Madras High Court
R.Shanmugam vs The Superintendent Of Police on 23 October, 2024
W.P.No.19152 of 2010
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 23.10.2024
CORAM:
THE HONOURABLE MR.JUSTICE G.ARUL MURUGAN
W.P.No.19152 of 2010
and M.P.No.1 of 2010
R.Shanmugam,
Head Constable,
Padalur Police Station,
Perambalur District. ... Petitioner
versus
The Superintendent of Police,
Perambalur District. ... Respondent
Prayer: Writ Petition filed under Article 226 of the Constitution of India,
praying to issue a Writ of Certiorari, calling for the records connected with
the proceedings issued in G4/MCOP 324/04, 295/08 dated 27.07.2010
passed by the respondent herein and quash the same.
For Petitioner : Mr.S.Ilamvaludhi
For Respondent : Mr.Stalin Abhimanyu
Additional Government Pleader
1/14
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W.P.No.19152 of 2010
ORDER
This writ petition is filed challenging the proceedings issued by the
respondent dated 27.07.2010 whereby a sum of Rs.55,130/- was sought to be
recovered.
2. It is the case of the petitioner that while he was working as a
driver in Grade-II Police Constable cadre in the Armed Reserve in the year
1999, he was assigned to drive a Jeep for Perambalur Deputy Superintendent
of Police. While he was on duty for taking Deputy Superintendent of Police
along with his wife, the Jeep which he was driving met with an accident in
which the officer and his wife got injured and they filed M.C.O.P.Nos.324 of
2004 and 294 of 2008 before the Motor Accidents Claims Tribunal at
Namakkal.
3. In the MCOP proceedings initiated, the Tribunal had awarded a
sum of Rs.11,02,602/- in respect of the police officer and his wife in view of
the injury suffered by them due to the accident. While so, without even
communicating the copy of the award or issuing any show cause notice, the
respondent passed the impugned communication whereby 5% of
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the award amount to the tune of Rs.55,130/- was sought to be recovered.
Assailing the same, the petitioner had preferred the above writ petition.
4. Mr.S.Ilamvaludhi, learned counsel for the petitioner submitted
that when the petitioner had worked as a driver and the vehicle met with an
accident, the present impugned order passed directing recovery of a sum of
Rs.55,130/- being 5% of the award amount is without any basis. It is his
further contention that prior to the issuing of this order, the petitioner was
never issued any notice calling for his explanation and straight away the
respondent had determined this amount without affording an opportunity to
the petitioner and therefore the impugned order is unsustainable.
5. The learned counsel further contended that the impugned order
stated that the recovery was sought to be made as per the order passed by the
Motor Accidents Claims Tribunal, Nammakal, but no such direction is found
place in the award passed by the Tribunal and therefore, the impugned order
seeking recovery of this amount is bad in law. The learned counsel also
submitted that even in so far as any punishment to be imposed under Rule
8(a) of the Tamil Nadu Civil Services (Disciplinary Proceedings Tribunal)
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Rules, 1955 the petitioner ought to have been issued with the notice by
initiating departmental proceedings and in the present case, no such
proceedings has been initiated and straight away the impugned order has
been passed which is unsustainable and sought for indulgence of this Court.
6. Mr.Stalin Abhimanyu, learned Additional Government Pleader
for the respondent submitted that since the petitioner was on duty assigned
to drive the vehicle, only his rash and negligent driving resulted in the
accident of the vehicle in which the police officer and his wife was travelling
and due to the same, the MCOP proceedings were initiated and the
department had incurred a sum of Rs.11,02,602/- to be paid as per the
compensation awarded by the Motor Accidents Claims Tribunal. It is his
further contention that the award came to be passed only due to the rash and
negligence on the part of the petitioner and therefore the respondents were
right in recovering only 5% of the total amount in view of the pecuniary loss
caused.
7. Relying on the counter affidavit, he contended that as per Rule
8(v) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules, 1955
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when there is any pecuniary loss caused, the recovery from the pay of the
employee for either whole or part of such pecuniary loss, can be made by
way of penalty and therefore contended that the impugned order is perfectly
justified and sought for dismissal of this petition.
8. Heard the rival submissions made by the learned counsel
appearing on both sides and perused the materials available on record.
