State of M.P. and ors. Vs. Ram Kumar Pathak and anr. - Court Judgment

Excerpt:
- motor vehicles act, 1988 [c.a. no. 59/1988]section 147; [a.k. patnaik, cj, s.s. jha & a.m. sapre, jj] liability of insurer - third party insurance held, the insured who is a party to the insurance is not a third party for the purpose of chapter xi of the act, particularly section 147 thereof. thus, any person other than the insurer and the insured who are parties to the insurance policy is a third party. the insurer, however, would not be liable for any bodily injury or death of a third party in an accident unless the liability is fastened on the insurer under the provisions of section 147 of the act or under the terms and conditions of the policy of insurance. hence, the mere fact that a passenger is a third party would not fasten liability on the insurer unless such liability arises under section 147 of the act or under the terms and conditions of the insurance policy. an employee is a third party inasmuch as he is not a party to the insurance policy. but merely because an employee is a third party, the insurance company would not be liable to compensate in case such employee suffers bodily injury or dies in an accident in which the motor vehicle is involved unless section 147 of the act fixes such liability on the insured or unless the terms and conditions of the contract of insurance fixes liability on the insurer. section 147 (1)(b) of the act provides that in order to comply with the requirements of chapter xi of the act, a policy of insurance must be a policy which insures the person or classes of persons specified in the policy to the extent specified in sub-section (2) against the liabilities mentioned in clauses (i) and (ii) thereunder. even if an employee is a passenger or a person travelling in a motor vehicle which is insured as per the requirements of sub-section (1) of section 147 of the act, the insurer will not be liable to cover any liability in respect of death or bodily injury of such employee unless such employee falls in one of the categories mentioned in sub-clauses (a), (b) and (c)of clause (i) of the proviso to sub-section (1)of section 147 of the act and further in cases where such employees fall under categories mentioned in sub-clauses (a), (b) and (c) of clause (i) of the proviso to sub-section (1`) of section 147 of the act, the insurer is liable only for the liability under the workmens compensation act, 1923. [national insurance co. ltd. v sarvanlal, 2004 (4) mpht 404 (d.b) overruled]. sections 147 & 96 & m.p. m.v. rules, 1994, rule 97; [a.k. patnaik, cj, s.s. jha & a.m. sapre, jj] control of transport vehicles m.p. rules relate to provisions of control of transport vehicles and it cannot be adopted for interpreting sections 147 and 145 of the m.v. act to hold the insurer liable for death or bodily injury suffered by passenger. [national insurance co. ltd. v sarvanlal, 2004 (4) mpht 404 (d.b) overruled]. - september 7, 1999, did not report till december 7, 1999, they had been arrested on december 3, 1999 and bail was granted to them on december 7, 1999. it was submitted by them that they submitted joining on december 7, 1999 and december 8, 1999. they had earlier sent application as to their absence as they were not well. dissatisfied with the award passed the present writ petitions have been preferred by the employer as well as by the workmen.arun mishra, j.1. the instant writ petitions have been preferred by the state of m.p. and others and also by the workmen aggrieved by an award dated april 27, 2007 directing the reinstatement without backwages of workmen ram kumar pathak and buddhsen pathak.the workmen buddhsen pathak was employed as daily wager in the year 1988 whereas ram kumar pathak was employed as daily wager in the year 1989. they continuously rendered services till september 7, 1999. as they were involved in the criminal case, they absented w.e.f. september 7, 1999, did not report till december 7, 1999, they had been arrested on december 3, 1999 and bail was granted to them on december 7, 1999. it was submitted by them that they submitted joining on december 7, 1999 and december 8, 1999. they had earlier sent application as to their absence as they were not well. ultimately they were acquitted in criminal case, they were not taken back in service even after acquittal. when they filed representation, they were informed that their services were terminated due to involvement in the criminal case. order of termination was passed on january 20, 2005.2. the case of the workmen was referred for adjudication to the labour court under section 10 of the industrial disputes act. the labour court has found that workmen have rendered the continuous services for a long period. enquiry was not held before termination of their services. they have been acquitted in the criminal case, as such they should have been reinstated. merely remaining in the police custody for a period of 4 days could not be termed as misconduct so as to warrant the termination of the services. the termination made on the basis that they were detained in police custody for more than 48 hours, has been found to be illegal. the labour court has opined that in case back wages are denied to the workmen in each of the case, that would be sufficient. consequently, reinstatement has been ordered without backwages. dissatisfied with the award passed the present writ petitions have been preferred by the employer as well as by the workmen. state of m.p. and others have assailed the reinstatement part of the award whereas workmen have prayed for grant of backwages.3. shri p.n. dubey, learned deputy, advocate general for the state of m.p., has submitted that it was the case of abandonment of the services by workmen, they absented w.e.f. september 7, 1999, they were involved in the criminal case, they did not submit any/joining on december 7, 1999 or december 8, 1999. when they filed representations, it was found that as they were arrested and detained in police custody for more than 48 hours in connection with criminal case, their services had been rightly terminated.4. shri sanjay verma, learned counsel appearing on behalf of the workmen, has submitted that no enquiry was held, it was necessary to hold the enquiry, even with respect to the daily wager in case they were to be removed from service on the ground of involvement of criminal case not even a show cause notice was given. mere detention in the police custody could not be said to be such a misconduct particularly after acquittal so as to remove them from the services. the backwages in the circumstances ought to have been granted, as the workmen were not taken back in service when they reported back after grant of bail, they submitted their joining on december 7, 1999 or december 8, 1999. consequently, the writ petitions preferred by the workmen be allowed and the writ petitions filed by the state of m.p. and others may kindly be dismissed.5. it is not disputed that both the workmen were involved in the criminal case. it appears that due to their involvement in the criminal case, they absented themselves on september 7, 1999, they submitted the joining on december 7, 1999 or december 8, 1999, the bail was granted to them on december 7, 1999, they were arrested on december 4, 1999, for about 4 days they remained in police custody, however, the fact remains that they have been ultimately acquitted in the criminal case and their services were terminated on the ground that they remained in police custody for more than 48 hours. mere remaining in the police custody could not be said to be misconduct particularly when they have been acquitted. no departmental enquiry has been held.6. the apex court in telecom district manager and ors. v. keshab deb : 2009 i llj 733 (sc), has held in the backdrop of the fact that services of the daily wager were terminated without departmental proceedings on the ground of misconduct, misuse of public vehicle and criminal conviction under section 34(6) of police act, 1861, termination was held to be illegal, termination being stigmatic in nature, departmental proceeding should have been initiated. in the instant case, admittedly no departmental enquiry has been held and the order of, termination cast stigma upon the workmen. consequently, their reinstatement has been rightly ordered by the impugned award passed by the labour court.7. coming to the question of grant of backwages, the workmen were involved in criminal case on their own. the department was not involved in the criminal prosecution. the workmen had absented for a considerable period.consequently, it is not considered appropriate to grant them the backwages in the facts projected in the instant case.resultantly, the award passed by the labour court is hereby affirmed. writ petitions being devoid of merits, are hereby dismissed. parties are left open to bear their own costs as incurred of the petitions.