he First Bench of this Court (Chief Engineer, Agricultural Engineering and others v. T.Devaraj and another) and the same is extracted hereunder

W.P.No.19152 of 2010the award amount to the tune of Rs.55,130/- was sought to be recovered. Assailing the same, the petitioner had preferred the above writ petition.4.Mr.S.Ilamvaludhi, learned counsel for the petitioner submitted that when the petitioner had worked as a driver and the vehicle met with an accident, the present impugned order passed directing recovery of a sum of Rs.55,130/- being 5% of the award amount is without any basis. It is his further contention that prior to the issuing of this order, the petitioner was never issued any notice calling for his explanation and straight away the respondent had determined this amount without affording an opportunity to the petitioner and therefore the impugned order is unsustainable.5.The learned counsel further contended that the impugned order stated that the recovery was sought to be made as per the order passed by the Motor Accidents Claims Tribunal, Nammakal, but no such direction is found place in the award passed by the Tribunal and therefore, the impugned order seeking recovery of this amount is bad in law. The learned counsel also submitted that even in so far as any punishment to be imposed under Rule 8(a) of the Tamil Nadu Civil Services (Disciplinary Proceedings Tribunal) 3/14 https://www.mhc.tn.gov.in/judis W.P.No.19152 of 2010Rules, 1955 the petitioner ought to have been issued with the notice by initiating departmental proceedings and in the present case, no such proceedings has been initiated and straight away the impugned order has been passed which is unsustainable and sought for indulgence of this Court.6.Mr.Stalin Abhimanyu, learned Additional Government Pleader for the respondent submitted that since the petitioner was on duty assigned to drive the vehicle, only his rash and negligent driving resulted in the accident of the vehicle in which the police officer and his wife was travelling and due to the same, the MCOP proceedings were initiated and the department had incurred a sum of Rs.11,02,602/- to be paid as per the compensation awarded by the Motor Accidents Claims Tribunal. It is his further contention that the award came to be passed only due to the rash and negligence on the part of the petitioner and therefore the respondents were right in recovering only 5% of the total amount in view of the pecuniary loss caused.7.Relying on the counter affidavit, he contended that as per Rule 8(v) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules, 1955 4/14 https://www.mhc.tn.gov.in/judis W.P.No.19152 of 2010when there is any pecuniary loss caused, the recovery from the pay of the employee for either whole or part of such pecuniary loss, can be made by way of penalty and therefore contended that the impugned order is perfectly justified and sought for dismissal of this petition.8.Heard the rival submissions made by the learned counsel appearing on both sides and perused the materials available on record.9.The petitioner, while he was working as a driver in Grade-II Police Constable cadre, was assigned to drive the vehicle for Perambalur Deputy Superintendent of Police. While the petitioner was driving the Jeep along with the police officer and his wife, the vehicle met with an accident, due to which injuries were suffered by the Deputy Superintendent of Police and his wife and they had filed M.C.O.P. Nos.324 of 2004 and 295 of 2008 in which, from the impugned order passed by the respondents, it is seen that a sum of Rs.11,02,602/- was awarded by the Motor Accidents Claims Tribunal, though the copy of the award has not been placed before this Court.5/14 https://www.mhc.tn.gov.in/judis W.P.No.19152 of 201010.Since the compensation amount as directed by the Tribunal had been paid by the respondents, they have issued the impugned order dated 27.07.2010 calling upon the petitioner to submit his explanation as to why a sum of Rs.55,130/- being 5% of the total award amount should not be recovered from him. The relevant portion of the impugned order is extracted hereunder:-“(2) bguk;gY}h; khtl;l MCOP Nos.324/04 kw;Wk; 295/08d; go ,Hg;gPl;L bjhifahf muR xJf;fPL bra;j &/11,02,602/-f;F 5% bjhif &/55,130/- xl;Leh; fhtyh; 990 rz;Kfk; (TPF) bguk;gY}h; fhty; epiyak;. vd;gthplk; rk;gsj;jpy; gpoj;jk; bra;a bjhptpf;fg;gl;Ls;sJ/(3) vdnt. ,f;Fwpg;ghiz fpilf;fg; bgw;w 7 jpd';fSf;Fs; e~;l <l;L bjhif gpoj;jk; bra;tJ bjhlh;ghf ckJ gjpypid ,t;tYtyfk; mDg;gp itf;f mwpt[Wj;jg;gLfpwJ mt;thW gjpy; fpilf;f bgwtpy;iybadpy; nkw;f;fhZk; muR Xjf;fPL bra;j bjhifapy; 5% bjhifahf &/55,130/- ckJ rk;gsj;jpy; gpoj;jk; bra;a khtl;l Miz gpwg;gpf;fg;gLk; vd;w tpguj;jpid mjpfhug;g{h;tkhf bjhptpj;Jf; bfhs;sg;gLfpwJ/”11.The