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RAM DARASH versus STATE OF U.P. AND OTHERS

High Court of Judicature at Allahabad

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Ram Darash v. State Of U.P. And Others - WRIT - A No. 3476 of 2005 [2005] RD-AH 5979 (18 November 2005)

 

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

                                                    Judgement reserved on 7.11.2005

                                                    Judgement ready on      7.11.2005

                                                    Judgement delivered on 18.11.2005

Civil Misc. Writ No. 3476 of 2005

        Ram Darash          ...            Petitioner

                                                                     Vs

        State of U.P.  and others          ....  Respondents.

Counsel for the petitioner :     Sri Rajesh Kumar Rao

Counselfortherespondents:     Sri Ajay Singh and Standing counsel.  

Hon'ble Mr. Rakesh Tiwari, J.

         Heard counsel for the parties and perused the record.

           The petitioner is driver in U.P. State Road Transport Corporation.  On 6.7.2003, the petitioner along with Sri K.P. Pandey, co-driver and Sri Bhagwant Prasad, conductor

was driving Bus No. 53 L 9585 from Delhi to Nichlaul.  The bus was scheduled to take a halt at Sonauli, in the intervening night of 6/7.7.2003 and was to then proceed in the morning of 7.7.2003 to Nichlaul via Farenda.

The case :

It is admitted to the parties that before reaching Sonaulit in the night of 6.7.2003, the journey was broken at New Shera Hotel for the refreshment of passengers and staff.  After taking meals, the petitioner suffered severe stomach pains. In the circumstance, he handed over charge of the bus to co-driver Sri K.P. Pandey and Conductor Sri Bhagwant Prasad. The petitioner was taken to Primary Health Centre by the Hotel proprietor- Sri Ujagar Singh. Thereafter, Sri K.P. Pandey, co-driver and Sri Bhagwant Prasad, conductor proceeded with the journey from Sonauli without night halt for Nichlaul.  

The petitioner, in the meantime, was attended by the Medical Officer/in charge of the Primary Health Centre, Adda Bazar, who administered medicines to him and was advised to rest.  When condition of the petitioner improved in the morning, he was taken back by the hotel owner to his hotel where he got information through the local newspaper that the bus had met with an accident as a result whereof, the public had burnt the bus in retaliation.

It is submitted that the petitioner immediately rushed to the spot but did not find anyone there.  He thereafter went to the Nichlaul Depot where he met the co-driver and the conductor. On enquiry, he was told that after proceeding from the hotel the bus got struck in mud and when co driver and the conducted tried to take out the bus to the road, it caught fire due to short circuit and First Information Report had been lodged by them.

Thr record :

The petitioner was placed under suspension vide order dated 9.7.2003 and was served with a charge sheet dated 19.7.2003 for the following charges :-

"                              vkjksi Ik=

        ,rOnkjk vki ij fuEufyf[kr vkjksi yxk;s tkrs gSa %&

  ;g fd fupykSy fMiks dh okgu la[;k ;w0ih0 53@,y&9585 fnukad 6&7&2003 dks fnYyh ls vkdj jkf= esa lksukyh esa gkYV gksuh Fkh] vkSj fnukad 7&7&03 dks lqcg QjsUnk gksrs gq, fupykSy tkuk Fkk A mDr okgu ij vki ,oa Jh ds0ih0 ik.Ms; pkyd rFkk Jh HkxoUr izlkn] ifjpkyd] fupykSu fMiks dk;Zjr Fks !  vki yksxksa Onkjk cl dks lksukyh esa gkYV u djds fnukad 6&7&03 dks gh jkf= esa lspkfyr djds ykbZ tk jgh Fkh vkSj okgu QjsUnk ckbZikl ij futZu Lfkku ij ykdj xhyh feVVh esa /kalk fn;k x;k A cl xhyh feVVh esa /kal tkus ds ckn vki yksxksa Onkjk u'ks dh gkyr esa cl dks fudkyus dk dkQh iz;kl fd;k x;k ijUrq cl fudy ugha ikbZ A cl u fudyusa ds dkj.k vki yksxksa Onkjk vius dqd`R; dks fNikus ds fy, fdlh Toyu'khy inkFkZ dk mi;ksx djrs gq, cl esa vkx yxkdj tyk fn;k vkSj ihNs ds nksuksa Vk;j rFkk mlesa yxh Lvsiuh ty x;k vkSj tks Vk;j jksM lkbZZM esa Fks ogh Hkh iwjh rjg ls ty x;s Fks A lhVksa rFkk Cykd cksMZ dk fiNyk fgLlk iwjh rjg ls ty x;s Fks A vkxs dk Vk;j Hkh tyk gS A cl dh ckMh Hkh vk/ks ls vf/kd fgLls dk tyk gqvk ik;k x;k A mPpkf/kdkfj;ksa Onkjk cl tyus ds dkj.k dk irk yxkusa ds fy, QjsUnk Fkkusa ls lEidZ fd;k x;k rks ;g ik;k x;k fd vki yksxksa Onkjk 'kkVZ lfdZV dh lwpuk Fkkusa esa ntZ djkbZ gS] tcfd okgu dh 'kkVZ lfdZV fujh{k.k ds nkSjku lgh ikbZ x;h rFkk vki yksx cl tyus ds LFkku ls Qjkj ik;s x;s A bl izdkj vki yksxksa Onkjk okgu lap;k ;w0ih0 53@9585 dks tkucw>dj tyk;k x;k gS vkSj fuxe dks yxHkx 4 yk[k #Ik;s dh gkfu igqapkbZ x;h gS A

