JUDGMENT Hon’ble Sabhajeet Yadav, J.—By this petition, the petitioner has challenged the order of recovery dated 25.6.2008 passed by respondent No. 2 and sought further relief of mandamus directing the respondent to refund the amount already recovered from the petitioner in pursuance of the impugned order dated 25.6.2008 with interest of 12% per annum. 2. The brief facts leading to the case are that the petitioner while driving a bus of U.P.S.R.T.C. hereinafter referred to as ‘the Corporation’ in the night of 2nd and 3rd April, 1999 had met with an accident due to rash and negligent driving of Dumper Truck No. U.P.78 N 3879 coming from opposite side, resulting which a passenger namely Mohan Lal sitting in his bus had received injuries and ultimately died due to said injuries. Immediately after the said accident the Varistha Kendra Prabhari, U.P.S.R.T.C, Jhansi had inspected the spot in morning of 3rd April, 1999, and submitted a report regarding the aforesaid accident wherein he had very categorically held that the petitioner was not guilty of accident in question. A true copy of the said report is on record as Annexure-3 of the writ petition. 3. It is stated that after lapse of some time the dependents of Late Mohan Lal had filed a claim petition before Motor Accident Claims Tribunal, Jhansi, in which owner and driver of the aforesaid Dumper Truck were also impleaded as opposite parties along with the petitioner and Regional Manager, U.P.S.R.T.C., Jhansi. But the Corporation was not impleaded as opposite party. The said claim petition was registered as MAC Case No. 130 of 1999, Asha Ram and others v. Bhanu Prakash and others. In the said claim petition a written statement was filed by the respondent No. 2 on his behalf as well as on behalf of the petitioner stating therein that the petitioner was not at all guilty of negligence leading to the said accident. The petitioner had also appeared before Claims Tribunal in the witness box and denied his negligence which could be said to have led the aforesaid accident. The aforesaid claim petition was ultimately allowed by the Motor Accident Claim Tribunal/4th A.D.J., Jhansi vide its judgement and order dated 2.3.2001, whereby claims tribunal has awarded a sum of Rs. The petitioner had also appeared before Claims Tribunal in the witness box and denied his negligence which could be said to have led the aforesaid accident. The aforesaid claim petition was ultimately allowed by the Motor Accident Claim Tribunal/4th A.D.J., Jhansi vide its judgement and order dated 2.3.2001, whereby claims tribunal has awarded a sum of Rs. 2,81,500/- along with 8% simple interest per annum compensation to the claimants/dependents heirs of deceased passenger, out of which half of the money was liable to be paid by insurer of the Dumper truck, remaining half was to be paid by officer and employer of the Corporation. A copy of aforesaid judgement and award is on record as Annexure-8 of the writ petition. 4. It is further stated that the petitioner is poor driver and that is why his rights were being defended by the respondents in the said claim petition. He is not in a position to file an appeal against the aforesaid award whereas the corporation could and can file an appeal against the said award, but the respondent No. 1 had issued show cause notice to the petitioner on 19.5.2001 solely on the ground that the petitioner was negligently driving the bus involved in the said accident. By said notice the respondent No. 1 had asked the petitioner to show cause why the liability for payment of compensation arising out of judgement and award dated 2.3.2001 be not fastened with him. The petitioner had replied the said notice disputing his liability for payment of compensation arising out of award made in the said claim petition, but without properly appreciating the contentions raised by petitioner in his reply of show cause notice, the impugned order dated 25.6.2008 was passed by respondent No. 2, whereby half of the compensation to be paid to the heirs of late Mohan Lal is directed to be recovered from the petitioner, hence this petition. 5. Heard Sri Ajit Kumar, learned counsel for the petitioner and Sri Rahul Anand Gaur, learned counsel for the Corporation. The order which I propose to pass in the writ petition I need not call for any counter-affidavit in the writ petition from respondents. 6. 5. Heard Sri Ajit Kumar, learned counsel for the petitioner and Sri Rahul Anand Gaur, learned counsel for the Corporation. The order which I propose to pass in the writ petition I need not call for any counter-affidavit in the writ petition from respondents. 6. Sri Ajit Kumar, learned counsel for the petitioner has submitted that since the Corporation has established and maintained a fund under Section 27 of the Road Transport Corporation Act 1950 and under Section 146 (3) of Motor Vehicles Act, 1988 (hereinafter referred to as ‘the 1988 Act’) for discharging the liabilities arising out of use of motor vehicle in a public place by the Corporation and/or its employee which may incur to third party, therefore, no show cause notice could be given to the petitioner, who is an employee (driver) of the Corporation asking him to indemnify the loss caused to the Corporation arisen out of use of vehicle of the Corporation involved in the accident and incurred liability of Corporation to third party. 7. Learned counsel for the petitioner further submitted that once the employers have had admitted in unequivocal terms that employee sought to be proceeded against with disciplinary inquiry was not guilty of negligent driving of the bus involved in the said accident, it was not open for them to issue show cause notice against the petitioner for negligent driving of the bus in question, as the aforesaid act and conduct of the respondents operate as estoppel against them, thus impugned order passed against the petitioner to discharge the liability of the Corporation and indemnify the loss caused to it on account of payment of compensation awarded by the Claims Tribunal to the heirs of Late Mohan Lal, is not sustainable in the eye of law, as the respondents are bound by doctrine of estoppel operate against them. 8. 8. Lastly, learned counsel for the petitioner submits that in the claim petition filed by heirs of deceased involved in the accident in question the Corporation was not impleaded as party, therefore, the claim petition was not maintainable and in case the Corporation would have been impleaded as party therein, in that eventuality being owner of the offending motor vehicle the liability for payment of the compensation to the heirs of deceased Mohan Lal would have been fastened with the Corporation and they could be paid from the fund established under Section146 (3) of 1988 Act, as such petitioner being employee of the Corporation would not have been called for to indemnify the loss caused to it arisen out of payment of compensation to the heirs of deceased involved in the accident in question. 9. Contrary to it learned counsel appearing for the Corporation has submitted that assertions made in the written statement filed by the Corporation in the said claim petition were not accepted by the Claims Tribunal and contrary thereto the Tribunal has found that the bus of the Corporation involved in the said accident was negligently driven by the driver of the Corporation and held him guilty of negligence and that once the petitioner was found guilty of negligent driving of the bus of the Corporation, it is not open for him to contend that the Corporation cannot proceed against him for his negligent driving of the bus of the Corporation which is misconduct and ultimately caused huge pecuniary loss to the Corporation liable to be recovered from the petitioner. 