Mansoor Ahmad Mir, C.J.@mdashThis Letters Patent Appeal is directed against the judgment and order, dated 27th July, 2011, passed by the Writ Court in CWP (T) No. 7176 of 2008, titled as Hans Raj versus HRTC and others, whereby the writ petition filed by the appellant-writ petitioner came to be dismissed (hereinafter referred to as "the impugned judgment").
2. It appears that this case has a chequered history. The appellant-writ petitioner has been dragged from pillar to post and post to pillar due to the procedural wrangles and tangles.
3. The appellant-writ petitioner was employed as a driver with the respondents, i.e. Himachal Road Transport Corporation (for short "HRTC"), had driven the bus, bearing registration No. HP-34-3008 on 10th July, 1999. The said vehicle was parked/stopped by the driver, i.e. the appellant-writ petitioner near Village Nal in Sub Division Sundernagar, District Mandi, rolled down, seven passengers died and some passengers sustained injuries. FIR No. 17 of 1999 was lodged at Police Station Sundernagar under Sections 279, 336, 337, 338 and 304-A of the Indian Penal Code (for short "IPC"). During investigation and trial, departmental inquiry was also initiated against the appellant-writ petitioner. The Competent Authority appointed the Inquiry Officer, who submitted his inquiry report to the disciplinary authority. The disciplinary authority issued a show cause notice, dated 26th October, 2002 (Annexure PC to the writ petition). The appellant-writ petitioner was asked to file written statement/defence/representation to show cause as to why major penalty be not imposed upon him as per the mandate of Rule 11 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965 (for short "the Rules"). He filed reply on 1st December, 2002 (Annexure PD to the writ petition). The disciplinary authority imposed the penalty of termination of services vide order, dated 17th January, 2003 (Annexure PE to the writ petition). The appellant-writ petitioner filed appeal against the said order before the Appellate Authority, i.e. the Managing Director, Himachal Road Transport Corporation, Shimla, on 17th February, 2003, (Annexure PF to the writ petition), was allowed vide order, dated 22nd May, 2003 (Annexure PG to the writ petition) whereby order, dated 17th January, 2003 was set aside with a command to the disciplinary authority to pass appropriate penalty orders as per the mandate of Rule 11 of the Rules. It is apt to reproduce para 4 of order, dated 22nd May, 2003 (Annexure PG to the writ petition) herein:
"4. Now, therefore, the undersigned after careful consideration of the appeal and in exercise of the powers vested under CCS (CCandA) Rules, 1965 and all other powers enabling the undersigned in this behalf hereby quash and set-aside the penalty orders passed by the Divisional Manager, Mandi, vide order dated 17.01.2003 and remit the case back to him for passing appropriate penalty orders, in this case, as per Rule 11 of the CCS (CCandA) Rules, 1965."
4. In compliance to the orders of the Appellate Authority (supra), the disciplinary authority asked the appellant-writ petitioner to appear in person on 10th June, 2003, at 11.00 a.m. The disciplinary authority again imposed the same penalty, i.e. order of removal from service vide order, dated 1st July, 2003 (Annexure PJ to the writ petition). It is apt to reproduce paras 6, 8 and 9 of order, dated 1st July, 2003 (Annexure PJ to the writ petition) herein:
"6. AND WHEREAS the said Sh. Hans Raj, Driver submitted his reply to the aforesaid show cause notice on 1.12.02 which has duly been considered by the competent authority and found to be un-satisfactory. After taking into consideration the reply of show cause notice and hearing him personally on 27.12.2002 impose the penalty of "termination of services" upon the said Sh. Hans Raj, Driver vide office order No. 9001-02 dated 17.1.2003.
7. ....
8. AND WHEREAS the opportunity for personal hearing was afforded to Sh. Hans Raj, Driver vide office memo No. MD/MANDAL/vig/Hans Raj, Driver/03/2068-69 dated 03.6.03 and the said driver was personally heard on 18.6.2003 by the undersigned.
