JUDGMENT
Rakesh Tiwari, J.
1. Though on record there are three applications dated 10.10.1995, 28.2.1996 and 21 8.1996 filed by Sri V.K. Barman, Senior Counsel for the contesting respondent, for listing the stay vacating application alleged to have been filed by him on 3.5.1995 along with counter-affidavit, but no such stay vacating application is on the record along with counter-affidavit. The office has also reported vide its reports dated-19.7.1996 and 28.4.2003 that no stay vacating application along with counter-affidavit has been filed by the respondent. On 9.9.2003 I had asked Sri Samir Sharma, Counsel for the petitioner, to inform Sri Barman to be present when the case is taken up after lunch, but no one was present for the contesting respondent. Sri Samir Sharma states that he had informed Sri Barman in writing vide his letter dated 9.9.2003 that the case would be taken up after lunch. The said letter of Sri Samir Sharma dated 9.9.2003 is placed on the record.
2. Heard Sri Samir Sharma, learned Counsel for the petitioner, and the Standing Counsel.
3. The brief facts of the case arc that the UP. State Road Transport Corporation was constituted with effect from 1.6.1972 under Section 3 of the Road Transport Corporation Act, 1950 and it succeeded in toto the assets and liabilities of the erstwhile U.P. Government Roadways. Since the Corporation did not frame service regulations under Section 45(2)(c) of the Road Transport Corporation Act, 1950 till 19.6.1981, the old Rules and regulations applicable to the employees of the Roadways Organization continued to apply.
4. Respondent No. 3 was initially appointed as a Conductor on temporary basis with effect from 13.5.1976 and was posted at Jhansi. While he was conducting Bus No. UTP 3849 on 24.2.1977 on Jhansi Unnao route, the bus was checked by the checking authorities (Sri Sardool Singh, Traffic Superintendent, Chunniganj, Kanpur along with Sri R.S. Negi, Assistant Regional Manager (CBS), Kanpur and Sri R.K. Duggal, Assistant Traffic Inspector. Respondent No. 3 was found to be carrying 11 passengers without tickets from Moth out of a total of 62 passengers.
5. Respondent No. 3 was placed under suspension by an order dated 25.2.1997 and a charge-sheet dated 25.2.1977 was duly served on him. He submitted his reply to the charge-sheet on 28.4.1977 and as the same was not found to be satisfactory, domestic inquiry proceeded against him. He was given an opportunity to defend his case besides affording him an opportunity of personal hearing. The Inquiry Officer having found the charges proved against Respondent No. 3, a show cause notice dated 19.5.1977 along with inquiry report was served on him. A reply was submitted by the delinquent workman to the appointing authority who after appreciation of the evidence on record found that the charges stood proved against him. Thereafter by an order dated 29.6.1977 the delinquent workman was removed from service.
6. An industrial dispute was raised by the delinquent workman (Respondent No. 3) regarding his removal from service. On conciliation proceedings having failed, the State Government referred the following matter of dispute to the Labour Court, U.P. (II), Kanpur, where it was registered as Adjudication Case No. 132/80 :-
^^D;k lsok;kstdksa }kjk vius Jfed
feJh yky xqIrk ¼iq= Jh {ks=kiky xqIrk½ ifjpkyd dks fnukad 29-6-1977 ls dk;Z ls
i`Fkd@oafpr fd;k tkuk mfpr rFkk@vFkok voS/kkfud gS \ ;fn ugha] rks lEcfU/kr Jfed D;k ykHk@vuqrks”k
¼fjyhQ½ ikus dk vf/kdkjh gS] rFkk vU; fdl fooj.k lfgr \**
7. The case of the workman before the Labour was that since the same authority held the domestic inquiry as well as passed the order of punishment it was bad and also that he was not afforded full opportunity in the domestic inquiry proceedings. The case of the employer before the Labour Court was that since the charges against the delinquent workman (Respondent No. 3) stood proved in the inquiry proceedings, he was removed from service and for this reason he was not entitled to any relief. On the basis of pleadings of the parties the Labour Court framed the following two preliminary issues:-
(i) Whether the reference was bad as different matters of dispute (Prathak/Vanchit) had been referred?
(ii) Whether the inquiry was fair and proper?