10. In view of the rival submission of learned counsel for the parties, an interesting question arises for consideration is that in given facts and circumstances of the case as to whether the petitioner being a driver of vehicle of the Corporation held guilty of negligent driving of the bus of Corporation by Claims Tribunal is liable to indemnify the loss caused to the Corporation on account of payment of compensation awarded by the Claims Tribunal in said accident to the legal representative and heirs of deceased/victim of said accident? 11. In this connection, it is pointed out that the answer of the aforesaid question cannot be found out from mere reading of the provisions of law suggested by learned counsel for the petitioner nevertheless I have to examine those provisions carefully. 11. In this connection, it is pointed out that the answer of the aforesaid question cannot be found out from mere reading of the provisions of law suggested by learned counsel for the petitioner nevertheless I have to examine those provisions carefully. First of all it is necessary to examine Section 27 of Road Transport Corporations Act 1950, which reads as under : “27. Fund of the Corporation.—(1) Every Corporation shall have its own fund and all receipts of the Corporation shall be carried thereto and all payments by the Corporation shall be made therefrom. (2) Except as otherwise directed by the State Government, all moneys belonging to that fund shall be deposited in the Reserve Bank of India or with the agents of the Reserve Bank of India [or with the corresponding new banks constituted under Section 3 of the Banking Companies (Acquisition and Transfer of Undertakings) Act, 1970, or Section 3 of Banking Companies (Acquisition and Transfer of Undertakings) Act, 1980 or invested in such securities as may be approved by the State Government.” 12. From a careful reading of the aforesaid provisions of the Act, it is clear that every corporation shall have its own fund and all the receipts of the corporation shall be kept therein and all the payments by the corporation shall be made therefrom and all the monies belonging to that fund shall be deposited according to the provisions of sub-section (2) of Section 27 of the said Act. These provisions, in my considered opinion, do not have any relevance to the question in controversy involved in the instant case. 13. Now coming to the provisions of Section 146 of the Motor Vehicle Act which are extracted as under : “146. These provisions, in my considered opinion, do not have any relevance to the question in controversy involved in the instant case. 13. Now coming to the provisions of Section 146 of the Motor Vehicle Act which are extracted as under : “146. Necessity for insurance against third party risk.—(1) No person shall use, except as a passenger, or cause or allow any other person to use, a motor vehicle in a public place, unless there is in force in relation to the use of the vehicle by that person or that other person, as the case may be, a policy of insurance complying with the requirements of this Chapter : Provided that in the case of a vehicle carrying, or meant to carry, dangerous or hazardous goods, there shall also be a policy of insurance under the Public Liability Insurance Act, 1991 (6 of 1991)] Explanation.—A person driving a motor vehicle merely as a paid employee, while there is in force in relation to the use of the vehicle no such policy as is required by this sub-section, shall not be deemed to act in contravention of the sub-section unless he knows or has reason to believe that there is no such policy in force. (2) Sub-section (1) shall not apply to any vehicle owned by the Central Government or a State Government and used or Government purposes unconnected with any commercial enterprise. (3) The appropriate Government may, by order, exempt from the operation of sub-section (1) any vehicle owned by any of the following authorities, namely : (a) the Central Government or a State Government, if the vehicle is used for Government purposes connected with any commercial enterprise; (b) any local authority; (c) any State transport undertaking : Provided that no such order shall be made in relation to any such authority unless a fund has been established and is maintained by that authority in accordance with the rules made in that behalf under this Act for meeting any liability arising out of the use of any vehicle of that authority which that authority or any person in its employment may incur to third parties.” 14. From a careful reading of the provisions of Section 146 of the Act 1988, it is clear that sub-section (1) of Section 146 creates a bar in respect of use of motor vehicle by a person or other persons in a public place except as a passenger unless the vehicle is covered by policy of insurance complying with the requirement of Chapter XI of the 1988 Act. By sub-section (2), the provisions of sub-section (1) are made inapplicable only in respect of any vehicle owned by Central Government or a State Government, which is used for Government purposes unconnected with any commercial enterprise. Although sub-section (3) of Section 146 provides that appropriate Government may, by order, exempt from the operation of sub-Section (1) any vehicle owned by, (a) Central Government or a State Government, if the vehicle is used for Government purposes connected with any commercial enterprise; (b) any local authority; and (c) any State transport undertaking, provided a fund is established and is maintained by that authority in accordance with the rules made in that behalf under this Act for meeting any liability arising out of use of any vehicle of that authority, which that authority or any person in its employment may incur to third parties. It implies that unless a fund is established and is maintained by the authorities referred above to meet any liability arising out of use of any vehicle of that authority, which that authority or any person in its employment may incur to third parties, the exemption from application of provisions of Section 146 (1) cannot be granted by the appropriate Government and nothing more. 15. The aforesaid provisions, in my considered opinion, are intended to create a bar in respect of use of motor vehicle in a public place unless it is covered by Insurance Policy, so that any liability arising out of use of Motor Vehicles in a public place by the owner of the vehicle or any other person in his employment incurred to third party, can be readily discharged by Insurance Company without causing any delay in the matter. Thus, the purpose and object of the establishment and maintaining the fund under Section 146(3) of the Act by the aforesaid authorities including the Corporation, appears to be that the third party who is entitled to receive compensation from the Corporation shall receive the same, as soon as award is made by the Claims Tribunal in his favour, from a fund already established and maintained by the Corporation, otherwise beneficial object of the legislation would be defeated. Therefore, merely on account of establishment and maintenance of such fund by the corporation, in my opinion, it cannot be held that the petitioner being employee of the Corporation stand absolved from the liability arising out of his negligent driving of the bus of the Corporation, and cannot be asked to indemnify the loss suffered by Corporation, thus the submission of learned counsel for the petitioner in this regard appears to be misplaced and cannot be accepted. 16. Now further question arises for consideration is that as to whether negligent driving of the bus of the Corporation by the petitioner constitutes misconduct warranting disciplinary action against him? In this connection reference can be made to a decision of Hon’ble Apex Court, wherein earlier decisions of Apex Court and High Courts have been noticed. 