JUDGMENT
Arun Madan, J.
1. This civil first appeal has been preferred by the plaintiff appellant against the judgment & decree dated 5.1.1988 passed by the learned Additional District Judge, Beawar whereby the plaintiffs suit for declaration against order of dismissal and for consequential reliefs with regard to reinstatement in services of the Rajasthan State Road Transport Corporation (for short, ‘the Corporation’), was dismissed.
2. The appellant was appointed as conductor in services of the Corporation w.e.f. 22.3.1976 vide his appointment order (Ex. 1). He was confirmed as conductor from 7.8.1980 vide Ex. 2. Two charge sheets were issued & served on the appellant on (1) 29.10.1982 vide Exs. 3 & 4 and (2) on 16.12.1983 vide Exs. 11 & 12 by the management of the respondent Corporation. First charge sheet (Ex. 3) with statement of allegations (Ex. 4) was issued as a result of irregularities detected during the surprise checking by the Traffic Inspector made on 24.4.1982 while the appellant was on duty as Conductor to the Corporation’s bus No. 4523 on Beawar Diwer route and during that checking, three passangers were found travelling without tickets. Second charge sheet (Ex. 11) with statement of allegations (Ex. 12) was issued for the checking made by the Traffic Inspector on 13.12.1983 while the appellant was on duty as Conductor to the Corporation’s Bus No. 8109 playing on Beawar Udaipur route and during that checking, again three passengers were found travelling without tickets. As a result of his dereliction from duty on account of violation of the Corporation’s Rules applicable under Rajasthan State Road Transport Workers and Workshop Employees Standing Orders, 1965 (for short, “the Standing Orders”), the appellant was suspended twice from service of the Corporation 15.6.1983 and 16.12.1983 vide Ex. 6 & E.10 respectively because the disciplinary action was being contemplated against him. The order of suspension Ex. 6 was subsequently revoked on 30.8.1983 vide Ex. 9 thereby the appellant was given an opportunity to improve his conduct in service.
3. The appellant submitted his reply to the first charge sheet vide Ex. 5 and to the second charge sheet vide Ex. 13 wherein he has not denied to the incidents of having found passengers without tickets on the dates of surprise checking by the invigilation staff as referred to above and his defence was that when the bus was being checked, the passangers complained of having lost their tickets, inasmuch as no statement of the passangers alleged to have been found without tickets was taken note of by the Traffic Inspector who had made the remarks in his diary without enquiring from those passangers as to what were the reaons having been detected for travelling without tickets.
4. After affording due opportunity of hearing to the appellant during the course of disciplinary inquiry against him, and at the conclusion of the inquiry into the allegations of charges, the appellant was held guilty of the impugned charges of misconduct for the aforesaid two incidents under Section 34 of the Employees Standing Orders 1965 and accordingly punishment of termination from services of the Corporation was imposed upon the appellant on 9.3.1984 vide Ex. 14 against which the appellant submitted his appeal but his appeal was dismissed vide Ex. 15 on 31.5.1984. Thus, against the order of termination (Ex. 14) and appellate order (Ex. 15) the plaintiff appellant has filed suit for declaration challenging the same on grounds inter alia that the order of his termination was illegal, unconstitutional and was passed without following the principles of natural justice and hence null and void.
5. The Corporation in written statement to the plaint contested the suit asserting that there was no violation of principle of natural justice and full opportunity was given the plaintiff to defend himself in the inquiry inasmuch as no material prejudice has been caused to him. On pleadings of the parties, the learned trial Court framed following issues:
1. whether the orders dated 9.3.1984 and 31.5.1984 are illegal, void and deserve to be quashed and set aside as stated in para 11 of the plaint?
2. Whether the Court is competent to hear, adjudicate and decide the suit having its jurisdiction?
3. Whether plaintiff is entitled to claim consequential relief of reinstatement in services of the Corporation and other benefits admisible to him as stated in paras 14 and 15 of the plaint?
4. Relief? To what relief, the plaintiff is entitled?
6. The plaintiff in support of his pleadings did not examine any other witness except himself. The Corporation also did not tender any evidence in rebuttal, the trial Court after hearing the parties and perusal of the evidence and other relevant material on record dismissed the plaintiffs suit deciding issue Nos. 1, 3 & 4 in favour of the defendant. Hence this appeal.
