IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP(T) No. 11176 of 2008. Judgment reserved on : 31.3.2011. Date of decision: 01.04.2011. _______________________________________________________ Jagdish Chand. ….. Petitioner. Versus The State of H.P.& Anr. …. Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 Yes For the Petitioner : Mr. Ajay Sharma, Advocate. For the Respondents : Ms.Ruma Kaushik, Additional Advocate General. Kuldip Singh, Judge The petitioner has prayed for quashing of Annexure A-2 dated 09.09.2004 ordering recovery of Rs. 13,39,268/- in installments from petitioner and quashing of Office order dated 16.09.2004 ordering recovery of Rs. 4,000/- per month from the salary of the petitioner from September, 2004 onwards. 2. The facts, in brief, are that petitioner after superannuation from Army was appointed as driver against the post of Ex-serviceman in the year 1986 in the department. MACC Nos. 44, 45 and 46-S/2 of 1999 were filed before the Motor Accident Claims Tribunal, Shimla. The petitioner was respondent No.3 in those petitions. The Motor Accident Claims Tribunal, Shimla awarded a sum of Rs. 13,39,268/- on 30.06.2004 in those petitions. Whether the reporters of the local papers may be allowed to see the Judgment? Yes 2 On the basis of award, Secretary (Health) to the Government of H.P. has requested respondent No.2 vide letter dated 9.9.2004 to ensure recovery of ` 13,39,268/- in instalments from petitioner. It has been alleged by petitioner that respondents No.1, 2 in their reply before the learned Motor Accident Claims Tribunal denied that petitioner was driving the vehicle in rash and negligent manner. But now, the respondents No.1, 2 have taken totally contrary stand, hence letter dated 9.9.2004 is liable to be quashed and set-aside. 3. There was a relationship of master and servant between the petitioner and respondents and assuming that accident took place due to negligence of the petitioner, in that case also, the petitioner being employee of respondents, therefore, respondents are vicariously liable to indemnify the petitioner. The accident took place during the course of employment of petitioner. This could be considered only in an inquiry, hence respondents have erred in ordering recovery of ` 13,39,268/- on the basis of letter dated 9.9.2004 and office order dated 16.9.2004 which are wrong and illegal and are liable to be quashed. It is also the case of the petitioner that recovery ordered by respondents against the petitioner of an amount of ` 13,39,268/- on the basis of award dated 30.6.2004 is not sustainable. The recovery, if any, can be made from the petitioner only on the basis of disciplinary proceedings and not otherwise. 4. The respondents have filed reply and have taken preliminary objections that petitioner was driving vehicle No.HP-03- 2460 on 14.4.1999 and met with an accident. The action was proposed against the petitioner and subsequently petitioner was suspended on 17.4.1999. The petitioner has been convicted in 3 Criminal Case No. 80-2 of 2003/99 under Sections 279, 337, 338 IPC by learned Judicial Magistrate 1st Class (V), Shimla on 2.12.2003. The Director of Health Services appointing authority of the petitioner has not been arrayed as party and therefore, the petition is not maintainable. On merits, it has been stated that respondent No.2 had initiated disciplinary proceedings against the petitioner, he was suspended. The respondents have justified Annexures A-2 and A-4 and have prayed for dismissal of the petition. 5. I have heard the learned counsel for the parties. This petition was earlier filed in the erstwhile Tribunal where it was registered as O.A. No. 2724 of 2004. On abolition of the Tribunal, this petition has been transferred to this Court. On 27.9.2004 the erstwhile Tribunal in O.A. No. 2724 of 2004 did not grant any interim relief to the petitioner. He filed CWP No. 719 of 2004 and the Division Bench disposed of CWP No. 719 of 2004 on 5.10.2004 and directed that OA No. 2724 of 2004 shall be disposed of on its merits and in accordance with law, the respondents shall not effect the impugned recovery against the petitioner until the disposal of the aforesaid Original Application by the Tribunal or until on a specific application made by the respondents in the Tribunal, the Tribunal passes a specific, speaking order permitting the respondents to effect the impugned recovery even while the Original Application is pending in the Tribunal. It has been stated that during the pendency of the petition before the Tribunal, no positive order was passed by the Tribunal permitting the respondents to recover the amount from the petitioner. In other words, during the pendency of the petition, the 4 impugned amount has not been recovered from the petitioner in pursuance to letter dated 9.9.2004 and office order dated 16.9.2004. 