1. Heard Sri Virendra Kumar Shukla, learned counsel for the petitioner and Sri Jitendra Bahadur Singh, Advocate for the respondents.
2. Admittedly, petitioner is a Driver in Uttar Pradesh State Roadways Transport Corporation (hereinafter referred to as "UPSRTC"). On 5.11.1996, he was driving bus no.U.P.42 B/2573 when he met an accident in which a person died. The police made inquiry and found that air pipe of vehicle got burst as a result whereof break and emergency break both did not function and it resulted in the accident.
3. The heirs of deceased person filed a claim petition before Motor Accident Claims Tribunal numbered as MACP No.212/70/96 in which compensation of Rs.1,54,598/- along with interest was granted. Thereafter, a charge sheet was issued to the petitioner and Enquiry Officer submitted report, Annexure 7 to the writ petition, in which instead of getting the charge proved by the department or considering petitioners defence, simply relying on order passed by Motor Accident Claims Tribunal that compensation was awarded therein as a result of accident, petitioner was held guilty of compensating UPSRTC by directing to pay to the extent of amount of compensation was awarded. Pursuant thereto the impugned order of recovery of Rs.1,54,598/- has been issued by Assistant Regional Manager, UPSRTC, Faizabad Region, Faizabad.
4. Counsel for the petitioner submitted:
i. The charge has not been proved by respondent still the impugned order of punishment has been passed.
ii. In any case, once accident occurred on account of technical and mechanical fault in the vehicle, there was no negligence on the part of the petitioner and there was no misconduct whatsoever and no penalty could have been imposed.
5. Counsel for the respondents tried to justify the order impugned in the writ petition on the basis of reasons stated therein though he admits that except relying on award dated 10.12.1999 passed by Motor Accident Claims Tribunal, there is no other finding in respect to proof of guilt of petitioner.
6. The award of Tribunal could not have been read in evidence so as to prove the guilt of negligence against petitioner, inasmuch as, neither this issue was considered by Tribunal nor petitions was a party therein so as to have any opportunity to defend himself. The Tribunal's award is an evidence only to show that claim was made and a particular order of compensation was passed by Tribunal. It could not have been treated to be an evidence for any other purpose, moreso, to hold petitioner guilty of negligence but neither there was an issue therein nor any finding in this respect after giving opportunity to the petitioner has been recorded.
7. Dealing with admissibility of judgment, as an evidence, the matter has been examined by Special Bench of this Court in The Sunni Central Board of Waqfs U.P. Lucknow Vs. Sri Gopal Singh Visharad, [2010 ADJ 1 (SFB) (LB)] and in the judgment delivered by myself (Hon'ble Sudhir Agarwal, J.) in paras 3038, 3039, 3040, 3342 to 3344, said:
"3038. Moreover, a judgment by itself is not a piece of evidence except to the extent it is provided under Section 41 to 43 of the Evidence Act.
