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2024 DIGILAW 1624 (ALL)

Kuber Nath Pathak v. U. P. S. R. T. C.

2024-07-05

AJIT KUMAR

body2024
JUDGMENT : Ajit Kumar, J. 1. Heard Shri Pradeep Narayan Pandey, learned counsel for the petitioner and Shri Ajay Singh, learned counsel for the respondent. 2. The petitioner Kuber Nath Pathak was driving a heavy transport vehicle, a passenger bus, of the U.P. State Road Transport Corporation as a regular driver while he met with an accident on 20.3.2001 with a light motor vehicle a Maruti Van. The incident was fatal one and resulted in the death of four passenger on board maruti van. Claim petition was filed by the dependents which came to be allowed by the Motor Accident Claims Tribunal. 3. An internal departmental enquiry report was submitted by Senior Centre Incharge on 20.3.2001 and resultently the petitioner was issued with a charge-sheet for alleged negligence in driving the bus that resulted in fatal accident with a light motor vehicle. The petitioner submitted his reply to the charge-sheet denying the charges and took a plea that the report submitted by the Senior Centre Incharge did exonerate the petitioner from any such charge of negligence. The enquiry officer proceeded to hold oral enquiry but recorded a fact that officer on whose report petitioner was charge-sheeted did not respond to the call of the enquiry officer in order to prove his report. This enquiry report has been brought on record as Annexure 1 to the counter-affidavit. On the basis of enquiry report so submitted, petitioner was found to be guilty of negligence in driving the bus of U.P. Road Transport Corporation on the fateful day and the disciplinary authority passed the order of removal from service and also denied him salary for the period he had remained under suspension. Thus, reply of the petitioner to the show-cause notice stood rejected. 4. The petitioner represented the matter to the Managing Director virtually by way of appeal as the order of removal was passed by the Regional Manager but the said representation/appeal also came to be dismissed by the Managing Director, Varanasi Division holding that a huge amount of compensation was paid to the dependents of the deceased could not be recovered from the delinquent employee. Thus, his representation was rejected and the appellate authority affirmed the order of removal from service. 5. Thus, his representation was rejected and the appellate authority affirmed the order of removal from service. 5. Learned counsel for the petitioner assailing the order passed by the Regional Manager as well as of the Managing Director has made the following submissions: (I) Any comment or report of the Regional Manager upon the Senior Incharge of the Centre who conducted spot inspection and found the petitioner to be not negligent was not to be believed until the Regional Manager making comment upon such report had appeared and proved his comments. (II) There was no evidence available with the respondent regarding alleged negligence in driving the bus of the Corporation by the petitioner on the fateful day, more especially when the report had come to this effect that the sight seen showed that the bus driver tried to save the accident and therefore, slightly hitting the car got landed in a ditch. The sight scene prepared, therefore, proved there to be no negligence on the part of the petitioner but same was wholly illegally disbelieved and thus findings are perverse being against the weight of evidence and the findings are basically based on surmises and conjectures. (III) Once it has come in the enquiry that both the vehicles were in speed then only because the accident had resulted in the fatality of four persons on board light motor vehicle will not ipso facto result in presumable negligence as to hold the petitioner guilty of accident. The appellate authority was not justified in affirming the order of the disciplinary authority based on perverse findings returned by the enquiry officer in the enquiry report and was also not justifed in affirming the order on the ground that amount paid as a compensation to the dependent was not recoverable from the petitioner. 6. Learned counsel for the respondent has contested the matter and meeting the arguments advanced as above by learned counsel for the petitioner has argued that this Court may not interfere in the matter of disciplinary proceedings if there is no procedural flaw and since regular oral enquiry was held, the disciplinary authority being the fact finding authority, exercise of power under Article 226 of the Constitution may not be warranted. 7. 7. Having heard learned counsel for the respective parties and having perused the record, in my view there should be no quarrel on the principle that in matters of disciplinary proceedings, the Court will not be ordinarily exercising power under Article 226 of the Constitution to interfere inasmuch as the Court would not be going into the issue of quantum of punishment until and unless the Court comes to a conclusion that the punishment imposed is shocking disproportionate to the guilt proved. [Chairman-cum-Managing Director, Coal India Ltd. v. Mukul Kumar Choudhuri, AIR 2010 SC 75 ; Deputy Commissioner, Kendriya Vidyalaya Sangthan and others v. J. Hussain, AIR 2014 SC 766 ; State of Andhra Pradesh and others v. Chitra Venkata Rao, (1975) 2 SCC 557 and State of Karnataka v. N. Gangaraj, (2020) 3 SCC 423 ] 8. Now in order to appreciate the other arguments advanced by learned counsel for the petitioner as well as learned counsel appearing for the Corporation, it is necessary to refer to the report of the Regional Manager on the basis of which the disciplinary proceeding was set into motion against the petitioner. 