9. NOW THEREFORE, the undersigned after careful consideration of the case and in exercise of the powers vested in him under Rule-11 of the CCS (CCandA) Rules-1965 and all other powers enabling him in this behalf hereby impose the penalty of "removal from service under Rule-11 (VIII) of CCS (CCandA) Rule''s 1965" upon the said Sh. Hans Raj, Driver, HRTC, Sunder Nager with immediate effect. Further he will get only subsistence allowance for the period he remained under suspension."
5. Feeling aggrieved, the appellant-writ petitioner again questioned the order by the medium of appeal (Annexure PK to the writ petition), which was dismissed by the Appellate Authority vide order, dated 13th August, 2003 (Annexure PL to the writ petition).
6. The writ petitioner-appellant questioned the said orders before the erstwhile H.P. State Administrative Tribunal by the medium of Original Application, was transferred to this Court and came to be registered as CWP (T) No. 7176 of 2008.
7. The respondents resisted the writ petition on the grounds taken in the memo of objections. The Writ Court dismissed the writ petition. Hence, this appeal.
8. We have heard learned counsel for the parties and gone through the record.
9. We are of the considered view that the Writ Court has fallen in an error in dismissing the writ petition for the following reasons:
10. The Appellate Authority was not satisfied by the orders whereunder and whereby the order of removal from service/termination was imposed, set aside the same vide order dated 22nd May, 2003, with the command to the disciplinary authority for passing appropriate penalty orders.
11. The disciplinary authority, after noticing the order made by the Appellate Authority, has not applied the mind while making the order, not to speak of recording the reasons for making the order of removal from service.
12. It is also not mentioned in order, dated 1st July, 2003 (Annexure PJ to the writ petition) that when the appellant- writ petitioner was heard, whether the copy of the inquiry report was furnished to the appellant-writ petitioner and what factors were taken into consideration while imposing major penalty, i.e. removal from service.
13. In fact, the disciplinary authority has again passed the same order and imposed the same penalty which was passed earlier. Thus, one comes to an inescapable conclusion that the disciplinary authority has not complied with the directions of the Appellate Authority and in rush, rather in hot haste, made order, dated 1st July, 2003 (Annexure PJ to the writ petition).
14. The Appellate Authority, vide order, dated 13th August, 2003 (Annexure PL to the writ petition) has not discussed all aspects and a non-speaking order came to be made, is suggestive of the fact how the Appellate Authority has dealt with the file.
15. Learned Single Judge, while dismissing the writ petition, has not gone into these aspects and has not even discussed the issues whether the appellant-writ petitioner was heard in terms of the remand order made by the Appellate Authority and whether the punishment was proportionate.
16. The Writ Court has also given a slip to law by holding that the order is legal without thrashing out whether the finding recorded by the disciplinary authority, whereby major penalty was awarded, was legal and sound and was it within its competence to pass the same order despite the fact that there was direction by the Appellate Authority to pass appropriate penalty orders in terms of Rule 11 of the Rules.
17. The Apex Court in a recent judgment in the case titled as Girish Bhushan Goyal versus Bhel and another, reported in (2014) 1 Supreme Court Cases 82, has discussed about the proportionality and quantum of punishment. It is apt to reproduce paras 13 to 15 of the judgment herein:
"13. The major punishment which is awarded to the appellant through the order of dismissal dated 18-3-2009, is covered under Rule 23(i) of the BHEL Conduct Rules considering that the appellant had reached the age of superannuation. However, the order of termination does not mention any form of criminal charges against him, which is necessary to attract penalty under Rule 23(i) of the BHEL Conduct Rules amounting to dismissal from service. On the other hand, the nature of charges levelled against the appellant was such that he omitted from performing his duty of being a responsible vigilance officer which amounted to being negligent as against being an active participant in colluding with the employees against his employer and acting against the interest of the Company. The consequence of the dismissal order served on him at the end of his service tenure not only results in inflicting disproportionate punishment on him in terms of bad name and reputation, but also deprives the appellant of his retiral benefits for which he has got statutory entitlement for rendering three decades of service to the Company whereas his negligence attracts minor penalty under Rule 23 of the BHEL Conduct Rules.