17. In Union of India and others v. J. Ahmed, AIR 1979 SC 1022 , a question as to what generally constitutes misconduct specially in the context of disciplinary proceedings entailing penalty has been dealt with by Hon’ble Apex Court in para 11 and 12 of the decision as under : “11. Code of conduct as set out in the Conduct Rules clearly indicates the conduct expected of a member of the service. It would follow that that conduct which is blameworthy for the Government servant in the context of Conduct Rules would be misconduct. If a servant conducts himself in a way inconsistent with due and faithful discharge of his duty in service, it is misconduct (see Pearce v. Foster) (1886) 17 QBD 536 (at P. 542). A disregard of an essential condition of the contract of service may constitute misconduct (see Laws v. London Chronicle (Indicator Newspapers), (1959) 1 WLR 698. If a servant conducts himself in a way inconsistent with due and faithful discharge of his duty in service, it is misconduct (see Pearce v. Foster) (1886) 17 QBD 536 (at P. 542). A disregard of an essential condition of the contract of service may constitute misconduct (see Laws v. London Chronicle (Indicator Newspapers), (1959) 1 WLR 698. This view was adopted in Sharda Prasad Onkarprasad Tiwari v. Divisional Supdt., Central Railway, NagpurDivsion, Nagpur, 61 Bom LR 1596 : ( AIR 1961 Bom 150 ) and Satubha K. Vaghela v. Moosa Raza, (1969) 10 Guj LR 23. The High Court has noted the definition of misconduct in Stroud’s Judicial Dictionary which runs as under : “Misconduct means, misconduct arising from ill motive; acts of negligence, errors of judgment, or innocent mistake, do not constitute such misconduct.” In industrial jurisprudence amongst others, habitual or gross negligence constitute misconduct but in Management, Utkal Machinery Ltd. v. Workmen, Miss Shanti Patnaik, (1966) 2 SCR 434 : AIR 1966 SC 1051 , in the absence of standing orders governing the employee’s undertaking, unsatisfactory work was treated as misconduct in the context of discharge being assailed as punitive. In S. Govinda Menon v. Union of India, (1967) SCR 566 : AIR 1967 SC 1274 , the manner in which a member of the service discharged quasi judicial function disclosing abuse of power was treated as constituting misconduct for initiating disciplinary proceedings. A single act of omission or error of judgment would ordinarily not constitute misconduct thought if such error or omission results in serious or atrocious consequences the same may amount to misconduct as was held by this Court in P.H. Kalyani v. Air France, Calcutta, (1964) 2 SCR 104 : AIR 1963 SC 1756 , wherein it was found that the two mistakes committed by the employee while checking the loadsheets and balance charts would involve possible accident to the aircraft and possible loss of human life and, therefore, negligence in work in the context of serious consequences was treated as misconduct. It is, however, difficult to believe that lack of efficiency or attainment of highest standards in discharge of duty attached to public office would ipso facto constitute misconduct. It is, however, difficult to believe that lack of efficiency or attainment of highest standards in discharge of duty attached to public office would ipso facto constitute misconduct. There may be negligence in performance of duty and a lapse in performance of duty or error of judgment in evaluating the developing situation may be negligence in discharge of duty but would not constitute misconduct unless the consequences directly attributable to negligence would be such as to be irreparable or the resultant damage would be so heavy that the degree of culpability would ;be very high. An error can be indicative of negligence and the degree of culpability may indicate the grossness of the negligence. Carelessness can often be productive of more harm than deliberate wickedness or malevolence. Leaving aside the classic example of the sentry who sleeps at his post and allows the enemy to slip through, there are other more familiar (examples) instances of which (are) a railway cabin man signaling in a train on the same track where there is a stationary train causing headlong collision; a nurse giving intravenous injection which ought to be given intramuscular causing instantaneous death; a pilot overlooking an instrument showing snag in engine and the aircraft crashing causing heavy loss of life. Misplaced sympathy can be a great evil (see Navinchandra Shakerchand Shah v. Manager, Ahmedabad Coop. Department Stores Ltd., (1978) 19 Guj LR. 108 at p. 120) . But in any case, failure to attain the highest standard of efficiency in performance of duty permitting an inference of negligence would not constitute misconduct nor for the purpose of Rule 3 of the Conduct Rules as would indicate lack of devotion to duty. 12.The High Court of the opinion that misconduct in the context of disciplinary proceeding means misbehavior involving some form of guilty mind or mens-rea. We find it difficult to subscribe to this view because gross of habitual negligence in performance of duty may not involve mens-rea but may still constitute misconduct for disciplinary proceedings. 18. In view of aforestated statement of law I am of the considered opinion that the expression ‘misconduct’ does not necessarily involve ill motives or mens-rea as necessary concomitant of it. 18. In view of aforestated statement of law I am of the considered opinion that the expression ‘misconduct’ does not necessarily involve ill motives or mens-rea as necessary concomitant of it. There may be misconduct without any misbehavior involving some form of guilty mind or mens-rea such as gross or habitual negligence in performance of duty attached to a particular post may not involve mens-rea but may still constitute misconduct warranting disciplinary action. Negligence or recklessness in discharge of duty and a lapse in performance of duty or error of judgment of an employee may also be treated to be misconduct if consequences directly attributable to such negligence would be such as to be irreparable or the resultant damage would be so heavy; that the degree of culpability would be very high. A single act of omission or error of judgment would ordinarily not constitute misconduct though if such error or omission results in serious or atrocious consequences, the same may amount to misconduct. In my opinion, the act of omission or negligence of an employee may also be examined from the angle of his duties attached to a particular post and consequences directly attributable to such negligence, because of the simple reason that the same and similar acts of omission of employees working on different posts discharging different duties may cause different degrees of misconduct. It is possible that negligence of an employee working on one post may cause insignificant or negligible or no damage or loss, whereas on another post such negligent act may cause very heavy loss or damage and lead to a serious consequence. Therefore, while taking a decision, as to whether particular act of omission and/or negligence of an employee working on a particular post, is misconduct or not, the authorities are required to examine the said issue from aforestated angles, and no hard and fast rule in a straitjacket formula can be evolved by the Court in this regard. 19. Therefore, while taking a decision, as to whether particular act of omission and/or negligence of an employee working on a particular post, is misconduct or not, the authorities are required to examine the said issue from aforestated angles, and no hard and fast rule in a straitjacket formula can be evolved by the Court in this regard. 19. Thus testing the issue on the anvil of the aforesaid test, having regard to the post of a driver of a motor vehicle of the corporation and duties attached with the said post, I am of the considered opinion that there can be no scope for doubt to hold that the negligence in driving of motor vehicle by the driver of the Corporation, as an employee of the corporation would constitute misconduct warranting disciplinary action against him. However, the degree or gravity of such misconduct would vary from case to case and would dependent upon the consequences directly attributable to such negligence. 