bl izdkj vki foHkkxh; vkns'kksa ,oa funsZ'kksa dh vogsyuk djusa] fnukad 5&7&03 dks okgu la[;k ;w0ih053@,y 9585 dks jkf++= esa lksukSyh esa gkYV u djds euekusa <ax ls jkf= esa gh cl lapkfyr djusa] okgu dks xhyh feVVh esa Qalk nsusa] okgu dks xhyh feVVh ls fudkyus dk iz;kl djusa] okgu u fydyusa ij mlesa fdlh Toyu'khy inkFkZ dks Mkydj okgu dks tyk nsausa] vius drZC;ksa ,oa nkf;Roksa dk fuoZgu lgh <ax ls lEikfnr u djus] foHkkx dks yxHkx 4 yk[k #Ik;s dh gkfu igqapkusa] LosPNk iwoZd foHkkxh; dk;Z lEikfnr djusa] drZC;P;wr gksusa rFkk deZpkjh vkpj.k lafgrk dk mYys?ku djusa ds izFke n`"V;k nks"kh ik;s tkrs gSa A"

 A show cause notice dated 6.2.2004 was also issued  The petitioner submitted his replies to the charge sheets and show cause notice vide replies dated 7.8.2003 and 23.2.2004 respectively.

 Sri R.R. Prajapati, Assistant Regional Manager (Finance), Gorakhpur- the enquiry officer conducted a detailed enquiry in the matter and found that at the time of accident, the petitioner was under treatment and was not responsible for the accident.  Charges regarding accident were also not found proved against him. However, in the opinion of enquiry officer, the petitioner ought to have informed the competent authority regarding his illness through telephone in the night itself. The relevant extract of the enquiry report not finding the petitioner guilty of any of the charges levelled against him is as under :-

