Jagir Singh vs State of Punjab and Others

Swatanter Kumar, J.—In this petition under Articles 226/227 of the Constitution of India, the petitioner challenges the very authority and jurisdiction of the Director General of the Police, Punjab to order and direct recovery of half of the compensation amount paid to the claimants in terms of the award of the Motor Accident Claims Tribunal, Hoshiarpur dated 7.1.1997 on the ground that he was driving the vehicle negligently. An answer to this legal proposition is certainly of some importance and of great significance for the State at least.

The petitioner was employed in the Punjab Police as a Driver and Constabulary No. 618/HRR was awarded to him. He was posted in the Police Lines, Hoshiarpur. According to the petitioner, he had 20 years experience as Driver of heavy vehicles. On 25.8.1995, the petitioner was put on duty to carry the prisoners from Hoshiarpur to Dasuya in terms of the orders of his senior officers. He was driving bus of the Police Department being Bus No. PB-070-3026. When the bus reached never Village Baradari, it met with an accident in which a lady cyclist named Smt. Baldev Kaur died. As stated by the petitioner, she was going with another lady cyclist Kanwaljit Kaur. Due to entangling of their cycles, the deceased fell on the road and died. Tirath Singh, Dharam Singh, and Smt. Gurcharan Kaur (husband, father-in-law and mother-in-law of the deceased respectively) filed a claim for compensation being Claim Petition No. 95 of 20.9.1995 before the Motor Accident Claims Tribunal, Hoshiarpur which was allowed in their favour vide order dated 7.1.1997 and a total compensation of Rs. 1,47,000/-with costs and interest at the rate of 12% from the date of application upto date of payment was granted to the claimants. The vehicle of the Police Department was not insured and the Department paid a sum of Rs. 1,70,573/- as compensation out of the funds created for the purpose u/s 146 of the Motor Vehicles Act, 1988.

The Senior Superintendent of Police, Hoshiarpur vide order dated 9.5.1997, issued notice to show cause to the petitioner as to why half of the compensation paid by the Department be not recovered from the petitioner. A copy of this show cause notice is annexed to the writ petition as Annexure P3, Reply thereto was submitted by the petitioner on 19.5.1997. On 13.1.1998, an order was passed by the authorities to recover a sum of Rs. 85,286,50 as half of the compensation. The petitioner preferred an appeal against this order before the Deputy Inspector General of Police, Jalandhar Range. During the pendency of the appeal, the recoveries were made. The respondents started making recovery from the pay of the petitioner which compelled the petitioner to file a writ petition in this Court being Civil Writ Petition No. 17437 of 1998, in which the Court directed the Deputy Inspector General of Police to dispose of the appeal of the petitioner within two months. After receipt of the order of the High Court, the appeal was referred by the D.I.G. of Police, Jalandhar vide order dated 20.5.1999 to the Director General of Police Punjab who vide Memo, dated 1.6.1999 Annexure P/2 rejected the same being devoid of any force. In regard to the same incident, F.I.R. No. 128 dated 25.8.1995 was also registered at Police Station Tanda for the offences under Sections 279, 304-A I.P.C. The challan was filed, but the petitioner was ultimately acquitted by the judgment of the learned Judicial Magistrate, 1st Class, Dasuya, dated 4.9.2000.

The petitioner challenges the order of recovery passed by S.S.P., Jalandhar as well as of the Appellate Authority on the ground that the accident occurred during the course of performance of duties and the petitioner is not liable to pay any compensation amount. It is stated that there is no provision in the Service Rules empowering the respondents to recover the amount.

Upon notice, the respondents filed a reply in which it is stated that liability of the Driver under the Motor Vehicles Act is joint and several along with its owner. The accident occurred due to the negligence of the Driver and in terms of Rule 2.33 of Chapter IX of Volume-1 of the Punjab Finance Rules, every government servant is personally responsible for the loss sustained by the Government on account of negligence of the employee. As "such, the petitioner is liable to pay the amount. The order passed by the S.S.P., Hoshiarpur is neither arbitrary, nor non-speaking one. The orders have been passed in accordance with law. The notice served by the petitioner u/s 80 of the C.P.C. was forwarded to the D.G.P. by the S.S.P., Hoshiarpur and thereafter the Appellate Authority rejected the appeal. As such, the Department has the right to recover the amount from the salary of the petitioner or otherwise.