20. Besides the aforesaid consequence, the act of rash or negligent driving of motor vehicle, causing death of any person may also warrant punishment with imprisonment of either description for a term which may extend to two years or with fine or with both under Section 304-A of the Indian Penal code. Therefore, while working as driver of a bus of the corporation, if the driver causes death of a person, consequently, he is subjected to a criminal prosecution, in such circumstances, the question arises for consideration is that as to whether, the disciplinary inquiry and criminal prosecution both shall proceed simultaneously, or during the pendency of criminal trial the disciplinary inquiry against such driver shall be stayed? 21. The law is well settled on the point and same is explained herein after. The first decision of Hon’ble Apex Court on the question in issue was rendered in Delhi Cloth and General Mills Ltd. v. Kushal Bhan, (1960) 3 SCR 227 : AIR 1960 SC 806 : (1960) 1 Lab LJ 520, in which it was observed as under (para 3 of AIR) : “It is true that very often employers stay enquiries pending the decision of the criminal trial Courts and that is fair; but we cannot say that principles of natural justice require that an employer must wait for the decision at least of the criminal trial Court before taking action against an employee. In Shri Bimal Kanta Mukherjee v. Messrs. Newsman’s Printing Works, 1956 Lab AC 188, this was the view taken by the Labour Appellate Tribunal. We may, however, add that if the case is of a grave nature of involves questions of fact or law, which are not simple, it would be advisable for the employer to await the decision of the trial Court, so that the defence of the employee in the criminal case may not be prejudiced.” 22. This was followed by Hon’ble Apex Court in Tata Oil Mills Co, Ltd. v. Workmen, (1964) 7 SCR 555 : AIR 1965 SC 155 , in which it was, inter alia, laid down as under (para 9 of AIR) : “There is yet another point which remains to be considered. The Industrial Tribunal appears to have taken the view that since criminal proceedings had been started against Raghavan, the domestic enquiry should have been stayed pending the final disposal of the said criminal proceedings. As Hon’ble Apex Court has held in the Delhi Cloth and General Mills Ltd. v. Kushal Bhan, AIR 1960 SC 806 , it is desirable that if the incident giving rise to a charge framed against a workman in a domestic enquiry is being tried in a criminal Court, the employer should stay the domestic enquiry pending the final disposal of the criminal case.” 23. The question was cropped up again with a new angle in Jang Bahadur Singh v. Baij Nath Tiwari, (1969) 1 SCR 134 : AIR 1969 SC 30 , wherein it was contended that initiation of disciplinary proceedings during the pendency of a criminal case on the same facts amounted to contempt of Court. This plea was rejected by Hon’ble Apex Court while making observation as under (para 3 of AIR) : “The issue in the disciplinary proceedings is whether the employee is guilty of the charges on which it is proposed to take action against him. The same issue may arise for decision in a civil or criminal proceeding pending in a Court. But the pendency of the Court proceeding does not bar the taking of disciplinary action. The power of taking such action is vested in the disciplinary authority. The civil or criminal Court has no such power. The same issue may arise for decision in a civil or criminal proceeding pending in a Court. But the pendency of the Court proceeding does not bar the taking of disciplinary action. The power of taking such action is vested in the disciplinary authority. The civil or criminal Court has no such power. The initiation and continuation of disciplinary proceedings in good faith is not calculated to obstruct or interfere with the course of justice in the pending Court proceeding. The employee is free to move the Court for an order restraining the continuance of the disciplinary proceedings. If he obtains a stay order, a wilful violation of the order would of course amount to contempt of Court. In the absence of a stay order the disciplinary authority is free to exercise its lawful powers.” 24. These decisions indicate that though it would not be wrong in conducting two parallel proceedings, one by way of disciplinary action and the other in the criminal Court, still it would be desirable to stay the domestic inquiry if the incident giving rise to a charge framed against the employee in a domestic inquiry is being tried in a criminal Court. 25. The case law was reviewed by Hon’ble Apex Court Court in Kusheshwar Dubey v. M/s. Bharat Coking Coal Ltd., (1988) 4 SCC 319 : 1988 Supp (2) SCR 821 : AIR 1988 SC 2118 wherein it was laid down as under (para 6 of AIR) : “The view expressed in the three cases of Hon’ble Apex Court seem to support the position that while there could be no legal bar for simultaneous proceedings being taken, yet, there may be cases where it would be appropriate to defer disciplinary proceedings awaiting disposal of the criminal case. In the latter class of cases, it would be open to the delinquent employee to seek such an order of stay or injunction from the Court. Whether in the facts and circumstances of particular case there should or should not be such simultaneity of the proceedings would then receive judicial consideration and the Court will decide in the given circumstances of particular case as to whether the disciplinary proceedings should be interdicted, pending criminal trial. Whether in the facts and circumstances of particular case there should or should not be such simultaneity of the proceedings would then receive judicial consideration and the Court will decide in the given circumstances of particular case as to whether the disciplinary proceedings should be interdicted, pending criminal trial. As we have already stated that it is neither possible nor advisable to evolve a hard and fast, strait-jacket formula valid for all cases and of general application without regard to the particularities of the individual situation.” 26. In Nelson Motis v. Union of India, (1992) 4 SCC 711 : 1992 Supp (1) SCR 325 : AIR 1992 SC 1981 , Hon’ble Apex Court has held that the disciplinary proceedings can be legally continued even where the employee is acquitted in a criminal case as the nature and proof required in a criminal case are different from those in the departmental proceedings. The observations made in this regard are as under (para 5 of AIR) : “So far the first point is concerned, namely whether the disciplinary proceedings could have been continued in the face of the acquittal of the appellant in the criminal case, the plea has no substance whatsoever and does not merit a detailed consideration. The nature and scope of a criminal case are very different from those of a departmental disciplinary proceeding and an order of acquittal, therefore, cannot conclude the departmental proceedings. Besides, the Tribunal has pointed out that the acts which led to the initiation of the departmental disciplinary proceeding were not exactly the same which were the subject matter of the criminal case." 27. The entire case law was reviewed once again by Hon’ble Apex Court in State of Rajasthan v. B.K. Meena, (1996) 6 SCC 417 : AIR 1997 SC 13 : (1997) 1 Lab LJ 746, wherein it was observed as under (para 14 of AIR) : “It would be evident from the above decisions that each of them starts with the indisputable proposition that there is no legal bar for both proceedings to go on simultaneously and then say that in certain situation, it may not be ‘desirable’, ‘advisable’ or ‘appropriate’ to proceed with the disciplinary enquiry when a criminal case is pending on identical charge. The staying of disciplinary proceedings, it is emphasised, is a matter to be determined having regard to the facts and circumstances of a given case and that no hard and fast rules can be enunciated in that behalf. The only ground suggested in the above decisions as constituting a valid ground for staying the disciplinary proceedings is that ‘the defence of the employee in the criminal case may not be prejudiced.’ This ground has, however, been hedged in by providing further that this may be done in cases of grave nature involving complicated questions of fact and law. In our respectful opinion, it means that not only the charges must be grave but that the case must involve complicated questions of law and fact.” 28. In para 17 of the said decision Hon’ble Apex Court has further observed as under : “There is yet another reason. The approach and the objective in the criminal proceedings and the disciplinary proceedings is altogether distinct and different. In the disciplinary proceedings, the question is whether the respondent is guilty of such conduct as would merit his removal from service or a lesser punishment, as the case may be, whereas in the criminal proceedings the question is whether the offences registered against him under the Prevention of Corruption Act (and the Indian Penal Code, if any) are established and, if established, what sentence should be imposed upon him. The standard of proof, the mode of enquiry and the rules governing the enquiry and trial in both the cases are entirely distinct and different. Staying of disciplinary proceedings pending criminal proceedings, to repeat, should not be a matter of course but a considered decision. Even if stayed at one stage, the decision may require reconsideration if the criminal case gets unduly delayed.” 29. In another case, namely, Depot Manager, Andhra Pradesh State Road Transport Corpn. v. Mohd. Yousuf Miyan, (1997) 2 SCC 699 : AIR 1997 SC 2232 , again it was held by the Apex Court that there is no bar to proceed simultaneously with the departmental inquiry and trial of a criminal case unless the charge in the criminal case is of a grave nature involving complicated questions of fact and law. 30. The aforesaid decisions have been again examined by Hon’ble Apex Court in Capt. 30. The aforesaid decisions have been again examined by Hon’ble Apex Court in Capt. M. Paul Anthony v. Bharat Gold Mines Ltd. and another, AIR 1999 SC 1416 and after analysing the aforesaid earlier decisions, Hon’ble Apex Court has deduced 5 propositions in para 22 of the decision as under : “(i) Departmental proceedings and proceedings in a criminal case can proceed simultaneously as there is no bar in their being conducted simultaneously, though separately. (ii) If the departmental proceedings and the criminal case are based on identical and similar set of facts and the charge in the criminal case against the delinquent employee is of a grave nature which involves complicated questions of law and fact, it would be desirable to stay the departmental proceedings till the conclusion of the criminal case. (iii) Whether the nature of a charge in a criminal case is grave and whether complicated questions of fact and law are involved in that case, will depend upon the nature of offence, the nature of the case launched against the employee on the basis of evidence and material collected against him during investigation or as reflected in the charge sheet. (iv) The factors mentioned at (ii) and (iii) above cannot be considered in isolation to stay the departmental proceedings but due regard has to be given to the fact that the departmental proceedings cannot be unduly delayed. (v) If the criminal case does not proceed or its disposal is being unduly delayed, the departmental proceedings, even if they were stayed on account of the pendency of the criminal case, can be resumed and proceeded with so as to conclude them at an early date, so that if the employee is found not guilty his honour may be vindicated and in case he is found guilty, administration may get rid of him at the earliest.” 31. These principles enunciated by Apex Court are still holding the field as there is nothing to indicate that in any subsequent decision, the Hon’ble Apex Court has detracted from the aforesaid view taken in Capt. M. Paul Anthony’s case. 32. Thus, a survey of the aforesaid case law indicates that there is no legal bar for both proceedings to go on simultaneously and only in certain situation it may not be desirable or appropriate to proceed with the disciplinary inquiry when a criminal case is pending on identical charge. M. Paul Anthony’s case. 32. Thus, a survey of the aforesaid case law indicates that there is no legal bar for both proceedings to go on simultaneously and only in certain situation it may not be desirable or appropriate to proceed with the disciplinary inquiry when a criminal case is pending on identical charge. However, staying of disciplinary proceedings cannot be and should not be a matter of course, instead thereof, it is matter to be determined having regard to the facts and circumstances of a given case and no hard and fast rule can be evolved in that behalf. The only ground suggested in decisions referred herein before, as constitutes a valid ground for staying the disciplinary proceedings is that, the defence of employee in criminal case may not be prejudiced. This ground is however further subjected to restriction and limitation that this may be done in cases of grave nature involving complicated questions of law and fact. It means that not only the charges must be grave but that the case must also involve complicated question of law and fact. Therefore having regard to the nature of offence under Section 304-A, I.P.C. in my considered opinion it is not desirable to stay disciplinary inquiry against driver of motor vehicle involved in an accident causing death of a person on the ground that a criminal case is pending against him, under Section 304-A, I.P.C. for simple reason that the charge under said provision of I.P.C. Cannot be said to be of grave nature. 33. Now further questions arise for consideration are that as to whether aforesaid proposition of law in respect of disciplinary inquiry in pending criminal trial can be imported in cases of pending claim petition filed by the victims or heir of decease of motor accident and whether the disciplinary inquiry can be deferred against erring driver of a motor vehicle till the disposal of claim petition before claims tribunal? 34. 34. In this connection, it is to be noted as stated herein before that desirability of staying disciplinary proceeding during pendency of criminal case against the employee on identical charge rests on the ground that defence of employee in criminal case may not be prejudiced but that too is circumscribed by further restriction and limitation that stay of disciplinary proceeding would be desirable only where a criminal case of grave nature involving complicated questions of law and fact is pending against employee. 35. It is also well settled that claim petition filed by victims or heirs of deceased involved in motor accident before Claims Tribunal is neither identical to the criminal case nor identical to a civil case. In a criminal case, in order to have conviction, the case is to be proved beyond reasonable doubt, whereas in civil case, the matter is to be decided on the basis of preponderance of evidence, but in claims before the Motor Accident Claims Tribunal, the standard of proof is much below than what is required in criminal case as well as in civil case. It is no doubt true that there must be some material on the basis of which the Tribunal can arrive or decide things necessary to be decided for awarding compensation but the Tribunal is not expected to adopt nicety of a civil or criminal case. It is basically a summary inquiry to be conducted by the Tribunal under the provisions of Motor Vehicle Act. Thus, the standard of proof of criminal criminal case based on beyond reasonable doubt and standard of proof of a civil case rests on preponderance of evidence are not applicable in such a claim petition. Therefore, I am of the opinion that the analogy of pendency of criminal case or trial cannot be imported for proceedings with the disciplinary inquiry against erring driver simultaneously with the inquiry under claim petition. 