14. It is pertinent to mention the observation made on this issue by this Court on the premise of similar facts and circumstances. In
"9. There was no charge against the appellant that he had in any way aided or abetted the offence under Section 392 IPC or that he knew that his son had stolen the car and yet he did not inform the police. The appellant, as we have held, was guilty of negligence of not having enquired from his son about the car kept in front of the government quarters occupied by him. The appellant had served the government as a Constable and thereafter as a Head Constable from 7-8-1971 till he was dismissed from service on 28-2-2005 i.e. for 34 years, and for such long service he had earned pension. In our considered opinion, the punishment of dismissal of the appellant from service so as to deprive him of his pension for the service that he had rendered for 34 longs years was shockingly disproportionate to the negligence proved against him.
10. We accordingly, allow this appeal in part and modify the punishment of dismissal from service to compulsory retirement. The LPA and the writ petition filed by the appellant before the High Court are allowed in part. There shall be no order as to costs."
15. Therefore, in view of the principle laid down by this Court in the abovereferred case, we are of the opinion that dismissal order served on the appellant just 6 days prior to his retirement date is exorbitant and disproportionate to the gravity of misconduct particularly, because he was not involved in active collusion with the other employees of the Company who were involved in this incident, for causing financial loss to the respondent Company but was negligent by an act of omission. We also should not lose sight of the fact that the appellant took steps to retrieve the materials which were due against the bill from the suppliers which rectified the error. Accordingly, the order of dismissal served on him is liable to be quashed and is accordingly, quashed. However, we cannot lose sight of the fact that his negligence has caused financial loss to the respondent Company. Therefore, keeping on a par with the punishment awarded to Shri B.S. Rana on ground of misconduct in terms of demotion of lower grade for 3 years as per letter dated 6-6-2011 from the Central Public Information Officer, we award the similar punishment of deduction of one year increment to the appellant as per Rule 23(b) of the BHEL Conduct Rules since the appellant already reached the age of superannuation when the order of dismissal was served on him. Accordingly, the civil appeals rising out of SLPs (C) Nos. 30883-84 of 2012 are allowed."
18. Applying the test to the instant case, the appellant-writ petitioner was facing a criminal trial and stood acquitted. The criminal Court has specifically held, while passing the order, that the prosecution has failed to establish the rashness and negligence on the part of the accused (appellant-writ petitioner).
19. The Writ Court has held that the appellant-writ petitioner is guilty in terms of the award made by the Presiding Officer of Motor Accident Claims Tribunal (for short "MACT"), who, while awarding compensation to the victims of the said accident, held that the driver was negligent.
20. It is not within the jurisdiction, competence and powers of the Tribunal to hold who is guilty. It has to make prima facie findings for limited purpose in order to assess and award compensation. It is for the criminal Court to hold whether the accused (appellant-writ petitioner) has committed or not the offences punishable under Sections 279, 336, 337, 338 and 304A IPC.
21. Granting of compensation to the victims of the vehicular accidents is a social legislation and it is just to save the victims from social evils. The standard of proof in departmental inquiries, criminal cases and claim petitions before the MACT is different. If a person is convicted, that may be a ground for imposing penalty in departmental inquiries. In case acquittal is made, the Authority or the Court has to hold as to what is the effect of the judgment.
22. The Apex Court also in a case titled as
"7. It would hardly need a mention that the plea of negligence on the part of the first respondent who was driving the pick-up van as set up by the claimants was required to be decided by the learned Tribunal on the touchstone of preponderance of probability and certainly not on the basis of proof beyond reasonable doubt.
"(ii) The rules of the pleadings do not strictly apply as the claimant is required to make an application in a form prescribed under the Act. In fact, there is no pleading where the proceedings are suo motu initiated by the Tribunal.
(v) Though the Tribunal adjudicates on a claim and determines the compensation, it does not do so as in an adversarial litigation.
(vi) The Tribunal is required to follow such summary procedure as it thinks fit. It may choose one or more persons possessing special knowledge of and matters relevant to inquiry, to assist it in holding the enquiry."
The following further observation available in paragraph 10 of the report would require specific note:
"We have referred to the aforesaid provisions to show that an award by the Tribunal cannot be seen as an adversarial adjudication between the litigating parties to a dispute, but a statutory determination of compensation on the occurrence of an accident, after due enquiry, in accordance with the statute."
