent
has
failed
to
place
any
service
rules
applicable at the relevant time requiring
the
issuance
of
any
notice
before
forfeiting the balance salary of the
employee while passing the order of
termination. In view of the above, we do
not find any illegality in the order of
disciplinary
authority
forfeiting
the
balance salary and allowances of the
suspension period of the respondent.

(B) service Law-Misconduct-delinquent
employee a driver-allowed an unskilled
person to drive the passenger busamounts
to
gross
misconduct
termination held-proper considering his
past conduct also-cannot be interfered
by Tribunal.

Held: Para 16

The omission and misconduct on the part
of the respondent to delegate the
authority to an unskilled cleaner to drive
the bus, is sufficient to hold him guilty
and the act of the respondent is so
grossly negligent that he could not have
been retained as a driver.
Case Law discussed:
AIR 1976 Supreme Court 2490, (1998) 4 SCC
39, AIR 1962 SC 1.

(Delivered by Hon'ble Shashi Kant Gupta, J.)

1. The present writ petition is
directed against the judgment and order
dated 26.9.2002 (Annexure-4 to the writ
petition) passed by U.P. Public Services
Tribunal, Lucknow (in short "Tribunal")
whereby it allowed the reference of Claim
No.403/1989 made by the respondent
no.1 (in short "Respondent") arising out
of the orders dated 4-5-1988 and 1.6.1989
passed by the disciplinary and the
appellate
authority
respectively
terminating the services of the respondent.

Background facts in a nutshell
essentially are as follows:-

2. The respondent was initially
appointed on the post of driver in the
erstwhile U.P. Government Roadways
and on creation of U.P. State Road
Transport
Corporation
(in
short
"Corporation"), he was sent on deputation
with the Corporation. The respondent was
deputed on Corporation bus no.URT
9834, plying on Agra- Bareilly route.
However, on reaching Tundla Bus Station
the respondent allowed the cleaner of a
bus. Kali Charan to drive the bus even
though he was not authorised to make any
such delegation. While driving the bus,
Sri Kali Charan lost control over the bus
and the bus after hitting the tree fell into a
ditch resulting in the death of three
passengers on the spot and serious injuries
to 39 passengers travelling in the bus. The
Corporation suffered a loss of about
rupees one lac as a result of damage
caused to the bus.

3. On the basis of the aforesaid
incident, the respo1dent was placed under
suspension pending the conclusion of the
inquiry and a charge sheet dated 27-61986 was issued against him. A reply was
submitted by the respondent which was
not found satisfactory and after the
completion of the departmental inquiry,
the Inquiry Officer submitted its inquiry
report to the disciplinary authority to the
effect
that
the
charges
of
serious
misconduct stood fully proved against the
respondent. Accordingly, a show cause
3 All] U.P.S.R.T.C. V. Bulaki Das and another
745
notice dated 15-10-1987 along with a
copy of the inquiry report was served on
the respondent, requiring him to show
cause as to why he may be not removed
from service. The disciplinary authority
after considering the reply submitted by
the respondent and perusing the records of
the inquiry was satisfied that it was not in
the interest f the Corporation to retain the
respondent in service and vide order dated
04-5-1988 respondent was terminated
from service.

4.

The
respondent
filed
a
departmental appeal. It was dismissed
vide order dated 1.6.1989. Thereafter
respondent filed a reference of Claim
No.403/4/1989
before
the
Tribunal
challenging the aforesaid orders and the
same was allowed on 26-9-2002 by the
Tribunal holding that:

(i) The
balance
salary
and
the
allowances of the respondent no.1 of
the suspension period were forfeited
without giving any opportunity of
hearing.

(ii) The inquiry has not been conducted
in accordance with law and no
reasonable opportunity was given to
the respondent employee.

5. Aggrieved by and dissatisfied
with the aforesaid judgment and order of
the tribunal, the petitioner has filed the
present writ petition.

6. Learned counsel for the petitioner
has contended that there was neither any
illegality in conducting the disciplinary
inquiry nor in the findings. It was further
contended that reasonable opportunity to
cross examine the departmental witnesses
and to produce evidence in his own
defence was afforded to the respondent
but the respondent himself stated before
the Inquiry Officer that he did not want to
cross examine any witness or produce any
evidence or defence witness and also
refused to give any reason/ justification
for the accident and hence in such
circumstances the conclusion drawn by
the Enquiry officer was just and proper.

7. It was further contended that the
work and conduct of the respondent had
been utterly dissatisfactory as he had
caused
several
accidents
on
earlier
occasions as a driver. Adverse entries had
been recorded in his character roll for
several years. He was also given a
warning and his two years increments
were also stopped on 13-4-1967. On four
other occasions recovery was directed to
be made against the respondent for
causing damage on account of the
accident.

8. It has been further argued that the
tribunal
erroneously
held
that
the
departmental inquiry was not proper on
the ground that no explanation was called
before forfeiting the balance pay and
allowances of the suspension period and
reasonable opportunity was not given to
the respondent. It was further argued that
the
statements
of
all
the
relevant
witnesses were recorded including the
statement of conductor of the bus.

9. On the other hand counsel for the
respondent
has
contended
that
no
reasonable opportunity had been afforded
to the respondent in the departmental
inquiry and the inquiry was neither just
and fair nor the explanation was called
before forfeiting the balance salary and
allowance of the suspension period.
746 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
10. We have heard learned counsels
for the parties and perused the record.

The following points arise for
deciding the case:-

(i) Whether an order for forfeiting the
balance salary and allowances of the
suspension period can be passed
without calling for an explanation by
the
disciplinary
authority
while
passing
the
punishment
order
terminating the services of the
respondent.

(ii) Whether the inquiry resulting in the
termination of the service of the
respondent has been conducted in
accordance with law after affording
reasonable opportunity of hearing to
the respondent.

POINT No.1: FORFEITING THE
BALANCE
SALARY
AND
ALLOWANCES
OF
THE
SUSPENSION PERIOD WITHOUT
CALLING FOR AN EXPLANATION.

11. Respondent was placed under
suspension and after the completion of the
departmental inquiry, the inquiry report
was submitted by the Inquiry Officer
before the disciplinary authority and the
disciplinary authority agreed with the
findings of the Inquiry Officer and passed
the order of termination and forfeited the
balance salary and allowances of the
suspension period.

12. The Hon'ble Apex Court in
"Baldev Raj Guliani Vs. The Punjab &
Haryana High Court and others" (AIR
1976 Supreme Court 2490) has help as
follows:-

'The character of the order of
dismissal and that of the order of
reinstatement in a departmental enquiry
is absolutely different. Suspension is a
step to dismissal and may culminate in
dismissal. When an officer is suspended
no work is taken from him but he does not
cease to be in service. When he is
dismissed the link with the service is
snapped and naturally the order of
suspension merges in dismissal. Nothing
remains to be done about his suspension.
When however, a suspended officer is
reinstated an order which is different in
content
and
quality
from
that
of
suspension takes effect. The suspended
officer, on reinstatement, goes back to
service. A further order may have to be
passed by the authority as to in what
manner the period of suspension will be
treated. That will be, therefore, a distinct
and separate proceedings apart from the
earlier departmental proceeding in which
the order of reinstatement was passed. If
therefore, the order of reinstatement is
set-aside, the officer is bound to revert to
immediate anterior status of suspension."

