JUDGMENT
M.P. Singh, J.
1. This is an appeal by the Rajasthan State Road Transport Corporation (in short, ‘the Corporation’) against the order of the learned Single Judge, allowing the respondent’s writ petition on the ground of violation of the principles of natural justice.
2. The Chairman of the Corporation passed an order against the respondent awarding the punishment of reduction in rank. He has been demoted from the post of the Divisional Mechanical Engineer to the post of the Assistant Mechanical Engineer.
3. During his officiating period, he was only to look after officiate work of the Divisional Manager in addition to his own duties as Divisional Mechanical Engineer. Out of the total 12 days of his officiating on that post, five days were holidays and, in all, he got 7 working days. During this period of seven days, he called for the enquiry files of five Conductors, who were under suspension on grave charges of allowing ticketless passengers to travel on several occasions. The enquiries were pending against them since only about 2 months and they had not filed their replies to the charge-sheets. They were filed in hurry soon after he took over officiating post on 12.10.83. They were filed on 17.10.83, 18.10.83, 20.10.83 and 21.10.83.
4. He decided the cases of five conductors, i.e., Ramnarain, Rishabh Lal, Ramlal Yadav, Ramchandra Trivedi and Banshilal against whom charges of grave misconduct were pending. He neither appointed any Enquiry officer, nor presenting officer, nor held any enquiry against them, though the entire record has been seen by him. From the record, it was known to him that these were the persons who have been punished for committing same type of mis-conducts on several earlier occasions. Without following the procedure of law, he decided all the cases in hot haste by imposing minor penalties. He did not even follow the Circular dated 14th of November, 1980, which made it obligatory on the part of the Disciplinary Authority to have looked into the previous record of the delinquent employees, to have appointed the Enquiry Officer and presenting officer for conducting the enquiry. Even Order 35 of the Standing Orders was not followed.
Ramnarain (Conductor)
5. He was charge-sheeted on 26th September, 1983 and was required to file his reply within seven days. However he filed his reply on 20th of October, 1983, during the short span of time when the respondent was looking after the work of the Divisional Manager, Udaipur. His case was decided on 20th October, 1983, i.e. only a day before a permanent incumbent Mr. Zaidi was to join his duties and would have relieved the respondent.
6. Ramnarain was punished on several occasions when he was a Conductor at Banswara Depot. He was punished for the misconducts committed by him on 31st of August, 1979, 14th of September, 1979, 28th of September, 1979, 25th of September, 1981, 27th of April, 1981, 5th of October, 1981, 26th of May, 1982 and 15th of September, 1983. These misconducts mainly related of carrying passengers without tickets. In his case, respondent passed the following order:
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Rishabh Lal (Conductor)
7. He was earlier punished for the misconducts which he committed on 17th of August, 1980, 9th of October, 1980, 12th of November, 1980, 28th of November, 1981, 22nd of September, 1982 and 30th of July, 1983 for carrying passengers in the bus without tickets and, in his case, he passed the following order:
Discussed and seen the entire file alongwith reply of conductor.
Reply is quite satisfactorily. No Detailed enquiry is needed for the same. Looking to the conductor’s past history and scarcity of conductors following orders be issued:
1. He may be issued S.R. warning for not repeating such in future. Orders be issued. Sd/:
(S.P. MANGAL) Divisional Manager. 19.10.83.
Banshilal (Conductor)
8. He was also earlier punished for the misconducts which he committed on 2nd April, 1979, 30th of August, 1979, 19th of October, 1979, 3rd of August, 1980, 10th of September, 1980, 12th of July, 1980, 30th of September, 1980, 29th of November, 1981, 16th of January, 1983 and 12th of August, 1983. The misconducts related to carrying the passengers without tickets and, in his case, the following order was passed:
He has submitted the reply of previous charge sheet also. In which he was placed under suspension. Later on, he was reinstated pending enquiry even before the submission of reply. That means the charge was not so serious and it was realised by concerned Div. Manager in personal hearings.
