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GIRIJESH SINGH versus U.P. STATE ROAD TRANSPORT CORPORATION AND OTHERS

High Court of Judicature at Allahabad

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Girijesh Singh v. U.P. State Road Transport Corporation And Others - WRIT - A No. 73406 of 2005 [2006] RD-AH 11848 (20 July 2006)

 

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

Reserved

Civil Misc. Writ Petition No. 73406 of 2005

Girijesh Singh

Versus

U..P. State Road Transport Corporation,

Terhi Kothi, Lucknow and others

Hon'ble V.K. Shukla,J

Present writ petition  has been filed by the petitioner questioning the validity of decision dated 04.09.2005 ( Annexure-3 to the writ petition). passed by Assistant Regional Manager, U.P. S.R.T.C. Gorakhpur, imposing recovery of Rs. 53,102/- from the petitioner in 53 installments and the subsequent order dated 18.11.2005 passed by Regional Manager, U.P. State Road Transport Corporation (U.P.S.R.T.C.) Gorakhpur, rejecting  the appeal preferred against the same .

Brief and relevant facts giving rise to instant writ petition are that petitioner has been performing and discharging duties as conductor in U.P.S.R.T.C. and is currently posted at District Gorakhpur. Petitioner has contended that on 09.09.2000, he had gone with bus No.1670 from Gorakhpur to Delhi (Anand Vihar Bus Station, Delhi, which was the last destination). Petitioner has contended that on account of unprecedented rush certain tickets were missing. He tried his level best to find out those tickets, however, when these tickets were not recovered, petitioner lodged an F.I.R. at police station Anand Vihar, New Delhi regarding missing of tickets. The said application/F.I.R. was forwarded by the Manager of  Anand Vihar Bus Station. Petitioner, after his return from Delhi, informed the Station in-charge, Raptinagar Depot. Gorakhpur and a copy of the F.I.R. was made available  to the station in-charge. Petitioner has contended that authorities were satisfied with the fact that ticket had lost, as such no action was taken against the petitioner. However,  after about five years Assistant Regional Manager, U.P. S.R.T.C.  Gorakhpur on 22.08.2005 asked the petitioner to show cause as to why amount equivalent to the valuation of tickets, which were lost, be not recovered from the salary of the petitioner. As per show cause notice, petitioner was to submit reply on or before 01.09.2005. However, petitioner has contended that said notice was served upon him on 03.09.2005, by which time he was already deputed on bus bound to Delhi. Petitioner proceeded on duty and came back with bus on 07.09.1995. On 07.09.1995, petitioner received order dated 04.09.2005 directing the petitioner to deposit Rs.53,102/- in 53 equal installments. As entire proceedings were exparte, petitioner submitted his reply to the show cause notice dated 22.08.2005 on 08.09.2005, and in reply so submitted full details were furnished that information regarding loss of tickets had been furnished to Station Incharge, Anand Vihar Bus Station and further there was no negligence or dishonesty on the part of petitioner. Petitioner has contended that ignoring his reply, Rs.1000/- was deducted from his salary. Petitioner represented the matter before the Regional Manager complaining arbitrary treatment being meted to him. On one hand exparte order was passed, representation made before Regional Manager was not being attended and on the other hand recovery was sought to be implemented. In this background, petitioner preferred writ petition No. 68112 of 2005 before this Court, and this Court on 26.10.2005 directed that representation of petitioner be decided. It was also directed that while deciding petitioner's representation, reply submitted by him be also adverted to. Thereafter, order dated 18.11.2005 has been passed. At this juncture, present writ petition has been filed.

Counter affidavit has been filed and therein, it has been contended that petitioner cannot be treated as innocent merely by lodging F.I.R. and missing tickets have not been seized by the police till date, as such it cannot be certainly said that missing tickets have not been misused, and corporation has suffered huge monetary loss, and as such action which has been taken is justified action and no interference be made.

Rejoinder affidavit has been filed, and therein the statement of fact mentioned in the counter affidavit has been disputed, and further it has been contended that in the present case without undertaking any exercise, liability has been created, whereas matter ought to have been examined in terms of provisions as contained  under Denomination Tickets and Blank Tickets Manual, as such writ petition is liable to be allowed.

