Sangeeta Chandra ORDER
Sangeeta Chandra, J.
1. This writ petition has been filed by the petitioner challenging the award dated 18.4.2015 and its notification dated 22.8.2015 passed by the respondent Nos. 2 & 3 respectively, and for grant of appropriate relief as a consequence of quashing of the same.
2. It is the case of the petitioners that on the basis of a report made by Senior Foreman dated 3.11.2000 against the respondent No. 1, of misbehavior and a report of the Senior Station In-charge of non plying of bus by the respondent No. 1, who was the driver posted at Foundry Nagar Depot of UPSRTC, a charge sheet was issued to the respondent No. 1, containing two charges. The first charge related to non plying of bus on time and causing financial loss to the Corporation and the second charge related to misbehaviour with the Senior Foreman. It has been stated that in spite of service of charge sheet dated 12.12.2000 and notices issued thereafter by the Inquiry Officer fixing dates on 24.9.2002 and 3.10.2002 and 17.10.2002 and publication of such notices in the newspaper, the respondent No. 1 did not reply to the charge sheet, nor appeared in the hearing fixed by the Inquiry Officer. As a consequence to his non appearance, the Inquiry Officer examined Sri Radhey Shyam Verma, Sri K.K. Sharma and Sri S.D. Sinha the Officers who had made the report against the petitioner and the Officer, who was witness to the misbehaviour of the respondent No. 1 respectively and Sri Shiv Balak - the Bus Station Incharge to prove from the record that the respondent No. 1 had not driven the bus for required number of kilometres, but had drawn salary for the full month, thus causing great financial loss to the Corporation. The Inquiry Officer submitted his report finding the respondent No. 1 guilty of all charges levelled against him on 26.10.2002. A show cause notice was issued to the respondent No. 1 on 28.10.2002 which was sent through registered post and thereafter was also published in the newspaper on 28.11.2002. The respondent No. 1 did not choose to file a reply.
3. The Appointing Authority taking into account the Inquiry report and the failure of the respondent No. 1 to file a reply to the show cause notice, passed the punishment order dated 5.5.2003 dismissing him from service. The dismissal order dated 5.5.2003 was handed over to the respondent No. 1 on 8.5.2003.
4. The respondent No. 1 thereafter raised an industrial dispute which was referred to the respondent No. 2 by the respondent No. 3 and was registered as Reference Case No. 386 of 2003.
5. The reference was contested by the Corporation by filing a reply as well as documentary evidence stating that although the respondent No. 1 was appointed on 18.2.1973 as driver in the Corporation, he did not perform his duties faithfully on one or the other pretext and deliberately caused financial loss to the Corporation. The employee was a habitual offender and raised frivolous objections regarding mechanical defect in the bus entrusted to him to be driven and willfully did not drive the bus. The respondent No. 1 was also guilty of using filthy language and of misbehavior with the officers. The respondent No. 1 deliberately did not accept the charge sheet and notice issued by the Inquiry Officer during enquiry and did not participate in the enquiry, but appeared after the dismissal order was passed and received the same and thereafter raised an industrial dispute on the ground that his services were terminated without holding a fair and proper enquiry. The copy of the written statement filed by the Corporation and a list of various documentary evidences filed before the Labour Court have been filed as Annexures to the writ petition.
6. It has been contended that the employer's witness -Shiv Balak, Assistant Superintendent was examined by the Labour court, the Labour court without any basis allowed the claim petition in favour of the respondent No. 1 and set aside the dismissal order and directed the respondent No. 1 to be treated in continuous service till the date of his superannuation in May 2012 and be given 35 percent of the back wages along with allowances w.e.f. the date of order of termination.
7. It is the case of the petitioners that the labour court has misinterpreted and misconstrued the oral and documentary evidence on record and illegally allowed the claim set up by the respondent No. 1.