learned counsel for the petitioner, while making the submissions, also relied on the order passed by this Court in W.P.No.4600 of 2009 dated 24.06.2010 wherein also the impugned order passed to recover the entire award amount from the concerned driver was quashed by this Court by relying upon the order passed by the Full Bench of this Court in 6/14 https://www.mhc.tn.gov.in/judis W.P.No.19152 of 2010W.P.No.11002 of 1999 dated 07.07.1999 and the same is extracted hereunder:-“6. Admittedly, before passing the impugned order to recover the amount paid to the victim by the Department, the petitioner was not heard. Hence, the impugned order was passed in blatant violation of principles of natural justice. Further, as rightly contended by the learned counsel for the petitioner, there was no criminal case instituted against the petitioner and also there was no departmental action. Further, there was no proceedings fixing the liability on the petitioner by the respondent - Department. Paying the compensation pursuant to the award of the Motor Accident Claims Tribunal, could not be a reason for recovery from the driver i.e. the petitioner herein. The employer is bound to pay the compensation to the victim for causing accident by their employees.7. In this regard, the learned counsel for the petitioner relies on the order dated 07.07.1999 passed in W.P.No.11002 of 1999 by the First Bench of this Court (Chief Engineer, Agricultural Engineering and others Vs. T.Devaraj and another) and the same is extracted hereunder:“(The order of the Court was made by the Honourable The Chief Justice)In respect of a fatal accident caused by the 1st respondent, a driver employed by the petitioners, compensation was awarded in a sum of Rs.74379/-. Petitioners had been impleaded in the proceedings for recovery of compensation along with respondent No.1. Though the respondent No.1 may not have appeared in the proceedings to resist the claim, petitioners had duly appeared and therefore they could have legitimately resisted the claim. Petitioners have paid the aforesaid amount of compensation payable by respondent No.1 as 7/14 https://www.mhc.tn.gov.in/judis W.P.No.19152 of 2010also by the petitioners, who are the employers of respondent No.1. By present proceedings, the petitioners are seeking to recover the aforesaid amount from the respondent No.1. In our view, the claim made is wholly unsustainable as the petitioners in the capacity of the employers of respondent No1 are duty bound in law to pay the compensation payable by respondent No.1. Present proceeding which have been initiated for recovery back the said amount from respondent No.1, in the circumstances, is misconceived. Present petition, in the circumstances, is therefore summarily rejected. Consequently, W.M.P.No.15575 of 1999 is also dismissed.”8. The aforesaid decision of the First Bench of this Court was followed by a learned single Judge of this Court in the order dated 13.04.2006 passed in W.P.No.27962 of 2005. Those judgments squarely apply to the facts of this case. Hence, the impugned order is quashed and the writ petition is allowed. The respondents are directed to return the amount, if any already recovered from the petitioner.”12.From the counter affidavit, particularly in para 4, it is stated that the impugned order came to be passed only to enforce strict discipline among the drivers of the Government vehicles, as the respondents are entitled to recover the pecuniary loss caused to them either in whole or part by way of penalty and only in view of the same, the present impugned notice was issued as to why 5% of the compensation amount should not be recovered.8/14 https://www.mhc.tn.gov.in/judis W.P.No.19152 of 2010“4.....(1) It is submitted that the averments made in the para is totally false. The Motor Accidents Claims Tribunal, Namakkal has observed that the accident was due to the rash and negligence driving of the Jeep driver. Hence, the Motor Accidents Claims Tribunal, in its order dated 10.12.2008 has awarded a compensation Rs.8,75,302/- together with interest. (2) & (3) It is submitted that the averments made in the para is not maintainable. As per the opinion of the Government Pleader appeal has been preferred before the Hon'ble High Court, Madras in CMA.477/2010, 478/2010 with a prayer of to stay all further proceedings pursuant to the Judgement and degree dated 10.12.2008 passed in MCOP No324/04, 295/08. It is a separate issue the question of recovery is of compensation amount as per the instruction issued in G.O.