IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No.10565 of 1989 Date of decision: 15th September, 2010 Kulwant Singh Driver … Petitioner Versus Municipal Corporation, Amritsar and another … Respondents Notes: 1. Whether Reporters of local newspapers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? CORAM: HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA Present: Ms. Vanita Sapra, Advocate for the petitioner. Mr. Sandeep Khunger, Advocate for respondent No.1. Mr. J.S. Puri, Additional Advocate General, Punjab for the State. KANWALJIT SINGH AHLUWALIA, J. Petitioner, an employee of the Punjab Roadways, Amritsar Depot was on deputation with the Municipal Corporation, Amritsar in the year 1975. Being an employee of the Punjab Roadways, he had a lien in the State Services of the Punjab Transport Department. On 18th August, 1983, the petitioner was driving a bus bearing registration No.PYE-5506 belonging to the Municipal Corporation, Amritsar and during the course of duty, he caused an accident, as a result whereof a cyclist, namely Kartar Singh, received injuries and Civil Writ Petition No.10565 of 1989 subsequently died in the hospital. Legal heirs of the deceased-Kartar Singh instituted a claim petition for grant of compensation in the Motor Accident Claims Tribunal, Amritsar (hereinafter referred to as, ‘the Tribunal’). The Tribunal, vide its judgment dated 16th January, 1987, awarded compensation to the claimants to the tune of Rs.36,000/- with interest at the rate of 12 per cent per annum from the date of filing of the claim petition till actual payment. The employer along with the petitioner was held jointly and severely liable to satisfy the award. An application for execution was filed and the Municipal Corporation, Amritsar paid Rs.51,120/- to the widow and daughter, the only legal heirs of the deceased-Kartar Singh, towards discharge of the claim. The employer, with whom the petitioner was on deputation, having paid the amount of compensation, issued a show-cause-notice dated 12th May, 1989 as to why the amount be not recovered from salary of the petitioner at the rate of Rs.500/- per month. The petitioner filed reply and pleaded therein that since the accident had taken place during the course of employment, the amount cannot be recovered from the employee. However, respondent No.1-Municipal Corporation, Amritsar on 13th July, 1989 passed the impugned order (Annexure P-4) to deduct Rs.500/- per month from the salary of the petitioner to recoup the recovery. The impugned order (Annexure P-4) further stated that in case the High Court enhances the amount of compensation, further action against the petitioner shall be considered later-on. In the present writ petition, the petitioner has assailed order (Annexure P-4), whereby the amount was sought to be recovered after making necessary deduction from the salary of the petitioner. It is prayed that the impugned order (Annexure P-4) be quashed by this Court. Ms. Vanita Sapra, Advocate appearing for the petitioner, has contended that the employer is vicariously liable for the conduct of its 2 Civil Writ Petition No.10565 of 1989 servant and therefore, recovery of the amount cannot be effected from the petitioner. It is further submitted that the respondent-Corporation had taken a categoric stand before the Tribunal that the accident had not occurred due to rash and negligent driving of the petitioner. Referring to the written statement filed by the employer, it is submitted that the employer genuinely believed that the accident had taken place on account of negligence of the deceased-cyclist himself, therefore, once the employer was convinced that the petitioner was not responsible for the accident, then without holding any enquiry and following principles of natural justice, the petitioner could not be made liable to pay Rs.500/- per month from his salary. It is further submitted that the employer had filed an appeal bearing FAO No.402 of 1987 in this Court. The grounds of appeal have been annexed as Annexure P-6 with the petition. It is stated that from a perusal of grounds of appeal it is evident that the employer had pleaded that the petitioner, being a driver of the bus, was not negligent at all and the accident had taken place due to negligence of the cyclist. Counsel for the petitioner has further placed reliance upon the judgment (Annexure P-7) passed by the Additional Sessions Judge, Amritsar, wherein the appeal filed by the petitioner was accepted and he was acquitted of the charges under Section 304-A IPC. It is submitted