# UPSRTC Etawah v. State of U.P. & Ors

- **Citation:** (2020) 2 ILRA 564
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-01-14
- **Case number:** Writ C No. 62221 of 2012
- **Bench:** Manoj Kumar Gupta
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/upsrtc-etawah-v-state-of-u-p-ors-45710
- **Pages:** 5

## Headnote

C.S.C., Sri Ranjeet Kumar Mishra

A. Departmental enquiry - - employee found
guilty - hence removed - award made against
the petitioner- right of the petitioner -
opportunity to provide counter evidences,
violated - order of the respondent quashed -
award
to
be
made
after
providing
an
opportunity of hearing.

Held,
The
Petitioner-Corporation
(U.P.S.R.T.C.), having already reserved it's
right to provide for counter evidence in case of
a disciplinary enquiry finding them at fault. The
petitioner was deprived of any such opportunity
and the respondents in a hasty manner
proceeded to pass the impugned order which
stands as a manifest error of law. Hence, the
impugned award cannot be sustained and is
hereby quashed. The matter is remitted back to
the Tribunal for deciding the same afresh in
accordance with law in the light of the
observations made in the judgement.

Cases cited

## Text

564 INDIAN LAW REPORTS ALLAHABAD SERIES
1959 read with Arms Rules, 2016 before
the Licencing Authority, along with a
certified copy of this Judgment, if so
desires, to have the arm licence. If any
such application is filed before the
licencing authority within a period of 30
days, the same shall be considered and
decided expeditiously by the licencing
authority strictly in accordance with law
but the licencing authority shall not refuse
the arm licence on the ground of the
impugned orders which have been quashed
by this judgment.

39. Writ petition is allowed. No
orders as to costs.
----------
(2020)02ILR A564

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 14.01.2020

BEFORE
THE HON'BLE MANOJ KUMAR GUPTA, J.

Writ C No. 62221 of 2012

UPSRTC Etawah ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri M.M. Sahai

Counsel for the Respondents:
C.S.C., Sri Ranjeet Kumar Mishra

A. Departmental enquiry - - employee found
guilty - hence removed - award made against
the petitioner- right of the petitioner -
opportunity to provide counter evidences,
violated - order of the respondent quashed -
award
to
be
made
after
providing
an
opportunity of hearing.

Held,
The
Petitioner-Corporation
(U.P.S.R.T.C.), having already reserved it's
right to provide for counter evidence in case of
a disciplinary enquiry finding them at fault. The
petitioner was deprived of any such opportunity
and the respondents in a hasty manner
proceeded to pass the impugned order which
stands as a manifest error of law. Hence, the
impugned award cannot be sustained and is
hereby quashed. The matter is remitted back to
the Tribunal for deciding the same afresh in
accordance with law in the light of the
observations made in the judgement.

Cases cited

1. Delhi Cloth & General Mills Co. v. Ludh Budh
Singh, 1972 (3) SCR 29.

2. Shankar Chakravarti v. Britannia Biscuit Co.
Ltd. and Another, AIR 1979 SC.

3. Kurukshetra University v. Prithvi Singh, AIR
2018 SC 973.

(Delivered by Hon'ble Manoj Kumar
Gupta, J.)

1. The instant petition is directed
against the award dated 12.12.2011 passed
by Industrial Tribunal (3) U.P., Kanpur on
a reference made to it under the U.P.
Industrial
Disputes
Act,
1947.
The
reference was whether the termination of
service of Babu Ram, employee of the
petitioner-Corporation on 28.11.2002 was
proper and valid and if not, the relief to
which the workman was entitled to. The
reference has been answered in favour of
the workman. As the workman had died on
17.10.2014 i.e., during pendency of the
proceedings, therefore, he has been given
relief
of
continuity
in
service
till
17.10.2004 after holding the removal order
dated 28.11.2002 to be illegal. The
petitioner-Corporation has been directed to
pay full back wages till the date of death
of the workman.