(Ms.)No.393 Home(TrIV) Dept dated 01.03.1988. Further the Government have examined the question of insuring the state Government Vehicles in consultation with the Director Motor Vehicle Maintenance Department is of the opinion that the Government Vehicles need not be covered by insurance policies against third party risks it will involve payment of a huge amount as premium. The Government accept the view of the Motor Vehicle Maintenance Department, Government also direct that the present procedure laid down in rule 22 of the Tamil Nadu Department Vehicles Control Rules, 1976 to settle claims, if any, by the Government be allowed to continue. In order to enforce strict discipline among the drivers of Government Vehicles, Government have examined the question of recovering token amount from the drivers in cases of accidents to Government vehicles. Government consider that under the provisions of Rule 8(V)(A) of the Tarnil Nadu Civil Services (C.C.A) Rules when any pecuniary loss is caused recovery from their pay of the whole or part of such pecuniary loss may be made by way of penalty. Accordingly the 9/14 https://www.mhc.tn.gov.in/judis W.P.No.19152 of 2010driver P.C was issued a Showcase notice as to why the 5% of compensation amount should not be recovered in his salary for rash and negligence driving.”13.On perusal of the impugned order and the reasons furnished in the counter affidavit, it shows that the respondents are only trying to impute reasons in the counter affidavit which does not find place in the impugned notice issued to the petitioner. When the impugned order has simply sought to recover Rs.55,130/- being 5% of the award amount and only seeks the explanation of the petitioner as to why it should not be recovered without furnishing any detail as to the basis on which this determination has been done by them, the reasons furnished by them in the counter affidavit by adducing additional explanation cannot be accepted in view of the settled proposition of law that the impugned order cannot be improved by filing a counter affidavit. 14.Going by the reasons furnished in the impugned order, it could only be seen that the order determining the recovery of 5% of the amount to the tune of Rs.55,130/- is made as per the award passed by the Motor Accidents Claims Tribunal, Namakkal. As rightly pointed out by the learned 10/14 https://www.mhc.tn.gov.in/judis W.P.No.19152 of 2010counsel for the petitioner, when there is no such direction issued by the Motor Accidents Claims Tribunal directing the respondents to recover a sum of Rs.55,130/- being 5% of the award amount, the present impugned order seeking to recover on that ground cannot be sustained.15.Even if the respondent, as stated in the counter affidavit, have taken steps to recover this 5% in view of the powers available with them under Rule 8(v) of the Tarnil Nadu Civil Services (Discipline and Appeal) Rules, even then, when the respondent has not issued any disciplinary proceedings for imposing any penalty under the above said rule, by issuing a mere show cause notice, the present impugned order straight away determining the recovery of this amount is without any basis and cannot be sustained.16.In view of the above reasons, the petitioner is entitled to succeed in the Writ Petition and accordingly, this Writ Petition stands allowed and the impugned order passed by the respondent dated 27.07.2010 is set aside. There shall be no order as to costs. Consequently, connected Miscellaneous Petition is closed.11/14 https://www.mhc.tn.gov.in/judis W.P.No.19152 of 201023.10.2024Speaking order / Non-speaking orderIndex: Yes / NoNeutral Citation: Yes / Nosri12/14 https://www.mhc.tn.gov.in/judis W.P.No.19152 of 2010ToThe Superintendent of Police,Perambalur District.13/14 https://www.mhc.tn.gov.in/judis W.P.No.19152 of 2010G.ARUL MURUGAN , J. sriW.P.No.19152 of 2010and M.P.No.1 of 201023.10.202414/14

W.P.No.19152 of 2010the award amount to the tune of Rs.55,130/- was sought to be recovered. Assailing the same, the petitioner had preferred the above writ petition.4.Mr.S.Ilamvaludhi, learned counsel for the petitioner submitted that when the petitioner had worked as a driver and the vehicle met with an accident, the present impugned order passed directing recovery of a sum of Rs.55,130/- being 5% of the award amount is without any basis. It is his further contention that prior to the issuing of this order, the petitioner was never issued any notice calling for his explanation and straight away the respondent had determined this amount without affording an opportunity to the petitioner and therefore the impugned order is unsustainable.5.The learned counsel further contended that the impugned order stated that the recovery was sought to be made as per the order passed by the Motor Accidents Claims Tribunal, Nammakal, but no such direction is found place in the award passed by the Tribunal and therefore, the impugned order seeking recovery of this amount is bad in law. The