Rakesh Tiwari, J.-

Heard counsel for the petitioner and perused the records.

2. That petitioner was appointed on the post of Conductor on 25- 12-1979 and confirmed on the said post on 2-2-1980. On 5-9-1988, he was conducting the Bus No. U.G.G.-283 from Lucknow to Banda via Lalganj. When the bus reached Larghawar it was stopped by and some passengers who wanted to board the bus.

3. It is alleged that the petitioner asked them to pay fare of Rs. 2/- per passenger but they insisting on payment of Rs. 1/- only per passenger. In the meantime the Assistant Regional Manager, Banda along with Sri Mohammad Nasir Khan, Traffic Inspector, Banda has arrived by staff car. The petitioner informed them that the bus has been stopped, as nine passengers were not taking tickets and are not ready to pay full fare for their destinated journey. The traffic Inspector himself realized the fare form the passengers with penalty and handed over the amount to petitioner for depositing the same in the department and also submitted report to Regional Manager. Since petitioner has not realized the fare from the passengers and as such the question of any mis-appropriation of money did not arise.

4. A charge-sheet dated 25-10-1998 was issued to the petitioner for carrying nine passenger without ticket on 5-9-1988.

5. The petitioner submitted his reply to the charge-sheet in August 1988, inter alia that he was not carrying the nine passengers without ticket and the bus was stopped by him and not proceeding as they were not taking the tickets. He also stated in reply that the inspecting authorities had came in the meantime and the fare and penalty was realized from the nine passengers and that they were issued the penalty tickets by the traffic Inspector. The petitioner also request for permission to produce two witnesses in support of his defence.

6. It is submitted by the counsel for the petitioner that Sri R.K. Sikroria who was appointed as the Enquiry Officer fixed the enquiry proceedings on 6-4-1989, 27-4-1989, 4-5-1989 and 11-5- 1989. The petitioner attended the enquiry but proceedings could not take place, as the reporting authority Mohd. Nasir Khan did not turn up on the said dates. Thereafter, enquiry officer fixed 2-6-1989 for the enquiry. The petitioner was present but the reporting authority did not turn upto 3 p.m. hence after taking permission of the enquiry officer the petitioner went to take his meal but when he returned back in about half an hour after taking the meal he was inform that Mohd. Nasir Khan had come in the meantime and enquiry has been completed. It is further submitted that the petitioner made a request to the enquiry officer for fixing some other date in the enquiry to enable him to cross- examine Mohd. Nasir Khan and to produce defence witnesses is support of his case, but the enquiry officer turned down the request of the petitioner on the ground that the domestic enquiry was concluded.

7. From the record it appears that five dated were fixed by the enquiry officer for recording the statement of reporting authority however the enquiry proceedings could not take place due to non-appearance of the reporting authority. It also appears from record that the petitioner was present up to 3 p.m. on 2-6- 1987 and the enquiry officer recorded the statement of reporting authority and completed the enquiry proceedings within half an hour when the petitioner had gone to take his meal, after taking permission of the enquiry officer. The enquiry officer submitted the enquiry report on 5-2-1989 to the Regional Manager. It further appears from the accord that the petitioner had given applications to the Regional Manager on 2-6-1989, 7-12-1989, 7-1- 1990 and 25-1-1990 for giving him an opportunity to cross-examine the reporting authority and to produce defence witness in support of his case but no order were passed by Regional Manager on the applications of the petitioner. On the other hand the Regional Manager issued a show cause notice dated 1-12-1989 to the petitioner as to why his services may not be terminated. The petitioner submitted his reply to the show cause notice on 23-12- 1989. It is alleged that even without considering the reply submitted by the petitioner, Regional Manager issued order of termination of the service dated 7-2-1990.

