Partly allowed

Chhedi Lal v. State of U.P. and 5 Ors.

Allahabad HC12 Mar 2018WRIA/43122/2016

Case brief

AI extract

What is this about?

This single-judge High Court Bench quashed orders awarding dismissal and salary reduction to a bus driver for an accident, holding simultaneous major and minor penalties illegal. The Court directed recovery of actual proven loss and reinstatement without downgrading.

What did the court decide?

Impugned orders quashed; salary reduction direction set aside; recovery of Rs. 9,724 upheld with interest.

Chhedi Lal Vs State of U.P. and 5 Ors. — Pension and Retirement Benefits | Allahabad HC (2018)

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Court No. - 28

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Case :- WRIT - A No. - 43122 of 2016

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Petitioner :- Chhedi Lal Respondent :- State Of U.P. And 5 Ors. Counsel for Petitioner :- Ajay Kumar Srivastava Counsel for Respondent :- C.S.C.,Sunil Kumar Misra

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Hon'ble Siddharth,J.

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Heard Sri Ajay Kumar Srivastava, learned counsel for the petitioner, learned Standing Counsel for the Staterespondents and Sri D. S. Khan, Advocate, holding brief of Sri Sunil Kumar Mishra, learned counsel for the respondents.

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This writ petition has been filed praying for quashing of the impugned punishment order dated 07.02.2015 passed by respondent no.5 / Regional Manager, U.P.S.R.T.C. Varanasi and the order dated 17.03.2016 passed by respondent no.4 / the General Manager (Karmik) U.P.S.R.T.C, Lucknow.

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The petitioner's case is that while discharging the duties of Driver in the Corporation Bus No.UP65-R 4894 plying on Jaunpur-Varanasi route, on 28.06.2004 an accident took place wherein Bus got damaged. The Bus was technical examined by the Senior Foreman regarding damage and he submitted his report on 12.07.2004 before the Assistant Regional Manager, Varanasi Depot. On the basis of the aforesaid report, the petitioner was charge-sheeted on 30.01.2014 and he was directed to show cause as to why the loss of Rs.60,000/approximately caused by the accident of the Corporation Bus may not be recovered from him.

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The petitioner submitted his reply to the charge-sheet stating that while the Bus was standing towards its left side and passenger were coming down, the Truck No.UP 78 N 3752 dashed against the Corporation Bus and he lost his consciousness. The conductor lodged the first information report. He has spent about Rs.50,000/- in treatment of his leg. He was not at fault and therefore, recovery against him should not be made. A report regarding the site of accident should be called from the Senior Station Incharge. In the departmental inquiry Sri Chandrika Yadav, Jr. Foreman, appeared and he was cross-examined. The second show cause notice dated 13.12.2012 was issued to the petitioner along with inquiry

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report and he objected to the same stating that the inquiry report has been given without appropriate opportunity of defence to the petitioner and without disclosing the documentary evidence on record. On the basis of punishment order dated 07.02.2015 the petitioner was removed from service and recovery of Rs.60,000/- was directed against him. On appeal the Appellate Authority, respondent no.4, by his order dated 17.03.2016 modified the punishment order dated 07.02.2015 passed by respondent no.5 and directed reinstatement of the petitioner in service but he was reverted to his basic stage of salary and the actual loss of Rs.9,724/- was directed to be recovered from him and the wages for the period of removal from service to the date of reinstatement was denied but the benefit of continuity of service was granted to him.

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The respondents have filed their counter affidavit stating that the petitioner has alternative remedy of approaching the Labour Court since he is a "workman" within the meaning of Industrial Law. There is no averment in the writ petition that the petitioner remained unemployed from 7.2.2013 to 17.3.2016 and therefore, he is not entitled to any back-wages. The report submitted by the Inquiry Officer and the order of the Disciplinary and Appellate Authority are in accordance with law and this writ petition deserves to be dismissed.

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Learned counsel for the petitioner has argued that the petitioner has been awarded minor as well as major punishment, which is not in accordance with law. He has relied upon Regulations 62, 63 and 64 of the Uttar Pradesh State Road Transport Corporation Employees (Other than Officers) Service Regulations, 1981.

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"62. Misconduct :- Without prejudice to the generality of the term misconduct, the following acts of omission and commission shall be treated as misconduct:

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(1) Fraud or dishonestly in connection with the business or property of the Corporation or of property of another person within the premises of the Corporation.

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(2) Taking or giving bribes or any illegal gratification.

