Madras High Court
S.Ditto Prabhakaran vs The Secretary To Government ... on 10 December, 2021
W.P.No.26878 of 2018
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 10.12.2021
CORAM
THE HONOURABLE MR. JUSTICE M.S.RAMESH
W.P.No.26878 of 2018
and W.M.P.No.7844 of 2019
S.Ditto Prabhakaran ...Petitioner
Vs
1. The Secretary to Government Co-Operation,
Food and Consumer Protection Department,
Fort St.George,
Chennai-600 009.
2. The Registrar of Co-Operative Societies,
Kilpauk,
Chennai-10.
3. The Joint Registrar of Co-Operative Societies,
Nilgiris Region,
Nilgiris District.
4. The Deputy Registrar of Co-operative Societies,
Gobichettipalayam Circle,
Erode District ...Respondents
PRAYER: Writ Petition filed under Article 226 of Constitution of India
praying for the issuance of Writ of Certiorarified Mandamus or any other
appropriate writ in the nature of writ or direction calling for records
pertaining to the orders of the third respondent in R.C.No.238/2016/A1
Page 1 of 15
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W.P.No.26878 of 2018
dated 24.05.2018 in so for as it sanction provisional pension to the
petitioner and quash the same and consequently direct the respondents to
disperse all the retirement benefits with interest at 12% p.a.
For Petitioner : Mr.S.Kamadevan
For R1 : Mr.P.Ganesan
Government Advocate
For R2 to R4 : Mr.A.Selvendran
Special Government Pleader
ORDER
The petitioner herein, who had served as a driver under the 4th
respondent herein, had retired from his service on reaching his age of
superannuation on 31.05.2006. In connection with a alleged incident of
having caused a road accident on 11.05.2009, the injured victim was
awarded compensation by the Motor Accident Claims Tribunal in
MCOP.No.318 of 2009, Karur, dated 08.12.2010, payable by the
respondents herein. In view of the award of the Motor Accident Claims
Tribunal, the respondents have contemplated to recover the award amount
from the petitioner's pension benefits, consequent to which, the present
impugned order dated 24.05.2018 was passed sanctioning provisional
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W.P.No.26878 of 2018
pension to the petitioner, in view of the contemplated action of the recovery.
2. In the meantime, the respondents have earlier issued an order of
recovery dated 21.06.2013 which came to be challenged by the petitioner
before this Court in W.P.No.25808 of 2013 and by an order dated
10.02.2017, the recovery order itself was quashed by placing reliance on the
decision of the Hon'ble Division Bench passed in W.P.No.11002 of 1999
dated 07.07.1999 and holding that the driver who caused the accident
cannot be held liable for the compensation ordered to the victims.
3. The learned Counsel for the petitioner would submit that in view of
the earlier quashing of the recovery order, the subsequent impugned order
granting provisional pension in contemplation of the recovery of the
compensation awarded by the Motor Accident Claims Tribunal cannot be
sustained.
4. On the other hand, the learned Government Advocate placed
reliance on the statements made in the impugned order and submitted that
owing to the mistake on the part of the petitioner, the Tribunal had awarded
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W.P.No.26878 of 2018
compensation to the victims, which the Government is entitled to recover
from him. And therefore, he would submit that there is no infirmity in the
impugned order granting provisional pension.
5. I have given careful consideration to the submissions made by the
respective Counsels.
6. The impugned order sanctioning provisional pension cannot be
sustained on two main grounds. Firstly, Rule 9(2)(b) of the Tamil Nadu
Pension Rules mandates that in case the Government intends to execute
departmental proceedings against a retired Government servant, the same
shall be done only with the sanction of the Government and such
proceedings should not be initiated for an incident which was prior to four
years from the institution of the proceedings.
7. This Court had an occasion to deal with the scope of Rule 9(2)(b)
of Tamil Nadu Pension Rules, 1978, in the case of K.Vembu and others
Vs. The Principal Secretary to Government and others passed in
W.P.Nos.18612 to 18616 of 2018 dated 10.12.2021, by placing reliance on
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W.P.No.26878 of 2018
two decisions of the Hon'ble Full Bench of this Court in the case of
C.Mathesu Vs. The Secretary to Government, Department of Revenue and
others reported in 2013 (1) CWC 753 and T.Geetha Vs. Additional Chief
Secretary /Commissioner of Revenue Administration, Chepauk, Chennai
and others reported in 2020 (7) MLJ 415, had held that the Government
cannot initiate departmental action against a retired Government employee,
after the expiry of four years from the date of the event. The relevant portion
of the order reads as follows:
“2. Whenever a Government servant retires from service on
attaining the age of superannuation and if the Government
intends to initiate departmental action against such a person,
the sanction of the Government is required to be taken under
Rule 9(2)(b) of the Tamil Nadu Pension Rules, 1978, for which
purpose, the event for which such departmental action is
contemplated, should not have been taken place more than four
years before the institution of such departmental action. For the
sake of convenience, Rule 9(2)(b) of the Tamil Nadu Pension
Rules is extracted hereunder:-
"9. Right of Government to withhold or withdraw
pension:-
(1) ...