After pleadings have been exchanged, present writ petition has been taken up for final hearing and disposal with the consent of the parties.

Sri J. P. Singh, learned counsel appearing for the petitioner, contended with vehemence that in the present case action has not been taken within reasonable period, and further at no point of time any exercise, whatsoever, has been undertaken before fixing the liability on the petitioner, as such impugned order is nothing but an arbitrary exercise of power, as such writ petition is liable to be allowed.

Sri Ajay Singh, Advocate, representing U.P. S.R.T.C., on the other hand, countered the said submission by contending that as per provisions contained under U.P.S.R.T.C. Employees Regulations, 1981, opportunity had been provided for, and petitioner has been negligent and loss has been caused to the Corporation, as such there is no infirmity in the decision so taken, and this Court cannot act as Court of appeal an sit over the judgment of the authority concerned, as the order passed is in conformity with the Rules.

Before proceeding to consider the rival submissions, it would be relevant to note that in exercise of powers conferred under Section 145 (2) (c) of the Road Transport Corporation Act, 1950, with previous sanction of the State Government, Regulations have been framed regulating recruitment and conditions of service of the persons appointed to the U.P. S.R.T.C.  Said Regulations are known as U.P.S.R.T.C. (Employees) (other than Officers) Service Regulations, 1981. Said Service Regulations are to apply on all employees other than officers and except those who are working on deputation or on contract. Regulation 62 without prejudice to the generality of misconduct declares that acts of omission and commission mentioned therein be considered as misconduct. Regulation 63 deals with penalties and Regulation 65 deals with procedure for imposing minor penalties. Said Regulations are being quoted below:

^^62- in vopkj dh O;kidrk ij dksbZ izfrdwy izHkko Mkys fcuk] djus ;k u djus ds fuEufyf[kr d`R;ksa dks vopkj le>k tk;sxkA

¼1½ fuxe ds dkjksckj ;k mldh laifRr ;k fuxe ds ifjlj esa fdlh vU; O;fDr dh lEifRr ds lEcU/k esa diV ;k csbZekuhA

¼2½ fj'or ;k dksbZ voS/k ikfjrksf"kd ysuk ;k nsukA

¼3½ deZpkjh ;k mldh vksj ls fdlh vU; O;fDr }kjk vk; ds Kkr lzksrksa ds vuqikr esa ,sls /ku lEcU/kh lalk/ku ;k laifRr j[kuk ftlds ckjs esa deZpkjh lek/kkuizn :i esa ys[kk tks[kk u ns ldsA

¼4½ fu;kstu ds le; ;k fu;kstu ds nkSjku uke] vk;q] firk dk uke] vgZrk] ;ksX;rk ;k fiNyh lsok ;k fu;kstu ls lEcfU/kr fdlh vU; fo"k; ds ckjs esa lwpuk nsukA

¼5½ ,slh jhfr ls dk;Z djuk tks fuxe ds fgrksa ds izfrdwy gksA

¼6½ vius ofj"B vf/kdkjh ds fdlh fof/kiw.kZ vkSj mfpr vkns'k dh pkgs vdsys gks ;k fdlh vU; ds lkFk feydj] vu/khurk ;k voKk djukA

¼7½ NqV~Vh ds fcuk vuqifLFkr jguk ;k i;kZIr dkj.kksa ;k leqfpr ;k larks"kturd Li"Vhdj.k ds fcuk Lohd`r NwV~Vh ls vf/kd BgjukA

¼8½ vknru nsj ls vkuk ;k vfu;fer mifLFkrA

¼9½ dk;Z dh mis{kk ;k drZO; ikyu esa mis{kkA

¼10½ fuxe dh fdlh lEifRr dks {kr igqapkukA

¼11½ fuxe ds ifjlj esa ;k mlds fudV vf/k"Bkfir fdlh lqj{kk;qfDr esa dksbZ ck/kk igqapkuk ;k mls fcxkM+ukA

