1 S.B.CIVIL WRIT PETITION NO. 3599/08 (Vinod Kumar Vs. RSRTC & Ors.) Date of Order : 22.05.2009 Hon'ble Mr. Prakash Tatia,J. Mr. Nimesh Suthar for the petitioner. Mr. PK Lohra for the respondents. Heard learned counsel for the parties. The petitioner is aggrieved against the order dated 11.9.2007 by which services of the petitioner has been terminated by the respondents on account of petitioner's causing accident while driving as driver for the bus of the respondents. According to learned counsel for the petitioner, the petitioner was initially appointed on the post of Driver-cum- Conductor vide order dated 17.5.2005 ( Annexure.2). It is mentioned that the period of service of the petitioner is on contract basis and is appointed to work up to 30.6.2005. It will be worthwhile to mention here that in the appointment order ( Annexure.2), it has been mentioned that in regular process of selection, the petitioner was selected and his name was in the selection list. Further, relevant facts is that the first order (Annexure.2) dated 17.5.2005 discloses 2 that he was given appointment vide order dated 17.5.2005 but it was up to 30.6.2005 only i.e. for 1 ½ months only. Be that as it may be, according to both the parties, the petitioner's appointment continued till he was met with accident till he removed by order dated 11.9.2007 (Annexure.4). The petitioner's services was terminated because he met with accident on 9.9.07. Because of that accident, FIR was lodged against the petitioner and a case under Section 279, 304(A) IPC was registered. Merely because of allegation of causing accident by the petitioner and lodging the FIR against him, the petitioner's services was terminated vide order dated 11.9.2007 (Annexure.4). The petitioner faced the trial and he was acquitted by the trial court vide judgment dated 10.10.2007 in criminal case No. 519/07. The petitioner has challenged the order of the termination of service (Annexure.4) on the ground that the petitioner has already been acquitted for the charge of committing accident while on duty and department did not decided to hold any departmental enquiry so as to punish the petitioner independently. According to learned counsel for the petitioner, very basis of the order dated 11.9.07 has fallen on the ground and therefore, the order dated 11.9.07 cannot be sustained. Learned counsel for the petitioner relied upon the judgment of Division Bench delivered in DB Civil Special Appeal (Writ) No.806/2007 ( Ramraj Gurjar Vs. RSRTC & Ors.) decided on 3 22.4.2008. Accordingly to petitioner, the facts of the case of Ramraj ( Supra) are identical to the case of petitioner and Division Bench of this Court in the identical facts and circumstances of the case, set aside the order of terminating the services of said petitioner Ramraj and directed the respondents to reinstate the petitioner. Learned counsel for the petitioner also relied upon the Single Bench judgment delivered in SB Civil Writ Petition No. 1099/08 Gurmeet Singh Vs. Raj. State Road Transport Corporation & Ors. decided on 5.11.2008, wherein following the decision of Division Bench of this Court given in Ramraj's case the relief has been granted to the petitioner Gurmeet Singh in writ petition No. 1099/08. Learned counsel for the respondents vehemently submitted that petitioner was appointed on contact basis. He cannot be allowed to continue beyond the term of the contact. It is also submitted that employer's right to terminate services was inherently flowing from the contact of the appointment and services of the petitioner could have been terminated by the employer. It is also submitted that Hon'ble Apex Court in the case of Parshotam Lal Dhingra Vs. Union of India) (AIR 1958 SC 36 ( V 45 C 6) held that any and every termination of services is not a dismissal, removal or reduction in rank. A termination of service brought about by the exercise of a contractual right is not per se dismissal or removal. Likewise the termination of services by compulsory retirement in terms of a specific 4 rule regulating the conditions of service is not tantamount to the infliction of a punishment and does not attract Article, 311(2) as has also been held by this Court in Satish Chander Anand Vs. Union of India. Learned counsel for the respondents relied upon yet another judgment of Supreme Court delivered in case of State of Uttar Apradesh & Anr. Vs. Kaushal Kishore Shukla reported in (1991) 1 SCC 691 wherein it has been held that temporary government servant's termination simplicity in terms of the contact of service and rules is not punitive so as to attract Article 311(2) of the constitution of India. I considered the submissions of learned counsel for the parties and perused the facts of the case and considered the judgments relied upon by the parties. By the appointment order Annexure.2 the petitioner was appointed for the short period from 17.5.2005 to 30.6.2005 but admittedly, this appointment was given after the due process of selection under taken by the non-petitioner which is clear from the words used in Annexure.2, wherein it has been mentioned that penal was prepared for selected candidates and petitioner being in the penal of eligible candidates to get the appointment he is being appointed. The service which was started on 7.5.2005 continued for more than 2 years which is apparent as well as admitted by the respondents. The petitioner service was terminated by specifically mentioning that 5 petitioner while on duty, caused accident in which one person died and criminal case was registered against the petitioner and further more, it has been specifically mentioned that by this act of the petitioner, petitioner has violated the term of the appointment and because of this reason, of violation of terms of the appointment, it has been stated that petitioner's services has been terminated. It is nowhere mentioned in the order that petitioner violated which of the service condition. The petitioner was never found guilty in departmental enquiry as no departmental enquiry was ever conducted by the respondent employer, yet petitioner's service has been terminated with stigma that he caused the accident in which one person died. In criminal case petitioner has been acquitted. Firstly, very reason for which petitioner's service has been terminated, is not by the exercise of contractual rights of the employers simplicitor secondly there is no findings against the petitioner that he caused accident. Even if fact of accident is admitted even then in the said accident the fault of the petitioner cannot be presumed. The meeting of the accident by any vehicle of the respondents which was driven by the employee may be due to the gross negligence of the other driver/person's negligence also. In that situation there cannot arise any question of punishing the employee as it would be punishing the employee because of the fault of others. Be that as it may be, the facts referred above are 6 exactly the same facts as were in the case before the Division Bench of this Court in Ramraj's case. In that case also the petitioner was appointed as driver-cum-conductor initially for the period 30.9.2005 to 31.12.2005 purely on temporary basis on the terms and conditions set out and his services were extended from time to time and on 8.2.2007 a criminal case was registered against him and because of that, the service's of petitioner was terminated and ultimately he was acquitted in the criminal case and no departmental enquiry was conducted against the said petitioner then this Court after considering the judgment of Apex Court delivered in case of Hari Ram Maurya Vs. Union of India & Ors. (2006)9 SCC 167, set aside the order of termination of the said petitioner dated 17.2.2007 and directed to respondents to reinstate the petitioner immediately and in no case later than 15 days from the date of production of the order of this Court, however, he has been denied all the backwages. The judgement relied upon by the learned counsel for the respondents had entirely different scope therefore, those judgment do not cover and case of the petitioner and the petitioner's case is squarely covered by Division Bench judgement. Hence, writ petition is allowed. The order of termination of services of the petitioner dated 11.9.2007 is quashed and set aside. The service of petitioner is restored to its original position which was 7 before 11.9.2007. The respondents are directed to reinstate the petitioner immediately and in no case later than 15 days from the date of production of the order of this Court by the petitioner before the respondents. The petitioner shall not be entitled to the backwages. The respondents, however, shall have liberty for holding any disciplinary enquiry against the petitioner as per law, if they desire to do so and in that event the disciplinary enquiry shall not be influenced by the present order. (PRAKASH TATIA),J. arti