# U.P. State Road Transport Corporation &Ors v. Rajendra Prasad

- **Citation:** (2019) 1 ILRA 867
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-08-28
- **Case number:** Service Bench No. 36325 of 2018
- **Bench:** Anil Kumar, Saurabh Lavania
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/u-p-state-road-transport-corporation-ors-v-rajendra-prasad-44488
- **Pages:** 11

## Headnote

A. Service Law - Domestic Enquiry - Bus
Conductor/Employee
found
carrying
ticketless passengers - Termination -
Tribunal, allowed the claim on finding -
16
ticketless
passengers
were
not
examined - Held:- Finding of Tribunal is
perverse
-bus
Conductor/employee
failed to plead and state/prove prejudice
caused to him by not producing and
examining other four persons - Nonexamination
of
driver
and
other
members of the inspecting team would
not vitiate the enquiry-

Claimant/respondent being conductor of the
bus was entrusted with the duty to collect
tickets from the passengers and deposit the
same with the Corporation in which he failed.
(Para 20,24,25,26,27,32,34,36,38,39)

Writ Petition Allowed.

Case Law Relied Upon/ Discussed: -

## Text

1 All. U.P. State Road Transport Corporation & Ors. Vs. Rajendra Prasad
867
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 28.08.2019

BEFORE
THE HON'BLE ANIL KUMAR, J.
THE HON'BLE SAURABH LAVANIA, J.

Service Bench No. 36325 of 2018

U.P. State Road Transport Corporation
&Ors. ...Petitioners
Versus
Rajendra Prasad ...Respondent

Counsel for the Petitioners:
Ratnesh Chandra

Counsel for the Respondent:
Mohd. Ali

A. Service Law - Domestic Enquiry - Bus
Conductor/Employee
found
carrying
ticketless passengers - Termination -
Tribunal, allowed the claim on finding -
16
ticketless
passengers
were
not
examined - Held:- Finding of Tribunal is
perverse
-bus
Conductor/employee
failed to plead and state/prove prejudice
caused to him by not producing and
examining other four persons - Nonexamination
of
driver
and
other
members of the inspecting team would
not vitiate the enquiry-

Claimant/respondent being conductor of the
bus was entrusted with the duty to collect
tickets from the passengers and deposit the
same with the Corporation in which he failed.
(Para 20,24,25,26,27,32,34,36,38,39)

Writ Petition Allowed.

Case Law Relied Upon/ Discussed: -
1. Special Appeal No. 33 of 2015 decided on
12.04.2017
(U.P.
State
Road
Transport
Corporation Lucknow & Others v. Sarvesh
Kumar Shukla)

2. Divisional Controller, KSRTC (NWKRTC) v.
A.T. Mane, (2005) 3 SCC 254
3. North West Karnataka Road Transport
Corporation v. H.H. Pujar; (2008) 12 SCC 698

4. Union of India and others. v. Prakash Kumar
Tandon; (2009) 2 SCC 541

5. Suresh Chandra Sharma
v. Rajaswa
Parishad U.P. and others; AIR 1971 Alld. 12
6. Uttarakhand Transport Corporation (earlier
known as UPSRTC) and others v. Sukhveer
Singh; (2018) 1 SCC 231

7. ECIL v. B. Karunakar; (1993) 4 SCC 727

8. Haryana Financial Corpn. v. Kailash Chandra
Ahuja (2008) 9 SCC 31

9. UPSRTC v. Suresh Chand Sharma; (2010) 6
SCC 555

10. Rajasthan State TPT Corporation and another
v. Bajrang Lal, (2014) 4 SCC 693
Writ Petition allowed (E-3)

(Delivered by Hon'ble Saurabh Lavania, J.)

1. Heard learned counsel for the
petitioners
and
Mohd.
Ali,
learned
counsel for the respondent.

2. By means of the present writ petition,
the petitioners have challenged the order dated
05.09.2018, passed by the U.P. Public
Services Tribunal, Lucknow in Claim Petition
No. 214 of 2016 (Rajendra Prasad v. State of
U.P. and others), annexed as Annexure No. 1
to the writ petition.

3. The facts in brief of the present
case are as under:-

4.

Sri
Rajendera
Prasad,
claimant/respondent was the conductor of
Bus bearing Registration No. U.P.53 T
8956 of U.P. Road Transport Corporation
(in short "UPSRTC"), when it was plying
868 INDIAN LAW REPORTS ALLAHABAD SERIES
on Gorakhpur-Sidharth Nagar road. An
inspection was done by the inspecting
team of U.P.S.R.T.C. at around 08:05
A.M. at Jungledih (Farenda). At the time
of inspection, 45 passengers were found
on-board out of which 16 passengers were
found ticketless, although the conductor
of the bus Rajendra Prasad had already
realized the amount for the same from the
passengers. Hence, 16 persons were found
without ticket at the time of inspection
and in this regard an endorsement has
been made in the way-bill.