"     bl lEcU/k esa vkjksih Jh jkenj'k] pkyd ds fo#) tkjh vkjksi Ik=] vkjksiksa dh lQkbZ esa izLRqr Li"Vhdj.k ,oa Li"Vhdj.k ds lkFk layXu vfHkys[ksa] tkWp vUrxZr lcwr lk{kh ds c;kj vkjksih Onkjk iwNs x;s iz'u ,oa muds mRrj rFkk Ik=koyh ij miyCCk vU; vfHkys[kksa dk xgu v/;;u fd;k x;k A ;gh ugha fo"k;xr ekeysa esa okLrfodrk dh rg rd igqWpusa ds fy, esfMdy vkQhlj bUpktZ] lh0,p0lh0 vMMk cktkj tuin egjktxat ls Hkh iwNrkN fd;k x;k rFkk fyf[kr mRrj izkIr fd;k x;k A ekeysa ls lEcfU/kr izdj.k Ik=koyh esa laxZXu  Jh ds0ih0 ik.Ms;] pkyd fupykSy fMiks dks Li"Vhdj.k fnukad 5&8&03 ,oa muds Onkjk Fkkuk/;{k QjsUnk tuin egjktxat esa fy[kkbZ x;h izkFkfefd vkfn ds voyksdu ls ,oa mlds lw{e v/;;u ls ;g ckr Li"V #Ik ls tkfgj gks jgh gS fd ?kVuk ds le; Jh ds0ih0ik.Ms; pkyd ekSds ij ekStwn Fks vkSj muds Onkjk gh cl pykdj ys tk;h x;k Fkh tgkW fd cl tyh] muds Li"Vhdj.k ds I`k"B rhu ij vfUre iSjs esa ;g Li"V vafdr gS fd cl esa vkx yxus dh I`kFke lwpuk fjiksVZ muds Onkjk ;kfu Jh ik.Ms; Onkjk gh QjsUnk Fkkuk esa ntZ djk;gh x;h og ?kVuk ds le; cl ds ikl ekStwn Fks A mUgksus ;g Hkh fy[kk gS fd ?kVuk LFky dh feVVh cjlkr ds dkj.k xhyh gks x;h Fkh ftlds otg ls xhyh feVVh esa ifg;k Qal x;h u fd muds Onkjk xhyh feVVh esa iafg;k dks /kalk fn;k x;k A Jh ik.Ms; ds Li"Vhdj.k ds X;kjgosa iSjs esa ;g vafdr gS fd lEiw.kZ ?kVuk dze dh tkWp iMrky lEcfU/kr Fkkuk QjsUnk ds Fkkuk/;{k ,oa ogka ds flikfg;ksa Onkjk dh x;h mu yksaxksa Onkjk Jh ik.Ms; dk eqg [kqyokdj ns[kk x;k& lwW?kk x;k ijUrq fdlh izdkj dh egd ugha ik;h x;h A cl ds vUnj ?kql dj ns[ks tkus ij cl ds vUnj dksbZ NksVk ;k cMk xSl flysUMj ugha ik;k x;k vkSj u dksbZ Toyu'khy inkFkZ gh ik;k x;k A Jh ik.Ms; ds bl Li"Vhdj.k ls ;g fu%lUnsg ik;k tkrk gS fd Jh ds0ih0ik.Ms;] pkyd gh cl dks lksukyh ls ysdj x;s vkSj mUgha ds vfHkj{k.k esa cl tyh A muds Onkjk tks ,Q vkbZ vkj fy[kok;k x;k gS mlesa ?kVuk ds le; Jh jke nj'k] pkyd o HkxoUn izlkn] ifjpkyd dh mifLFkfr u rks ntZ gS u gh mldk dksbZ fooj.k gh ntZ fd;k x;k gS ftlds vk/kkj ij vkjksih dh mifLFkfr oghW ij izekf.kr ugha gksrh gSA EksfMdy vkQhlj ( fpfdRlkf/kdkjh) lkeqnkf;d LokLFk dsUnz vMMk cktkj egjktxat Onkjk tks fyf[kr rgjhj nh x;h gS mlds vuqlkj vkjksih Jh jkenj'k pkyd] fupykSy fMiks fnukad 6&7&2003 dks mDr fpfdRlkf/kdkjh ds vkokl ij isV nsnZ dh gkyr esa x;s Fks tgkW mUgsa fpfdRld ds vkokl ij gh nok nh x;h ,oa vkjke djus dh lykg fn;k A vkjksih ds vuqlkj iw.kZ LoLF; gkus ds Ik'pkr og fnukad 7&7&03 dks ?kVuk dh lwpuk ,su&dsu izdkjs.k ikdj og egjktxat igqWpk tgkW mldh eqykdkr pky Jh ds0ih0ik.Ms; o ifjpkyd Jh HkxoUr izlkj ls gqbZ A bl izdkj miyC/k vfHkys[kksa ,oa lQkbZ lk{; ds c;ku ds voyksdu ,oa ifj'khyu ls ;g Li"V ik;k tk jgk gS fd ?kVuk ds le; tU; ifjfLFkfro'k vkjksih Jh jkenj'k pkyd ekSds ij ekStwn ugha Fks vkSj u rks buds Onkjk cl ogkW pykdj ys tkbZ xbZ Fkh vkSj u gh muds vfHkj{k.k esa cl tyh ijUrq bruk vo'; gS fd vkjksih dh rch;r xksj[kiqj ls lksukSyh tkrs le; [kjkc gqbZ ftlds mijkUr cl NksMdj vius mipkj gsrq vLirky x;s A vkjksih dk nkf;Ro Fkk fd bldh lwpuk nwjHkk"k ls fMiksa esa l{ke vf/kdkjh dks nsrs tks muds Onkjk ugha fd;k x;k A vr% vkjksih mDr ds fy, nks"kh ik;k tkrk gS A

                                     g0 viBuh;

                                   (vkj0vkj0 iztkifr)

                       lgk;d {ks=h; izcU/kd (foRr)] tkap vf/kdkjh"  

  The petitioner was thereafter reinstated in service by the Regional Manager and was awarded the punishment for forfeiture of arrears of salary for the period of suspension; his three increments were withheld with cumulative effect. The authority also directed recovery of 1/3rd amount of the loss suffered by the Corporation as token amount  to be recovered from the salary of the petitioner.  The relevant extract of the impugned order dated 5.3.2004 is as under :-