learned counsel also submitted that even in so far as any punishment to be imposed under Rule 8(a) of the Tamil Nadu Civil Services (Disciplinary Proceedings Tribunal) 3/14 https://www.mhc.tn.gov.in/judis W.P.No.19152 of 2010Rules, 1955 the petitioner ought to have been issued with the notice by initiating departmental proceedings and in the present case, no such proceedings has been initiated and straight away the impugned order has been passed which is unsustainable and sought for indulgence of this Court.6.Mr.Stalin Abhimanyu, learned Additional Government Pleader for the respondent submitted that since the petitioner was on duty assigned to drive the vehicle, only his rash and negligent driving resulted in the accident of the vehicle in which the police officer and his wife was travelling and due to the same, the MCOP proceedings were initiated and the department had incurred a sum of Rs.11,02,602/- to be paid as per the compensation awarded by the Motor Accidents Claims Tribunal. It is his further contention that the award came to be passed only due to the rash and negligence on the part of the petitioner and therefore the respondents were right in recovering only 5% of the total amount in view of the pecuniary loss caused.7.Relying on the counter affidavit, he contended that as per Rule 8(v) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules, 1955 4/14 https://www.mhc.tn.gov.in/judis W.P.No.19152 of 2010when there is any pecuniary loss caused, the recovery from the pay of the employee for either whole or part of such pecuniary loss, can be made by way of penalty and therefore contended that the impugned order is perfectly justified and sought for dismissal of this petition.8.Heard the rival submissions made by the learned counsel appearing on both sides and perused the materials available on record.9.The petitioner, while he was working as a driver in Grade-II Police Constable cadre, was assigned to drive the vehicle for Perambalur Deputy Superintendent of Police. While the petitioner was driving the Jeep along with the police officer and his wife, the vehicle met with an accident, due to which injuries were suffered by the Deputy Superintendent of Police and his wife and they had filed M.C.O.P. Nos.324 of 2004 and 295 of 2008 in which, from the impugned order passed by the respondents, it is seen that a sum of Rs.11,02,602/- was awarded by the Motor Accidents Claims Tribunal, though the copy of the award has not been placed before this Court.5/14 https://www.mhc.tn.gov.in/judis W.P.No.19152 of 201010.Since the compensation amount as directed by the Tribunal had been paid by the respondents, they have issued the impugned order dated 27.07.2010 calling upon the petitioner to submit his explanation as to why a sum of Rs.55,130/- being 5% of the total award amount should not be recovered from him. The relevant portion of the impugned order is extracted hereunder:-“(2) bguk;gY}h; khtl;l MCOP Nos.324/04 kw;Wk; 295/08d; go ,Hg;gPl;L bjhifahf muR xJf;fPL bra;j &/11,02,602/-f;F 5% bjhif &/55,130/- xl;Leh; fhtyh; 990 rz;Kfk; (TPF) bguk;gY}h; fhty; epiyak;. vd;gthplk; rk;gsj;jpy; gpoj;jk; bra;a bjhptpf;fg;gl;Ls;sJ/(3) vdnt. ,f;Fwpg;ghiz fpilf;fg; bgw;w 7 jpd';fSf;Fs; e~;l <l;L bjhif gpoj;jk; bra;tJ bjhlh;ghf ckJ gjpypid ,t;tYtyfk; mDg;gp itf;f mwpt[Wj;jg;gLfpwJ mt;thW gjpy; fpilf;f bgwtpy;iybadpy; nkw;f;fhZk; muR Xjf;fPL bra;j bjhifapy; 5% bjhifahf &/55,130/- ckJ rk;gsj;jpy; gpoj;jk; bra;a khtl;l Miz gpwg;gpf;fg;gLk; vd;w tpguj;jpid mjpfhug;g{h;tkhf bjhptpj;Jf; bfhs;sg;gLfpwJ/”11.The learned counsel for the petitioner, while making the submissions, also relied on the order passed by this Court in W.P.No.4600 of 2009 dated 24.06.2010 wherein also the impugned order passed to recover the entire award amount from the concerned driver was quashed by this Court by relying upon the order passed by the Full Bench of this Court in 6/14 https://www.mhc.tn.gov.in/judis W.P.No.19152 of 2010W.P.No.11002 of 1999 dated 07.07.1999 and the same is extracted hereunder:-“6. Admittedly, before passing the impugned order to recover the amount paid to the victim by the Department, the petitioner was not heard. Hence, the impugned order was passed in blatant violation of principles of natural justice. Further, as rightly contended by the learned counsel for the petitioner, there was no criminal case instituted against the petitioner and also there was no departmental action. Further, there was no proceedings fixing the liability on the petitioner by the respondent - Department. Paying the compensation pursuant to the award of the Motor Accident Claims Tribunal, could not be a reason for recovery from the driver i.e. the petitioner herein. The employer is bound to pay the compensation to the victim for causing