The prayer in this writ petition is for issuance of a writ of certiorarified mandamus to quash the order, dated 09.02.2009, passed in C.No.K2/27541/2000, by the respondent and to direct the respondent to repay the amount recovered from the petitioner.
2. The petitioner was appointed as a Grade-II Police Constable. While he was working as a Driver in Theni Armed Reserve Police Force, on 23.10.2000, at about 22.10 hours, his vehicle involved in an accident and due to which, a person, who was standing on the road side died on the spot. In this regard, a criminal case was registered against him and he was subsequently, acquitted by the learned Judicial Magistrate, Bodinaickanur, vide order, dated 24.03.2005, in C.C.No.266 of 2000. But, in the departmental proceedings, he was awarded with a Black Mark, by following the procedure laid down under Rule 3(a) of Tamil Nadu Police Subordinate Service (Discipline and Appeal) Rules, 1955, by the respondent.
3. The Government of Tamil Nadu, vide G.O.(Ms) No.393, Home (Transport. IV) Department, dated 01.08.1998, decided to enforce strict discipline among the drivers of Government vehicles. Therefore, the Government examined the question of recovering token amount from the drivers in cases of accidents to Government vehicles. Considering Rule 8(v)(a) of the Tamil Nadu Civil Services (C.C.A.) Rules, the Government decided to effect recovery of either full or part of pecuniary loss caused to the Government by the Government servants, by way of penalty and therefore, the Government ordered to make token recovery from the drivers in cases, the Government vehicles got involved in accident.
4. Following the above Government Order, the Director General of Police, Tamil Nadu, vide Rc.No.120380/MT II(1)/2009, dated 27.07.2009, issued a Circular Memo to all Unit Officers, to follow G.O.Ms.No.393, dated 01.03.1988 and directed them to initiate recovery proceedings against the erring driver PCs according to the loss caused to the Government fund without any deviation. Based on the said Government Order, the respondent passed the impugned order, dated 09.02.2009, ordering recovery of 1/4th of the total loss caused to Government funds i.e.Rs.55,260/- out of the compensation of Rs.2,21,030/- awarded by the Motor Accident Claims Tribunal in M.C.O.P.No.1080 of 2000, in 55 monthly installments from the petitioner's salary. Aggrieved by the same, the petitioner has filed this writ petition.
5. The respondent has filed a counter affidavit stating that the writ petitioner has involved in an accident and a criminal case was also registered against him. The petitioner was imposed with a punishment of postponement of next increment for one year without cumulative effect for his gross neglect of duty causing death in the accident occurred. Therefore, punishment for misconduct is different from the recovery proceedings, which is impugned in this writ petition, towards the loss caused to the public money by way of penalty. The punishment awarded departmentally for negligence of duty and recovery made pursuant to the loss caused to the public money are totally different. The recovery order was communicated to the delinquent and therefore, the allegation that it was without notice is wrong. Further, the recovery was made as per the Government Order in G.O.Ms.No.393, dated 01.03.1998 and therefore, the impugned order is sustainable.
6. The learned counsel appearing for the petitioner would contend that for the same incident, two punishments were imposed on the petitioner. Therefore, it would amount to double jeopardy. The respondents cannot impose the punishment of recovery of 1/4th of the compensation awarded by the Motor Accident Claims Tribunal from the writ petitioner. He had already suffered a punishment as per Rule 3(a) of the Tamil Nadu Police Subordinate Service (Discipline and Appeal) Rules, 1955, vide order dated 09.02.2009 in P.R.No.60/2001 in the departmental proceedings conducted against him for the misconduct. The Tamil Nadu Administrative Tribunal in a similar circumstances passed an order in O.A.No.1503 of 2004 relying on the judgment of this Court in W.P.No.11002 of 1999 dated 07.07.1999, wherein it has held as follows:
?4.Moreover, the High Court in Writ Petition No.11002 of 1999, by its Judgment, dated 7-7-1999 has held as follows:
?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 employers of respondent No.1 are durty bound in law to pay the compensation which have been initiated for recovering back the said amount from respondent No.1 in the circumstances is misconceived. Present petition in the circumstances is therefore summarily rejected.?
That was a writ petition filed by the State challenging the order allowing the petition filed by the petitioner / a Government Driver, questioning the validity of the recovery order. Therefore, the accident cannot be made liable for the compensation paid by the department to the victim. The application is therefore allowed The order of recovery is set aside.?
Therefore, he would further contend that even assuming that the Government has power to make a token recovery, it cannot be presumed that 1/4th of the compensation awarded by the Motor Accident Claims Tribunal can be recovered from the delinquent officer. The said exercise of power is whimsical and arbitrary. If that recovery is made, the petitioner would be receiving a very meager salary and would be put to grave hardship. In those circumstances, in the interest of justice and in view of the principles of natural justice, he would pray that the impugned order should be set aside.
