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2009 DIGILAW 1493 (PNJ)

Sarwan Singh v. State Of Punjab

2009-08-25

AJAI LAMBA

body2009
Judgment Ajai Lamba, J. 1. This civil writ petition has been filed under Articles 226 and 227 of the Constitution of India praying for issuance of a writ in the nature of certiorari quashing order Annexure P-12 dated 30.08.2007 and order Annexure P-13, endorsed on 05.10.2007. 2. Vide the impugned orders, the petitioner, who was serving as a Driver on the vehicle of Punjab Police, has been asked to pay 50% of the amount awarded by Motor Accident Claims Tribunal while dealing with MACT Case No. 94 of 03.11.2004 titled Karamjit Kaur and others v. Sarwan Singh and others decided on 9.4.2007. 3. Learned counsel, in the brief arguments, has contended that the petitioner cannot be held liable in view of the stand of the respondent to the effect that the petitioner was not at fault in the incident and it was on account of mechanical failure that the vehicle met with an.accident resulting in death of Head Constable Kuldip Singh. 4. Learned counsel for the respondent to the contrary has argued that the facts in regard to the incident, as pleaded on behalf of the petitioner are admitted, however, it was for the petitioner to have the Award passed by the Motor Accident Claims Tribunal set aside. The petitioner rather chose to withdraw the appeal filed in challenge to the Award. 5. The sequence of facts is required to be considered. 6. It seems that the petitioner was serving as driver on a vehicle of the Punjab Police, namely (Allwyn Nissan) bearing Registration No. PB- 1OH-9986. An accident occurred on 07.06.1996 near Octroi Check Post No. 3 at Samrala. At that point in time, the vehicle driven by the petitioner was coming from Khanna, after performance of official duties in Police Station Samrala. The deceased alongwith ASI Hakam Singh, PHG Ashok Kumar and PHG Manoj Kumar were travelling in the vehicle. 7. The petitioner/driver lost control over the vehicle which struck against the vegetable vendor cart parked on the kachha portion of the road and thereafter struck stationary truck. The front portion of the vehicle was badly damaged. Head Constable Kuldip Singh (deceased) and ASI Hakam Singh sitting on the front side received multiple injuries. H.C. Kuldip Singh died on 8.6.1996 on account of the injuries sustained in the accident. The front portion of the vehicle was badly damaged. Head Constable Kuldip Singh (deceased) and ASI Hakam Singh sitting on the front side received multiple injuries. H.C. Kuldip Singh died on 8.6.1996 on account of the injuries sustained in the accident. FIR bearing No. 34 dated 7.6.1996 came to be registered in Police Station Samrala under Sections 279, 337, 338-A, 427 IPC (later on Section 304-A IPC added). 8. The matter investigated by the police. No incriminating material indicating rash or negligent driving or culpability of the petitioner was indicated. In such circumstances, a cancellation report was filed which is dated 25.6.1996 and has been placed on record as Annexure P-3. Relevant portion of the report reads as under :- " On reaching the spot where the Allwyn Nishan (Allwin Nissan) was standing under the supervision of HC Rakesh Vinder Singh and PHG Ranjodh Singh, the driver Sarwan Singh also met there who was joined in the investigation who during the investigation told that due to opening of the streeing tierod ofAllwyn Nishatt (Allwim Nissan). The Allwyn Nishan (Allwim Nishan) became out of control and after hitting a vegetable cart further hit from the backside of a truck bearing No. HNM 2342 which was standing on kacha portion of the road caused accident and he was not at fault for the same. On 14.6.96, photographer produced the photographs and the statement of the photographer was recorded separately under Section 161 Cr.P,C. on 21.6.96. After making the arrangement of the mechanic the mechanical report that was received from Karnail Singh Mechanic, I.T.I. Patiala. Karnail Singh has mentioned in his mechanical report that tie-rod of the steering of the Allwyn (Allwim) had opened and the above said occurrence had taken place due to the opening of tie-rod. Thus from the investigation and from the statements of witnesses and from mechanical report, it is found that accident had taken place suddenly and naturally because of opening of tie-rod joint of the steering and because of which the vehicle became out of control and after hitting the vegetable cart the same struck on the backside of stationary truck and the driver is not at fault in this matter. Therefore, the cancellation report has been prepared and the same should be considered".(emphasis supplied) 9. The cancellation report has assumed finality. Therefore, the cancellation report has been prepared and the same should be considered".(emphasis supplied) 9. The cancellation report has assumed finality. It transpires that legally, on the criminal side, the petitioner has not been found driving, in rash or negligent manner. The accident has been attributed to a mechanical failure of the vehicle. The vehicle had gone out of control as tie-rod of the steering had opened/broken. The report itself is based on examination of the vehicle by mechanic namely Karnail Singh. 10. Be that as it may, the legal heirs/representatives of the deceased filed a claim petition in Motor Accident Claims Tribunal, at Ropar. It was specifically pleaded therein that the petitioner (respondent No. 1 before the Tribunal), was responsible for the accident, he having driven the vehicle in a rash and negligent manner. 11. The stand taken by the respondents before the Motor Accident Claims Tribunal is required to be specifically noticed. In paraNos. 23 and 24 of the reply filed by Sh. Jasbir Singh PPS, Deputy Superintendent of Police, District Khanna, District Ludhiana, the following has been pleaded :- "23. The contents of para No. 23 of the petition are totally denied. There is no immediate loss of money which was caused to the petitioner because H.C. Kuldip Singh deceased was the employee of answering respondent No. 2 and after his death the petitioners have been paid Ex Gratia, G.P.F. and other emoluments of the deceased Kuldip Singh after his death and the petitioners have been fully compensated by paying the dues of deceased H.C. Kuldip Singh as per Punjab Civil Services Rules Police Rules. So the petitioner cannot claim compensation from the answering respondent No. 2 as the accident took place due to the technical snag which was beyond the control of answering respondent. 