It may be appropriate to refer to the judgment of the Hon''ble Apex Court in the case of State of Maharashtra and Others Vs. Kanchanmala Vijaysing Shirke and Others, at the very outset. In this case, the Court was concerned with the question of vicarious liability of the State to pay compensation to heirs of a victim where the vehicle was being driven by a Clerk. As the authority of the Clerk and in face of a specific denial by the authorities that they had ever permitted the said Clerk to drive the vehicle, the Court held as unden:-

"19. The crucial test is whether the initial act of the employee was expressly authorised and lawful. The employer, as in the present case the State Government, shall nevertheless be responsible for the manner in which the employee, that is, the driver and the respondent executed the authority. This is necessary to ensure so that the injuries caused to third parties who are not directly involved or concerned with the nature of authority vested by the master to his servant are not deprived from getting compensation. If the dispute revolves around the mode or manner of execution of the authority of the master by the servant, the master cannot escape the liability so far third parties are concerned on the ground that he had not actually authorised the particular manner in which the act was done. In the present was, it has been established beyond doubt that the. driver of the vehicle had been fully authorised to drive the jeep for a purpose connected with the affairs of the State and the dispute is only in respect of the manner and the mode in which the said driver performed his duties by allowing another employee of the State Government, who was also going on an official duty, to drive the jeep, when the accident took place. Once it is established that negligent act of the driver and respondent was "in the course of employment", the appellant-State shall be liable for the same.

We are not of the view that the appellant-State cannot escape its vicarious liability to pay compensation to the heirs of the victim. The appeal is accordingly dismissed. There shall be no order as to costs."

Another aspect of this case is whether the act of the employee is entirely outside the course of his employment. The act committed must have some nexus to the duties and responsibility of the employee during the course of employment. For an employee to plead exceptions to the rule of vicarious liability or for a Master to avoid responsibility for negligence or wrongful act of a servant, the Master must show that the act was not committed in the course of business. It should not form part of it and inefficiency to say that it is merely coincidence in time (Salmond & Heuston on the Law of Torts Twentieth Edition R.F.V. Heuston And R.A. Buckley). The employer would have to bear the consequences of the accident in question. In fact, the order of the Tribunal has clearly followed the principles and awarded compensation to the claimants jointly and severally against the driver as well as Director General of Police, Punjab, as part of State of Punjab. In any case, we are not to examine this matter at any greater length. The award has already attained finality. The driver apparently was driving the vehicle during the course of his employment and was on duty when the vehicle met with an accident. We cannot sit as a court of appeal over the validity or otherwise of the said award.

Though ancillary but the pertinent question that arises for our consideration now is:-

Whether the alleged loss suffered by the department, as a result of payment of compensation, can be wholly or partly recovered by the employer from his employee on the plea that the employee was negligent?

According to the respondents, after pronouncement of the award, the State has paid a sum of Rs. 1,70,573/- to the claimants. Thereafter, they served a notice to show cause upon the petitioner requiring him to submit reply to the show cause notice as to why half of the amount paid should not be recovered from him. To this show cause notice dated 9th May, 1997, the petitioner submitted a detailed reply dated 19th May, 1997 disputing the fact that he was negligent. On the contrary, he pleaded that he was careful and the lady all of sudden came in front of the bus. According to him u/s 146 of the Motor Vehicles Act, the authorities cannot recover the amount from him because of such lapse or negligence. Rejecting these contentions, the order dated 13.1.1998 was passed directing recovery of half of the amount from the petitioner.

As far as the principles of natural justice are concerned, they have been complied with. The respondents have placed reliance upon the award of the Motor Accident Claims Tribunal and termed the said findings as correct and hence issuance of show cause notice. Obviously the authorities concerned were not required to sit over the matter as an appeal and say anything contrary thereto. An opportunity has been granted to the petitioner to put forward his case and after considering the pleas raised, the impugned order of recovery has been passed.

u/s 146(1) of the Motor Vehicle Act, a vehicle, as a principle of necessity, must be insured at least third party. Sub-section (2) of the Section 146 of the Act requires that any vehicle owned by the Central Government or the State Government and used for the government purpose unconnected with any commercial enterprises would not be governed under the provision of Sub-section (1). Certainly, the vehicle in question is a government vehicle used for government purpose i.e. the Police Department of the State of Punjab and is not connected with any commercial activities or enterprise. The provisions of Sub-section (3) of Section 146 would not come into play.