6. The respondents in para 6(iv) of the reply have pleaded that respondent No.2 had initiated disciplinary proceedings against the petitioner and he was suspended on 17.4.1999. It has not been elaborated in the reply as to what happened to the disciplinary proceedings initiated by respondent No.2 against the petitioner. Rule 11 of the CCS(CCA) Rules, 1965 (for short ‘Rules’) provides minor penalties and major penalties. The relevant part of Rule 11 is as follows:- “The following penalties may, for good and sufficient reasons and as hereinafter provided, be imposed on a Government servant, namely;- (i) and (ii) xx xx xx (iii) recovery from his pay of the whole or part of any pecuniary loss caused by him to the Government by negligence or breach of orders. xx xx 7. The procedure for imposing minor penalties has been provided in Rule 16 which provides that no order imposing on a Government servant any of the penalties specified in Clause (i) to (iv) of Rule 11 shall be made except after- (a) informing the Government servant in writing of the proposal to take action against him and of the imputations of misconduct or misbehaviour on which it is proposed to be taken, and giving him reasonable opportunity of making such representation as he may wish to make against the proposal; 5 (b) holding an inquiry in the manner laid down in sub- rules(3) to (23) of Rule 14, in every case in which the Disciplinary Authority is of the opinion that such inquiry is necessary; (c ) taking the representation, if any, submitted by the Government servant under Clause (a) and the record of inquiry, if any, held under Clause (b) into consideration; (d) recording a finding on each imputation of misconduct or misbehaviour ; and e) consulting the Commission where such consultation is necessary. The sub rule 1-A provides when even for minor penalty, an inquiry shall be held in the manner laid down in sub rules (3) to (23) of Rule 14. The record of the proceedings shall be kept in the manner provided in sub rule (2). Rule 19 provides Special procedure in certain cases to the effect that notwithstanding anything contained in Rule 14 to Rule 18(i) where any penalty is imposed on a Government servant on the ground of conduct which has led to his conviction on a criminal charge, the disciplinary authority may consider the circumstances of the case and make such orders thereupon as it deems fit. Rule 19 further provides that Government servant may be given an opportunity to make representation on the penalty proposed to be imposed before any order is made in a case under Clause (i). 8. The letter dated 9.9.2004 Annexure A-2 is not based upon conviction of petitioner in criminal case nor in criminal case there is a finding even remotely that petitioner is liable to pay an amount of ` 13,39,268/- to the respondents. The office order dated 6 16.9.2004 Annexure A-4 is based upon letter dated 9.9.2004 Annexure A-2. There is nothing on record that in the inquiry initiated against the petitioner a decision was taken by the competent authority for recovery of ` 13,39,268/- from the petitioner on account of his misconduct having committed accident of the vehicle as driver while on duty and caused loss to the extent of ` 13,39,268/- to the respondents. The amount of ` 13,39,268/- has been determined by the respondents on the basis of award dated 30.6.2004 of Motor Accident Claims Tribunal in MACC Nos. 44, 45 and 46-S/2 of 1999. In the award dated 30.6.2004 the Tribunal has not ordered specifically that petitioner shall pay ` 13,39,268/- to the claimants. 9. The letter dated 9.9.2004 has been written by the superior authority to the Director. No doubt, in the letter dated 9.9.2004 a request has been made to ensure recovery of an amount of ` 13,39,268/- in installments from the petitioner, but in certain situations the request of superior authority is also a mandate to the lower authority. The mandate of superior authority to the lower authority has been established in the present case when respondent No. 2 without following due process of law simply on the basis of letter dated 9.9.2004 has ordered recovery from the petitioner vide office order dated 16.9.2004 on the basis of letter dated 9.9.2004. The recovery, if any, can be made from the petitioner by following due process of law. The recovery of ` 13,39,268/- ordered vide letter dated 9.9.2004 and office order dated 16.9.2004 is not in accordance with law inasmuch as no inquiry was conducted by the respondents against the petitioner before ordering recovery of ` 13,39,268/- from the petitioner nor any show cause before ordering recovery was 7 issued to the petitioner. Therefore, letter dated 9.9.2004 and office order dated 16.9.2004 are not sustainable. 10. No other point was urged. 11. The result of the above discussion, the petition is allowed, the respondents are directed not to recover ` 13,39,268/- or any amount from the petitioner on the basis of letter dated 9.9.2004 Annexure A-2 and office order dated 16.9.2004 Annexure A-4 without following due process of law. The petition stands disposed of. 1st April, 2011 (Kuldip Singh), ( krt/gr) Judge.