" leLr Ik=koyh ds voyksduksijkUr@fopkjksijkUr eSa bl fu"d"kZ ij igqWpk gwW fd ;/kfi tkWp fjiksVZ ds vk/kkj ij vkjksih ?kVuk LFky ij mifLFkr ugha Fks fQj Hkh tkWp vf/kdkjh Onkjk Hkh mUgas LVs'ku bapktW dks le; ls lwpuk u nsusa ds fy, nks"kh ekuk gS A isV nns tSls ekeysa esa budks ofj"B dsUnz izHkkjh dks lwpuk nsuh pkfg, Fkh A pkgs foyEc ls nsrs ijUrq nsuk pkfg, Fks A ;wWfd ekeysa es ljdkjh MkDVj esfMdy vkQhlj] lh0,p0lh0 vMMk cktkj egjktxat Onkjk esfMdy lVhZfQdsV fn;k x;k gS  ftldh iqf"V fpfdRld usa tkWp ds le; i= esa fy[kk gS vr% esfMdy lVhZfQddsV ij fo'okl u djusa dk iz'u ugha mBrk A tkWp vf/kdkjh us Fkkusa Lrj] vLirky Lrj ij O;fDrxr #Ik ls izR;sd fcUnq ij tkWp djkbZ gS A vr% mudh tkWp fjiksVZ ls lEcU/k gksus ds ckotwn Hkh muds Onkjk fn;s x;s fu"d"kksZ esa vkaf'kd nks"kh dh I`k"Bhkwfe esa vkjksih dh Hkwfedk lafnX) gS A vr% izLrkfor n.M vuq#Ik Jh jke nj'k pkyd fupYkSy fMikks dks fuyEcu vof/k esa vo'ks"k osru dks tCr djrs gq, mUgsa orZekj osru dze esa rhu osrudze Hkfo"; izHkko ds lkFk uhps mrkjk tkrk gS rFkk fuxe dks igqaph {kfr dk dqy 1@3 /kujkf'k dh Vksdsu fjdojh n.M Lo#Ik osru ls olwyh djrs gq, mUgsa lsok esa cgky fd;k tkrk gS vkSj izdj.k fuLrkfjr fd;k tkrk gS A /kujkf'k dk vkadyu lgk;d {ks=h; izcU/k foRr vius Lrj ls fu;ekuqlkj djsaxs vkSj lqfuf'pr /kujkf'k l{ke vf/kdkfj;ksa dks lwfpr djsaxsa A

                                        g0 vkj0,u0 frokjh

                                           {ks=h; izcU/kd A"

The petitioner preferred statutory appeal against the aforesaid order dated 5.3.2004 under Regulation 69 of the U.P. State Road Transport Corporation Employees (other than Officers) Service Regulations, 1981 before the appellate authority on 15.3.2004. The appeal was dismissed by the Chief Manager (Personnel) vide order dated 6.10.2004 holding that the appellant had not given any such argument or evidence which may warrant any modification or variation .

The contention of petitioner

It has been urged by counsel for the petitioner that the U.P. State Road Transport Corporationis incorporated under the Road Transport Corporation Act, 1950 (hereinafter referred to as ''the Act') which in itself is a complete Code regarding entire functioning of the Corporation.  He submits that  Under Section 34 of  the Act, the Corporation is empowered to frame Regulations regarding recruitment, conditions of service, training of its employees, wages to be paid to them etc. The U.P. State Road Transport Corporation has accordingly framed U.P. State Road Transport Corporation Employees (other than Officers) Service Regulations, 1981 and that  Regulations 61 to 69 deal with the conduct, punishment and appeal for the employees of the Corporation. Under the aforesaid provisions, the order passed by the appellate authority is final.  

It is vehemently urged by the counsel for the petitioner that from the perusal of records, report of the enquiry officer and findings recorded by the disciplinary authority, etc., the charges of accident of bus and loss suffered by the Corporation alleged to be result of misconduct of the petitioner were not proved against him. The counsel, therefore, submits that the order passed by the appellate authority is not supported by record.  According to him the order impugned is an example of arbitrariness and  non-application of mind as the same is in clear contradiction to the report of the enquiry officer and the findings recorded by the disciplinary authority. It is further urged that the punishment awarded to the petitioner does not commensurate to the gravity of the charges levelled against him which admittedly had not been proved. In support of his contention, he placed implicit reliance on the decisions in M/S. Bharat Forge Co. Ltd. V. Uttam Manohar Nikate-(2005)2 SCC-489; Regional Manager Sri Gandhi Ashram V. Labour Court-(2005)1 UPLBEC-68; Ram Prasad Prajapati V. Labour Court and another (2003)3 UPLBEC-2286 and Mahindra and Mahindra Ltd. V. B.B. Naravade (2005)3 SCC-134.