3039. In the context of Section 43 of Evidence Act, it is no doubt true that a judgment is admissible provided it is a relevant fact in issue as held in Seth Ramdayal Jat Vs. Laxmi Prasad (Supra). In a civil case, the judgment of a Criminal Court may be relevant where the fact in issue is about the existence of such a judgment or not, but not more than that. The evidence discussed in the judgment of a Criminal Court or the fact that a person has confessed his guilt in his statement is not admissible in evidence in a civil suit. This is what was held in Perumal Vs. Devarajan & others AIR 1974 Mad. 14 and was quoted with approval in Seth Ramdayal Jat (supra). The Apex Court also approved a Patna High Court decision in Lalmani Devi & others Vs. Jagdish Tiwary & others AIR 2005 Pat. 51. The Court said that acquittal or conviction in a criminal case has no evidentiary value in a subsequent civil litigation except for the limited purposes of showing that there was a trial resulting in acquittal or conviction, as the case may be. The findings of the Criminal Court are inadmissible. The Apex Court also followed its earlier decision in Anil Behari Ghosh Vs. Smt. Latika Bala Dassi & others AIR 1955 SC 566 taking the same view. There appears to be a somewhat different authority in Shanti Kumar panda (supra) where an observation was made that an order passed by the Executive Magistrate in proceedings under Section 145/146 Cr.P.C. is an order by a Criminal Court based on a summary inquiry. The order is entitled to respect and weight before the competent Court at the interlocutory stage. In Ramdayal Jat (supra), the Apex Court observed that this observation in Shanti Kumar Panda (supra) is per incurrium being in conflict of a three-Judges decision in K.G. Premshanker Vs. Inspector of Police & another JT 2002 (8) SCC 87. The argument of possibility of conflict in decisions was rejected in Seth Ramdayal Jat (supra) stating:
"27. In regard to the possibility of conflict in decisions, it was held that the law envisages such an eventuality when it expressly refrains from making the decision of one Court binding on the other, or even relevant, except for certain limited purposes, such as sentence or damages. It was held that the only relevant consideration was the likelihood of embarrassment."
3040. The Court further held that the Civil Court must decide a suit on its own keeping in view the evidence which have been brought on record before it and not in the light of the evidence brought on record in the criminal proceedings. The Court also observed that an earlier decision in M/s Karam Chand Ganga Prasad & another Vs. Union of India & others 1970 (3) SCC 694 holding that the decision of the Civil Court will be binding on the Criminal Courts but the converse is not true was overruled in K.G. Premshanker (supra) and this fact has been noticed also in Syed Askari Hadi Ali Augustine Imam & another Vs. State (Delhi Administration) & another JT 2009 (4) SC 522."
"3342. Moreover, admissibility of judgements as evidence has to be considered in the light of the provisions of Evidence Act. A document may be classified for this purpose in three heads, (1) documents which are per se inadmissible; (2) recitals in judgements not inter parties; and (3) documents or judgements post litem motam. If a judgement is not admissible, not falling within the ambit of Sections 40-42, it must fulfil the conditions of Sections 43 otherwise it cannot be relevant under Section 13 of the Evidence Act. The words 'other provisions of this Act' used in Section 43 would not extend to Section 13, because the Section 13 does not deal with judgements at all. The judgements in personam do not fulfil the conditions mentioned in Section 41 of the Evidence Act, hence, inadmissible. The judgements not inter parties are inadmissible in evidence barring exceptional cases. It would be useful to refer in this regard the Apex Court's decision in State of Bihar and others Vs. Sri Radha Krishna Singh (supra) paras, 123, 126, 127, 128, 129, 131, 133 and 134 as under:
"123. It is now settled law that judgments not inter parties are inadmissible in evidence barring exceptional cases which we shall point out hereafter. In Johan Cockrane v. Hurrosoondurri Debia and Ors.(1854-57) 6 Moo Ind App 494, Lord Justice Bruce while dealing with the question of admissibility of a judgment observed as follows:
"With regard to the judgment of the Supreme Court, it is plain, that considering the parties to the suit in which that judgment was given, it is not evidence in the present case.... We must recollect, however, not only that that suit had a different object from the present, independently of the difference of parties, but that the evidence here is beyond, and is different from, that which was before the Supreme Court upon the occasion of delivering that judgment."
"126. In the case of Gujju Lall v. Fatteh Lall, (1881) ILR 6 Cal 171 a Full Bench exhaustively considered the ambit and scope of Ss 40 to 43 of the Evidence Act and observed thus:
"On the other hand, when in a law prepared for such a purpose, and under such circumstances, we find a group of several sections prefaced by the title "Judgments of Courts of Justice when relevant," that seems to be a good reason for thinking that, as far as the Act goes, the relevancy of any particular judgment is to be allowed or disallowed with reference to those sections.
... ... ...
