Jagdish Rai vs State Of Punjab And Others

...Petitioner

Versus

State of Punjab and others

...Respondents

CORAM: HON'BLE MR. JUSTICE M.M. KUMAR

Present: Mr. Harinder Sharma, Advocate, for the petitioner.

Ms. Sudeepti Sharma, DAG, Punjab, for the respondents.

1. Whether Reporters of local papers may be Yes allowed to see the judgment? 2. To be referred to the Reporters or not? Yes 3. Whether the judgment should be reported in Yes the Digest?

M.M. KUMAR, J.

The instant petition filed by a driver of the respondent-

State under Article 226 of the Constitution prays for quashing order

dated 26.11.1998, passed by respondent No. 3 in pursuance of a letter

dated 7.9.1998, sent by respondent No. 2 whereby an amount of Rs.

83,200/- has been ordered to be deducted from the salary of the

petitioner. The petitioner has been found negligent in driving the

State department vehicle and the Motor Accident Claims Tribunal, C.W.P. No. 6850 of 2001 2

Ferozepur (for brevity, 'the Tribunal') had apportioned the

compensation, which is sought to be recovered.

2. Brief facts of the case are that the petitioner has been

working as a driver with the Assistant Excise and Taxation

Commissioner, Muktsar-respondent No. 4. On 4.10.1991, when he

was coming from Fazilka to Ferozepur alongwith his officers in a

Jeep, bearing registration No. PAR-782, belonging to the Punjab

Government, it met with an accident which resulted into death of

Constable Ranjit Singh. An FIR No. 423, dated 4.10.1991, under

Section 304, was registered at Police Station Sadar, Ferozepur, which

was tried by learned Judicial Magistrate, Ferozepur and the petitioner

was acquitted of the criminal trial on 27.2.1999. However, in the

claim petition under the provisions of the Motor Vehicles Act, 1988

(for brevity, 'the Act'), filed by the legal heirs of Constable Ranjit

Singh (deceased), the Tribunal awarded a sum of Rs. 2,49,600/- to

them, which was payable by the petitioner alongwith respondent Nos.

1 to 4 jointly and severally.

3. The petitioner being driver was one of the respondent in

the claim petition. The operative part of the award dated 22.2.1994

(Mark 'A') reads thus:

"14. So in view of the above discussion, a sum of Rs.

2,49,600/- is awarded as compensation to the claimants

in equal shares and against respondents No. 1 to 3 jointly

and severally. The amount of Rs. 25000/- already

allowed on account of no fault liability includes in the C.W.P. No. 6850 of 2001 3

amount of Rs. 2,49,600/-. In view of the authority Sahi

Ram and another Vs. State of Haryana through Collector,

District Mohindergarh and others 1991 Accident Claims

Journal page (sic) interest at the rate of 12% P.A. on the

amount of compensation of Rs. 2,49,600/- is also granted

from the date of filing the claim application till the

amount is fully paid. Since the claimants Surjit Kaur and

Harnek Singh and (sic), as per the directions of the

Hon'ble Supreme Court of India in C.A. of 1993 (arising

out S.L.P. (Civil) No. 9583) titled as "The General

Manager, Kerala State Road Transport Corporation,

Trivandrum Vs. Mrs. Susamma Thomas and others

decided on 6-1-1993 the awarded amount shall be

deposited in some Nationalised Bank in long term fixed

deposited Scheme. Counsel fee is assessed as (sic).

Memo of costs be prepared and the file be consigned to

the record room."

4. The department did not file any appeal against the award

of the Tribunal and made the payment of the whole awarded

compensation to the legal heirs of deceased Ranjit Singh. Even the

petitioner, who was aggrieved by the award, dated 22.2.1994, did not

challenge the award in appeal. On 26.11.1998 (P-2), respondent No.

3 upon instructions issued by respondent No. 2, vide letter dated

7.9.1998, directed to deduct a sum of Rs. 83,200/- being 1/3rd share of

the total amount awarded by the Tribunal as compensation from the C.W.P. No. 6850 of 2001 4

salary of the petitioner @ Rs. 2,700/- per month w.e.f. December,

1998. The aforesaid order is subject matter of challenge in the instant

petition.

