IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Special Appeal No. 203 of 2007 Managing Director, Uttarakhand Transport Corporation and others ……. Appellants. Versus Shyam Singh ……. Respondent. Mr. Rajeev Singh Bisht, Advocate for the appellants. Date of Judgment: 11.06.2010 JUDGMENT Coram: Hon’ble J.S. Khehar, C.J. Hon’ble Tarun Agarwala, J. J.S. KHEHAR, C. J. (Oral) The respondent-Shyam Singh was inducted into the service of the Uttar Pradesh State Road Transport Corporation as a Conductor. On 28.12.2000, whilst he was on duty on a bus, bearing Registration No. UP- 06-5341 plying from Delhi to Kotdwar, the bus was subjected to checking by the inspecting staff. Some of the passengers were found to be travelling without tickets. Based on the report submitted by the inspecting staff, the respondent was placed under suspension vide an order dated 20.02.2001. The aforesaid order was passed by the Regional Manager of the Uttar Pradesh State Road Transport Corporation. On 14.03.2001 a charge sheet was issued to the respondent. On the culmination of the departmental inquiry held, the Inquiry Officer found the respondent not guilty of the allegations leveled against him. The inquiry report was, however, not accepted by the appointing/punishing authority, i.e. the Regional Manager, Uttar Pradesh State Road Transport Corporation. Accordingly, a show-cause notice was issued to the respondent, proposing the punishment of dismissal from service. The aforesaid show-cause notice dated 06.08.2001 was responded to by the respondent vide his reply dated 15.08.2001. The Regional Manager, i.e. the punishing / appointing authority of the respondent by an order dated 03.01.2002 inflicted the 2 punishment of reversion of the respondent to his initial pay scale for a period of three years. 2. The respondent preferred an appeal, so as to impugn the order dated 03.01.2002 passed by the Regional Manager. The aforesaid appeal was decided by the Managing Director of the Uttarakhand Transport Corporation, on account of the fact that the Uttar Pradesh State Road Transport Corporation by that time had been bifurcated, whereupon the Uttarakhand Transport Corporation was created and the respondent was allocated to the said Corporation. The Managing Director, acting as the Appellate Authority, by an order dated 08.10.2007, enhanced the punishment inflicted upon the respondent to that of dismissal from service. 3. The order dated 08.10.2007 was assailed by the respondent herein by preferring Writ Petition (S/S) No. 1606 of 2007. During the course of the hearing of the aforesaid writ petition, two primary submissions were advanced by the learned counsel for the respondent, firstly, that the Managing Director of the Uttarakhand Transport Corporation was not the competent authority to adjudicate upon the appeal preferred by the respondent. Secondly, it was contended that in terms of the provisions of the Regulations governing the conditions of service of the respondent, the Appellate Authority could not have enhanced the punishment imposed on the respondent by the appointing/punishing authority. 4. Writ Petition (S/S) No. 1606 of 2007 was allowed by a learned Single Judge of this Court vide an order dated 10.12.2007. Through the instant Special Appeal, the order dated 10.12.2007, disposing of Writ Petition (S/S) No. 1606 of 2007, has been assailed by the Managing Director, Uttarakhand Transport Corporation. 5. The first and foremost issue, that has been raised at the hands of the learned counsel for the appellants, pertains to the competent authority for disposing of the appeal preferred by the respondent against the order dated 03.01.2002, vide which the respondent was punished by reverting him to his initial pay scale for a period of three years. It is acknowledged by the 3 learned counsel for the appellants, that Regulation 69 governs the appellate procedure. Regulation 69 (which was also extracted in the impugned Judgment dated 10.12.2007) is being extracted hereunder: “ 69. Appeal – (1) An employee shall be entitled to appeal to the next higher authority from an order passed by the appointing or any other authority. (2) An employee preferring an appeal shall do so in his name. The memorandum of appeal shall contain all material statements and arguments relied upon by the appellant. (3) The appeal shall not contain any intemperate language. Any appeal, which contains such language, may be liable to be summarily dismissed. (4) The appeal shall be addressed to the appellate authority and submitted to the authority, against whose order it is preferred through the moral proper channel. (5) The appeal shall be preferred within three months of the date of the order. An appeal preferred beyond three months but not beyond six months of the date of the order, may be accepted by the appellate authority if sufficient cause is shown for the delay. An appeal preferred beyond time shall be dismissed summarily.” A perusal of Regulation 69 (1) leads us to the irretrievable conclusion, that an appeal has to be preferred by an employee of the Uttarakhand Transport Corporation before an authority next higher to the appointing /punishing authority. It is apparent, that the appointing /punishing authority, who had passed the order dated 03.01.2002, inflicting the punishment of reverting the respondent to his initial pay scale for a period of three years, was the Regional Manager. 6. It is also acknowledged by the learned counsel for the appellants, when confronted with the observations recorded by the learned Single Judge, that the posts of Regional Manager, Divisional Manager and Deputy General Manager in the Uttarakhand Transport Corporation have the same rank and status. The learned Single Judge had also recorded a positive finding, that the next higher authority above the Regional Manger / Divisional Manager / Deputy General Manager in the Uttarakhand Transport Corporation is the General Manager. During the course of hearing of the instant Special Appeal, the learned counsel for the appellants was confronted with the aforesaid factual conclusion. Learned counsel for the appellants could not dispute the same. Ms. Shashi Pant, Assistant General Manager of the Uttarakhand Transport Corporation, 4 while assisting the learned counsel for the appellants, also confirmed the aforesaid factual position expressed by the learned Single Judge. It is, therefore, not refutable that the next higher authority above the appointing / punishing authority, which had passed the impugned order dated 03.01.2002, in the hierarchy of the Uttarakhand Transport Corporation is the General Manager. 