Under the circumstances, looking to the past history he was violated the rules laid down by Corporation, following orders be issued.:
1. S.R. warning be issued for not repeating the things in future.
2. Remaining suspension salary be forfeited in Corpn. head. Orders be issued. Sd/:
(S.P. MANGAL) 21.10.83
Rameshwar Lal s/o. Shanker Lal (Conductor).
9. He was also punished on several occasions for the misconduct of carrying passengers without tickets and the dates are 13th of September, 1977, 22nd of October, 1977, 4th of May, 1978, 12th of May, 1979, 21st or December, 1980, 9th of October, 1981 and 7th of August, 1983. In his case, the following order was passed:
Discussed and seen the entire file. The neemch route is chapter 4 route. Over this route, the conductor is mentally bothered for income. Even for drivers the relaxation has been given for Diesel average because strictly punctuality is to be maintained. It is in the interest of Organisation to boost up the moral of crews over such route so that Corporation can compete the service facilities provided by private operators.
Looking to the past history, particularly of last two years, there is no any corruption case against the said conductors.
Under the circumstances considering the available facts and figures, no detailed enquiry is required to be conducted. Following orders be issued only after recalling him:
1. Remain suspension salary be forfeited in Corpn. head.
2. S.R. warning be issued for not repeating same in future.
3. Two (2) A.G.I, be stopped temporarily.
Orders be issued. Sd/:
(S.P. MANGAL) 19.10.83
Rameshwar s/o. Hanuman Prasad (Conductor).
10. This Conductor was also punished for the similar misconduct of carrying passengers without tickets on 5th of November, 1982, 4th of February, 1983, 18th of June, 1983, 30th of June, 1983 and 26th of September, 1983 and, in his case, this was the order passed by him:
Seen and discussed the relevant facts. The charges are not so serious. It will not be in the interest of Organisation to conduct the enquiry for the same. Reply is quite satisfactory. But still he has violated the Rules prescribed by the Corporation. Looking to all concerned factors following orders be issued:
1. Remain suspension salary be forfeited in Corpn. head.
2. S.R. warning be issued.
3. He may be reinated at DPR Depot.
Sd/- (S.P. MANGAL) 21.10.83
The action of the respondent in passing the order in the cases of those five conductors against the Circular and Standing Orders itself amounted to misconduct. So, the following charges were levelled against him:
1. Deciding disciplinary cases in favour of five conductors (names in the charge-sheet) without carrying out any department enquiry.
3. Transferred conductors against norms resulting in financial loss to the Corporation
The details of the various charges were given alongwith the charge-sheet. These charges related to the period when he officiated as Divisional Manager in-Charge of Udaipur Division from 12th of October, 1983 to 23rd of October, 1983. He submitted his reply to the charge-sheet. The Enquiry Officer conducted the enquiry.
11. Though, the learned Single Judge has allowed it on the ground of violation of the principles of natural justice, but has discussed on instance of denying the opportunity to him and what prejudice has been caused by not following the procedure by the Department. Even in the case of Manchay Gowda (Supra), the Court observed that if the proposed punishment was mainly based upon the previous record of the Government servant and that is not disclosed in the notice, it will be presumed that the main reason of proposing the punishment has been with-held from him and that amounted to violation of the principles of natural justice.
12. The Supreme Court in the latest case [State Bank of Patiala v. S.K. Sharma), after considering its earlier judgments, has clarified the position that an order of punishment should not be set aside automatically, the Court has to entire whether the alleged violation of principle of natural justice is a substantive in nature or it is a procedural in character. It is actually the prejudice that is said to have been caused to the employee, is to be examined by the Court. In case there is a violation of substantive provision, of course, prejudice will not be applicable. But in case of violation of procedural provisions, which are meant only for affording reasonable opportunity to the employee, the test of prejudice has to be applied. In the instant case, there is no violation of either of substantial or procedural character. No case of prejudice has even been pleaded. No case of denial of principle of natural justice has been made out.
13. Thus, in view of the law laid down in the case of State Bank of Patiala (supra), we are of the view that the order of the learned Single Judge suffers from error and is liable to be set aside.