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CHANDRA PAL SINGH versus ZONAL MANAGER, U.P.S.R.T.C., VARANASI & OTHERS

High Court of Judicature at Allahabad

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Chandra Pal Singh v. Zonal Manager, U.P.S.R.T.C., Varanasi & Others - WRIT - A No. - 36702 of 1992 [2007] RD-AH 16421 (8 October 2007)

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE AT ALLAHABAD

Reserved

Court No.26

Civil Misc. Writ Petition No. 36702 of 1992

Sri Chandra Pal Singh

Versus

Zonal General Manager, UPSRTC, Varanasi & others

Hon.Shishir Kumar, J.

The present writ petition has been filed for quashing the order dated 30.12.1991 (Annexure 9 to the writ petition) passed by the respondent No.2 and order dated 2.6.1992 (Annexure 11 to the writ petition) passed by the respondent no.1 so far as it relates to the petitioner being appointed as a fresh denying him continuity of service and full back wages and other consequential benefits thereof. Further a writ in the nature of mandamus directing the respondents to reinstate the petitioner with full back wages with continuity of service and treat the petitioner in continuous service and to pay all arrears of salary with effect from 31.12.1991.

The facts arising out of the present writ petition are that the petitioner, who was working as Conductor in Uttar Pradesh State Road Transport Corporation, Allahabad Region, Allahabad was appointed in the year 1975 and subsequently, he was confirmed. On 29.12.1988, when the petitioner was on duty as conductor and was going in route Basti - Allahabad and when the bus reached at the Civil Lines Bus Station, Allahabad, the same was checked by the the Deputy General Manager (Eastern Zone). On checking certain irregularities were alleged to have been found against the petitioner. When the bus of the petitioner was checked by the authorities, the entire records/documents and papers were taken by the checking authority Sri Ashish Chaterji, then Assistant Regional Manager and petitioner was taken to the official guest house of the U.P. State Road Transport Corporation where he was detained for about seven to eight hours. A report was submitted on 22.2.1989. One Sri A.N.Yadav, then Regional Manager was a witness to the said inspection and he has seized the documents, papers and other materials from the petitioner on 29.12.1988, after checking the bus of the petitioner and he on the same day charged the petitioner with the alleged irregularities committed by him. A chargesheet was issued to the petitioner on 19.4.1989 levelling as many as twelve charges against the petitioner. Petitioner submitted a reply on 1.8.1990 and an enquiry officer was appointed and conducted the enquiry against the petitioner. In the enquiry only Sri Ashish Chaterji was produced and examined on behalf of the corporation and no other person who inspected the bus of the petitioner on 29.12.1988 were either produced or examined despite request and demand of the petitioner. The most important witnesses to be examined was then Deputy General Manager (Eastern Zone) U.P. State Road Transport Corporation, Varanasi and Sri A.N.Yadav, the then Regional Manager, Allahabad and Sweeper Sri Mandan Lal who alleged to have taken out the torn pieces of ticket etc. from the latrine pit. An enquiry was completed and report dated 19.10.1991 was submitted to the Regional Manager, Allahabad. Before the conclusion of the enquiry, the petitioner was asked to submit further explanation in case he wants to say something more regarding the enquiry proceedings. Petitioner has further submitted his reply on 15.2.1991 bringing the notice of the enquiry officer certain irregularities committed during the course of enquiry. Petitioner has also submitted that the enquiry is not fair and proper and petitioner has not been afforded proper opportunity to define himself. Petitioner was issued a show cause notice on 14.11.1991, asking the petitioner to reply why the punishment be not awarded as the charges are proved against the petitioner during enquiry. The petitioner submitted his reply. A copy of the same has been filed as Annexure 8 to the writ petition.

By order dated 30.12.1991, the petitioner has been removed from service. Aggrieved by the aforesaid order, the petitioner filed an appeal. The appeal was decided by order dated 2.6.1992 and the order dated 30.12.1991 was set aside by the appellate authority, removing the petitioner from service has been quashed but instead of reinstatement of the petitioner in service with full back wages and continuity of service, an order was passed to appoint the petitioner as afresh and he will not be entitled for his back wages and continuity of service. Aggrieved by the aforesaid order, the petitioner has approached this Court.

The writ petition was entertained and respondents were granted time to file counter affidavit. Counter and rejoinder affidavits have been filed, as such, the matter is being decided on merits.