5. In regard to above said facts, a report
dated 04.06.2012 was submitted by Sri Parvez
Anwar, Assistant Transport Inspector, who was
heading the team of inspection, to the
punishing authority. Thereafter, by an order
dated 05.06.2012, the claimant/respondent was
put under suspension and thereafter, the chargesheet dated 14.06.2012 was also served upon
claimant/respondent. The Assistant Regional
Manager, Deoria was appointed as an Enquiry
Officer
to
conduct
the
enquiry
and
claimant/respondent was given 15 days' time to
submit his reply in regard thereto. Thereafter
the enquiry officer conducted the enquiry
proceedings and submitted the enquiry report
to the punishing authority. On 07.07.2013, the
punishing authority issued a show cause notice
to the petitioner to submit his reply against the
enquiry
report,
to
which
the
claimant/respondent did not submit his reply.
Thereafter, the punishing authority vide order
dated
04.01.2014
removed
the
claimant/respondent from service.

6. Aggrieved by the order dated
04.01.2014,
the
claimant/respondent
preferred a departmental appeal, which
was rejected vide order dated 11.12.2014.
Aggrieved by the order dated 11.12.2014,
a revision was filed and the same was also
dismissed on 14.10.2015.

7. Aggrieved by the punishment
order dated 04.01.2014, appellate order
dated 11.12.2014 and revisional order
dated
14.10.2015,
the
respondentclaimant filed a claim petition No. 214 of
2016 (Rajendera Prasad v. State of U.P. &
others) before the U.P. Public Services
Tribunal, Lucknow (in short "Tribunal").
The Tribunal by means of the order dated
05.09.2018 allowed the claim petition and
set-aside the punishment order dated
04.01.2014,
appellate
order
dated
11.12.2014 and revisional order dated
14.10.2015
with
a
direction
to
respondents-petitioners,
herein,
to
reinstate
the
claimant/respondent
forthwith and also directed that they may
take a decision by way of a speaking
order in respect of the payment of back
wages to the claimant/respondent, herein,
within a period of three months. The
finding recorded by the Tribunal while
allowing the claim petition vide order
dated 05.09.2018 reads as under:-

"orZeku ekeys esa tkap dh dk;Zokgh esa u rks
fcuk fVdV ;kf=;ksa dk dksbZ c;ku gS vkSj u gh cl
ds pkyd dk dksbZ c;ku gSA blds vykok dS'k cSx
dh tkap ds lEcU/k esa dksbZ dFku Hkh ugha gS dsoy
fjiksVZdrkZ ds c;ku ds vk/kkj ij tkap vf/kdkjh
}kjk ;g fu"d"kZ fudkyuk lEHko ugha gS fd
ifjpkyd 1⁄4;kph1⁄2 us ;kf=;ksa ls iSls fy;sA bl rjg
tkap vf/kdkjh }kjk dh x;h tkap vk[;k rdZlaxr
ugha gSA vr% mijksDr ifjfLFkfr;ksa esa gekjs fopkj lsa
tkap vf/kdkjh

}kjk nh x;h tkap vk[;k nwf"kr gS vkSj nwf"kr
tkap vk[;k ds vk/kkj ij ikfjr n.Mkns'k fujLr
fd;s tkus ;ksX; gSA

bl rjg mijksDr foospuk ds vk/kkj ;g Li"V
gS fd tkap dh dk;Zokgh eas tkap vf/kdkjh us u rks
cl ds pkyd dk dksbZ c;ku ugha fy;k ftlls
?kVuk ds le; dk lR;kiu gks ldsA lkFk gh
fujh{kd ny us tks fjiksVZ iszf"kr dh ml ij lHkh
lnL;ksa ds gLrk{kj ugha gS vkSj u gh ;kf=;ksa ds uke
o irs dk mYys[k gSA blds vfrfjDr fuxe }kjk
tkjh ifji= fnukafdr 12-03-1996 esa fn;s x;s
funsZ'kksa dk ikyu ugha fd;k x;kA ,slh n'kk esa tkap
1 All. U.P. State Road Transport Corporation & Ors. Vs. Rajendra Prasad
869
dh dk;Zokgh =qfViw.kZ gSA vr% =qfViw.kZ tkap vk[;k
ds vk/kkj ij ikfjr n.Mkns'k gekjs fopkj ls fu;e
fo:)] rdZ laxr o eq[kfjr u gksus ds dkj.k fujLr
fd;s tkus ;ksX; gSA rn~uqlkj ;kfpdk Lohdkj fd;s
tkus ;ksX; gSA

