# Vijay Prakash Mishra v. Regional Manager, U.P.S.R.T.C. & Ors

- **Citation:** (2016) 6 ILRA 256
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2016-06-09
- **Bench:** Dr. Devendra Kumar Arora
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/vijay-prakash-mishra-v-regional-manager-u-p-s-r-t-c-ors-44062
- **Pages:** 7

## Text

256 INDIAN LAW REPORTS ALLAHABAD SERIES

32. In view of the above detailed discussions, the judgments which have been relied upon
by the learned Counsel for the petitioner are not applicable under the facts and circumstances of the
case.

33. The writ petition lacks merits and is, accordingly, dismissed. Costs easy.
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ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 09.06.2016

BEFORE

THE HON'BLE DR. DEVENDRA KUMAR ARORA, J.

Service Single/Writ Petition No.- 1879 Of 1999

Vijay Prakash Mishra ...Petitioner
Versus
Regional Manager, U.P.S.R.T.C. & Ors. ...Opposite Parties

Petitioner was a Bus Conductor under UPSRTC Akbarpur, District Ambedkar Nagar. the petitioner was placed
under suspension vide order dated 16.12.1996 and a charge sheet was served upon the petitioner on
31.1.1997. The main charge against the petitioner was that he was carrying all the 36 passengers without
tickets in the Vehicle No. UP-42/2470 on 14.12.1996 thus acted against the order and direction of the
department; his conduct was against the Service Rules and amounts to dereliction of duty. Petitioner was
removed vide order dated 28.5.1998 passed by the Assistant Regional Manager upon which he filed appeal
before the Regional Manager, which was also dismissed vide order dated 12.3.1999.

Court observed that any punishment awarded on the basis of an inquiry not conducted in accordance with the
inquiry rules meant for that very purposes is unsustainable in the eye of law. It may be added that the
procedure prescribed under the inquiry rules for imposing major penalty is mandatory in nature and unless
those procedures are followed, any out come inferred thereon will be of no avail unless the charges are so
glaring and unrefutable which does not require any proof.

Court held that there no hesitation in saying that the inquiry has been conducted in utter disregard to the
principles of natural justice. Since the impugned order has been passed on the basis of the inquiry report,
which suffers from procedural illegality and in violation of principles of natural justice, it vitiates the order of
punishment. The Appellate Authority has also not dealt with the pleas raised by the petitioner but rejected the
appeal in a cursory manner. It was the onerous duty of the Appellate Authority to have applied its
independent mind and should have recorded cogent reasons for rejecting the pleas/submissions raised by the
petitioner in his appeal.

For the reasons aforesaid the impugned order of removal dated 28.5.1998 passed by the Assistant Regional
Manager/opposite party no.2 as well as the appellate order dated 12.3.1999 are hereby quashed.
The writ petition stands allowed

List of Cases Cited:
1. Kashinath Dikshita versus Union of India and others; (1986)3 SCC 229
2. Radhey Kant Khare vs. U.P. Cooperative Sugar Factories Federation ltd . [2003] (21) LCD 610
6 All. Vijay Prakash Mishra Vs Regional Manager, U.P.S.R.T.C. & Ors.

257
3. State of Uttaranchal & ors. V. Kharak Singh, JT 2008(9) SC 205
4. Meenglas Tea Estate v. Their Workmen AIR 1963 SC 1719
5. State of U.P. v. C.S. Sharma, AIR 1968 SC 158
6. Salahuddin Ansari Vs. State of U.P. and others, 2008 (3) ESC 1667
7. Mohd. Yunus Khan v. State of U.P. & Ors. reported in (2010) 10 SCC 539
8. State of U.P. and others Vs. Saroj Kumar Sinha, (2010) 2 SCC 772
9. State of U.P. & another Vs. T.P. Lal Srivastava, 1997 (1) LLJ 831
10. Subash Chandra Sharma Vs. Managing Director & another, 2000 (1) U.P.L.B.E.C. 54

(Delivered by Hon'ble Dr. Devendra Kumar Arora, J.)