7. At the outset, it will be relevant to state that earlier this appeal was allowed vide judgment dated 21.5.1991 only on one ground namely non-furnishing of the enquiry officer’s report and accordingly this Court decreed the suit with costs throughout. Against that judgment, the Corporation preferred Civil Appeal No. 3752/91 before the Supreme Court. The Apex Court vide its order datd 15.2.1994 observed that the High Court did not even reserve the liberty to the department to proceed with the enquiry from the stage of furnishing of the enquiry report and that the ground on which the High Court allowed the appeal is no longer available in view of the Constitution Bench decision in Managing Director E.C.I.L. Hyderabad v. B. Karunakar . The Apex Court then observed as under-
However, it appears from the judgment of the High Court that certain other grounds were also urged by respondent before it but the High Court chose to allow the appeal only on one ground. In the circumstances of the case it is appropriate that the matter is remitted back to the High Court for disposing of the appeal afresh according to law, considering the other grounds raised therein.
Having regard to the facts and circumstances of the case, it is directed that even in case the respondent ultimately succeeds in the suit, he shall not be entitled to full back wages but only to half.
8. Thus, the Apex Court allowed the appeal of the Corporation and set aside the judgment dated 31.5.1991 and the matter has been remitted back to this Court. Therefore, this appeal has been heard on other grounds as contended by the appellant in the memo of appeal in pursuance of the judgment of the Apex Court.
9. During the course of hearing the learned Counsel for the appellant contended that the impugned judgment of the learned trial Court is illegal and not sustainable in law because the impugned charges in both the charge sheets are vague, unspecific and uncertain being based on hypothesis and assumptions as the charge sheets do not specify any of misconduct defined in different clauses of Section 34 of the Standing Orders of the Corporation, inasmuch as since statements of alleged passengers having been found without tickets were not recorded by the complainant Traffic Inspector, nor names of those passengers were alleged in the impugned charge sheets. Next contention of Shri Samdaria is that in any of the charge sheets in question, there is no mention of specific rules which are alleged to have been violated by the plaintiff and therefore, the impugned order of punishment is not sustainable in law. Shri Samdaria also contended that both the order of punishment so also the appellate order being non-speaking are bad in law. Lastly Shri Samdaria contended that the impugned punishment of termination being disproportionate to the gravity of charges deserves to be altered.
10. The learned Counsel for the respondent Corporation contended that in the statement of allegations to the impugned charge sheets, it has specifically alleged (1) that according to, the Corporation’s Rules & regulations, the plaintiff conductor had to issue tickets to the passangers, enter them in the bill and to deliver them to the driver before departing the bus but the plaintiff by not performing that prescribed duty committed breach of the Corporation’s Rules; and (2) that if the checking was not done to the Bus, the fare realised from the passangers would have been recovered from the passangers and used for the purposes of his personal gain. Thus, according to Shri Bhandari this act alleged in the impugned charge sheets comes within four corners of Clauses (i), (p) & (q) of Section 34 of the Standing Orders because the act of the appellant smacks of (1) dishonesty, fraud, theft, malpractice of cash recovered from the passangers of the Corporation’s bus, (2) neglect of work and (3) habitual breach of any law or rule having the force of law applicable to the Corporation. In these circumstances his act (supra) constitutes misconduct as defined in Section 34 of the Standing Orders which stands proved on record therefore, he was rightly punished for termination from service as upheld the appellate authority as also by the learned trial Court under impugned judgment.
11. I have heard the learned Counsel for the parties and carefully considered their rival contentions and perused the relevant record referred to by the parties during the course of the hearing. Section 34 of the Standing Orders of the Corporation defines various acts and omissions committed by the employees of the Corporation under Clauses (a) to (v) thereto which constitutes and can be treated as misconduct of the employee. Clauses (i), (p) and (q) to Section 34 of the Standing Orders contemplate as under-
34. The following acts and omissions shall be treated as misconduct
(i) Dishonesty, fraud, theft, malpractice or misappropriate or cash or property.
(p) Habitual breach of any law or rule having the force of law applicable to the establishment
(q) Habitual negligence or neglect of work.