8. Aggrieved the petitioner preferred an appeal under Regulation 69 against the order of termination to the Deputy General Manager on 26-9-1990 who also rejected the appeal of the petitioners vide order dated 24-12-1990 allegedly on irrelevant considerations without considering the objection on appeal of the petitioner and taking into account non-existent charges which were not even in the charge sheet issued to him. The petitioner thereafter preferred claim petitioner before U.P. Public Service Tribunal on 28-1-1991, which also was dismissed by the Tribunal by order and judgement, dated 25-7-1996. The petitioner has filed this petition for quashing the impugned order of termination dated 7-2-1990 appellate order dated 26-9-1990 and order dated 25-7-1996 passed by the respondents.

9. It is contended on behalf of the petitioner that the enquiry held by the respondents was without giving reasonable opportunity to the petitioner to defend himself and is in violation of the principle of natural justice, and as the impugned order of termination and the enquiry report cannot sustained in view of judgment of this Court in cases of Nazmul Hasan Rizvi v. Regional Manager U.P.S.R.T.C. Jhansi Region and another in Civil Misc. Writ Petition No. 15159 of 1992 decided on 31-7-2002.

10. Further contention of the counsel for the petitioner is that (1) The enquiry officer has not conducted the enquiry after complying the principle of natural justice (2) The petitioner has not been afforded reasonable opportunity to defend himself and to cross-examine the reporting authority and (3) The respondents have not conducted the enquiry according to the prescribed procedure as held by this Hon'ble Court in 2001 (2) LBESR 953 (All): 2001 (2) UPLBEC page 1676, Radhey Shyam Pandey v. The Chief Secretary, State of U.P. and others.

11. The enquiry officer had not recorded the statement of reporting authority in presence of the petitioner and he has not been given an opportunity petitioner to produce his own witnesses and evidence and as this was not the correct legal procedure and violative of the rules of the natural justice, as held by this Court in 2000 (1) LBESR 342 (All) 2000(1) UPLBEC 541, Subhash Chandra Sharma v. M.D.U.P. Co-op. Spg. Mills Fed. Ltd., as under:

12. Para (5) In our opinion after the petitioner replied to the charge sheet a date should have been fixed for the enquiry and the petitioner should have been intimated the date, time and place of the enquiry and on that date the oral and documentary evidence against the petitioner should have been led in his presence and he should have been given an opportunity to cross- examine the witnesses against him and also he should have been given an opportunity to produce his own witnesses and evidence. If the petitioner in response to this intimation had failed to appear for the enquiry then an ex parte enquiry should have been held but the petitioner's service should have not been terminated without holding and enquiry. In the present case it appears that no regular enquiry was held at all. All that was done that after receipt of the petitioner's reply to the charge- sheet he was given a show cause notice and thereafter the dismissal order was passed. In our opinion this was not the correct legal procedure and there was violation of the rules of natural justice. Since no date for enquiry was fixed nor any enquiry held in which evidence was led in our opinion the impugned order is clearly violative of natural justice.

13. Para (6) In Meenglas Tea Estate v. Workmen, AIR 1963 SC 1719, the Supreme Court observed “It is an elementary principle that a person who is required to answer a charge must know not only the accusation but also the testimony by which the accusation is supported. He must be given a fair chance to hear the evidence in support of the charge and to put such relevant questions by way to cross-examination as he desires. Then he must be given a chance to rebut the evidence led against him. This is the barest requirement of an enquiry of this character and this requirement must be substantially fulfilled before the result of the enquiry can be accepted.”

14. Para (7) In S.C. Girotra v. United Commercial Bank, 1995 Supp. (3) SCC 212, the Supreme Court set aside a dismissal order which was passed without giving the employee an opportunity of cross-examination. In State of U.P. v. C.S. Sharma, AIR 1968 SC 158, the Supreme Court held that omission to give opportunity to the officer to produce his witnesses and lead evidence in his defence vitiates the proceedings. The Court also held that in the enquiry witnesses have to be examined in support of the allegations, and opportunity has to be given to the delinquent to cross-examine these witnesses and to lead evidence in his defence. In Punjab National Bank v. AIPNBE Federation, AIR 1960 SC 160, the Supreme Court held that in such enquiries evidence must be recorded in the presence of the charge sheet employee and he must be given an opportunity to rebut the said evidence.