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(3) Possession of pecuniary resources or property disproportionate to the known sources of income by the employee or on his behalf by another person which the employee cannot satisfactorily account for.

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(4) Furnishing false information regarding name, age, father's name, qualifications, ability or previous service or any other matter relating to

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the employment at the time of employment or during the course of employment.

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(5) Acting in a manner prejudicial to the interests of the Corporation.

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(6) Wilful insubordination or disobedience either alone or in combination with others of any lawful and reasonable order of his superior.

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(7) Absence without leave or over-staying the sanctioned leave without sufficient grounds or proper or satisfactory explanation.

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(8) Habitual late coming or irregular attendance.

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(9) Neglect of work or negligence in the performance of duty.

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(10) Damage to any property of the Corporation.

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(11) Interference or tampering with any safety devices installed in or about the premises of the Corporation.

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(12) Drunkenness or riotous or disorderly or indecent behaviour in the premises of the Corporation of outside such premises where such behaviour is related to or connected with the employment.

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(13) Gambling within the premises of the establishment.

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(14) Smoking within the premises of the establishment.

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(15) Habitual indebtedness and insolvency.

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(16) Unauthorized communication of official documents or information and disclosures to any unauthorized person of information relating to the operation and business of Corporation.

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(17) Sleeping while on duty.

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(18) Collection without the permission of the the competent authority of any money within the premises of the Corporation except as sanctioned by the law of the land for the time being in force or under the authority of the Corporation.

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(19) Absence from appointed place of work without permission or sufficient cause.

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(20) Commission of any act which amounts to criminal offence involving moral turpitude.

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(21) Commission of any act subversive of discipline or of good behaviour.

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(22) Abetment or attempt at abetment of any act which amounts misconduct.

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63. Penalties:- The following penalties may, for good and sufficient reasons and as hereinafter provided, be imposed on an employee, namely-

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Minor penalties

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(1) Censure;

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(2) Withholding of increment;

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(3) Stoppage at an efficiency bar, otherwise than on the ground of unfitness to cross the bar;

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(4) Recovery from pay or deposit at his credit the whole or the part of a pecuniary loss caused to the Corporation by negligence or breach of order;

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Major penalties

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(5) Reduction to a lower grade or post or to a lower stage in a time scale;

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(6) Removal from service which shall not be a disqualification for future appointment;

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(7) Dismissal from service which shall be disqualification for future appointment.

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64. Procedure for awarding major penalties :

(1)...........

(2)..........

(3).........

(4) The proceedings shall contain sufficient record of evidence and the statement of findings and grounds thereof. The Enquiry Officer may also, separately from the proceedings, make his own recommendations regarding the penalty to be imposed. The Proceedings and the record shall be forwarded to the appointing authority.

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(5)..........."

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He has stated that the Regulation 62 clearly provides the types of misconducts and the case of the petitioner comes under sub-clauses 9 and 10 only. His further argument is that if the recovery from his pay was ordered by way of minor penalty under Regulation 63, there was no occasion for the respondents to revert him to the basic scale of salary, which is a major penalty defined under Regulation 63(5). He has further argued that the procedure for providing major penalties given in Regulation 64 has not been followed by the respondents. He has argued that as per Regulation 64(4), the proceedings of inquiry are required to contain sufficient record of evidence and the statement of findings and grounds thereof. The Inquiry Officer may also record his own recommendations regarding inquiry, which has not been complied with in this case. He has further argued

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that the charge-sheet issued against the petitioner was based on the report of Sri Chandrika Yadav, Junior Foreman pertaining to the accident but in his crossexamination he admitted that he did not visit the accident site. Therefore, there was no evidence against the petitioner for passing the impugned order by the respondent no.4. He was not negligent and his Bus was hit by the Truck on the wrong side when the passengers were alighting there from.