9. The report dated 20.3.2001 has been brought on record as Annexure 1 to the writ petition. This report in fact was prepared by the Incharge Centre of the U.P. Road Transport Corporation, Faizabad and it is given in the report that when the inspection was done by the officer of the Corporation, Maruti Van had already been removed from the spot and that on the basis of statement of witnesses it was recorded that the bus was being correctly driven and was going from the left side whereas Maruti Van suddenly appeared on right side of the road and in order to save accident the bus was given a very sharp left turn and in that process it hit the maruti van on its right side and went into a ditch. All the bus passengers got saved and thus according to the report, the driver did not appear to be negligent. This report was placed before the Assistant Regional Manager who made count to make it as basis to frame charges as four passenger of the maruti van had died and some of the passenger had got injured. Thus count so made fact formed the basis for the enquiry officer to examine the matter and submit a report. This report was placed before the Assistant Regional Manager who made count to make it as basis to frame charges as four passenger of the maruti van had died and some of the passenger had got injured. Thus count so made fact formed the basis for the enquiry officer to examine the matter and submit a report. The enquiry officer in his enquiry report has very categorically recorded that the Assistant Regional Manager, Ballia who had made comment upon the report on 20.3.2001 which was the basis of issuing charge-sheet was required to appear on 25.2.2003 but did not appear. However Senior Incharge of Centre who had submitted the report had appeared and was examined and his answer during the cross-examination as was given is reproduced as under: 10. Thus, it had come very clearly before the enquiry officer that there was no negligence on part of petitioner while driving the vehicle and both the vehicles were in speed. Naturally when the vehicles were on highway they are supposed to be in speed and Regional Manager who had disagreed with the report of Senior Incharge of Centre, Faizabad failed to appear to dispute the report. The enquiry officer only recorded a finding to the effect that since the bus was in speed and if the driver had managed to stop the bus, accident would have been avoided. This finding in my considered view is based on surmises and conjectures because nothing has been stated in the entire enquiry report as to what was the prescribed speed on the relevant highway that was violated by the bus driver. Since highways are meant to facilitate speedy transport system both for passengers and goods, just because the bus driver was driving the vehicle in speed, would not make him liable and responsible for the accident automatically. There could have been a case of contributory negligence at the worst and not one sided negligence. The eye-witnesses account as recorded in the report dated 20.3.2001 was to the effect that the bus had hit the motor vehicle on the right side and that vehicle was coming form the opposite direction. This shows that the driver was vigilant even while driving the vehicle in speed and that is show he saved many bus passenger and it must have been the negligence on part of van driver who got on the right side of the highway road. This shows that the driver was vigilant even while driving the vehicle in speed and that is show he saved many bus passenger and it must have been the negligence on part of van driver who got on the right side of the highway road. All these aspects have not been looked into by the disciplinary authority while examining the explanation of the petitioner and so also mistake has been committed by the appellate authority in upholding finding of the enquiry officer which was absolutely perverse as discussed above. Thus order of punishment passed by the disciplinary authority cannot be sustained in law. 11. Still further, I do not find any justification for the appellate authority to have affirmed the order of punishment only on the ground that recovery could not have been made from the petitioner. The question of recovery from the petitioner would have arisen had Regional Manager appeared before the enquiry officer to prove his comment made upon the report of Centre Incharge who had found the driver to be not negligent. The only document that was required to be proved in the departmental enquiry was not proved at all and, therefore, there was no evidence available before the enquiry officer to bring home the charges. 12. In view of the above discussion, the writ petition succeeds and is allowed. 13. The order passed by the disciplinary authority and appellate authority are hereby quashed. The petitioner would be reinstated in service with effect from the date he was removed from his employment and shall be paid arrears of salary including the salary for the period he had earlier remained under suspension. The amount shall be calculated within a period of two months from the date of production of certified copy of this order. If amount remains unpaid, petitioner shall also be entitled to interest at the rate of 8% beyond period of two months until the actual payment is made. If pension as per service rules is admissible, petitioner shall also be entitled to the same as per law and shall be paid within the same period.