IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA CWP(T) No. 3732/2008 (OA 393/1996) Judgment Reserved on : May 25, 2009 Date of Decision : June 16, 2009 Sh. Parmodh Chand Petitioner Versus Himachal Road Transport Corporation, through its Managing Director, Shimla-3 and others. Respondents Coram: Hon’ble Mr. Justice Sanjay Karol, Judge. Whether approved for reporting?1 Yes. For the petitioner : Mr. Adarsh Kumar Vashist, Advocate, for the petitioner. For the respondents : Mr. Adarsh Sharma, Advocate, for the respondents. Sanjay Karol, J. The petitioner has prayed for the following reliefs: “i) That the impugned Annexures A-3, dated 3.12.1992 and Annexure A-5, dated 19.5.1993 may be quashed and set aside; ii) That the Respondents may be directed to re-engage the applicant as Driver pursuant to the judgment passed by the learned Additional Chief Judicial Magistrate, Palampur on 26.8.1995 (Annexure A-6); 1 Whether reports of Local Papers may be allowed to see the judgment? 2 iii) That the applicant may also be held entitled to all the consequential benefits like seniority and back wages etc. after setting aside the retrenchment order dated 3.12.92 (Annexure A-3); iv) Any other relief deemed fit and proper in the circumstances of the case may also be granted.” The petitioner was appointed as a driver with respondent/corporation w.e.f. 8.4.1991. At the first instance he was kept on probation for a period of two years. The bus belonging to the respondent, being driven by the petitioner who was on duty, met with an accident on 25.5.1992, resulting into death and injury of the passengers. Memo dated 1.9.1992 (Annexure A-1) was served upon him by the Divisional Manager, HRTC, Dharamshala, calling upon him to show cause as to why his services be not dispensed with. Petitioner immediately replied to the same (Annexure A-2) inter alia taking the following defence: “(iii) That on that ill fated day it had rained heavily and taking all the facts in view I lodged my protest verbally before the concerned authorities at Palampur not to detail the said bus for Ashapuri or otherwise detail it upto safer place, but of no avail and under compelled circumstances I obeyed the valuable orders of my superiors. (iv) That it is also an admitted fact that the schedule time for departure of the said bus service from Palampur is 4-45 P.M. but unfortunately I was detailed for duty at 3 5.25 P.M. on the ill-fated day, reason being that some other bus was actually detailed for the purpose. (v) That after reaching Buhana at about 6-45 P.M I requested the passengers to get down there because it was still raining and the road ahead was not safe for plying a heavy vehicle in such a weather conditions. But, the passengers did not agree to it and compelled me to proceed ahead to the destination i.e. Ashapur and accordingly I drove the bus to its destination. Near Dodan Balhi, there is a steep upward gradient the condition of which had become worst because of heavy rain in-as-much as there was acute slip on the road. Thus, seeing the road condition I told all the passengers to get down from the bus so that I could be in a position to negotiate the steep upward gradient where there was serious obstruction due to slippery road to make the bus to climb safely. But unfortunately some of the passengers did not pay any heed to my request and kept sitting in the bus. The bus when it was moving upward to negotiate the climb, it got skidded suddenly and rolled backward and the edge of the road could not sustain the heavy weight of the bus which gave way and the bus fell down about 150 feet, causing thereby the said accident.” (vii) That serious aspersion has been cast on my act and conduct which warrants full fledged enquiry based on the principles of “Natural Justice and Fair Play” to be held against me before I am made to go out of employment, therefore, the said notice proposing therein virtually termination of my service is illegal and bad in law.” 4 Respondents vide order dated 3.12.1992 (Annexure A-3) passed an order relieving the petitioner from his job as a driver. The contents of the same are reproduced as under: “OFFICE ORDER The services of Shri Parmodh Chand who was appointed as a driver vice office order No. HRTC/DM- DSL/1-88/82 dated 2.4.1991 and now is on probation are no longer required by this Corporation. General Manager Himachal Road Transport Corpn., Dharamsala.” Petitioner preferred an appeal (Annexure A-4) before the appropriate authority which stood decided in terms of order dated 19.5.1993 (Annexure A-5), contents of which are also reproduced as under: “OFFICE ORDER WHEREAS the services of Shri Parmodh Chand, Driver, HRTC, Palampur was dispensed with (as no longer required being on probation) by the General Manager, HRTC, Dharamshala vide office order No. HRTC/GM-DSL/1-10/P.Pur/9867-68 dated 03/12/92. 2. AND WHEREAS the said Shri Parmodh Chand, driver preferred an appeal dated 28/12/92 to the undersigned. 