JUDGMENT
Jasraj Chopra, J.
1. By this writ petition, the petitioner has challenged the legality of the Award dated 13-9-1989 of the Judge, Labour Court, Jodhpur where by it has been held that the order dated 20-1-1986 of the removal of service passed by the Divisional Mechanical Engineer, Rajasthan State Road Transport Corporation, Jodhpur is valid.
2. The facts of this writ petition briefly stated are: that on 19-12-1984, the petitioner was driving Bus No. 257 on Jodhpur to Balotra route. It was a non-stop bus. On checking at Balotra, it was found that it was earning 61 passengers from whom fair was recovered but no tickets were issued to them. The petitioner, who was the driver of the Bus was in possession of the way-bill, which was totally blank. On checking, tickets were issued to all the 61 passengers. A checking memo was also prepared, which was signed by the conductor of the Bus Shri Jaswantsingh and the petitioner who was the driver of the Bus. Thereafter, enquiry was conducted and the petitioner’s services were terminated along with that of jaswantsingh Conductor. It is alleged that two more reasons who were ticket-clerks at booking windows on the main bus-stand of Jodhpur and Siwanchi gate bus-stand were also chargesheeted but their services were not terminated where as the services of the conductor and driver of the Bus were terminated.
3. As against this, the petitioner approached the Labour Court and the learned Labour Judge felf that the enquiry conducted by the Enquiry Officer was not proper and, therefore, he allowed the parties to lead the evidence and ultimately, by its judgment dated 13-9-1989, the learned Labour Judge has up-held the termination order of the petitioner and hence this writ petition.
4. I have heard Mr. D.K. Parihar, the learned Counsel appearing for the petitioner at length at the admission stage and have’ carefully gone through the record of the case.
5. It was contended by Mr. D.K. Parihar, the learned Counsel appearing for the petitioner that the duty of the driver is only to drive the vehicle and he is not at all responsbile for the issuance of the tickets to the passengers. More over, the passengers, who were travelling without tickets have not been examined by the Checking Inspector and therefore, on the basis of such a hear-say testimony of the checking Inspector, the services of the petitioner could not be terminated. In this respect, he has placed reliance on a decision of this Court in Khemchand v. State of Rajasthan (1985 (1) SLR 533). That too was a case of removal from service of the conductor. On checking; it was found that some passengers were travelling without tickets although fair was paid to the conductor. In those circumstances it was observed:
“But the basic question is who states this fact. Neither the witnesses have been examined who were travelling without tickets nor their names have been disclosed nor it has been shown as to which of the six persons the tickets were not issued and who were those seven persons from whom the money had been recovered but the tickets had not been issued. That taking of money from the passengers and not accounting for was clearly a case of embazzlement for which a report could also have been lodged but that has not been done. In the charge sheet Ex. P 1 it has been stated that Corporation could have been put to a loss of Rs. 42.95p. which amount would have been utilised by the petitioner. It has not been shown as to how this figure had been arrived at and in respect of what distance. The findings of the Enquiry Officer about boarding of bus by the passengers 20 km. before the tickets could have been issued is a finding based on no evidence. It was a case of statement against statement. On one side was the statement of Jorawarsingh and as against this was the statement of the petitioner. In such circumstances, it was bounden duty of the enquiry Officer to have weighed the two statement in true perspective and should have assigned reasons for discarding the one. That not having been done, it the report of the Enquiry Officer cannot be said to be based on correct appraisal of evidence. The disciplinary authority’s order neither disclosed the reasons for his accepting the report of the Enquiry Officer nor discloses the application of his mind The Appellate Authority rejected the appeal mechanically in pursuance of some agreement between the management and the Labour Union In those eventualities I am constrained to hold that the petitioner has been deprived of a fair enquiry and proper appraisal of the evidence and the order of removal deserves to be set aside. I have already expressed my regard about the attitude of the Corporation towards notice issued by this Court.”
In Khemchand’s case (supra), it was not held that the evidence of the Checking Inspector suffers from the vice of hearsay evidence and, therefore, to this extent this authority does not support the contention of Mr D.K. Parihar, the learned Counsel for the petitioner. In that case, the removal was not set aside only on the ground that the persons travelling without, tickets have not been examined but the additional ground which prevailed with the Court was that why the statement of Checking Inspector has been preferred to that of the delinquent has not been disclosed and the appeal has been dismissed mechanically without any application of mind and, therefore, as a cumulative effect of all these factors, the writ petition has been allowed.
