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LAKHAN SINGH versus MANAGING DIRECTOR U.P.S.R.T.C.& OTHERS

High Court of Judicature at Allahabad

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Lakhan Singh v. Managing Director U.P.S.R.T.C.& Others - WRIT - A No. 688 of 1997 [2006] RD-AH 19975 (24 November 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

A.F.R.

Reserved

Civil Misc. Writ Petition No. 688 of 1997

Lakhan Singh

Vs.

The Managing Director, U.P. S.R.T.C., & Ors.

Hon'ble Pankaj Mithal, J.

The petitioner by means of the present writ petition has challenged the order of  his dismissal from service dated 8.10.1992 (Annexure 13 to the writ petition) and the appellate order dated 15.5.1993 (Annexure 14 to the writ petition) by which his appeal has been rejected. He has further prayed for his reinstatement with full back wages and consequential benefits thereof.

The petitioner was working as a conductor with the U.P.S.R.T.C., in a substantive capacity. A Disciplinary Enquiry was instituted against him as the petitioner on 23.1.1990 while conducting  Bus No. UGC 887 from Rath to Hamirpur on checking by the Traffic Superintendent  was found carrying 18 passengers without tickets.   The Enquiry Officer submitted his report (Annexure 8 to the writ petition)  absolving him from all the charges. The Appointing Authority disagreeing with the Enquiry Report for reasons recorded in the show cause notice dated 6.6.1992 called upon the petitioner to furnish his explanation as to why he may not be dismissed from the service. The said show cause notice was received by the petitioner on 27.8.1992. However, even before the  said notice could be served   the petitioner was dismissed from the service by  the order dated 26.8.1992 but the said order of dismissal was revoked on 31.8.1992. The Appointing Authority after considering the reply of the petitioner dated 10.9.1992 which he had submitted in response to the show cause notice dated 27.8.1992 finally passed a fresh order of dismissal against the petitioner on 8.10.1992. The said dismissal order was challenged by the petitioner in a Departmental Appeal which was dismissed on 15.5.1993 (Annexure 14 to the  writ petition). It has come on record that the petitioner preferred a revision under regulation 69-A  of the U.P. Road Transport Corporation Employees (other than officers) Service Regulations 1981 regulations but there is nothing on record to show  as to what had happened to the same. The petitioner in the above background has filed above writ petition challenging the order of his dismissal from service and the appellate order.

Sri A.K. Srivastava, learned counsel for the petitioner relying upon a decision of the Supreme Court reported in AIR 1994 SC 1074 paragraphs 18 and 19  Managing Director, ECIL, Hyderabad Vs. B. Karunakar etc. has contended that the impugned order does not record any reason for disagreeing with the Enquiry report and therefore, it is unsustainable under law. He has faintly submitted that a fresh show cause notice ought to have been issued to the petitioner before passing the impugned order of dismissal, as the earlier order dismissing him from service had been revoked.

Sri Rahul Gaur, learned counsel for the U.P.S.R.T.C has raised an objection about the maintainability of the writ petition contending that the proper remedy available to the petitioner is by way of raising a labour dispute. Secondly, the petitioner cannot avail two remedies simultaneously, as his revision under Regulation 69-A of the Regulations is pending.

In Jai Singh Vs. Union of India AIR 1977 SC 898 it has been laid down by the Supreme Court that a litigant can not pursue two remedies simultaneously. However the Apex Court in JT 2004 Supplement (2) SCC 601, S.J.S. Business Enterprises (P)  Limited  Vs. State of Bihar : 2004 (7) SCC  166 in paragraph 14 has provided that where a litigant is pursuing two remedies simultaneously, the court should give him an opportunity to opt  and to choose one of the remedies before throwing out his writ petition on the ground of alternative remedy which is being persuaded by him. In the present case the petitioner is said to have filed a revision under regulation 69-A of the regulations. The said regulation providing for the remedy of revision against the appellate order was added and enforced with effect from 16.6.1993. Therefore when the appellate order was passed on 15.5.1993 there was no provision for any revision.  Even if the petitioner had filed the revision subsequently he had not pressed the same nor any action on the said revision till date has been taken  by the authority  concerned. Therefore the said revision if any has become redundant and it can not be said that the petitioner is pursuing two remedies simultaneously i.e., of revision and the writ petition.

The petitioner in the above circumstances has impliedly given up his right to pursue the revision, as according to him the said revision has become a stale and redundant as no action whatsoever was taken on it. Therefore the writ petition is not liable to be dismissed on the ground that the petitioner was pursuing his revision simultaneously with the writ petition.

