South Bengal State Transport Corp vs Ashok Kumar Ghosh & Ors

3. Short facts giving rise to this appeal are that the writ petitioner-respondent No.1, hereinafter referred to as the delinquent employee was at the relevant time working as Conductor with the appellant -South Bengal State Transport Corporation. On 17.02.2007 he was assigned duty in a Bus bearing Registration No.WB-39/2110, plying between Durgapur to Baharampur. The said bus was checked by the checking squad at Baharampur and they detected one ticketless passenger, who was going towards Baharampur from Kandi. The checking squad collected fine from the said passenger. Further a sum of Rs.345/- was found in excess in the Conductor's cash-bag. The Divisional Manager, Durgapur Division of the South Bengal State Transport Corporation is the disciplinary authority of the delinquent employee. A memo of charge dated 7.3.2007 was drawn by the Divisional Manager, Durgapur alleging the aforesaid misconduct against the delinquent employee; i.e. allowing the ticketless passenger to travel in the bus and possession of excess amount of Rs.345/- in the cash-bag. The memo of charge was served on 3 the delinquent employee on 8.3.2007 and without giving any opportunity to him the Divisional Manager, Durgapur was appointed as the Enquiry Officer. The delinquent employee submitted his reply dated 17.3.2007 denying both the charges and according to him detection of the passenger travelling without ticket is not misconduct, because on the spot itself the ticketless passenger was tried and a fine was realized from him by applying Section 178A of the Motor Vehicles Act. As regards the second charge, the plea of the delinquent employee is that an amount of Rs.345/- was left by a passenger and when one of the passengers claimed the amount, he verified the same and till then kept the amount with the intention of returning it to him. The enquiry was conducted by the disciplinary authority i.e. the Divisional Manager, Durgapur himself who did not accept his plea and held both the charges brought against him to have been proved. Accordingly the disciplinary authority inflicted the punishment and relegated the delinquent employee, a Conductor to the status of Daily Rated Conductor.

7. The appellant, aggrieved by the aforesaid order preferred an appeal along with an application for stay. The stay application and the appeal were dismissed by a common order dated 24.9.2008 with the following directions:

(3) The disciplinary authority shall deliver or cause to be delivered to the employee a copy of the articles of charge and the statement of imputations of misconduct or misbehaviour prepared under clause (ii) of sub-regulation (2) and shall require the employee to submit to the inquiring authority within such time as may be specified a written statement of his defence and to state whether he desires to be heard in person.

16. We may next consider whether the punishment is permissible in service jurisprudence. It is well settled that while an employee can be reverted to a lower post or service, he cannot be reverted to a post lower than the post in which he entered service (See: Nyadar Singh vs. Union of India - AIR 14 1988 SC 1979). Further it is also well settled that reversion to a lower post or service does not permit reversion to a post outside the cadre that is from regular post to a daily wage post. We are therefore of the view that the punishment inflicted on the delinquent employee not being one of the punishments enumerated in Regulation 36, is not permissible in law.

17. However we are of the view that the reasoning of the High Court for quashing the order of punishment is not sustainable. While we do not agree with the High Court that the enquiry is to be set aside on the ground of bias, we agree that the punishment imposed by the disciplinary authority requires to be modified. Though, normally, in such a situation the matter should be referred back to the disciplinary authority for imposition of fresh penalty, having regard to the facts and circumstances and to do complete justice, we propose to impose the penalty.

18. We accordingly allow this appeal in part with the following directions: