IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 17.09.2008 CORAM: THE HONOURABLE MR.JUSTICE P.JYOTHIMANI W.P.NO.16905 of 2008 & M.P.No.1 of 2008 V.Natarajan ..Petitioner -vs- 1. The Executive Engineer (Agri.Engg.) Thiruvarur, Thiruvarur District 2. The Assistant Executive Engineer (Agri.Engg.) Thiruvarur, Thiruvarur District ..Respondents Writ Petition filed under Article 226 of Constitution of India praying for a writ of Certiorarified mandamus to call for the records connected with the impugned chargememo No. A.31/2007 dated 23.6.2008 (Served on 27.6.2008) of the 1st respondent and quash the same and direct the respondents to permit the petitioner to retire from service w.e.f. 1.7.2008 peacefully. For petitioner : Mr.G.Elanchezhiyan For respondents : Mr.A.Edwin Prabhakar O R D E R Heard the learned counsel for the petitioner and the learned counsel for the respondents. By consent, the Writ Petition itself is taken up for final disposal. 2. This Writ Petition is directed against the proceedings of the first respondent dated 23.6.2008 by which the first respondent has initiated disciplinary proceedings by framing charges against the petitioner. Two charges, which are framed in the disciplinary proceedings initiated by the first respondent against the petitioner are that i) on 25.7.2006, when the petitioner was driving a Tractor bearing Registration No.TN 50 G 0067, he has caused an incident due to his negligence and ii) the Government had to pay the compensation in respect of death of one Madhavan and injury sustained to one Raja https://hcservices.ecourts.gov.in/hcservices/ due to the accident, which was caused by the negligence of the petitioner. The said charges are framed under Rule 17(b) of the Tamil Nadu Civil Service (Discipline and Appeal) Rules (hereinafter referred to as 'Rules'). The challenge is to the said impugned charge memo. 3. The facts leading to the filing of the Writ Petition are as follows: 3(i) The petitioner was appointed by the respondents as a Tractor Cleaner on 26.5.1973. Subsequently he was promoted as Tractor Driver on 3.12.1986 and has been working under the respondents in the said capacity. On 25.7.2006, after completion of the agricultural work, when he was driving the Department Tractor-Trailor to be taken to the Government Shed situated in Agriculture Engineering Department, Pavitharamanickam, Thiruvarur at about 7.30 p.m, M/s.Madhavan and Raja were driving the bicycle in a drunken mind and as a result they were suddenly crossing the road, which resulted in the accident, in which the said persons were seriously injured and out of whom, Mr.Madhavan died on the spot and Raja was admitted in the Government hospital. 3(ii) A First Information Report was registered as against the petitioner and the petitioner was released on bail. The said criminal case against the petitioner is still pending. Ultimately the legal representatives of the said Madhavan and also the said Raja have filed respective claim petitions before the Sub Court, Thiruvarur in C.O.P.Nos.238 and 239 of 2006. In the said Original Petitions, the petitioner was not made as a party and the Chief Engineer, Assistant Executive Engineer and the District Collector were made as parties. 3(iii). In the claim petition filed before the Motor Accidents Claims Tribunal, the respondents in the counter affidavit have clearly stated that the accident has taken place not due to the fault of the petitioner, who is the Driver but due to the reason that the said Madhavan and Raja were driving the bicycle in a drunken mind. Ultimately the Motor Accident Claims Tribunal has passed an award. 3(iv) It was thereafter, on 2.5.2008, the respondents have issued the charge memo against the petitioner on the basis that the petitioner has driven the Tractor negligently, thereby causing financial loss to the Government to which the petitioner has also submitted his explanation stating that he was not negligent. 3(v). The first respondent has appointed one Mr.Kannan as enquiry officer in respect of the charges framed against the petitioner and according to the petitioner, no enquiry has been conducted so far. https://hcservices.ecourts.gov.in/hcservices/ Originally on 2.5.2008, charges were framed under Rule 17(b). The petitioner has also moved this Court by filing a Writ Petition earlier and ultimately the said charge memo dated 2.5.2008 came to be cancelled and the present impugned charge memo is issued as a fresh charge memo in respect of the same occurrence. 4. The case of the petitioner is that the charge memo itself proceeds on the basis that there is negligence on the part of the petitioner in driving the Tractor belonging to the respondents. However, in the counter affidavit filed before the Tribunal, the same respondents have clearly stated that there was no negligence on the part of the petitioner as Driver and therefore the charge memo is contrary to the stand already taken by the respondents Department. Further, it is the case of the petitioner that the criminal as well as disciplinary proceedings cannot go together, since the same set of facts are involved and the petitioner cannot be compelled to disclose his defence, which would affect his defence in the criminal case. 5. The learned counsel for the petitioner would contend that in a similar circumstance, when the vehicle belonged to the Government or some other Government Department driven by the Government servant, met with an accident, which has caused the Government to pay compensation before the Motor Accidents Claims Tribunal in respect of the claims made by the victims or the injured, it was held that will not entail the Government to frame charges or to recover the amount, since the driving was in the course of his employment and therefore vicarious liability applies. 