mijksDr dkj.k ds vk/kkj ij vihyh; vkns'k
o fjohtuy vkns'k Hkh gekjs fopkj ls fujLr fd;s
tkus ;ksX; gSA

vkns'k

;kfpdk Lohdkj dh tkrh gSA vkyksP; vkns'k
fnukad 04-01-2014 1⁄4layXud la0&11⁄2] vihyh;
vkns'k fnukafdr 11-12-2014 1⁄4layXud la0&21⁄2 rFkk
fjohtuy vkns'k fnukafdr 14-10-2015 1⁄4layXud
la0&31⁄2 fujLr fd;s tkrs gSA foi{khx.k dks funsZf'kr
fd;k tkrk gS fd os ;kph dks rRdky lsok esa
iquZLFkkfir djsaA ;kph ds lsok ls i`Fkd fd;s tkus
vkSj iquZLFkkiu fd;s tkus ds chp dh vof/k ds osru
HkRrksa ds lEcU/k esa n.Mkf/kdkjh leqfpr] rdZ laxr
o eq[kfjr vkns'k bl fu.kZ; dh izkfIr ds rhu ekg
ds vUnj ikfjr djuk lqfuf'pr djsaA"

8. Aggrieved by the order dated
05.09.2018, the present writ petition has
been filed by the petitioners-UPSRTC.

9. Sri Abhinava Singh, holding brief
of Sri Ratnesh Chandra, learned counsel
for the petitioners submitted that the main
reason for allowing the claim petition
filed by the claimant/respondent-Rajendra
Prasad is to the effect that during the
course of enquiry, 45 passengers were
found
on-board
out
of
which
16
passengers were found without ticket,
were not examined nor the driver was
examined by the enquiry officer during
the enquiy.

10. Accordingly, it is submitted by
the learned counsel for the petitioners that
the ground related to examination of
passengers taken by the Tribunal for
allowing the claim petition filed by the
claimant/respondent is contrary to the law
laid down by a Division Bench of this Court
vide order dated 12.04.2017 passed in
Special Appeal No. 33 of 2015 (U.P. State
Road Transport Corporation Lucknow &
others Vs. Sarvesh Kumar Shukla) and
Divisional Controller, KSRTC (NWKRTC)
v.. A.T. Mane, (2005) 3 SCC 254. Learned
counsel for the petitioners further submitted
that neither the passenger(s) nor the driver
was required to be examined because as per
the charge-sheet, the witnesses who were
required to be examined, were examined and
cross-examined during the enquiry and the
enquiry officer after considering the entire
material including the version of the
claimant/respondent recorded his findings
and held that charge levelled against the
claimant/respondent found proved.

11. Accordingly, it is submitted by
the learned counsel for the petitioners that
the impugned judgment dated 05.09.2018,
passed by the Tribunal is contrary to law
and is liable to set aside.

12. Sri Mohd. Ali learned counsel for
the claimant/respondent-Rajendra Prasad in
rebuttal submitted that in order to prove that
remaining 16 passengers were found without
ticket and from whom money was alleged to
have been recovered, it was mandatory to
record their statements and in the present case,
admittedly the statements of the passengers
travelling without ticket from whom, the
claimant/respondent-Rajendra Prasad alleged
to have taken money, were not examined. In
view of the same, the finding given by the
Tribunal is perfectly valid.

13. In addition, Mohd. Ali, learned
counsel for the claimant/respondentRajendra Prasad submitted that in the
disciplinary
enquiry,
the
proper
opportunity of cross-examination was not
given to the delinquent.

14. Further submission of the
learned
counsel
for
the
870 INDIAN LAW REPORTS ALLAHABAD SERIES
claimant/respondent is to the effect that
the inspecting team was made of four
persons including Parvez Anwar and
another four persons were not produced
during
the
course
of
enquiry
proceedings to prove the charge, so, the
entire enquiry proceeding is vitiated in
the eye of law, as the same is contrary
to the law settled on the issue of
principles of natural justice.

15. Sri Mohd. Ali, learned counsel
for the claimant/respondent submitted that
Sri Parvez Anwar, Assistant Transport
Inspector, who submitted his inspection
report inter alia stating therein that 16
passengers were found traveling without
ticket at the time of inspection, which was
done on 04.06.2012 and on the basis of
the said report, the claimant/respondent
was charge-sheeted, was not examined
and the claimant/respondent was ordered
to cross-examine him. Thus, enquiry is
vitiated. In this regard, reliance has been
placed on paragraph 11 of the claim
petition filed by the claimant/respondent.
The same reads as under:-

"That the learned Enquiry Officer
did not record any 'Examination-in-chief'
of the prosecution witness Mr. Parvez
Anwar and he directly ordered the
petitioner to cross-examine him. Without
'Examination-in-chief', there was not
occasion for any cross-examination ye the
petitioner was able to prove that
statement
of
passengers
were
not
recorded by the checking team, which was
mandatory."