6. Mr. DK. Parihar, the learned Counsel appearing for the petitioner has drawn my attention a decision of their Lordships of the Supreme Court in State of Haryana v. Rattan Singh (1977 L.I.C. 854), where in it has been observed:
that in a domestic enquiry, the strict and sophisticated rules of evidence under the Evidence Act may not apply. All materials which are logically probative for a prudent mind are permissible There is no allergy to hearsay evidence provided it has reasonable nexus and credibility. The departmental authorities and administrative tribunal must be careful in evaluating such material and should not glibly swallow what is strictly speaking not relevant under the Evidence Act.
The sufficiency of evidence in proof of the finding by a domestic tribunal is beyond scrutiny. Absence of any evidence in support of a finding is certainly available for the court to look into because it amounts to an error of law apparent on the record.
Where a bus conductor of a State Transport undertaking was charge-sheeted for not collecting fares from certain passengers and on his guilt being established there was simply termination of his services because of his long services and young age, it could not be said that merely because statements of passengers were not recorded by the Inspector of the flying squad, the order that followed was invalid. The evidence of the Inspector was some evidence which had relevance to the charge against the bus conductor order of simple termination of services was valid.
A learned Single Judge of the Punjab and Haryana High Court in the case of State of Haryana v. Mohan Singh, 1985 (2) SLR 116 observed that to prove the termination of services of conductor on the ground of having charged fare without issuing any ticket, the solitary statement of Chief Inspector who neither recorded the statement of passenger alleged to have paid fare nor checked the cash in hand though amounts to hearsay evidence is permissible to be accepted in a departmental enquiry. In this case, the court itself has field that the departmental enquiry enquiry which was conducted by the Enquiry Officer was not proper and, therefore, it gave an opportunity to the delinquent as also to the Corporation to file the affidavits and in pursuance thereof, Shri Milakhraj, traffic Inspector filed an affidavit. He was further cross-examined. The petitioner too filed his own affidavit and in para 3 of that affidavit, he has admitted that the bus was going from Jodhpur to Balotra. It was a non-stop bus. All the passengers were taken from Jodhpur to Balotra and all of them had got down at Balotra. Hs has further contended that all these persons were carrying tickets According to him, the duty of the driver was only to ply the vehicle. He has further contended that it is not known whether the driver has to keep the way bill with him and he is required to get the entries done in the way bill. It is not disputed before me that the way bill which was found in possession of the petitioner was totally blank. Shri Milakhraj has stated that this bus was carrying with all passengers from Jodhpur to Balotra and all the passengers were without ticket although fair was collected from them by Shri Jaswantsingh Conductor. It has further been stated by him that after stoppage of the bus at Balotra, they checked the bus, and issued tickets to all the 61 passengers from the ticket books which were earned by the Conductor with him. Not single word has been asked to him that it was not done by him. Shri Milakhraj has also stated that the way bill was collected from the driver which was totally blank. A checking memo was prepared and that has been not only singned by Shri Jaswantsingh conductor but also by the driver of the bus i e. petitioner Rafiq Mohd. and he has proved those, signatures. Not a single question has been asked to him in the cross-examination as regards this. Rather, it was suggested to him in his cross-examination that the driver did not give the way bill to the conductor because he did not demanded the way bill from him, It was asked to him why he did not record the statements of all the passengers whereupon Shri Milakhraj has stated that because the driver and conducted accepted their guilt and so, he did not think it proper to examine these persons specially when he has issued them tickets at Balotra from the tickets which was carried by the conductor and has collected Rs. 2,196/-. It was also alleged by him that the General Manager (Traffic), Jaipur has issued an order bearing No. Traffic/81/81 dated 6-2-1981 where by it has been enjoined upon the Drivers to get the way bill and to get necessary entries recorded in it and if the conductor does not comply with those regulations, he has to report She matter to the booking stand Incharge or to record is report about it in the way bill itself. If the driver does not do so, he is equally responsible. As regards this assertion made in his affidavit, not a single question has been asked to him, which clearly shows that it was the responsibility of the driver to keep the way bill with him to get correct entries recorded in it. Undisputably, the way bill was recovered from the possession of the driver without any entry, which claerly shows that it was in the knowledge of the driver that 61 passengers are being carried in the bus without tickets and, therefore, he is equally guilty of the change of non-issuing of tickets to the 62 passengers in connivance with the conductor of the bus.
7. My attention was also drawn to a judgment of the learned Single Judge of this Court in Ranidan Singh v. RSRTC and Ors (S.B.C W. No. 2217 of 1985, decided on December 17, 1986) where by the termination of services of a driver in such a case was upheld.
