IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.7775 of 1997 Jai Krishna Prasad, son of Late Sheo Dayal Sah, resident of village- Pahsaul, P. S. Katra, Distt Muzaffarpur …. Petitioner Versus 1. The Bihar State Road Transport Corporation, Parivahan Bhawan, R. Block, Patna 2. The Chairman, Bihar State Transport Corporation, Paribahan Bhawan, R. Block, Patna 3. The Managing Director, Bihar State Road Transport Corporation, Patna 4. The Special Officer, Bihar State Road Transport Corporation, Patna 5. The Divisional Manager, Bihar State Road Transport Corporation, Dhanbad …Respondents ========================================================== Appearance: For the Petitioner :Mr. Jagannath Singh For the Respondent :Mr. Mukul Sinha & :Mr. Rajesh Kumar, Advocates ========================================================== = CORAM: HONOURABLE MR. JUSTICE KISHORE KUMAR MANDAL ORAL JUDGMENT ------- K. K. Mandal, J. Challenge in this writ application is to the order dated 02.02.1995 contained in memo no. 38/MD (Annexure-8) passed by the Managing Director, Bihar State Transport Corporation (for short ‘the Corporation’), whereby punishment of dismissal from service has been inflicted on the petitioner. Petitioner preferred appeal thereagainst which was considered and rejected and communicated to the petitioner under memo no. 521 dated 14.08.1996 (Annexure-9). Sustainability thereof is, thus, also Patna High Court CWJC No.7775 of 1997 2 under challenge question. Petitioner held substantive post of Conductor in the Corporation and was posted at Saharsa Depot. On 13.9.1991, he was deputed on Bus No.B.H.Q. 09880 which was to commute between Saharsa and Purnia.At about 8.45 O’clock in the morning, while on way, the said bus was intercepted and checked by the Central Flying Squad (for short ‘the squad’) in course whereof 24 passengers on board were found with valid tickets, whereas 26 passengers on board were found without ticket who had travelled between 2 kms. to 14 kms. The squad asked for Master Challan and signed the same. Petitioner was asked to deposit fare against the passengers vouchers to be issued by the Squad which was refused on the ground that he would get the passengers booked from the counter of the next depot of the Corporation. It is further the allegation that the petitioner offered hindrance in the efforts of the squad to realize the tickets from the non-booked passengers on board against the passengers vouchers (P.Vs.) to be issued by the Squad. The checking report of the squad (Annexure-3) was made available to the authorities whereafter a show cause notice was issued in response whereof the petitioner submitted his reply (Annexure-4). Not satisfied with the explanation, an order was passed putting him under suspension with effect from 01.10.1991 followed by service of charge-sheet (Annexure-5). The departmental enquiry was initiated in which Special Officer of the Corporation was appointed the Enquiry Officer to conduct the enquiry. In course of aforesaid enquiry, one of the witnesses Patna High Court CWJC No.7775 of 1997 3 constituting the squad appeared and deposed to the effect that the petitioner obstructed the squad in due discharge of the duty. The Conductor admitted that he had already realized fares from those unbooked passengers who had already travelled between 2 kms. to 14 kms. from the depot from where the bus had originated. All the unbooked passengers also informed the squad that the Conductor had already realized fares from them. On conclusion of the proceeding the enquiry report (Annexure-7) was submitted in which the charges with regard to his misconduct in not cooperating with the Central vigilance Squad Team and realization of fares from the unbooked 26 passengers by the petitioner without issuing any ticket was/were held proved. The disciplinary authority, on a consideration of materials on record, found that the charges were found proved at the enquiry. In spite of adequate opportunity granted to the petitioner by the Enquiry Officer, the petitioner did not appear to cross-examine the witness. Petitioner had, thus, not shown his seriousness/sincerity in putting up his defence at the enquiry. It was also observed that his previous service record was not up to the mark. Accordingly, order of punishment dated 03.02.1995 (Annexure-8) was passed. Aggrieved by the aforesaid order, petitioner filed appeal (Annexure-B to the supplementary counter affidavit). The Chairman of the Respondent- Corporation while considering the appeal, granted the petitioner personal hearing which was utilized by the petitioner whereafter the appeal was considered and dismissed which was communicated vide memo no. 521 dated 14.8.1996 (Annexure-9). Hence the writ Patna High Court CWJC No.7775 of 1997 4 petition. Respondents contested