CWP No.9854 of 1992 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CWP No.9854 of 1992 Date of decision:06.09.2011 Faquir Singh, Driver ..... Petitioner Versus State of Haryana and another ..... Respondents CORAM: HON'BLE MR. JUSTICE RAJIVE BHALLA Present: Mr.Pritam Saini, Advocate for the petitioner. Mr.D.Khanna, Addl.A.G., Haryana for the respondents. ***** RAJIVE BHALLA, J. (ORAL) This order shall dispose of CWP Nos.9854 of 1992, 1250 of 1995, 691 of 1997, 15565 of 1998, 10560 of 2000 and 14683 of 2001 as they involve adjudication of common questions of fact and law. For the sake of convenience, facts are being taken from CWP No.9854 of 1992. The petitioner, while working as a driver with the State of Haryana was involved in a motor vehicle accident. The injured party approached the Motor Accident Claims Tribunal, Chandigarh (in short 'MACT). The State and the petitioner were held jointly and severally liable for payment of compensation. The State Government paid the compensation and thereafter served a notice, calling upon the petitioner to show cause why the amount be not recovered from the petitioner. The petitioner filed a reply that as he was working for the State, the amount paid by the State cannot be recovered from him. In CWP CWP No.9854 of 1992 -2- No.15565 of 1998, titled “Sher Singh V/s State of Haryana and another” the petitioner has raised an additional plea that as he has been acquitted by the criminal court, the amount cannot be recovered. Counsel for the petitioner submits that in the absence of any departmental inquiry, the fact that the MACT may have found the petitioner negligent or that the amount has been paid by the State, does not entitle the State to recover this amount from the petitioner. It is further argued that as recovery of the amount paid by the State, is in essence, a penalty such an amount can only be recovered by resorting to the procedure prescribed by service rules i.e. by serving a show cause notice and holding an inquiry etc. It is further argued that as an accident by its very nature excludes any intention to commit a wrong, the petitioner cannot be asked to pay the compensation awarded by the MACT. Counsel for the State of Haryana, submits that as is apparent from pleadings, a notice was served upon the petitioner to show cause why the amount paid under orders passed by the MACT be not recovered from the petitioner. As the explanation furnished by the petitioner was not found to be satisfactory, the appointing authority directed recovery of this amount from the petitioner. The recovery is a minor punishment and does not require the holding of a departmental inquiry. In support of his arguments, counsel for the State presses into service a Division Bench judgment of this court in “Jagir Singh V/s State of Punjab and others”(2003) RCR (Civil) 136, delivered in CWP No.9854 of 1992 -3- CWP No.17999 of 2000, decided on 29.05.2003. I have heard counsel for the parties, perused the impugned orders and find no reason to interfere particularly as the controversy is squarely covered against the petitioners by the judgment in Jagir Singh's case (supra). Admittedly, the petitioner was driving a government vehicle when it met with an accident. The MACT, while holding that the petitioner and the State are jointly and severally liable to pay compensation, has recorded a finding that the petitioner was driving the vehicle in a rash and negligent manner. The State, has in the discharge of its vicarious liability, paid the amount to the injured and is therefore, entitled to recover this amount from its employee i.e. the petitioner. The petitioner has failed to refer to any legal principle, statutory provision or judicial precedent that would persuade this Court to hold that the amount awarded by the MACT cannot be recovered from the petitioner. The State has discharged its vicarious liability and is, therefore, entitled to recover this amount from the petitioner. The petitioner was admittedly driving a government vehicle when it met with an accident causing injuries to the claimants. The MACT has held that the petitioner caused injuries while driving a motor vehicle in a rash and negligent manner. The petitioner and the State were, therefore, held jointly and severally liable for payment of compensation. The respondents have paid the amount and ordered recovery from the petitioner. The petitioner was served with a notice CWP No.9854 of 1992 -4- calling upon him to show cause why the amount so paid be not recovered from the petitioner. After considering the reply filed by the petitioner, the punishing authority has directed recovery from the petitioner. There appears to be no reason whether in fact or in law to hold that the respondents cannot recover this amount. A reference in this regard