JUDGMENT Shishir Kumar, J.
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. UP.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 unable 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 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.
3. 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.
4. 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. 1,77,800.00 from the petitioner. A copy of the same has been annexed as Annexure 5 to the writ petition.
5. 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 herein after 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, malafide 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.
6. It has further been submitted on behalf of the petitioner that it is evident from the provisions of Motor Vehicle 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.
7. 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.
8. The reliance has been placed upon a judgment of the Apex Court in State of Punjab and Ors. v. Ram Singh Ex-Constable. In support of the aforesaid contention the petitioner submits that word 'misconduct' has been defined and it has been interpreted in the various judgments by the Apex Court and assuming without admitting this fact, the said act of the petitioner cannot be said to be a misconduct. Para 5 and 6 of the said judgment is reproduced below-
5. Misconduct has been defined in Black's Law Dictionary, Sixth Edition at page 999 thus:
A transgression of some established and definite rule of action, a forbidden act, a dereliction from duty, unlawful behavior, willful in character, improper or wrong behavior, its synonyms are misdemeanor, misdeed, misbehavior, delinquency, impropriety, mis-management, offence, but not negligence or carelessness.
Any unlawful behavior by a public officer in relation to the duties of his office, willful in character. Term embraces acts which the office holder had no right to perform, acts performed improperly and failure to act in the face of an affirmative duty to act.
P.Ramanatha Aiyar's Law Lexicon, Reprint Edition 1987 at page 821 defines 'misconduct' thus:
The term misconduct implies a wrongful intention, and not a mere error of judgment. Misconduct is not necessarily the same thing as conduct involving moral turpitude. The word misconduct is a relative term, and has to be construed with reference to the subject matter and the context wherein the term occurs, having regard to the scope of the Act or statute which is being construed. Misconduct literally means wrong conduct or improper conduct. In usual parlance, misconduct means a transgression of some established and definite rule of action, where no discretion is left, except what necessity may demand and carelessness, negligence and unskilfulness are transgressions of some established, but indefinite, rule of action, where some discretion is necessarily left to the actor. Misconduct is a violation of definite law; carelessness or abuse of discretion under an indefinite law. Misconduct is a forbidden act; careless-ness, a forbidden quality of an act, and is necessarily indefinite. Misconduct in office may be defined as unlawful behavior or neglect by a public officer, by which the rights of a party have been affected.
6. Thus it could be seen that the word 'misconduct' though not capable of precise definition, on reflection receives its connotation from the context, the delinquency in its performance and its effect on the discipline and the nature of the duty. It may involve moral turpitude, it must be improper or wrong behavior; unlawful behaviour, willful in character; forbidden act, a transgression of established and definite rule of action or code of conduct but not mere error of judgment, carelessness or negligence in performance of the duty; the act complained of bears forbidden quality or character. Its ambit has to be construed with reference to the subject matter and the context wherein the term occurs, regard being had to the scope of the statute and the public purpose it seeks to serve. The police service is a disciplined service and it requires to maintain strict discipline. Laxity in this behalf erodes discipline in the service causing serious effect in the maintenance of law and order.
9. In view of the aforesaid fact, the petitioner submits that the order passed by the respondents is liable to be quashed
10. The writ petition was entertained and while entertaining the writ petition this Court vide its order dated 3.4.2002 was pleased to grant time to the respondents to file a counter affidavit and the recovery against the petitioner was stayed. The counter affidavit has been filed and it has been stated that the petitioner was given a show cause notice and was afforded an opportunity of hearing and the impugned order has been passed according to law. Admittedly, due to the negligence of the petitioner one person has died, as such, the punishment of removal from service of the petitioner is not a very severe punishment and recovery of the amount of which the corporation has born a loss. It has also been denied that the Corporation has not suffered the financial loss.
11. I have heard Sri M.K. Gupa, learned Counsel for the petitioner and the learned Standing Counsel who has appeared for the Corporation respondent No 1 and 2 and have perused the record.
12. From the record it is clear that the some accident has taken place and the action against the petitioner has been taken only after when the Claims Tribunal has awarded a compensation to the tune of Rs. 1,77,800/-. It is also clear from the record that the respondent corporation is denied the factum of accident. If that was so, then whether the recovery can be made against the petitioner and the petitioner can be removed from service only on the ground that due to the petitioner's accident had taken place, one person has died. It is now well settled law that a confirmed and permanent employee cannot be terminated from service unless and until the procedure provided under the law is followed. Even a temporary employee who has served in a particular department for a considerable period of time is protected under Article 311 of the Constitution of India, as such, whether an employee can be terminated after issuance of a show cause notice, without holding a disciplinary enquiry. The Apex Court and this Court has clearly held in various cases that if the copy of the enquiry report has not been furnished the total enquiry is vitiated. Even the Court has gone to this extent that if the date, time and place for the purpose of holding an enquiry is not informed to the charged officer, the enquiry is liable to be vitiated. But in the present case, no departmental enquiry is provided under the law has taken place. Only a show cause notice has been given to the petitioner showing therein that as the accident has taken place, due to negligent driving of the petitioner and the corporation has suffered a loss of Rs. 1,77,800/- then why the services of the petitioner be not terminated. In my opinion, this not permissible. If the respondents were of the view that due to negligent driving of the petitioner, an accident has taken place, and the corporation has decided to fixed a liability upon the petitioner, then a proper enquiry, as provided under the law should have taken place. Regulation 64 clearly states that a proper enquiry is to be made and if the same is not made, any order will be in gross violation of the principle of natural justice. Punishment of Removal is a major punishment, as such, the order passed by the respondents is in clear violation of Article 311 of the Constitution of India, Now it is well settled that if an order has been passed without following the proper procedure, as provided under the law and no disciplinary proceeding has taken place, the said order is to be treated in clear violation of principle of natural justice.
13. In view of the aforesaid fact, I am of the opinion, that the punishment awarded against the petitioner is wholly in clear violation of principle of natural justice and has been passed without any notice and opportunity and without holding the disciplinary enquiry against the petitioner, as such, the punishment of removal cannot be passed.
14. In view of the aforesaid fact, the order dated 23.1.2002 (Annexure 5 to the writ petition) is hereby quashed. The writ petition is allowed. The petitioner be reinstated in service with all consequential benefits.
15. There shall be no order as to costs.