¼12½ fuxe ds ifjlj esa en eRrrk ;k cyokbZ ;k foPN`[ky ;k vHknz O;ogkj djuk ;k ,sls ifjlj ds ckgj Hkh ,slk djk tc ,slk O;ogkj fu;kstu ls lEo`Rr ;k lEc) gksA

¼13½ vf/k"Bku ds ifjlj esa tqvk [ksyuka

¼14½ vf/k"Bku ds ifjlj esa /kweziku djukA

¼15½ vknru _.kxzLrrk vkSj fnokfy;kiuA

¼16½ 'kkldh; nLrkostksa dks vizkf/kd`r :i ls lalwfpr djuk ;k fdlh vizkf/k&d`r O;fDr dks fuxe ds dk;Z vkSj dkjksckj ds lEcU/k esa lwpuk nsukA

¼17½ M~;wVh ij jgrs le; lks tkukA

¼18½ le{k izkf/kdkjh dh vuqefr ds fcuk fuxe ds ifjlj esa ns'k dh rRle; izo`Rr fdlh fof/k }kjk ;k fuxe ds izkf/kdkj ds v/khu ;Fkk Lohd`r /ku ds flok; fdlh fof/k }kjk ;k fuxe ds izkf/kdkj ds v/khu ;Fkk Lohd`r /ku ds flok; fdlh /ku dk laxzg djukA

¼19½ vuqefr ;k i;kZIr dkj.k ds fcuk] dk;Z ds fu;r LFkku ls vuqifLFkr jgukA

¼20½ dksbZ ,slk d`R; djuk tks uSfrd v/kerk ls lEcfU/kr vijk/k gksA

¼21½ dksbZ ,slk d`r; djuk tks vuq'kklu vkSj vPNs O;ogkj ds izfrdwy gksA

¼22½ fdlh ,sls dk;Z ds fy, ftlls vopkj gksrk gks] nq"izsfjr djuk ;k nq"izsfjr djus dk iz;kl djukA

63- fdlh deZpkjh ij leqfpr vkSj i;kZIr dkj.kksa ls vkSj tSls vkxs micU/k fd;k tk;] fuEufyf[kr 'kkfLr vkjksfir dh tk ldrh gS] vFkkZr&

NksVh 'kkfLr

¼1½ ifjfuUnk ¼lsalj½

¼2½ osruo`f) jksduk

¼3½ n{krkjksd ikj djus ds fy, vuqi;qDrrk ls fHkUu vk/kkj ij n{krk jksd ij jksdukA

¼4½ ykijokgh ;k fdlh vkns'k ds mYya?ku ls fuxe dks gqbZ gkfu dks iw.kZr;k ;k va'kr% osru tek vU; /kujkf'k ls olwy djukA

cM+h 'kkfLsr

¼5½ fdlh fuEu Js.kh ;k in ij ;k le;&eku esa fdlh fuEu izdze ij inkour djuk

¼6½ lsok ls gVkrk tks Hkkoh fu;qfDr ds fy, vugZrk u gksxkA

¼7½ lsok ls inP;qr djuk tks Hkkoh fu;qfDr ds fy, vugZrk gksxkA

65- ¼1½ tgkWa fu;qfDr vf/kdkjh ;k ,sls izkf/kdkjh dk ftls cksMZ }kjk bl fufeRr 'kfDr;ka izr;ksftr dh tk;sa] ;g lek/kku gksa tk; fd ,slk ekxZ viukus ds fy, leqfpr vkSj i;kZIr dkj.k fo|eku gS] ogkWa og mifofu;e ¼2½ ds micU/kksa ds v/khu jgrs gq,] fuEufyf[kr ,d ;k vf/kd 'kkfLr;kWa vkjksfir dj ldrk gS] vFkkZsr&

¼,d½ ifjfuUnk ¼lsalj½]

¼nks½ n{krkjksd ij jksduk

¼rhu½ le;&eku esa osruo`f) jksduk tgkW dh n{krkjksd u gks

¼pkj½ ykijokgh ;k vkns'kksa ds mYya?ku ds dkj.k fuxe dks gqbZ lEiw.kZ vkfFkZd gkfu mlds fdlh Hkkx dks osru ;k tek vU; /kujkf'k ls olwy djukA