16. He further submitted that the
punishing authority was himself one of
the
members
of
inspecting
team
consisting of four members and except Sri
Parvez Anwar no one put signature on the
inspection report and as such the
inspection report is vitiated and being so,
the entire action based on the same
including the order passed by the
punishing authority is unsustainable.

17. Accordingly, it is submitted by
Sri Mohd. Ali learned counsel for the
claimant/respondent that there is no
illegality and infirmity in the impugned
judgment passed by the Tribunal and the
writ petition for it lacks merit and is liable
to be dismissed.

18. In order to verify the factual
position, we have also gone through the
original
record
of
the
enquiry
proceedings, which has been submitted by
the
learned
counsel
appearing
for
petitioners-UPSRTC.

19. We have considered the
submission made by the learned counsel
for the parties and perused the record.

20. Firstly, we are dealing with the
finding given by the Tribunal while
allowing the claim petition which is to the
effect that in the present case, 16
passengers/persons, who were found
without ticket at the time of inspection,
were not examined, so the entire action on
the part of the petitioners (respondents
before the Tribunal) is contrary to law and
in contravention to principles of natural
justice and in view thereof, the Tribunal
set-aside the punishment order, appellate
order and revisional order impugned
before it.

21. The Division Bench of this
Court in Special Appeal No. 33 of 2015
decided on 12.04.2017 (U.P. State Road
Transport Corporation Lucknow & Others
v. Sarvesh Kumar Shukla) held as under:-
1 All. U.P. State Road Transport Corporation & Ors. Vs. Rajendra Prasad
871

"In the case of charge of travelling of
passengers without tickets, factum that
passengers were not made witness or
their statements were not recorded, has
not been found to be relevant or a crucial
aspect for valid inquiry. Similarly, when
conductor holding fiduciary relation is
found allowing travelling by passengers
without tickets, it has been held to be a
serious misconduct justifying maximum
penalty of dismissal. Mere fact that
subsequently
fare
was
realized
by
checking squad is not sufficient to
condone misconduct committed by the
person concerned."

22. The Hon'ble Apex Court in the
case of Divisional Controller, KSRTC
(NWKRTC) v. A.T. Mane, (2005) 3 SCC
254 held as under:-

"................question of quantum of
punishment, one should bear in mind the
fact that it is not the amount of money
misappropriated that becomes a primary
factor for awarding punishment, on the
contrary, it is the loss of confidence which
is the primary factor to be taken into
consideration. In our opinion, when a
person is found guilty of misappropriating
corporation's fund, there is nothing wrong
in the corporation losing confidence or
faith in such a person and awarding a
punishment of dismissal."

23. The Hon'ble Apex Court in the
case of North West Karnataka Road
Transport Corporation v. H.H. Pujar;
(2008) 12 SCC 698, after considering the
earlier judgments on the issue related to
examination
of
passengers
during
disciplinary proceedings interfered in the
matter and upheld the order of dismissal.
The relevant paras of the judgment in the
case of North West Karnataka Road
Transport
Corporation
(supra)
are
quoted hereunder for ready reference:-

"9. In State of Haryana v. Rattan
Singh [(1977) 2 SCC 491 : 1977 SCC
(L&S) 298] it was, inter alia, held as
follows: (SCC pp. 493-94, paras 4-5)

"4. It is well settled that in a
domestic
enquiry
the
strict
and
sophisticated rules of evidence under the
Evidence Act may not apply. All materials
which are logically probative for a
prudent mind are permissible. There is no
allergy to hearsay evidence provided it
has reasonable nexus and credibility. It is
true that departmental authorities and
Administrative Tribunals must be careful
in evaluating such material and should
not glibly swallow what is strictly
speaking not relevant under the Evidence
Act. For this proposition it is not
necessary to cite decisions nor textbooks,
although we have been taken through
case law and other authorities by counsel
on both sides. The essence of a judicial
approach is objectivity, exclusion of
extraneous materials or considerations
and observance of rules of natural justice.
Of course, fair play is the basis and if
perversity or arbitrariness, bias or
surrender of independence of judgment
vitiate the conclusions reached, such
finding, even though of a domestic
tribunal, cannot be held good. However,
the courts below misdirected 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 ''residuum' rule to which counsel for
the respondent referred, based upon
certain
passages
from
American
Jurisprudence does not go to that extent
nor does the passage from Halsbury insist
on such rigid requirement. The simple
872 INDIAN LAW REPORTS ALLAHABAD SERIES
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 commonsense
way as men of understanding and worldly
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 certainly 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
relevance to the charge levelled against
the respondent. Therefore, we are unable
to hold that the order is invalid on that
ground.