8. The Labour Court by an interim award dated 24.4.1982 held that the reference was valid and the domestic inquiry was not fair and proper as the Inquiry Officer and punishing authority was the same.
9. The Counsel for the petitioner contends that the Corporation has framed regulations laying down terms and conditions of service for its employees under Section 45(2)(c) of the Road Transport Corporation Act, 1950 known as the U.P. State Road Transport Corporation (Employees other than Officers) Services Regulations, 1981 on 19.6.1981 and Regulation 64 clearly provides that the appointing authority can himself inquire into the charges.
10. The Labour Court by its final award dated 27.7.1983 set aside the order of removal of Respondent No. 3 and directed his reinstatement with back wages.
11. The impugned award has been assailed on the ground that the appointing authority can issue charge-sheet and conduct inquiry himself and the Labour Court has committed an error in law on the face of the record in holding that the inquiry was no fair and proper. The impugned order has been further assailed on the ground that it was clear from the material placed before the Labour Court and from the statements of the witnesses that the charges of misconduct stood proved against Respondent No. 3 and as such the Labour Court has erred in holding to the contrary. The Labour Court, it is sated, erred in ignoring the statements off Sri Sardool Singh, Traffic Superintendent and Sri R. K. Duggal, Assistant Traffic Inspector recorded in domestic inquiry and filed before the Labour Court and in holding that the checking and examining authorities had not been examined. He submits that in fact from the statement of Sri Sardool Singh, Traffic Superintendent, it is apparent that Respondent No. 3 had realized the fare from all the 11 passenger but had not issued tickets. The finding recorded by the Labour Court that there was no material on record to show that Respondent No, 3 had pocketed the amount is perverse.
12. The Counsel for the petitioner lastly contends that in any case the Corporation is a commercial undertaking and it cannot afford to have dishonest employee in its service who caused financial loss to the Corporation for his personal gains and the Labour Court ought not to have reinstated Respondent No. 3 in service but may have allowed some compensation if at all. The finding that the Disciplinary Authority cannot hold enquiry himself is absolutely wrong. There is no such law and it cannot be sustained.
13. From a perusal of the statements of Sri R.K. Duggal, Assistant Traffic Inspector and Sri Sardool Singh, Traffic Superintendent, dated 17.5.1977 it is evident that the respondent-workman had cross-examined them. The relevant part of their statements and cross-examinations are as under :-
Statement of Sri R.K. Duggal, ATI on 17.5.77 before ARM, Jhansi:
eSa fnukad 24-2-77 dks Jheku
lknqZy flag] Vh-,l- ds lkFk psafdx ij Fkk A rks lkbZ ds dqvkW ds ikj le; 12-15
cts cl ua- ;wVhbZ 3849 dks jksdokdj psd fd;k A psd djus ij 11 ;k=h fouk fVdV
;k=k djrs gq, ik, x, A ftldk laf{kIr fooj.k ekxZ i= ij vafdr dj fn;k x;k vkSj ;kf=;ksa
ds fVdV cukdj budk psd ekxZ i= ij Hkh vafdr dj nh xbZ A ckn esa ?kVuk fjiksVZ
Jheku~ ;krk;kr v/kh{kd egksn; }kjk dh xbZ A
gk- vifBr
Cross-examination of Sri Mishri Lal Gupta, Cond. from Sri Dugal A.T.I.:
iz’u % D;k lkgc esjh xkM+h [kM+h Fkh A
mRrj % xkM+h :dokdj psd dh xbZ Fkh A
iz’u % D;k lkgc vius ;kf=;ksa dk c;ku fy;k fd
ugha A
mRrj % ;kf=;ksa us c;ku nsus ls bUdkj dj fn;k A
blds vfrfjDr eq>s vkSj dqN ugha iwNuk gS A
g- vkj- dqekj-
g- feJh yky xqIrk]
17-5-77
ifjpkyd]
,VhvkbZ
17-5-77
Statement of Sri Sardool Singh, T.S. on
17.5.77 before ARM, Jhansi :
iaftdk ogn ,oa eq>ls gLrk{kfjr esjh fjiksVZ
gh esjk c;ku gS A
g- vLi”V
gk- Vh-,l- ¼ds-½
feJh yky xqIrk
