D.V. Swamy Vs. Apsrtc and Others - Court Judgment

Excerpt:
service - legality of suspension - apsrtc employees (classification, control and appeal) regulations, 1967 - petitioner suspended during disciplinary enquiry - order passed under regulations of 1967 - order challenged because regulations not published in gazette - contention not tenable - employment of petitioner under that regulation - employer can any time initiate enquiry against employee - suspension order similarly cannot be challenged. - motor vehicles act (59 of 1988)section 149 (2): [v. gopala gowda & jawad rahim, jj] insurers entitlement to defend the action joint appeal by insured and insurer - held, the language employed in enacting sub-section (2) of section 149 appears to be plain and simple and there is no ambiguity in it. it shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in sub-section (2) of section 149 of the act, and no other grounds are available to it. the insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. if insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the legislature and annihilate mandate of the provisions of sections 170 and 149 of the act. the insured can pursue appeal only after giving up the insurer as the appellant and not otherwise. in the instant case, the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. therefore, the joint appeal as filed by the insured and the insurer is not maintainable. section 166: [v. gopala gowda & jawad rahim, jj] claim for compensation accident due to mechanical defect in the vehicle held, it is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. statutory right is conferred on him, accruing by virtue of his employment under insured to claim compensation under workmens compensation act. the insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of section 149 of the act. the right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under workmens compensation act, but also under benevolent provisions under section 166 and 167 of the m.v. act. the right of driver to seek compensation is not restricted only to the workmens compensation act, it has been enlarged to enable such person to seek just compensation (sections 166 and 168), conferring upon him the right of election engrafted under section 167 of the act to choose either of the two forum. the only defence which the insurer could take is limit of its liability as enumerated under section 147 of the act, leading to contest, inter alia, only between insured and insurer and does not impact claimants right to recover the compensation determined by the tribunal which crystallizes into enforceable right against both. in the instant case, the claimant/driver has exercised right of election under section 167 of the act to seek compensation under section 166 of the act resulting in award passed by the tribunal. therefore, the insured and the insurer have no escape but to discharge the said award as directed. undisputedly, in this case as deduced for proved facts, the vehicle in question was not properly maintained by the owner and despite faulty brake system, the claimant had undertaken the hazardous journey to his peril at the behest of and at the instruction of the owner. the owner is therefore, tortfeasor. section 168: [v. gopala gowda & jawad rahim, jj] insurers limit of liability - held, it is well settled that the liability of the insurance company for payment of compensation can be statutory or contractual. is for the insurance company to show that the insurance policy was a statutory policy and not a contractual policy to restrict its liability. that issue was neither raised before the tribunal nor is raised in this appeal requiring decision. thus, if at all the insurer has any valid ground to restrict its liability, it can proceed against the insured but firstly it has to discharge the award as required under section 149 (1) of the act. where the owner/insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the act, instead of seeking compensation under the workmens compensation act. on facts, held, the material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the tribunal in the correct perspective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. the settled principles governing determination of compensation has been given a go-bye. compensation of rs.4,15,150/- awarded by the tribunal was enhanced to rs.8,20,000/-. - otherwise too, it is well known that the regulations are known to all the employees.order1. this wit petition is filed for a writ of mandamus declaring the action of the 3rd respondent-depot manager, arsrtc, anakapally depot, visakhapatnam district in suspending the petitioner and issuing the charge-sheet/ suspension order in proceedings n.ty/ 95(148)/99 akp dated 3-6-1999 and proceeding further by applying and invoking the employees ccca regulations, 1967 as illegal and arbitrary.2. the brief facts of the case are as under :while the petitioner was working as conductor under the respondent-corporation, he was kept under suspension by order