Though various points have been raised by the learned counsel for the petitioner but as by the appellate order the order of removal has been set aside and the petitioner has been given afresh appointment, therefore, the learned counsel for the petitioner has submitted that he is confining his argument only to the extent that whether in the facts and circumstances of the present case, in case the appellate authority holds that charges levelled against the petitioner is not proved then whether he was justified directing the petitioner to appoint as afresh on the post of conductor. The learned counsel for the petitioner has submitted that from the perusal of the appellate order and the charges levelled against the petitioner it goes to show that the appellate authority has taken into consideration the fact that all the relevant papers including tickets were taken by the Inspecting Officer and it was found that an amount of Rs.1774.10 was found in the cash and the details have not been filled. A finding has been recorded by the appellate authority that if the complete documents and the tickets and cash were taken by the inspecting officer then how the petitioner came into possession of those documents and tickets and it was found in the pit of the bathroom. There was no mention in the enquiry report to this effect. There was also no mention that how many passengers were in the bus and how many passengers were found without ticket. A finding to this effect has also been recorded that it is clear from the record that during inspection, the tickets of the passengers on the bus were checked but no checking to this effect has been done that how many passengers were found without ticket. A finding has also been recorded that as the carbon was old, therefore, it appears that in the second copy, the clear figures have not been found. After perusal of the evidence on record and the finding of the enquiry officer, the appellate authority has recorded a clear finding that as under:-

^^vr,o ;g ugha dgk tk ldrk fd dS'k oSx esa oLrqr% :i;k 303-10 vf/kd jgs] ysfdu mUgsa fVdVksa ds VqdM+s VqdMs djds QaSds tkus ds lEcU/k esa fLFkfr Li"V ugha gSA D;ksafd tc fujh{k.krkZ }kjk cl ds fujh{k.k ds nkSjku ekxZ i=ksa ,oa fVdVksa dks vius dCts esa ys fy;k x;k Fkk rks iqu% os ifjpkyd ds ikl fdl izdkj igqap x;s] ftUgsa os fou"V djus dk iz;kl fd;k vfHkys[kksa ls Li"V ugha gS tkap ds nkSjku ySV~hu fiV ls QVs gq;s fVdVksa dks fudkyus okys Lohij dk c;ku fjdkMZ djds iqf"V ugha djk;h x;hA i=koyh esa nks izfr vkClV~sDV QkeZ la0 544039 lknk layXu gS vkSj lkFk gh vkClV~sDV QkeZ la0 175223 tks i=koyh esa gh layXu gS og dgka ls izkIr gqvk bldk mYys[k ugha gSA rFkk lknk vkOlV~SDV QkeZ ifjpkyd ds ikl dgka ls vk;s vldh iqf"V tkap ds le; ugha dh x;hA**

Thus the appellate authority was of the opinion after recording this finding that no punishment should have been awarded but instead of reinstating the petitioner or awarding some minor punishment, the petitioner has been given afresh appointment. The affect of the aforesaid order is that the petitioner will be treated to be as a fresh appointee from the date of order i.e. 2.6.1992 and the total service rendered from 1975 by the petitioner in the office of the respondents will not be counted and the petitioner will be deprived of pensionary benefits, seniority, continuity of service and promotion if any.

The fact remains that the petitioner was in possession of excess money that was un-accounted for him. The learned counsel for the petitioner submits that it is well settled in law that once the order of termination is set aside, the petitioner is entitled to full back wages and continuity of service. Reliance has been placed upon the following judgements.

(i) 2000 (2) AWC 1499 Para 35(Nar Singh Pal Vs. Union of India and others)

(ii) AIR 1988 SC 2112 Para 3

(The Maharaja Sayajirao University of Baroda and others Vs. R.S.Thakar)

3. The appellant-University filed an appeal before this Court against the judgment of the Division Bench dated 6/7-8-1981 challenging the order of the Division Bench of the High Court holding that the respondent's termination was null and void and that he was entitled to be reinstated in service. That appeal was dismissed by our order dated 11.12.1987 upholding the order of the High Court. In view of our judgment the termination of respondent's service was null and void and he was entitled to reinstatement.

(iii) AIR 1988 SC 344 (Union of India and another Vs. Sri Babu Ram Lalla)

(iv) 1998 (8) ST 405 Para 21 (Ram Ujarey Vs. Union of India)

21. For the reasons stated above, the appeal is allowed and the judgment and order dated 28.11.1995 passed by the Tribunal is set aside with the direction that the appellant shall be put back to duty on the post of Fitter with all consequential benefits. There will be no order as to costs.

