IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR FRIDAY, THE 15TH FEBRUARY 2008 / 26TH MAGHA 1929 OP.No. 3197 of 2002(E) ------------------------------- PETITIONER: ------------------- MR.P.K.DEVARAJAN, CIRCLE INSPECTOR OF POLICE, PIRAVAOM. BY ADV. SRI.T.K.RADHAKRISHNAN SMT.K.L.SREEDEVI RESPONDENTS: ------------------------ 1. STATE OF KERALA, REPRESENTED BY THE HOME SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR GENERAL OF POLICE, THIRUVANANTHAPURAM. 3. THE SUPERINTENDENT OF POLICE(RURAL), ALUVA. ADDL. R4 AND R5 IMPLEADED. 4. THE SENIOR ACCOUNTS OFFICER, OFFICE OF THE ACCOUNTANT GENERAL, M.G.ROAD, TRIVANDRUM 5. THE TREASURY OFFICER, NEDUMANGAD - IMPLEADED AS PER ORDER DT. 6.6.02 IS CMP. 19669/02. BY GOVERNMENT PLEADER SMT.N.SUDHA DEVI THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 15/02/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP. NO.3197/2002 ORDER ON CMP. NOS.5797/02, 19668/2002 IN OP. NO.3197/2002 DISMISSED 15.02.2008 SD/- T.R.RAMACHANDRAN NAIR, JUDGE APPENDIX PETITIONERS EXHIBITS EXT.P1:- COPY OF THE AWARD DT. 29.4.98 OF THE HONOURABLE MOTOR ACCIDENT CLAIMS TRIBUNAL, ERNAKULAM. EXT.P2:- COPY OF THE REPORT DT. 11.6.90 OF THE COMMISSIONER OF POLICE, KOCHI IN CRIM NO.522/90. EXT.P3:- COPY OF THE LETTER ISSUED BY THE IST RESPONDENT TO THE PETITIONER. EXT.P4:- COPY OF THE CIRCULAR NO.25/95 DT. 18.11.95. EXT.P5:- COPY OF THE REPRESENTATION DT. 2.4.01 SUBMITTED BY THE PETITIONER TO THE 3RD RESPONDENT. EXT.P6:- COPY OF THE LETTER DT. 8.1.02 ISSUED BY THE INDIAN AUDIT AND ACCOUNTS DEPARTMENT TO THE PETITIONER. EXT.P7:- COPY OF THE ORDER DT. 11.4.02 ISSUED BY THE ADDL. 4TH RESPONDENT. EXT.P8:- GOVERNMENT ORDER NO.298/91/FIN. DT. 27.3.91. EXT.P9:- GOVERNMENT ORDER NO.819/2000/FIN DT. 18.4.2000. EXT.P10:- COPY OF THE ORDER DT. 13.4.1990. /TRUE COPY/ P.S. TO JUDGE tss T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - O.P.NO.3197 of 2002-E - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 15th day of February, 2008. JUDGMENT The petitioner filed this original petition while he was working as Circle Inspector of Police, Piravom. He has since retired from service. 2. In this original petition, the petitioner is aggrieved by Exts.P3 and P6 by which he had been saddled with liability by way of payment of half of the total compensation awarded by the Motor Accidents Claims Tribunal, Ernakulam in O.P.(MV) No.1518/1991. 3. The incident in question occurred when the petitioner, while working as Sub Inspector of Police, Kannamaly Police Station on 5.5.1990, took out the police jeep and drove the same and while so, it hit a minor boy by which serious injuries were caused to him. This was the subject matter of claim before the Motor Accidents Claims Tribunal. The Tribunal passed an award granting compensation to the tune of Rs.86,500/- with interest. Ext.P1 is the award. The petitioner was also a respondent before the Tribunal. Ext.P2 will show that even though the police had registered a case in respect of the incident as crime No.522/90 of City Traffic Police Station, Ernakulam, subsequently it was referred as an accident. By Ext.P3, OP 3197/02 -2- he was informed that disciplinary proceedings will be taken against him. It was also informed that the proceedings are envisaged for recovering half of the total amount covered by the award of the Tribunal. Ext.P4 is a circular No.25/95 dated 18.11.1995. Ext.P4 is also referred to in Ext.P3. Subsequently, the petitioner filed a detailed representation by way of Ext.P5, challenging the action. But by Ext.P6 the Accounts Officer of the Accountant General's Office informed the Director General of Police, Trivandrum about the steps taken to recover the amount. In these circumstances, the petitioner has filed this original petition. 