Civil Writ Petition No.18069 of 2011 -1- **** IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No.18069 of 2011 Date of decision: 8.12.2011 Tirath Singh ...Petitioner Versus State of Punjab and others ...Respondents CORAM: HON'BLE MR.JUSTICE HEMANT GUPTA HON'BLE MR.JUSTICE G.S.SANDHAWALIA Present: Mr. H.S.Rakhra, Advocate for the petitioner. Mr. Piyush Kant Jain, Addl. Advocate General, Punjab for respondent No.1. Mr. Rupinder Khosla, Advocate with Mr. Aman Sharma, Advocate for respondents No.2 to 4. **** G.S.SANDHAWALIA, J. 1. The challenge in the present writ petition is to the action of respondents No.2 to 4, whereby the bus of the petitioner bearing No.PB- 03-3X-9676 was illegally impounded by respondent no.4 at the instance of respondent no.2 without issuing any notice or explanation in spite of the fact that the bus was being plied as per the lease agreement entered with the Pepsu Road Transport Corporation (for short “the Corporation'). 2. The grouse of the petitioner is that the petitioner had applied under the “Shaheed Bhagat Singh Rozgar Yojna” scheme floated by the Corporation and known as PRTC Kilometer Scheme. Initially the case of the petitioner was not considered and petitioner was constrained to approach this Court by filing Civil Writ Petition no.11186 of 2010 and this Civil Writ Petition No.18069 of 2011 -2- **** Court had issued directions to consider the bid of the petitioner in accordance with advertisement. In pursuance of the said consideration, petitioner was successful in getting the tender and had entered into an agreement dated 22.11.2010 whereby the bus offered by him was leased with the Corporation for a period of five years and as per the said lease agreement, the Corporation was to provide minimum number of kilometers per month and the first three years it was providing 11,000 kilometers per month so that petitioner could earn profit out of the said running of bus. It was further the case of the petitioner as per the terms and conditions, the conductor was to be provided by the Corporation and the driver was to be provided by the petitioner for running the bus and the conductor was responsible for the operation of the bus. 3. The grievance of the petitioner was that on 17.8.2011, when his bus was going from Faridkot to Delhi, it was checked at 5.40 P.M. near Panipat and found that there was some luggage which was without ticket and as a result of the same, the bus of the petitioner was impounded without any notice and the said bus was not being released. The petitioner was suffering because of the illegal action of the respondent Corporation. 4. Initially the Dasti notice was issued to the Corporation on 31.10.2011 for 7.11.2011 but none put in appearance for the Corporation and the case was adjourned to 14.11.2011. On 14.11.2011, also none appeared for the Corporation and in view of the said fact, the bus was ordered to be released forthwith and the Managing Director of the Corporation was asked to come present on 22.11.2011. On the said date short affidavit was filed by the Managing Director that it was not in his knowledge that the bus had been impounded and only on the receipt of the orders of this Court dated 14.11.2011, it was informed to the deponent that Civil Writ Petition No.18069 of 2011 -3- **** the petitioner-provider of the bus in question had failed to provide the bus driver for plying the bus as per contract during all that period since 19.8.2011. In the said affidavit, it was also mentioned that bus in question was impounded by the General Manager of the Corporation at Faridkot depot and the same has been released in compliance with the orders of this Court. The case was adjourned to 6.12.2011 when a detailed reply was filed by the same officer, namely, Managing Director of the Corporation in which a stance was taken that checking of the bus was done under the supervision of the Chairman of the Corporation himself on 18.8.2011 at 5.30 PM on the apprehension that the driver and conductor were carrying some goods illegally in the tool box of the bus and on checking by the Checking Officer, who was accompanying the Chairman, the conductor and the driver had refused to open the tool box which led to impounding of bus. It was further the case of the respondent that service of the conductor had been dispensed with since he was employee of the PRTC and as the petitioner did not provide alternate driver to ply the bus, the bus was parked at Faridkot workshop/Bus Stand and it was not known what action had been taken by the petitioner against the driver. 5. A close examination of the agreement entered into between the parties which contains the terms and conditions for induction of the kilometer scheme buses with the corporation goes on to show how arbitrary action has been taken against the petitioner and a defiant attitude of the Corporation is apparent on the face in the facts and circumstances of the case. The agreement in question basically provides that persons are to provide buses which will be leased to the Corporation and the Corporation will pay lease charges on kilometer basis to the owner of the bus. The said lease is for a period of 5 years in the first instance. The Civil Writ Petition No.18069 of 2011 -4- **** Corporation is also to provide minimum running of coverage of kilometers so that lessee can make some profit in the first three years. Under Clause 18 a guarantee in coverage of 11000 kilometers per month is provided. As per Clause 32, the control of the bus is to be with the PRTC and the owner of the leased bus has no control over it in respect of route. As per Clause 35, the Corporation is to provide a conductor who will conduct the bus and the Corporation has a right to get changed the driver of the leased bus in case the driver fails to perform his duties properly. As per Clause 37, if the driver fails to stop the bus on a checking signal given by the Inspectorate staff, the Corporation shall be entitled to charge penalty from the owner of the leased bus. Relevant Clauses 32,35 and 37 are reproduced below:- “32. The driver along with uniform will be provided by the owner of the leased bus/buses. Without uniform driver may be fined Rs.100/- per day. The operational control over the leased bus(es) will be exclusively of PRTC. The bus(es) taken on lease will not be for any specified permit or any specified route. The leased but will became part of the fleet of the PRTC and can be operated on any route. The route on which the leased bus has to operate will be decided by Traffic Manager/General Manager of PRTC which may be charged by PRTC from time to time as per its needs and requirements. The owner of the