1 S. B. CIVIL WRIT PETITION NO. 5430/2005 RAMBAKSH CHOUDHARY V. THE CHAIRMAN, RSRTC & ANR. DATE OF ORDER ::: 12/03/2008 HON'BLE MR. JUSTICE MUNISHWAR NATH BHANDARI Mr. Ranajeet Joshi, for Petitioner. Mr. Anil Bachhawat, for Respondents. By this writ petition, the petitioner has challenged the order dated 17.2.2005 and the order dated 27.5.2005. The contention of the learned counsel for the petitioner is that the petitioner is being punished with the harsh punishment of dismissal and recovery of amount of Rs.1,44,905/-, though, while passing the impugned order of dismissal, the respondents failed to consider that there was no conclusive evidence to prove that the petitioner was under influence of liquor while driving the vehicle at the time of accident. Thus, in absence of conclusive proof, in that regard, the order of punishment in the light of the accident, is not only harsh, but effecting recovery entirely from the petitioner alone becomes discriminatory, because it is a case where two buses of the Roadways were involved 2 in the accident and it was the case of the respondents that both the drivers were under the influence of liquor when the accident took place. However, while passing the final order against the other driver, he was given light punishment, like punishment of stoppage of grade increment, whereas in the petitioner's case, a harsh punishment of dismissal, with recovery of the entire amount, has been given. The further contention of the learned counsel for the petitioner is that while passing the impugned order, past service record was also looked into and without giving an opportunity, inasmuch as such facts were not part of the charge-sheet and otherwise, no opportunity of defence was given therein. In view of the aforesaid, the prayer of the learned counsel petitioner is that the punishment against the petitioner is quite harsh and needs reconsideration. Learned counsel for the respondents, on the other hand, submits that it is mainly due to the negligence of the petitioner that accident took place, though the petitioner was not sent for medical examination, immediately after the accident so as to find out as to whether he was under 3 the influence of liquor or not. It is, however, contended that in view of the evidence of the officials on the spot, it was revealed that both the drivers were under the influence of liquor, therefore, not only Corporation had to sustain loss of repairing cost of both the buses, but further suffer on account of non-plying of the buses during the intervening period. It was, thus, prayed that the writ petition needs no interference by this Court, being a case where proportionate punishment has been made. I have considered the rival submissions of the learned counsel for the parties and scanned the matter carefully. Perusal of the record shows that a finding has been recorded that the petitioner was under the influence of liquor, but the respondents could not reply to the issue as to why the petitioner was not sent for medical examination, immediately so as to come out with the conclusive proof of his being under the influence of liquor. The finding so recorded in that regard thus, remains only on presumptions. The matter is having other aspect also, inasmuch as, even if the finding so discussed above is accepted, then 4 respondents could not give justification as to why and how lesser punishment has been given to the either driver, who then was also alleged to be under the influence of liquor. No cogent reply in that regard could be given, more specifically when even the recovery of the cost of repair of the buses is also effected entirely from the petitioner. In view of the aforesaid finding, the order of punishment passed by the respondent seems to be disproportionate, however, instead of interfering with the order of punishment, it is appropriate to remand this case back to the Corporation for passing appropriate order in regard to the delinquency of the petitioner, if any. While the matter is reconsidered by the respondents, a care be taken to the fact that what punishment has been awarded to co-employee Puna Ram in regard to same delinquency and a further fact that as to whether there exists a conclusive proof of petitioner's being under the influence of liquor and if that is so, then, the other driver Puna Ram having the same condition, why lessor punishment was given to him. The respondents may provide an opportunity of hearing to the petitioner in that regard, so that the 5 matter may further be clarified on each aspects. The respondents are also directed to reconsider the present matter in regard to effecting recovery of repair of cost entirely against the petitioner. The writ petition is, accordingly, allowed. The matter is remanded back to the respondents to pass necessary order within a period of three months from the date of receipt of the copy of this order. The respondents will pass an speaking order on all the issues indicated above, as well as to be raised by the petitioner during the course of hearing. In case the order of punishment is modified, the respondents may pass consequential order, even for the intervening period. (M. N. BHANDARI), J. scd