I have had the opportunity of reading the judgment which the Chief Justice proposes to deliver, as well the observations of my brother Pontifex, in both of which I generally concur, and for the reasons there stated, and those which I have shortly given, I consider the evidence inadmissible."
And Garth, C. J. made the following observations:
". . . it is difficult to conceive why, under Section 42, judgments though not between the same parties should be declared admissible so long as they related to matters of a public nature, if those very same judgment had already been made admissible under Section 13, whether they related to matters of a public nature or not.
"The judgment is not inter parties, nor is it a judgment in rem, nor does it relate to a matter of a public nature. The existence of the judgment is not a fact in issue; and if the existence of the judgment is relevant under some of the provisions of the Evidence Act it is difficult to see what inference can be drawn from its use under these sections"
"Serious consequences might ensue as regards titles to land in India if it were recognised that a judgment against a third party altered the burden of proof as between rival claimants, and much 'indirect laying' might be expected to follow therefrom"(Emphasis supplied)"
"131. We entirely agree with the observations made by the Privy Council which flow from a correct interpretation of Sections40 and 43 of the Evidence Act."
"133. . . . . judgment which is not inter parties is inadmissible in evidence except for the limited purpose of proving as to who the parties were and what was the decree passed and the properties which were the subject matter of the suit. In these circumstances, therefore, it is not open to the plaintiffs-respondents to derive any support from some of the judgments which they have filed in order to support their title and relationship in which neither the plaintiffs nor the defendants were parties. Indeed, if the judgments are used for the limited purpose mentioned above, they do not take us anywhere so as to prove the plaintiff's case."
"134. . . . .Declarations by deceased persons of competent knowledge, made ante litem motam, are receivable to prove ancient rights of a public or general nature. The admission of declarations as to those rights is allowed partly on the ground of necessity, since without such evidence ancient rights could rarely be established; and partly on the ground that the public nature of the rights minimises the risks of mis-statement."
3343. In respect to the delcarations made post litem the Apex Court in the above case made observations in para 135 and 136 as under:
"135. . . . . It is equally well settled that declarations or statements made post litem motam would not be admissible because in cases or proceedings taken or declarations made ante litem motam, the element of bias and concoction is eliminated. Before, however, the statements of the nature mentioned above can be admissible as being ante litem motam they must be not only before the actual existence of any controversy but they should be made even before the commencement of legal proceedings.......
"To obviate bias, the declarations must have been made ante litem motam, which means not merely before the commencement of legal proceedings, but before even the existence of any actual controversy, concerning the subject matter of the declarations. . . . ."
"136 . . . . The reason for this rule seems to be that after a dispute has begun or a legal proceeding is about to commence, the possibility of bias, concoction or putting up false pleas cannot be ruled out. This rule of English law has now been crystallised as one of the essential principles of the Evidence Act on the question of admissibility of judgments or documents. . . . In fact, Section 32(5) of the Evidence Act itself fully incorporates the doctrine of post litem motam the relevant portion of which may be extracted thus:
"32. Cases in which statement of relevant fact by person who is dead or cannot be found, etc., is relevant (5) ...the person making the statement had special means of knowledge, and when the statement was made before the question in dispute was raised."
3344. Here we may also refer to para 143 of the above judgments where the Apex Court summerized ratio of the various authorities on the above aspects of the matter and said:
"143. Thus, summarising the ratio of the authorities mentioned above, the position that emerges and the principles that are deducible from the aforesaid decisions are as follows:
(1) A judgment in rem e. g., judgments or orders passed in admiralty, probate proceedings, etc., would always be admissible irrespective of whether they are inter parties or not, (2) judgments in personam not inter parties are not at all admissible in evidence except for the three purposes mentioned above.
(3) On a parity of aforesaid reasoning, the recitals in a judgment like findings given in appreciation of evidence made or arguments or genealogies referred to in the judgment would be wholly inadmissible in a case where neither the plaintiff nor the defendant were parties.