may be made to paras 13 to 15 of Jagir Singh's case (supra), which read as follows: - “13. We are unable to appreciate the contention of the petitioner that in the face of provisions of Section 146, the respondents-authorities would have no jurisdiction to pass any order of recovery. We also find no merit in the contention that once the government creates a fund or head to such expenditure i.e. for payment of compensation awarded by the Tribunals in cases of accident of government vehicle, third party will absolve to any other responsibility or liability under the provisions of any other rules of law. The Punjab Financial Rules clearly postulate that all expenditure of the State has to be incurred under a major head or minor head. Selection of such head is primarily intended to comply with the statutory rules framed in that behalf. It does not stand to any reasoning that creation of such funds or head would per se estop the government from taking recourse to any other provisions under law for recovery of the amount/loss suffered by it as a result of negligence of the employees. The provisions of Motor Vehicle Act places a prohibition on any person, who drives a vehicle without obtaining proper licence for that purpose from the competent authority. Such provision has an implicit obligation and duty on the part of the licence holder to be careful and take all caution while driving so as to avoid any untoward incident or accident as a result of carelessness or negligence on his part. In support of the impugned order, the State has placed reliance upon rule 2.33 of the General Principles of Rules Volume-I of the Punjab Financial Rules, which read as under: - 2.33 Every Government employee should realise fully and clearly that he will be held personally responsible for any loss sustained by Government through fraud or negligence on his part and that he will also be CWP No.9854 of 1992 -5- held personally responsible for any loss arising from fraud or negligence on the part of any of the Government employee to the extent to which it may be shown that he contributed to the loss by his own action or negligence. (See rule 2.10(1)(1)] A memorandum regarding (1) general principles to regulate the enforcement of responsibility for losses sustained by Government through fraud or negligence of individuals, (2) the procedure to be followed in prosecutions in respect of the embezzlement of Government money and, (3) the procedure to be observed for conducting departmental enquiry, is given in Appendix 1 to these rules.” 14. The language of the rules clearly suggests the intention of the government to caution its employees to create a definite realisation in them to be responsible and not to act negligently or play fraud on the government. The consequences thereof are clearly stated in the said rule. 15. The above provisions cannot be equated to the provisions relating to imposition of penalty under the service rules. It is a provision to recover losses suffered by it as a result of fraud or negligence of the employees primarily founded on a finding of negligence. In the present case, we have already noticed that the Tribunal has recorded in unambiguous terms that the petitioner was negligent as a result of which compensation has been awarded to the claimants against the Government. The recourse by the State to this provision would not amount to double jeopardy or lack of inherent jurisdiction in the authority to take such action. To further smoothen out the duty, functioning of the State by this provision, guide- lines and memorandum have been issued to enforce such liability including the procedure to be adopted by the concerned authority.” An argument that an inquiry should have been held, merits rejection. A penalty for recovery of money is a minor penalty and therefore, does not require the holding of an inquiry. A show cause notice was served upon the petitioner, his reply was considered and only thereafter was the order of recovery passed. The argument that as the petitioner in CWP No.15565 of 1998 CWP No.9854 of 1992 -6- has been acquitted in the criminal trial, the demand should be quashed, cannot be accepted. The finding, recorded by the MACT, that the petitioner has caused injuries while driving a motor vehicle in a rash and negligent manner has not been set aside or modified. A criminal offence is tried on the principle of innocent until proved guilty whereas the civil consequences of such an act are decided on the principle of “preponderance of probabilities”. The acquittal of the petitioner in a criminal trial does not nullify findings recorded by the MACT or by the punishing authority. In view of what has been stated hereinabove, the writ petitions are dismissed with no order as to costs. 06.09.2011 [RAJIVE BHALLA] shamsher JUDGE