Dev Kumar vs State of Haryana and Others

Rameshwar Singh Malik, J.—The present writ petition is directed against the order dated 5.8.1992 (Annexure P-7) passed by the Deputy Inspector General of Police, Gurgaon, dismissing the appeal of the petitioner and upholding the order dated 10.9.1991 (Annexure P-5) passed by the Superintendent of Police, Faridabad, thereby stopping two future increments of the petitioner with cumulative effect. Brief facts of the case are that while serving in the respondent department, petitioner was deputed as Driver at government gypsy No. HR-29-4644 on 30.11.1989. This fact is undisputed on record that the petitioner was not a qualified Driver, nor he was appointed as Constable Driver. The pleaded case of the petitioner in this regard was that he lodged his protest not to depute him as Driver, because he was not a qualified Driver and should not be posted for VIP duty. While coming back from his duty, the gypsy overturned and the persons inside the gypsy were also injured. Departmental enquiry was ordered by the Superintendent of Police, Faridabad-respondent No. 4. Charge sheet dated 22.3.1990 (Annexure P-1) was issued to the petitioner by the Deputy Superintendent of Police, Faridabad. During the enquiry, the Enquiry Officer was changed and new Enquiry Officer again served charge sheet to the petitioner on 8.12.1990 vide Annexure P-2. Enquiry was conducted. As many as 11 witnesses were examined. Inquiry report dated 24.1.1991 (Annexure P-3) was submitted. Enquiry Officer held the petitioner as guilty while recording his conclusion that the petitioner caused the accident while driving rashly, thereby causing damage to the government vehicle. Based on the above said enquiry, show cause notice dated 29.7.1991 (Annexure P-4) was issued and consequently, the impugned punishment order dated 10.9.1991 (Annexure P-5) was passed by the Superintendent of Police, thereby stopping two future increments of the petitioner with permanent effect.

Aggrieved, petitioner filed his appeal dated 20.11.1991 (Annexure P-6), reiterating his earlier defence and also pointing out serious discrepancies in the enquiry report. However, the appeal filed by the petitioner came to be dismissed by the Deputy Inspector General of Police, Gurgaon, vide impugned order dated 5.8.1992 (Annexure P-7). Thus, feeling aggrieved, petitioner approached this Court by way of instant writ petition.

Notice of motion was issued and pursuant thereto, written statement was filed by the Superintendent of Police, Faridabad on behalf of respondents No. 1 to 5.

Learned counsel for the petitioner submits that the respondents have not denied this fact in their written statement that the petitioner was not a qualified Driver, nor that he had been appointed as a Driver Constable. He next contended that although 11 PWs were examined, but none supported the charge levelled against the petitioner. In spite of that fact, the Enquiry Officer came to the wholly unwarranted conclusion that petitioner was guilty of rash driving. The most material fact that accident took place because of tyre burst, was not appreciated by either the Enquiry Officer, Punishing Authority or the Appellate Authority. The material evidence recorded by the prosecution witnesses themselves have not been appreciated. He further submits that PW-5-Constable Ranjit Singh had deposed that office gypsy was in a good condition and speed was also not high. Nobody could be better witness than Constable Ranjit Singh, because he was sitting in that gypsy and suffered injuries in the accident. Similarly, the Ram Sarup, deposed that vehicle was being driven by the petitioner at a good speed. The Driver was in good condition and was driving the vehicle properly. PW-8 Om Parkash, Mechanic Haryana Roadways, proved the mechanical report as Ex. 8-A. He reported that on inspection of the vehicle, it''s steering, Tie-rod, brake, horn and left side tyre were found correct. Right side tyre was burst. Headlights and chasis were damaged. On asking by the petitioner, this witness deposed that gypsy overturned on the bursting of a tyre. PW-7, Manohar Lal, also deposed that vehicle was driven at a normal speed. The driver was not under the influence of liquor. He concluded by submitting that if the above said material facts are closely examined and appreciated, no person of prudent mind would have come to the conclusion as arrived at by the Enquiry Officer. Since the Punishing Authority as well as the Appellate Authority failed to appreciate the enquiry report in its entirety, the impugned orders were not sustainable. He prays for setting aside the impugned order by allowing the present writ petition.

Per contra, learned counsel for the State submits that negligence on the part of the petitioner was clearly established. He caused damage to the government vehicle because of his rash driving. Charge was duly proved against him in the regular departmental enquiry. He further submits that the petitioner was rightly punished by stopping two future increments with permanent effect. No illegality was committed by the Appellate Authority while passing the impugned order. He prays for dismissal of the writ petition.