36. Therefore, I am of the opinion that the analogy of pendency of criminal case or trial cannot be imported for proceedings with the disciplinary inquiry against erring driver simultaneously with the inquiry under claim petition. 36. Assuming for the sake of argument that defence of owner or driver of motor vehicle can be prejudiced in pending claim petition before the Claims Tribunal on account of parallel simultaneous proceeding with the disciplinary inquiry against erring driver of motor vehicle, even in that regard it would be useful to examine the relevant provisions of the Motor Vehicle Act where the claimant is not required to prove any wrongful act or neglect or default of the owner of the vehicle concerned or of any other person and the cases where the claimant is required to prove default or negligent driving of the motor vehicle for success of his/her claim for compensation before Claims Tribunal. 37. Section 140 of the Motor Vehicles Act deals with liability without fault in certain cases which reads as under : “140. Liability to pay compensation in certain cases on the principle of no fault.—(1) Where death or permanent disablement of any person has resulted from an accident arising out of the use of a motor vehicle or motor vehicles, the owner of the vehicle shall, or, as the case may be, the owners of the vehicles shall, jointly and severally, be liable to pay compensation in respect of such death or disablement in accordance with the provisions of this section. (2) ............................. (3) In any claim for compensation under sub-section (1), the claimant shall not be required to plead and establish that the death or permanent disablement in respect of which the claim has been made was due to any wrongful act, neglect or default of the owner or owners of the vehicle or vehicles concerned or of any other person. (4) ............................. (5) ............................” 38. (4) ............................. (5) ............................” 38. Section 163-A deals with special provisions as to payment of compensation on structured formula basis wherein any claim for compensation the claimant is not required to plead or establish that the death or permanent disablement in respect of which the claim has been made was due to any wrongful act or neglect or default of the owner of the vehicle or vehicle concerned or of any other person, which reads as under : “163-A. Special provisions as to payment of compensation on structured formula basis.—(1) Notwithstanding anything contained in this Act or in any other law for the time being in force or instrument having the force of law, the owner of the motor vehicle or the authorised insurer shall be liable to pay in the case of death or permanent disablement due to accident arising out of the use of motor vehicle, compensation, as indicated in the Second Schedule, to the legal heirs or the victim, as the case may be. Explanation.—For the purposes of this sub-section, “permanent disability” shall have the same meaning and extent as in the Workmen’s Compensation Act, 1923. (2) In any claim for compensation under sub-section (1), the claimant shall not be required to plead or establish that the death or permanent disablement in respect of which the claim has been made was due to any wrongful act or neglect or default of the owner of the vehicle or vehicles concerned or of any other person. (3) ............................” 39. Section 168 of the Motor Vehicles Act deals with the award of Claims Tribunal which reads as under : “168. (3) ............................” 39. Section 168 of the Motor Vehicles Act deals with the award of Claims Tribunal which reads as under : “168. Award of the Claims Tribunal.—(1) On receipt of an application for compensation made under Section 166, the Claims Tribunal shall, after giving notice of the application to the insurer and after giving the parties (including the insurer) an opportunity of being heard, hold an inquiry into the claim or, as the case may be, each of the claims and, subject to the provisions of Section 162 may make an award determining the amount of compensation which appears to it to be just and specifying the person or persons to whom compensation shall be paid and in making the award the Claims Tribunal shall specify the amount which shall be paid by the insurer or owner or driver of the vehicle involved in the accident or by all or any of them, as the case may be. (2) ............................. (3) ............................. 40. Thus from a careful reading of the aforesaid provisions of Motor Vehicle Act, it is clear that under Section 140 and Section 163-A of the said Act, the claimants are not required to plead and prove that the death or permanent disablement in respect of which claim has been made was due to any wrongful act or neglect or default of the owner or owners of the vehicle or vehicles concerned or of any other person. The claim petition can succeed merely on proof of death or permanent disablement of person who sustain the injuries in motor accident. The aforesaid provisions also revealed that the owner of the Motor Vehicle has been made straightway liable to pay compensation on the principles of no fault liability. The driver’s negligence while driving the offending motor vehicle has no role to play in adjudication of such claim and in awarding the compensation to the victim or legal representative or heirs of deceased of the motor accident. The driver’s negligence while driving the offending motor vehicle has no role to play in adjudication of such claim and in awarding the compensation to the victim or legal representative or heirs of deceased of the motor accident. It is no doubt true that if the vehicle is covered by a policy of insurance, the liability of owner shall be shifted upon the insurer for the reason that under Section 149(1) of the 1988 Act the insurer is under legal obligation to satisfy judgments and awards against person insured in respect of third party risks to the extent of liability covered by the terms of policy or under the provisions of Section 163-A of the said Act and thereby indemnify the owner’s of motor vehicle in that regard. Therefore, in my opinion, if claim is based under the aforesaid provisions of the Act, neither owner’s defence nor driver’s defence in pending claim petition would be prejudiced while proceeding with disciplinary inquiry, simultaneously with the inquiry into such claim petition for simple reason that the claim petition under the aforesaid provisions of Act does not rest on negligent driving of motor vehicle, accordingly it would be not necessary to defer the disciplinary inquiry during the pendency of claim petition made under the aforesaid provisions of 1988 Act. 41. At this juncture it would be useful to refer a decision of Hon’ble Apex Court in Sohan Lal Passi v. P. Sesh Reddy, AIR 1996 SC 2627 wherein the Hon’ble Apex Court observed that “the road accidents in India have touched a new height in majority of cases because of the rash and negligent driving, innocent persons become victims of such accidents because of which their dependents in many cases are virtually on the streets. The Indian Parliament being conscious of the magnitude of the plight of the victims of the accident have introduced several beneficial provisions to protect the interest of claimants and to enable them to claim compensation from the owner or Insurance Company in connection with the accident. 42. It is under the aforesaid backdrop of situation the aforesaid provisions under the 1988 Act have been enacted to benefit the victims or heirs of deceased of the motor accident. It does not mean that such accident occurs without any wrongful act or default or negligence of driver of the offending vehicle. 