RSA No. 142 of 1993 1 In the High Court for the States of Punjab and Haryana at Chandigarh … RSA No. 142 of 1993 Date of decision: December 4,2008 Faqir Chand ..Appellant. Versus The State of Punjab and another ..Respondents Coram: Hon'ble Mr.Justice Rakesh Kumar Garg Present: Mr. R.B.S.Chahal, Advocate for the appellant. Mr. Arvind Mittal,Addl.A.G.Punjab for the respondents. ... Rakesh Kumar Garg,J. This is plaintiff's second appeal challenging the judgment and decree of the lower Appellate Court whereby the appeal filed by the respondent- State of Punjab was accepted and judgment and decree of the trial Court, declaring order dated 29.12.1988 passed by the General Manager, Punjab Roadways, Jalandhar-2 terminating the services of the plaintiff-appellant as illegal, was set aside and suit of the plaintiff-appellant was dismissed. Briefly stated the facts of the case are that the plaintiff was working as a Conductor in Punjab Roadways, Jalandhar-2 ( a Punjab State Undertaking). On the basis of a complaint of checking staff, the plaintiff was placed under suspension and was served with the charge sheet dated 24.12.1987 alleging that the plaintiff had committed fraud to the tune of Rs. 14/- while conducting Bus No.2502 on 20.12.1987 on Jalandhar-Bilga Via Pasla route. On the basis of this charge sheet, the inquiry was held and on receipt of the inquiry report, General Manager, Punjab Roadways,Jalandhar-2 passed an order dated 29.12.1988 imposing the penalty of removal of the plaintiff from service. In the present suit for declaration, the plaintiff has challenged the orders of the General Manager, dated 29.12.1988 as illegal, cryptic, against the principles of natural justice and the service rules as the said order was passed RSA No. 142 of 1993 2 upon no evidence and being null and void was not binding upon the plaintiff and that the plaintiff continues to be in the service of the State of Punjab with all attached benefits. Upon notice, the defendants denied the material allegations of the plaint and it was contended that the inquiry had been conducted in accordance with the service rules. From the pleadings of the parties, the following issues were framed:- 1. Whether the order dated 29.12.1988 passed by defendant No.2 is illegal, void and liable to be set aside ?OPP 2. Whether the suit is bad for want of notice under Section 80 CPC ?OPD 3. Whether the suit is not maintainable ?OPD 4. Relief. In support of his allegations, the plaintiff came forward as his own witness as PW1 and proved copy of orders removing him from service, copies of orders of other Conductors as Ex.P1 to Ex.P5. Notice under Section 80 C.P.C. Ex.P6, Postal Receipt Ex.P7 and Acknowledgment Due. The defendants tendered into evidence the inquiry file Ex.D1. While deciding issue No.1, the trial Court observed that the Inquiry Officer did not examine the delinquent passengers and even the checking staff did not get their version on the spot and secondly the checking staff did not check the cash in hand with the plaintiff and then tally it with the issued tickets and further that while passing the order of termination, the past conduct of the plaintiff has been taken into account, though the plaintiff was never put to notice that the same would taken into account and thus held issue No.1 in favour of the plaintiff-appellant and decreed his suit. Feeling aggrieved against the said judgment and decree of the trial court, the defendants filed an appeal, which was allowed vide impugned judgment and decree dated 9.9.1992 and the judgment and decree of the trial RSA No. 142 of 1993 3 Court was set aside and the suit of the plaintiff-respondent was dismissed. While allowing the appeal, the lower Appellate Court observed that the punishing authority had supplied the list showing previous punishment awarded to the respondent and thus the punishing authority had informed the delinquent official that his past record would be taken into consideration at the time of passing of the final order. The lower Appellate Court also observed that the statement of Inspector who checked the bus could be legally relied upon in the departmental proceedings and his statement cannot be held as inadmissible being based on hear say evidence. Still not satisfied, the plaintiff has filed the instant appeal in this Court challenging the judgment and decree of the lower Appellate Court. At the time of hearing, it was noticed that the appellant has not formulated the substantial question of law arising out of this appeal. However, during the course of arguments, learned counsel for the appellant has framed the following substantial question of law said to be arising in this appeal:- “a) Whether the findings of the lower Appellate Court are perverse ?” Learned counsel for the appellant has vehemently argued that the lower Appellate Court has erred at law while setting aside the judgment and decree of the trial Court as the order of termination dated 29.12.1988 passed by the defendant-respondent cannot be sustained as the said order is based upon no evidence and is against the principles of natural justice and provisions of Punjab Civil Services(Punishment and Appeal)Rules,1970 and is null and void and not binding upon the plaintiff. Elaborating further,the learned counsel has argued that from the record of the case, it is clear that the inquiry report Ex.D1, which is very basis of the impugned order of termination is based upon hear say evidence which has no reasonable nexus of credibility as the Inquiry Officer has not recorded the statement of passengers and even the checking staff did not get the version of passengers recorded on the spot. Therefore, the inquiry report against the appellant is liable to be ignored and the termination order dated RSA No. 142 of 1993 4 29.12.1988 being based upon no evidence is liable to be set aside. Learned counsel for the appellant has