As far as the existence of alternative remedy is concerned, it is settled proposition that existence of the alternative remedy is not a absolute bar for maintaining  a writ petition. There is no  absolute rule of law that the High Court should not entertain a writ petition where an alternative remedy is available. On the contrary, entertainment of a writ petition despite alternative remedy depends upon the discretion and wisdom of the court, though ordinarily writ petition under Article 226 are not entertained  when there is an alternative remedy available has not been exhausted. The Apex Court in case of Whirlpool Corporation Vs. Registrar of Trade Marks, Mumbai AIR 1999 SC 227 has laid  down that alternate would not be a bar for entertaining  a writ petition where the order impugned is without jurisdiction and has been passed in violation of the Principles of Natural Justice, and is otherwise patently unjust which results in miscarriage of justice. In the above background, it would not be prudent to shut the door of justice on the face of the petitioner on the technical ground  of not having exhausted the alternative remedy. This writ petition was filed in the year 1997 and duly entertained by the Court in which necessary counter and rejoinder affidavits have also been exchanged between the parties. It has thus remained pending for over 9 years. Therefore relying upon the decision of the High Court in the case of Hirdaya  Narain Vs. Income Tax Officer, Bareilly AIR 1971 SC  33 paragraph 12, it would not at all be desirable to dismiss the petition at this stage. In the aforesaid decision the Supreme Court despite availability of the remedy of revision under the Income Tax Act refused to dismiss the writ petition, as the petition was duly entertained.

Following the above pronouncement of the Supreme Court, the Allahabad High Court vide 1976 U.P. RCC Ram Kishan Vs. District Judge & others 257 has also held that if the petitioner instead of following the alternate remedy filed  the writ petition and the same is entertained, the High Court would not be justified in dismissing it subsequently on the ground of alternative remedy.

Thus objection raised by Sri Rahul Gaur, learned counsel for the U.P.S.R.T.C about maintainability of the writ petition is over ruled and is rejected.    

The only submission of the learned counsel for the petitioner  on  merits is that the Enquiry Officer has exonerated the petitioner from all the charges and therefore no order of punishment much less the order of dismissal could have been passed by the Disciplinary authority without recording a finding of guilt  against the petitioner appears to have substance. The learned counsel for the respondent in this connection has referred to regulation 64 (5) of the regulations which authorizes the Appointing/Disciplinary Authority to pass such orders as he considers proper on the basis of the Enquiry report and, therefore, submitted that even if the Enquiry officer has not held the petitioner guilty of any of the charge the Appointing/ Disciplinary Authority has the power to disagree and to impose a suitable punishment.

On the basis of the above rival contention the question that arises for determination  is that when the Enquiry Officer comes to a conclusion that the charges alleged against the petitioner are not proved, then can  the Disciplinary Authority impose punishment without recording a finding of guilt and that too without affording opportunity of hearing to the petitioner.

There is no dispute to the legal proposition that  where the Enquiry  is  not conducted by the Disciplinary Authority himself and is entrusted to an Enquiry Officer, he has every right to disagree with the Enquiry Officer and to impose a suitable punishment. The Supreme Court in the case of State of Assam and anothers Vs. Bimal Kumar Pandit 19964 (2) SCR  1 by a Constitution Bench held that if the Disciplinary Authority differs from the findings recording in the Enquiry Report it should issue notice expressly stating the reasons of disagreement and the nature of action proposed to be taken otherwise, it would not be possible for the delinquent employee to defend himself and the purpose of giving show cause notice would be frustrated and remain an empty formality. Therefore, the conclusion is inevitable, whenever the Disciplinary Authority disagrees with the Enquiry Officer or his report, it must record its tentative reasons for such disagreement and give to the delinquent employee an opportunity of hearing by giving a show cause notice before recording its final conclusion. However, apart from the show cause notice in the Departmental Proceeding what is of ultimate importance is the findings of the Disciplinary Authority. Therefore where there is a disagreement by the Disciplinary Authority with the Enquiry Officer, it is mandatory upon the Disciplinary Authority to record a finding of guilt on the charges levelled against him and found to be proved by it against the delinquent employee before condemning him and imposing any punishment. The said very aspect has been dealt with by the Hon'ble Supreme Court in depth in the case of Punjab National Bank and others Vs. Kunj Bihari Misra in JT 1998 (5) SC 548, apart from being dealt with in the minority view in the case of Managing Director, ECIL, Hyderabad (Supra). In the above case of the Punjab National Bank and others (Supra) it has been held that   the Disciplinary authority must record its finding on the charges framed against the delinquent employee where it disagrees with the Enquiry report or with  some of the findings of the Enquiry Officer. Thus the conclusion drawn from the above case law is that the delinquent employee is not only entitled to show cause notice specifying reasons for disagreement with the Enquiry officer but it is also incumbent upon the Disciplinary Authority to record findings of guilt against the delinquent employee before iawarding any punishment to him.

In the present case the impugned order fails to record any finding holding the petitioner guilty of any of the charges levelled against him. It only states that the Disciplinary Authority disagreeing with the report of the Enquiry Officer has given a show cause notice and after considering the reply of the petitioner thereof finds that the petitioner is guilty of  all the charges. There is no discussion on any of the charges nor any reason  has been recorded for holding the petitioner guilty. The order of the appellate authority is still worse  in as much as it is totally non speaking in nature and rejects the appeal/representation of the petitioner without discussing any point and  assigning any reason.

In view of the above, as the Disciplinary Authority before imposing the punishment of dismissal from  service upon the petitioner has failed to record any finding holding the petitioner guilty of any of the charges the impugned order of punishment dated 8.10.1992 is unsustainable under law. Accordingly, the impugned order dated 8.10.1992 (Annexure- 3) and the appellate order dated 15.5.1993 (Annexure-14 to the writ petition)  are hereby quashed.

The disciplinary authority is at liberty to proceed in accordance with law.

The writ petition is allowed. No order as to costs.

Dt    24 .11.2006

SKS


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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