We are unable to appreciate the contention of the petitioner that in the face of the provisions of Section 146, the respondents-authorities would have no jurisdiction to pass any order of recovery. We also find no merit in the contention that once the government creates a fund or head to such expenditure i.e. for payment of compensation awarded by the Tribunals in cases of accident of government vehicle, third party will absolve to any other responsibility or liability under the provisions of any other rules of law. The Punjab Financial Rules clearly postulate that all expenditure of the State has to be incurred under a major head or minor head. Selection of such head is primarily intended to comply with the statutory rules framed in that behalf. It does not stand to any reasoning that creation of such funds or head would per se estops the government from taking recourse to any other provisions under law for recovery of the amount/loss suffered by it as a result of negligence of the employees. The provisions of Motor Vehicle Act places a prohibition on any person, who drives a vehicle without obtaining proper licence for that purpose from the competent authority. Such provision has an implicit obligation and duty on the part of the licence holder to be careful and take all caution while driving so as to avoid any untoward incident or accident as a result of carelessness or negligence on his part. In support of the impugned order, the State has placed reliance upon Rule 2.33 of the General Principles of Rules Volume-I of the Punjab Financial Rules, which read as under:-

"2.33 Every Government employee should realise fully and clearly that he will be held personally responsible for any loss sustained by Government through fraud or negligence on his part and that he will also be held personally responsible for any loss arising from fraud or negligence on the part of any of the Government employee to the extent to which it may be shown that he contributed to the loss by his own action or negligence. [See Rule 2.10(1) (1)] A memorandum regarding (1) general principles to regulate the enforcement of responsibility for losses sustained by Government through fraud or negligence of individuals, (2) the procedure to be followed in prosecutions in respect of the embezzlement of Government money and, (3) the procedure to be observed for conducting departmental enquiry, is given in Appendix 1 to these rules."

The language of the rules clearly suggests the intention of the Government to caution its employees to create a definite realisation in them to be responsible and not to act negligently or play fraud on the government. The consequences thereof are clearly stated in the said rule.

The above provisions cannot be equated to the provisions relating to imposition of penalty under the service rules. It is a provision to recover losses suffered by it as a result of fraud or negligence of the employees primarily founded on a finding of negligence. In the present case, we have already noticed that the Tribunal has recorded in unambiguous terms that the petitioner was negligent as a result of which compensation has been awarded to the claimants against the Government. The recourse by the State to this provisions would not amount to double jeopardy or lack of inherent jurisdiction in the authority to take such action. To further smoothen out the duty, functioning of the State by this provision, guide-lines and memorandum have been issued to enforce such liability including the procedure to be adopted by the concerned authority.

It will be appropriate to notice here that the recovery of money is not a specified punishment under Rule 16(1) of the Punjab Police Rules 1934. It is also provided under the said rules that all other government rules would be applicable to the police official/officer covered under the said rules. In light of the above provisions, it cannot be said that the recovery of the amount attracted by the impugned order would be termed as a penalty. Serving of show cause notice would be substantial compliance to the principles of natural justice, which have to be read into Rule 2.33 of the Financial Rules. In any case, there is no challenge to the validity of the said rules before us in this petition.

Once a provision is on the statute book and its liability or validity or otherwise is not questioned before the Court, the Court must proceed on the basis that it is a valid piece of legislation. The presumption of validity is in favour of the legislation and not otherwise. The rule postulates recovery of loss sustained by the Government suffered through negligence on the part of the employee. The extent of loss recovery would depend upon his contribution to such act. Loss is a term of wide connotation and has received liberal construction in judicial pronouncements. Understood in its common parlance ''loss'' is deprivation of a property of valuable item. Their Lordships of the Hon''ble Supreme Court in the case of The East and West Steamship Company, George Town, Madras Vs. S.K. Ramalingam Chettiar, observed that is a generic and comprehensive term covering different situations. Loss may result from destruction of a thing and it may amount to deprivation.

Claim of loss may be founded on non-delivery, negligence or wrongful act. The expression ''negligence'' as used in the rules has a definite significance. If an accident occurs which in the ordinary course could be avoided by proper care and caution it would then amount to an act of negligence. The negligence consists omitting to do something which a reasonable man would do or the doing of something which a reasonable man would not do in either case causing unintentional by some mischief to a third party as held in. State Bank of India Vs. Kerala Financial Corporation, .

The impugned order has to be examined in light and ambit as explained above and the fact that the Motor Accident Claims Tribunal has already held in unambiguous term that the driver (petitioner) was negligent. The said judgment, as already noticed, has attained finality. The driver of a vehicle is granted a licence upon completion and satisfaction of the pre-requisite, stated under the relevant law. A driver is expected to be trained to drive the vehicle carefully and cautiously so as to avoid an accident. The expected degree of care and caution from the driver is certainly higher than an ordinary person. The duties of a driver holding licence provide for minute test, details of duties and obligations which the law imposes upon the driver (Sections 131 to 134 of the Motor Vehicles Act). Despite such duties the legislative intention which are definite and punitive in nature are indicated by the fact that a person, who is guilty of an offence u/s 184 of the Motor Vehicles Act, his licence itself can be suspended or cancelled, as the case may be, under the provisions of Section 121 and 122 of the Motor Vehicles Act. This shows the pervasive veritable legislative approach which unambiguously intends to check and minimize negligent driving by the drivers particularly in causing of fatal road accident.

