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Sarvadeo Singh v. Union Of India & Others - WRIT - A No. 12317 of 2001  RD-AH 9129 (8 May 2006)
Civil Misc. Writ Petition No.12317 of 2001
Sarvadeo Singh Vs. Union of India and others
Hon'ble V.C. Misra, J.
Shri Lokendra Kumar, Advocate on behalf of the petitioner and Shri Rai Prakash, Advocate learned counsel for the respondents-Union of India, are present.
Counter and rejoinder affidavits have been exchanged. On the joint request of learned counsel for the parties, this writ petition is being disposed off finally in terms of the Rules of Court, 1952.
This writ petition has been filed by the petitioner who was a Driver in the Central Reserve Police Force (hereinafter referred to as the force), challenging the impugned order dated 23.10.2000 (annexure-5 to the writ petition) passed by respondent no.4 compulsorily retiring the petitioner from service and the order dated 27.1.2001 (annexure-6 to the writ petition) passed by respondent no.3 dismissing his appeal filed against the said impugned order dated 23.10.2000.
The facts of the case in brief are that the petitioner joined the services in the force as Driver on 12.7.1984. The petitioner while discharging his duties of Driver of school bus (Central Reserve Police Force vehicle) on 24.2.2000 at about 1440 hours committed gross negligence and remissness in discharge of his duty as a member of the force by driving the bus carelessly and rashly on the play ground of the school premises resulting in on the spot death of a child named Anurag Dwivedi aged about 6 years, student of class I, by being run over under wheels of the bus at that time when the children were trying to board the bus. The Principal of the institution on the same day lodged a first information report in the police station and a criminal case was registered against the petitioner, which is pending decision. The petitioner was also suspended on the same day and an inquiry was instituted on 25.5.2000. Two charges were framed by the respondent no.4 and charge sheet was issued to him. The said charges are reproduced below :
That the said No.810380099 HC/Dvr Sarva Deo Singh of GC, CRPF, Allahabad while functioning as HC/Dvr in GC, CRPF, Allahabad, committed an act of gross negligence in duty/remissness in the discharge of his duty in his capacity as a member of the Force U/s II (1) of the CRPF Act, 1949 in that owing to careless and rash driving of school bus (CRPF vehicle) Regn. No.38-A-2627 by him, a child named Anurag Dwivedi aged 6 years a student of class I, S/O No.880985513 Ct Chivdeen Dwivedi was run over on 24.2.2000 at about 1440 hrs resulting in his death in the school ground of Kendriya Vidyalaya Old Cantt, Allahabad.
That the said No.810280099 HC/Dvr Sarve Deo Singh of GC, CRPF, Allahabad while functioning as HC/Dvr in GC, CRPF, Allahabad, committed an act of gross negligence in duty/remissness in the discharge of his duty in his capacity as a member of the Force U/S II (1) of the CRPF Act, 1949, owing to careless an rush driving of school bus (CRPF vehicle) Regn. No. HR-38-A-2627 by him and not following the instructions of school bus driving, a child named Anurag Dwivedi aged 6 years a student of class I, S/O No.880985513 Ct. Shivdeen Dwivedi who run over in the school ground of Kendriya Vidyalaya Old Cantt, Allahabad on 24.2.2000 at about 1440 hrs resulting in his death.
The petitioner submitted his reply to the above said charge sheet on 26.6.2000 followed by a representation-dated 24.8.2000. The inquiry proceedings were duly concluded and the inquiry officer submitted his report. The charges were found to be partly proved against the petitioner as one Shri Bhagwat Dutta Shukla who was also accompanying the Driver in the bus as conductor, was also found equally responsible of gross negligence and remissness in discharge of his duty as had he been vigilant he could have prevented the happening of the accident. Constable Bhagwat Dutta Shukla was also charge sheeted. The disciplinary authority did not fully agreed with the report of the inquiry officer to the extent the petitioner was found partly negligent. The authority on the basis of evidence on record found the petitioner as also fully responsible for the accident and vide impugned order dated 23.10.2000 (annexure-5 to the writ petition) compulsorily retired the petitioner from services. Being aggrieved, the petitioner filed an appeal before the appellate authority which too was rejected by a speaking order dated 27.1.2001 (annexure-6 to the writ petition).
The petitioner being aggrieved by the above said impugned order has filed the present writ petition on the grounds, inter alia, that, the penalty imposed by way of compulsory retirement on the petitioner is highly disproportionate to the charges levelled against him and does not commensurate with the gravity of misconduct; the petitioner was not at any fault as the accident occurred on the left back wheels of the bus and he cannot be held responsible for the accident and death of the child; there has never been any complaint whatsoever against the work and conduct of the petitioner; no opportunity of hearing was afforded to the petitioner before passing the impugned orders which was in gross violation of the principle of natural justice and that the impugned orders were hit by Articles 14 and 311 of the Constitution of India.