(4) The probative value of documents which, however ancient they may be, do not disclose sources of their information or have not achieved sufficient notoriety is precious little.
(5) Statements, declarations or depositions, etc., would not be admissible if they are post litem motam."
8. In view thereof, I have no hesitation in holding that respondents-UPSRTC has miserably failed to prove charge against petitioner as virtually no inquiry has been conducted against him and therefore, order of recovery is not sustainable.
9. There is another aspect of the matter more serious and goes to the root of the case. The Police submitted report holding that air pipe of vehicle burst as a result whereof break and emergency break failed and did not work, which resulted in the accident. It is nobody's case that petitioner has any role in such mechanical fault of vehicle. It may be due to lack of maintenance on the part of UPSRTC itself, but if something has happened on account of mechanical fault of the vehicle, can it be said that consequence thereof i.e. accident, which occurred and a person died, can be constitute to be such a negligence on the part of the petitioner that it amounts to a misconduct, may be minor, i.e. recovery from the petitioner. In my view, the answer is clearly 'no'. The term 'misconduct' has come across for consideration before this Court time and again and no longer res integra. I have no hesitation in observing that petitioner cannot be said to be guilty of misconduct. On this aspect, my reasons are as under.
10. 'Misconduct' has been defined in Black's Law Dictionary, Sixth Edition at page 999:
"A transgression of some established and definite rule of action a forbidden act, a dereliction from duty, unlawful behavior, wilful in character, improper or wrong behavior, its synonyms are misdemeanor, misdeed, misbehavior, delinquency, impropriety, mismanagement, offence, but not negligence or carelessness."
11. 'Misconduct in Office' has been defined as:
"Any unlawful behavior by a public officer in relation to the duties of his office, wilful 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."
12. 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; carelessness, a forbidden quality of an act, and is necessarily indefinite. Misconduct in office may be defined as unlawful behaviour or neglect by a public officer, by which the rights of a party have been affected."
13. The meaning of 'misconduct' came up for consideration before the Apex Court in the case of Union of India Vs. J. Ahmed, AIR 1979 SC 1022, wherein, explaining the term 'misconduct' the Hon'ble Court held as under :
"It would be appropriate at this stage to ascertain what generally constitutes misconduct, especially in the contest of disciplinary proceedings entailing penalty." (para 10) "Code of conduct as set out in the Conduct Rules clearly indicates the conduct expected of a member of the service. It would follow that that conduct which is blameworthy for the Government servant in the context of Conduct Rules would be misconduct. If a servant conducts himself in a way inconsistent with due and faithful discharge of his duty in service, it is misconduct (see Pearce v. Foster) (1988) 17 QBD 536 (at p.542). A disregard of an essential condition of the contract of service may constitute misconduct [see Laws v. London Chronicle (Indicator Newspaper)]. (1959) 1 WLR 698. This view was adopted in Shardaprasad Onkarprasad Tiwari v. Divisional Supdt., Central Railway, Nagpur Divn., Nagpur, 61 Bom LR 1596: (AIR 1961 Bom 150) and Satubha K. Vaghela v. Moosa RazaF, (1969) 10 Guj LR 23. The High Court has noted the definition of misconduct in Stroud's Judicial Dictionary which runs as under: -
"Misconduct means, misconduct arising from ill motive; act of negligence, errors of judgment, or innocent mistake, do not constitute such misconduct."