5. Reliance was placed, as earlier
stated, on the non-compliance with the
departmental instruction that statements of
passengers
should
be
recorded
by
inspectOrs. These are instructions of
prudence, not rules that bind or vitiate in the
violation. In this case, 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. Likewise, the reevaluation of the evidence on the strength of
co-conductor's testimony is a matter not for
the court but for the Administrative Tribunal.
In conclusion, we do not think the courts
below were right in overturning the finding
of the domestic tribunal."

The
view
was
reiterated
in
Karnataka SRTC v. A.T. Mane [(2005) 3
SCC 254 : 2005 SCC (L&S) 407 : (2004)
8 Scale 308] .

10. As rightly contended by the
appellant,
since
fairness
of
the
proceedings was conceded and the
respondent admitted that he had not
issued tickets to 20 passengers, their nonexamination is really of no consequence.

11. In view of what has been stated
by this Court in Rattan Singh case
[(1977) 2 SCC 491 : 1977 SCC (L&S)
298] and in A.T. Mane case [(2005) 3
SCC 254 : 2005 SCC (L&S) 407 : (2004)
8 Scale 308] award of the Labour Court
and impugned order of the High Court
cannot be maintained and are set aside.
The order of dismissal passed by the
Corporation is to operate."

24. In view of the above, we find no
substance in the argument raised by the
learned
counsel
for
the
claimant/respondent to the effect that the
passengers were required to be examined
during enquiry and accordingly, we hold
that
the
finding
with
regard
to
examination of passengers given by the
Tribunal is perverse being contrary to the
Law and being so is unsustainable. It is
also for the reason that the enquiry officer
after examining the witnesses including
claimant/respondent held that the charge
levelled against the claimant/respondent
found proved.

25. The next issue for consideration,
in our view, is to the effect that "whether
in
enquiry,
witnesses
including
claimant/respondent, were examined and
cross-examined or not and whether
opportunity
to
cross-examine
the
department witnesses was given to the
claimant/respondent." On this issue, we
find from the enquiry report (Annexure
No. 6 to the writ petition) that in the
enquiry,
the
dates
i.e.
13.07.2012,
1 All. U.P. State Road Transport Corporation & Ors. Vs. Rajendra Prasad
873
28.08.2012,
29.09.2012,
31.10.2012,
30.01.2013, 15.02.2013 and 28.02.2013
were fixed. Sri Parvez Anwar, Sri Firangi
Prasad and Sri Babu Lala Verma were
examined, as department witnesses, who
were present at the time of inspection of
Bus. Sri Parvez Anwar proved his report.
All the department witnesses were crossexamined by the claimant/respondent.
The claimant/respondent also gave his
statement before the enquiry officer. The
enquiry officer after considering the
material on record, observed as under:-

"bl laca/k esa vkjksih ds fo:) tkjh vkjksi
i=] vkjksih }kjk yxk;s x;s vkjksiksa ds laca/k esa
izLrqr izfrmRrj ,oa mHk; i{kksa ds c;kuksa o i=koyh
ij miyC/k leLr vfHkys[kksa dk Hkfy&Hkkafr
voyksdu ,oa euu djus ij ;g ik;k x;k fd
vkjksih vius vkjksi i= ds mRrj o vius c;ku esa
;g Lohdkj fd;k gS fd fujh{k.k ds le; cl esa 16
;k=h fcuk fVdV ;k=kjr Fks] vkSj mldk ;g dguk
fd og fVdV cukus dh izfdz;k esa Fkk] lR; izrhr
ugha gksrk gS] D;ksafd mDr fcuk fVdV ;k=h xksj[kiqj
,oa ihihxat ls cSBs Fks] vkSj okgu dk fujh{k.k dbZ
LVkist chr tkus ds ckn taxyMhg 1⁄4fjfpax QjsUnk1⁄2
uked LFkku ij fd;k x;k gSA ftlls Li"V gS fd
fujh{k.k ds le; cl esa 16 ;k=h fcuk fVdV FksA"

26. In view of the above, we are of the
view that the enquiry officer conducted the
enquiry as required under the Law and
witnesses
were
examined
and
proper
opportunity was given by the enquiry officer
to the claimant/respondent.