2. The facts in brief are that Babu
Ram (now represented by his son,
2 All. UPSRTC Etawah Vs. State of U.P. & Ors.
565
respondent No.3), was working as driver
with the petitioner-Corporation. While he
was
driving
Bus
No.UP-75A/3279
belonging to the petitioner-Corporation, it
met with an accident on Agra-Tundla
Highway. In the said accident, one
Awdhesh Kumar Yadav died. In a claim
petition filed before the Motor Accident
Claims Tribunal, by heirs and legal
representatives of Awdhesh Kumar Yadav
bearing No.108 of 1996 against the
petitioner-Corporation, in which Babu
Ram was arrayed as respondent No.2, it
was held that the accident was an outcome
of rash and negligent driving of the bus by
Babu Ram and not any contributory
negligence of the deceased. In sequel
thereto, the petitioner-Corporation initiated
departmental enquiry against Babu Ram.
Babu Ram participated in the disciplinary
enquiry. Ultimately, the enquiry officer
submitted his report opining that Babu
Ram was not responsible for the accident.
The Regional Manager, who is the
disciplinary authority, did not agree with
the enquiry officer. He issued a show
cause notice dated 30.1.2002 to Babu Ram
stating his disagreement with the report of
the enquiry officer while placing reliance
on the judgement of Motor Accident
Claims Tribunal. He was required to show
cause as to why the loss caused to the
Corporation as a result of rash and
negligent driving be not recovered from
him and why his services be not dispensed
with. Babu Ram replied to the said notice
on 27.5.2002. The Regional Manager after
considering the enquiry report and the
reply furnished by Babu Ram to the show
cause notice and other evidence held Babu
Ram guilty of the charges framed against
him and directed for recovery of a sum of
Rs.2,34,000/- from him and also for his
removal from service. Babu Ram being
aggrieved thereby sought reference of the
dispute to the Industrial Tribunal and in
pursuance whereof the impugned award
was passed.

3. The Tribunal has held that the
departmental
enquiry
held
by
the
Corporation was in violation of principles
of natural justice in as much as the show
cause
notice
issued
to
Babu
Ram
disagreeing with the recommendations
made by the enquiry officer does not
contain any reason. According to the
Tribunal, the reliance placed upon the
award of the Motor Accident Claims
Tribunal in disagreeing with the report of
the enquiry officer was not a valid reason,
as the said award was very much in
existence
when
the
enquiry
officer
submitted his report. The show cause
notice
should
have
contained
other
reasons. It has further been held that
before inflicting major punishment, Babu
Ram should have been given opportunity
to submit his defence in writing and lead
oral evidence but which was not granted to
him and consequently there was violation
of principles of natural justice. The order
of removal, was therefore, held to be
illegal and the reference answered in
favour of the workman.

4. Learned counsel for the petitioner
submitted that the findings recorded by the
Tribunal are wholly illegal and perverse. It
is pointed out that the show cause notice
issued to Babu Ram on 30.1.2002 by the
disciplinary authority contained specific
reason to the effect that the court in its
award found him guilty of rash and
negligent driving. It is submitted that the
finding recorded by the Tribunal that the
show cause notice does not disclose any
reason for disagreement with the opinion
of the enquiry officer is thus wholly
perverse and against the record. His
566 INDIAN LAW REPORTS ALLAHABAD SERIES
further submission is that at the stage of
second
show
cause
notice
against
proposed
punishment,
there
is
no
requirement of permitting the delinquent
to lead oral evidence. Thus the view taken
by the Tribunal is manifestly illegal. It is
also urged that the petitioner-Corporation
in paragraph 17 of the written statement
reserved its right to prove charges before
the Tribunal in case any fault is found with
the
departmental
enquiry.
Even
if
disciplinary
enquiry
held
by
the
Corporation
was
discarded
by
the
Tribunal,
it
ought
to
have
given
opportunity to the petitioners to lead
evidence to prove the charge but in great
haste it proceeded to pass the impugned
award without affording such opportunity.