17-5-77
Cross-examination of Sri Mishri Lal
Gupta, Cond. from Sri Sardool Singh,
T.S. :
iz’u % Jheku~ th D;k esjh xkM+h [kM+h Fkh A
mRrj % ugha :dokbZ xbZ Fkh A
iz’u % D;k lkkgc eSaus ;kf=;ksa ls iSls igys ys
fy, Fksa A
mRrj % gk¡] ;kf=;kas ls vkius iSls igys ys fy,
Fks A
iz’u % D;k xkM+h lkbZ ds dqvkW ij gh psd gqbZ
Fkh A
mRrj % gk¡ A
iz’u % D;k ;g lgh ugha gS fd xkM+h cejkSyh eksM+
ij psd gqbZ Fkh A
mRrj % xkM+h lkbZ ds dqvkW ij psd gqbZ Fkh A
gk-
17-5-77
gk- feJh yky xqIrk
Vh-,l-ds-
17-5-77
In so far as the workman himself is concerned, he has stated in his statement that he neither wants to produce any witness in support of his case nor to cross-examine Sri R.S. Negi, Assistant Regional Manager (CBS), Kanpur and his only defence is his reply to the charge-sheet. His statement is as under :
Statement of Shri Mishri Lal Gupta, Conductor on 17.5.77 before ARM, Jhansi:
eq>s vkjksi&i= feyk Fkk]
eSaus mldk mRrj fn;k gS] eaSaus tks dqN vkjksi&i= ds mRrj esa fn;k gS] ogh
esjk c;ku gS A blds vfrfjDr eq>s mRrj esa dqN ugha dguk gS A eq>s viuh
lQkbZ esa dksbZ xokg vkfn ugha izLrqr djuk gS A eq>s vius cpko esa Jh
vkj-,l-usxh-] l-{ks-iz- ls dqN Hkh ugha iwNuk gS A eS muls O;Drxr lk{kkRdkj djds
rdZ&fordZ ugha djuk pkgrk gWw A
g- vLi”V]
feJh yky xqIrk
17-5-77-
14. The findings recorded by the Labour Court arc perverse as he has not applied mind to the evidence. They cannot be sustained.
15. In so far as the question whether the domestic inquiry was fair and proper is concerned, the Labour Court has held that the Assistant Regional Manager, U.P. State Road Transport Corporation, Jhansi conducted the preliminary inquiry and had issued a charge-sheet, got him suspended and conducted the inquiry himself. He also issued show cause notice after the inquiry and also passed the order of removal from service. In my opinion, this ground for holding enquiry as unfair or improper is illegal. No defect in enquiry proceeding has been pointed out. The finding of Labour Court that the enquiry was not fair and proper is set aside.
16. After the domestic inquiry was held not fair and proper, the parties led evidence before the Labour Court. The Labour Court has held that there is no evidence on record that the 11 passengers had boarded the bus from Moth without tickets and did not have tickets at the time of checking and disbelieved the case of the employer. The Labour Court further held that the respondent-workman made the tickets of the passengers who had earlier boarded the bus and therefore, there was no intention on the part of respondent workman not to have made tickets of the 11 passengers. His case that these 11 persons had boarded the bus after it had stopped was believed.
17. This finding of the Labour Court appears to be perverse as is apparent from the cross-examination of Sri Mishri Lal quoted above that the bus was stopped by the checking authorities and thereafter the bus was checked. The finding of the Labour Court that Respondent No. 3 had not been cross-examined is also incorrect since the workman had stated that he neither wants to produce any witness in support of his case nor he cross-examined Sri R.S. Negi, Assistant Regional Manager (CBS), Kanpur. Hence the Labour Court should have looked into the punishment as provided under Section 11A of the Industrial Disputes Act, 1947 which was not done in the instant case.
18. This Court cannot re-appreciate evidence under Article 226 of the Constitution.
19. In the circumstances the case is remanded back to the Labour Court for decision afresh in the light of the observations made in this judgment. The Labour Court will give award within three months from the date of production of certified copy of this judgment.
20. For the aforesaid reasons the writ petition is allowed and the case is remanded back. No order as to costs.