27. In view of the aforesaid, we are
also of the view that non-examination of
driver
and
other
members
of
the
inspecting team would not vitiate the
enquiry.

28. In regard to the argument
raised by the learned counsel for the
claimant/respondent Sri Mohd. Ali to
the effect that the inspecting team was
of four members and inspection report
on
04.06.2012
was
signed
and
submitted only by Sri Parvez Anwar,
Assistant Transport Inspector and the
Punishing
authority
was
also
a
member of the inspecting team and
other members of the inspecting team
were not examined by the enquiry
officer,
so
the
enquiry
proceeding/enquiry report is vitiated.
We put a query that in which
paragraph, the said plea was taken
before the Tribunal. In reply, he
submitted that the said fact has been
stated in paragraph 10 of the claim
petition. Paragraph 10 of the claim
petition reads as under:-

"That as per the report dated
04.06.2012, the checking was conducted
by four persons, but amazingly the report
dated 04.06.2012 bears the signature of a
sole person, namely Sri Parvez Anwar
only. It is not understandable as to why
other members of the checking team did
not put their signature on the report dated
04.06.2012. It appears that there was no
unanimity of mind on the alleged
misconduct of the petitioner, otherwise all
of them would have put their signature on
the report."

29. Needless to say that department
witness Sri Firangi Prasad and Sri Babu
Lal Verma, who were the members of the
inspecting team, were examined during
enquiry, as appears from the enquiry
report.

30. From the perusal of the contents
of para 10 of the claim petition, the
position emerges out is to the effect that
the points, on which learned counsel for
the the claimant/respondent has placed his
argument, were neither pleaded nor
argued before the Tribunal.
874 INDIAN LAW REPORTS ALLAHABAD SERIES

31. In this regard, reliance has been
placed by the learned counsel for the
claimant/respondent in the case of Union
of India and others. v. Prakash Kumar
Tandon; (2009) 2 SCC 541, wherein the
Apex
Court
in
paragraph
15,16,17
observed as under:-

"15. The principles of natural justice
demand
that
an
application
for
summoning a witness by the delinquent
officer should be considered by the
enquiry officer. It was obligatory on the
part of the enquiry officer to pass an
order in the said application. He could
not refuse to consider the same. It is not
for the Railway Administration to contend
that it is for them to consider as to
whether any witness should be examined
by it or not. It was for the enquiry officer
to
take
a
decision
thereupon.
A
disciplinary proceeding must be fairly
conducted. An enquiry officer is a quasijudicial authority. He, therefore, must
perform
his
functions
fairly
and
reasonably which is even otherwise the
requirement of the principles of natural
justice.

16. In M.V. Bijlani v. Union of India
[(2006) 5 SCC 88 : 2006 SCC (L&S) 919]
this Court has held: (SCC p. 95, para 25)

"25. ... Although the charges in a
departmental proceeding are not required
to be proved like a criminal trial i.e.
beyond all reasonable doubt, we cannot
lose sight of the fact that the enquiry
officer performs a quasi-judicial function,
who upon analysing the documents must
arrive at a conclusion that there had been
a preponderance of probability to prove
the charges on the basis of materials on
record. While doing so, he cannot take
into consideration any irrelevant fact. He
cannot refuse to consider the relevant
facts. He cannot shift the burden of proof.
He cannot reject the relevant testimony of
the witnesses only on the basis of
surmises and conjectures. He cannot
enquire into the allegations with which
the delinquent officer had not been
charged with."

17. If the disciplinary proceedings
have not been fairly conducted, an
inference
can
be
drawn
that
the
delinquent
officer
was
prejudiced
thereby."

32. From the aforesaid judgment, the
claimant/respondent can't derive any
benefit because as per settled principle of
law, the claimant/respondent was required
to specifically plead and state/prove that
what prejudice has been caused to him by
not producing and examining other four
persons and as per the admitted facts,
there is no pleading in this regard before
the Tribunal. In this regard, we would like
to refer the judgment of the Division
Bench of this Court in the case of Suresh
Chandra Sharma v. Rajaswa Parishad
U.P. and others; AIR 1971 Alld. 122,
wherein this Court has observed as
under:-

"23. The submission cannot be accepted
for several reasons. No such plea or point has
been taken in the writ petition. If the
petitioners were serious in pressing this point
they should have amended their writ petition.
They should have filed a copy of the
Notification by which five years' service
qualification was prescribed. They should
have taken the point expressly so that the
respondents may have had an opportunity to
explain the reasons and the background for
laying down this qualification. The petitioners
cannot legitimately pick out a sentence from
the counter-affidavit and make a point out of
it."
1 All. U.P. State Road Transport Corporation & Ors. Vs. Rajendra Prasad
875