1. Heard learned Counsel for the petitioner and Sri Akhilesh Kumar Srivastava, learned
Counsel appearing for the respondent-Corporation.

2. Vijay Prakash Mishra- Petitioner, who was a Bus Conductor under Uttar Pradesh State
Road Transport Corporation, Akbarpur, District Ambedkar Nagar [in short referred to as the
'UPSRTC'], was removed vide order dated 28.5.1998 passed by the Assistant Regional
Manager/opposite party no.2 upon which he filed appeal before the Regional Manager, which was
also dismissed vide order dated 12.3.1999.

3. It is said that on 14.12.1996, when the vehicle i.e. Bus No. UP 42/2470 conducted by the
petitioner was inspected at Ariya near Akbarpur depot on Akbarpur-Tanda Road, the Inspecting
Squad headed by Sri Prabhu Singh Chauhan, Assistant Traffic Inspector found that all the 36
passengers travelling on the bus were travelling without tickets. Among these 36 passengers 30
were travelling from Akbarpur to Tanda and 06 were travelling from Akbarpur to Ariya.
Consequently, the petitioner was placed under suspension vide order dated 16.12.1996 and a charge
sheet was served upon the petitioner on 31.1.1997. The main charge against the petitioner was that
he was carrying all the 36 passengers without tickets in the Vehicle No. UP-42/2470 on 14.12.1996
thus acted against the order and direction of the department; his conduct was against the Service
Rules and amounts to dereliction of duty.

4. Learned Counsel for the petitioner has submitted that the Enquiry Officer without
conducting the inquiry in the manner as prescribed under the law, without giving opportunity of
examination of witnesses and in utter disregard of the principles of natural justice concluded the
inquiry and submitted the report to the Disciplinary Authority, who issued a show cause notice
dated 1.4.1998 to the petitioner. The petitioner submitted his reply on 13.5.1998 reiterating his
version given before the Inquiry Officer that at the time of checking, the reporting officer did not
record statement of any passenger and also pointed out that the Inquiry Officer had conducted the
inquiry behind the back of the petitioner. However, the opposite party no.2 without considering the
reply submitted by the petitioner passed the order of removal dated 28.5.1998. The Appellate
Authority also did not consider the pleas raised by the petitioner in his appeal and rejected the same
in a cursory manner.
258 INDIAN LAW REPORTS ALLAHABAD SERIES

5. Refuting the allegations of the petitioner, learned Counsel for the Corporation has
submitted that in the inquiry, sufficient opportunity was afforded to the petitioner for putting his
version but he failed to avail it and as such report of inquiry officer cannot be faulted. He also
pointed out that the petitioner presented himself before the inquiry officer on the last date of the
inquiry i.e. on 7.3.1998 and stated that he did not want to examine or cross examine any person.
Thereafter, the Inquiry Officer concluded the inquiry and submitted report to the Disciplinary
Authority, who on being found the delinquent Conductor guilty as per inquiry report, issued a show
cause notice and after considering the reply so submitted by the petitioner, passed the order of
removal. Therefore, it is incorrect to say that the inquiry has been conducted in violation of the
principles of natural justice.

6. Before dealing with the merits of the instant case, it would be useful to refer few
decisions of the Apex Court rendered with regard to procedure to be adopted during disciplinary
proceedings. In Kashinath Dikshita versus Union of India and others; (1986)3 SCC 229 the
Hon'ble Supreme Court emphasized that the delinquent employee facing a departmental enquiry
cannot effectively meet the charges unless the copies of the relevant statements and documents to
be used against him are made available to him. In the absence of such copies the concerned
employee cannot prepare his defence, cross examine the witnesses and point out the inconsistencies
with a view to show that the allegations are incredible. Observance of natural justice and due
opportunity has been held to be an essential ingredient in disciplinary proceedings.