(v) 2004 All. L.J. 630, Para 13 (UPSRTC Vs. Mahendra Nath Tiwari and others)

13. In the facts and circumstances of the present case and for the reasons that there is no illegality in the award the workman is entitled to reinstatement with Full back wages. The respondent was given a wholly disproportionate and harsh punishment for misconduct not committed by him and without any fault of his. This respondent had already been out of service for more than 11 years and has suffered. In such circumstances payment of full back wages to him is justified.

(vi) 1997 (76) FLR 204 para 5 (Durga Singh and others Vs. Labour Court, Dehradun and others)

5. By means of order dated 31.8.95 the Labour Court has awarded 50% of the back wages to the petitioner. The contention of the petitioner is that they should have been granted full back wages and not 50%. In my opinion the contention of the learned counsel for petitioners is correct. It is settled law that normally when a termination order is set aside full back wages have to be awarded and it is only in exceptional case that it is not. No such exceptional circumstance has been pointed out in the impugned order. At any event the Labour Court in proceedings under Section 6-H(2) of the U.P. Industrial Disputes Act can only act as an execution court and it cannot go behind the judgment dated 13.11.1991. Hence this petition is allowed. The order dated 31.8.1995 is modified and it is directed that the petitioners will get full back wages.

(vii) 2000 (86) FLR 784 para 8 (Gulam Ahmad Paul Vs. State of J & K and others)

8. Consequently, these Appeals are allowed, impugned Judgment debarring the petitioners from claiming benefits is set aside. As a result Order No.618 of 1997 dated August 16, 1997 shall also stand modified to that extent and the petitioners shall be paid full pay and allowances for the period they have been deprived of the same.

(viii) 2005 (11) SCC 511 (State of Punjab and others Vs. Babita Kumari)

(ix) 1984 (Supp) SCC 428 para 2 (Hari Mohan Rastogi Vs. Labour Court and another)

2. In view of the decision of this Court in Mohan Lal v. Bharat Electronics Ltd. the termination of service of the appellant by respondent U.P. State Electricity Board, Lucknow on and from December 31, 1967 will constitute retrenchment and prerequisite for a valid order of retrenchment being absent has to be treated as invalid and inoperative. The appellant will continue to be in service as Town Incharge continuously without interruption and any break from the date of ineffective termination of service.

(x) 1981 (3) SCC 225 para 7 (Mohan Lal Vs. Management of M/s. Bharat Electronics Ltd.)

7. Niceties and semantics apart, termination by the employer of the service of a workman for any reason whatsoever would constitute retrenchment except in cases excepted in the section itself. The excepted or excluded cases are where termination is bay way of punishment inflicted by way of disciplinary action, voluntary retirement of the workman, retirement of the workman on reaching the age of superannuation if the contract of employment between the employer and the workman concerned contains a stipulation in that behalf, and termination of the service of a workman on the ground of continued ill-health. It is not the case of the respondent that termination in the instant case was a punishment indicted by way of disciplinary action. If such a position were adopted, the termination would be abinitio void for violation of principle of natural justice or for not following the procedure prescribed for imposing punishment. It is not even suggested that this was a case of voluntary retirement or retirement on reaching the age of superannuation or absence on account of continued ill-health. The case does not fall under any of the excepted categories. There is thus termination of service for a reason other than the excepted category. It would indisputably be retrenchment within the meaning of the word as defined in the Act. It is not necessary to dilate on the point nor to refer to the earlier decisions of this Court in view of the later to pronouncements of this court to both of which one of us was a party. A passing reference to the earliest judgment which was the sheet-anchor till the later pronouncements may not be out of place. In Hariprasad Shivshankar Shukla v. A.D.Divikar, aftter referring to Pipraich Sugar Mills Ltd v. Pipraich Sugar Mills Mazdoor Union, a Constitution Bench of this Court quoted with approval the following passage from the aforementioned case:

But retrenchment connotes in its ordinary acceptation that the business itself is being continued but that a portion of the staff or the labour force is discharged as surplusage and the termination of services of all the workmen as a result of the closure of the business cannot therefore be properly described as retrenchment........