42. It is under the aforesaid backdrop of situation the aforesaid provisions under the 1988 Act have been enacted to benefit the victims or heirs of deceased of the motor accident. It does not mean that such accident occurs without any wrongful act or default or negligence of driver of the offending vehicle. The aforesaid provisions of the Act have merely exempted the claimants from pleading and proving such default of owner or driver of the offending motor vehicle for success of claim petition. Therefore, in spite of such provisions of 1988 Act referred herein before, the driver of the offending motor vehicle, in my opinion, cannot be held to be absolved from negligent driving of the offending motor vehicle, which constitutes his misconduct. 43. However, the claimant under the provisions of Section 166 of Motor Vehicle Act, is required to prove death or disablement or injury due to the accident and further required to prove default of owner and/or driver of the motor vehicle and after making summary enquiry into claims, the Claims Tribunal is obliged to make an award determining the amount of compensation by specifying the person or persons to whom such compensation shall be paid and in making award the Tribunal is further obliged to specify the amount which shall be paid by the insurer or owner or driver of the vehicle involved in the accident or by all or any of them, as case may be, as contemplated by the provisions of Section 168 of 1988 Act. 44. Thus, from the provisions of Section 166 of 1988 Act, it is clear that the success of claim under the said provisions rests on the proof of default of owner or driver of the offending motor vehicle. The owner would be liable to pay compensation to the victim of the motor accident due to vicarious liability of driver’s negligence provided that owner of offending motor vehicle is employer and driver of such vehicle is employee and there exist relationship of master and servant between them and further offending vehicle was used in the course of business of master. In view of such legal position, in my considered opinion, the defence of driver which may be prejudiced before Claims Tribunal on account of simultaneous/parallel proceeding with the disciplinary inquiry and inquiry into claim petition would be of no legal consequence and the driver would not be affected adversely in pending claim petition for the simple reason that owner would be vicariously liable to pay compensation to the victims or heirs of deceased involved in the accident caused due to negligent driving of offending vehicle. Therefore, it is open for the owner of the offending motor vehicle/employer to proceed simultaneously with the disciplinary inquiry against the driver/employee along with the inquiry into claim petition. 45. It is to be noted that although aforesaid provisions of Motor Vehicle Act are intended to make insurer or owner and/or driver of the offending motor vehicle liable to pay compensation to the victims of motor vehicle according to the scheme underlying therein but aforesaid provisions of the Act do not deal with the loss suffered by owner/employer of the motor vehicle, arising out of making payment of the compensation to the victims of the accident, which is caused due to negligent driving of the vehicle by the driver concerned. In my considered opinion, such situation squarely falls within the purview of the business of employer and in relation to the employment of driver, which is within the domain of relationship of master and servant or employer and employee. And if the action of employee falls within the realm of business of employer or in employment which constitutes misconduct of employee, in that eventuality it shall be open for the employer to deal with the employee departmentally by holding disciplinary inquiry against such employee. As I have already held earlier that rash and negligent driving of motor vehicle by the driver constitutes his misconduct, besides other consequences flowing therefrom. Therefore, in my considered opinion, while holding such inquiry, employer would be at liberty to award appropriate punishment including recovery of loss suffered by employer on account of misconduct of employee/driver in instant case, commensurate to the gravity of charge found proved against such employee/driver. 46. At this juncture it is to be noted that in our country roads are major killer of mankind. 46. At this juncture it is to be noted that in our country roads are major killer of mankind. According to the report published in “India Today Magazine December, 2009”, India records highest number of deaths in road accidents in the world, 13 every hour 1,14,590 a year, more than terrorism or national disasters. No city or town of India can boast of having orderly traffic. Both the Central and State Governments have failed to provide proper infrastructure, create awareness and enforce traffic laws to meet the needs of the expanding traffic. It is further stated that “the increasing number of road accidents in India has left a trail of trauma and stress. It is clear that road-related accidents cost India millions every year, yet there is no sign of any intervention.” 47. Besides bad condition of roads, unawareness of traffic laws and heavy load of traffic on roads beyond their capacity in majority of the cases, road accidents are often occurring due to rash and negligent driving of motor vehicles and only in very few cases, such accidents occur due to bad condition of roads, mechanical fault in vehicles, due to unforeseen factors and acts of God. Therefore, having regard to the speedy growth in the road accidents, besides need for enforcement of traffic laws strictly in my opinion, it is also necessary to strictly deal with the person found guilty of rash and negligent driving of the vehicle causing such accidents. If the driver is found guilty of causing serious accident or repeated accidents, there is no legal bar for employer to award major punishment against driver including removal and/or dismissal from service after holding full-fledged disciplinary inquiry against him. 48. Now applying the legal position stated herein before in given facts and circumstances of the case vis-a-vis submission of learned counsel for the petitioner I do not find any fault in procedure while holding disciplinary inquiry against the petitioner prior to imposition of penalty of recovery of loss caused to the Corporation, due to the misconduct of the petitioner. For recovery of the said loss, a show cause notice dated 19.5.2001 was served upon the petitioner, in pursuance whereof he had submitted his reply and after considering his said reply, the impugned order dated 25.6.2008 has been passed by disciplinary authority directing the recovery of money to the tune of Rs. For recovery of the said loss, a show cause notice dated 19.5.2001 was served upon the petitioner, in pursuance whereof he had submitted his reply and after considering his said reply, the impugned order dated 25.6.2008 has been passed by disciplinary authority directing the recovery of money to the tune of Rs. 1,64,208/- and 33 paise from the petitioner which was directed to be realized from him in instalments according to rules. The aforesaid punishment awarded to the petitioner is not major punishment under the rules of disciplinary inquiry requiring full-fledged disciplinary inquiry for major punishment. It is merely a minor punishment as such could be inflicted upon the petitioner, merely after giving him a show cause notice. 