leased bus will have absolutely no control over the leased bus in respect of the route on which it has to operate, the time and place at which it has to start, the places at which the leased bus has to stop enroute its destination etc. xxxx xxxx xxxx 35. The Corporation will provide a Conductor for the Civil Writ Petition No.18069 of 2011 -5- **** operation of the leased bus. The bus will be under the control of the Conductor, who will conduct the bus. The bus driver shall not start the bus unless the conductor gives proper signal to the driver to start the bus. The driver of the leased bus will stop the bus, when ever the wherever the conductor ask him to do so or as per the fare table stage of the route. The owner of the leased bus will have absolutely no operational control over the bus taken on lease by the PRTC. The Driver of the bus while driving the leased bus on the route of PRTC will be under control and command of PRTC authorities. The Corporation shall have the right to get changed the driver of the leased bus, in case the driver fails to perform his duties properly. The owner shall be responsible to make arrangements immediately for the suitable substitute. xxxx xxxx xxxx 37. The conductor of the bus will carry necessary equipments for the issuance of ticket to the passengers. The freight and fare charges will be collected by the conductor for and on behalf of the Corporation. The tickets to the passengers will be issued by the PRTC. The owner of the bus will have no concern with the fare charged from the passengers traveling in the leased bus. Similarly the passengers traveling in the leased bus will have no liability to pay any amount on account of fare to owner of the leased bus. The contract for carrying the passengers from one place to another will be between the passengers traveling in the leased bus and PRTC and not between the passengers and the Civil Writ Petition No.18069 of 2011 -6- **** owner of the bus. In case of any deficiency in service or mis- conduct on the part of the driver and/or conductor of the bus taken on hired by PRTC, the PRTC will be entitled to check the bus taken on lease by PRTC in the same manner in which it is entitled for checking the buses actually owned by PRTC. In case the driver of the bus fails to stop the bus on a checking signal given by the inspectorate staff, the Corporation shall be entitled to charge penalty from the owner of the leased bus.” 6. Thus from the above terms of the lease, it would be clear that the Corporation has taken extreme step of impounding the bus from 17/18.8.2011 and issued no cause notice to the petitioner for what reason this drastic action was being taken. The Managing Director in his short affidavit dated 22.11.2011 is not even aware of the actions allegedly taken by his General Manager, Faridkot Depot. This stance is contradicted by the reply of the Managing Director dated 5.12.2011, wherein it was alleged that checking was done by the Chairman himself on 18.8.2011 at 5.30 P.M. when the bus was enroute from Delhi to Faridkot on the apprehension that the driver and the conductor were carrying some goods illegally in tool box and the checking was done by the Checking Officer who was accompanying the Chairman. In the detailed reply, there is no explanation as to whether the petitioner was informed at any stage that the bus stands impounded and for what reason and when the petitioner could get it released under what condition. We find that the explanation of the Managing Director is absolutely contradictory as initially it was mentioned that the checking was done by the General Manager, Faridkot Depot and subsequently it has been elaborated that it was the Chairman who on checking the bus enroute from Delhi to Faridkot ordered the impounding. Civil Writ Petition No.18069 of 2011 -7- **** We also find it highly strange that a high ranking officer like a Chairman of the Corporation would be standing on the highway and checking the buses under some apprehension and that the conductor of the bus who was an employee of the PRTC would refuse to open the tool box at his asking. Nothing has been placed on record to show that any action has been taken against the conductor though it is alleged that his services had been terminated. 7. A perusal of Clause 32 goes on to show that owner of the bus have no control over the leased bus in respect of the route on which it has to operate and the operational control has to be of the Corporation. Similarly Clause 35 provides that conductor will be provided by the Corporation for the operation of the leased bus and the bus would be under the control of the conductor and in case the driver fails to perform his duties properly, the Corporation has a right to get the driver changed and the owner shall be responsible to make arrangement. Similarly under Clause 37, the owner of the bus has no concern with the fare charged from the passengers traveling in the leased bus and in case the driver of the bus fails to stop the bus on a checking signal given by the inspectorate staff, the Corporation shall be entitled to charge penalty from the owner of the leased bus. From the said terms and conditions it would be clear that no notice has been issued by the Corporation for payment of any penalty and neither it has been pleaded that any such notice had been issued. The alleged violation of not opening the tool box by the conductor who was an employee of the Corporation could not have entailed such serious consequence for no fault of the petitioner which has led to non running of his bus for a period of more than 90 days i.e.18.8.2011 to 23.11.2011. This arbitrary action of the Corporation without following due procedure of Civil Writ Petition No.18069 of 2011 -8- **** law cannot be frowned upon of the Corporation especially of respondent no.2. 8. The bus now already stands released by the Corporation but in view of the Clause 18, we feel that petitioner has to be compensated due to the non plying of the bus for the last more than three months as he was given a guarantee of coverage of 11,000 kilometers per month in the first three years. Taking a conservative loss of Rs.2000/- per day for these 90 days, we award compensation to the tune of Rs.1,80,000/- to the petitioner which is to be paid by respondent no.2 personally due to his arbitrary and illegal action. The said compensation be paid to the petitioner within a period of one month from today which includes the costs of litigation as the petitioner was unnecessarily driven to seek his redressal in this Court. 9. Accordingly, the writ petition is allowed. (G.S.SANDHAWALIA) Judge December 08, 2011 (HEMANT GUPTA) Pka Judge