Heard both sides.
2.This writ petition arose out of O.A.No.2400 of 1998 filed by the petitioner before the Tamil Nadu Administrative Tribunal. In view of the abolition of the Tribunal, it was transferred to this court and was renumbered as W.P.No.35896 of 2006.
3.The petitioner sought for the issuance of a writ of certiorari to call for the records relating to the order of the first respondent, dated 28.7.1997 issued in reference number Na.Ka.794/97/p1 and the order of the third respondent, dated 20.1.1998 in Na.Ka.No.1948/96/A6 and the order of the fourth respondent in Na.Ka.No.2817/97/A2, dated 9.2.1998 and to quash the same.
4.The petitioner was a Jeep driver working under the control of the third respondent. On 27.8.1999, the petitioner while he was driving the jeep belonged to the third respondent, it met with an accident by having direct collision with a transport bus belonging to Thiruvalluvar Transport corporation owned by the State Government. The petitioner suffered injuries and he was admitted as an inpatient in the Government Rajaji Hospital. He claimed compensation against the State Transport corporation by filing MACOP No.525/1991 before the 4th Additional Sub Judge, Madurai. The petitioner also impleaded the third respondent as second respondent in the said OP. The Motor Accidents Claims Tribunal, by its judgment, dated 2.3.94, granted compensation. The Tribunal held that the petitioner was eligible to get Rs.17,500/- as compensation, out of which, the Thiruvalluvar Transport Corporation had to pay Rs.13,125/- and the third respondent should pay Rs.4,375/-. Thereafter, the first respondent issued a memo dated 20.5.97, framing charges against the petitioner. 5.It was stated that the jeep was met with an accident because of the negligence by the petitioner and though the Commissioner was directed to pay a sum of Rs.37,000/- as compensation to one Rajaram, it does not mean that the Commissioner should pay the amount and therefore, the petitioner should pay 1/3rd of the compensation ordered. In the compensation case, 25% liability was fixed on the negligence of the petitioner. Subsequently, a recovery order was made by the second respondent District Collector. The third respondent also issued proceedings, dated 20.1.98 and the fourth respondent by proceedings dated 9.2.98 directed the amount to be paid together with interest at the rate of 15%. 6.The Tribunal, by its order dated 2.4.98 granted an interim stay of the recovery and subsequently, extended the interim order from time to time and it continues till date. On behalf of the respondents, a reply affidavit, dated Nil was filed by the third respondent. Though in the reply it was stated that the petitioner's claim for compensation was also ordered by the Motor Accidents Claims Tribunal and that was also given credit to, but in the compensation claim made by the Assistant Divisional Engineer in MACOP No.267/90, the Tribunal has fixed 25% negligence on the petitioner and therefore, he was bound to pay the amount. The liability on the petitioner was squarely fixed on the basis of the motor accidents claim Tribunal's order in the case relating to the Assistant Divisional Engineer, wherein only the third respondent was made as party. The Tribunal might have fixed liability on the petitioner either without hearing him or without making him as a party to the Tribunal's proceedings. In such circumstances, nothing preventing the respondents from conducting an independent enquiry so as to fix the liability of the petitioner. This is especially so when the petitioner himself was also awarded compensation by the very same tribunal in MACOP No.525/91. Therefore, the compensation claims in MACOP No.267/90 filed by ADE (NREP, Madurai) as well as the claim filed by the petitioner cannot stand together before the respondents explain as to how they can reconcile both the orders.
7.In this context, may not be out of place to refer to the decision of the Supreme Court where Rule 9 of the Central Civil Service Pension Rules was considered. Rule 9 enables recovery from pension from any Government servant on account of the loss caused to the State or on the basis of a verdict made by a Court of Law. Therefore, it is necessary to refer to Rule 9 of the Pension Rules and the findings rendered by the Supreme Court in the decision relating to D.V. Kapoor v. Union of India reported in (1990) 4 SCC 314 in paragraphs 8 and 9 of the said judgment:
Rule 9(1) of the Rules provides thus:
9.(1) The President reserves to himself the right of withholding or withdrawing a pension or part thereof, whether permanently or for a specified period, and of ordering recovery from a pension of the whole or part of any pecuniary loss caused to the government, if, in any departmental or judicial proceedings, the pensioner is found guilty of grave misconduct or negligence during the period of his service including service rendered upon re-employment after retirement:
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8. It is seen that the President has reserved to himself the right to withhold pension in whole or in part thereof whether permanently or for a specified period or he can recover from pension of the whole or part of any pecuniary loss caused by the government employee to the government subject to the minimum. The condition precedent is that in any departmental enquiry or the judicial proceedings, the pensioner is found guilty of grave misconduct or negligence during the period of his service of the original or on re-employment. The condition precedent thereto is that there should be a finding that the delinquent is guilty of grave misconduct or negligence in the discharge of public duty in office, as defined in Rule 8(5), Explanation (b) which is an inclusive definition, i.e. the scope is wide of the mark dependent on the facts and circumstances in a given case. Myriad situations may arise depending on the ingenuity with which misconduct or irregularity is committed. It is not necessary to further probe into the scope and meaning of the words grave misconduct or negligence and under what circumstances the findings in this regard are held proved. ....
9. As seen the exercise of the power by the President is hedged with a condition precedent that a finding should be recorded either in departmental enquiry or judicial proceedings that the pensioner committed grave misconduct or negligence in the discharge of his duty while in office, subject of the charge. In the absence of such a finding the President is without authority of law to impose penalty of withholding pension as a measure of punishment either in whole or in part permanently or for a specified period, or to order recovery of the pecuniary loss in whole or in part from the pension of the employee, subject to minimum of Rs 60.
8.If it is seen in the light of the above precedent and the factual matrix involved in the writ petition, that the recovery ordered by the respondents without any proper enquiry must be considered to be illegal and opposed to the principles of natural justice. In the light of the above, the writ petition stands allowed and the impugned orders shall stand set aside. However, there will be no order as to costs.
vvk To
1.The Divisional Development Officer, Collectorate Campus, Madurai-20.
2.The District Collector, Madurai.
3.The Commissioner, Kottampatti Panchayat Union, Kottampatti, Madurai-625 106.
4.The Block Development Officer, Melur, Madurai District