5. Per contra, learned counsel for
respondent
No.3
submitted
that
the
departmental enquiry was initiated by the
petitioner-Corporation almost three years
after the accident took place. He further
submitted that the enquiry officer had
absolved Babu Ram of the charges
levelled against him and consequently
order
of
removal
passed
by
the
disciplinary authority was wholly illegal.
He further submitted that the findings
recorded by the Tribunal in relation to
violation of principles of natural justice are
findings of facts.

6. I have considered the submissions
of learned counsel for the parties and
perused the record.

7. The disciplinary authority, after
receipt of enquiry report given by the
enquiry officer admittedly issued show
cause notice dated 30.1.2002 to Babu
Ram. The show cause notice specifically
records that he is in disagreement with the
opinion of the enquiry officer. The reason
being that the Motor Accident Claims
Tribunal in its award had found him guilty
of rash and negligent driving. Babu Ram
was also called upon to show cause as to
why he should not be removed from
service and why the loss caused to the
Corporation to the tune of Rs.2,34,000/- be
not recovered from him. It was followed
by another notice dated 6.5.2002 in which
also his explanation against proposed
punishment was called for. The notice
dated
30.1.2002
specifically
contains
reason
for
not
agreeing
with
the
recommendation made by the enquiry
officer. The delinquent was thus fully
aware of the fact that the disciplinary
authority was not in agreement with the
recommendation made by the enquiry
officer
and
also
the
reason
for
disagreement. This also is the object of
issuance of show cause notice when the
disciplinary authority is in disagreement
with the recommendation made by the
enquiry officer. Such requirement stands
fully achieved by the show cause notice
issued to Babu Ram. The mere fact that
the material, i.e. the award of the Motor
Accident Claims Tribunal relying on
which
the
disciplinary
officer
had
disagreed with the recommendation made
by the enquiry officer, was also available
at the stage enquiry officer submitted his
report, would not preclude the disciplinary
authority to place reliance on such
material. Moreover, there is no legal
requirement that at the stage of second
show cause notice against proposed
punishment, any fresh enquiry be held by
permitting the delinquent to lead oral
evidence, as observed by the Tribunal.

8. Thus on both scores, I am of the
considered onion that the findings returned
by the Tribunal in relation to violation of
principles of natural justice are not
2 All. UPSRTC Etawah Vs. State of U.P. & Ors.
567
sustainable in law. Moreover, even if the
disciplinary enquiry was found to be
vitiated on the ground of violation of
principles of natural justice, it is now well
settled that where the employer has
reserved its right to prove the charges
before the Tribunal, the Tribunal is bound
to give opportunity to the employer to lead
evidence. The legal position in this regard
was settled by the Supreme Court in Delhi
Cloth & General Mills Co. v. Ludh
Budh Singh, 1972 (3) SCR 29 by holding
as follows :-

"(4) When a domestic enquiry
has been held by the management and the
management relies on the same, it is open
to the latter to request the Tribunal to try
the validity of the domestic enquiry as a
preliminary issue and also ask for an
opportunity to adduce evidence before the
Tribunal, if the finding on the preliminary
issue is against the management. However
elaborate and cumbersome the procedure
may be, under such circumstances, it is
open to the Tribunal to deal, in the first
instance, as a preliminary issue the
validity of the domestic enquiry. If its
finding on the preliminary issue is in
favour of the management, then no
additional evidence need be cited by the
management. But, if the finding on the
preliminary
issue
is
against
the
management, the Tribunal will have to
give the employer an opportunity to cite
additional evidence and also give a similar
opportunity to the employee to lead
evidence contra, as the request to adduce
evidence
had
been
made
by
the
management to the Tribunal during the
course of the proceedings and before the
trial has come to an end. When the
preliminary issue is decided against the
management and the latter leads evidence
before the Tribunal, the position, under
such circumstances, will be, that the
management is deprived of the benefit of
having the finding of the domestic
Tribunal being accepted as prima facie
proof of the alleged misconduct. On the
other hand, the management will have to
prove, by adducing proper evidence, that
the workman is guilty of misconduct and
that the action taken by it is proper. It will
not be just and fair either to the
management or to the workman that the
Tribunal should refuse to take evidence
and thereby ask the management to make
a further application, after holding a
proper enquiry, and deprive the workman
of the benefit of the Tribunal itself being
satisfied, on evidence adduced before it,
that he was or was not guilty of the alleged
misconduct.