8. It was further contended by Mr. D.K. Parihar, the learned Counsel appearing for the the petitioner that in this case two more persons who were booking clerks were also charge-sheeted and they were suspended but they are still in service and their services, have not been terminated although they have been punished. These two persons were the booking clearks and their duties are to issue the tickets to the passengers on the ticket window and to enter them in the way bill and when no passenger approaches them, they are required to supply the empty way bill to the driver. Hence, the case of the driver and the conductor of the bus cannot be equated with the booking clerks. The learned Labour Judge has held that the conductor of the bus has also been dismissed and, therefore, the petitioner who has been given lesser punishment of removal from service cannot make any complaint about it.
9. Mr. Parihar has also placed reliance on a decision of their Lord-ships of the Supreme Court in Sengarasingh v. State of Punjab (1983 LIC 1670). In that case, State of Punjab initiated disciplinary action and dismissed about 1100 members of the Police Force on the ground that they had participated in an agitation which was impermissible under the rules governing the discipline in the police force of the Punjab State. A number of Cri. prosecutions were filed against the participants in the agitation. Some of the members of the Police Force who were dismissed from service filed writ petitions in the High Court of Punjab and Haryana, but they were dismissed. After the dismissed, of the writ petition about 1000 former members of the Police Force were reinstated and criminal cases pending against some of them were withdrawn. A committee consisting of members of the superior rank of the Police Force was constituted by the State Govt. to review the cases of the dismissed agitators and reinstatement followed on the recommendations of the Committee it was conceded that of the 1100 dismissed agitators 1000 were reinstated and the rest were left to fend for themselves. Those who were thus weeded out by the Committee filed writ petitions in the High Court. In those circumstances it was held that the order of the High Court dismissing the petition was liable to be quashed. Logically, the petitioners must receive the same benefit which those reinstated received in the absence of any distinguishing feature in their cases. Accordingly, the petitioners would be entitled to reinstatement in service. I have already observed here that the nature of duties performed by the booking clerks and the conductor or driver of the bus are different. On approach by the passengers, the booking clerks on booking windows are required to issue tickets and if non approaches them, they are required to handover the way bill to the driver without making any entry in it. As stated above, in this case, the driver and conductor were in the knowledge that they were carrting 61 passengers in the bus and no entry has been made in the bill and, therefore, they cannot be exonerated of the guilt. A driver who carries 61 passengers on board with an empty way bill may well knows what he is doing. Thus, I am of the view that this authority has no application to the facts of the present case.
10. My attention was also drawn to a decision of this Court in Jaswant Singh V. Pepsu Roadways Transport Corp. Ltd. (1983 (3) SLR 472). That was a case where the driver which On duty consumed liquor. This was his first offence and therefore, his punishment of dismissal from service was held to be severe. Here, it is not a case of that nature. In this case, the driver was carrying the 61 passengers in the bus from Jodhpur to Balotra. Although fair was recovered from the passengers but they were not issued tickets and there was no entry in the way bill. The way bill was recovered from the possession of the driver. Thus, it can safely be presumed that the driver of the bus was in the knowledge that 61 passengers were travelling in the bus without ticket and, therefore, in such cases, he does not deserve any leniency and bench, this authority has no application to the facts and circumstances of this case.
11. My attention was also invited to a decision of their Lordships of the Supreme Court in Gujarat Steel Tubes Ltd. v. Its Mazdoor Sabha where in it has been held that if the termination is set aside then the petitioner is entitled to full back wages and if the enquiry is found to be defective, wages for that period can be claimed. In this case, I am not inclined to set aside the impugned order and, therefore, this authority has no application to the facts of the present case. How ever, if on account of any defective enquiry, the petitioner is entitled to any wages for the interregnum period, he can raise a dispute about it before the competent court.
12. The result of the aforesaid discussion is that the decision in Khemchand’s case (supra) is based on the fa cts of that particular case. The correct law on the point has been laid down by their Lordships of the Supreme Court in State of Haryana’s case (1977 LIC 845), on the basis of which it can be stated that in a domestic enquiry, the strict and sophisticated rules of evidence under the Evidence Act may not apply and all materials which are logically probative for a prudent mind are permissible. The guilt of a conductor or driver can be established on the basis of the evidence of an Inspector of the flying squad or any other checking Inspector, although he has not recorded the statements of the passengers, who have paid the fair. Strictly speaking, such an evidence of the Inspector is heresay evidence, bat since it is an evidence taken in administrative and departmental proceedings, it is a relevant piece of evidence about a charge framed against the delinquent Officer.
13. Taking all these facts and circumstances into consideration. I find no force in this writ petition and it is here by dismissed summarily.
