IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA CWP(T) No. 12983 of 2008 Date of Decision: 28.02.2011. Darshan Singh …Petitioner Versus. State of H.P. and others … Respondents. Coram: The Hon’ble Mr. Justice Deepak Gupta, Judge. Whether approved for Reporting? No. For the petitioner: Mr. B.K.Malhotra, Advocate. For the Respondents: Mr. Vivek Thakur, Addl. A.G. Deepak Gupta, J.(Oral). 1. By means of this petition the petitioner has challenged the action of the respondents in recovering an amount of Rs. 58,103/- from the petitioner. 2. The undisputed facts are that the petitioner was employed as a driver with the respondent-department. He was engaged as driver on truck No.HPG-2132. The said truck struck with bus No. HP-20-1113. The owner of the bus in question filed a claim petition against the petitioner, the Executive Engineer, the Superintending Engineer and the State of Himachal Pradesh claiming compensation and one of the issues framed therein was whether the damage 2 so caused to the bus was a result of the rash and negligent driving of Darshan Singh, the present petitioner. This claim petition was decided in favour of Dina Nath and against the respondents including the present petitioner and an award of Rs.9,500/- was passed in favour of Dina Nath. The petitioner, his department and the State of Himachal Pradesh were held jointly and severally liable to pay the awarded amount. Dina Nath filed an appeal and this Court vide its judgement dated 28.6.2005 enhanced the compensation to Rs.35,761/- and interest on the enhanced amount of Rs.26,261/- @ 9% per annum from the date of filing of the claim petition till deposit of the amount. The respondents were held jointly and severally liable to pay the amount. The petitioner claims that this amount has been recovered without following the procedure prescribed by law. The stand of the respondent is that only the amount due and payable under the award is being recovered from the petitioner. 3. Penalties have been defined in Rule 11 of the CCS(CCA) Rules. One of the minor penalties defined under 11(iii) is recovery from pay of an employee of the whole or part of any pecuniary loss caused by him to the Government by negligence or breach of orders. The 3 procedure prescribed for recovery of minor penalties is laid down in Rule 16. Rule 16(1) reads as follows:- (1) Subject to the provisions of sub-rule (3) of Rule 15, 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; (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 were such consultation is necessary. This rule clearly envisages that before taking action for recovery, notice has to be given to the employee from whom recovery is to be made and the imputations of misconduct are to be set out in the notice. The Disciplinary Authority, if it so feels necessary, can even 4 hold an inquiry and it is not necessary that it is bound by any order in this regard. It is for the Disciplinary Authority to decide whether holding of an inquiry is necessary or not. Before passing an order the representation of the petitioner has to be considered. It is thus obvious that rules of natural justice have to be complied with. 4. In the present case no notice was given to the petitioner and he was only informed that recovery is being made from him vide letter dated 12.12.2005 and 19.12.2005. Therefore, the recovery could not have been made in the manner it has been made. It is not clear whether the entire amount has been recovered from the petitioner or not. Be that as it may, if any amount has been recovered the same shall not be repaid to the petitioner as a result of this order. The respondent shall be at liberty to initiate proceedings under Rule 16 and after issuing notice to the petitioner appropriate orders shall be passed. If any amount has to be recovered from the petitioner the same may be recovered in accordance with law. In case the Inquiry Officer comes to the conclusion that nothing is to be recovered or lesser amount has to be recovered from the petitioner than the amount which has already been recovered or the amount which has been recovered is in excess the excess shall be refunded to the 5 petitioner. Such action, if any, must be initiated within three months and completed within three months thereafter failing which it shall be presumed that the department is not interested in recovery of the amount. The petition is disposed of with the aforesaid directions. No order as to costs. 28th February, 2011. ( Deepak Gupta ) ™ Judge.