6. The learned counsel for the petitioner also placed reliance on the latest decision of the Division Bench of this Court in Tamil Nadu State Transport Corporation (Kumbakonam Dn-II) Ltd., rep.by the Managing Director, Tiruchirapalli and another vs. P.Karuppusamy reported in (2008) 1 MLJ 694, wherein the Division Bench held that when the Department has taken a categorical stand that the employee was not negligent in driving the Tractor, it is not open to them to frame charge memo on the basis that there was negligence on the part of the employee in driving the Tractor, which is contrary to the stand taken earlier and the Division Bench has held that the charges are not maintainable. 7. On the other hand, the learned counsel for the respondents submitted that while the fact remains that due to the conduct of the petitioner, the Government had to suffer financial loss, the Government certainly under the Service Rules governing the petitioner's service has to recover the amount and also to initiate disciplinary proceedings. It is also his contention that the defence was taken in some other proceedings, wherein the issue involved was the payment of compensation for vicarious liability, in the usual https://hcservices.ecourts.gov.in/hcservices/ manner and therefore the Department has to proceed against the petitioner. It is found that infact, the petitioner was negligent in driving, which ultimately resulted in financial loss to the Government. 8. On a reference to the impugned charge memo, it is clear that the present charge memo itself is framed under Rule 17(b) of the Rules, refering to the same issue, namely the accident took place on 25.7.2006, when the petitioner was driving the Tractor belonging to the Government as a Government servant, resulting in an accident causing death of a person and injury to another person and in the Motor Accidents Claims Tribunal, there was an Award passed in favour of the legal representatives of the deceased as well as the injured person. 9. A reference to the counter affidavit filed by the respondents in the Original Petition filed before the Motor Accidents Claims Tribunal makes it clear that it has been the categorical stand of the respondents before the Sub Court, Tiruvarur that the petitioner was driving the vehicle in a normal speed by following the Road discipline and also the Rules and it is the specific case of the respondents in the counter affidavit in the said proceedings that the petitioner was driving on the left side of the Road by using horn and on the other hand the deceased and the injured person, who came in bicycle on the opposite direction in high speed with negligence. The portion of the counter affidavit filed by the respondents before the Tribunal is as follows: @fle;j 25/7/2006 md;W ,e;j vjph;kDjhuUf;F brhe;jkhd ouhf;lh; o/vz; 50?$p 0067 kw;Wk; mjd; oiuth; vk;//o/vg; 5176 vd;w thfdj;ij mjd; Xl;Ldh; jhiHf;Foapy; nrj;J cGk; gzpapid Koj;J tpl;L jiyik mYtyfk; gtpj;jpukhzpf;fk; te;Jf; bfhz;oUf;ifapy; Rkhh; ,ut[ 7/30 mstpy; ,y';Fo fpuhkj;jpy; kpjkhd ntfj;jpYk;. Rhiy tpjpfis mDrhpj;Jk;. Rhiyapd; ,lJ g [wkhft[k;. Mud; moj;Jk; te;Jf;bfhz;oUf;ifapy; vjpnu mjpntfkhft[k;. m$hf;fpuijahft[k; xU irf;fpspy; ,U egh;fs; te;jij fz;l ouhf;lh; xl;Ldh; thfdj;ij ,lJ g[wkhf epWj;jp tpl;lhh;/@ This is the stand taken by the respondents in respect of both the Original Petitions filed by the legal representatives of the deceased as well as the injured person. 10. In G.O.Ms.No.393 Home (TR.IV) Department, dated 1.3.1988, the Government decided that in cases where the Government vehicles are involved in an accident, resulting in the compensation directed to be paid by the Government, the existing Rules enable the Government to recover a token amount. The operative portion of the said Government Order is as follows: https://hcservices.ecourts.gov.in/hcservices/ "3. 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 Tamil Nadu Civil Services (C.C.A.)Rules, when any pecuniary loss is caused to Government by the negligence of the Government servants, recovery from their pay of the whole or part of the 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." 11. Therefore, it is clear that in cases where the Government vehicles are involved in accident, even as per the Government Order, the proceedings can be initiated for recovery of a token amount only under Rule 17(a) of the Rules and the disciplinary proceedings under Rule 17(b) is not contemplated. Be that as it may, on the facts, which have been elicited, it is clear that the Government having taken a definite stand before the Motor Accidents Claims Tribunal that the petitioner was not negligent in driving the vehicle, has totally taken a different stand in the impugned charge memo to the effect that the petitioner, due to his negligence, has caused accident, resulting in financial loss to the Government. Certainly this is totally a contradictory stand taken by the respondents and it is clear that the charge memo has to go. That apart, as stated above, it has been the policy of the Government through out as seen in the Government Order elicited above that in such cases the decision of the Government is also to recover a token amount from such Government drivers, who was involved in accident and therefore on that score also, the impugned charge memo, which has been framed under Rule 17(b) is not maintainable. 