12. Specific finding has been recorded by the learned trial Court that from a perusal of Section 34 of the Standings orders it appears that there is specific incorporation in Clause (p) to Section 34 that misconduct also includes habitual breach of any law or rule having the force of law applicable to the Corporation and since it was mandatorily required of the conductor like the appellant to issue tickets to the passangers before they board to the bus before its leaving the Bus stand/halt, and to enter in the bill the details of tickets including its fare amount, issued to the passangers and thereafter to deliver all these details to the driver before moving the bus, but the appellant failed to do so therefore, committed breach of the Corporation’s Rules as has been rightly found by the traffic inspectors who made the checking of the bus and found three passangers travelling without tickets. Besides, the act of omission under the charge sheets does also come within the ambit of Clauses (i) & (q) to Section 34 of the Standing Orders. In my considered view, such a finding recorded by the learned trial Court is based on material and due appreciation of evidence on record and is not open to challenge. From the perusal of the record it is borne out that the appellant was afforded full opportunity of hearing during the course of the disciplinary inquiry conducted against him and it is only thereafter the impugned order of punishment has been passed aganst him, which has also rightly been upheld not only by the appellate authority but also by the learned trial Court. Therefore, on this ground, the impugned judgment deserves to be affirmed.
13. As regards the contention of Shri Samdaria assailing the impugned order of punishment & appellate order on the ground of non-speaking and non-assinging reasons for termination, I am of the view that from the perusal of the orders in question it is apparent that the same were passed after giving due reasons inasmuch as it has been specifically observed that the appellant is in the habit of not issuing tickets to the passangers and this was not the first occasion when he was apprehended during surprise checking of the bus when passangers were found without having tickets and that being so, two charge sheets were issued one after the others as referred to above, because he was indulging in such practice for the past as well.
14. Further I am of the view that since in the statements of allegations to the charge sheets, referred to above, it has specifically been alleged that on surprise checking made by the Traffic Inspectors of the Vigilance Section of the Corporation, the appellant was found not to have issued tickets to the passangers on both the occasions referred to therein and, therefore, it cannot be said that the charge of misconduct is hypothetical which has either not been spelt out or defined as misconduct under the Standing orders of the Corporation. Shri Smadaria has placed reliance upon the decision in A.L. Kalra v. P & E. Corporation of India Ltd. , wherein the Apex Court while dealing with case of Project and Equipment Corporation of India Ltd. Employees’ (Conduct, Discipline and Appeal) Rules, 1975 observed that where misconduct when proved entails penal consequences, it is obligatory on the employer to specify and if necessary define it with precision and accuracy so that any ex post facto interpretation of some incident may not be comouflaged as misconduct. This decision (supra) is not attracted to the instant case, since it was well within the knowledge of the appellant that not issuing tickets to the passangers before they are made to board the bus of the Corporation would be violative of the Standing Orders and it constitutes misconduct as defined in Section 34 of the Standing Orders which may entail penalty of dismissal/amounting to termination from the service as per Section 35(vi)(c) of the Standing Orders since if on the conclusion of the inquiry or as the case may be, of the criminal proceeding, the workman has been found guilty of the charge and if it is considered that an order of dismissal may meet the ends of justice, the employer shall pass orders accordingly.
15. It was also well within the knowledge of the appellant that since it was not first occasion when this order was passed, but earlier as well, he was dismissed from service on the basis of same charge and thereafter re-instated and thus was given a chance to improve his conduct which apparently he did not avail. Hence it cannot be inferred by any stretch of imagination that he was not aware of seriousness of the charge framed against him, nor can it be construed that the misconduct under Section 34 of the Standing Orders cannot be met with penalty of termination from service. I am consequently of the view that the findings of the trial Court on this aspect of the matter are perfectly just and in accordance with law and it cannot be said that the punishment of termination is either shocking disproportionate or to the gravity of the charge.
16. I have examined the ratio of decisions relied upon by Shri Samadaria in (1) RSRTC v. Shri Ram Yadav 1995 (3) WLC 16, (2) Oswal S. Joseph v. RSFTC 1996 (2) LLN 645, and (3) State of Tamilnadu v. N. Natrajan 1997 (6) SC 190 and in my view, the same are not attracted to the instant case and do not help to advance the case of the appellant in any manner. Hence the order of termination cannot be said to be shockingly disproportionate to the gravity of the charges. Rather the appellants was given sufficient opportunity in the past to improve but there was no effort on his part to improve his conduct which fact is explicitly borne out from the record. Hence the question of reinstatement in service or payment of back wages to the appellant does not arise.
17. As a result of the above discussion, this appeal fails and is hereby dismissed with no order as to costs. The impugned judgment dated 5.1.1988 passed by the learned Additional District Judge, Beawar is upheld.