(5) The management has got a
right to attempt to sustain its order by
adducing independent evidence before the
Tribunal. But the management should
avail itself of the said opportunity by
making a suitable request to the Tribunal
before the proceedings are closed. If no
such opportunity has been availed of, or
asked for by the management, before the
proceedings are closed, the employer can
make no grievance that the Tribunal did
not provide such an opportunity. The
Tribunal will have before it only the
enquiry proceedings and it has to decide
whether the proceedings have been held
properly and the findings recorded therein
are also proper.

(6) If the employer relies only on
the domestic enquiry and does not
simultaneously lead additional evidence or
ask
for
an opportunity during
the
pendency of the proceedings to adduce
such evidence, the duty of the Tribunal is
only to consider the validity of the
domestic enquiry as well as the finding
recorded therein and decide the matter. If
568 INDIAN LAW REPORTS ALLAHABAD SERIES
the Tribunal decides that the domestic
enquiry has not been held properly, it is
not its function to invite suo motu the
employer to adduce evidence before it to
justify the action taken by it."

9. The above principles of law was
reiterated with approval in Shankar
Chakravarti v. Britannia Biscuit Co.
Ltd. and Another, AIR 1979 SC 1653 by
a three Judges' Bench of the Supreme
Court in following words :-

".....After an exhaustive review of
the decisions bearing on the question and
affirming the ratio in R.K. Jain's case
(1972 Lab IC 13) this Court extracted the
emerging principles from the review of
decisions. Propositions 4, 5 and 6 would
be relevant for the present discussion."

10. In a recent judgement of the
Supreme
Court
in
Kurukshetra
University v. Prithvi Singh, AIR 2018
SC 973, the Supreme Court did not
approve the approach of the Labour Court
where it proceeded to answer the reference
in favour of the workman, after holding
that the departmental enquiry stood
vitiated on account of violation of
principles of natural justice without
granting the employer opportunity to lead
evidence to prove the charges. The
relevant
observations
made
by
the
Supreme Court are extracted below :-

"24. We are constrained to
observe that first, the Labour Court
committed an error in not framing a
"preliminary issue" for deciding the
legality
of
domestic
enquiry
and
second, having found fault in the
domestic inquiry committed another
error when it did not allow the
appellant to lead independent evidence
to prove the misconduct/ charge on
merits and straightaway proceeded to
hold that it was a case of illegal
retrenchment
and
hence
the
respondents' termination is bad in law.

31. The Labour Court will
now afford the appellant (employer) an
opportunity to lead evidence to prove
the misconduct alleged by them in the
written
statement
against
the
respondent and depending upon the
findings, which the Labour Court
would
record
on
the
issue
of
misconduct, the issue of termination
would be decided in the light of what
we have observed supra."

11. In the instant case also, albeit the
petitioner-Corporation having reserved its
right to prove the charges by leading
evidence before the Tribunal in case the
disciplinary enquiry was found to be
vitiated, no such opportunity was given to
the petitioner-Corporation, but in great haste
it straight away proceeded to allow the
reference resulting in manifest error of law.

12. For all the reasons mentioned
above, the impugned award cannot be
sustained and is hereby quashed. The matter
is remitted back to the Tribunal for deciding
the same afresh in accordance with law in
the light of the observations made above.

13. The petition stands allowed
accordingly.
----------

(2020)02ILR A568

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 28.01.2020

BEFORE
THE HON'BLE ASHOK KUMAR, J.