1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR. O R D E R S.B. CIVIL WRIT PETITION No.4430/2002. : : Divisional Manager, RSRTC, Kota Vs. Secretary, RSRTC Union (AITAC), Tonk & Anr. : : Date of Order 7.1.2009 HON'BLE MR.JUSTICE MOHAMMAD RAFIQ Mr. Virendra Singh Yadav for the petitioner. Mr. Vigyan Shah for Mr.Mahendra Shah for the respondents. Heard learned counsel for the parties. This writ petition has been filed by Secretary, RSRTC Union (AITAC), Tonk challenging the award of Industrial Tribunal whereby the dispute with regard to validity of penalty of stoppage of three annual grade increments with cumulative effect awarded to the respondent-workman has been answered in terms that such penalty was not legal and valid. Allegation against the respondent-workman was that while working as Conductor on a bus of the corporation from Uniyara to Aligarth he did not issue tickets to 19 passengers and yet started the bus. During inspection, it was found that 4 passengers out of 2 these 19 were going to Sawai Madhopur, 6 to Aligarh, 2 to Pachala and 7 to Choru. There was one more charge that the respondent-workman was to carry bus from Devali to Tonk via Panwar but he did not take the bus to Panwar whereas there were two passengers for that destination. This charge that he did not take the bus from Devali to Tonk via Panvar was not proved because two passengers could not be produced by the Corporation before the Enquiry Officer. Enquiry Officer in his finding exonerated the respondent- workman on that charge which was concurred by Disciplinary Authority. As regards other charges, the Enquiry Officer recorded the finding that even the representative of the Corporation has accepted that the bus had started only from Uniyara at the place where the bus was inspected was located only at the distance of six kms. from Uniyara and at the time of checking of the bus, the respondent-workman was found distributing the tickets. The finding was to the effect that 19 passengers overloaded from Uniyaya and that at the time of inspection of vehicle, the respondent-workman had not charged fare from any of these 19 passengers. Enquiry Officer then concluded that there was no malice proved against the respondent-workman that he had intention to embezzle the money but the instructions of the 3 Corporation that the bus should have been started only after tickets were distributed, were violated. Learned Industrial Tribunal held that malice was not proved against the respondent-workman. The only charge was with regard to violation of departmental instruction, but no specific reference was made to each of the instructions which were violated nor such charge was proved. The Industrial Tribunal held that penalty order dated 6.5.1980 by stoppage of three annual grade increments with cumulative effect and withholding of rest of salary of the suspension period was not legal and justified. Shri Virendra Singh Yadav, learned counsel for the petitioner has cited the judgment of Supreme Court in Karnataka State Road Transport Corporation Vs. B.S.Hullikatti : 2002 (2) SCC, 574 and Regional Manager, RSRTC Vs. Ghanshyam Sharma : 2002 (10) SCC, 330 and argued that Supreme Court in the aforesaid cases has held that the carrying passengers without ticket amounted to grievous misconduct. In such cases, setting aside order of penalty by Labour court amounted to shielding dishonesty and gross negligence and conductors with such conduct were not fit to be retained in service. Learned counsel submitted that interference by Labour Court with the lowest penalty of 4 stoppage of three annual grade increments with cumulative effect, which had already been made very mild by the order of appellate authority, was illegal and unjustified. Shri Vigyan Shah, learned counsel for the respondent-workman opposed the writ petition and submitted that Enquiry Officer did not find Charge No.1 & No.2 fully proved against the petitioner because it had partially exonerated the respondent while observing that there was no malice proved on his part. It was not proved that respondent had collected fare from the passengers. The Enquiry Officer found that the place where the bus was inspected was at the distance of only six kms wherefrom bus started and 19 passengers boarded. Learned counsel submitted that only charge that was found proved against the respondent-workman was violation of instructions of the Corporation, which was not specifically made part of the charge. Learned counsel cited the judgment of Supreme Court in Govt. of A.P. & Ors. Vs. A.Venkata Raidu : 2007 (1) SCC, 338 and argued that the Supreme Court in that case held that if charge is framed on allegation with reference to certain Government orders, the particulars of Government orders ought to have been incorporated in the charge and its copy must have been procured before the Enquiry Officer or 5 else it would amount to vague charge. Learned counsel submitted that in the present case neither the instructions of the department was given nor proved before the Enquiry Officer. The Labour Court was justified in setting aside the order of penalty. It was argued that such instructions of the Corporation was also not produced before the Industrial Tribunal whereas the Corporation has all the opportunity to do so in justifying the order of penalty. I have given my anxious consideration to the arguments and perused the material on record. Although it may be a fact that 19 passengers which Inspection Party found without ticket from Uniyara to Aligarh were not issued tickets when the bus was checked by them, but this has to be appreciated in view of the findings recorded by the Enquiry Officer and the evidence that has been produced before him. The Enquiry Officer has clearly found that bus had only started from Uniyara which was situated only six kms away from that place and that representatives of the Corporation, who was produced before the Enquiry Officer clearly admitted that at the time of inspection the checking party found the respondent-workman issuing tickets to the passengers. The Enquiry Officer also found that 19 passengers thus found were overloaded when 6 bus had started from Uniyara and the respondents had not collected fare from any of these 19 passengers. Charge of dishonesty and malice was not found against the respondent what was proved was only the violation of instructions of the Corporation. Two judgments on which reliance has been placed by the learned counsel for the petitioner are those where penalty of removal from service was imposed upon the Conductor where allegations against them were that they not only did not issue tickets to the passengers but also collected fare, but those judgments are distinguishable because in both of them penalty awarded was that of removal from service and when the appellate authority of the petitioner itself has reduced the penalty of termination to that of stoppage of three annual grade increments and in the present case the penalty of removal has not been imposed on the respondent-workman but only his three annual grade increments have been stopped with cumulative effect. In any case, in the case of B.S.Hullikatti (supra) the allegation was that the bus conductor charging higher fare from passengers knowing well that correct fare to be charged. The court held that this amounted to gross misconduct. In the case of Ghanshyam Sharma (supra) although the reading of the judgment would show that conductor was charge-sheeted on 7 the ground of not issuing the tickets to the passengers. In most of the cases, in which the petitioner-corporation proceed against the conductors is of not issuing tickets even after having charged the fare. In the present case, the Enquiry Officer has recorded a positive finding that the respondent-workman did not issue ticket because the bus was overload and had only started from Uniyara and all the 19 passengers who boarded from Uniyara, was located only six kms away from the place where the bus was inspected. The only charge remain that was found proved against the respondent-workman was violation of instructions of the Corporation and the Labour Court has held that as to which instruction of the Corporation was violated was not proved by the Corporation. There was no reference of the relevant instructions in the charge-sheet issued to the respondent- workman. No such instruction of the Corporation was proved either before the Enquiry Officer or even before the Labour Court. The Supreme Court in A.Venkata Raidu (supra) dealt with a case where the charge against the General Manager was for violating certain Government order to withdraw the money deposited with from the cooperative banks and other private banks. No details of those Government orders were mentioned in the charge-sheet. All that was mentioned that 8 delinquent violated the instructions. It was held that Authority should have mentioned the date of Government order said to have been violated by the respondent and number of that Government order etc., not only this the copies of the said Government order or directions of the Government was not placed before the Enquiry Officer. The charge was held to be vague. The ratio of the aforesaid judgment fully applies to the present case. The finding recorded by the Labour Court on this aspect of the matter thus cannot be faulted. I, therefore, do not find any merit in this writ petition. This writ petition is accordingly dismissed. (MOHAMMAD RAFIQ)J. A.Arora/- Item No.39.