5. In the written statement factual position has not been

denied. However, in reply to para 6 it is submitted that as per award

of the Tribunal the petitioner has been held negligent in driving the

Jeep rashly and negligently, which caused fatal accident and his

acquittal in criminal case does not absolve his liability from payment

of compensation qua his share, which was originally paid by the State

of Punjab and lateron the same was ordered to be recovered from the

petitioner by respondent No. 3, vide letter dated 26.11.1998. It is

pointed out that the petitioner has not challenged the award of the

Tribunal.

6. Mr. Harinder Sharma, learned counsel for the petitioner

has argued that action of the respondents in directing recovery from

the salary of the petitioner is wholly illegal, unjust, arbitrary,

discriminatory and against the provisions of Section 146 of the Act,

which prescribes that it is mandatory for the vehicle owners to get

their vehicles insured before taking to road. However, the State

Government has been empowered to exempt from the operation of

sub-section (1) of Section 146 of the Act from getting their vehicles

insured but at the same time it casts statutory obligation to create a

specific fund to meet with such accident for making payment to the

victims. Learned counsel has submitted that admittedly the vehicle

driven by the petitioner was not insured. On 22.2.2001 (P-2), the C.W.P. No. 6850 of 2001 5

petitioner served a legal notice but despite its acknowledgment no

action has been taken by the respondents. He has further submitted

that recovery of any sum from an employee of the State of Punjab is

one of the punishments envisaged by Rule 5 of the Punjab Civil

Service (Punishment and Appeal) Rules, 1970 (for brevity, 'the

Rules'). Therefore, procedure provided before inflicting any such

punishment was mandatory, which include issuance of notice, filing

of reply and then passing of order. In support of his submission,

learned counsel has placed reliance on a judgment of this Court

rendered in the case of Ajaib Singh v. State of Punjab, 2004 (4)

RSJ 374.

7. Ms. Sudeepti Sharma, learned State counsel has,

however, submitted that the recovery effected from the petitioner is

not based on any disciplinary enquiry requiring adjudication and

attracting the application of the 'Rules'. According to her the award

dated 22.2.1994, passed under Section 166 read with Section 140 of

the Act is binding on the petitioner, which has been passed after

granting him ample opportunity of hearing. Therefore, principles of

natural justice are not required to be followed mechanically and at

every stage.

8. I have heard learned counsel for the parties and perused

the paper book with their able assistance. The principles governing

the concept of 'vicarious liability' of employer in accident cases, have

been subject matter of consideration of Hon'ble the Supreme Court in

a number of cases. In the case of State of Maharashtra v. C.W.P. No. 6850 of 2001 6

Kanchanmala Vijaysing Shirke, (1995) 5 SCC 659,

recommendations by Hon'ble the Supreme Court has been made for

adopting more liberal approach in cases where the question of

judging the liability of the Central or State Government or Local

Authorities or Transport Undertakings is to be settled, which have

been exempted from the provisions of insuring against third party risk

as per Section 146(2)(3) of the Act.

9. In respect of 'vicarious liability', Hon'ble the Supreme

Court has further laid down that when the act of the servant causes

injury to a third party then the employer has to shoulder the

responsibility on a wider basis. These principles have been laid down

in paras 11, 12 and 16, which are extracted as under:-

" A person who is a servant has always a personal

independent sphere of life and at any particular time he

may be acting in that sphere. Different considerations

might arise if the servant or some stranger was using the

vehicle for purposes other than the purpose of his

master's business and the accident occurred while the

vehicle was being used for that other purpose. But once

it is found and established that vehicle was being used

for the business of the employer, then the employer will

be held vicariously liable even for the lapse, omission

and negligence of his driver to whom the vehicle had

been entrusted for being driver for the business of the

employer. When the act of the servant causes injury to a C.W.P. No. 6850 of 2001 7

third party the question is not answered by merely

applying the test whether the act itself is one which the

servant was ordered or forbidden to do. The employer

has to shoulder the responsibility on a wider basis. In

some situation he becomes responsible to third parties for

acts which he has expressly or implicitly forbidden the

servant to do. (Paras 11 and 12)

The courts while judging the liability of the

Central or State Government or local authorities or

transport undertakings, which have been exempted from

the provisions of sub-section (1) of Section 94, have to

be more cautious, while recording a finding as to whether

in the facts and circumstances of a particular case the

Central or the State Government or the local authority or

the transport undertaking in question can be held

vicariously liable for any act of its employee in the

course of employment. As a result of commercial and

industrial growth, even motor accidents are on steep rise.