49. It is no doubt true that immediately after occurrence of said accident, on very next day, the departmental authority of the petitioner had made local spot inspection of the accident in question, as alleged by the petitioner and in said inspection report, he was not found guilty of rash and negligent driving of the bus of the Corporation. It is also stated in the writ petition that not only this, but in the written statement filed on behalf of the Corporation before the Claims Tribunal in respect of said accident, it was also specifically stated that the driver of the bus of the Corporation was not guilty of rash and negligent driving of the bus causing said accident, instead thereof, the driver of Dumper truck was guilty of negligent driving coming from opposite direction and had dashed the bus of the Corporation from right side in front, which was extremely on left side at corner of the road. But from the perusal of judgement and award dated 2.3.2001 made by the Claims Tribunal in Claim Petition No. 130 of 1999, Asharam Sahu v. Bhanu Prakash Main filed by legal representative or heirs of deceased Mohan Lal in said accident, it is clear that while making inquiry into the said claim petition, the Claims Tribunal had rejected the aforesaid plea and defence of petitioner as well as Corporation, and found that both the motor vehicles involved in the said accident had dashed each other by head on collision and further found that it was a case of composite negligence of the drivers of both the vehicles. In the aforesaid backdrop of the case it is very difficult for this Court to accept the submission of learned counsel for the petitioner that once the authorities of the Corporation had held that the petitioner was not guilty of rash and negligent driving of the bus of the Corporation and same stand had also been taken by the authorities of the Corporation in written statement filed before the Claims Tribunal, hence, the Corporation cannot resile back from the aforesaid stand and that the authorities of the Corporation are bound by the principle of estoppel and cannot hold the petitioner guilty of rash and negligent driving of the bus contrary to their earlier stand. In my opinion, the aforesaid submission of learned counsel for the petitioner is misplaced and has to be rejected. 50. As revealed from the records, Claims Tribunal after examination of aforesaid stand of the Corporation, found that the bus of the Corporation as well as Dumper Truck were negligently driven by their respective drivers while causing the accident in question and both of them were held guilty of composite negligence, as a consequence of which compensation payable to heirs of deceased involved in the said accident, apportioned equally among both the owners and insurers of vehicles, in such situation, it is very difficult to accept the aforesaid submission that the petitioner was not guilty of the negligent driving of the bus of the Corporation which has already been rejected by the Claims Tribunal while dealing with the same subject matter of dispute which was in issue before the Claims Tribunal. In my considered opinion, the aforesaid stand taken by the Corporation was no doubt in favour of the petitioner, but at the same time it was also in benefit of the Corporation and once the Claims Tribunal has come to a conclusion contrary to the aforesaid stand of the Corporation, which is competent Court, the petitioner cannot be permitted to insist upon the aforesaid earlier stand taken by the officers of the Corporation before the claims tribunal and cannot take the plea of estoppel against the Corporation. I am of the further opinion that untested version of departmental authorities which was in favour of both, the petitioner and Corporation in respect of liability to pay compensation on account of accident caused by the driver of the Corporation cannot be given precedence over and above the findings of Claims Tribunal on the same question in issue. 51. Last submission of learned counsel for the petitioner that in claim petition filed by the heirs of deceased Mohan Lal, the Corporation was not impleaded as party, therefore, the claim petition was not maintainable and in case the Corporation would have been impleaded as party in the claim petition, in that eventuality, being owner of the offending motor vehicle the liability for payment of compensation to the heirs of deceased Mohan Lal would have been fastened with the Corporation , which could be paid from the fund established and maintained by the Corporation under Section 146(3) of 1988 Act, also appears to be misplaced, for the simple reason that firstly this Court is not called upon to examine the validity or otherwise correctness of the award made by the Claims Tribunal in respect of the accident in question as the instant proceeding is arisen out of service matter and is not arisen out of award made against the Corporation or its officer and employee, challenging the correctness of the said award, therefore, the question of maintainability of claim petition on account of non-joinder or misjoinder of party cannot be gone into and secondly, assuming for the sake of arguments, that even if the Corporation would have been impleaded as party in the claim petition and claimants could have been paid from the fund established and maintained by it under Section 146(3) of 1988 Act, even then, as held earlier the Corporation could recover the loss caused to it from the petitioner, on account of discharge of its liability incurred to third party i.e. heirs of victims of accident in question arisen out of rash and negligent driving of the offending motor vehicle of the Corporation after holding disciplinary inquiry against the petitioner for his aforesaid acts of misconduct. Therefore, the submission of learned counsel for the petitioner deserves to be rejected. 52. Therefore, the submission of learned counsel for the petitioner deserves to be rejected. 52. In view of foregoing discussions, it is clear that the competence of Corporation to recover the loss caused to it from the negligence of the petitioner as held earlier, cannot be doubted, but from the perusal of the impugned order dated 25.6.2008 passed by respondent No. 2 against the petitioner, it appears that entire liability of payment of compensation to the heirs of deceased Mohan Lal awarded by the Claims Tribunal on account of negligent driving of the bus of the Corporation by the petitioner has been fastened with him, without any reference to any existing rules or Government Order or office memo relating to determination of such liability of driver of the Corporation and without application of mind in respect of quantum of punishment. At this juncture it is to be noted that although the determination of quantum of punishment is sole domain of disciplinary authority, and this Court in the process of judicial review has hardly any scope for interference except if it is found exorbitant or excessive or disproportionate to the gravity of charge found proved against the delinquent employee, or irrational or arbitrary as based on without application of mind or in similar other circumstances, but in my considered opinion, unless there exists some rule or office order in respect of determination of such liability, the exercise of such power would lead to an arbitrariness and such arbitrary power in the hands of the Corporation would be capable to abuse and would also be discriminatory. Therefore, in my considered opinion, the impugned order dated 25.6.2008 passed by the respondent No. 2, directing the recovery of amount of compensation paid by the Corporation to heirs of victim from the petitioner cannot be sustained on this limited ground alone, accordingly same is hereby quashed with liberty to the respondent concerned to take fresh decision in the light of observation or direction made hereinafter. 53. 53. At this juncture it is to be noted that if there exists no rule, or office memo or office-order with regard to determination of liability of employee to indemnify the loss caused to the Corporation, it shall be open for the Corporation to take appropriate policy decision in the matter and thereafter take a fresh decision in the matter of petitioner again within a period of three months from the date of production of certified copy of the order passed by this Court and until such fresh decision is taken by the Corporation, the recovery against the petitioner shall be kept in abeyance. 54. With the aforesaid observation and direction, writ petition stands disposed of. 55. There shall be no order as to costs. Parties shall bear their cost cost. ————