23. The Apex Court in another case titled as
"12. While dealing with a claim petition in terms of Section 166 of the Motor Vehicles Act, 1988, a Tribunal stricto sensu is not bound by the pleadings of the parties; its function being to determine the amount of fair compensation in the event an accident has taken place by reason of negligence of that driver of a motor vehicle. It is true that occurrence of an accident having regard to the provisions contained in Section 166 of the Act is a sine qua non for entertaining a claim petition but that would not mean that despite evidence to the effect that death of the claimant''s predecessor had taken place by reason of an accident caused by a motor vehicle, the same would be ignored only on the basis of a post mortem vis-�-vis the averments made in a claim petition.
13. ....
14. ....
15. In a situation of this nature, the Tribunal has rightly taken a holistic view of the matter. It was necessary to be borne in mind that strict proof of an accident caused by a particular bus in a particular manner may not be possible to be done by the claimants. The claimants were merely to establish their case on the touchstone of preponderance of probability. The standard of proof beyond reasonable doubt could not have been applied. For the said purpose, the High Court should have taken into consideration the respective stories set forth by both the parties."
24. An acquittal in accidental cases cannot be a ground to refuse compensation to the victims. It is apt to reproduce relevant portion of para 3 of the judgment rendered by the Apex Court in a case titled as
"3. Road accidents are one of the top killers in our country, specially when truck and bus drivers operate nocturnally. This proverbial recklessness often persuades the courts, as has been observed by us earlier in other cases, to draw an initial presumption in several cases based on the doctrine of res ipsa loquitur. Accident Tribunals must take special care to see that innocent victims do not suffer and drivers and owners do not escape liability merely because of some doubt here or some obscurity there. Save in plain cases, culpability must be inferred from the circumstances where it is fairly reasonable. The court should not succumb to niceties, technicalities and mystic maybes. We are emphasising this aspect because we are often distressed by transport operators getting away with it thanks to judicial laxity, despite the fact that they do not exercise sufficient disciplinary control over the drivers in the matter of careful driving...."
25. The Writ Court has held that the driver was guilty and upheld the removal order on the ground, which was not the foundation of the removal order.
26. Viewed thus, the learned Single Judge has fallen in an error.
27. It is also a moot question that if the department incurs damages in view of the conduct of its employee, can that be a ground for dismissal from service read with the fact that the Appellate Authority has already remanded the case for passing appropriate penalty orders.
28. The Apex Court in Girish Bhushan Goyal''s case (supra) has held that even if damages are awarded, in absence of any criminal charge, punishment of removal is not justified.
29. The Apex Court in a series of cases has held that the disciplinary authority should pass orders while keeping in view the facts of the case read with the conduct of the employee.
30. It is apt to reproduce paras 35 to 38 of the latest judgment rendered by the Apex Court in
"35. Having regard to the facts and circumstances of this case, we are of the view that it is important to discuss the Rule of the ''Doctrine of Proportionality'' in ensuring preservation of the rights of the workman. The principle of ''Doctrine of Proportionality'' is a well recognised one to ensure that the action of the employer against employees/workmen does not impinge their fundamental and statutory rights. The abovesaid important doctrine has to be followed by the employer/employers at the time of taking disciplinary action against their employees/workmen to satisfy the principles of natural justice and safeguard the rights of employees/workmen.
36. The abovesaid "Doctrine of Proportionality" should be applied to the fact situation as we are of the firm view that the order of termination, even if we accept the same is justified, it is disproportionate to the gravity of misconduct. In this regard, it would be appropriate for us to refer to certain paragraphs from the decision of this Court in the case of
"66. It is clear from the above discussion that in India where administrative action is challenged under Article 14 as being discriminatory, equals are treated unequally or unequals are treated equally, the question is for the Constitutional Courts as primary reviewing Courts to consider correctness of the level of discrimination applied and whether it is excessive and whether it has a nexus with the objective intended to be achieved by the Administrator. Hence the Court deals with the merits of the balancing action of the Administrator and is, in essence, applying ''proportionality'' and is a primary reviewing authority.