3. I have considered the appeal and relevant record. The order passed by General Manager, Dharamshala is not of retrenchment but of discharge simpliciter under probation clause and is protected under section 2(oo)(bb) of the Industrial Dispute Act. The 5 representation/appeal made by Shri Parmodh Chand is without any substance. Therefore, I agree with the orders of General Manager, Dharamshala and reject this appeal. Managing Director, Himachal Road Transport Corporation, Shimla – 171 003.” It is a matter of record that as a consequence of the accident FIR was registered against the petitioner and challan was presented in the Court for trial under Sections 279, 337, 338 and 304-A of the Indian Penal Code. In the said case, on merits the petitioner was discharged and acquitted by the Court of Additional Chief Judicial Magistrate, Palampur, District Kangra, H.P. in terms of judgment dated 26.8.1995 passed in Criminal Case No. 148-II/92, titled State of H.P. versus Parmodh Chand (Annexure A-6). Mr. Adarsh Kumar Vashist, learned counsel for the petitioner has assailed the impugned orders on the grounds that the action initiated by the respondents is punitive and stigmatic and the motive for termination of the petitioners service is the accident. In support he has referred to and relied upon the following decisions: Anoop Jaiswal versus Government of India and another, (1984) 2 SCC 369; Jarnail Singh and others versus State of Punjab and others, (1986) 3 SCC 277; Biharilal Jaiswal and others versus Commissioner of Income Tax and others, (1996) 1 SCC 443 and Chandra Prakash Shahi versus State of U.P. and others, (2000) 5 SCC 152. 6 It has further been argued that in any event the impugned orders Annexure A-3 and A-5 are non speaking and unreasoned orders and hence needs to be quashed. Learned counsel has further referred to and relied upon the decisions of the apex Court in Vishnu Dev Sharma versus State of Uttar Pradesh and others, (2008) 3 SCC 172 and Bhikhubhai Vithlabhai Patel and others versus State of Gujarat and another, (2008) 4 SCC 144 to support his contention. In response Mr. Adarsh Sharma, learned counsel for the respondents has supported the order for the reasons set out therein and has referred to and relied upon the ratio of law laid down by the Apex Court in Abhijit Gupta versus S.N.B. National Centre, Basic Sciences and others, (2006) 4 SCC 469. Annexure A-5 as reproduced hereinabove, evidently is not a speaking order. No reasons have been assigned for holding that the petitioner’s appeal is without any substance. The petitioner had specifically alleged that the accident, apparently occurred due to bad weather and faulty vehicle which he was asked to drive inspite of his protest. Unfortunately the appellate authority has not considered this aspect of the matter. The defences taken by the petitioner have not been considered at all. On this short ground alone Annexure A-5 needs to be quashed. The Apex Court in Vishnu Dev Sharma (supra) has held as under: 8. “11. Reasons introduce clarity in an order. On plainest consideration of justice, the High Court ought to have 7 set forth its reasons, howsoever brief, in its order indicative of an application of its mind, all the more when its order is amenable to further avenue of challenge. The absence of reasons has rendered the High Court’s judgment not sustainable. 12. Even in respect of administrative orders Lord Denning, M.R. in Breen v. Amalgamated Engg. Union [(1971) 1 All ER 1148 (CA)] observed: (All ER p. 1154h) ‘The giving of reasons is one of the fundamentals of good administration.’ In Alexander Machinery (Dudley) Ltd. v. Crabtree [1974 ICR 120 (NIRC)] it was observed: ‘Failure to give reasons amounts to denial of justice. Reasons are live links between the mind of the decision- taker to the controversy in question and the decision or conclusion arrived at.’ Reasons substitute subjectivity by objectivity. The emphasis on recording reasons is that if the decision reveals the ‘inscrutable face of the sphinx’, it can, by its silence, render it virtually impossible for the courts to perform their appellate function or exercise the power of judicial review in adjudging the validity of the decision. Right to reason is an indispensable part of a sound judicial system, reasons at least sufficient to indicate an application of mind to the matter before court. Another rationale is that the affected party can know why the decision has gone against him. One of the salutary requirements of natural justice is spelling out reasons for the order made, in other words, a speaking out. The ‘inscrutable face of the sphinx’ is ordinarily incongruous with a judicial or quasi-judicial performance.” (Emphasis supplied) 8 That the order should be reasoned has been reiterated by the apex Court in Mohinder Singh and Company versus Board of Trustees of the Port of Bombay, (2009) 4 SCC 86 and State of Himachal Pradesh versus Sada Ram and another, (2009) 4 SCC 422. Without going into the merits of the matter and considering the respective contentions raised by the parties on merits and the binding effect of the ratio of law laid down in various judicial pronouncements referred to by the parties, on the limited ground Annexure A-5 is quashed. Respondents are directed to immediately decide the appeal by affording adequate opportunity of hearing/representation to the petitioner. Needless to add the respondents shall pass a reasoned order which shall be communicated to the petitioner. The entire exercise be carried out within a period of three months from today. The appellate authority shall take into account the respective contentions raised herein by the parties, as also the ratio of law laid down by the Apex Court in various judicial pronouncements referred to and relied upon by the parties. (Sanjay Karol), Judge. June 16 , 2009 (PK)