S KAMATCHI Vs. TAMIL NADU STATE TRANSPORT DEPARTMENT

JUDGEMENT

(1.) THIS writ appeal is directed against the order of Mohan, J. , dismissing W. P. No. 574 of 1977 filed by the appellant seeking a writ of certiorari to quash the order dated 7th February, 1975 of the Joint Director, Tamil Nadu State Transport Department.

(2.) THE said order, dated 7th February, 1975 of the Joint Director came to be passed in the following circumstances : The appellant was originally working as a driver in the Tamil Nadu State Transport Department. Thereafter, his services have been lent to the Pallavan Transport Corporation, as the appellant exercised his option in April, 1976, to serve under the said Corporation, while serving the Transport Department. On 22nd August, 1970 at about 6. 30 a. m. the bus driven by the appellant in route No. 32, met with an accident with five cyclists as a result of which two of the cyclists died on the spot and several others injured and the bus was also considerably damaged. There was a departmental investigation in relation to the accident and the investigation revealed that the appellant was rash and negligent in driving the bus, and that the accident was the result of his rash and negligent driving. He was therefore suspended from service pending enquiry on 24th August, 1970. Thereafter, a show cause notice was issued on 28th September, 1970 asking the appellant to show cause why (1) disciplinary action should not be taken against him, (2) the cost of damages to fleet No. 737 amounting to Rs. 400 should not be recovered from him, and (3) compensation to third parties, if any, paid as and when claimed within the period of three years from the date of the accident should not be recovered from him if he is found guilty and negligent. After getting an explanation from the appellant on 3rd October, 1979 wherein the appellant had stated that he was not responsible for the accident and that the accident was due to the mechanical defect in the vehicle, there was a departmental enquiry by the Traffic Superintendent, who held that the guilt of the appellant was proved beyond any doubt. Based on that enquiry report, a memo containing a provisional conclusion was issued to the appellant calling upon him to show cause why the provisional conclusion of removal from service should not be given effect to. The appellant made his representations to the provisional conclusion memo. In the meanwhile, the appellant was convicted and sentenced to undergo R. I. for one year by Third Presidency Magistrate, C. C. No. 48724 of 1980. The appellant filed an appeal against the said criminal court judgment before the High Court. He therefore, requested the disciplinary authority to wait till the High Court disposed of the appeal filed by him. However, the Director, by a letter dated 29th June, 1973 issued a further notice proposing to dismiss the appellant from service on the basis of conviction by the Criminal Court. After getting a representation from him he was dismissed from service on 7th December, 1973. Subsequently, in the appeal filed by him before the High Court, the appellant was acquitted. In view of the said acquittal, the appellant was reinstated in service from 23rd March, 1974, and the appellant reported for duty on 8th April, 1974.

(3.) THEREAFTER, the appellant claimed for regularisation of the period during which he was out of employment as on duty so that he can claim the full salary payable to him for the period of absence from duty. That request of the appellant was considered by the Director and a show cause notice was issued to the appellant directing him to show cause as to why the period of non-employment should not be treated as leave of any kind due and admissible to him under Fundamental Rule 54 (5 ). To the said show cause notice, the appellant caused a lawyer's notice to be sent wherein it has been stated that the appellant is entitled to claim all dues he is entitled to received as if he has been on duty during the relevant period. However, the Director passed the impugned order, dated 7th February, 1975 holding that the appellant's case falls under Fundamental Rule 54 (2) read with Fundamental Rule 54 (4), that the acquittal in the case of the appellant is no the basis of the poor evidence let in by the prosecution, that by his thoughtless driving he has knocked down five cyclists and dashed his bus against masonry construction resulting in two of the cyclists being killed on the spot and causing injuries to as many as 26 passengers and heavy damages to the vehicle, that he cannot disclaim responsibility for such a gruesome accident and that as such the period of suspension is treated as leave to which he will be eligible under sub-R. (5) of Fundamental Rule 54. It is the correctness of the said order that was challenged in the write petition.