67. But where, an administrative action is challenged as ''arbitrary'' under Article 14 on the basis of Royappa (as in cases where punishments in disciplinary cases are challenged), the question will be whether the administrative order is ''rational'' or ''reasonable'' and the test then is the Wednesbury test. The Courts would then be confined only to a secondary role and will only have to see whether the Administrator has done well in his primary role, whether he has acted illegally or has omitted relevant factors from consideration or has taken irrelevant factors into consideration or whether his view is one which no reasonable person could have taken. If his action does not satisfy these rules, it is to be treated as arbitrary. [In
68. Thus, when administrative action is attacked as discriminatory under Article 14, the principle of primary review is for the Courts by applying proportionality. However, where administrative action is questioned as ''arbitrary'' under Article 14, the principle of secondary review based on Wednesbury principles applies."
37. Additionally, the proportionality and punishment in service law has been discussed by this Court in the
"69. The principles explained in the last preceding paragraph in respect of Article 14 are now to be applied here where the question of ''arbitrariness'' of the order of punishment is questioned under Article 14.
70. In this context, we shall only refer to these cases. In
38. With respect to the proportionality of the punishment of ''censure'', it was further observed by this Court in the
"75. After giving our anxious consideration to the above submissions and the facts and the legal principles above referred to, we have finally come to the conclusion that it will be difficult for us to say that among the permission minor punishments, the choice of the punishment of ''censure'' was violative of the Wednesbury Rules. No relevant fact was omitted nor irrelevant fact was taken into account. There is no illegality. Nor could we say that it was shockingly disproportionate. The Administrator had considered the report of Justice Chinnappa Reddy Commission, the finding of the Inquiry Officer, the opinion of the UPSC which was given twice and the views of the Committee of Secretaries. Some were against the officer and some were in his favour. The Administrator felt that there were two mitigating factors (i) the complicated stage at which the officer was sent to DDA, and (ii) the absence of mala fides. In the final analysis, we are not inclined to refer the matter to the Vigilance Commissioner for upward revision of punishment."
31. It also appears that preliminary inquiry was conducted and the Inquiry Officer had, prima facie, made the findings that the conductor, driver and other officials were responsible for the said accident, but no departmental inquiry was drawn against other officials.
32. The question is - what is negligence?
33. The word "negligence" has been defined in the Black''s Law Dictionary, Sixth Edition at page No. 1032 as under:
"Negligence. The omission to do something which a reasonable man, guided by those ordinary considerations which ordinarily regulate human affairs, would do, or the doing of something which a reasonable and prudent man would not do.
Negligence is the failure to use such care as a reasonably prudent and careful person would use under similar circumstances; it is the doing of some act which a person of ordinary prudence would not have done under similar circumstances or failure to do what a person of ordinary prudence would have done under similar circumstances. Amoco Chemical Corp. v. Hill, Del. Super., 318 A.2d 614, 617. Conduct which falls below the standard established by law for the protection of others against unreasonable risk of harm; it is a departure from the conduct expectable of a reasonably prudent person under like circumstances. U.S. v. Ohio Barge Lines, Inc., 606 R.2d 624, 632.
The term refers only to that legal delinquency which results whenever a man fails to exhibit the care which he ought to exhibit, whether it be slight, ordinary, or thoughtlessness, inattention, and the like, while "wantonness'' or "recklessness" is characterized by willfulness. The law of negligence is founded on reasonable conduct or reasonable care under all circumstances of particular case. Doctrine of negligence rests on duty of every person to exercise due care in his conduct toward others from which injury may result...."
34. In The New Oxford Dictionary of English, the word "negligence" has been defined at page No. 1240 as under:
"negligence. noun [mass noun] failure to take proper care over something: a scheme to protect investors in the event of negligence by their financial advisers.
Law breach of a duty of care which results in damage."