In the counter affidavit the averments made in the writ petition were duly replied and has been stated that the petitioner did not follow the instructions of the school bus driving in his capacity as a member of the force resulting in the death of the innocent minor child mercilessly crushed to death due to his sheer negligence. It has also been stated that nothing was brought forwarded by the petitioner in his representation dated 24.8.2000 except to what he had already stated in his reply dated 26.6.2000 and since the charges levelled against him stood proved, accordingly, the order dated 23.10.2000 was passed in accordance with law. The appellate authority after examining the entire material thoroughly and carefully with all pros and cons of the case held the appeal to be devoid of merit. It has also been argued that the order of compulsory retirement of the petitioner is absolutely proportionate to the gravity of the offence committed by him. It has been stated that it was not difficult for the driver of bus (the petitioner) to see the children who were running towards the bus from a distance but he kept on driving the bus without caring of the safety of the infant children resulting in the death of one infant child, he stopped the bus only when the other children raised a hue and cry. It is the act of sheer negligence and the effort of the petitioner to shift the entire blame on the left back wheel of the bus does not absolve of his responsibility as a driver of the bus and accordingly he was given punishment commensurate to the offence committed by him which are covered under Section 11 (1) of the Central Reserve Police Force Rules read with Rule 27 and there is no violation of Articles 14 and 311 of the Constitution of India and that the writ petition was misconceived, baseless, absolutely untenable, devoid of merits and deserves to be dismissed with costs.
In the rejoinder affidavit the petitioner has tried to shift the whole responsibility by shifting the burden of negligence on the attendant Shri Bhagwat Dutta Shukla who could have stopped the children from running towards the bus while the driver (petitioner) was busy in parking the bus and there was no deliberate intention of the petitioner to have committed the accident and it was not a case of sheer negligence, the accident was only a chance and the entire liability could not be fastened on the petitioner as reported by the inquiry officer himself, more so, he was a good driver and he had been also given an award of Rs. 1000/- by the department.
Learned counsel for the petitioner has relied upon the Judgment of this Court in the case of Ex Constable Bhagwat Dutt Shukla Vs. Deputy Inspector of General of Police and others passed in Writ Petition No.16283 of 2001, in which it has been held that the attendant appointed on the bus who was on duty had been charge sheeted along with the driver (petitioner) and had been removed from service. His writ petition was dismissed by this Court on 17.1.2003.
Learned counsel for the petitioner has also relied upon a decision given in the case of State of Gujrat Vs. Umedbhai M. Patel reported in (2000) 3 Supreme Court Cases 314, in this case the Hon'ble Apex Court has held that looking into the nature and object of compulsory retirement ordinarily it is not to be treated as the punishment for the purpose of Article 311 of the Constitution of India. In para-8, a reference has been made to the decision given in the case of Allahabad Bank Officers Association Vs. Allahabad Bank reported in (1996) 4 Supreme Court Cases 504 wherein it was held that power to compulsorily retire a government servant is one of the facets of the doctrine of pleasure incorporated in Article 310 of the Constitution. The petitioner has further relied upon a decision in the case of Mohammed Aynuddin alias Miyan Vs. State of Andhra Pradesh reported in AIR 2000 Supreme Court 2511, which was in the matter of rash and negligent driving. The Driver was charged under Section 304-A of the Indian Penal Code, wherein one of the passengers while boarding the bus fell down as the bus moved forward. In para-8 it has been observed that an accident of such a nature prima facie shows that it cannot be accounted to anything other than the negligence of the driver of the vehicle and may create a presumption accordingly, and in such a case the driver has to explain how the accident happened without negligence on his part. Merely, because a passenger fell down from the bus while boarding the bus no presumption of negligence can be drawn against the driver of the bus. Para-9 deals with the rule of evidence to determine the onus of proof in actions relating to negligence. It has been held that the said principles of res ipsa loquitor has application only when the nature of the accident and the attending circumstances would reasonably lead to the belief that in the absence of negligence the accident would not have occurred. It has also been held in para-10 of the said judgment, that "a rash act is primarily an over hasty act. It is opposed to a deliberate act. Still a rash act can be a deliberate act in the sense that it was done without due care and caution. Culpable rashness lies in running the risk of doing an act with recklessness and with indifference as to the consequence. Criminal negligence is the failure to exercise duty with reasonable and proper care and precaution guarding against injury to the public generally or to any individual in particular. It is the imperative duty of the driver of a vehicle to adopt such reasonable and proper care and precaution.
Having heard the learned counsel for the parties and on perusal of the record I find that the petitioner (driver) could not produce any evidence or material in his support, which would prove his vigilance, rather the nature of the accident and the attending circumstances reasonably lead to believe that he drove the vehicle rashly, recklessly without taking reasonable and proper care and precaution which was imperative on his part while driving a vehicle (school bus) when the children were rushing to board it. Had he been vigilant and cautious the accident would not have occurred. The disciplinary authority and the appellate authority after thorough examination and critical scrutiny of the material on record and relevant evidence have arrived at a well reasoned order 23.10.2000 (annexure-5 to the writ petition) passed by respondent no.4 compulsorily retiring the petitioner from service and the order dated 27.1.2001 (annexure-6 to the writ petition) passed by respondent no.3 dismissing his appeal filed against the said impugned order dated 23.10.2000. The petitioner has not been able to demonstrate before this Court that the findings recorded in the said impugned orders suffer from any illegality or error apparent on the face of the record.
For reasons stated hereinabove I am not inclined to exercise my extra ordinary jurisdiction under Article 226 of the Constitution of India. The writ petition is dismissed.
May 8, 2006
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