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AVINASH CHANDA SRIVASTAVA versus STATE OF U.P. AND OTHERS

High Court of Judicature at Allahabad

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Avinash Chanda Srivastava v. State Of U.P. And Others - WRIT - A No. 9073 of 2007 [2007] RD-AH 3915 (8 March 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 OF ALLAHABAD

Hon'ble Mr. Rakesh Tiwari, J.

This writ petition has been filed against the orders dated 24.1.2007; 28.9.2006 and 6.9.2006 appended as Annexures 9,7 and 5 respectively to the writ petition passed by the respondent nos. 5,4 and 2 respectively.

Facts of the case giving rise to the instant writ petition are that the petitioner was appointed as conductor in U.P. State Road Transport Corporation (for short ''Corporation') in 1980.

It is claimed by him that on 28.8.2004 while he was on duty in vehicle no. UP-70/9476 which was going from Allahabad to Rewa, he found a private vehicle no. UP 70/AA-9926 standing in the mid-way; that the passengers of aforesaid private vehicle started boarding the Corporation's bus and while he was in the process of making tickets of newly boarded passengers, the flying squad checked the passengers on the bus and found that 31 passengers were without tickets. Thereafter a charge-sheet dated 6.10.2004 was served upon the petitioner which was replied by him on 22.10.2004. The petitioner was not well on 9.3.2006 which was a date fixed for enquiry as such the enquiry officer proceeded ex parte and concluded the enquiry proceedings.

After conclusion of enquiry proceedings, show cause notice dated 31.7.2006 along with a copy of enquiry report was served upon the petitioner and pursuant thereof, his services were terminated vide impugned order dated 6.9.2006 passed by the Assistant Regional Manager, Zero Road, Allahabad.

The petitioner preferred statutory appeal before the respondent no. 4 but it was rejected by the impugned order dated 28.9.2006 passed by the Regional Manager, U.P.S.R.T.C, Allahabad.

Aggrieved, the petitioner preferred revision before the Chairman, U.P.S.R.T.C through its Managing Director, Tehri Kothi, Lucknow respondent no.2 which too has been rejected by order dated 24.1.2007 impugned in the writ petition.

The petitioner has invoked writ jurisdiction by means of present writ petition challenging the validity and correctness of the orders dated 6.3.2006, 28.7.2006 and 24.1.2007 appended as Annexures 5,7 and 9 respectively to the writ petition.

The counsel for the petitioner contends that the enquiry conducted by the employers against the workman was not in accordance with the principles of natural justice as it has been conducted without affording reasonable opportunity of being heard to the petitioner.

He urged that averments made by the petitioner in his reply to the charge sheet have also not been properly considered by the respondents and the impugned orders have been passed in an arbitrary manner. It is stated that when the bus was checked by the checking staff at Gohaniya,, no passenger was found without ticket and the impugned orders have been passed without considering this vital aspect of the matter. He vehemently urged that the impugned orders are based on misreading of documents on record and in utter disregard of the provisions of law causing grave injustice to the petitioner resulting in gross failure of justice.  

Counsel for the petitioner has relied upon a decision in Bhim Shankar Trivedi V. U.P. State Road Transport Corporation Lucknow and others-2006 (8) ADJ -287 (LB) wherein Conductor of the bus of U.P.State Road Transport Corporation neither stopped the bus nor shoed weigh bill to the Traffic Inspector and checking staff and some passengers were without ticket. In that case, the Court had taken note of the fact that during the course of enquiry, statement of driver of the bus was recorded at the back of the petitioner and no opportunity was given to him to prove his innocence.  In that circumstance, the Court held that order of removal was unwarranted and suffering from legal infirmity.  The Court also found that non-supply of material documents to the petitioner by the enquiry officer in the departmental proceedings and non-consideration of affidavits by the appellate authority vitiated the enquiry as the impugned order was non-speaking and non-reasoned.

In the instant case, passengers in the bus were reluctant to give any evidence and to the contrary they wanted to reach the destination as they were near to ''Garh'. Thus, the facts of Bhim Shankar Trivedi(supra) are distinguishable from the facts of the present case.

Counsel for the petitioner also relied upon a decision in Harbanslal Sahnia and another V. Indian Oil Coroporation and others- (2003) 2 SCC-107 which deals with the maintenability of the petition on the ground of availability of alternate remedy. It has been held that rule of exhaution of remedies and rule of exclusion of writ jurisdiction by availability of alternate remedy is of discretion and not one of compulsion.  In that case dealership by Indian Oil Corporation, which was bread and butter of the petitioner, came to be terminated for non-relevant and non-existent grounds.  It was held that the petitioner should have been allowed relief by the High Court itself instead of driving him to the need of initiating arbitration proceedings.