12. In a similar factual situation, a Division Bench of this Court had an occasion to hold that the Transport Corporation having taken a plea before the Motor Accidents Claims Tribunal that their employee (bus driver) was not responsible for the accident, cannot dismiss him after domestic enquiry by holding that he is guilty of negligence. That was the judgement in the Tamil Nadu State Transport Corporation (Kumbakonam Dn-II) Ltd., rep.by the Managing Director, Tiruchirapalli and another vs. P.Karuppusamy reported in (2008) 1 MLJ 694. There also, the respondent, who was a Driver of a bus belonging to the Transport Corporation while driving the bus has involved in an accident and ultimately when the matter was taken to the Tribunal, the Transport Corporation has taken a definite stand in the counter affidavit by stating that the bus driver was not negligent and it was only a contributory negligence of the person, https://hcservices.ecourts.gov.in/hcservices/ who was injured and ultimately it is seen that the criminal case, which has been filed against the Driver, was also ended in acquittal. Subsequently, when the Transport Corporation framed charges against the bus driver on the ground that due to his negligence only, the accident had occurred, the division Bench having taken a definite stand of the Transport Corporation before the Tribunal that the bus Driver was not negligent, has quashed the disciplinary proceedings and set aside the order of the punishment imposed against the Driver. The operative portion of the Division Bench reads as follows: "24. The principles laid down in the aforesaid rulings are squarely applicable to the facts of the present case. The appellant Corporation, having taken a plea that the driver of the bus was not responsible for the accident, could not turn around to say that he was responsible for the accident. As such, it is very much bound by the pleadings raised by it before the Tribunals and this Court. The law is well settled as to the aspect that the standard of proof in both the proceedings before the criminal court and the domestic enquiry officer are entirely different. However, since the Corporation has consciously raised the contention in favour of the bus driver before the judicial fora, it is precluded from proceeding against him in departmental proceedings. Though the extent of proof is sufficient to the commission of delinquency in the matter of departmental proceedings, the management could not lay its hands on the workman, detrimental to his interest, after defending him before various judicial fora and accepting the findings of the Motor Accidents Claims Tribunal, Karur. Further, in the dismissal order, dated 9.2.1998, it is mentioned that even though a scrutiny of the service records would show that the respondent was not at all penalised at any point of time, since he caused a fatal accident, it was proposed to dismiss him from service, which shows that the past records of the respondent were also clean." 13. In an unreported judgment of the Hon'ble First Bench of this court consisting of Mr.A.C.Agarwal, Chief Justice (as he then was) and Mr.Justice K.Sampath (as he then was) in W.P.No.11002 of 1999 dated 7.7.1999 in a similar circumstance, when a vehicle belonging to the Agricultural Department of the Government involved in a fatal accident, resulting in the Tribunal directing the Government to pay compensation of rs.74,379/-, in which proceedings the Driver, who was also arrayed as party has not chosen to appear and as per the Award passed by the Tribunal, the Government has paid the compensation and thereafter proceeded to recover the amount from the Driver on the ground that the Driver was negligent. It was in those circumstances, the Hon'ble First Bench held that the said claim is wholly https://hcservices.ecourts.gov.in/hcservices/ unsustainable, since it was the duty of the Government being employer to pay compensation and the Driver was not duty bound in law to pay the compensation to the Government in turn. The operative portion of the decision of the Division Bench is as under: "In respect of a fatal accident caused by the first 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 the respondent No.1. Thought 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 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 No.1 are duty bound in law to pay the compensation payable by respondent No.1. Present proceedings 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." This was also the view taken by a Hon'ble Single Judge of this Court in K.Dakshinamoorthy v. The Chief Engineer (General) T.N.Highways Department (2006) 3 MLJ 452, wherein it was held that when both the criminal court as well as Motor Accidents Claims Tribunal have found that the employee was not responsible for the death of a passenger in an accident, mere pendency of the Civil Miscellaneous Appeal cannot be a ground to issue the charge memo against the employee. 14. In view of the categorical pronouncement of the law by the Division Bench of this court and by applying the factual situation of this case as enumerated above, there is absolutely no difficulty to come to the conclusion that the respondents having taken a definite stand earlier that the petitioner was not negligent, cannot go against their own statement by framing a charge memo now turning to say that the petitioner was negligent in driving in respect of the same incident. That apart, the impugned charge memo framed under Rule 17(b) of the Rules is not maintainable as per the Government Orders. https://hcservices.ecourts.gov.in/hcservices/ 15. In view of the reasons stated above, the impugned charge memo is set aside and the Writ Petition stands allowed. No costs. The connected Miscellaneous Petition is closed. Sd/- Asst. Registrar. /true copy/ Sub Asst. Registrar. Ajr To 1. The Executive Engineer (Agri.Engg.) Thiruvarur, Thiruvarur District 2. The Assistant Executive Engineer (Agri.Engg.) Thiruvarur, Thiruvarur District + 1 CC To Mr.G.Elanchezhiyan, Advocate SR NO.52919 W.P.NO.16905 of 2008 SA {CO} TP/30.9.08 https://hcservices.ecourts.gov.in/hcservices/