dated 3-6-1999, on account of some alleged irregularities. the petitioner has also submitted his explanation on 4-8-1999. an enquiry officer was also appointed to hold a detailed enquiry and till now no action has been taken. aggrieved by this, he has filed the present writ petition.3. the learned counsel for the petitioner assailed the impugned order mainly on two grounds. firstly he contended that the apsrtc employees (classification, control and appeal) regulations (hereinafter referred to as 'the regulations'), under which the impugned orders were issued, were not published in the gazette as contemplated under section 23 of the general clauses act and hence the said regulations do not have any statutary force and, therefore the order of suspension passed under the said regulations is not valid. secondly he contended that the petitioner does not come within the definition of employee and there being no standing orders of apsrtc governing the workman, he cannot be suspended. according to him, the employees of the corporation who are governed by the regulation alone can be suspended, but not the workman and since the petitioner being a 'workman' as defined under section 2(s) of the industrial disputes act, 1946, the procedure contemplated under the said act has to be followed for initiating disciplinary proceedings. therefore, he submits that the respondent-corporation has no jurisdiction to initiate disciplinary action against the petitioner under the regulations.4. the respondent-corporation filed a counter-affidavit denying all the allegations made by the petitioner and prayed for dismissal of the writ petition.5. on similar set of facts and contentions, a learned single judge of this court in wp no. 14765 of 1999 after careful consideration, rejected the contentions raised by the petitioner therein. even the appeal in wa no. 1170 of 1999 filed against that order was dismissed, confirming the order of the learned single judge. the division bench of this court while confirming the order of the learned single judge, relied on a judgment of the supreme court in b.k. srinivasan v. state of karnataka : [1987]1scr1054 . the division bench further held as under :'it was not the case set up by the petitioner that no publication of the regulations has been effected in any other mode than the gazette. otherwise too, it is well known that the regulations are known to all the employees. it is not the case of the petitioner that he did not know the regulations. the appointment letter itself contains the conditions that he is appointed subject to the regulations. he cannot revert back and now say that he does not know any regulations being in existence.'6. therefore, the division bench held that the mode adopted by the corporation with regard to publication of the regulations was reasonable. in the judgment it was further observed as under:'there is no gain-saying that since the regulations provided for the employees of the corporation includes the workmen, the workmen cannot be dealt with as a separate or distinct category. even otherwise, the benefit claimed by the petitioner in exercise of the writ jurisdiction is that there is no authority to suspend him under the regulations, which have not come into force. the petitioner cannot revert back to the provisions of industrial law. in case he wants to take the benefit of industrial law he was at liberty to raise the industrial dispute.'7. therefore, in the light of the judgment of the division bench of this court, the first contention raised by the petitioner cannot be accepted.8. the next question that falls for our consideration is whether the petitioner can be suspended by the employer/corporation pending departmental enquiry. admittedly the petitioner is an employee of the corporation and, therefore, the relationship of master and servant is very much in existence. if that were the case, it is implied authority of the employer to keep its employees under suspension under the course of disciplinary action. in the decision reported in r.p. kapur v. union of india, : (1966)iillj164sc , the hon'ble supreme court held that the authority entitled to appoint a public servant would be entitled to suspend him pending a departmental enquiry into his conduct or pending a criminal proceeding, which may eventually result in a department enquiry against him. the general principle is illustrated by the provision in section 16 of the general clauses act, which is in consonance with the general law of master and servant.9. therefore, viewed from any angle, 1 hold that the petitioner cannot question the impugned orders of suspension.10. the petitioner further contends that he sought for the access of certain documents during the course of enquiry and the enquiry officer did not permit the same. though this plea was taken up, the learned counsel for the petitioner is not serious about this contention.11. therefore, for the foregoing reasons, the writ petition is liable to be dismissed as devoid of merits and is accordingly dismissed. no costs.