35. It would also be profitable to reproduce the definition of the word "negligence" as described in the Webster''s Encyclopedic Unabridged Dictionary of the English Language, at page No. 1285, herein:
" negligence n. 1. the quality, fact, or result of being negligent; neglect: negligence in discharging one''s responsibilities. 2. an instance of being negligent: a downfall brought about by many negligences. 3. Law. the failure to exercise that degree of care that, in the circumstances, the law requires for the protection of other persons or those interests of other persons that may be injuriously affected by the want of such care. - adj. 4. Law. pertaining to or involving a civil action for compensation for damages filed by a person who claims to have suffered an injury or loss in an accident caused by another''s negligence: a negligence suit; a large negligence award."
36. The Apex Court in a case titled as
"11. ...Negligence is failure to use such care as a reasonable, prudent and careful person would use, under similar circumstances. It is doing of some act which a person of ordinary prudence would not have done under similar circumstances or failure to do what a person of ordinary prudence would have done under similar circumstances. Negligence also is an omission to do something which a reasonable man, guided by those ordinary considerations which ordinarily regulate human affairs, would do, or the doing of something which a reasonable and prudent man would not do.
12. Negligence and tort have been viewed without elaborately embarking upon the definition of "tort" applicable to varied circumstances and the scope of negligence in its wider perspective. Let us proceed to consider the meaning of "negligence" in the context of tort liability arising in this case. In every case giving rise to tortious liability, tort consists of injury and damage due to negligence. Claim for injury and damage may be founded on breach of contract or tort. We are concerned in this case with tort. The liability in tort may be strict liability, absolute liability or special liability. The degree of liability depends on degree of mental element. The elements of tort of negligence consist in - (a) duty of care; (b) duty is owed to the plaintiff; (c) the duty has been carelessly breached. Negligence does not entail liability unless the law exacts a duty in the given circumstances to observe care. Duty is an obligation recognised by law to avoid conduct fraught with unreasonable risk of damage to others. The question whether duty exists in a particular situation involved determination of law. Negligence would in such acts and omissions involve an unreasonable risk of harm to others. The breach of duty causes damage and how much is the damage should be comprehended by the defendant. Remoteness is relevant and compensation on proof thereof requires consideration. The element of carelessness in the breach of the duty and those duties towards the plaintiff are important components in the tort of negligence. Negligence would mean careless conduct in commission or omission of an act connoting duty, breach and the damage thereby suffered by the person to whom the plaintiff owes. Duty of care is, therefore, crucial to understand the nature and scope of the tort of negligence."
37. It would also be profitable to reproduce paras 10, 11 and 48 (1) of the judgment rendered by the Apex Court in a case titled as
"10. The jurisprudential concept of negligence defies any precise definition. Eminent jurists and leading judgments have assigned various meanings to negligence. The concept as has been acceptable to Indian jurisprudential thought is well stated in the Law of Torts, Ratanlal and Dhirajlal (24th Edn., 2002, edited by Justice G.P. Singh). It is stated:
"Negligence is the breach of a duty caused by the omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs would do, or doing something which a prudent and reasonable man would not do. Actionable negligence consists in the neglect of the use of ordinary care or skill towards a person to whom the defendant owes the duty of observing ordinary care and skill, by which neglect the plaintiff has suffered injury this person or property...the definition involves three constituents of negligence : (1) A legal duty to exercise due care on the part of the party complained of towards the party complaining the former''s conduct within the scope of the duty; (2) breach of the said duty; and (3) consequential damage. Cause of action for negligence arises only when damage occurs; for, damage is a necessary ingredient of this tort."
11. According to Charlesworth and Percy on Negligence (10th Edn., 2001), in current forensic speech, negligence has three meanings. They are: (i) a state of mind, in which it is opposed to intention; (ii) careless conduct; and (iii) the breach of a duty to take care that is imposed by either common or statute law. All three meanings are applicable in different circumstances but any one of them does not necessarily exclude the other meanings. (para 1.01) The essential components of negligence, as recognised, are three: "duty", "breach" and "resulting damage", that is to say:
(1) the existence of a duty to take care, which is owned by the defendant to the complainant;
(2) the failure to attain that standard of care, prescribed by the law, thereby committing a breach of such duty; and
(3) damage, which is both causally connected with such breach and recognised by the law, has been suffered by the complainant. (para 1.23)
If the claimant satisfies the court on the evidence that these three ingredients are made out, the defendant should be held liable in negligence. (para 1.24)
12 to 47....