In the instant case, it is not question of dealership but misconduct in employment.  The petitioner pleads that he has not committed any misconduct whereas the respondents claim that he has committed gross misconduct.  These factual facts do require adjudication on the basis of oral and documentary evidence.  There is no quarrel with the preposition that rule of exclusion of writ jurisdiction is of discretion.  Normally, High Court does not interfere where questions of facts are required to be adjudicated by competent forum created by special statute.  U.P. Industrial Tribunals Act, 1947 is special statute meant for concilliation and resolution of industrial disputes whether pertaining to employment, non-employment, termination, dismissal or retrenchment etc.  Since facts of the instant case require findings of facts on the basis of evidence, which may be adduced by the parties before appropriate forum, this Court is not inclined to interfere in view of law laid down in Chandrama Singh V. Managing Director U.P.Co-operative Union Lucknow and others- (1991)1UPLBEC(2)-898.

To the same effect is the decision in State of Tripura v. Manoranjan Chakraborty and others-(2001)10 SCC-740, relied upon by counsel for the petitioner.  In that case, main tenability of writ petition under Article 226 of the Constitution of India on the ground of availability of alternate remedy was considered  and it was held that in case of gross injustice and in the presence of good reasons for interference, a writ Court can exercise its jurisdiction to do substantive justice.

The facts of the instant case are distinguishable from the facts of the aforesaid case as in the aforesaid case, provisions of Sections 20(1) and 21(2) of Tripura Sales Tax Act barring entertainment of appeal/revision against an order without payment of the amount of tax assessed or the penalty levied were considered and it was held that in appropriate cases availability of alternate remedy was not a bar to exercise writ jurisdiction and availability  of writ jurisdiction should dispel any doubt which a citizen has against a high handed or palpable illegal order which may be passed by the assessing authority.

To the same effect is the decision in Whirlphool Corporation V. Registrar of Trade Marks Mumbai and others-(1998)8SCC-1, relied upon by counsel for the petitioner, wherein exceptions have been carved out by Hon'ble the Supreme Court.  It was held that :-

"...But the alternative remedy has been consistently held by this Court not to operate as a bar in at least three contingencies, namely, where the writ petition has been filed for the enforcement of any Fundamental Rights or where there has been a violation of the principles of natural justice or where the order or proceedings are wholly without jurisdiction or the vires of an Act is challenged.  There is a plethora of case-law on this point but to cut down this circle of forensic whirlpool, we would rely on some old decisions of the evolutionary era of the constitutional law as they still hold the field."

Admittedly, the instant case is not one of enforcement of Fundamental Rules or violation of principles of natural justice. Proceedings in the present case are also not without jurisdiction nor the vires of any Act has been challenged. What the petitioner complains is non-application of mind by the authorities.  He pleads that the facts of this case are different that the stand taken by the Department. Hence, they require findings of fact by appropriate forum and facts of the aforesaid case are distinguishable.

Counsel for the petitioner also placed reliance on a decision in ABL International Ltd. and another V. Export Credit Guarantee Corporation of India Ltd. and others- (2004)3 SCC-553.  In that case, relying upon a decision in Gunwant Kaur v. Municipal Committee, Bhatinda-(1969)3 SCC-769 wherein it was held that :-

" The High Court observed that they will not determine disputed question of fact in a writ petition. But what facts were in dispute and what were admitted could only be determined after an affidavit-in-reply was filed by the State.  The High Court, however, proceeded to dismiss the petition in limine. The High Court is not deprived of its jurisdiction to entertain a petition under Article 226 merely because in considering the petitioner's right to relief questions of fact may fall to be determined.  In a petition under Article 226 the High Court has jurisdiction to try issues both of facts and law.  Exercise of the jurisdiction is, it is true, discretionary, but the discretion must be exercised on sound judicial principles.  When the petition raises question of fact of a complex nature, which may for their determination require oral evidence to be taken, and on that account the High court is of the view that the dispute may not appropriately be tried in a writ petition, the High court may decline to try a petition. Rejection of a petition in limine will normally be justified where the High Court is of the view that the petition is frivolous or because of the nature of the claim made dispute sought to be agitated, or that the petition against the party against whom relief is claimed is not maintainable or that the dispute raised thereby is such that it would be inappropriate to try it in the writ jurisdiction or for analogous reasons."

Further relying upon the decisions in Gunwant Kaur (supra) and Century Spg. And Mfg. Co. Ltd. V. Uthasnagar Municipal Council-(1970)1)SCC-583, the Court held that :-

" Merely because a question of fact is raised, the High Court will not be justified in requiring the party to seek relief by the somewhat lengthy, dilatory and expensive process by a civil suit against a public body. The questions of facts raised by the petition in this case are elementary."

It is apparent that writ Court may not always relegate parties to suit and Court can always decide cases where questions of law can be determined merely on the basis of exchange of affidavits but it can certainly relegate the concerned party to alternate forum for adjudication of dispute where findings of facts are required to be determined on the basis of oral and documentary evidence which is not feasible in writ jurisdiction. The instant is the case where findings of facts are required to be recorded on the basis of oral and documentary evidence to be led by the parties, which is not feasible in writ jurisdiction and, therefore, the decision in ABL Intrernational Ltd. and another (supra) is not applicable to the facts of the instant case.