7. Per contra, the learned Additional Government Pleader appearing for the respondent would submit that the writ petitioner was caused a grave accident involving death of a third party. The recovery order has been passed following the norms and rules correctly as held in the Government Letter No.42093/Pol-XI/2008-1, dated 19.05.2008 and Government Letter No.42093/Pol.XI/2008-2, dated 25.09.2008 and Circular Memo No.120380/MT II(1)/2009 dated 27.07.2009. The Government has issued clear instructions that ?When any pecuniary loss is caused, recovery from their (driver) pay of the whole or part of such pecuniary loss may be made by way of penalty. The punishment was awarded departmentally for his negligent of duty and the recovery was made according to the existing rules for having caused huge pecuniary loss to the public money by way of penalty. Therefore, the order passed by the respondent is very much legal and in order. Hence, the writ petition is liable to be dismissed.
8. Heard both sides and perused the materials produced.
9. According to the petitioner, two punishments were imposed on him and therefore, it would amount to double jeopardy. On considering the contentions of the learned Additional Government Pleader and also the materials relied on, it is seen that one is a punishment imposed based on the departmental enquiry and another one is a punishment imposed for misconduct. Departmental enquiry was conducted for a misconduct under Rule 3(a) of Tamil Nadu Police Subordinate Service (Discipline and Appeal) Rules, 1955. Learned Additional Government Pleader contended that both the proceedings are independent of the other. Insofar as the recovery of money is concerned, it is consequent to the G.O.Ms.No.393, dated 01.03.1998. It cannot be construed as a punishment. But, it shall be construed as compensatory payment towards the loss caused to the public money. Therefore, the arguments of the learned counsel for the petitioner that it amounts to double jeopardy, cannot be sustained.
10. It is an admitted case that the petitioner had caused an accident while driving the Government vehicle. He is governed by the Tamil Nadu Police Subordinate Service (Discipline and Appeal) Rules, 1955. As per Rule 3(a) disciplinary action has been taken against the delinquent officer namely, the writ petitioner herein. It has to be seen whether the respondent is empowered to take action against the delinquent officer for the same incident by way of the executive instructions issued in G.O.(Ms) No.393, Home (Transport. IV) Department, dated 01.03.1998. The said Government Order has been passed with an object that the negligent drivers should not scot free and they should also feel the pinch of the delinquency of the rash and negligent driving. Therefore, considering the provisions of Rule 8(v)(a) of the Tamil Nadu Civil Services (Classification Control and Appeal) Rules, recovery from the pay of the whole or part of such pecuniary loss may be made by way of penalty in these circumstances, Government, consider that there is no need for making separate rules for effecting token recovery from the Drivers in case Government vehicles got involved in accidents. The said Government Order is an administrative instruction given by the Special Commissioner & Secretary to Government, Home Department.
11. It is well settled in service jurisprudence that the Government employees are governed by the Service Rules pursuant to their service. They cannot be subjected to disciplinary action under rules governing some other service. In other words, service rules alien to an individual service cannot be imported to impose punishment on them.
12. Insofar as the present action of the respondent is concerned, the Government Order has been passed with a good object of imposing discipline in the minds of erring and negligent drivers. In order to make them to feel the pinch, compensatory sum can be recovered from them from their salary. For such an action, the respondent should have power under the Statute. But in the case on hand, we could see that only an administrative instruction following the Tamil Nadu Civil Services (C.C.A) Rules has been given, which has no application to the disciplinary proceedings taken against the petitioner. Unless it is provided in the statute to impose compensatory cost, the respondent is not entitled to pass an order of recovery. Moreover, the petitioner has challenged the impugned order of recovery on the grounds of violation of principles of natural justice, double jeopardy and arbitrary exercise of power.
13. The further argument of the learned counsel for the writ petitioner is that the token recovery must be nominal and it cannot be 1/4th of the amount. Assuming that a compensation of Rs.1 Crore is awarded by the Motor Accident Claims Tribunal, a Government servant cannot be fastened with 1/4th viz., Rs.25,00,000/- to be recovered from his salary or terminal benefits. Such exercise of power does not have any rationale behind it. Recovery without having any norms, if imposed, at the discretion of authorities, would result in whimsical exercise of power.
14. In the instance case also, recovery of Rs.55,260/- being 1/4th of compensation awarded by the Motor Accident Claims Tribunal is without any sound reasons and rationale having nexus to the object sought to be achieved, but penal. Therefore, the contention of the learned Additional Government Pleader that the impugned order of recovery came to be passed in accordance with the rules and norms cannot be countenanced. In fact, the present action of the respondent amounts to double jeopardy subjecting in the writ petitioner put to punishments. Such an action is violative of principles of natural justice and without any backing of the statutory rules.
15. Considering the above legal aspects of the matter and in view of the discussions made above, this Court is of the considered view that the writ petition deserves to be allowed. Accordingly, the impugned order is set aside and the writ petition is allowed and the respondent is directed to refund the amount already recovered from the petitioner, if any, within a period of eight weeks from the date of receipt of a copy of this order. No costs. Consequently, connected miscellaneous petition is closed.
To:
The Superintendent of Police, Theni District..