the case and filed two sets of counter affidavit. Heard Mr. Singh in support of the application and Mr. Sinha for the Respondent-Corporation. While assailing the order, learned counsel for the petitioner submitted that the entire proceeding stood vitiated for non-compliance with the principles of natural justice. Petitioner was not afforded a fair enquiry inasmuch as the enquiry report (Annexure-7) was not furnished to him permitting him to explain his stand on the conclusion(s)/finding(s) arrived at by the Enquiry Officer. Reliance in this regard has been placed on (1993) 4 SCC 727 (Managing Director, ECIL vs. B. Karunakaran) and Punjab National Bank vs. Kunj Bihari Mishra (1998 (7) SCC 84). Learned counsel arguing further contended that the order passed by the disciplinary authority would be bad in law since while passing the order of dismissal from service it has been observed that the petitioner’s past service record was also not satisfactory. In the submission of the petitioner if the past service record was/were to be considered then the respondents were obliged to first afford the petitioner an opportunity to submit his cause on the said point by issuing notice which has not been done in the present case. Reliance in this regard has been placed on a judgment of the Supreme Court in the case of Md. Yunus Khan vs. State of U.P. & Ors. (2010 (7) Supreme 970). Per contra, learned counsel for the Respondent- Corporation supported the impugned action. Dwelling upon the Patna High Court CWJC No.7775 of 1997 5 power of judicial review to be exercised by this Court under Article 226 of the Constitution of India in a matter concerning departmental proceeding, it has been contended that this Court would not sit in appeal and re-appraise the evidence on record. Correctness or otherwise of the charge(s) is also not required to be gone into as in such matter the Enquiry Officer is the sole Judge of the enquiry and to see whether based on materials on record, the charges have been proved or not. In support of aforesaid contention, he has placed reliance on AIR 1999 SC 625 (Apparel Export Promotion Council vs. A. K. Chopra). On the issue of non furnishing of the enquiry report to the petitioner enabling him to submit his cause against the finding(s) arrived at by the Enquiry Officer, it has been argued that this Court is required to keep in focus that in the enquiry the petitioner did not show any interest inasmuch as in spite of affording adequate opportunity he did not even cross-examine the witness of the department. The enquiry was initiated in the year 1991 and continued till the end of 1993 but in spite of notice, he did not appear thereat to controvert the charge and lead evidence in support of his stand. No application was filed on his behalf to examine any witness in support of his defence. If a delinquent, despite notice, does not cooperate in the enquiry, then he cannot be heard arguing that no adequate opportunity was granted to him. It is further contended that admittedly the enquiry report was supplied to the petitioner when he filed appeal. If that be so, then no prejudice has been caused to the petitioner on account of non furnishing of enquiry report. Patna High Court CWJC No.7775 of 1997 6 Learned counsel highlighted that petitioner was aware of the aforesaid fact and, as such, this issue was not raised in the memo/ground(s) of appeal. Relying on (2010) 5 SCC 349 (Union of India & Ors. vs. Alok Kumar), it has been contended that petitioner is required to demonstrate de facto prejudice, if any, caused to him. As about recitals made in the impugned orders about the past service record passed by the disciplinary authority, it is contended that the same is not the foundation of the order. It is just a reference. It is contended that the petitioner has not come out with a case that under the relevant Standing Order of the Corporation there is explicit prohibition in this regard. In the same vein it is argued that until and unless the punishment imposed on the delinquent petitioner shocks the judicial conscience of the Court this Court should not delve into the question of proportionality of the punishment. In the light of the rival submissions advanced on behalf of the parties, this court is required to consider whether there is any gross irregularity in decision making process causing de facto prejudice to the petitioner. The charges precisely relate to carrying passengers on bus and realizing fares from those passengers and pocketing the same for his undue gain. This was detected in course of checking by the squad on way from Saharsa to Purnea. The squad made attempt to issue passenger vouchers (P.Vs.) to the 26 passengers on board found without ticket which was obstructed by the petitioner on the plea that he had already