that once the petitioner has been acquitted of the charges of rash and negligent driving, he cannot be made liable to pay the amount of compensation. To rebut the arguments advanced by counsel for the petitioner, counsel for the opposite party has relied upon the judgment (Annexure P-1) dated 16th January, 1987 passed by the Tribunal, wherein it was held as under: 3 Civil Writ Petition No.10565 of 1989 “11. … … … I find sufficient circumstances on the file to show that the accident took place as alleged due to rash and negligent act of the bus driver. Therefore, issue No.3 is decided accordingly that the accident resulting the death of Kartar Singh took place due to rash and negligent driving of driver Kulwant Singh respondent No.1, by driving bus No.PJE-5506.” It is stated that once the Tribunal, on the basis of the evidence led, came to a conclusion that the accident had occurred due to rash and negligent driving of the petitioner in driving the bus, there was no need to hold any enquiry and on the basis of findings returned by the Tribunal itself, the impugned order (Annexure P-4), whereby recovery was ordered to be effected from the petitioner, is justifiable. Having noticed the rival contentions, it is necessary to notice the case law relied upon by counsel for the parties. A Division Bench of this Court, in ‘Sampuran Singh v. State of Punjab and another’ 2009(3) SCT 137, has held that an employer is entitled to recover the pecuniary loss caused due to negligence of a Government servant. For coming to this conclusion, the Division Bench relied upon Government instructions issued on 21st March, 2002 and further concluded that since there was no challenge to these instructions, therefore the employer had a right to effect recovery from the driver, who caused the accident. The instructions, so issued by the Government, form part of the judgment rendered in Sampuran Singh’s case (supra) and are reproduced below from the said judgment: “No.14/148/2001-1FEI/2601 GOVERNMENT OF PUNJAB DEPARTMENT OF FINANCE (Finance expenditure-I Branch) Dated, Chandigarh, the 21.3.2002 4 Civil Writ Petition No.10565 of 1989 All Heads of Departments, Commissioners of Divisions, Registrar, Punjab & Haryana High Court, District & Sessions Judges and All Deputy Commissioners in the State. Subject: Payment of half of compensation money by the driver of the Government vehicle responsible for an accident. Sir, I am directed to refer to the subject noted above and to say that in order to safeguard public interest it is made mandatory that in case any Court comes to the conclusion that the driver of a Government vehicle was squarely responsible for an accident, the concerned driver will have to pay atleast half of the compensation money awarded by the Court. Sd/- Under Secretary Finance (C)” In Sampuran Singh’s case (supra), further reliance has been placed upon ‘Depot Manager, A.P.S.R.T. Corpn v. N. Ramulu and another’ (1997) 11 Supreme Court Cases 319, and it was held that since Regulation 8(v) of the Andhra Pradesh State Road Transport Corporation Employees (CCA) Regulation, 1967 and Clause (5) thereof has been upheld by Hon’ble the Apex Court, therefore right of the employer to recover the pecuniary loss caused to it by an employee due to his negligence, exists. Another Division Bench of this Court in ‘Jaswant Singh v. State of Haryana and others’ 2005(2) SCT 710, has held that recovery of the amount paid by the employer to the claimants can be made under the Civil Service Rules and such a recovery will amount to minor punishment. Therefore, in case a show-cause-notice, detailing the gist of allegations, is served and thereafter, the employer considering the 5 Civil Writ Petition No.10565 of 1989 reply filed to the show-cause-notice, comes to a conclusion that recovery of the amount is to be effected from the employee, no fault can be found with the same. It will be apposite here to reproduce concluding portion of the judgment rendered in Jaswant Singh v. State of Haryana (supra), which reads as under: “6. After due consideration of the reply, liability has been fastened on the petitioner, on the basis of the finding of rash and negligent driving given by this Court. The aforesaid order passed by the respondents is neither without jurisdiction nor contrary to the provisions of the rules. Under the rules, the loss caused to the exchequer can be recovered from the erring official, provided the procedure for inflicting minor penalty is duly followed. In the present case, the respondents have passed a detailed speaking