4. The respondents have filed a counter affidavit narrating the incident leading to the accident and also justifying the action in the light of the award of the Tribunal. It is averred that pursuant to the award of the Tribunal, the Director General of Police, Central Range, Thrissur as per letter No.A2/11126/96 CR dated 3.1.1997 initiated disciplinary action against the petitioner for various delinquencies committed by him. The Superintendent of Police, Ernakulam Rural was the enquiry officer. After issuing memo of charges and show cause notice, he was awarded with punishment of censure after taking a lenient view. It is averred that subsequently the Government as per letter dated 7.6.2000, directed to recover half of the total amount from the petitioner and in the light of the above direction, the Director General of Police addressed the Accountant OP 3197/02 -3- General to take steps to recover the said amount. It is also stated that Ext.P5 representation has not been received by the official respondents. The averments in the counter affidavit shows that the Director General of Police considered Ext.P3 as an order passed by Government directing recovery of half of the total amount from the petitioner, but it only directed initiation of disciplinary action for recovering half of the amount. The petitioner has filed a reply affidavit producing Exts.P7 to P10. 5. Learned counsel for the petitioner submitted that there was proper justification for the petitioner to take out the vehicle, in that there was an emergent situation there because of the happening of certain events resulting in the death of an Assistant Sub Inspector. It is submitted that it was not an isolated act on the part of the petitioner and he was only discharging his official duties in a most appropriate manner to tide over the emergent situation, as he was given charge of the area. Circular No.5/1990 is also relied upon to sustain the above submission. 6. Going by the pleadings in the original petition and the averments in the counter affidavit, it is a case where even though disciplinary action was taken against the petitioner, he was imposed with a punishment of censure only. It is clear that no competent proceedings have been issued to order recovery of any portion of the amount covered by the award. It is also evident that not even a show cause notice was issued to him proposing OP 3197/02 -4- recovery of the said amount from the salary of the petitioner. Thus, it is a case where liability has been imposed on him without affording any opportunity to object to the same. Further, straight away steps were taken to effect recovery based on Ext.P3 letter issued by the Government. Ext.P3 only directs initiation of disciplinary action against the petitioner. It is clear that even though disciplinary action was initiated, that did not result in ordering any punishment by way of recovery of the compensation from the salary or any other amount due to the petitioner. Even though in paragraph 5 of the counter affidavit it is mentioned that in the memo of charges he was asked to show cause as to why action should not be taken against him for recovery of the award amount, the only punishment awarded was “censure”. Recovery from pay is one of the punishments provided in the rules, which was never imposed. 7. Therefore, according to me, the steps taken to effect recovery from the salary without issuing any order directing so, is illegal. Only by a competent proceedings issued after complying with the well accepted procedures alone, that can be done. Ext.P3 letter does not satisfy the statutory requirements of an order imposing any punishment. To that extent, Exts.P3 and P6 are unsustainable and I hold so. The petitioner has since retired from service. Therefore, the question of taking any disciplinary action does not arise at this distance of time. Respondents are directed not OP 3197/02 -5- to proceed to recover any amount as proposed in Exts.P3 and P6, from the salary payable to the petitioner. If any portion of salary was withheld pursuant to the same, the same shall be disbursed to him without delay. The original petition is allowed as above. (T.R. Ramachandran Nair, Judge.) kav/ OP 3197/02 -6- T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - O.P. No.3197 of 2002-E - - - - - - - - - - - - - - - - - - - - - - JUDGMENT 15th February, 2008.