Judgment:
ORDER

1. This wit petition is filed for a writ of mandamus declaring the action of the 3rd respondent-Depot Manager, ARSRTC, Anakapally Depot, Visakhapatnam District in suspending the petitioner and issuing the charge-sheet/ suspension order in proceedings N.Ty/ 95(148)/99 AKP dated 3-6-1999 and proceeding further by applying and invoking the Employees CCCA regulations, 1967 as illegal and arbitrary.

2. The brief facts of the case are as under :

While the petitioner was working as Conductor under the respondent-Corporation, he was kept under suspension by order dated 3-6-1999, on account of some alleged irregularities. The petitioner has also submitted his explanation on 4-8-1999. An enquiry officer was also appointed to hold a detailed enquiry and till now no action has been taken. Aggrieved by this, he has filed the present writ petition.

3. The learned Counsel for the petitioner assailed the impugned order mainly on two grounds. Firstly he contended that the APSRTC Employees (Classification, Control and Appeal) Regulations (hereinafter referred to as 'the Regulations'), under which the impugned orders were issued, were not published in the gazette as contemplated under Section 23 of the General Clauses Act and hence the said Regulations do not have any statutary force and, therefore the order of suspension passed under the said Regulations is not valid. Secondly he contended that the petitioner does not come within the definition of employee and there being no standing orders of APSRTC governing the workman, he cannot be suspended. According to him, the employees of the Corporation who are governed by the Regulation alone can be suspended, but not the workman and since the petitioner being a 'workman' as defined under Section 2(s) of the Industrial Disputes Act, 1946, the procedure contemplated under the said Act has to be followed for initiating disciplinary proceedings. Therefore, he submits that the respondent-Corporation has no jurisdiction to initiate disciplinary action against the petitioner under the Regulations.

4. The respondent-Corporation filed a counter-affidavit denying all the allegations made by the petitioner and prayed for dismissal of the writ petition.

5. On similar set of facts and contentions, a learned single Judge of this Court in WP No. 14765 of 1999 after careful consideration, rejected the contentions raised by the petitioner therein. Even the appeal in WA No. 1170 of 1999 filed against that order was dismissed, confirming the order of the learned single Judge. The Division Bench of this Court while confirming the order of the learned single Judge, relied on a judgment of the Supreme Court in B.K. Srinivasan v. State of Karnataka : [1987]1SCR1054 . The Division Bench further held as under :

'It was not the case set up by the petitioner that no publication of the Regulations has been effected in any other mode than the gazette. Otherwise too, it is well known that the Regulations are known to all the employees. It is not the case of the petitioner that he did not know the Regulations. The appointment letter itself contains the conditions that he is appointed subject to the Regulations. He cannot revert back and now say that he does not know any Regulations being in existence.'

6. Therefore, the Division Bench held that the mode adopted by the Corporation with regard to publication of the regulations was reasonable. In the judgment it was further observed as under:

'There is no gain-saying that since the Regulations provided for the employees of the Corporation includes the workmen, the workmen cannot be dealt with as a separate or distinct category. Even otherwise, the benefit claimed by the petitioner in exercise of the writ jurisdiction is that there is no authority to suspend him under the Regulations, which have not come into force. The petitioner cannot revert back to the provisions of industrial law. In case he wants to take the benefit of industrial law he was at liberty to raise the industrial dispute.'

7. Therefore, in the light of the judgment of the Division Bench of this Court, the first contention raised by the petitioner cannot be accepted.

8. The next question that falls for our consideration is whether the petitioner can be suspended by the employer/Corporation pending departmental enquiry. Admittedly the petitioner is an employee of the Corporation and, therefore, the relationship of master and servant is very much in existence. If that were the case, it is implied authority of the employer to keep its employees under suspension under the course of disciplinary action. In the decision reported in R.P. Kapur v. Union of India, : (1966)IILLJ164SC , the Hon'ble Supreme Court held that the authority entitled to appoint a public servant would be entitled to suspend him pending a departmental enquiry into his conduct or pending a criminal proceeding, which may eventually result in a department enquiry against him. The general principle is illustrated by the provision in Section 16 of the General Clauses Act, which is in consonance with the general law of master and servant.

9. Therefore, viewed from any angle, 1 hold that the petitioner cannot question the impugned orders of suspension.

10. The petitioner further contends that he sought for the access of certain documents during the course of enquiry and the enquiry officer did not permit the same. Though this plea was taken up, the learned Counsel for the petitioner is not serious about this contention.

11. Therefore, for the foregoing reasons, the writ petition is liable to be dismissed as devoid of merits and is accordingly dismissed. No costs.