7. The appellate order dated 08.10.2007 was not passed by the General Manager, but was passed by the Managing Director of the Uttarakhand Transport Corporation. In order to justify the passing of the order dated 08.10.2007 by the Managing Director of the Uttarakhand Transport Corporation, learned counsel for the appellants has invited our attention to Agenda No. 21 of the meeting of the Board of the Uttarakhand Transport Corporation held on 31.12.2003. In the aforesaid meeting, the Board of the Uttarakhand Transport Corporation resolved as under: “Agenda No. 21:- The proposal placed before the Board was examined and it was resolved that:- 1. The delegation of powers shall be continued as per UPSRTC administrative arrangement till such time the Corporation frames its own service rules. 2. in case where the post is not available in UTC, the powers delegated to such post shall not be further delegated, but will be vested in MD.” It is the vehement contention of the learned counsel for the appellants, while relying upon the aforesaid resolution passed by the Board of the Uttarakhand Transport Corporation, that the next higher authority over the Regional Manager was the Zonal General Manager. The aforesaid post of Zonal General Manager was available in the Uttar Pradesh State Road Transport Corporation. The said post is also not available in the Uttarakhand Transport Corporation, and as such, in terms of clause (2) of Agenda No. 21 (extracted hereinabove), in the absence of an authority expressly assigned the responsibility, the aforesaid responsibility had to be discharged by the Managing Director. It is, therefore, the submission of the learned counsel for the appellants, that on account of the absence of the Zonal General Manager in the hierarchy of the Uttarakhand Transport 5 Corporation, the appellate authority was exercised by the Managing Director. 8. We have given our thoughtful consideration to the aforesaid contention advanced by the learned counsel for the appellants. It is, however, not possible for us to accept the contention advanced by the learned counsel for the appellants, based on the resolution of Agenda No. 21 (extracted hereinabove). The delegation envisaged by Agenda No. 21 is on account of the non-availability of a post in the Uttarakhand Transport Corporation then the power is to be exercised by the Managing Director. It is, therefore, clear that as and when the incumbent of a post is not available, the power exercisable by the incumbent of the post has to be exercised by the Managing Director. The instant situation, however, does not arise, in so far as Regulation 69 is concerned. Regulation 69 does not vest the Appellate Authority in any specified post. Regulation 69 expressly envisages, that the appeal would be lie before “the next higher authority from an order passed by the appointing or any other authority”. The punishment order dated 03.01.2002, having been passed by the Regional Manager, the next higher authority, in view of the discussion already recorded hereinabove, was the General Manager. The post of General Manager is very much available in the Uttarakhand Transport Corporation. The General Manager, however, did not adjudicate upon the appeal preferred by the respondent against the impugned order dated 03.01.2002. It is, therefore, that the appellate order dated 08.10.2007 was set aside by the learned Single Judge, while allowing Writ Petition (S/S) No. 1606 of 2007. We find no infirmity in the aforesaid conclusion. The aforesaid conclusion is, therefore, hereby affirmed. 9. In the facts and circumstances of this case, we also consider it just and appropriate to take into consideration the second submission advanced by the learned counsel for the appellants, namely, that the Appellate Authority did not have the power to enhance the punishment inflicted on the respondent by the appointing / punishing authority. The learned Single Judge, while comparing the appellate power vested in the Appellate Authority under Regulation 69 with Regulation 69-A, arrived at the 6 conclusion that the Appellate Authority did not have the power to enhance the punishment inflicted on the respondent. Regulation 69-A, relied upon by the learned Single Judge in recording his aforesaid conclusion, is also being extracted here under: “69-A: - Notwithstanding anything contained in these Regulations the Chairman or in his absence the Managing Director of Uttar Pradesh State Road Transport Corporation may, on its own motion, or otherwise, call for the record of any case relating to dismissal, removal and reduction in rank decided by any of the authorities subordinate to him in exercise of powers conferred by these Regulations and – (a) confirm, modify or reverse the order passed by such authority; or (b) direct that a further enquiry be held in the case; or (c) reduce or enhance the penalty imposed by such order; or (d) made such other order in the case as it may deem fit. Provided that if enhancement in the penalty imposed where by any such order, the employee concerned shall be given opportunity of showing cause against the proposed enhancement; Provided that if enhancement in the penalty where by any power on its own motion, or otherwise, shall not call for the record beyond the period of three months from the date of order in appeal.” 10. We have perused Regulation 69-A. The same expressly envisages the power of enhancing the penalty imposed upon an employee. Regulation 69-A, however, vests the aforesaid power in the Chairman or in his absence, the Managing Director of the Uttar Pradesh State Road Transport Corporation/Uttarakhand Transport Corporation. There can be no doubt, whatsoever, that on account of the express mandate contained in Regulation 69-A, authorizing the power to enhance the punishment inflicted on an employee in the Chairman/Managing Director and in the absence of a similar power under Regulation 69 with the Appellate Authority, the conclusion drawn by the learned Single Judge on a collective analysis of Regulations 69 and 69-A, has to be affirmed. 11. While affirming the conclusion drawn by the learned Single Judge on the two issues adjudicated upon by him, we consider it just and appropriate to expressly record, that the learned Single Judge had left it 7 open to the General Manager, Uttarakhand Transport Corporation, i.e. the competent Appellate Authority in the instant case, to pass a fresh order in accordance with law. Needless to mention, that the appeal preferred by the respondent against the impugned order of punishment dated 03.01.2002, shall be decided by the General Manager, Uttarakhand Transport Corporation as expeditiously as possible, but preferably within three months from today. 12. The instant appeal is disposed in the aforesaid terms. (Tarun Agarwala, J.) (J.S. Khehar, C. J.) 11.06.2010 11.06.2010 Amit