A.P. Singh, J. - (1.) The petitioner was a conductor in the U.P., State Road Transport Corporation and at the relevant time he was posted in Bareilly Region. While conducting Bus No. UPO 4715 between Budaun-Moradabad route on 15.5.1984 at 10.15 A.M. it is alleged that the petitioner's bus was checked by the Traffic Superintendent Sri R.P. Singh, who found 43 passengers were being carried without tickets in the bus by the petitioner after collecting fare from them, on the basis whereof a report was submitted by the said Traffic Superintendent to the Assistant Regional Manager who served the charge sheet on the petitioner by order dated 15.6.1984 in which four charges were levelled against petitioner. Other charges, apart from the charge of not issuing tickets to 43 passengers after collecting fare from them, were that the petitioner on being asked for stopping the bus did not stop the bus and directed the driver to speed up the bus. He also instigated the passengers for creating hurdle in the checking of the bus by the Traffic Superintendent and also threw away the loose tickets so as to show that the tickets had been issued to the passengers. Petitioner submitted his explanation in which he denied the charges other than the charge of not issuing tickets to 43 passengers for which he gave a number of explanations. In his explanation, he also stated that he did not see the Jeep of the Traffic Superintendent nor he could notice that the Traffic Superintendent wanted to check the bus and had signed for stopping the bus. He further denied that he had ever asked the driver to speed up the bus. He also denied having instigated the passengers to create hurdle in the checking of the Bus by the Traffic Superintendent,' he further stated that he had also not thrown away the bundle of tickets. It is noteworthy that in his explanation (Annexure 3 to the petition), the petitioner had specifically stated that the Traffic Superintendent's report was based on the statement of drivers of the jeep, namely Mukhtar Ahmad and the Kalian Husain and the driver of the bus Tufail Ahmad, and helper of the bus whose statements had been obtained by the Traffic Superintendent by threatening and forcing them. He, therefore, requested the Assistant Regional Manager to make the enquiry himself from them and to produce them for cross- examination by the petitioner. In the enquiry only Traffic Superintendent was produced and these four persons, namely Mukhtar Ahmad, Kalian Husain, Tufail Ahmad and helper of the bus were not produced in spite of specific request made in this respect by the petitioner. The Enquiry Officer found all the charges proved against the petitioner. Accordingly, he passed an order dated 12.2.1986 removing the petitioner from the service. The petitioner filed an appeal against that order before the Regional Manager, Bareilly and the said appeal was dismissed by the Regional Manager by the order dated 4.8.1986 (Annexure-8 to the petition). A perusal of the appellate order (Annexure-8 to the petition) will show that the appellate authority namely, the Regional Manager, did not at all apply his mind, specially to the request of the petitioner made in the explanation for cross-examination of the four persons which was also repeated in the memo of appeal (Annexure-7 to the petition). In spite of petitioner's request for production for cross-examination of the four persons namely; Mukhtar Ahmad, Kalian Husain, Tufail Ahmad and helper of the Bus, on whose statements the report of the Traffic Superintendent was based the Regional Manager dismissed the appeal of the petitioner. It is noteworthy that in the memo of appeal (Annexure 7 to the petition), the petitioner had stated in Paras 18 and 20 that the Assistant Regional Manager did not summon the four persons for cross-examination by the petitioner to confirm that their statements taken by the Traffic Superintendent were not voluntary.
(2.) The learned counsel for the petitioner has urged that the orders passed by the appointing authority and the appellate authority are vitiated due to non-production of the four persons for cross-examinations in the enquiry. According to him, the order of removal as well as the appellate order are both vitiated in as much as the said orders are based on the assumption that all the charges levelled against the petitioner have been proved whereas all other charges except the charge of carrying 43 passengers without tickets are not proved due to non-production of the four persons for cross examination by the petitioner. According to learned counsel, this infirmity is sufficient to render both the orders void ab initio as such the order of removal and the appellate order deserve to be quashed. On the other hand Sri S.K. Sharma, learned counsel appearing for the respondents, has urged that since the order of removal is sustainable on the charge of carrying 43 passengers without tickets, as such mere non-production of four persons for cross-examination by the petitioner so as to prove other charges, then the Charge No. 1, does not at all vitiate the orders under challenge.
(3.) I do not agree with the contention of the learned counsel for the respondent specially in view of the fact that the other of removal as well as the appellate order have both proceeded on the assumption that all the charges levelled against the petitioner are proved. It is another thing that if there was only one charge of carrying passengers without tickets, this Court would not have interfered with the order of removal as it is for the authorities to decide as to whether the punishment already awarded to the petitioner is sufficient even on one charge which no doubt is a serious charge but as urged by the learned counsel for the petitioner, the order of removal as well as the appellate order since are based on the alleged proof of all the charges as such it cannot be said that the position would not have changed in respect of the punishment awarded to the petitioner if the appointing authority and appellant authorities were conscious of the fact that no other charge, except the charge of carrying 43 passengers without tickets, was made out against the petitioner. It is not at all necessary to repeat the legal position in this respect that if a charge is levelled on the basis of the statements of certain persons and cross-examination of those persons is claimed by the delinquent, it is the duty of the enquiry officer to produce those persons for cross-examination by the delinquent. Admittedly, this has not been done and the enquiry thus is vitiated in respect of the charges except the charge of carrying 43 passengers without tickets. The punishing authority and the appellate authority, therefore, wrongly proceeded on the assumption that all the charges levelled against the petitioner were made out, whereas only one charge was made out against the petitioner which was in respect of carrying 43 passengers without issuing tickets.;