9. The petitioner, while he was working as a driver in Grade-II
Police Constable cadre, was assigned to drive the vehicle for Perambalur
Deputy Superintendent of Police. While the petitioner was driving the Jeep
along with the police officer and his wife, the vehicle met with an accident,
due to which injuries were suffered by the Deputy Superintendent of Police
and his wife and they had filed M.C.O.P. Nos.324 of 2004 and 295 of 2008
in which, from the impugned order passed by the respondents, it is seen that
a sum of Rs.11,02,602/- was awarded by the Motor Accidents Claims
Tribunal, though the copy of the award has not been placed before this
Court.
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10. Since the compensation amount as directed by the Tribunal had
been paid by the respondents, they have issued the impugned order dated
27.07.2010 calling upon the petitioner to submit his explanation as to why a
sum of Rs.55,130/- being 5% of the total award amount should not be
recovered from him. The relevant portion of the impugned order is extracted
hereunder:-
“(2) bguk;gY}h; khtl;l MCOP Nos.324/04 kw;Wk; 295/08d; go
,Hg;gPl;L bjhifahf muR xJf;fPL bra;j &/11,02,602/-f;F 5% bjhif
&/55,130/- xl;Leh; fhtyh; 990 rz;Kfk; (TPF) bguk;gY}h; fhty; epiyak;.
vd;gthplk; rk;gsj;jpy; gpoj;jk; bra;a bjhptpf;fg;gl;Ls;sJ/
(3) vdnt. ,f;Fwpg;ghiz fpilf;fg; bgw;w 7 jpd';fSf;Fs; e~;l
<l;L bjhif gpoj;jk; bra;tJ bjhlh;ghf ckJ gjpypid ,t;tYtyfk; mDg;gp
itf;f mwpt[Wj;jg;gLfpwJ mt;thW gjpy; fpilf;f bgwtpy;iybadpy;
nkw;f;fhZk; muR Xjf;fPL bra;j bjhifapy; 5% bjhifahf &/55,130/-
ckJ rk;gsj;jpy; gpoj;jk; bra;a khtl;l Miz gpwg;gpf;fg;gLk; vd;w
tpguj;jpid mjpfhug;g{h;tkhf bjhptpj;Jf; bfhs;sg;gLfpwJ/”
11. The learned counsel for the petitioner, while making the
submissions, also relied on the order passed by this Court in W.P.No.4600 of
2009 dated 24.06.2010 wherein also the impugned order passed to recover
the entire award amount from the concerned driver was quashed by this
Court by relying upon the order passed by the Full Bench of this Court in
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W.P.No.11002 of 1999 dated 07.07.1999 and the same is extracted
hereunder:-
“6. Admittedly, before passing the impugned order to recover the
amount paid to the victim by the Department, the petitioner was not
heard. Hence, the impugned order was passed in blatant violation of
principles of natural justice. Further, as rightly contended by the learned
counsel for the petitioner, there was no criminal case instituted against
the petitioner and also there was no departmental action. Further, there
was no proceedings fixing the liability on the petitioner by the respondent
- Department. Paying the compensation pursuant to the award of the
Motor Accident Claims Tribunal, could not be a reason for recovery from
the driver i.e. the petitioner herein. The employer is bound to pay the
compensation to the victim for causing accident by their employees.
7. In this regard, the learned counsel for the petitioner relies on
the order dated 07.07.1999 passed in W.P.No.11002 of 1999 by the First
Bench of this Court (Chief Engineer, Agricultural Engineering and others
Vs. T.Devaraj and another) and the same is extracted hereunder:
“(The order of the Court was made by the
Honourable The Chief Justice)
In respect of a fatal accident caused by the 1st
respondent, a driver employed by the petitioners,
compensation was awarded in a sum of Rs.74379/-.
Petitioners had been impleaded in the proceedings for
recovery of compensation along with respondent No.1.
Though the respondent No.1 may not have appeared in the
proceedings to resist the claim, petitioners had duly
appeared and therefore they could have legitimately
resisted the claim. Petitioners have paid the aforesaid
amount of compensation payable by respondent No.1 as
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also by the petitioners, who are the employers of
respondent No.1. By present proceedings, the petitioners
are seeking to recover the aforesaid amount from the
respondent No.1. In our view, the claim made is wholly
unsustainable as the petitioners in the capacity of the
employers of respondent No1 are duty bound in law to pay
the compensation payable by respondent No.1. Present
proceeding which have been initiated for recovery back the
said amount from respondent No.1, in the circumstances, is
misconceived. Present petition, in the circumstances, is
therefore summarily rejected. Consequently,
W.M.P.No.15575 of 1999 is also dismissed.”
