Kerala High Court
Kerala State Road Transport ... vs Appellate Tribunal on 2 September, 2002
Author: K. Thankappan
Bench: K. Thankappan
JUDGMENT K. Thankappan, J.
1. Petitioner, Kerala State Road Transport Corporation- represented by its Managing Director, challenges Ext. P4 order dated 9.2.1993 passed in R.P. No.7/89 by the Appellate Tribunal.
2. The 2nd respondent while working as driver of the petitioner Corporation, was charge sheeted for an offence under Sections 279 and 304-A of the Indian Penal Code. The Additional Judicial Magistrate of the First Class, Tellicherry found the 2nd respondent guilty under Ss. 279 and 304A of the Indian Penal Code and sentenced to undergo simple imprisonment for six months and to pay a fine of Rs. 1,000/-. Against the conviction and sentence passed by the trial court the 2nd respondent filed an appeal which was dismissed. The 2nd respondent then filed a revision petition before this Court and this Court also confirmed the conviction and sentence. Thereupon the District Mana'ger, K.S.R.T.C., Kannur sent a report to the Managing Director and on the basis of the conviction, disciplinary action was taken against the 2nd respondent and by Ext. P2 he was removed from service with effect from 18.3.1988, the date on which he was undergoing imprisonment. The removal order passed by the disciplinary authority was challenged before the Chairman and Managing Director by the 2nd respondent which was also dismissed by Ext. P3. Aggrieved by Ext. P3 order the 2nd respondent filed R.P. No. 7/89 before the 1st respondent. The 1st respondent by Ext. P4 order allowed the revision by ordering reinstatement of the 2nd respondent in service. It was also held in Ext. P4 that the 2nd respondent would be entitled to continuity of service and other service benefits without backwages. Ext. P4 is challenged in this Original Petition.
3. The main ground urged in the Original Petition is that as the 2nd respondent was convicted in a criminal case and was removed from service under R. 18 of the Kerala Civil Services (Classification., Control and Appeal) Rules, 1960, the revision filed by him should have been dismissed by the revisional authority. It is also contended that if a Government servant is convicted in a criminal case and was sentenced to imprisonment, the disciplinary authority is empowered to pass an order removing him from the service. It is also contended that the revisional authority has not expected to reappraise the evidence appraised by the appellate authority.
4. Having considered the arguments advanced for and on behalf of the petitioner Corporation and having perused the material placed on record, it is to be noted that the 2nd respondent was convicted by the Criminal Court for the offence punishable under Ss. 279 and 304 A of the Indian Penal Code and he has already undergone the sentence of imprisonment. The petitioner Corporation passed Ext. P2 order by way of disciplinary action under the Kerala Civil Services (Classification, Control and Appeal) Rules removing him from service, against which the 2nd respondent filed appeal before the Chairman and Managing Director of the Corporation. The Managing Director considered the appeal and found that Ext. P2 is correct and that the 2nd respondent was removed from service for the reason that he is convicted in a criminal case. It is prescribed in Rule 18 of the Kerala Civil Services (Classification, Control and Appeal) Rules that notwithstanding anything contained in Rr. 15, 16 and 17 where a penalty is imposed on a Government servant on the ground of conduct which had led to his conviction on a criminal charge the Disciplinary Authority or the Governor, as the case may be, may consider the circumstances of the case and pass such orders thereon as he deems fit. The disciplinary authority as well as the appellate authority considered all the circumstances of the case in which the 2nd respondent was convicted by the criminal court.
5. The 1st respondent ignored the fact that the conviction and sentence passed against the 2nd respondent have been confirmed by the appellate court and the High Court in revision and he had undergone imprisonment for 6 months. That apart, the benefit allowed under clause 9 of the agreement dated 25.3.1969 mentioned in Ext. P4 ie., an employee may not be removed from service only on the ground of conviction by criminal court, is made applicable to the 2nd respondent is untenable. It is to be noted that the agreement referred to in Ext. P4 was not in force either at the time of conviction or at the time of removal of the 2nd respondent in service, since 1969 agreement was subsequently amended and superseded by agreements of the years 1979, 1987 and 1990 and none of these agreements contained any clause like the one relied on by the 1st respondent. It is evident that the 2nd respondent was convicted under Ss. 279 and 304A of the Indian Penal Code for rash and negligent driving and thereby causing the death of a school child of 12 years. These facts had been considered by the disciplinary authority while imposing the penalty of removal from service. The 1st respondent did not consider any extenuating circumstances under which the 2nd respondent committed the offences under Ss. 279 and 304A IPC to lessen the rigour of punishment and the fact that the 2nd respondent was convicted by the trial court and that conviction and sentence have been confirmed by the appellate court as well as the revisional court. It is held by this Court in K. Ravindran v. D.I.G, of Police and Ors., 1992 (1) KLJ 73, that one day imprisonment till rising of the court will constitute an imprisonment and conviction and that by itself is sufficient to award any punishment by the disciplinary authority.