7. A Division Bench of this Court in Radhey Kant Khare vs. U.P. Cooperative Sugar
Factories Federation ltd. [2003](21) LCD 610 held that after a charge-sheet is given to the
employee an oral enquiry is a must, whether the employee requests for it or not. Hence a notice
should be issued to him indicating him the date, time and place of the enquiry. On that date so fixed
the oral and documentary evidence against the delinquent employee should first be led in his
presence. Thereafter the employer must adduce his evidence first. The reason for this principle is
that the charge-sheeted employee should not only know the charges against him but should also
know the evidence against him so that he can properly reply to the same. The person who is
required to answer the charge must be given a fair chance to hear the evidence in support of the
charge and to put such relevant questions by way of cross-examination, as he desires. Then he must
be given a chance to rebut the evidence led against him.

8. In State of Uttaranchal & ors. V. Kharak Singh, JT 2008(9) SC 205, the Apex Court
has enumerated some of the basic principles to be observed while conducting the departmental
inquiries and consequences in the event, if these basic principles are not adhered to, the order is to
be quashed. The principles enunciated are reproduced herein:

(a) The inquiries must be conducted bona fide and care must be taken to see that the
inquiries do not become empty formalities.

(b) If an officer is a witness to any of the incident which is the subject matter of the
inquiry or if the inquiry was initiated on the report of an officer, then in all fairness he should not
6 All. Vijay Prakash Mishra Vs Regional Manager, U.P.S.R.T.C. & Ors.

259
be the Enquiry Officer. If the said position becomes known after the appointment of the Enquiry
Officer, during the enquiry, steps should be taken to see that the task of holding an enquiry is
assigned to some other officer.

(c) In an enquiry, the employer/department should take steps first to lead evidence
against the workman/delinquent charged, give an opportunity to him to cross-examine the
witnesses of the employer. Only thereafter, the workman/ delinquent be asked whether he wants to
lead any evidence and asked to give any explanation about the evidence led against him. [emphasis
supplied]

9. In Meenglas Tea Estate v. Their Workmen AIR 1963 SC 1719 the Supreme Court
observed that it is an elementary principle that a person who is required to answer the charge must
know not only the accusation but also the testimony by which the accusation is supported. He must
be given a fair chance to hear the evidence in support of the charge and to put such relevant
questions by way of cross-examination as he desires. Then he must be given a chance to rebut the
evidence led against him. This is the barest requirement of an enquiry of this character and this
requirement must be substantially fulfilled, if the result of the enquiry is to be accepted.

10. In State of U.P. v. C.S. Sharma, AIR 1968 SC 158 the Supreme Court held that
omission to give opportunity to an employee to produce his witnesses and lead evidence in his
defence vitiates the proceedings.

11. It is no doubt true that in cases arising out of disciplinary proceedings culminating in
punishment of an employee, scope of judicial review is somewhat restricted in the sense that it is a
decision making process which is up for judicial review and not the decision itself. The Court does
not sit in appeal. If the procedure prescribed is followed strictly in accordance with rules and the
delinquent employee has been given adequate opportunity of defence, the disciplinary authority by
assessing record has reached to a conclusion which a person of ordinary prudence in a given set of
circumstances may arrive, this Court shall not interfere with the order of punishment, if any, unless
it is shown that the same is without jurisdiction or is otherwise bad on account of mala fide etc.

12. It may be added that a person cannot be denied his right to earn livelihood enshrined
under in our Constitution unless he has been given adequate opportunity of hearing and the
conclusion drawn by authorities is one, which is probable and permissible from bare perusal of
documents and not otherwise. The scope of judicial review in such matters is well settled. It travels
in a narrow sphere. It is confined to the extent of decision making process. It would not allow the
Court to appreciate decision itself unless the decision is vitiated in law on account of mala fide,
bias or based on no evidence at all. The authorities exercising quasi judicial functions are not
courts. They are not bound by principles of evidence yet certain basic principles will have to be
observed which may dispel a complaint against fairness, impartiality and pre- determination of
mind on the part of the employer.
260 INDIAN LAW REPORTS ALLAHABAD SERIES

13. At this juncture it would be relevant to point out that a Division Bench of this Court in
the case of Salahuddin Ansari Vs. State of U.P. and others, 2008 (3) ESC 1667 held that non
holding of oral inquiry is a serious flaw which can vitiate the order of disciplinary proceeding
including the order of punishment has observed as under:-

" 10....... Non holding of oral inquiry in such a case, is a serious matter and goes to
the root of the case.