24. In reply to para No. 24 of the petition, it is submitted that the contents of this para are totally wrong and a false story had been concocted for compensation. The employee of answering respondent driver. 24. In reply to para No. 24 of the petition, it is submitted that the contents of this para are totally wrong and a false story had been concocted for compensation. The employee of answering respondent driver. Sarwan Singh was neither negligent nor rash while driving the abovesaid vehicle and this fact had been clearly established by the report of Karnail Singh Instructor wherein the has stated in his statement under Section 161 Cr.P.C. as well as mentioned in his technical report that the accident took place due to the opening of joint tie-rod of steering and this act was beyond the control of answering respondent No. 2 as well as driver Sarwan Singh. The answering respondent No. 2 is not liable to pay any claim to the petitioner forthe things or acts beyond his control. The other contents of this para are specifically denied. However, detailed reply has already been given in earlier paras." 12. Perusal of the above portion indicates that the stand of the respondents in the written statement filed before the Tribunal is that the petitioner was neither negligent nor rash while driving the vehicle. This fact has been established by the report of Karnail Singh, Instructor/mechanic wherein he has stated that the accident took place due to opening of the joint of tie-rod of the steering, which act was beyond the control of the driver. The Tribunal, while dealing with issue Nos. 1 & 2 in para No. 24 of the award has held thus :- "24. Keeping in view the judgment relied upon by the Honble Supreme Court of India in Kaushnuma Begums case (supra) and Mahadeva Shettys case (supra) I am of the considered opinion that respondent No. 2 the employer of HC Kuldip Singh cannot escape from its liability to pay compensation even if the accident is the result of a mechanical failure of the vehicle in question. With these observations, both these issues are decided in favour of the claimants and against the respondents" 13. . The petitioner, in view of the findings recorded in para Nos. With these observations, both these issues are decided in favour of the claimants and against the respondents" 13. . The petitioner, in view of the findings recorded in para Nos. 21 and 22 of the award to the effect that the Tribunal was unable to accept the submission of the counsel for the respondents that the occurrence in question took place because of mechanical failure and not due to rash and negligent driving of the petitioner, preferred the first appeal against order (FAO No. 2955 of 2007 titled Sarwan Singh v. Karamjit Kaur and Others). This court while dealing with the appeal passed the following order on 13.9.2007 :- " Learned counsel for the appellant wishes to withdrawthis appeal with liberty to avail his remedy in accordance with law against the order of recovery, if any, passed by the State Government against him. The appeal stands disposed of being not pressed. As the amount payable to the claimants already stands paid, the appellant is allowed to withdraw Rs. 25,000/- (Rupees Twenty Five Thousand only) deposited at the time of filing the present appeal." 14. Impugned order Annexure P-12 has been issued by SSP Khanna to SSP Jalandhar requiring him to take necessary action for recovery of half of the awarded amount from the driver i.e. the petitioner. 15. Annexure P-13 is an order passed by SSP Jalandhar with a copy to the petitioner indicating that when the petitioner was posted as a driver on a government vehicle, had caused accident because of driving the vehicle rashly and negligently at a high speed as a result of which Head Constable Kuldip Singh had died. On a claim petition having been filed before the tribunal, compensation had been awarded which is recoverable from the petitioner. In compliance of the order Rs. 3,570/- has been ordered to be recovered every month from the salary of the petitioner. 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. 3,570/- has been ordered to be recovered every month from the salary of the petitioner. 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. The petition challenged the award by way of filing of First Appeal against Order. The stand taken by the petitioner before this Court in First Appeal against Order was that let the appeal be withdrawn to enable the petitioner to avail remedy against order of recovery, if any. Resultantly, the present petition has been filed. 19. Contention of the learned counsel for the respondent that the petitioner ought to have pursued the appeal or that the appeal had been disposed of only in view of the fact that awarded amount had already been paid to be complainant and without liberty to the petitioner to challenge the departmental action, is not acceptable in view of the fact that the issue before the Court in the First Appeal against Order was only confined to legality of the award. In view of the stand already taken and asserted by the respondents that the petitioner was not at fault, the petitioner cannot be held liable, only because he withdrew the appeal in view of peculiar facts and circumstances of the case. 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. 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 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. 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 th is 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. 24. In view of the peculiar facts and circumstances of the case noticed above, the petition is allowed, orders Annexures P-12 and P-13 are hereby quashed. Consequently, the amount already recovered from the petitioner shall be refunded back to the petitioner within two months of receipt of certified copy of the order. There shall be no order as to costs. Petition allowed.