Shishir Kumar - (1.) -The present writ petition has been filed for quashing the order dated 23.1.2002 (Annexure-5 to the writ petition) passed by the respondent No. 2.
(2.) THE facts arising out of the present writ petition are that the petitioner who is a driver working under the respondent No. 1. THE respondent No. 2 issued a show cause notice dated 19.6.2001 in which it has been alleged that a bus of the Corporation bearing Registration No. U. P. 80D/ 9736 while being driven by the petitioner, met with an accident on Delhi-Agra route. It was further alleged in the said notice that in Motor Accident Case No. 165 of 1994, an award to the tune of Rs. 1,77,800 has been given against the Corporation and the respondent No. 1 sustained the said loss on account of the petitioner's negligence and, therefore, a show-cause notice, why the said amount be not recovered from him and why he should not be removed from service. A copy of the show-cause notice dated 19.6.2001 has been annexed as Annexure-1 to the writ petition. In reply to the show-cause notice, the petitioner requested the respondent to provide him the copy of the judgment in Motor Accident Claim No. 165 of 1994 and other evidence in order to enable him to furnish his reply. THEreafter, the respondent vide letter dated 13.11.2001 made a few documents available to the petitioner and the petitioner was also warned that in case he does not submit his reply within a week, the ex parte proceedings will be commenced against the petitioner. THE petitioner in his reply to the show-cause notice specifically pointed out that he has been given only pages No. 1, 9, 10, 11, 20 and 21 of the judgment of the Motor Accident Claims Tribunal and a complete copy of the award has not been made available to the petitioner. THE petitioner also pointed out the various other documents including the evidence before the Tribunal but the same has not been furnished to the petitioner. In such circumstances, the petitioner submits that the petitioner is unable to give a proper reply to the show-cause notice. But the petitioner, however, in view of the warning given by the respondents, in case, he does not file the reply, exparte order will be passed, was compelled to furnish his explanation without any material available to him. THE petitioner has also requested the respondents to give him opportunity of leading oral evidence and cross-examining certain witnesses. In spite of the aforesaid request made by the petitioner, the respondents did not furnish the entire copy of the award and other necessary documents. On the other hand the respondent No. 2 passed an order dated 23.1.2002, by which the petitioner has been awarded a major punishment of removal from service and an order to that effect was also passed recovery of amount to the tune of Rs. 1,77,800 from the petitioner. A copy of the same has been annexed as Annexure 5 to the writ petition. The petitioner submits that the impugned order dated 23.1.2002 is wholly illegal, arbitrary and violative to Article 311 of the Constitution of India. The punishment of removal is one of the major punishment but the Regulation 63 of the U. P. State Road Transport Corporation Employees (Other than Officers) Service Regulations, 1981 hereinafter referred to as ''Regulation'. For awarding the major punishment, the procedure provided under Section 64 of the Regulation is to be followed. However, in the case of the petitioner while removing the petitioner from service by order dated 23.1.2002, the procedure as provided under Section 64 of the Regulation has not been followed. The show-cause notice does not confirm the requirement of Regulation 64 (2). The show-cause notice was not supported by any evidence in spite of the request being made by the petitioner, only few papers were furnished even complete copy of the judgment of the Claims Tribunal has not been supplied to the petitioner. The petitioner has not been afforded an opportunity of examination or cross examination of any witnesses, what to say no disciplinary enquiry as provided under the Regulation has taken place against the petitioner while passing the impugned order. The petitioner has clearly submitted and denied that the bus which he was driving met with an accident, but even assuming that such an accident occurred the same was a necessary incidence of driving and for which the petitioner cannot be held responsible. Admittedly, against the order passed by the Claims Tribunal the forum of appeal is provided. It is in the company's knowledge that in case any claim petition is allowed against the respondent, it is always open that an appeal is filed but reasons best known to the respondents no appeal against the judgment and order passed by the Claims Tribunal in Case No. 165 of 1994 dated 25.4.2000 has been filed and the petitioner has been held responsible for the purposes of payment of compensation and has been awarded punishment of removal. The said action of the respondents is, thus, mala fide and colourable exercise of power. There is no document to show that any pecuniary loss has been caused to the Corporation on account of alleged negligence of the petitioner. In fact the defence pleaded before the Claims Tribunal by the respondents that no accident has ever taken place. In spite of the remedy available to the Corporation the Corporation deliberately not filed an appeal and permitted the judgment and order passed by the Claims Tribunal final, as such, the finding recorded by the Claims Tribunal cannot be said to be conclusive. The petitioner being a servant of respondent No. 1 was protected by the doctrine of vicarious liability and the amount awarded by the Claims Tribunal against the respondent No. 1 cannot be recovered from the petitioner.
(3.) IT has further been submitted on behalf of the petitioner that it is evident from the provisions of Motor Vehicles Act, 1988 and the Rules framed therein that in case of a vehicle belonging to U. P. State Road Transport Corporation, it can be exempted from the mandatory requirement of ensuring vehicles against third party risk in case it maintains a fund for meeting any such liability arising out of use of any vehicle belonging to it, which includes the liability which its employees may incur to any third party. Thus, the compensation in the instant case payable by the U. P. State Road Transport Corporation to third party also stands ensured and is payable from the fund maintained in this regard as contemplated under Rules 151 and 152. In such a situation, the liability arising out of wrongful act of the petitioner stands ensured by provisions of Section 146 (3) of the Act and the petitioner cannot be held responsible personally for payment of compensation to the third party in pursuance of the judgment of the Tribunal. It is also submitted on behalf of the petitioner that from the record, and from the counter affidavit filed on behalf of the respondents it is clear that no disciplinary proceeding against the petitioner has taken place. The petitioner being a permanent employee has been given protection of the service Rules and protection of Article 311 of the Constitution of India. There is no dispute to his effect that a government employee can be terminated, removed or dismissed from service but there is a procedure provided under the law, without such procedure, it is not permissible to the disciplinary authority to pass an order of removal, dismissal or termination. In this particular case admittedly no disciplinary proceeding against the petitioner has taken place.;