order. There is no breach of rules of natural justice. The petitioner has been given every opportunity to put forward his version of the events. The legal and factual defences raised by the petitioner have been duly considered. In our opinion, no injustice has been caused to the petitioner. In ‘Sarwan Singh v. State of Punjab and others’ 2010(1) RCR (Civil) 488, it was held that where before the Motor Accident Claims Tribunal, it has been a consistent stand of the employer that the employee was not negligent, later-on the employer cannot recover the amount from such employee, without holding any enquiry to this effect. The reasoning adopted in Sarwan Singh’s case (supra) was that the findings given by the Tribunal, ipso-facto, cannot be relied upon in the departmental proceedings. The employer has to come to a definite conclusion after affording due opportunity of hearing that negligence of the employee was such that the amount ought to be recovered from him. 6 Civil Writ Petition No.10565 of 1989 Following portion of the judgment rendered in Sarwan Singh’s case (supra) is required to be noticed: “16. Having considered the facts and circumstances of the case in extenso, I am of the considered opinion that the stand of the respondents has throughout been that the petitioner was not rash and negligent in performance of his duties as a driver. While investigating the criminal case, (FIR No. 34 P.S. Samrala dated 07.06.1996 under Sections 304- A, 279, 337, 338-A and 427 IPC), a conscious conclusion has been drawn on the basis of relevant evidence and material that the accident occurred on account of mechanical failure and not in view of rash and negligent driving of the petitioner. 17. The stand of the respondents, as asserted before the Motor Accident Claims Tribunal, as is evident from the extracted portion from reply filed on behalf of SSP, also indicates that the petitioner was not at fault and the accident occurred on account of reasons beyond the control of the petitioner i.e. because of mechanical failure of the vehicle. 18.& 19. XXXX XXXX XXXX XXXX XXXX XXXX 20. I have further taken note of the fact that the respondents have not initiated any departmental proceedings against the petitioner so as to independently judge the conduct of the petitioner on 7.6.1996, when the vehicle driven by the petitioner met with an accident. Order Annexure P-13 has not been passed under the statutory rules of service, which provide procedure to proceed against an employee. Absence of departmental inquiry proceedings in this regard and any finding indicating culpability of the petitioner also disentitle the respondents to effect recoveries from the petitioner. 21. There is another aspect of the matter also viz the impugned order Annexure P-13, although adversely affects the civil rights of the petitioner, has been passed without giving an opportunity of hearing to the petitioner. The order 7 Civil Writ Petition No.10565 of 1989 having been passed without following principles of natural justice is rendered illegal. 22. A perusal of Annexure P-13 indicates that the order has been passed by SSP, Jalandhar on premise that petitioner "caused accident because of driving the vehicle rashly and negligently, at high speed and as a result of which Head Constable Kuldip Singh No. 720/Khanna died." The stand of the respondents, however, has throughout been to the effect that petitioner was not rash or negligent and the accident had been caused on account of mechanical failure of the vehicle, which event was beyond the control of the petitioner. The respondents are, therefore, reprobating only because an award has been passed by the Tribunal for compensating the next of kin of Head Constable Kuldip Singh. This is not permissible as the basis of passing order Annexure P-13 is against the very stand of respondents, taken at various stages. The State is not expected to behave like an ordinary litigant. The action is unreasonable, irrational, injudicious and arbitrary. 