8. Moreover, it has been argued by Sri U.S. Singh Visen that as per the service book of the respondent No. 1 his date of birth is 10.7.1995 and he reached the age of superannuation of 31.7.2003. It had been illegally observed by the respondent No. 2 that the workman reached the age of superannuation in May 2012. For reaching this conclusion, the Labour court had relied upon photocopies of the certain documents, which were never proved from the original records.
9. Sri Nitya Prakash Tiwari, who appears for the respondent No. 1 has on the basis of counter affidavit filed by him in the aforesaid writ petition argued that a false report of misconduct dated 3.11.2000 was filed by Sri S.C. Sinha Senior Foreman. The fact of the matter is that the Senior Foreman had attacked the respondent No. 1. As it is the duty of the Senior Foreman to give a certificate that the bus has been tested and has been found all right before such bus is plied on the route given in the duty chart of the driver concerned and the respondent No. 1 had complained about his failure to give such certificate to the senior Officers of the Corporation, the Senior Foreman was annoyed with the respondent No. 1. The respondent No. 1 had raised his voice on the irregularities in the Foundry Nagar Depot earlier also and the officers were annoyed with the respondent No. 1. A dismissal order was passed against him earlier also, but he was reinstated through orders of this Court. He thereafter filed an application under 33(C-2) which was adjudicated upon in Reference Case No. 386 of 2003 and this Court found that salary of the respondent No. 1 was deliberately stopped by the Corporation. Only due to judgment and order dated 27.11.2012 passed by this Court in Writ Petition No. 30195 of 2007, the respondent No. 1 was paid his wages for the various periods of alleged absence shown by the Corporation.
10. It has been argued by Sri Nitya Prakash Tiwari that neither charge sheet was served upon the petitioner nor the notices fixing dates for hearing. The show cause notice was also not served along with a copy of the enquiry report, and the dismissal order was passed illegally. The respondent No. 2 had found, while determining the preliminary issue with regard to conduct of fair enquiry, that the Corporation had not followed the principles of natural justice, and therefore in its order dated 18.3.2012 rejected the domestic enquiry on the ground of it not being conducted fairly and directed production of evidence before the Labour Court itself to substantiate the charges levelled against the respondent No. 1. The labour court after examining documentary evidence as well as oral statement of Shiv Balak, Traffic Superintendent has rightly come to the conclusion that the Corporation could not prove the charges levelled against the respondent No. 1, and therefore set aside the dismissal order, and directed for giving of 35% of the wages from the date of dismissal till the date of reinstatement along with allowances, gratuity, provident fund and other retiral dues in its award dated 18.4.2015.
11. Having heard the rival submission, this Court has perused the award impugned in this writ petition and finds that the Labour court has correctly appreciated the evidence and the oral statement of the employer's witness, the Traffic Superintendent, and found that on the basis of two reports, the charge sheet was issued to the petitioner on 12.12.2000. The Inquiry was conducted by Inquiry Officer almost two years after the charge sheet was formulated and in between 5.9.2002 to 17.10.2002 all evidence who was recorded and enquiry report submitted on 28.10.2002. A show cause notice was issued thereafter giving insufficient time to the delinquent employee to submit his reply and final orders of dismissal were passed in a great hurry. Even before the respondent No. 2, the employer's witness, the Traffic Superintendent had made his oral statement on 27.1.2017 and had admitted during cross examination that the respondent No. 1 in the year 2000 itself had written to the Corporation several times that the concerned official was not giving certificate of the bus being checked and being found all right before handing it out for plying to the respondent No. 1. The respondent No. 1 had submitted that on 9.6.2000 bus number UP-80-9279 driven by the respondent No. 1 had met with an accident only because no certificate was given by the Senior Foreman after checking the bus, and the steering of the bus had suddenly stopped functioning. The respondent No. 1 had sustained serious injuries in both his legs and was admitted to district hospital, Agra. It had also been admitted by the Corporation's witness that on the repeated representations of the respondent No. 1, the Assistant Regional Manager had issued a letter dated 28.9.2000 directing the Senior Foreman and the Senior Bus Station Incharge, Foundry Nagar Depot to issue certificates after checking the buses before sending such buses on their various routes.
