HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH **** CWP No.2914 of 2009 (O&M) Date of Decision: 29.08.2011 **** Jarnail Singh . . . . Petitioner VS. State of Punjab & Ors. . . . . Respondents **** CORAM : HON’BLE MR.JUSTICE SURYA KANT **** 1. Whether Reporters of local papers 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? **** Present: Mr. GS Jaswal, Advocate for the petitioner Ms. Sudeepti Sharma, DAG Punjab ***** SURYA KANT J. (ORAL) (1). The petitioner seeks quashing of the orders dated 28.11.2005/04.01.2006, 28.06.2007 & 04.07.2008 (Annexures P2, P3 & P5, respectively) dismissing him from service (Annexure P2) for causing a fatal accident and also rejecting his appeal/review petition against the said order of dismissal (Annexure P3 & P5). (2). The petitioner was appointed as a Driver in Punjab Roadways in the year 1989. He caused a fatal accident on 12.10.1991 taking away precious lives of Chanan Singh and Kashmir Kaur and leaving two others grievously injured. The petitioner was convicted by the Judicial Magistrate First Class, Kapurthala vide order dated 11.12.1993 in the CWP No.2914 of 2009.doc - 2 – criminal case registered under Section 304-A IPC and was sentenced to undergo RI for 1 ½ years besides fine etc. (3). The petitioner later on approached this Court in Criminal Revision No.655 of 1996 which was disposed of vide order dated 27.09.1996 releasing him on probation subject to his good conduct for a period of one year. (4). The petitioner during the entire period of pre and post conviction continued to serve as Driver and it appears from the orders under challenge that fortunately no other accident was caused by him. This fact has been noticed by the Joint Secretary, Transport Department, Government of Punjab in his order dated 28.06.2007 (Annexure P3) while dismissing the petitioner’s appeal. (5). During the period when the petitioner was still in service, a Division Bench of this Court vide order dated September 20, 2005 passed in CWP No.4093 of 2004 (Rishi Dev Ex.Driver v. State of Haryana & Ors.), issued the following directions: - “In the case of convicted driver, the relevant fact is not as to whether the conviction for the driver had been for an offence involving moral turpitude or not but the question to be considered is as to whether the driver CWP No.2914 of 2009.doc - 3 – involved in the accident was in fact guilty of criminal negligence and rashness in the performance of his duty. If an errant driver has been so held by the criminal Court and convicted on that basis, then of course the aforesaid conviction would be a factor which has to be taken into consideration before the said driver is put back into service for driving once again. In our considered view, the State Government is duty bound in law to consider the safety of the passenger, safety of the other road users and also of the public property before any order for reinstatement of such a convicted driver is to be made. The question of driver having not been convicted for a moral turpitude is wholly irrelevant in such matters. As a matter of fact, the finding of criminal court with regard to the negligence of driver and consequential conviction wholly actually amount to a finding with regard to the negligent performance of his duties i.e. driving by a convicted driver. However, a copy of the present judgement be sent to the Chief Secretary of Punjab, Chief Secretary of Haryana and Advisor to the Administrator of the Union Territory, Chandigarh for taking necessary action as per our observations made above with a request that necessary guidelines be issued to all concerned that in CWP No.2914 of 2009.doc - 4 – future no reinstatement of a driver convicted for an offence u/s 304-A of the Indian Penal Code be ordered merely on the ground that the offence for which he had been convicted did not involve moral turpitude. The directions contained in this judgement be complied with forthwith.” (Emphasis applied) (6). The case of the petitioner was also reviewed by the authorities in compliance to the above-reproduced directions and on the basis of his conviction under Section 304-A IPC, he was dismissed from service vide order dated 04.01.2006. The appeal/revision petition preferred by the petitioner, as noticed earlier, have also been dismissed. (7). There can indeed be no doubt that a Driver who has been held guilty of criminal negligence and rash driving, ought not be allowed to serve as a driver be that he is in Government service. The immediate and prompt action has to be taken against such delinquent Driver which may also include cancellation of his driving license. This is the precise ratio decidendi of the Division Bench decision in Rishi Dev’s case (supra), according to which the Drivers found guilty under Section 304-A IPC cannot be “reinstated CWP No.2914 of 2009.doc - 5 – in service”. The Division Bench, however, consciously and expressly clarified that its directions shall apply in future cases only. The Court never intended to re-open the old and stale cases also. The prospective directions thus save the petitioner from the adverse consequences. (8). That apart, the petitioner in the instant case has served the Department for almost 17 years before he was dismissed from service for the fatal accident caused by him in the year 1991. There is no gainsaying to observe that the relief of pension or some other monetary dues on premature/compulsory retirement is an effective financial assistance to the dependent family members of the retiree as well. This Court in Rishi Dev’s case (supra) has barred “re-instatement” of the guilty drivers which need not be construed that such drivers must always be dismissed from service. Those who have completed the pensionable service can be refused “re-instatement” by way of compulsory retirement them from service. (9). For the reasons afore-stated, the writ petition is allowed in part to the extent that the order of dismissal passed against the petitioner is modified and ordered to be converted into the order of compulsory/premature retirement from service. It is further directed that consequential arrears of pension CWP No.2914 of 2009.doc - 6 – payable to the petitioner, to the extent of the amount of compensation paid to the family of the victims shall also be deducted and the balance amount, if any, shall be paid to the petitioner within a period of three months from the date of receipt of a certified copy of this order. However, if such arrears are less than the amount of compensation, nothing more shall be deducted from the petitioner’s pension and henceforth he shall be paid full pension. (10). Ordered accordingly. Dasti. 29.08.2011 vishal shonkar (S u r y a K a n t) Judge