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Learned counsel for the petitioner argued that major and minor penalties cannot be awarded simultaneously and has relied upon the judgement in case of Union of India Vs. S. C. Parashar reported in , Laws(SC) 2006-2-34 and has relied upon paragraph 12 thereof :

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" The penalty imposed upon the respondent is an amalgam of minor penalty and major penalty. The respondent has been inflicted with three penalties : (1) reduction to the minimum of the time-scale of pay for a period of three years with cumulative effect; (2) loss of seniority; and (3) recovery of 25% of the loss incurred by the Government to the tune of Rs.74,341.89p., i.e., Rs.18,585.47p. on account of damage to the Gypsy in 18 (eighteen) equal monthly instalments. Whereas reduction of time-scale of pay with cumulative effect is a major penalty within the meaning of clause (v) of Rule 11 of the CCS Rules, loss of seniority and recovery of amount would come within the purview of minor penalty, as envisaged by clause (iii) and (iii)(a) thereof. The Disciplinary Authority, therefore, in our opinion acted illegally and without jurisdiction in imposing both minor and major penalties by the same order. Such a course of action could not have been taken in law"

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He has further relied upon the judgment in case of Inspector Prem Chand Vs. Government of NCT of Delhi and others reported in (2007)4 SCC 566 in support of his argument that the disciplinary proceedings cannot be initiated on the basis of information which is vague and indefinite since in the present case Sri Chandrika Yadav denied that he ever inspected the damaged Bus and stated that he submitted his report on the instructions of the Senior Foreman. His report was the basis of the charge-sheet and therefore, there was no definite material on which the inquiry could have been conducted against him. He has relied upon the paragraph no.15 of the aforesaid judgment, which is as follows :

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" A finding of fact was arrived at that the accused did not make demand of any amount from the complainant and thus no case has been made out against him. This Court in Zunjarrao Bhikaji Nagarkar v. Union of India, [1999 (7) SCC 409], has categorically held:

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"Initiation of disciplinary proceedings against an officer cannot take place on information which is vague or indefinite. Suspicion has no role to play in such matter. There must exist reasonable basis for the disciplinary authority to proceed against the delinquent officer. Merely because penalty was not imposed and the Board in the exercise of its power directed filing of appeal against that order in the the Appellate Tribunal could not be enough to proceed against the appellant. There is no other instance to show that in similar case the appellant invariably imposed penalty."

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Learned counsel for the respondents has submitted that disputed accident took place because the petitioner was negligent in the discharge of his duties. The charge-sheet dated 30.12.2004 was issued against the petitioner on the report of Sri Balendra Tiwari, Senior Foreman and he proved the same in the inquiry. The petitioner has already got substantial relief in appeal by modification of his punishment and therefore, the punishment and the Appellate order passed against him do not deserve any interference by this Court.

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From the pleadings on record, arguments and the material brought before this Court, it is found that the petitioner was involved in the accident of the Corporation Bus, which resulted into loss to the Corporation.

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The learned counsel for the petitioner has argued that his conduct amounted to misconduct defined under Regulation 62(9), which is regarding the negligence in the performance of duty, which has also been alleged in paragraph 19 of the counter affidavit by the respondents and therefore, the award of major punishment by reduction to the basic grade of salary to the petitioner by way of major penalty was not justified. At best the recovery of loss caused by the damage to Corporation Bus as per Regulation 62(10) of the Regulation was justified and as per judgement of the Apex Court in the case of Union of India (supra ), the contention of the petitioner appears to be correct.

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Learned counsel for the respondents has not placed on record any material to show that both the penalties could have been granted to the petitioner i.e., minor and major, simultaneously.

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Further argument of the petitioner is that the inquiry against the petitioner was in accordance with Regulation 64. A perusal of the material on record proves that the procedure adopted by the respondents in conducting the disciplinary inquiry against the petitioner was justified and

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the principle of natural justice appear to have been complied with.

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In view of the above, the impugned punishment order dated 07.02.2015 passed by respondent no.5, Regional Manager, U.P.S.R.T.C. Varanasi and the order dated 17.03.2016 passed by respondent no.4, the General Manager (Karmik) U.P.S.R.T.C, Lucknow are hereby quashed.

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The respondents are held entitled to recover the loss of Rs.9,724/- from the petitioner and the period during which he has not worked, will not qualify for payment of any salary to the petitioner but the benefits of continuity of service granted to him shall accrue to him. However, the direction to down grade him to the lowest pay-scale is set aside and the amount of salary of the petitioner deducted shall be paid to him within a period of six weeks from the date of presentation of a certified copy of this order before the respondent no.5, Regional Manager, U.P.S.R.T.C, Varanasi. In case of delay in payment of the same 12% simple interest shall also be paid to the petitioner by the respondent no.5.

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The writ petition is partly allowed.

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No order as to costs.

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Order Date :- 12.3.2018 SS

Chhedi Lal v. State of U.P. and 5 Ors.

Case brief

What is this about?

What did the court decide?

Chhedi Lal v. State of U.P. and 5 Ors.

Case brief

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