Ramesh Chand Kakkar vs The Rajasthan State Road Transport Corporation and Others

Mohammad Rafiq, J.—This writ petition has been filed by the petitioner inter alia with the prayer that the orders of recovery dated 20.3.2009 and 16.4.2009 issued by the respondents be set aside and the respondents be directed to grant pension and other retiral benefits to the petitioner.

The facts of the case are that petitioner was initially appointed on the post of Driver on 23.7.1979. He was later confirmed on that post. The respondents by order dated 30.4.1984 terminated his services. Petitioner filed a civil suit challenging the aforesaid order of termination. The Court of Additional Munsiff & Judicial Magistrate, First Class No. 2, Jaipur City, Jaipur vide judgment and decree dated 25.1.1988 declared his termination order dated 30.4.1984 and the appellate order dated 19.7.1984 as illegal and directed that the petitioner be reinstated in service with all consequential benefits. In response to the aforesaid judgment and decree dated 25.1.1988, the respondents reinstated the petitioner in service. However, the consequential benefits remained unpaid. After sometime, petitioner sought voluntary retirement and he was voluntary retired vide order dated 19.9.2008 with effect from 31.10.2008. It was thereafter that by order dated 13.1.2009, the respondents granted benefit of third selection scale on completion of 27 years of service and his salary was fixed at Rs. 15,910 as on 23.7.2008.

Contention of learned counsel for the petitioner is that the date on which the petitioner retired was 31.10.2008. He was drawing salary of Rs. 15,050. Now after granting third selection scale, he would be entitled to receive the salary in the sum of Rs. 15,910. Neither the arrears of his salary have been paid to the petitioner, nor he has been granted revised pension as per his enhanced salary. Petitioner is also entitled to 13 days leave encashment. On the contrary, the respondent No. 4 i.e. The Chief Manager, Hindaun Depot issued an order of recovery of Rs. 74,237 and another sum of Rs. 400 and this amount was ordered to be adjusted from the gratuity amount of the petitioner. The amount was recovered on the premise that while the petitioner was driving the bus of the respondent as Driver, an accident took place on 6.4.2001 leading to unfortunate death and the Motor Accident Claims Tribunal has awarded a sum of Rs. 5,63,000 to the claimants in the said claim petition. In another injury case for the accident that took place 11.2.2005 by the bus which was allegedly driven by petitioner, a sum of Rs. 4,000 was sought to be recovered by order dated 2.2.2007. Learned counsel for the petitioner has cited the judgment of this Court in Jaswant Singh Vs. State of Rajasthan and Others, and that of Ram Gopal Sharma v. RSRTC & Anr., S.B. Civil Writ Petition No. 9709/2007 decided on 1.10.2012 and argued that in both the cases this Court has taken a view that even if the accident took place while the petitioner was driving the vehicle in employment of the respondent-State, the State is vicariously liable to pay the amount of compensation and recovery of such amount from the salary of the petitioner cannot be made. This Court in the aforesaid judgment of Jaswant Singh, supra has realised on the judgment of Supreme Court in The State of Rajasthan Vs. Mst. Vidhyawati and Another, holding that the State is vicariously liable as the act of the driver falls within the course of employment.

Learned counsel for the respondents have opposed the writ petition and submits that there is no illegality in the impugned orders. The petitioner has agitated number of disputed questions of facts, which cannot be adjudicated in the scope of writ petition.

I have heard the learned counsel for the parties and perused the material on record.

In Ram Gopal Sharma, supra coordinate bench of this Court has allowed an identical writ petition filed against the Rajasthan State Road Transport Corporation while relying on the judgment of Jawant Singh, supra.

In Pushpabai Purshottam Udeshi and Others Vs. Ranjit Ginning and Pressing Co. (P) Ltd. and Another, , the Supreme Court has also held that for the master''s liability to arise the test is whether the act was done on the owner''s business or that it was proved to have been impliedly authorised by the owner. The law is settled that master is vicariously liable for the acts of his servants acting in the course of his employment. Unless the act is done in the course of employment, the servant''s act does not make the employer liable. The owner is not only liable for the negligence of the driver if that driver is his servant acting in the course of his employment but also when the driver is, with the owner''s consent, driving the car on the owner''s business or for the owner''s purposes.

In view of above, the present writ petition succeeds and is accordingly allowed. The impugned orders of recovery dated 20.3.2009 and 16.4.2009 are quashed and set aside. The respondents are directed to refund the aforesaid amount and pay arrears of the pay to the petitioner from the date he was granted third selection scale and revise his pension accordingly. The respondents shall pay to the petitioner interest on such arrears @ 9% per annum.

Compliance of the judgment be made within a period of two months from the date copy is this judgment is produced before the respondents.