6. In the light of the above discussion and finding, this Court is of the view that Ext. P4 has to be quashed but it is to be noted that Ext. P4 has been passed by the revisional authority on 9.2.1993 and that the 2nd respondent has filed O.P. No, 10013/93 and this Court directed the petitioner Corporation to reinstate the 2nd respondent in service. The petitioner Corporation had not taken any steps to file any Original Petition challenging Ext. P4 in time or any Writ Appeal against the judgment in O.P. No. 10013/93. Hence, the judgment of this Court passed in O.P.No. 10013/93 became final. It is also informed to this Court that the 2nd respondent was reinstated in service and he has already retired from service. Hence, at this distance of time it is not proper or justifiable to quash Ext. P4. .
7. Before I part with the judgment I am persuaded to observe the following lines under the facts and circumstances of the subject of discussion. Though Indian Penal' Code prescribes a maximum sentence of two years' imprisonment for the offence under Section 304A, the quantum of punishment should not be taken for analysing the facts constituting an offence. Now a days motor accidents claim countless lives of human beings due to the rash, careless and negligent driving of drivers of motor vehicles. The question of imposing maximum term of imprisonment has to be considered by the Courts. It is now high time to prescribe severe and more term of imprisonment and substantial amount as fine by the framers of the law and also such authorities to impose deterrent punishments to such offenders who are causing death of innocent persons. The question of imposing deterrent and maximum punishment in motor offences has been considered by this Court in Kuriakose v. State, 1992 (2)'KLT 292, wherein this Court observed as follows:-
"5. It is true that the sentence awardable for the said offence is either a term of imprisonment which may go upto two years or fine or both, leaving the extent of sentence to be determined by the Court in its discretion. The judicial discretion, as is often said, ie, a "discretion which is informed by tradition, methodised by analogy and disciplined by system". While exercising ihe discretion in fixing the extent of the sentence, the severity of rashness, the degree of callousness as well as the seriousness of the consequences which followed are matters to be taken into account by courts. The Supreme Court refused to reduce a sentence of two years' rigorous imprisonment for this offence in the case in which Krishna Iyer, J. has made the observations quoted above, despite the argument that the driver had a large family to be maintained. In 1973 the Indian Parliament imposed a mild but definite limitation on the discretion of the courts in awarding sentence. By the addition of Sub-section (4) in Section 354 of the Code, the law now provides that when a court imposes a sentence of imprisonment for a term less than three months for an offence punishable with imprisonment for a term of one year or more, the Court shall record its reasons for awarding such sentence. The said new provision indicates the concern of the Parliament in noticing too much of leniency shown by Courts while awarding sentences in exercise of their discretion. Now it is made clear that sentence of imprisonment shall be the rule and sentence of fine would only the exception for such offences. When the Parliament inserted the said sub-section, certainly the Parliament would have borne in mind that the sentence prescribed for the offence under Section 304A IPC is imprisonment which may go upto two years or fine or both."
The above judgment is also based on an earlier judgment of this Court reported in State of Kerala v. Ramaswami, 1969 KLT 769, in which this Court specifically considered the need for a realistic sentencing policy while dealing with the offence under Section 304A IPC.
8. There may be cases involving road accidents purely as accidental without any deliberative circumstances, but in all cases while imposing punishment the courts shall not give an impression that the accident is unavoidable or not due to any negligence or rashness caused on the part of the driver ignoring the culpability of such driver. Now the number of cases registered by the investigating agencies involving accident cases is very high and the deaths due to accidents are also very high. None of these aspects or any of the facts and circumstances has been considered by the 1st respondent while passing Ext. P4. There is no evidence to show that either Ext. P2 or Ext. P3 have been passed in violation of any principles of natural justice or any procedural irregularities had been committed by the disciplinary authority.
9. With the above observations, the Original Petition is dismissed.
10. Registry is directed to send a copy of this judgment to the Secretary, Ministry of Home Affairs, New Delhi and the Chief Secretary, Secretariat, Government of Kerala, Thiruvananthapuram.