This observation was made in the context of the closure of an undertaking and being conscious of this position, the question of the correct interpretation of the definition of the expression 'retrenchment' in Section 2 (oo) of the Act was left open. Reverting to that question, the view was reaffirmed but let it be remembered that the two appeals which were heard together in Shukla case were cases of closure, one Barsi Light Railway Company Ltd., and another Shri Dinesh Mills Ltd., Baroda. With specific reference to these cases, in State Bank of India v. N.Sundara Money, Krishna Iyer, J. speaking for a three-Judge Bench, interpreted the expression 'termination ..... for any reason whatsoever' as under : (SCC pp. 826-27 : SCC (L & S) p. 136., para 9)

A breakdown of Section 2 (oo) unmistakably expands the semantics of retrenchment. " Termination ... for any reason whatsoever" are the key words. Whatever the reason, every termination spells retrenchment. So, the sole question is, has the employee's service been terminated ? Verbal apparel apart, the substance is decisive. A termination takes place where a term expires either by the active step of the master or the running out of the stipulated therm. To protect the weak against the strong this policy of comprehensive definition has been effuctuated. Termination embraces not merely the act of termination by the employer, but the fact of termination howsoever produced. Maybe, the present may be a heard case, but we can visualise abuses by employers, by suitable verbal devices, circumventing the armour of Section 25-F and Section 2(oo). Without speculating on possibilities, we may agree that 'retrenchment' is no longer terra incognita but area covered by an expansive definition. It means 'to end, conclude, cease'. In the present case the employment ceased, concluded ended on the expiration of nine days - automatically maybe, but cessation all the same. That to writ into the order of appoinment the date of termination confers no moksha from Section 25-F (b) is inferable from the proviso to Section 25-F(1). True, the section speaks of retrenchment by the employer and it is urged that some act of volition by the employer to bring about the termination is essential to attract Section 25-F and automatic extinguishment of service by effluxion of time cannot be sufficient.

It would be advantageous to refer to the facts of that case to appreciate the interpretation placed by this Court on the relevant section. State Bank of India appointed the respondent by an order of appointment which incorporated the two relevant terms relied upon by the Bank at the hearing of the case. They were :(i) the appointment is purely a temporary one for a period of 9 days but may be terminated earlier, without assigning any reason therefore at the Bank's discretion; (ii) the employment, unless terminated earlier, will automatically cease at the expiry of the period i.e. November 18, 1972. it is in the context of these facts that the court held that where the termination was to be automatically effective by a certain retrenchment within the meaning of section 2(oo) and in the absence of strict compliance with the requirements of Section 25-F, termination was held to be invalid.

It has also been submitted that in view of the facts and circumstances of the present case this Court is fully competent to pas appropriate orders as the writ petition is pending since 1992 and it will not be appropriate to remand the matter to the appellate authority. The learned counsel for the petitioner has placed reliance upon the following two judgements.

(i) 1990 (3) SCC 261 para 12 (Raj Soni Vs. Air Officer Incharge Administration and another)

12. It is not necessary and we do not propose to go into the question in this case as to whether the petition is maintainable under Article 32 of the Constitution, because this petition has been pending in this Court since 1981. The petitioner's claim is just. It will, therefore, be a travesty of justice to send her to any other forum at this stage. In any case the petitioner seeks to enforce her statutory right under Section 8 of the Act read with Rule 110 of the Rules with a further contention that she has been discriminated in the matter of superannuation so much so that other teachers similarly situated were retired at the age of 60 years whereas the petitioner has been singled out and retired at the age of 58 years.

(ii) (2004) 13 SCC 665 para 3 (Durga Enterprises (P) LTD. and another Vs. Principal Secretary, Govt. of U.P. and others)

3. The High Court, having entertained the writ petition, in which pleadings were also complete, ought to have decided the case on merits instead of relegating the parties to a civil suit.

Learned counsel for the petitioner further submitted that since petitioner has approached this Court with respect to a part of the order passed by the appellate authority which grants the relief of fresh appointment to the petitioner and not against other findings recorded by the appellate authority which are in favour of the petitioner. Therefore, the latter part of order, which gives the petitioner as afresh appointment may be set aside and the petitioner may be given all consequential reliefs with full back wages to which he is entitled after setting aside the order terminating the services of the petitioner.