(2) (a) ....
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W.P.No.26878 of 2018
(b) The departmental proceedings, if not instituted
while the Government servant was in service, whether
before his retirement or during his re-employment-
(i) shall not be instituted save with the sanction
of the Government;
(ii) shall not be in respect of any event which
took place more than four years before such
institution; and
(iii) shall be conducted by such authority and in
such place as the Government may direct and in
accordance with the Procedure applicable to
departmental proceedings in which an order of
dismissal from service could be made in relation
to the Government servant during his service."
3. This legal proposition has been ratified by the
Hon'ble Full Bench of this Court in the case of C.Mathesu Vs.
the Secretary to Government, Department of Revenue and
others reported in 2013 (1) CWC 753.
4. The issue on the applicability of the date of
commencement of the four-year period had also came up for
consideration before the Hon'ble Division Bench of this Court
in the case of T.Geetha Vs. Additional Chief
Secretary/Commissioner of Revenue Administration,
Chepauk, Chennai and others reported in 2020 (7) MLJ 415
and in paragraph No.16 of the said decision, the Hon'ble
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W.P.No.26878 of 2018
Division Bench had clarified that the four-year period shall
be reckoned from the date of the event. The relevant portions
of the said order reads as follows:-
"16. As per G.O.(2D).No.430 dated
12.06.2014, the respondents were directed to
institute departmental disciplinary proceedings
under Tamil Nadu Pension Rules against the
appellant as indicated in para 1 before
30.06.2014 since 4 years limitation period for
initiating disciplinary action against the retired
Government Servant expires on the above date.
It is thus evident that limitation has been
reckoned from the date of superannuation of the
appellant, i.e. from 31.05.2011. The period of
limitation of four years is not to be reckoned
from the date of retirement or superannuation. It
is to be reckoned from the date of even. Thus, the
charge sheet dated 28.06.2014 was clearly
without jurisdiction."
(5) ...
(6) ....
7. As already observed by me in the earlier
paragraphs, initiation of departmental proceedings
after a period of four years from the date of the event
on which the Government servant is charges, is
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W.P.No.26878 of 2018
opposed to Rule 9(2) of the Tamil Nadu Pension Rules,
as well as, the decision of the Hon'ble Full Bench in
C.Mathesu's case(cited supra) and the orders of the
Hon'ble Division Bench in T.Geetha's Case (cited
supra). As such, the action of the respondents in
contemplating departmental action against the
aforesaid Rules and decisions, is unsustainable.”
8. The aforesaid order is self explanatory. As such the proposal of the
respondents to recover the compensation amount from the petitioner cannot
be maintained, since no Government sanction has been obtained in the
present case for proceeding against the petitioner departmentally and also
for the reasons that four years have lapsed since the event of, either the
accident that occurred in 2009 or the award of the Tribunal which has been
passed on 08.12.2010.
9. Secondly, when the Government had already initiated recovery
proceedings and this Court had quashed the recovery proceedings itself by
observing that the driver of the vehicle cannot be held liable for the
compensation awarded by the Motor Accident Claims Tribunal, and when
no appeal has been filed as against the order of this Court, the sanctioning
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W.P.No.26878 of 2018
of the provisional pension in contemplation of a recovery of the amount,
which action has already been quashed, cannot be sustained. This Court
while quashing the earlier order of recovery dated 21.06.2013, had observed
that the driver of the vehicle cannot be mulcted with the liability and
therefore no recovery can be made from the driver. The relevant portion of
the order is as follows:
“Learned counsel for the petitioner also relied on the
decision of this Court in W.P.No.4428 of 2006, between
R.Anbalagan and The Director General of Police,
Mylapore, Chennai 4 and others, wherein in paragraphs 5
and 6, it is observed as follows:
5. The petitioner was a driver when the accident took
place on 31.05.1998. In similar circumstances, the Division
Bench of this Court in W.P.No.11002 of 1999 by order
dated 7.7.1999 held as follows:
“The Department's action seeking recovery of the
amount awarded by the Motor Accident Claims Tribunal
from the Driver of the vehicle is wholly unsustainable as
the respondent as the employer, is duty bound in law to pay
the compensation amount. It is further stated therein, that
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W.P.No.26878 of 2018
the recovery proceedings made by the employer is
misconceived and the said claim was rightly negatived by
the Tamil Nadu Administrative Tribunal in O.A.No,6515 of
1996 by order dated 13.08.1998.”