¼2½ deZpkjh dks mlds fo:) yxs vkjksiksa dh lwpuk nh tk,xh vkSj mlls ;qfDr&;qDr le; ds Hkhrj viuk Li"Vhdj.k izLrqr djus dks dgk tk;sxkA mi fofu;e ¼1½ esa fofufnZ"V izkf/kdkjh ,slk vkns'k nsxk tSlk og mfpr le>s vkSj tgkWa 'kkfLr nh tk;] ogkWa mlds dkj.k fn;s tk;saxs

ijUrq mDr izfdz;k dk vuqlj.k djuk vko';d u gksxk ;fn fdlh deZpkjh dh lR;fu"Bk izekf.kr u fd;s tkus ds dkj.k osru ds le;&eku es mldh osruo`f) jksd nh tk;A**

A bare perusal of the aforesaid Regulations would go to show that negligence in performance of duties has been described and defined as one of the misconduct. Amongst minor penalties one of the minor penalties, which can be provided for is recovery from the pay or deposit its credit wholly or in part, pecuniary loss caused to the  Corporation by negligence or breach of order. Before proceeding to award minor penalty, employee is to be informed of the charges against him and called upon to submit his explanation within reasonable time and thereafter decision has to be taken, as is considered appropriate and whatever penalty is awarded, reason therefor has to be given. Thus, before imposing penalty for recovery from pay or deposit at his credit wholly or in part of any pecuniary loss caused to the corporation by negligence or breach of order has to be established. At this juncture Compendium, which has been issued qua Tickets and which is known as Denomination Tickets and Blank Tickets Manual is being looked into . It has been accepted by Respondents that qua tickets, the provisions as contained in compendium of Tickets are applicable. Qua loss of tickets specific provision has been provided for as to how the matter has to be dealt with. Relevant extract of the aforementioned provision, which cover the field, is being quoted below:

^^fVdVksa ds [kksus ds lEcU/k esa

1- fVdVksa ds [kksus dh n'kk esa mldh lwpuk rqjUr fMiksa izcU/kd@LVs'ku v/kh{kd dks nh tk;sxhA ifjpkyd rFkk cqfdax DydZ fVdV [kksus dh n'kk esa bldh lwpuk LVs'ku v/kh{kd dks nsxsa rFkk LVs'ku v/kh{kd] l0{ks0iz0 dks lwfpr djsxsaA lgk;d {ks=h; izcU/kd {ks= ds {ks=h; izcU/kd dks lwfpr djsaxsA tSls gh fVdV [kksus dk ekeyk izdk'k esa vkrk gS rqjUr bu fVdVksa dks dSfUly dj fn;k tk;sxkA bu dSfUly fd;s x;s fVdVksa dk vkns'k ftuesa budk fljht ,oa uEcj Hkh vafdr gksxk lHkh {ks=ksa dks Hkstk tk;sxka [kks;s gq, fVdVksa dh fjiksVZ Hkh rqjUr fudVre Fkkus esa ntZ djk;h tk;sxh rFkk leLr ;krk;kr fujh{kdksa@;krk;kr v/kh{kdksa dks lpsr dj fn;k tk;sxk fd og bldk /;ku j[ksa fd [kks;s gq, fVdVkksa dk nq:i;ksx u gks ldsaA

2- lgk;d {ks=h; izcU/kd fcuk fdlh foyEc ds fVdVksa ds [kksus dh tkap djk;saxs rFkk ,d i[kokM+sa ds vUnj viuh fjiksVZ izLrqr dj nsaxsA {ks=h; izcU/kd }kjk bl fjiksVZ ds izkIr gksrs gh vko';d dk;Zokgh dh tk;sxh rFkk d`r dk;Zokgh ls izcU/k funs'kd dk;kZy; dks lwfpr fd;k tk;sxkA bu ekeyksa esa dk;Zokgh djus esa dksbZ foyEc ugha fd;k tk;sxkA