13. In the present case disciplinary
authority found the respondent guilty and
consequently terminated the service of the
respondent. The suspension order passed
earlier while initiating the disciplinary
proceedings
against
the
respondent
merged with the order of termination
dated 4.5.1988 and the respondent ceased
to be in service and nothing remained to
be done about his suspension. Had the
disciplinary authority exonerated the
respondent then he would further have
had to decide whether the order of
suspension was valid and during the
period it was in force the respondent
could recover arrears of salary. In that
eventuality the decision as to pay the
3 All] U.P.S.R.T.C. V. Bulaki Das and another
747
allowance of the suspension period of the
concerned employee and also whether the
said period shall be treated spent on duty
or not was required to be taken by the
disciplinary authority after giving the
notice to the concerned employee and
calling for his explanation within a
specified period. However, in the present
case respondent has been dismissed and
his link with the service is snapped and
naturally the order of suspension merges
in dismissal. That being so; the balance
pay and allowance could be forfeited
without calling any explanation or issuing
any prior notice to the respondent. The
order forfeiting the balance salary and
allowance for the suspension period is a
consequential order. Respondent has
further failed to show that any prejudice
has been caused to him due to non
issuance of notice for forfeiting the
balance salary and allowances of the
suspension period. Respondent has failed
to place any service rules applicable at the
relevant time requiring the issuance of
any notice before forfeiting the balance
salary of the employee while passing the
order of termination. In view of the
above, we do not find any illegality in the
order of disciplinary authority forfeiting
the balance salary and allowances of the
suspension period of the respondent.

POINT NO. 2: NO REASONABLE
OPPORTUNITY

14. The main plank of the argument
of the counsel for the respondent is with
regard to the alleged violation of principle
of natural justice. It is an admitted fact
that on 27.5.1986, the petitioner was
deputed to ply bus no. URT-9834 on
Agra-
Bareillly
route,
however
on
reaching
Tundla
Bus
Station
the
respondent no.1 unauthorizely allowed
the cleaner Kali Charan to drive the bus
and while Kali Charan was driving the
bus he lost control over the bus and the
bus after hitting the tree, fell into a ditch
resulting in death of three passengers on
the spot and caused serious injuries to 39
passengers. In the said accident the bus
was also badly damaged and corporation
suffered a loss of Rs.1 lac. Since the
respondent was a driver of the bus he
cannot be permitted to delegate his duties
to a third person who is not a driver. The
basic and primary responsibility is of
respondent in permitting Kali Charan
cleaner of a bus to drive the bus. The duty
of driving the bus was delegated by the
respondent to Kalicharan, the cleaner of a
bus, with the knowledge that Kalicharan
was incapable and unauthorized to
perform the duties of a driver. Delegating
the responsibility to another with a
knowledge
that
other
person
is
incompetent, unskilled, unqualified and
incapable to perform his duties properly,
would amount to gross misconduct and in
such a situation even the principles of
Res ipsa loquitur can be applied as it has
been held by Apex Court in Spring
meadows Hospital Vs Harjit Alhuwalia
(1998) 4 SCC 39, wherein the Doctor
delegated the task of injection to an
unqualified nurse.

15. The Apex Court in Gobald
Motor
Service
Ltd.
Vs.
R.M.K.
Veluswami (AIR 1962 SC 1) has held as
follows:-

"An exception to the general rule
that the burden of proof of the alleged
negligence is in the first instance on the
plaintiff occurs wherever the facts already
established are such that the proper and
natural inference immediately arising
from them is that the injury complained of
748 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
was caused by the defendant's negligence,
or where the event charged as negligence
'tells its own story' of negligence on the
part of the defendant, the story so told
being clear and unambiguous. To these
cases the maxim res ipsa loquitur applies.
Where
the
doctrine
applies,
a
presumption of fault is raised against the
defendant, which, if he is to succeed in his
defence, must be overcome by contrary
evidence, the burden on the defendant
being r show how the act complained of
could
reasonably
happen
without
negligence
on
his
part,
therefore,
therefore, there is a duty on the defendant
to exercise care, and the circumstances in
which the injury complained of happened
are such that with the exercise of the
requisite care, no risk would, in the
ordinary course of events ensue, the
burden is in the first instance on the
defendant to disprove his liability. In such
a case, if the injurious agency itself and
the surrounding circumstances are all
entirely within the defendant's control, the
inference is that the defendant is liable."

16. The circumstances established in
this case speak for themselves and
candidly point towards the respondent's
misconduct.
The
omission
and
misconduct on the part of the respondent
to delegate the authority to an unskilled
cleaner to drive the bus, is sufficient to
hold him guilty and the act of the
respondent is so grossly negligent that he
could not have been retained as a driver.