48. We sum up our conclusions as under:
(1) Negligence is the breach of a duty caused by omission to do something which a reasonable man guided by those considerations which ordinarily regulate the conduct of human affairs would do, or doing something which a prudent and reasonable man would not do. The definition of negligence as given in Law of Torts, Ratanlal and Dhirajlal (edited by Justice G.P. Singh), referred to hereinabove, holds good. Negligence becomes actionable on account of injury resulting from the act or omission amounting to negligence attributable to the person sued. The essential components of negligence are three: "duty", "breach" and "resulting damage"...."
38. Applying the test, the Inquiry Officer or the disciplinary authority have not made a positive finding that the accident was the outcome of the negligence of the driver only. What were the reasons for not accepting the preliminary report, are not forthcoming.
39. While going through Articles of Charge, it appears that precisely, the charge against the appellant-writ petitioner was that he was negligent in maintaining the vehicle and he had not taken due care and caution while parking the vehicle.
40. Admittedly, if a driver has to stop/park the vehicle, the conductor has to perform the duties and to take all precautions to ensure the safety of the passengers. He had to give signal and to put Gutka/stone with the tyres. The appellant-writ petitioner has specifically stated in his reply (Annexure PD to the writ petition) that the conductor had put Gutka/stone.
41. It would be profitable to reproduce the relevant portion of the duties, functions and conduct of a conductor as mentioned in Himachal Pradesh Motor Vehicles Rules, 1999 (for short "MV Rules") herein:
"32. Duties, functions and conduct of a conductor.
The Conductor of a stage carriage shall;
....
(xvii) take all reasonable precautions to ensure the safety of passengers in or on entering or alighting from the vehicle.
.... "
42. The appellant-writ petitioner has specifically pleaded in para (2) of the Original Application that he stopped the vehicle, the conductor put the stones behind the rear tyres of the vehicle, the same was parked in a heavy gear and switched off. It is apt to reproduce para (2) of the Original Application herein:
"(2) That on 10-7-1999 when the applicant was driving the vehicle No. HP-34-3008, on Sundernagar to Chahe-Ka-Dohra route and when the bus reached near village Nal, the same was parked by the applicant as the road was blocked due to debris on the road. The conductor of the bus get down and the stones were duly supported behind the rear tyres of the vehicle and the vehicle was switched off and parked in a heavy gear and the applicant also got down from the vehicle and was going to the site to see the factual position of the road. Most of the passengers also got down from the vehicle and few passengers remained sitting in the bus-vehicle."
43. The respondents have not denied the said factum while filing reply to the Original Application. It is apt to reproduce para 2 of the reply on merits herein:
"2. Para No. 2 of Original application needs no reply."
44. A fact not denied specifically is deemed to have been admitted.
45. This aspect was also not discussed by the Inquiry Officer, the disciplinary authority, the Appellate Authority and by the Writ Court.
46. In terms of mandate of Rule 14 of the Rules, the disciplinary authority has to furnish copy of the Inquiry Report alongwith its findings, if any, and to ask the employee to show cause. It is not mentioned in the first show cause notice, dated 26th October, 2002 (Annexure PC to the writ petition) read with the removal order, dated 17th January, 2003 (Annexure PE to the writ petition) that copy of final report alongwith report of disciplinary authority was furnished to the appellant-writ petitioner, which is mandatory.
47. Even on remand, the disciplinary authority has not furnished the copy of Inquiry Report to the appellant-writ petitioner. At the cost of repetition, he has only passed a mechanical order, that too, the same order in the same fashion, which was made by the disciplinary authority on 17th January, 2003.
48. Having said so, we deem it proper to allow the appeal, set aside the impugned judgment, grant the writ petition and set aside the order of Appellate Authority as well as the disciplinary authority with a command to the disciplinary authority to furnish a copy of the Inquiry Report to the appellant-writ petitioner, hear him and pass appropriate/proportionate penalty orders while keeping in view the order of the First Appellate Authority, dated 22nd May, 2003, read with the discussions made hereinabove.
49. Accordingly, the appeal is allowed, as indicated hereinabove. All pending applications are also disposed of.