3- fMukfeus'ku@CySad fVdV cqd ds [kksus dh n'kk esa fVdV ds mPpre ewY;kad dh nj ls olwyh blds fy;s mRrjnk;h dkfeZdksa ls dh tk;sxh] vFkkZsdr ;fn ,d :i;s ls 10 :i;s rd ds ewY;kad ds CySad fVdV gS rks izR;sd [kks;s gq, fVdV ds fy;s :i;k 10 izfr fVdV dh nj ls olwyh dh tk;sxh ysfdu :i;k 80-50 vkSj vf/kd ewY;kad okys CySad fVdV [kksus ij ekxZ ds vf/kdre fdjk;s dh nj ls olwyh dh tk;sxhA blh izdkj fMukfeus'ku fVdV dh n'kk esa ;fn :- 5@& ds nl fVdV [kks tkrs gSa arks izfr fVdV :- 5@&dh nj ls olwyh dh tk;sxhA fjdojh dsoy mlh n'kk esa ugha dh tk;sxh tc xgu tkap ds nkSjku fcuk fdlh lUnsg ds ;g fl) gks tk;s fd fVdV [kksus dk ekeyk ,d vdLekr ?kVuk Fkh rFkk fVdVksa dk nq:i;ksx ugha fd;k x;k gSA yxst fVdV [kksus dh n'kk esa rFkk LVkd esa ls fVdV [kksus dh n'kk esa izR;sd ekeys ds xq.k rFkk voxq.k ds vk/kkj ij fu.kZ; fy;k tk;sxkA

4- leLr vf/kdkjh @ ;krk;kr fujh{kd ekxZ ij psfdax ds fy;s tkrs le; [kks;s gq, fVdVksa dh fljht ,oa uEcj vius lkFk ysdj tk;saxsA**

                 

A bare perusal of these provisions would go to show that in the event of tickets being lost immediate information has to be sent to the Management/Station Superintendent and Station Superintendent in its turn is supposed to inform the Assistant  Regional Manager and thereafter Assistant Regional Manager to the Regional Manager. It is also stated that the moment fact is known steps should be taken to get the said tickets cancelled and the order regarding cancellation which also bears the series and number of the tickets  should be sent to each and every Region and further information be also lodged at the nearest police station and directives be issued to Traffic Inspector and Traffic Superintendent to ensure that these tickets are not misused. It further obligates that Assistant Regional Manager without there being any delay in the matter will get inquiry conducted and submit his report within a fortnight. After receipt of the said report necessary action would be taken and Regional Manager would also be apprised of these facts. It also mentions that no delay in this matter should be made. It further mentions that in the event of Denomination/Blank ticket book being lost, amount in question would be realized as per prescribed rate from the concerned incumbent, and it also mentions that recovery will not be made only in the event if after thorough enquiry is made and it is proved beyond doubt that loss of ticket was merely an accident and there has been no misuse. It also mentions that decision would be taken on the basis of merits and demerits. It further mentions that  all Officers and Traffic Inspectors while making checking would proceed with series and numbers of lost tickets. Thus, this particular provision is complete in itself and provides the manner in which situation has to be handled.