Learned counsel for the petitioner appearing for the petitioner also contended that an order of recovery by the department in face of the proceedings before the Motor Accident Claims Tribunal would attract plea of double jeopardy. This argument is hardly of any consequence. As already stated, the department is vicariously liable and its liability to pay compensation is joint and several with the driver in terms of the award of the Motor Accident Claims Tribunal. Even otherwise, this submission we noticed only to reject, as the question has been completely settled by the Hon''ble Apex Court in the case of State of Haryana v. Balwant Singh AIR 2003 SC 1645, where illustrating the plea governing the double jeopardy and while relying upon earlier judgment of three judges Bench of the Hon''ble Apex Court in the case of Union of India and Another Vs. P.D. Yadav, , the Hon''ble Apex Court held as under :-

"... From the facts that are not in dispute, it is abundantly clear that the order dated 12.3.1990 was passed against the respondent reducing the pay to the minimum of time scale of Driver for a period of four years on account of his causing loss and bringing bad name to the Department in the light of the order passed by the Motor Accidents Claims Tribunal, that too after holding enquiry under the Rules after giving him opportunity. The second order dated 17.9.1992, was passed on the basis of the conviction and sentence passed against him by the competent criminal court for the offence u/s 304-A IPC which was permissible under the Rules. These being the facts, there was no question of prosecuting and punishing the respondent for the same offence twice. The High Court was not right in equating departmental enquiries on different grounds to a prosecution in criminal case. The High Court also has failed to see that the two orders passed against the respondent were on different grounds against the respondents were on differing grounds and were on different cause of actions.

Thus, without any hesitation, we reject the contention raised on behalf of the petitioner. In the circumstances, we are unable to find any fault in the action of the respondents in directing the partial recovery of its loss from the petitioner.

Be that as it may, another very pertinent aspect of such cases relates to the serious consequences and adversities arising for the employee and his family as a direct result of the department passing orders of recoveries. Nothing in the form of instructions or circulars is on record before us and nothing has been brought to our notice which could be the load star for resolving such issues and passing appropriate orders in consonance with the rules and equity. In order to minimise the element or arbitrariness in passing such orders, it is obligatory upon the department to formulate and suffise consistent guide-lines controlling exercise of authority as well as the extent of loss which could be recovered from a driver on whose part negligence stands established by due process of law. The Court cannot ignore the fact that employees of the transport particularly the government corporation or transport agency get limited salary and have long hours of duties. In the event, they are directed to pay large portion of their salary towards such recoveries, it will not only result in definite inconvenience to the employee but may also affect their families adversely. The employment itself is a serious problem in our country. There are hundreds seeker for one job and thus State always stand in the commanding position. It will be appropriate for the State to take measure to prevent such accident rather than to recover huge amounts from such class of low paid salaried employees.

Where on the other hand, providing of departmental instructions and guidelines, as afore-noticed, may be useful, there on the other introduction of stringent standard in consonance with the provisions of the Motor Vehicles Act, right at the time of initial selection to these posts would result in prevention of accidents. Proper training over a reasonable period before their induction into service and before they are permitted to drive on the Highways would be another appreciable step, which the State can take. Another factor which we may mention at the cost of repetition and which has persuaded us to record these observations is that the State has exercised its option in availing the benefits of exemption under the provision of Section 163 of the Act and as such has taken the burden on to itself which otherwise could be the liability of the insurance company. That being the approach and creation of the State itself, the action of the State in imposing the entire or major part of its above liability upon its driver(s) can hardly be termed as equitable and fair particularly when the State is a social welfare State and a principal model employer. What should be its policy in that regard and would be the extent of deduction of recovery, are the matters which squarely fall in the domain of the State administration and the Courts would not embark upon such determination. Thus, we leave it for the State to cogitate over various facets of its problems and expected to take remedial, preventive and curative measures in that regard expeditiously.

In view of the our detailed discussion above, we dismiss this writ petition with the above observations. We express a pious hope that the concerned quarter of the State would look into this aspect of the matter and take effective steps in light of the observations expeditiously. In the facts and circumstances of the case, we grant liberty to the petitioner to approach the concerned authority for reduction of the ordered amount of recovery and leave the parties to bear their own costs.

Sd/-

S.S. Saron, J.

R.M.S.