23. Another aspect of the case is required to be considered viz. the respondents are only employer of the petitioner but also owners of the vehicle that was involved in the accident. It is the admitted case of the respondents that the petitioner-driver working for the respondents was on official duty. It has been the stand of the respondents that the petitioner, as per his duties, has done lawful acts by way of driving the vehicle correctly and properly, without negligence and rashness. The petitioner has not done any act which was disadvantageous to the interest of the respondent employer. Under these circumstances, at this juncture it does not behoove of the respondents to repudiate the acts of the petitioner and direct him to pay part of the compensation. The respondent-employer rather is required to indemnify the petitioner-employee against the consequence of the lawful acts done by the petitioner in exercise of authority conferred on him by the respondents for driving the vehicle.” Another Single Bench of this Court, in ‘Amar Nath v. State of Haryana’ 2001 (2) SCT 521, has held that an employee cannot be 8 Civil Writ Petition No.10565 of 1989 burdened with the liability by the State, when the accident occurred during the course of performance of the duties. In Sampuran Singh’s case (supra), a reference was made to the judgment rendered by a Division Bench of Hon’ble the Apex Court in ‘State of Maharashtra v. Kanchanmala Vijaysing Shirke’ 1995(5) SCC 659 and another judgment rendered by Rajasthan High Court in ‘Jaswant Singh v. State of Rajasthan’ 2004(1) SCT 612. But the reasoning adopted in the above said two judgments was not considered. The Rajasthan High Court, in Jaswant Singh v. State of Rajasthan (supra), defined vicarious liability and held that to apply the doctrine of vicarious liability, two conditions must co-exist. First, the relationship of master-servant must exist between the defendant and the person committing the wrong complained of and the second that the servant committing the wrong has acted in the course of his employment. In Jaswant Singh v. State of Rajasthan (supra), further reliance has been placed upon ‘State of Rajasthan v. Vidhyawati’ AIR 1962 Supreme Court 933, wherein Hon’ble the Apex Court has held that the State is vicariously liable for the act of the driver in case the accident had occurred during the course of employment. ‘State of Maharashtra v. Kanchanmala Vijaysing Shirke’ (supra) is a treatise regarding vicarious liability and relationship of master-servant, therefore, it will be better to extensively quote from that judgment, as the maxim of law propounded therein cannot be described in other words. The Division Bench of Hon’ble the Apex Court held as under: “9. The question of payment of compensation for motor accidents has assumed great importance during the last few decades. The road accidents have touched a new height in India as well as in other parts 9 Civil Writ Petition No.10565 of 1989 of the world. Traditionally, before the court directed payment of tort compensation, the claimant had to establish the fault of the person causing injury or damage. But of late, it shall appear from different judicial pronouncements that the fault is being read as because of someone’s negligence or carelessness. Same is the approach and attitude of the courts while judging the vicarious liability of the employer for negligence of the employee. Negligence is the omission to do something which a reasonable man is expected to do or a prudent man is expected to do. Whether in the facts and circumstances of a particular case, the person causing injury to the other was negligent or not has to be examined on the materials produced before the court. It is the rule that an employer, though guilty of no fault himself, is liable for the damage done by the fault or negligence of his servant acting in the course of his employment.” Their Lordships considered what Salmond had said in his book Law of Torts regarding master and servant relationship and further referred to Halsbury’s Laws of England on this issue. Thereafter, the above said judgment considered case law on the subject and discussion can be read as under: “11. In the case of London County Council v. Cattermoles (Garages) Ltd. (1953) 2 All ER 582, a workman was employed as a general garage hand, for moving cars by pushing them or giving guidance to the drivers. He was not competent to drive, had no licence, and had been forbidden to do so. He got into a stationary van, started the engine, drove the van and went on to the highway. On the highway he collided with the plaintiff’s van. The employers were held liable. 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. In that situation, the master cannot 10 Civil Writ Petition No.10565 of 1989 be responsible for what he does. When the act of the servant causes injury to a 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. 