Now on the touchstone of these provisions, the case in hand is being adverted to. Undisputed position, which emerges, is to the effect that on  09.09.2000, the moment tickets were lost, petitioner had informed the Station Incharge, U.P.S.R.T. C. Anand Vihar, Delhi on 10.09.2000 and the police of police Station Anand Vihar, Delhi. Petitioner on his return also informed the Station Incharge Rapti Nagar Depot. In the present case at no point of time any exercise of the kind qua loss of tickets as quoted and discussed, as discussed above, had been undertaken. Entire scheme which has been quoted above, is to see and ensure that tickets which had been lost, qua the same, there is no misuse and further Corporation should not suffer any loss. Assistant Regional Manager was obliged to make enquiry with all fairness and submit his report within next two weeks and further to inform each and every concerned Traffic Inspector/Traffic Superintendent about the series and number of tickets, and further the officers proceeding for checking were also to be apprised of  series and number of tickets. Idea behind the same is that tickets which have been lost should not be misused and no loss is caused to the Corporation. However, in the present case no such steps, whatsoever, had been undertaken and after a lapse of about five years, show cause notice was issued to the petitioner. It is well settled that if some duty is cast on the authority, then such duty should be performed within reasonable time. Here in the present case, for five years the respondents slept over the matter and after five years proceeded to issue show cause notice without giving any reasonable justification for the same. Respondents at no point of time cared to see as to whether show notice was served on the petitioner or not. Petitioner has made specific submission that show cause notice dated 22.08.2005 was received by him on 03.09.2005 after the date fixed was over i. e. 01.09.2005 and in the meantime Assistant Regional Manager proceeded to pass the order on 04.09.2005. As far as order passed by Assistant Regional Manager is concerned, the same is totally violative of principles of natural justice. Assistant Regional Manager proceeded on presumption that no reply had been filed, as such averments mentioned in the show cause notice is nothing but gospel truth. Assistant Regional Manager never tried to verify as to whether show cause notice had been received or not, and reasonable opportunity was there or not. Regional Manager, in the present case has also passed order on mere surmises and conjectures. Sustaining of pecuniary loss to the Corporation is condition precedent before proceeding to impose minor penalty of recovery of the amount from salary. On mere presumption that petitioner is responsible for loss of tickets, minor penalty has been imposed. The fact of the matter is that no enquiry , whatsoever,  had been conducted  to assess the pecuniary loss caused to the Corporation by negligence   or breach of order. The Compendium of Tickets, relevant extract of which has been quoted above, clearly mentions in negative language that recovery shall not be feasible wherein thorough inquiry without there being  any doubt it was proved that loss of ticket was mere accident and tickets had not been misused. In the said inquiry burden to prove beyond reasonable doubt that loss of ticket was merely an accident is on the delinquent employee, whereas burden to prove that tickets have been misused is on U.P.S.R.T.C. as they have with them full fledged machinery to check that tickets which have been lost, have been misused and the extent of loss caused to the corporation, on account of said fact. After thorough inquiry is conducted on this front, then on the basis of conclusion/finding arrived, the concerned authority is to proceed as per Regulation 65. Regulation 65 also clarifies this situation and empowers the Appointing Authority or any other Authority empowered by the Board to exercise such authority on being satisfied that there is enough and appropriate reason to proceed. After recording this satisfaction as per Regulation 65 (2) charges are to be informed, and delinquent is to be asked to submit his reply, and thereafter Authority concerned is empowered to pass appropriate order, and where punishment is to be awarded then reasons are to be recorded. Enough and appropriate reason qua loss of tickets is clearly referable to material collected in thorough inquiry conducted on Administrative side. This view will harmonise the provisions as contained in Compendium of Ticket Manual along with provisions of Regulation 65, and the contrary view will make the provisions as contained in Compendium of Ticket Manual, as redundant and otiose. One more important feature is that lost tickets are being treated as cash, on the basis of provisions as contained in Compendium of Ticket Manual, and the rest of the provisions, which cast positive obligation on the officials to deal with the situation, are altogether sought to be ignored. This is totally against the rule of fair play.  In present case no such exercise had been undertaken. Consequently, this is a case of imposing penalty without there being any  real exercise being undertaken.

Learned Counsel for respondent U.P.S.R.T.C. has placed reliance on a judgment of the Hon'ble Apex Court in case of  Regional Manager, U.P.S.R.T.C. v. Hoti Lal, 2003 SCC 605, for the proposition that scope of judicial review in these matters is very narrow and limited and restricted to any exceptional cases. Judicial review  generally speaking is not directed against decision, rather to the contrary, same is directed against the "decision making process", and the High Court while exercising power of judicial review, cannot normally substitute its own conclusion on penalty and impose some other penalty. Here conclusions have been arrived at without recording any finding on the question that loss of tickets was merely an accident or same was deliberate act and the extent of loss  caused to the Corporation on account of such loss of ticket.

In view of the discussions made above, writ petition succeeds and is allowed. The impugned orders dated 04.09.2005 ( Annexure-3 to the writ petition) passed by Assistant Regional Manager, U.P. S.R.T.C. Gorakhpur, imposing recovery of Rs.53,102/- from the petitioner in 53 installments as affirmed by subsequent order dated 18.11.2005 passed by Regional Manager, U.P. S.R.T.C. Gorakhpur, is hereby quashed and set aside.

No order as to costs.

20.07.2006

SRY.


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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