IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated : 23-7-2010 Coram The Honourable Mr.Justice N.PAUL VASANTHAKUMAR W.P.No.4428 of 2006 W.P.M.P.No.4746 of 2006 R. Anbalagan ... Petitioner Vs. 1. The Director General of Police, Mylapore, Chennai – 600 004. 2. The Superintendent of Police, Thanjavur District, Thanjavur. 3. The Treasury Officer, District Treasury Office, Thanjavur District. ... Respondents The prayer in the writ petition is to issue a writ of Certiorarified mandamus calling for the records pursuant to the impugned order of recovery issued by the second respondent in Proceeding No.C3/37474/2000 dated 1.7.2005 and the appellate order issued by the first respondent in Proceeding R.C.No.AP1(1)/ 492/210700/2003, dated 18.11.2005 and quash these orders and consequently direct the respondents to repay the recovered amount with interest. For Petitioner : Mr.S.M.Subramaniam For Respondents : Mr. R. Murali, Government Advocate O R D E R The prayer in the writ petition is to quash the order of recovery dated 1.7.2005 passed by the second respondent and that of the appellate authority dated 18.11.2005 and direct the respondents to repay the recovered amount with interest. 2. The petitioner was working as Police Jeep Driver and on 31.5.1998 the Jeep met with an accident involving a two-wheeler. The driver of the two-wheeler died in the said accident and another person injured. A case in C.C.No.176 of 1998 was filed in that https://hcservices.ecourts.gov.in/hcservices/ regard and ultimately the petitioner was acquitted by the criminal Court by Judgment dated 11.8.1999. It is the case of the petitioner that a disciplinary proceeding was initiated against him under Rule 3(b) of the Tamil Nadu Police Subordinate Services (Discipline and Appeal) Rules, 1955, and after enquiry, petitioner was imposed with the punishment of reduction in the scale of pay by two stages with cumulative effect. On appeal, the appellate authority by his proceedings dated 3.5.2001 modified the punishment to that of reduction in time scale of pay by one stage for one year without cumulative effect. The petitioner also voluntarily retired on 31.5.2003 as Head Constable. That being so, the petitioner is aggrieved by the issue of the impugned order of recovery dated 1.7.2005 effecting recovery of a sum of Rs.36,500/- representing 5% of the award amount ordered by the Motor Accident Claims Tribunal. According to the petitioner, when he has already been punished in the disciplinary proceedings by imposing the punishment of reduction in time scale of pay by one stage for one year without cumulative effect, passing the impugned order of recovery is unsustainable as it would amount to second punishment for the same delinquency. Hence this writ petition. 3. In the counter affidavit filed by the respondent it is stated that the legal heirs of the deceased and the other injured person in the accident filed MCOP Nos.692/1998 and 807/1998 and the said claim petitions were allowed by the Tribunal by directing the second respondent to pay a sum of Rs.4,83,000/- towards compensation with interest at 9% p.a. and costs. Accordingly, the respondents deposited a total sum of Rs.7,30,406/- in the Court on 18.7.2003 and 20.1.2004. Thereafter in accordance with G.O.Ms.No.393 Home Transport IV Department, dated 1.3.1988, a sum of Rs.36,500/- representing 5% of the award amount paid by the respondents is ordered to be recovered from the petitioner in 36 installments by order dated 1.7.2005. As the petitioner voluntarily retired on 31.5.2003, recovery was given effect to from his pension. It is further stated in the counter affidavit that the acquittal of the petitioner in the criminal case was by giving benefit of doubt. The petitioner was punished for causing the accident, in a charge framed under Rule 3(a) of the Tamil Nadu Police Subordinate Services (Discipline and Appeal) Rules, 1955, in P.R.No.228 of 1998 by reducing his pay by one stage for one year and therefore the impugned recovery order passed is valid. 4. Heard the learned counsel for the petitioner as well as learned Government Advocate for the respondents. 5. The petitioner was a driver when the accident took place on 31.5.1998. In similar circumstance, the Division Bench of this Court in W.P.No.11002 of 1999 by order dated 7.7.1999 held as follows: https://hcservices.ecourts.gov.in/hcservices/ "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 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.6516 of 1996 by order dated 13.8.1998." Following the said order of the Division Bench, W.P.No.17856 of 2008 was allowed by me by order dated 22.8.2008 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 that 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 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 https://hcservices.ecourts.gov.in/hcservices/ 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. vr Sd/- Asst. Registrar //True Copy// Sub Asst. Registrar To 1. The Director General of Police, Mylapore, Chennai – 600 004. 2. The Superintendent of Police, Thanjavur District, Thanjavur. 3. The Treasury Officer, District Treasury Office, Thanjavur District. + 1 cc to Mr. S. N. Subramaniam, Advocate SR No.54155 SGL(CO) SR/30.7.2010 Order in W.P.No.4428 of 2006 https://hcservices.ecourts.gov.in/hcservices/