Tagat Singh vs Raj.State Road Transport Corp
2022 Latest Caselaw 12647 Raj

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Writ Petition No. 11773/2010

Tagat Singh s/o Shri Roop Singh, by caste Rajput, aged 40 years, resident of Ketukella, Tehsil Shergarh, District Jodhpur

----Petitioner Versus

1. Rajasthan State Road Transport Corporation, Parivahan Marg, Jaipur through Chairman cum Managing Director, RSRTC, Jaipur.

2 Executive Director (Admn.) Rajasthan State Road Transport Corporation, Head Office, Parivahan Marg, Jaipur.

3. Zonal Manager (Appellate Authority), Jodhpur Zone, Jodhpur.

4. The Chief Manager Rajasthan State Road Transport Corporation, Jodhpur Depot, Jodhpur.

                                                                     ----Respondent


For Petitioner(s)          :     Mr. R.S. Choudhary
                                 Mr. Sumer Singh Gaur
For Respondent(s)          :     Mr. Harish Purohit


            HON'BLE MR. JUSTICE KULDEEP MATHUR

                                      Order

21/10/2022

Briefly stated facts of the case are that the petitioner was

employed by the respondent-corporation in the capacity of a

driver vide order dated 17.04.1991. The petitioner was initially

engaged on contractual basis however, vide order dated

18.02.2006, services of the petitioner were regularised w.e.f.

10.01.2006. On 29.04.2007, the bus No.RJ-22-P-1137, driven by

the petitioner from Jodhpur to Jaisalmer, on its way, met with an

accident near Barli resulting in death of three persons riding on a

motorcycle. A charge-sheet dated 16.05.2007, was served upon

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the petitioner, alleging inter alia that due to rash and negligent

driving by the petitioner, the bus met with an accident causing the

death of three persons. Further, it was alleged that due to

petitioner's negligence, the bus had been seized by the police

resulting in non-completion of journey, thereby causing financial

loss and damage to reputation of the respondent-corporation. The

charge-sheet dated 16.05.2007 lastly stated that proceedings will

mandatorily be conducted as per the provisions of Rajasthan State

Transport Workers' Standing Orders, 1965 (hereinafter as

'Standing Orders of 1965').

The petitioner replied to the charge sheet dated 16.05.2007

vide letter dated 04.06.2007 denying the charges levelled against

him. In the reply, it was stated that the accident occurred when

the petitioner pursuing to overtake a tractor, asked for side and in

the process, a motorcycle with three passengers also trying to

overtake the same tractor, suddenly came to the left side of the

road resulting in collision with the bumper of the bus of the

respondent-corporation. It was further stated that the petitioner in

order to prevent the collision, drove to the right side of the road

but to no avail as motorcycle-rider rode in violation of traffic rules.

The disciplinary authority dissatisfied with the petitioner's

reply appointed one Shri. JP Sharma on 06.06.2007 as enquiry

officer. An enquiry was conducted the enquiry officer as per the

procedure laid down in the Standing Orders of 1965. The enquiry

officer after thoroughly going through the documents and

examining the witnesses, prepared the enquiry whereby the

charges levelled against the petitioner in the charge-sheet dated

16.05.2007 were found not to be proved. However, the

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disciplinary authority vide order dated 12.11.2007 appointed one

Shri. OP Verma (hereinafter referred to as 'second enquiry officer')

as new enquiry officer for conducting inquiry afresh. Thereupon,

second enquiry officer submitted enquiry report (hereinafter

referred to as 'subsequent enquiry report') dated 17.12.2007

holding the charges levelled in the charge sheet 16.05.2007 to be

proved as against the petitioner. The findings arrived at by the

second enquiry officer in subsequent enquiry report were accepted

by the disciplinary authority which in turn vide office order dated

30.09.2009 imposed punishment of termination upon the

petitioner. The petitioner filed an appeal against order dated

30.09.2009 before Executive Director, which came to be dismissed

vide order dated 29.11.2010, passed by the appellate-authority.