On the other hand, the learned counsel for the respondents submits that charges levelled against the petitioner is proved and he was afforded full opportunity at the time of enquiry. The appellate authority adopting a lenient view, reduced the punishment awarded by order dated 30.12.1991 and afforded the petitioner fresh chance to serve the Corporation but without past wages. The further submission has been made by the learned counsel for the respondents that the petitioner is not entitled for any relief by this Court as admittedly, the petitioner has been found guilty and charge against the petitioner has been proved that he was having excess amount of cash and he has torn the tickets and other documents and thrown it in pit of bathroom. Reliance has been placed upon the Apex Court judgements in (2005) 3 SCC 254, (2005) 3 SCC 241(Para 8), (2005) 7, 338 (Para 11). In view of what has been stated, the Court would not go into the correctness of the choice made by the administrator open to him and the Court should not substitute its decision for that of the administrator. The scope of judicial review is limited to the deficiency in the decision making process and not the decision. The appellate authority has adopted a lenient view by substituting the order of removal by a lesser punishment which is just and proper.

I have heard learned counsel for the petitioner and learned Standing Counsel for the respondents and have perused the record.

The petitioner was levelled about twelve charges. Though, from the inspection report, it appears that various officers were there but only one Ashish Chaterji was produced and examined and no other witnesses have been examined. Even Madan Lal, sweeper, was not examined who, when the petitioner has torn the tickets and thrown it in the pit, it was Madan Lal, who taken it from the pit. From the inspection report it is clear that immediately after inspection all the relevant papers were taken from the petitioner but when he was taken to the guest house then how the relevant papers became in the possession of the petitioner, has not been explained. No finding to this effect has been recorded. The appellate authority taking into consideration all the facts has recorded a finding that in the absence of finding it cannot be presumed that in cash box an excess amount of total tickets of Rs.303.10 was in possession of the petitioner. A finding to this effect has also been recorded by the appellate authority that how the tickets became in possession of the petitioner when it was stated that at the time of inspection all the tickets and way bills were taken from the possession of the petitioner. Then how it again became in the possession of the petitioner. A finding to this effect has also been recorded by the appellate authority that sweeper has not been examined, therefore, there is a doubt regarding this charge. In the enquiry it has not been proved that how the blank forms came in the possession of the petitioner.

Once this finding has been recorded that there is a doubt regarding the excess money and a finding to this effect has been been recorded that how much passengers were found in the bus and how many tickets were issued has not been verified and only an amount of Rs.303.10 has been found excess in the bag of the petitioner. It has not been investigated that how this excess amount has come in the possession of the petitioner. The appellate authority has also recorded a finding that the amount mentioned in the way letter mentioned is Rs.1713.10 and at the time of inspection the total amount found in possession of the petitioner was Rs.1744.10, therefore, there was a difference of only Rs.41.10 and there is no mention regarding the total, therefore, it cannot be said that Rs.303.10 was in excess.

I am of the opinion that in spite of the aforesaid finding, the appellate authority should have taken into consideration for awarding some minor punishment instead of giving fresh appointment to the petitioner, the effect of order is that petitioner will be treated a fresh appointee from the date of order and the total service rendered by the petitioner from 1975 till the order passed by the appellate authority will not be counted and the petitioner will be deprived of the pensionary and other benefits.

There is no dispute to this effect that there is a very limited power of juridical review in awarding the punishment by the administrator. But if the charges have not been proved, which are apparent from the order passed by the appellate authority and if the conscious of the court is prick then this Court has a power to interfere. Regarding proportionality of punishment of a misconduct by a delinquent employee, this Court cannot interfere if misconduct has to be proved. If the charge has not been proved then this Court has jurisdiction to interfere while exercising jurisdiction under Article 226 of the Constitution of India. From the finding recorded by the appellate authority, if the appellate authority was of the opinion regarding various charges that though charges have not been proved against the petitioner, then instead of giving fresh appointment to the petitioner some minor punishment should have been awarded.

In view of the aforesaid fact, the order passed by the appellate authority dated 2.6.1992 (Annexure 11 to the writ petition) is hereby quashed to this extent as it relates to the petitioner being appointed as afresh denying him continuity of service and full back wages and other consequential benefits thereof. The matter is remanded back to the appellate authority to take into consideration the facts and circumstances of the present case that whether some minor punishment instead of re-appointment can be granted to the petitioner. The respondent no.2 is directed to pass appropriate orders taking into consideration the observations made above and will pass an order preferably within a period of four months from the date of production of the certified copy of this order.

With these observations the writ petition is disposed of.

No order as to costs.

Dated: October 8 , 2007

SKD


Copyright

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