Having heard the learned counsel for the parties at considerable length, after careful perusal of record of the case and giving thoughtful consideration to the rival contentions raised, this Court is of the considered opinion that the impugned orders cannot be sustained and the present writ petition deserves to be partly allowed. To say so, reasons are more than, which are being recorded hereinafter.

The facts of the case speak volumes in favour of the petitioner. First undisputed fact on record is that neither he was a qualified Driver nor he was appointed as Constable Driver. During the course of hearing, when a pointed question was put to the learned counsel for the State that why such a person was deputed as a Driver, he had no answer. In fact, no reason is forthcoming as to why the petitioner was deputed as Driver, despite knowing fully well that neither he was a qualified Driver nor he was appointed as a Constable Driver.

In such a situation, there was hardly any scope for holding the petitioner responsible for rash driving, thereby causing damage to the government vehicle, particularly as per evidence led during the enquiry proceedings. Having said that, this Court feels no hesitation to conclude that the Enquiry Officer, Punishing Authority as well as the Appellate Authority have failed to appreciate the true factual aspect of the matter while preparing the enquiry report, passing the impugned punishment order Annexure P-5 as well as the appellate order Annexure P-7, because of which the impugned orders cannot be sustained.

A combined reading of the enquiry report Annexure P-3, punishment order Annexure P-5 as well as the appellate order Annexure P-7, would show that all these three authorities have not made even a passing reference about the statements of material witnesses namely Ranjit Singh PW-5, who was injured, Constable Ram Sarup-PW-6, Om Parkash, Mechanic Haryana Roadways PW-8 and Manohar Lal ASI-PW 9, while arriving at their respective conclusions. In this view of the matter, the enquiry cannot be held to be a proper one, because the Enquiry Officer had failed to appreciate the statements made by the above said material witnesses.

The Enquiry Officer, while referring to the statements of some of the witnesses, failed to appreciate the true import of the statements made by the material witnesses, while preparing the enquiry report. Similarly, while passing the impugned punishment order Annexure P-5, Punishing Authority seems to have recorded its order only on the basis of the enquiry report and without adverting to the relevant record, which was a part of the enquiry report.

The impugned punishment order cannot be said to be a speaking order, because due application of independent mind has been found to be missing. Further, the Appellate Authority failed to record any reason much less cogent reasons thereof, in support of its order. The specific and categoric ground taken by the petitioner that he was not a trained Driver was also not duly appreciated by the Appellate Authority.

In view of the above, it is unhesitatingly held that since the Enquiry Officer, Punishing Authority as well as the Appellate Authority have failed to appreciate the material and relevant official record, which speaks volumes in favour of the petitioner, enquiry as well as the impugned orders have resulted in miscarriage of justice and the same cannot be sustained. The Expert report of PW-8 Om Parkash, Mechanic Haryana Roadways, has been altogether ignored by the Enquiry Officer, Punishing Authority as well as the Appellate Authority, while passing their respective orders.

The cumulative effect of the statements of the witnesses supported by the mechanical report submitted by PW-8 Mechanic, Haryana Roadways, would make it clear that it was a roadside accident, which happened because of tyre burst. The evidence given by PW-9 ASI Manohar Lal gains importance that the vehicle was being driven at a normal speed. Had the petitioner driven the vehicle in a rash and negligent manner in a high speed, it was highly probable that fatal injuries would have been caused to the occupants of the vehicle on its sudden overturn, because of tyre burst.

Admittedly, there was no fatal injury to any of the occupants. In such a situation, the accident could have been said to be beyond the control of the petitioner. On the other hand, there was no loss of human life and he saved the situation, despite the sudden tyre burst. Thus, keeping in view the above said peculiar fact situation of the case, it is held that the enquiry report as well as the impugned orders were misconceived and the same cannot be sustained.

No other argument was raised.

Considering the peculiar facts and circumstances of the case noted above, coupled with the reasons aforementioned, this Court is of the considered view that the enquiry report dated 24.1.1991 (Annexure P-3), punishment order dated 10.9.1991 (Annexure P-5) passed by the Superintendent of Police, Faridabad as well as the appellate order dated 5.8.1992 (Annexure P-7) passed by the Deputy Inspector General, Gurgaon, cannot be sustained and the same are hereby ordered to be set aside. Consequently, it is directed that if the recovery from the petitioner, on account of alleged damage to the government vehicle, has already been effected, the amount so recovered from the petitioner, shall be refunded to him. The petitioner will be entitled to release of two annual increments, which had been stopped with cumulative effect by way of the impugned orders. The petitioner will also be entitled to the consequential benefits.

Resultantly, with the observations made and directions issued, as aforementioned, the instant writ petition stands allowed, however, with no order as to costs.