Aggrieved by order dated 30.09.2009 as affirmed in appeal by the

appellate authority vide order dated 29.11.2010, present writ

petition has been filed.

Learned counsel for the petitioner submitted that

immediately after the unfortunate accident which transpired on

29.04.2007, one Shri Balkishan, J.E.N. working in respondent-

corporation, was sent to the accident site for enquiring and

preparing a report of the incident. Shri Balkishan during cross

examination, admitted that the motorcycle overtook from wrong

side. It was also admitted that the petitioner is partially

responsible for the accident. Counsel further submitted that all the

witnesses, examined by the enquiry officer stood the test of cross

examination stating that the bus was not driven in a rash and

negligent manner by the petitioner and therefore, the petitioner

cannot be held responsible for the unfortunate accident. Counsel

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further submitted that the first enquiry officer after considering

the evidence placed on record and the documents exhibited before

him through a reasoned report had found the charges levelled

against the to be not proved.

Counsel vehemently submitted that second enquiry officer

prepared inquiry report in a perfunctory manner without properly

considering the material placed on record holding the charged

against the petitioner as proved. Further, it was argued that the

disciplinary authority failed to consider the material placed before

it and imposed penalty of termination upon the petitioner vide

order dated 30.09.2007. Counsel emphatically submitted that the

appellate authority vide order dated 29.11.2010, dismissed the

appeal filed against termination order dated 30.09.2007 in a

cursory manner without appreciating the grounds raised by the

petitioner. Counsel submitted that the F.I.R. was lodged against

the petitioner at PS Accident (West) Jodhpur for offences

punishable under Sections 279 and 304-A IPC in relation to the

accident.

Counsel urged that the competent criminal court after

conducting trial vide order dated 16.11.2009 had acquitted the

petitioner of the charges levelled in the FIR therefore, termination

order dated 30.09.2009 passed by disciplinary authority and order

dated 29.11.2010 passed by the appellate authority may be

quashed and set aside.

Per contra, learned counsel for the respondents submitted

that enquiry was conducted against the petitioner pursuant to

charge sheet dated 16.05.2007 complying with the provisions of

Standing Order of 1965 in letter and spirit. Counsel further

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submitted that disciplinary authority was well within its domain to

order re-enquiry by appointing second enquiry officer since the

findings arrived at by the enquiry officer were found not to be in

consonance with the material produced during departmental

enquiry. Learned counsel also submitted that the disciplinary

authority after receiving subsequent report dated 17.12.2009,

examined the entire documents relied upon by the enquiry officer

i.e. enquiry report, statement of the petitioner etc. and reached to

a definite finding that the petitioner was guilty of the charges.

Counsel thus submitted that the disciplinary authority in

agreement with the subsequent enquiry report, vide order dated

30.09.2009 terminated services of the petitioner. Counsel urged

that criminal proceedings and departmental proceedings cannot be

equated as both are governed by different yardsticks of proof and

procedure therefore, acquittal in the criminal case by extending

benefit of doubt does not entitled petitioner to claim reinstatement

in services.

Heard learned counsel for the parties and perused material

available on record.

Hon'ble the Supreme Court in the case of President, Nagar

Panchayat Umari v Shaym Charan Chaturvedi (Civil Appeal

No. 2515 of 2021) held as under:

"A departmental proceeding against a delinquent is a serious matter as it has its repercussions which can be far reaching. It is trite law that the departmental proceedings are quasi-judicial proceedings. The enquiry officer functions in a quasi-judicial capacity. He has a neutral role to perform and cannot act as a representative of the management. He has to act as an independent and impartial officer to find out the truth. The major punishment awarded to an employee visit serious civil consequences and as such the departmental

(6 of 10) [CW-11773/2010]

proceedings ought to be in conformity with the principles of natural justice. Even if, an employee prefers not to participate in enquiry the department has to establish the charges against the employee by adducing oral as well as documentary evidence. In case charges warrant major punishment then the oral evidence by producing the witnesses is necessary. The question of any cross examination by the delinquent arises subsequent to the charges having been prima facie established in accordance with law. If the charges are not established in accordance with law, there is nothing for the delinquent to deny."