Following the said order of the Division Bench,
W.P.No.17856 of 2008 against recovery ordered against a
Driver of a Police vehicle. The said order was approved by
the Division Bench of this Court in the decision reported in
(2009) 2 MLJ 849 (Sevugaperumal v. Superintendent of
Police) – In para 14 the Division Bench held as follows:
“14. Before us, the learned counsel for the petitioner
has cited two judgments in order to show that in similar
cases the Courts have held that compensation amount has
to be paid by the department or by the employer concerned.
Reliance was first placed on the judgment of a learned
Single Judge of this Court in the case of R.Nagendra
Boopathi V. Superintendent of Police, District Police
Office, Salem, decided on 22.8.2008 passed in
W.P.No.17856 of 2008. From the facts of the case, it
appears that there was a mechanical failure of the vehicle
involved and as a result of which there was an accident.
Apart from that it also appears in that case that the driver
of the vehicle, whose official duty was to drive the said
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W.P.No.26878 of 2018
vehicle, was a party before the Motor Accident Claims
Tribunal and the Tribunal exonerated the driver. ....”
The Division Bench in the above cited decision held
that if the police vehicle is driven by a driver of the
Department and caused the accident, the driver cannot be
held liable for the compensation paid or part thereof, and if
a person has driven the vehicle, who was not the driver, the
department can recover part of the compensation paid to
the victims.
6. Following the above cited decisions of the
Division Bench of this Court and that of mine, I hold that
the impugned order is unsustainable and the order of
recovery dated 1.7.2005, confirmed in appeal by order
dated 18.11.2005, is quashed. The respondents are directed
to repay the amount recovered from the petitioner within a
period of two weeks from the date of receipt of copy of this
order. No costs. Connected miscellaneous petition is
closed.
13. Therefore, in the light of the aforesaid decisions
of this Court, I have no hesitation to set aside the impugned
order passed by the 3rd respondent. Accordingly, the
impugned order passed by 3rd respondent is set aside.
Liberty is granted to the 3rd respondent, if it is permissible
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W.P.No.26878 of 2018
under law, to initiate recovery proceedings against the
petitioner in accordance with law.”
10. For the forgoing reasons, I do not find any legality in the
impugned order dated 24.05.2018. Consequently, it requires to be held that
the petitioner herein would be entitled for his full pension, apart from his
death cum retirement gratuity amount. Moreover, since the petitioner herein
had retired way back on 31.5.2016 and the respondents, though were aware
of the fact that their earlier attempt to recover the compensation amount
was quashed by this Court on 10.2.2017 itself, had ignored the same and
had contemplated for further illegal recovery to the present impugned order,
this Court is of the view that the petitioner would be entitled for interest on
the retirement benefits, which can be imposed at the rate of 6% per annum.
11. In the light of the above observations, the impugned order of the
third respondent in R.C.No.238/2016/A1 dated 24.05.2018, is quashed.
Consequently, there shall be a direction to the 2nd respondent herein to
forthwith disburse the death cum retirement benefits of the petitioner, along
with all pensionary benefits, together with interest at the rate of 6% per
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W.P.No.26878 of 2018
annum on the accrued retirement benefits, from the date of retirement, till
the date of actual disbursement, as expeditiously as possible, in any event,
within a period of 4 weeks from the date of receipt of a copy of this order.
12. This Writ Petition stands allowed, accordingly. Consequently,
the connected Miscellaneous petition is closed. No costs.
10.12.2021
Index:Yes
Internet : Yes
gd
To
1. The Secretary to Government Co-Operation,
Food and Consumer Protection Department,
Fort St.George,
Chennai-600 009.
2. The Registrar of Co-Operative Societies,
Kilpauk,
Chennai-10.
3. The Joint Registrar of Co-Operative Societies,
Nilgiris Region,
Nilgiris District.
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W.P.No.26878 of 2018
4. The Deputy Registrar of Co-operative Societies,
Gobichettipalayam Circle,
Erode District
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W.P.No.26878 of 2018
M.S.RAMESH,J.
gd
W.P.No.26878 of 2018
10.12.2021
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