12. It was said in the case of Ilkiw v. Samuels (1963) 2 All ER 879 at p.998: ‘The driver of the vehicle, Waines, was employed, as I see it, not only to drive, but to be in charge of his vehicle in all circumstances during any such times as he was on duty. That means to say that, even when he was not himself sitting at the controls, he remained in charge of the lorry, and in charge as his employers’ representative. His employers must remain liable for his negligence as long as the vehicle was being used in the course of their business. As I understand the authorities, the employers escape liability if, but only if, the vehicle was, at the time of the negligent act, being used by the driver for the purpose of what has been called a ‘frolic’ of his own. That is not this case. Here, at the material time, this vehicle was in fact being used in the course of the defendants’ business.’ It was further said at p. 1005: ‘If, as in Ricketts’ case (Ricketts v. Thomas Tilling Ltd. (1915) 1 KB 644), and in the present case, the master puts the vehicle in the charge and control of his servant to be used for the purposes of the master’s business, he thereby delegates to the servant his duty so to control it that it is driven with reasonable care while being used for that purpose; and an express prohibition upon allowing any other person to drive it whilst being used for that purpose is no more than a direction as to the mode in which the 11 Civil Writ Petition No.10565 of 1989 servant shall perform the duty. It is a prohibition dealing with conduct within the sphere of employment.’ In respect of a contention that the driver to whom the vehicle had been entrusted for driving had no authority from employer to delegate the driving of the vehicle to another person and because of that the employer cannot be made vicariously liable for the negligence of someone to whom he had purported to delegate the control of the vehicle, it was said at p. 1006: ‘The duty in tort of which he was in breach was, in my view, a duty delegated to him by the defendants under his contract of employment, and for that breach the defendants are vicariously liable notwithstanding that it resulted from his breach of an express prohibition by the defendants against permitting any other person to drive, for that prohibition did not limit the sphere of his employment, but dealt with the conduct of Waines within that sphere.’ It need not be pointed out that 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 driven for the business of the employer. 13. In Staveley Iron and Chemical Co. Ltd. v. Jones (1956) 1 All ER 403, it was said that the legislation has in no way altered the standard of care which is required from workmen or employers or “that the standard can differ according to whether the workmen is being sued personally or his employer is being sued in respect of his acts or omissions in course of his employment”. 12 Civil Writ Petition No.10565 of 1989 14. In the case of Pushpabai Purshottam Udeshi v. Ranjit Ginning and Pressing Co. (P) Ltd. (1977) 2 SCC 745, it was said: (SCC pp. 756-57, para 14) ‘ ... we would like to point out that the recent trend in law is to make the master liable for acts which do not strictly fall within the term ‘in course of the employment’ as ordinarily understood. We have referred to Sitaram Motilal Kalal v. Santanuprasad Jaishankar Bhatt AIR 1966 SC 1697, where this Court accepted the law laid down by Lord Denning in Ormrod v. Crosville Motor Services Ltd. (1953) 2 All ER 753 that the owner is not only liable for the negligence of the driver if that driver is his servant acting in the course of his employment but also when the driver is, with the owner’s consent, driving the car on the owner’s business or for the owner’s purposes. This extension has been accepted by this Court. The law as laid down by Lord Denning in Young v. Edward Box and Co. Ltd.(1951)1 TLR 789, already referred to i.e. the first question is to see whether the servant is liable and if the answer is yes, the second question is to see whether the employer must shoulder the servant’s liability, has been uniformly accepted as stated in Salmond’s Law of Torts, 15th Edn., p. 606, in Crown Proceedings Act, 1947 and approved by the House of Lords in Staveley Iron and Chemical Co. Ltd. v. Jones and ICI Ltd. v. Shatwell (1964)2 All ER 999.’ From the facts of Pushpabai case, it will appear that one Purshottam Udeshi was travelling in a car which was driven by the Manager of the first respondent-Company. The car dashed against a tree resulting in the death of Purshottam. The widow and children of Purshottam filed a claim for compensation. The High Court held that the respondent-Company could not be held vicariously liable for the act of their