IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. CWP No. 6850 of 2001 Date of Decision: April 22, 2009 Jagdish Rai ...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 allowed to see the judgment? Yes 2. To be referred to the Reporters or not? Yes 3. Whether the judgment should be reported in the Digest? Yes 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 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 2 C.W.P. No. 6850 of 2001 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 3 C.W.P. No. 6850 of 2001 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 4 C.W.P. No. 6850 of 2001 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. 5 C.W.P. No. 6850 of 2001 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 6 C.W.P. No. 6850 of 2001 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 7 C.W.P. No. 6850 of 2001 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 8 C.W.P. No. 6850 of 2001 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; 9 C.W.P. No. 6850 of 2001 (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. 10 C.W.P. No. 6850 of 2001 (M.M. KUMAR) April 22, 2009 JUDGE okg/Pkapoor 11