11. A Division Bench of this Court in Subash Chandra Sharma Vs. Managing
Director & another, 2000 (1) U.P.L.B.E.C. 541, considering the question as to whether holding of
an oral inquiry is necessary or not, held that if no oral inquiry is held, it amounts to denial of
principles of natural justice to the delinquent employee. The aforesaid view was reiterated in
Subash Chandra Sharma Vs. U.P.Cooperative Spinning Mills & others, 2001 (2) U.P.L.B.E.C.
1475 and Laturi Singh Vs U.P.Public Service Tribunal & others, Writ Petition No. 12939 of 2001,
decided on 06.05.2005."

14. In Mohd. Yunus Khan v. State of U.P. & Ors. reported in (2010) 10 SCC 539, the
Hon'ble Supreme Court has held that inquiry is to be conducted fairly and reasonably and inquiry
report must contain reasons for reaching the conclusion that charge framed against delinquent stood
proved against him. It cannot be ipse dixit of enquiry officer. Punishment for misconduct can be
imposed in consonance with statutory rules and principles of natural justice.

15. In the case of State of U.P. and others Vs. Saroj Kumar Sinha, (2010) 2 SCC 772, the
Hon'ble Apex Court pleased to observe that an inquiry officer acting in a quasi-judicial authority is
in the position of an independent adjudicator. He is not supposed to be a representative of the
department/ disciplinary authority/ Government. His function is to examine the evidence presented
by the Department, even in the absence of the delinquent official to see as to whether the unrebutted evidence is sufficient to hold that the charges are proved and when a departmental inquiry
is conducted against the government servant it cannot be treated as a casual exercise. The inquiry
proceedings also cannot be conducted with a closed mind. The inquiry officer has to be wholly
unbiased. The rules of natural justice are required to be observed to ensure not only that justice is
done but is manifestly seen to be done. The object of rules of natural justice is to ensure that a
government servant is treated fairly in proceedings which may culminate in imposition of
punishment including dismissal/removal from service.

16. Needless to mention here that when it is made obligatory under law upon an authority
to do a thing in a particular manner that thing has to be done in that very manner. In my considered
opinion that any punishment awarded on the basis of an inquiry not conducted in accordance with
the inquiry rules meant for that very purposes is unsustainable in the eye of law. It may be added
that the procedure prescribed under the inquiry rules for imposing major penalty is mandatory in
nature and unless those procedures are followed, any out come inferred thereon will be of no avail
unless the charges are so glaring and unrefutable which does not require any proof. The aforesaid
view expressed by me is strengthen support from the judgment of the Apex Court in State of U.P.
6 All. Vijay Prakash Mishra Vs Regional Manager, U.P.S.R.T.C. & Ors.

261
& another Vs. T.P. Lal Srivastava, 1997 (1) LLJ 831 as well as by a Division Bench of this Court
in Subash Chandra Sharma Vs. Managing Director & another, 2000 (1) U.P.L.B.E.C. 54.

17. The instant case is to be examined in the light of the principle enunciated in the
aforesaid judgments. On scrutiny of original record pertaining to the inquiry conducted against the
petitioner, it comes out that undoubtedly, the Inquiry Officer has examined only the reporting
officer/complainant that too not in presence of the petitioner and none other witness has been
examined either before the petitioner or behind the back of the petitioner. This fact is admitted in
paragraph 15 of the counter affidavit. In paragraph 18 of the writ petition the petitioner had stated
that he made request for cross examination of the complainant but the Inquiry Officer did not
consider the request of the petitioner as would be evident from the inquiry report itself. This fact
has not been specifically denied in the counter affidavit also and respondents stated in paragraph 17
of their counter affidavit that inquiry proceeding was concluded with the satisfaction of petitioner.
Nowhere from the record it comes out that either the Inquiry Officer or the Disciplinary Authority
fixed any date for oral hearing.