It is a settled law that the departmental proceedings being

quasi-judicial proceedings, enquiry officer performs quasi judicial

functions, therefore, the charges levelled against delinquent

officer must be found to have been proved. The enquiry officer has

a duty to arrive at a finding taking into consideration the material

brought on record by the parties. True it is that the charges in a

departmental proceedings are not required to be proved like in a

criminal trial i.e. beyond all reasonable doubt. However since, the

enquiry officer performs a quasi judicial function, it is incumbent

upon him to arrive at a just conclusion while taking into

consideration the material produced before him. The enquiry

officer cannot shift the burden of proof upon the delinquent and

cannot reject the relevant testimony of the witnesses only on the

basis of surmises and conjectures.

In the instant matter from the facts stated, it is apparent

that immediately after accident, Shri. Balkishan, an officer of the

respondent-corporation inspected the site of the accident and

prepared a report. During the course of examination, Shri

Balkishan specifically stated that the motorcycle in order to

overtake came in front of the bus from the wrong side, however,

had the bus been driven carefully the unfortunate incident could

(7 of 10) [CW-11773/2010]

have been averted. The official also stated negligence was only

partially attributable to the petitioner for the occurrence of

accident. No statement was made by the official about rash

driving on part of the petitioner. All the witnesses examined by

enquiry officer which also includes passengers of the bus, stated

that the accident occurred on account of the motorcycle being

ridden in violation of traffic rules leading to collision with the

bumper of the bus being driven by the petitioner on the left side.

None of the witnesses alleged negligence on part of the bus driver

or his being guilty of rash and negligent driving.

The initial enquiry officer appointed by the disciplinary

authority after thoroughly examining the witnesses and perusing

the documents produced before him, prepared enquiry report

concluding that the charges levelled against the petitioner to be

not proved. However, the said/initial enquiry report was not

accepted by the disciplinary authority which subsequently

appointed second enquiry officer.

The second enquiry officer after examining the witnesses and

documents, already considered at length by the initial enquiry

officer, vide enquiry report dated 17.12.2007, held the charges

levelled against the petitioner to be proved. At this stage, it would

be apposite to reproduce the conclusions drawn by the second

enquiry officer in subsequent enquiry report dated 17.12.2007:-

" tkap dk;Zokgh ds le; fy[ks x;s c;ku] dh xbZ ftjg] ;kf=;ksa ds c;ku] okgunq?kZVuk fjiksZV ,oa vU; miyC/k nLrkostks ls fofnr gksrk gS fd%&

& vkjksfir dh M;qVh fnukad fnukad 29-04-07 dks okgu la- 1137 ij pkyd in dh FkhA

(8 of 10) [CW-11773/2010]