33. The Hon'ble Supreme Court in
the case of Uttarakhand Transport
Corporation (earlier known as UPSRTC)
and others v. Sukhveer Singh; (2018) 1
SCC 231, wherein the Lordship of the
Supreme Court after considering the
judgment rendered in the case of ECIL v.
B. Karunakar; (1993) 4 SCC 727,
Haryana Financial Corpn. v. Kailash
Chandra Ahuja; (2008) 9 SCC 31 as well
as UPSRTC v. Suresh Chand Sharma;
(2010) 6 SCC 555 held as under:-

"8. In ECIL v. B. Karunakar &Ors.
this Court, while considering the effect on
the order of punishment when the report
of the inquiry officer was not furnished to
the employee and the relief to which the
delinquent employee is entitled, held as
under:

"30... (v)??..When the employee is
dismissed or removed from service and
the inquiry is set aside because the report
is not furnished to him, in some cases the
non-furnishing of the report may have
prejudiced him gravely while in other
cases it may have made no difference to
the ultimate punishment awarded to him.
Hence to direct reinstatement of the
employee with back wages in all cases is
to reduce the rules of justice to a
mechanical
ritual.
The
theory
of
reasonable opportunity and the principles
of natural justice have been evolved to
uphold the rule of law and to assist the
individual to vindicate his just rights.
They are not incantations to be invoked
nor rites to be performed on all and
sundry occasions. Whether in fact,
prejudice has been caused to the
employee or not on account of the denial
to him of the report, has to be considered
on the facts and circumstances of each
case. Where, therefore, even after the
furnishing of the report, no different
consequence would have followed, it
would be a perversion of justice to permit
the employee to resume duty and to get all
the consequential benefits. It amounts to
rewarding the dishonest and the guilty
and thus to stretching the concept of
justice to illogical and exasperating
limits. It amounts to an "unnatural
expansion of natural justice" which in
itself is antithetical to justice."

9. The question of the relief to be
granted in cases where the report of the
inquiry officer was not supplied to the
delinquent
employee
came
up
for
consideration of this Court in Haryana
Financial Corpn. v. Kailash Chandra
Ahuja in which it was held as follows:

"21. From the ratio laid down in B.
Karunakar [(1993) 4 SCC 727] it is
explicitly clear that the doctrine of natural
justice requires supply of a copy of the
inquiry officer's report to the delinquent if
such inquiry officer is other than the
disciplinary authority. It is also clear that
non-supply of report of the inquiry officer is
in the breach of natural justice. But it is
equally clear that failure to supply a report
of the inquiry officer to the delinquent
employee would not ipso facto result in the
proceedings being declared null and void
and the order of punishment non est and
ineffective. It is for the delinquent employee
to plead and prove that non-supply of such
report had caused prejudice and resulted in
miscarriage of justice. If he is unable to
satisfy the court on that point, the order of
punishment cannot automatically be set
aside.

After a detailed examination of the
law on the subject, this Court concluded
as follows:

44. From the aforesaid decisions, it
is clear that though supply of report of the
inquiry officer is part and parcel of
natural justice and must be furnished to
the delinquent employee, failure to do so
876 INDIAN LAW REPORTS ALLAHABAD SERIES
would
not
automatically
result
in
quashing or setting aside of the order or
the order being declared null and void.
For that, the delinquent employee has to
show "prejudice". Unless he is able to
show that non-supply of report of the
inquiry officer has resulted in prejudice
or miscarriage of justice, an order of
punishment cannot be held to be vitiated.
And whether prejudice had been caused
to the delinquent employee depends upon
the facts and circumstances of each case
and no rule of universal application can
be laid down.

10. It is clear from the above that
mere non-supply of the inquiry report
does not automatically warrant reinstatement of the delinquent employee. It
is incumbent upon onthe delinquent
employee to plead and prove that he
suffered a serious prejudice due to the
non-supply of the inquiry report. We have
examined the writ petition filed by the
Respondent and we find no pleading
regarding any prejudice caused to the
respondent by the non-supply of the
inquiry report prior to the issuance of the
show cause notice. The respondent had
ample opportunity to submit his version
after perusing the report of the inquiry
officer. The respondent utilised the
opportunity of placing his response to the
inquiry report before the disciplinary
authority. The High Court committed an
error in allowing the writ petition filed by
the
respondent
without
examining
whether any prejudice was caused to the
delinquent employee by the supply of the
inquiry officer's report along with the
show cause notice. We are satisfied that
there was no prejudice caused to the
respondent by the supply of the report of
the inquiry officer along with the show
cause notice. Hence, no useful purpose
will be served by a remand to the court
below to examine the point of prejudice."