18. It is pertinent to add that petitioner in his reply dated 13.5.1998 categorically explained
that the checking was not done at Ariya, but was done at the place known as "Ragadganj Hawai
Patti". When the place of checking of bus was disputed by the delinquent employee, the proper
course available to the Inquiry Officer was to summon the Driver of the vehicle and ought to have
recorded his statement to ascertain the truth. Surprisingly, neither the Checking Squad recorded the
statement of the Driver while checking the vehicle nor the Inquiry Officer called the Driver to the
witness box. Further, it was also the duty of the Inquiry Officer to got the way-fare bill and other
documents proved during the inquiry. Moreover, the Inspecting Officers have not recorded
statement of any passenger either orally or in writing to know the truth of the matter. There is also
no rebuttal of the fact that limit for making ticket was 5 Kms whereas the bus was checked at 3 Km
on the outskirt of the city Akbarpur as in the case of long route, the tickets are normally made after
coming out of the city due to rush in the way and passengers use to board on bus at different places
and conductor has to open and shut the door. Apart from above, on examination of record this
Court finds that there is nothing on record which indicates that what amount was recovered from
the petitioner at the time of checking and whether the said amount corresponds to the number of
passengers alleged to have been found travelling without ticket. Therefore, it can easily be inferred
that the Inquiry Officer has noted acted fairly rather had acted as a representative of the
Disciplinary Authority.

19. Taking the holistic view of the matter, the Court has no hesitation in saying that the
inquiry has been conducted in utter disregard to the principles of natural justice. Since the
impugned order has been passed on the basis of the inquiry report, which suffers from procedural
illegality and in violation of principles of natural justice, it vitiates the order of punishment. The
Appellate Authority has also not dealt with the pleas raised by the petitioner but rejected the appeal
in a cursory manner. It was the onerous duty of the Appellate Authority to have applied its
independent mind and should have recorded cogent reasons for rejecting the pleas/submissions
raised by the petitioner in his appeal. It would also be relevant to mention at this juncture that it
262 INDIAN LAW REPORTS ALLAHABAD SERIES

seems from the record that immediately after placing the petitioner under suspension, the
authorities of the Corporation asked the petitioner to deposit the penalty-money for carrying
passengers without ticket, on which an application dated 15.12.96 was moved by the petitioner
mentioning therein that he is unable to pay the penalty and the amount of penalty be recovered
from his salary. In these circumstances the alleged loss to the Corporation was recovered prior to
the outcome of the result of th inquiry and it appears that the said amount was recovered from the
salary of the petitioner.

20. For the reasons aforesaid the impugned order of removal dated 28.5.1998 passed by the
Assistant Regional Manager/opposite party no.2 as well as the appellate order dated 12.3.1999 are
hereby quashed. As the petitioner is litigating since last 18 years, the ends of justice would be
served by reinstating the petitioner in service forthwith. The Appointing Authority is granted
liberty to conduct the inquiry afresh from the date of issuance of charge-sheet within six months of
receipt of the certified copy of this order and the arrears of salary from the date of removal to the
date of reinstatement shall be subject to the final outcome of the inquiry. The petitioner will cooperate with the enquiry proceedings. However, for any reason, if the Appointing Authority
decides not to proceed with the inquiry, in that eventuality, the petitioner would be entitled for 50%
of back wages from the date of removal to the date of reinstatement, which shall be paid to the
petitioner within six months failing which he would be entitled for interest @9% on the delayed
payment after completion of six months. It is clarified that the period from the date of removal to
the date of reinstatement shall be counted as period rendered in service for the purposes of retiral
benefits.

21. The writ petition stands allowed in above terms.
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APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 14.06.2016

BEFORE

THE HON'BLE SUDHIR KUMAR SAXENA, J.
THE HON'BLE ALOK KUMAR MUKHERJEE, J.

Criminal Appeal No.- 2115 Of 2007

Anil Yadav & Ors. ...Appellants
Versus
State Of U.P. ...Respondent

Counsel for Appellants:
I.S. Singh Vatsa, R.C. Yadav, Yogesh Srivastava

Counsel for Respondent:
Government Advocate