& okgu dh nq?kZVuk gqbZ ftleas rhu ;kf=;ksa dh e`R;q gks xbZA ;g izk.k?kkrd nq?kZVuk gSA & okgu dh nq?kZVuk fjiksZV ls Li'V gksrk gS fd%& A) fiNokM+s dh Vddj gSA B) fuxe okgu esa ,d gtkj dh {kfr gqgZ gSA C) okgu dh nksuksa dh fn"kk;sa xyr FkhA D) okgu dh LihM 35&40 dh FkhA E) fuxe pkyd }kjk cgqr lehirk ls vuqxeu djuk o eksVj lkbZfdy pkyd vuqfpr rjhds ls fudkyus ds dkj.k ^^,d okgu ls nwljs okgu ds chp nwjh dk lgh vkdyu dj vksojVsd djuk pkfg,** & eksVj lkbZfdy ij rhu O;fDr lokj Fks ftldh iqf'V Hkh FIR ls gh gksrh gSA ;krk;kr fu;eksa ds vuqlkj eksVj lkbZfdy ij 3 O;fDr cSBdj ;k=k djuk xyr gSA & vkjksfir }kjk FIR ntZ ugha djkbZ ftlls fd iqfyl esa vuqla/kku djrs le; vkjksfir dh ckr dks Hkh lquk tkuk A ;gka vkjksfir us drZO;ksa dk ikyu ugha fd;kA & okgu nq?kZVuk vVsUMdrkZ us ftjg esa ^^vkjksfir dk vkaf"kd :i ls nks'kh ekuk gS** A & vkjksfir] vU; f"k0 drkZ us ftjg esa ekuk gS fd ^^eksVj lkbZfdy okyk] bUgksaus tc VSDVj ls vksojVsd dj jgs Fks] vpkud chp esa eksVj lkbZfdy vk tk;s rks nq?kZVuk gksuk LoHkkfod gS** A & vkjksfir }kjk xokg is"k fd;s gS & os ,drjQk xokg gSA muds vuqlkj vkjksfir dh xyrh ugha ekudj] eksVj lkbZfdy lokj dh ekuh gSA vr% eSa bl fu'd'kZ ij igqapk g¡w fd i= la- 464 fn- 16- 05-07 esa of.kZr vkjksi esa deZpkjh ds fo:) ;k=k drZO;ksa dk ikyu iw.kZ :i ls ugha djus dk nks'kh ekurk gw¡A"

(emphasis supplied)

In view of catena of judgments rendered by Hon'ble the Apex

Court and this Court, it is imperative that every enquiry report

must contain reasons on which the conclusion is based for the

reason that it results in deprivartion of livelihood or attaches

stigma to the character of the delinquent. The tenor of the report

clearly shows that the second enquiry officer had made up his

mind to find the petitioner guilty of the charge. As otherwise, no

material was available on record to show that the petitioner was

guilty of causing accident due to rash and negligent driving. The

enquiry officer is expected to function independently while

(9 of 10) [CW-11773/2010]

conducting a departmental enquiry, evaluating the evidence and

recording his findings/conclusions on the charges levelled against

the delinquent officer.

From the perusal of reproduced portion of the inquiry report,

it reveals that the second inquiry officer placed total reliance on

the report of accident purportedly prepared by accident attendant

i.e. Shri Balkishan and had not recorded independent reasons on

the basis of which he has reached to the conclusion that the

petitioner was driving the bus rash and negligently resulting into

the unfortunate accident, which occurred on 29.04.2007. Though

that was the basic charge against the petitioner. Further, the

statement of Shri Balkishan cannot be read in isolation, without

there being corroboratory evidence.

As far as the allegations with regard to criminal case against

the petitioner in connection with the accident which occurred on

29.04.2007, is concerned, suffice it to note that a competent

criminal court vide order dated 06.11.2009 after examining

thirteen witnesses and other material had acquitted petitioner of

the offences punishable under Sections 279 and 304-A IPC.

The disciplinary authority ignoring the material of

departmental enquiry and evidence adduced before enquiry officer

accepted the inquiry report dated 17.12.2007 by second enquiry

officer and held the petitioner guilty of causing accident resulting

in loss of life and loss to corporation due to rash and negligent

driving. The disciplinary authority has observed that had the

petitioner was not guilty, he ought to have filed an FIR

immediately after the incident. However, the factum regarding

petitioner being acquitted by competent court has been totally

(10 of 10) [CW-11773/2010]

ignored. The appellate authority too ignored the material placed

before it by the petitioner in the departmental appeal and without

any application of mind rejected the appeal.

In the result, this petition for writ is allowed. The order dated

30.09.2007 passed by disciplinary authority terminating the

petitioner from services is declared illegal and the same is hereby

quashed. The order dated 29.11.2010 passed by appellate

authority affirming the order dated 30.09.2007 is also declared

illegal, therefore, the same is also quashed. The petitioner is

decalred entitled to be reinstated in service with all consequential

benefits which would include notional pay fixation except back

wages for the period, he remained out of employment in

pursuance to the order of termination dated 30.09.2007.

No order as to costs.

(KULDEEP MATHUR),J KshamaD

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