For no fault or any contributory negligence of the victims

of such accidents, the families are deprived of their

breadwinners. The jurisprudence of compensation for

motor accidents must develop towards liberal approach,

because of mounting highway accidents. (Para 16)"

10. The petitioner could have explained his conduct and the

principle concerning 'vicarious liability' of the respondents had he C.W.P. No. 6850 of 2001 8

been afforded an opportunity of hearing. A Division Bench of this

Court in Hardip Singh's case (supra) has held that a show cause

notice for effecting recovery from the petitioner was required to be

issued before imposing any of the penalties specified in Rule 5(i) to

(iv) of the Rules. The provisions of Rule 5(iii) and Rule 10 of the

Rules, reads thus:-

Rule 5(iii) of the Rules

"5. Penalties:- The following penalties may, for good

and sufficient reasons, and as hereinafter provided, be

imposed on a Government employee, namely:-

xxx xxx xxx xxx

(iii) recovery from his pay of the whole or partly of any

pecuniary loss caused by him to the Government

by negligence or breach of orders.

xxx xxx xxx xxx"

Rule 10 of the Rules

"10. Procedure for imposing minor penalties:-

(1) Subject to the provision of sub-rule (3) of rule 9,

no order imposing on a Government employee any of the

penalties specified in clause (i) to (iv) of rule 5 shall be

made except after:-

(a) informing the Government employee in writing of

the proposal to take action against him and of the

imputations of misconduct or misbehaviour on C.W.P. No. 6850 of 2001 9

which it is proposed to be taken and giving him a

reasonable opportunity of making such

representation as he may wish to make against the

proposal.

(b) holding an inquiry in the manner laid down in sub-

rules (3) to (23) of rule 8, in every case in which

the punishing authority is of the opinion that such

inquiry is necessary;

(c) taking the representation, if any, submitted by the

Government employee under clause (a) and the

record of inquiry, if any, held under clause (b) into

consideration;

(d) recording a finding on each imputation of

misconduct or misbehaviour; and

(e) consulting the Commission where such

consultation is necessary.

(2) The record of the proceedings in such cases shall

include:

(i) a copy of the intimation to the Government

employee of the proposal to take action against

him;

(ii) a copy of the statement of imputation of

misconduct or misbehaviour delivered to him;

(iii) his representation, if any;

(iv) the evidence produced during the inquiry; C.W.P. No. 6850 of 2001 10

(v) the advice of the Commission, if any;

(vi) the findings on each imputation of misconduct or

misbehaviour; and

(vii) the orders on the case together with reasons

therefore."

11. An analysis of the above quoted rules would show that

recovery from the pay of an employee of the whole or part of any

pecuniary loss caused to the Government by negligence or breach of

orders is one of the minor penalties which could be imposed by the

competent authority. The procedure for imposing such minor

penalties is provided by Rule 10 of the Rules, which in terms lays

down that no order imposing any of the penalties specified in Rule 5

(i) to (iv) could be passed except after informing the employee

concerned of the proposal to take action against him and giving him a

reasonable opportunity of making representation. It is only then that

the appropriate Government could award the punishment after

recording a finding. The aforesaid procedure in the present case

admittedly has not been followed. Therefore, I am of the considered

view that order dated 26.11.1998 (P-1) is liable to be set aside.

12. For the reasons aforementioned, this petition succeeds.

Order dated 26.11.1998 (P-1) is hereby quashed. However, the

respondents shall be at liberty to proceed in accordance with law and

then pass a fresh order.

The writ petition stands disposed of.

C.W.P. No. 6850 of 2001 11

(M.M. KUMAR) April 22, 2009 JUDGE

okg/Pkapoor