8. The aforesaid decision of the First Bench of this Court was
followed by a learned single Judge of this Court in the order dated
13.04.2006 passed in W.P.No.27962 of 2005. Those judgments squarely
apply to the facts of this case. Hence, the impugned order is quashed and
the writ petition is allowed. The respondents are directed to return the
amount, if any already recovered from the petitioner.”
12. From the counter affidavit, particularly in para 4, it is stated that
the impugned order came to be passed only to enforce strict discipline
among the drivers of the Government vehicles, as the respondents are
entitled to recover the pecuniary loss caused to them either in whole or part
by way of penalty and only in view of the same, the present impugned notice
was issued as to why 5% of the compensation amount should not be
recovered.
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“4.....(1) It is submitted that the averments made in the para is
totally false. The Motor Accidents Claims Tribunal, Namakkal has
observed that the accident was due to the rash and negligence driving of
the Jeep driver. Hence, the Motor Accidents Claims Tribunal, in its order
dated 10.12.2008 has awarded a compensation Rs.8,75,302/- together
with interest.
(2) & (3) It is submitted that the averments made in the para is not
maintainable. As per the opinion of the Government Pleader appeal has
been preferred before the Hon'ble High Court, Madras in CMA.477/2010,
478/2010 with a prayer of to stay all further proceedings pursuant to the
Judgement and degree dated 10.12.2008 passed in MCOP No324/04,
295/08. It is a separate issue the question of recovery is of compensation
amount as per the instruction issued in G.O.(Ms.)No.393 Home(TrIV)
Dept dated 01.03.1988. Further the Government have examined the
question of insuring the state Government Vehicles in consultation with
the Director Motor Vehicle Maintenance Department is of the opinion
that the Government Vehicles need not be covered by insurance policies
against third party risks it will involve payment of a huge amount as
premium. The Government accept the view of the Motor Vehicle
Maintenance Department, Government also direct that the present
procedure laid down in rule 22 of the Tamil Nadu Department Vehicles
Control Rules, 1976 to settle claims, if any, by the Government be allowed
to continue. In order to enforce strict discipline among the drivers of
Government Vehicles, Government have examined the question of
recovering token amount from the drivers in cases of accidents to
Government vehicles. Government consider that under the provisions of
Rule 8(V)(A) of the Tarnil Nadu Civil Services (C.C.A) Rules when any
pecuniary loss is caused recovery from their pay of the whole or part of
such pecuniary loss may be made by way of penalty. Accordingly the
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driver P.C was issued a Showcase notice as to why the 5% of
compensation amount should not be recovered in his salary for rash and
negligence driving.”
13. On perusal of the impugned order and the reasons furnished in
the counter affidavit, it shows that the respondents are only trying to impute
reasons in the counter affidavit which does not find place in the impugned
notice issued to the petitioner. When the impugned order has simply sought
to recover Rs.55,130/- being 5% of the award amount and only seeks the
explanation of the petitioner as to why it should not be recovered without
furnishing any detail as to the basis on which this determination has been
done by them, the reasons furnished by them in the counter affidavit by
adducing additional explanation cannot be accepted in view of the settled
proposition of law that the impugned order cannot be improved by filing a
counter affidavit.
14. Going by the reasons furnished in the impugned order, it could
only be seen that the order determining the recovery of 5% of the amount to
the tune of Rs.55,130/- is made as per the award passed by the Motor
Accidents Claims Tribunal, Namakkal. As rightly pointed out by the learned
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counsel for the petitioner, when there is no such direction issued by the
Motor Accidents Claims Tribunal directing the respondents to recover a sum
of Rs.55,130/- being 5% of the award amount, the present impugned order
seeking to recover on that ground cannot be sustained.
15. Even if the respondent, as stated in the counter affidavit, have
taken steps to recover this 5% in view of the powers available with them
under Rule 8(v) of the Tarnil Nadu Civil Services (Discipline and Appeal)
Rules, even then, when the respondent has not issued any disciplinary
proceedings for imposing any penalty under the above said rule, by issuing a
mere show cause notice, the present impugned order straight away
determining the recovery of this amount is without any basis and cannot be
sustained.
16. In view of the above reasons, the petitioner is entitled to
succeed in the Writ Petition and accordingly, this Writ Petition stands
allowed and the impugned order passed by the respondent dated 27.07.2010
is set aside. There shall be no order as to costs. Consequently, connected
Miscellaneous Petition is closed.
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23.10.2024
Speaking order / Non-speaking order
Index : Yes / No
Neutral Citation : Yes / No
sri
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To
The Superintendent of Police,
Perambalur District.
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G.ARUL MURUGAN, J.
sri
23.10.2024
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