Respondents' case

A preliminary objection was raised by counsel for the respondents that the petitioner has an alternative remedy for redressal of his grievance by way of filing revision under Regulation 69-A of the U.P. State Road Transport Corporation Employees (other than Officers) Service Regulations, 1981 before the Chairman/Managing Director, U.P. State Road Transport Corporation, Lucknow as well as of raising an industrial dispute under the U.P. Industrial Disputes Act,1947 which has not been exhausted by him, as such, the writ petition is not maintainable.  He supported his argument by placing reliance on decisions of Hon'ble the Apex court in K.Vidya Sagar V. State of U.P. and others- (2005)5 SCC-590; Secretary Minor Irrigation and Rural Engineering Services U.P. and others V. Sahngoo Ram Arya and others - A.I.R. 2002 S.C-2225 and Central Coal Fields Ltd. V. State of Jhankhand and others-(2005)7 SC-492.  

On merits, he contended that the petitioner, his co-driver and the conductor acted  against the instructions to halt at Sonauli for night on 6.7.2003;  they consumed liquor and due to their drunken position deliberately got  the wheel of the bus struck in the mud, hence with motive to conceal their misconduct, they put fire to the bus and subsequently a false F.I.R was lodged by them at Farenda Police Station  and that the fire by which the bus was burnt was caused due to short-circuit. He also submits that when inspection team of the Corporation reached the spot, all the three persons ran away but, however, it was found by the inspection team that the cause of fire was not short-circuit and the bus was deliberately burnt down by them. It is strenuously urged by him that as a result of aforesaid misconduct the Corporation suffered a loss of Rs.4 lacs and the petitioner along with other aforesaid staff were fully responsible for it. He submitted that the punishment awarded to the petitioner is not disproportionate but commensurates with the charge proved against him.

Conclusions

Having heard rival submissions and perused the enquiry report as well as the subsequent orders passed by the punishing authority and the appellate authority, there is no dispute about the fact that the petitioner was under medical treatment and confined to bad at Sonauli.  He was attended by Government doctor at Government hospital who gave in writing that he had administered medicine to the petitioner and had advised him rest for the night on 6.7.2003. In fact, the enquiry officer has given a categorical finding of fact that on the basis of documentary and oral evidence, it is evident that the petitioner/charged employee, due to circumstances beyond his control was not driving the bus nor it was burnt in his presence nor the bus was in his charge as he was under medical treatment at the relevant time. These findings of facts have also been endorsed and approved by the punishing authority. The charge that petitioner along with other staff on bus had deliberately got the bus struck in the mud in drunken condition and to conceal this misconduct had burnt down the bus, is not only not proved but also falsified by the Police as well as departmental enquiry.  It also appears to be frivolous.  How could the said burning of the bus conceal the drunkenness of the accused? There was neither any evidence of drunkenness nor any inflammable material found and proved by the department in support of the charge. It is an admitted fact that the petitioner was not on spot due to his being under medical treatment, hence, the charge that he absconded from the site of accident also was not proved .

  As regards the punishment of token recovery of 1/3 amount if loss suffered by the Corporation from the salary of the petitioner, the authorities below have failed to apply their judicious mind to the fact that there was no charge against the petitioner that he had not informed the authorities about his illness and petitioner has not been found  responsible for it in the enquiry. he cannot be held liable to recovery of any amount for the alleged loss to the Corporation. It appears that recovery is not of token amount but of equal division on the petitioner, the co-driver and the conductor.

The  Court in the circumstances is not inclined to relegate the petitioner to alternate remedy in the instant case where the miscarriage of justice is apparent on face of record. Once the Court is satisfied that a gross injustice has been caused to the petitioner by the arbitrary and whimsical orders, impugned in the present petition, The Court, under Article 226 of the Constitution is duty bound to not only ensure that justice is done but is also bound to see that there is no miscarriage of justice.

For the reasons stated above, the writ petition succeeds and is allowed. The impugned orders dated 5.3.2004 passed by respondent no. 3 and dated 6.10.2004 passed by respondent no. 2 are quashed.  The petitioner shall be entitled to full salary with 10% simple interest from the due date till the date of payment during the period of his suspension and the respondents shall  also not recover any amount from from the salary of the petitioner.  Cost of Rs.5000/- is assessed on the respondents payable to the petitioner within two months from today.

Dated : 18th November,2005

kkb


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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