15. In P.N. Srivastava v. State of U.P., 1991 UPLBEC 672 Paragraph 10, is as under:

“In the matter of disciplinary enquiries against delinquent employees, the authorities are required to act fairly, as the enquiries are of quasi judicial nature and principles of natural justice have to be kept in mind. The delinquent official is required to be afforded reasonable opportunity to cross- examine the witness and produce the witness in his defence. This is the minimum requirement of principle of natural justice. An enquiry officer is not entitled to collect the material against the delinquent official at his back. In Chandrama Tewari v. Union of India, AIR 1988 SC 117, the Apex Court has ruled that the principle of natural justice require that the delinquent official is furnished with the copies of the documents relied upon against him and he should be given full opportunity to cross examine the witnesses and to produce his own defence. Besides, the enquiry officer cannot collect evidence behind the delinquent official and in case the enquiry officer relies upon such evidence, the enquiry stands vitiated and is ab initio void and liable to be set aside. Admittedly, in this case the petitioner gave names of 19 persons to be examined in the enquiry but none of them was summoned by the enquiry officer on 17-10-1997 when the petitioner was summoned to appear in the enquiry before him. In Shyam Swarup Gangwar v. U.P. Co-operative Institutional Service Board, Lucknow, 1997 ALJ 2158, it is held that if the delinquent official wants to adduce evidence, the disciplinary authority has not alternative but to allow him to adduce evidence. In Mahesh Kumar Pandey v. Upper Pradhan Prabandhak, U.P. S.R.T.C. 1997 ALJ 1501, it has been observed:

“Right of defence which is guaranteed to a Government servant under Article 311 of the Constitution and to other citizens under Articles 14 and 21 as also by the rules of natural justice is a substantive right which has to be full and complete. Mere opportunity to admit or deny a particular factual allegation amounting to a charge of misconduct alone is not the defence which is envisaged by the Constitution and rules of the natural justice.”

16. It has been held that delinquent employee should be given a reasonable opportunity to cross-examine the witnesses and produce the witnesses in the defence. This is the Minimum requirement of the principle of Natural Justice.

17. In ALJ Page 2158, Shyam Swaroop Gangwar v. U.P. Co-operative Institutional Service Board Lucknow, it has been held that if the delinquent official want to adduce evidence the disciplinary authority has not alternative, but to allow him to adduce evidence but in the instant case the petitioner was denied opportunity to adduce evidence. The enquiry officer has collected the evidence behind the petitioner on 2-6-1989, which has been relied upon by the enquiry officer and as such enquiry stands vitiated and is void ab initio which is liable to be set aside as held in Chandrama Jewari v. Union of India, ALR 1988 SC Page 117.

18. That enquiry officer has adopted double standard during the enquiry proceedings since enquiry has been adjourned on 6-4-1989, 22-4-1989, 4-5-1989 and 11-5-1989 due to absence of reporting authority, whereas petitioner has not been an opportunity to cross-examination from the reporting authority and to produce defence witnesses in his case, which is discriminatory and violative of Articles 14 and 16 of the Constitution of India,1950.

19. That the power to terminate the service of an employee in accordance with just, fair and reasonable procedure is an essential inbuilt of natural justices as held in JT 1993 (3) SC 617 paragraphs 13 and 14, D.K Yadav v. J.M.A Industries Ltd..

20. That any action taken by employer against employee must be fair, just and reasonable which are components of fair treatment as held in JT 1990(3) SC 725, DTC v. DTC Mazdoor Congress.

21. The Enquiry has been completed by the enquiry officer in arbitrary, illegal, mala fide and mechanical manner in complete disregard to the principle of natural justice as such it is no enquiry in the eye of law.