Per contra, Standing counsel submits that the respondent-authorities have recorded clear finding of fact that it is undisputed that Traffic Superintendent had checked the bus along with other Inspectors and that at the time of checking the Way-Bill (Marg Patra) had not been filled up. This fact has not been disputed by the petitioner which undisputedly proves that at the time of checking, the petitioner-workman was carrying 31 passengers without ticket.

The workman in his explanation stated that 31 passengers had boarded the bus as private Bus No. AA-9926  was out of order and its passengers were stranded in mid-way ; that they had no other option but to board the Corporation's Bus and while he was in the process of making their tickets, the flying squad entered the bus and found that there were passengers without tickets.

The Assistant Regional Manager, U.P. State Road Transport Corporation, Zero Road, Allahabad- respondent no. 5, after considering the entire material on record as well as the defence of the petitioner recorded a categorical finding of fact finding the petitioner guilty and misconduct established.   He also recorded a finding that when show cause notice was issued to the petitioner as to why he may not be dismissed from service and his wages for the period of suspension be not forfeited it was not accepted by him with the result the Corporation was constraint to proceed ex parte against him as he stopped coming to the office.The relevant finding is as under :-

" tkWp vf/kdkjh Onkjk fof/kor tkWpksijkUr tkWp fjiksVZ izsf"kr dh xbZ] ftlesa of.kZr rf;ksa ds vk/kkj ij vkjksih ifjpkyd Jh vfouk'k pUnz JhokLro ¼fu-½ds fo#) yxk;s x;s leLr vkjksi fl) ik;s A tkWp vf/kdkjh dh tkWp fjiksVZ ls lger gksrs gq, bl dk;kZy; ds Ik= la[;k 2091@,tsM@Lfkkiuk@1&vkjksi @vuq0 dk;Z-@06 fnukad 30-7-2006Onkjk yxk;s x;s vkjksiksa ds ifjizs{; esa fuyEcu dky dk vo'ks"k HkRrk tCr djrs gq, lsok ls Ik`Fkd djrs gq, lsok ls Ik`Fkd djus dh dkj.k crkvks uksfVl nh xbZ A mDr uksfVl dks ofj"B dsUnz izHkkjh] thjksjksM Onkjk dbZ ckj dgs tkus ij Hkh vkjksih usa ;g dgdj ugha izkIr fd;k fd bl laca/k esa lgk;d {ks=h; izcU/kd ls ckr gks xbZ gs A dkQh le; chr tkus ij Hkh vkjksih ifjpkyd Onkjk mdr uksfVl ugha yh xbZ bvkSj tc os ofj"B dsUnz izHkkjh ds dk;kZy; esa mifLFkr Hkh ugha gks jgs gSa A mDr vk'k; dh lwpuk ofj"B dsUnz izHkkjh thjksjksM deZ'kkyk usa vius Ik= la[;k292@vkjksi&Ik= @06 fnukad 25-8-2006 ds Onkjk voxr djk;k gs A vkjksih ifjpkyd fnukad 9-3-2006 ,oa 3-4-2006 dks tc fjiksVZdrkZ ds lg;ksxh izfrijh{k.k gasrq mifLFkr gq, rks vkjksih tkucw>dj vuqifLFkr gks x;k A tkWp esa tks Hkh foyEc gqvk mlds fy, vkjksih ifjpkyd iw.kZ#Ik ls mRrjnk;h gs A tkWp vf/kdkjh usa Hkh vkjksih ifjpkyd dks yxk;s x;s vkjksiksa ds fy, iw.kZ#Ik ls nks"kh djkj fd;k gS A pwWfd izdj.k esa vR;f/kd foyEc gks pqdk gS] blfy, vkjksih ds vuqjks/k ij iqu% tkWp esa Hkstdj vkSj vf/kd foyEc djkusa dk dksbZ vkSfpR; ugha gS A vkjksih ifjpkyd brus xEHkhj Hkz"Vkpkj esa fyIr gksus dk nks"kh ik;k x;k gS ,oa vkjksih dk foHkkx esa dk;Z djrs jguk fuxe fgr esa ugha gS A"

When a bus starts from the bus station, the duty of the Conductor is to issue tickets to all the passengers within a distance of one kilometer.  If some passengers board the bus in midway, the rule is to ''pay and board'. The bus moves only after the Conductor has issued the tickets to all the passengers. Since the passengers had boarded the bus of the Corporation the rule of pay and board should have been followed and the passengers should have been issued tickets.

The checking personnel claim to have found passengers without tickets when they are alleged to have stopped the bus near ''Garh' for checking by the flying squad. It further appears that there is variation in the stand to the effect that some passengers had boarded the bus from Allahabad. Though the bus was checked earlier and no deficiency was found hence the charge in that situation does not appear to be correct.

From the varied stand taken by the parties it would not be proper to decide this writ petition merely on basis of exchange of affidavits.  The questions involved in the writ petition require findings of facts on the basis of oral and documentary evidences which may be led by the parties.

For the reasons stated above, this writ petition is dismissed on the ground of availability of alternate remedy. No order as to costs.    

Dated: 8th March.2007

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Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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