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Madhya Pradesh High Court · body

2015 DIGILAW 729 (MP)

Hamid Khan v. Chief Municipal Officer

2015-07-15

ROHIT ARYA

body2015
ORDER 1. By this petition under Article 226 of the Constitution of India, the petitioner has approached this Court with the grievance that the petitioner has been subjected to arbitrary and illegal recovery at the rate of Rs.1,000/­ per month from the salary without issuing any show cause notice and without affording opportunity of hearing. 2. To address upon the issue raised by the petitioner, it is necessary to refer to certain material facts to the effect that the petitioner is an employee of the Municipal Council, Sabalgarh, District Morena working as driver, Fire Brigade vehicle No.MP06A/2985. The aforesaid vehicle with the mutual understanding of the respondents No.1 and 2 was kept in supardagi at the office of respondent No.2. On receiving complaint for extinguishing fire or any other causalities, Fire brigade was directed to attend casualties. Movements of the Fire brigade are duly entered in the Rojnamcha. On fateful day, i.e., on 15.4.2014, there was a report as regards huge fire in the village Jarena as a result the petitioner was directed to proceed to extinguish the fire. On the way, in­between, Police Station Joura and Police Station, Kailaras on the Morena Sabalgarh road near Sankara Ki Tiwariya, a lady by name Manisha has suddenly and hurriedly tried to cross­over the road and in the process, she dashed against the Fire Brigade vehicle and died during her treatment. The vehicle was parked at the Police Station, Joura. The report of the incident was lodged in the presence of husband of Manisha. Thereafter, a criminal was registered against the petitioner vide FIR No.128/2004, however, he has been acquitted by the Court of Judicial Magistrate, First Class, Joura District Morena vide the judgment dated 26.9.2007. On account of the death of Manisha, her family members have filed a claim case before the Motor Accidents Claims Tribunal, Morena vide claim Case No.205/2004 and the Tribunal has passed an award dated 21.12.2005 saddling the liability upon the respondent State and the Chief Executive Officer, Municipal Council, Sabalgarh jointly and severally to the tune of Rs.1,79,000/­. To the utter surprise of the petitioner, the petitioner was called upon by the respondent No.1 to make good the liability to the extent of 1/3rd share amounting to Rs.69,966/­. The petitioner filed reply and denied the same. To the utter surprise of the petitioner, the petitioner was called upon by the respondent No.1 to make good the liability to the extent of 1/3rd share amounting to Rs.69,966/­. The petitioner filed reply and denied the same. However, from the month of Month, 2009, the respondent No.1 started making recovery of Rs.1,000/­ per month from the salary of petitioner. 3. This Court while entertaining the writ petition has passed an interim order on 22.9.2009 staying the recovery of amount from the petitioner. 4. Learned counsel for the petitioner submits that the controversy involved in this writ petition, i.e., as to whether the driver of Government vehicle during the course of employment can be held liable for payment of compensation to the successors and heirs of a deceased in the accident stands settled. In this context, referred to an order passed by a coordinate Bench dated 29.6.2015 while disposing of two writ petitions; leading case being Writ Petition No.9073/2013 (Dal Chand Sharma v. State of MP and others), [ 2015(III) MPWN 9 ] and seeks parity of treatment. 5. Having perused the aforesaid order passed by this Court in Writ Petition No.9073/2013 (supra), the submission of learned counsel has substantial force and the issue is no more res integra. 6. Learned Single Judge while disposing of Writ Petition No.9073/2013 (supra), has referred to the law laid down by the Hon'ble apex Court, reported in (2008)1 SCC 414 , National Insurance Co. Ltd., v. Deepa Devi and others, which reads as under: “No doubt, respondents No.3 and 4 continued to be the registered owners of the vehicle despite the fact that the same was requisitioned by the District Magistrate in exercise of the power conferred upon him under the Representation of the People Act. The owner of the vehicle cannot refuse to abide by the order of requisition of the vehicle by the Deputy Commissioner. While the vehicle remains under requisition, the owner does not exercise any control thereover. The driver may still be the employee of the owner of the vehicle but he has to drive it as per the direction of the officer of the State, who is put in charge thereof. While the vehicle remains under requisition, the owner does not exercise any control thereover. The driver may still be the employee of the owner of the vehicle but he has to drive it as per the direction of the officer of the State, who is put in charge thereof. Save and except for legal ownership, for all intent and purport, the registered owner of the vehicle loses entire control thereover.” In view of the case law, in the present case, the State shall be liable to pay the amount of compensation to the claimants and not the registered owner of the vehicle and consequently the appellant therein.” 7. In view of the aforesaid settled legal position and the order passed by a coordinate Bench of this Court in Writ Petition No.9073/2013 (supra), this Court is of the opinion that the impugned recovery against the petitioner was wholly unwarranted and patently illegal. Accordingly, the action of the respondents' making recovery from the salary of the petitioner to the extent of 1/3rd amount of compensation awarded by the Motor Accidents Claims Tribunal in Claim Case No.23.3.2007 is hereby quashed. If any amount has been recovered from the petitioner by way of installments as contended by the petitioner at the rate of Rs.1,000/­ (Rupees one thousand only) per month, the same shall be refunded to the petitioner forthwith. With the aforesaid direction, writ petition stands allowed and disposed of.