17. Also, the past history of the
respondent does not support his case as it
has specifically been stated in paragraph 6
of the writ petition that even earlier the
respondent caused several accidents on
25-7-1964, 4-7-1970, 20-12-1977 and 275-1986; an adverse entry had been
recorded in his character roll for the years
1965-66, 1966-67 and 1971-72, besides a
warning was also given to him on 11-121965 and his two annual increments were
also stopped on 13-4-1967. Moreover on
four occasions recovery was directed to
be made against the respondent for
causing damages to the Corporation for
the accidents. It is worthwhile to state that
the contents of paragraph 6 of the writ
petition stating the past misconduct of the
respondent have not been denied by the
respondent in his counter affidavit. A bare
perusal of the inquiry report clearly
reveals that respondent himself stated
before the Enquiry Officer that he did not
want to cross examine any witness or
produce any defence witness and also
refused to give any reason/ justification
for the accident and hence in such
circumstances the conclusion drawn by
the Enquiry officer and disciplinary
authority was just and proper. It has also
been stated in paragraph 12 of the petition
that the entire record of the departmental
proceeding was produced before the
Tribunal. The factum of producing the
entire record before the Tribunal is not
denied by the respondent in his counter
affidavit, however, the tribunal without
considering
the
entire
record
of
departmental
proceeding,
chose
to
consider only few paragraphs of the reply
given by the Corporation to the Claim
Petition and skirted the relevant and
central question arose for adjudication i.e.
entrusting illegally the bus to cleaner
Kalicharan for driving. The Tribunal
while passing the impugned order applied
superficial
and
casual
approach
in
reaching to an abrupt conclusion while
holding that proper opportunity was not
afforded.
3 All] U.P.S.R.T.C. V. Smt. Alka and others
749
18. The disciplinary authority,
after setting out the entire facts, agreed
with the findings recorded by the
Inquiry officer and affirmed the same.
In case the appointing authority agrees
with the finding of the Inquiry officer
while passing the order of punishment
it is not necessary to give detailed
reasons, particularly when nothing new
is added in reply to show cause notice
issued by the disciplinary authority.
Disciplinary authority vide order dated
4-5-1988 has clearly stated that the
respondent in reply to the show cause
notice,
has
merely
reiterated
the
averments which were made in reply to
the charge sheet and have added
nothing new in reply to the show cause
notice.

19. The appellate authority has
also held that the respondent in
allowing the bus to be driven by a
cleaner Kalicharan which led to the
death of three persons and causing
injuries to 39 passengers would amount
to a gross misconduct and have further
held that the reasonable opportunity
was given to respondent but he failed
to prove his innocence.

20. The gross misconduct of the
respondent in allowing an unauthorized
person to drive the bus and putting the
lives of a large number of innocent
passengers
in
danger
cannot
be
condoned and he could not have been
permitted
to
continue
in
service,
particularly when he had been found
guilty of committing gross misconduct
on earlier occasions as well.

21. The impugned order passed by
the Tribunal is based on complete
misreading
of
the
case
and
misconception of the legal position
relevant to the matter. The Tribunal has
not recorded any cogent, satisfactory
and convincing reasons to set aside the
order of termination. Bare perusal of
the inquiry report and the order passed
by
the
disciplinary
and
appellate
authority clearly indicates that proper
and reasonable opportunity was granted
to the respondents. In view of the
above, we do not find any illegality in
conducting the inquiry nor in the
findings.

22. No other point has been
pressed.

In view of our conclusions the writ
petition is allowed. The order dated
26.9.2002 passed by the Tribunal is
accordingly quashed. In the facts and
circumstances of this case, there shall
be no order as to costs.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 28.07.2008

BEFORE
THE HON'BLE AMITAVA LALA, J.
THE HON'BLE SHISHIR KUMAR, J.

First Appeal From Order No. 1663 of 2008

U.P.S.R.T.C.

...Appellant
Versus
Smt. Alka and others
 ...Respondents

Counsel for the Appellant:
Sri. J.N. Singh
Sri. S.C. Srivastava
Sri. Manish Kumar Nigam

Counsel for the Respondents:

Workmen's
Compensation
Act
1923Section 4A(3) with Section 30(1)-liability