placed reliance upon a judgment of this Court in the cases of State of Punjab Versus Balbir Singh 1988 (3) SLJ-211 and State of Haryana Versus Mohan Singh 1985(1)SLJ 597, to contend that termination on the solitary statement of checkers, who neither recorded the statements of the passengers who paid the fare, but were not issued tickets nor checked his cash, is not sustainable.” On the other hand, learned Additional A.G. Punjab has vehemently argued that the appellant has not challenged the correctness, legality or validity of the inquiry conducted and therefore, it is not open to the court to go into the findings recorded by the Inquiry Officer regarding misconduct committed by the respondent. He has referred to the prayer clause of the civil suit filed by the plaintiff wherein he sought declaration challenging the termination order dated 29.12.1988 on the ground that the same is based upon no evidence. Even no issue is claimed by the plaintiff-appellant to the effect that the inquiry report is liable to be set aside. Learned State counsel has also relied upon a judgment of the Hon'ble Supreme Court in the case of Divisional Controller, KSRTC(NWKRTC) Versus A.T. Mane (2005)3 Supreme Court Cases 254 to contend that once a domestic Tribunal based on evidence comes to a particular conclusion, it will not be open to the Appellate Tribunal and courts to substitute their subjective opinion in place of the one arrived at by the domestic tribunal and further to contend that examination of passengers of vehicle from whom the amount was collected without issuing tickets was not essential,if the bus conductor is found to be in possession of sum over and above the amount equivalent to tickets issued by him. Learned State counsel has also placed reliance upon a judgment of this court in Charat Singh Versus State of Punjab 1990(7) SLR 14 to contend that non production of passengers during the inquiry is immaterial into the alleged misconduct of bus Conductor regarding non-issuance of tickets. He has RSA No. 142 of 1993 5 also relied upon a Full Bench judgment of this Court in the case of The State of Haryana and others Versus Shri Ram Chander 1976(2) SLR 690, wherein it has been held as under:- “Where a bus is checked and it is found that tickets have not been issued to several passengers and the passengers state in the presence of the conductor that they paid the fare, the inquiry officer would be justified in acting upon the evidence of the checkers stating these facts even though the passengers themselves are not examined as witnesses. A finding of guilt arrived at by him would not be based on pure hearsay. It would be based on (1) the evidence of the checker that he found passengers travelling without tickets and (2) the statements made by the passengers to the checker at the time of checking. The second item of evidence alone would be hearsay but it would be hearsay of high probative value because of the circumstance that statements were made in the presence of the conductor and on the spot. In such a case, it cannot be said that the Inquiry Officer's findings are based on pure hearsay or hearsay of unreliable nature.” I have heard learned counsel for the parties and perused the record. I find no merit in this appeal. From the perusal of the pleadings, it is clear that the plaintiff- has not challenged the report of the Inquiry Officer who has held that charge of misconduct is proved against him. What is challenged in the civil suit is for declaration is that order dated 29.12.1988 is liable to be set aside as the same has been passed on the basis of no evidence. Ex.D1 is the inquiry report, in which the appellant has been found guilty. A perusal of the same shows that it cannot be said that the order of termination is based upon no evidence. Even otherwise, in Ram Chander's case (supra) relied upon by the counsel for the State, wherein it has been authoritatively held that a finding of guilt arrived at by the Inquiry Officer on the evidence of the Checker that he found passengers travelling without ticket would be justified by the Inquiry RSA No. 142 of 1993 6 Officer. It has also authoritatively been held by the Hon'ble Supreme Court of India that when an employee is found guilty, there is nothing wrong in awarding punishment of dismissal by the employer and it is not open to the court to substitute their subjective opinion in place of the one arrived at by the domestic tribunal. In Amrit Vanaspati Co. Ltd. Versus Khem Chand and another (2006)6 Supreme Court Cases 325, it has been held by the Hon'ble Apex Court that the High Court cannot deal with the sufficiency of the punishment inflicted by the management on a workman for a particular misconduct nor can it interfere with the factual findings of the Labour Court. In the present case inquiry file clearly shows that Inspector gave evidence with regard to the checking of the bus and had categorically deposed that from Conductor un-punched tickets equivalent to the fair due were taken which were produced during inquiry. I find that those tickets are on the inquiry file. If the Conductor had earlier issued tickets, he would not have allowed the Inspector to further collect un-punched tickets from him and therefore, collection of un-punched tickets from the Conductor on the spot lends corroboration to the evidence of the Inspector that in fact Conductor had not issued requisite tickets on receipt of fair from the relevant passengers. Statement made by Inspector that Conductor had not issued tickets during inquiry, thus, can be relied upon. For the reasons recorded above, I find no merit in this appeal. There is no perversity in the findings recorded by the lower Appellate Court. Thus substantial question of law as raised by the counsel for the appellant is answered against him and the appeal is ordered to be dismissed. December 4 , 2008 (RAKESH KUMAR GARG) nk JUDGE