In industrial jurisprudence amongst others, habitual or gross negligence constitute misconduct but in Management, Utkal Machinery Ltd. v. Workmen, Miss Shanti Patnaik, (1966) 2 SCR 434: (AIR 1966 SC 1051), in the absence of standing orders governing the employee's undertaking, unsatisfactory work was treated as misconduct in the context of discharge being assailed as punitive. In S. Govinda Menon v. Union of India, (1967) 2 SCR 566: (AIR 1967 SC 1274), the manner in which a member of the service discharged his quasi judicial function disclosing abuse of power was treated as constituting misconduct for initiating disciplinary proceedings. A single act of omission or error of judgment would ordinarily not constitute misconduct though if such error or omission results in serious or atrocious consequences the same may amount to misconduct as was held by this Court in P.H. Kalyani v. Air France, Calcutta, (1964) 2 SCR 104: (AIR 1963 SC 1756), wherein it was found that the two mistakes committed by the employee while checking the load-sheets and balance charts would involve possible accident to the aircraft and possible loss of human life and, therefore, the negligence in work in the context of serious consequences was treated as misconduct. It is, however, difficult to believe that lack of efficiency or attainment of highest standards in discharge of duty attached to public office would ipso facto constitute misconduct. There may be negligence in performance of duty and a lapse in performance of duty or error of judgment in evaluating the developing situation may be negligence in discharge of duty but would not constitute misconduct unless the consequences directly attributable to negligence would be such as to be irreparable or the resultant damage would be so heavy that the degree of culpability would be very high. An error can be indicative of negligence and the degree of culpability may indicate the grossness of the negligence. Carelessness can often be productive of more harm than deliberate wickedness or malevolence. Leaving aside the classic example of the sentry who sleeps at his post and allows the enemy to slip through, there are other more familiar (examples) instances of which (are) a railway cabinman signalling in a train on the same track where there is a stationary train causing headlong collision; a nurse giving intraveious injection which ought to be given intramuscular causing instantaneous death; a pilot overlooking an instrument showing snag in engine and the aircraft crashing causing heavy loss of life. Misplaced sympathy can be a great evil (see Navinchandra Shakerchand Shah v. Manager, Ahmedabad Co.-op. Department Stores Ltd., (1978) 19 Guj LR 108 at p.120). But in any case, failure to attain the highest standard of efficiency in performance of duty permitting an inference of negligence would not constitute misconduct nor for the purpose of Rule 3 of the Conduct Rules as would indicate lack of devotion to duty." (para 11)
14. Again in the case of State of Punjab and others vs. Ram Singh Ex-Constable, (1992) 4 SCC 54 the Hon'ble Apex Court has held as under: -
"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 behaviour; unlawful behaviour, wilful 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." (para 6)
15. In the context of Section 31 of Advocates Act, 1961, the Apex Court in Noratanmal Chouraria Vs. M.R. Murli & another 2004 (5) SCC 689 said:
"Misconduct, inter alia, envisages breach of discipline, although it would not be possible to lay down exhaustively as to what would constitute conduct and indiscipline, which, however, is wide enough to include wrongful omission or commission whether done of omitted to be done intentionally or unintentionally. It means, "improper behaviour, intentional wrongdoing or deliberate violation of a rule or standard of behaviour".
Misconduct is said to be a transgression of some established and definite rule of action, where no discretion is left except what necessity may demand, it is a violation of definite law."
16. In Baldev Singh Gandhi Vs. State of Punjab & others AIR 2002 SC 1124, with reference to the provisions of Punjab Municipal Act, the Apex Court, considering the term 'misconduct' held as under :
" 'Misconduct' has not been defined in the Act. The word 'misconduct' is antithesis of the word 'conduct.' Thus, ordinarily the expression 'misconduct' means wrong or improper conduct, unlawful behaviour, misfeasance, wrong conduct, misdemeanour etc."
17. In view of the aforesaid exposition of law and considering the allegations contained in the order and charge sheet, I am of the view that the allegations levelled against the petitioner do not amount to 'misconduct'. The impugned order, therefore, cannot sustain.
18. In the result, the writ petition is allowed. The impugned order dated 10.4.2007 (Annexure 11 to the writ petition) is hereby quashed. The petitioner shall be entitled to all consequential benefits besides costs, which I quantify to Rs.25,000/-.
Order Date :- 14.8.2014 KA