34. In addition to the above said
facts, from the original record, the
position which emerges out is to the effect
that the inspection report was prepared
and signed by Parvez Anwar, Assitant
Transport Inspector and he was examined
and cross-examined in the enquiry and
two other members of the inspecting team
were also examined and cross-examined
in the enquiry.

35. Keeping in view the aforesaid,
we are of the view that the submission of
the
learned
counsel
for
the
claimant/respondent on the aspect of
examination and cross-examination of all
the members of the inspecting team has
no force, as such liable to be rejected.

36. Further, in the present case,
claimant/respondent-Rajendra Prasad is a
conductor of the bus and he was entrusted
with the duty to collect the ticket from the
passengers travelling in the bus and
deposit the same with the Corporation
however in the present case, from the
material on record, the position which
emerges out is to the effect that he
collected
the
fair
from
16
passengers/persons but did not deposit the
same.

37. The Hon'ble Apex in the case of
Rajasthan State TPT Corporation and
another v. Bajrang Lal, (2014) 4 SCC
693, observed as under:-

"21. As regards the question of
disproportionate
punishment
is
concerned, the issue is no more res
integra. In U.P. SRTC v. Suresh Chand
Sharma [(2010) 6 SCC 555 : (2010) 2
1 All. Nadeem Ahmad Vs. State of U.P.
877
SCC (L&S) 239] , it was held as under:
(SCC p. 561, para 22)

"22.
In
Municipal
Committee,
Bahadurgarh v. Krishnan Behari [(1996)
2 SCC 714 : 1996 SCC (L&S) 539 :
(1996) 33 ATC 238] this Court held as
under: (SCC p. 715, para 4)

''4. ... In a case of such natureindeed, in cases involving corruptionthere cannot be any other punishment
than dismissal. Any sympathy shown in
such cases is totally uncalled for and
opposed to public interest. The amount
misappropriated may be small or large; it
is the act of misappropriation that is
relevant.'

Similar view has been reiterated by this
Court in Ruston & Hornsby (I) Ltd. v. T.B.
Kadam [(1976) 3 SCC 71 : 1976 SCC (L&S)
381] , U.P. SRTC v. Basudeo Chaudhary
[(1997) 11 SCC 370 : 1998 SCC (L&S) 155] ,
Janatha Bazar (South Kanara Central Coop.
Wholesale Stores Ltd.) v. Sahakari Noukarara
Sangha [(2000) 7 SCC 517 : 2000 SCC
(L&S) 962] , Karnataka SRTC v. B.S.
Hullikatti [(2001) 2 SCC 574 : 2001 SCC
(L&S) 469] and Rajasthan SRTC v.
Ghanshyam Sharma [(2002) 10 SCC 330 :
2003 SCC (L&S) 714] ."

22. In view of the above, the
contention raised on behalf of the
respondent employee, that the punishment
of
removal
from
service
is
disproportionate to the delinquency is not
worth acceptance. The only punishment in
case of the proved case of corruption is
dismissal from service."

38. Keeping in view the aforesaid
facts, we are of the view that the order
dated 05.09.2018, passed by the U.P.
Public Services Tribunal, Lucknow in
Claim Petition No. 214 of 2016 (Rajendra
Prasad v. State of U.P. and others) is
contrary to law and is liable to be set
aside.

39. Resultantly, the writ petition is
allowed. The judgment and order dated
05.09.2012, passed by the Tribunal is set
aside. No order as to costs.
-----------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 04.09.2019

BEFORE
THE HON'BLE ABDUL MOIN, J.

Service Single No. 812 of 2015

Nadeem Ahmad.... ...Petitioner
Versus
State of U.P. ...Respondent

Counsel for the Petitioner:
Rajeiu Kumar Tripathi

Counsel for the Respondent:
C.S.C., Shivam Sharma

A. Once a candidate willingly participates
in the examination then he cannot be
allowed to challenge the same after he
has been declared failed in the said
examination.
Departmental examination for Class III post of
Junior Assistant-Petitioner claims to have
participated in the typing test but allegedly no
videography carried out as provided in G.O
dated 19.08.2014 - Petitioner appeared in
written examination and viva-voce- Petitioner
was not selected- contention that a selection
process can also be challenged by a failed
candidate despite having participated in the
examination.
The
very
conduct
of
the
petitioner in waiting for the result to be
declared and after he having been declared as
failed, submitting a complaint subsequent
thereto itself indicates that the petitioner all
along was perfectly satisfied with the selection
process-No averment of violation of the
service rules or Rule 8 of the Rules, 2001