12. It was also admitted by the employer's witness that the respondent No. 1 was present on duty each day at Foundry Nagar Depot, but the Senior Foreman did not make available any bus to him, and in between January 2000 to October 2000, the respondent No. 1 was utilised as spare driver for parking duty and as breakdown attendant etc. As a result of such non assignment of duty for long routes to the respondent No. 1, he failed to login the required kilometres in between January 2000 to October 2000.
13. It was also admitted by the employer's witness before the Labour court that in between January 2000 to October 2000, the bus which was given to the respondent No. 1 for driving had not been given the test certificate required. There was nothing on record to show from the report submitted by Shiv Balak that plying of bus was below average each month by the respondent No. 1 only because of his fault. There was no record in the report of the dates when the respondent No. 1 was assigned duty and he refused to take the bus on the route assigned to him, and due to such non plying of bus financial loss was incurred by the Corporation.
14. With regard to alleged misbehaviour of respondent No. 1 with the Senior Foreman on 3.11.2000, on the basis of which charge No. 2 was framed, the employer's witness had deposed that the said incident did not occur in his presence and having not witnessed the same, he could not make any submissions with regard to said accident.
15. The respondent No. 2 has recorded that from the documentary evidence as well as oral statement of the respondent No. 1 and the employer's witness he had not found the respondent No. 1 guilty of any of the charges levelled against him. He has therefore set aside the punishment order dated 5.12.2002.
16. It is settled law that this Court should not interfere in the findings of fact recorded by the Labour court on examination of oral and documentary evidence, unless the same are so perverse as to be completely against the materials on record before it. This Court does not find it fit and proper to interfere in the finding recorded by the Tribunal that the respondent No. 1 was dismissed unfairly by the Corporation.
17. With regard to relief admissible to the respondent No. 1 on setting aside of the dismissal order, it has been observed by the respondent No. 2 that since the respondent No. 1 has attained the age of superannuation in 2012 (on the basis of medical certificate regarding age being submitted by him as Exhibit 32B-2), he may not be reinstated but he may be given 35% of the back wages along with other allowances from the date of dismissal till the date of its actual payment. All other retiral benefits like gratuity, provident fund etc should also be paid to the respondent No. 1 treating him to be in continuous service upto the date of superannuation in May 2012.
18. It is with regard to this relief alone that this Court finds it appropriate to interfere from the service book of the respondent No. 1 filed as Annexure to the writ petition by the Corporation, it is evident that his date of birth has been entered in his own handwriting as 10.7.1945. The respondent No. 1 would have been sufficiently educated to be engaged as a regular driver in 1973 as no illiterate person can be engaged as a bus driver. The medical certificate submitted by the respondent No. 1 dated 8.5.2000, alleged to have been issued to him by the Chief Medical Officer certifying his age, states clearly that the respondent No. 1 had appeared before the Chief Medical Officer for certification of his age and had not submitted any document as proof in support of his statement that he was 46 years of age. Only on the basis of a cursory examination of his appearance, the Chief Medical Officer had certified the respondent No. 1 to be 45 years of age. There is no mention of any X-ray report in the said certificate dated 8.5.2000. Such a medical certificate cannot be relied upon in view of the entry made in the service book at the time of entry into service in view of U.P. Government Servants Determination of Age Rules, 1975.
19. As such the respondent No. 1 shall be treated to have retired on 31.7.2003 treating his date of birth as recorded in his service book to be 10.7.1945. The award impugned is modified to the extent of mention of date of superannuation of the respondent No. 1 and instead of May 2012, the superannuation of the respondent No. 1 should be treated as in July 2003.
20. All consequential benefits as given by the Labour court in the Award impugned shall be calculated on the basis thereof by the petitioner's Corporation, and the same be released to the respondent No. 1 within a period of three months.
21. The writ petition is partly allowed to this extent.
© Manupatra Information Solutions Pvt. Ltd.