entered those passengers in Master Challan and would get tickets issued from the Patna High Court CWJC No.7775 of 1997 7 next ticket issuing depot/counter of the Corporation. Petitioner has placed reliance on a truncated copy of the office order no. 683 dated 18.4.1980 (Annexure-2). On perusal of annexure-2, it appears that only part of the aforesaid office order no.683 dated 18.4.1980 has been enclosed. The context in which the said order, if any, was issued is not known to the Court. This Court is in agreement with the submissions of the learned counsel for the respondents that correctness or otherwise of the charge normally should not be looked into by the writ court on a re-appraisal of materials laid before the Enquiry Officer. Petitioner may have some explanation but in view of the report of the squad (Annexure-3), articles of charge (Annexure-5) and the enquiry report (Annexure- 7) this Court is unable to appreciate the aforesaid stand of the petitioner that in the light of the aforesaid office order, he has not committed any misconduct and/or irregularity in the matter of allowing 26 passengers to board the bus. On bare perusal of articles of charge, it appears that he has been proceeded against for realizing fares from 26 passengers on board and pocketing the same and for obstructing the squad in carrying out its duty. It is not the petitioner’s case that he had already realized the fares from those 26 unbooked passengers and had volunteered to deposit the amount realized with the squad against P.Vs. The contention of the petitioner in this regard is, therefore, fit to be rejected. Learned counsel has fervently argued that the order passed by the disciplinary authority (Annexure-8) stands vitiated on account of non furnishing of the enquiry report enabling him to Patna High Court CWJC No.7775 of 1997 8 submit his explanation on those findings. According to him, this is a flaw or defect going to the root of the entire decision making process. Combating aforesaid argument, learned counsel for the respondents contended that core issue to be considered in such matter would be to see whether a real prejudice has been caused to the petitioner or not. It is contended that decision in the present case was taken subsequent to Md. Ramzan case as reported in (1991) 1 SCC 588. In Alok Kumar (supra), the Hon’ble Supreme Court has propounded a theory of element of de facto prejudice which the delinquent needs to plead and demonstrate. Dealing further, it has been held that with the development of law, rigidity in these rules is somewhat relaxed. Instance of de facto prejudice has been accepted as an essential feature where there is violation of non mandatory rule or violation of natural Justice. The Courts are, therefore, required to guard against such pleas raised in the writ jurisdiction to frustrate departmental enquiry. It is, thus, not permissible to set aside the departmental enquiry on the basis of only apprehended prejudice and not de facto prejudice. Moreover, from the pleadings on record, it appears that when the statutory appeal was invoked the delinquent petitioner was in possession of the enquiry report and had thus the occasion to question the correctness or otherwise of the said report and/or to submit his explanation thereon. In Union of India vs. Vishwa Mohan (1998) 4 SCC, 310, the Apex Court has taken a view that if that be the position, then it cannot be said that any real prejudice has been caused to the delinquent employee. On going through memo of Patna High Court CWJC No.7775 of 1997 9 appeal (Annexure-B to the Supplementary counter affidavit), it appears that the said issue was not even raised. Paragraph 2 of the memo contains the fact relating to the date fixed by the Enquiry Officer and information thereof given to the petitioner requiring his appearance and submission of defence. In response to one of the notices the petitioner appeared and sought time which was allowed. Another date was fixed and communicated to the petitioner but he failed to appear probably under design. No application was filed on his behalf to examine any witness or to cross-examine the sole witness produced on behalf the department. In fact, after examination of witness at the enquiry, the petitioner was issued notice allowing him an opportunity to cross-examine the said witness which was also not utilized. Based on materials on record which includes the report submitted by the squad, statement of one of the members of the squad/team and other materials on record the Enquiry Officer held those charges proved at the enquiry. In a case like this, in my view, non-supply of the enquiry report before passing of the order of punishment by the disciplinary authority would not be fatal vitiating the order on this count alone. The contention of the