22. The Regional Manager has terminated the service of the petitioner on 7-2-1990 on the basis enquiry report dated 5-7- 1989, has also taken into accounts, seven other cases in respect of which even the charge sheet has not been issued to the petitioner. The enquiry is vitiated for the reasons given in the body of judgment above and the termination of service of the petitioner is on extraneous considerations the Tribunal has failed to appreciate that the ratio of the judicial decision of Hon'ble Supreme Court as well as this Hon'ble Court, that if the principles of natural justice have been violated in enquiry proceedings and reasonable opportunity has not been given to delinquent employee to prove his innocence, then such enquiry is not enquiry in the eye of law. It appears from the records that the authorities for some reason wanted to get rid of the petitioner and closed the enquiry within half an hour when the petitioner was gone to take launch at 3 p.m. after taking permission of the enquiry officer. The most vital point in favour of the petitioner was missed or deliberately overlooked was that the petitioner had refused to carry the passengers without proper tickets and the bus had not commenced journey, when the checking staff inspected the bus. The evidence of passenger was also not taken by the checking staff from which petitioner workman might have been supported. His services were terminated only on the basis of report of the checking Inspector; on basis of ex- parte evidence denying opportunity to the petitioner as such the order of termination cannot be suspended.

23. That upon the facts, circumstances and legal decisions mentioned herein above it is expedient in the interest of Justice that impugned termination order dated 7-2-1990 appellate order dated 26-9-1990 and order dated 25-7-1996 passed by the Tribunal respondent No. 1 may be quashed and further petitioner may be reinstated in service with continuity and consequential benefit.

24. The Court below failed to take into consideration that the bus was stationed and there was altercation between the petitioner and the passengers, as they were not prepared to pay the full fare and purchase the tickets for their destination. It is not the case of authorities that they had stopped the bus and checked thereafter and found teakettless passengers. According to the rules the conductor has to move the bus only after realizing the fare from the passenger. This piece of evidence in favour of the petitioner appears to have deliberately been ignored by the enquiry officer. The employers witness and Sri Nasir Khan TI (II) did not stated in the evidence that he has realized penalty fare from the passenger and checking the bus after stopping the bus. This shows that the petitioner was not ready to move the bus without payment of full fare by the passengers. From the record it appears that the petitioner was present on all the date of the enquiry and when he went to take meal for half an hour with the permission of the enquiry officer. It appears that Sri Nasir Khan who was not present during on earlier dates and the whole of the day was called on just available opportunities by the employees to give evidence which was taken behind the back of the petitioner and the petitioner was not granted opportunity to cross-examine the Sri Nasir Khan. The petitioner was denied the reasonable opportunity of hearing and defence. This act of the authorities is in totally violation of all the principle of natural justice.

25. The enquiry officer as well as the disciplinary authority and the U.P. Public Service Tribunal have gone off on a tangent and have only relied upon the fact of checking the report by the checking staff wherever it was alleged that nine passengers had been joined a travelling tickets. It appears that the enquiry officer and the competent authority deliberately did not considered the plea of the petitioner that the bus was not moving and the petitioner was insisting upon the passenger to pay full fare and that he also told this fact to the Ticket Inspector, when they arrived at the scene. This important factor has been lost the site of resulting in miscarriage of justice to the petitioner. It is not only the duty of the Court to do justice but also to prevent unjustice being done. In the instant case the petitioner lost his employment due to the obstinate refusal by the authorities for providing opportunity of hearing to the petitioner and permitting him to give the defence or cross- examine the management witnesses.

26. Even the tribunal has not considers the facts. It has given the judgment after cursorily narrating the facts of the case.

27. For the reasons stated above, the writ petition is allowed. The impugned order dated 7-2-1990; 26-9-1990 and 25-7-96 (Annexure Nos. 10, 12 and 14) are quashed. The authorities are directed to reinstate the petitioner in service with 50 percent of back wages as revised from time to time with all allowances and benefits alongwith 12 percent interest within 2 months from the production of certified copy of this order.

Petition allowed.