petitioner made in this regard is, therefore, fit to be rejected. Petitioner has then questioned the sustainability of the order passed by the disciplinary authority on the ground that while inflicting punishment of dismissal from service the respondents considered his past service record. It has been strenuously argued that his past service record was not reflected as a charge or an issue Patna High Court CWJC No.7775 of 1997 10 in the article of charge. The respondents if at all wished to take into account his past service record then, in all fairness, the petitioner was required to be afforded an opportunity to submit his cause thereagainst and convince the authority that those were not such so as to warrant affliction of punishment of dismissal from service. On the other hand, it has been contended by the respondent(s) that observation made in this regard by the disciplinary authority is just by way of reference and not the sole foundation of the order. The test in such matter would be to efface those portions of the order and thereafter to judge whether the charges proved against him were good enough to afflict punishment of dismissal from service. It is not the case of the petitioner that relevant Stranding Order of the Respondent-Corporation forbids such consideration. In order to buttress his stand, petitioner has relied on the case of Md. Yunus Khan (supra). I have gone through the judgment. Appellant in the said case was dismissed from service by order of the Commandant, 30th Battalian who had earlier appeared as a witness in the enquiry and had proved disobedience of his order. Having done so, he also became the Judge of the case as the disciplinary authority and passed the order of dismissal. While doing so, he has referred to his past conduct. His challenge before the Tribunal failed. The writ petition filed thereagainst was also dismissed and the matter travelled to the Hon’ble Apex Court. The Apex Court, on perusal of materials on record, held that initiation of the departmental proceeding against the appellant and conclusion thereof by imposition of punishment Patna High Court CWJC No.7775 of 1997 11 by the Commandant, who had himself been a witness, was in flagrant violation of the principles of natural Justice and thus stood vitiated. Relying on the ratio laid down by the Constitution Bench in the Case of Arjun Choubey vs. Union of India & Ors. (AIR 1984 SC 1356), the orders impugned were set aside. In paragraph 37 of the report, the Apex Court held that the case was squarely covered by the decision of the Constitution Bench in Arjun Choubey (supra). In paragraph 36 of the report, Apex Court, however, held that the authority could not have considered the past conduct of the appellant to justify the order of punishment passed by the disciplinary authority without bringing it to the notice of the appellant. In my view, the factual background in which the aforesaid judgment was rendered by the Hon’ble apex Court is clearly distinguishable. This Court would take judicial notice of the fact that the Corporation is involved in commercial activities. On account of large scale flush of its revenue generated from the sale of passenger tickets pushed the Corporation on the verge of liquidation. On the intervention of the Hon’ble Apex Court, the government came out with revival package/scheme which was prepared and presented before the Apex Court and was approved. Since then, the Corporation is struggling to achieve its goal of reaching profit making stage capable of discharging its liabilities incurred prior to such implementation of revival scheme/package. The said scheme provided for taking stringent action against those employees, particularly the crew members of the bus of the Corporation, against whom charges of loss of revenue by Patna High Court CWJC No.7775 of 1997 12 committing misconduct was/were levelled. Even if the observation made in the impugned order (Annexure-8) are not taken into consideration, it appears that petitioner could have been dismissed for the charge(s) proved against him. Be it noted here that the principal source of revenue of the Corporation is by sale of passenger tickets. For the reasons noted above, this Court finds no merit in the aforesaid contentions of the petitioner. I have taken the aforesaid view keeping in focus the fact that this Court exercises discretionary and equitable jurisdiction. If an employee, in spite of adequate opportunity did not bother to participate in the proceeding, then this Court would be justified in refusing to invoke its writ jurisdiction to grant relief. For the reasons noted above, the application deserves to be dismissed and is accordingly dismissed. There shall be no order as to costs. ( Kishore K. Mandal ) Patna High Court Dated 5th December, 2011 HR/NAFR