accident by their employees.7. In this regard, the learned counsel for the petitioner relies on the order dated 07.07.1999 passed in W.P.No.11002 of 1999 by the First Bench of this Court (Chief Engineer, Agricultural Engineering and others Vs. T.Devaraj and another) and the same is extracted hereunder:“(The order of the Court was made by the Honourable The Chief Justice)In respect of a fatal accident caused by the 1st respondent, a driver employed by the petitioners, compensation was awarded in a sum of Rs.74379/-. Petitioners had been impleaded in the proceedings for recovery of compensation along with respondent No.1. Though the respondent No.1 may not have appeared in the proceedings to resist the claim, petitioners had duly appeared and therefore they could have legitimately resisted the claim. Petitioners have paid the aforesaid amount of compensation payable by respondent No.1 as 7/14 https://www.mhc.tn.gov.in/judis W.P.No.19152 of 2010also by the petitioners, who are the employers of respondent No.1. By present proceedings, the petitioners are seeking to recover the aforesaid amount from the respondent No.1. In our view, the claim made is wholly unsustainable as the petitioners in the capacity of the employers of respondent No1 are duty bound in law to pay the compensation payable by respondent No.1. Present proceeding which have been initiated for recovery back the said amount from respondent No.1, in the circumstances, is misconceived. Present petition, in the circumstances, is therefore summarily rejected. Consequently, W.M.P.No.15575 of 1999 is also dismissed.”8. The aforesaid decision of the First Bench of this Court was followed by a learned single Judge of this Court in the order dated 13.04.2006 passed in W.P.No.27962 of 2005. Those judgments squarely apply to the facts of this case. Hence, the impugned order is quashed and the writ petition is allowed. The respondents are directed to return the amount, if any already recovered from the petitioner.”12.From the counter affidavit, particularly in para 4, it is stated that the impugned order came to be passed only to enforce strict discipline among the drivers of the Government vehicles, as the respondents are entitled to recover the pecuniary loss caused to them either in whole or part by way of penalty and only in view of the same, the present impugned notice was issued as to why 5% of the compensation amount should not be recovered.8/14 https://www.mhc.tn.gov.in/judis W.P.No.19152 of 2010“4.....(1) It is submitted that the averments made in the para is totally false. The Motor Accidents Claims Tribunal, Namakkal has observed that the accident was due to the rash and negligence driving of the Jeep driver. Hence, the Motor Accidents Claims Tribunal, in its order dated 10.12.2008 has awarded a compensation Rs.8,75,302/- together with interest. (2) & (3) It is submitted that the averments made in the para is not maintainable. As per the opinion of the Government Pleader appeal has been preferred before the Hon'ble High Court, Madras in CMA.477/2010, 478/2010 with a prayer of to stay all further proceedings pursuant to the Judgement and degree dated 10.12.2008 passed in MCOP No324/04, 295/08. It is a separate issue the question of recovery is of compensation amount as per the instruction issued in G.O.(Ms.)No.393 Home(TrIV) Dept dated 01.03.1988. Further the Government have examined the question of insuring the state Government Vehicles in consultation with the Director Motor Vehicle Maintenance Department is of the opinion that the Government Vehicles need not be covered by insurance policies against third party risks it will involve payment of a huge amount as premium. The Government accept the view of the Motor Vehicle Maintenance Department, Government also direct that the present procedure laid down in rule 22 of the Tamil Nadu Department Vehicles Control Rules, 1976 to settle claims, if any, by the Government be allowed to continue. In order to enforce strict discipline among the drivers of Government Vehicles, Government have examined the question of recovering token amount from the drivers in cases of accidents to Government vehicles. Government consider that under the provisions of Rule 8(V)(A) of the Tarnil Nadu Civil Services (C.C.A) Rules when any pecuniary loss is caused recovery from their pay of the whole or part of such pecuniary loss may be made by way of penalty. Accordingly the 9/14 https://www.mhc.tn.gov.in/judis W.P.No.19152 of 2010driver P.C was issued a Showcase notice as to why the 5% of compensation amount should not be recovered in his salary for rash and negligence driving.”13.On perusal of the impugned order and the reasons furnished in the counter affidavit, it shows that the respondents are only trying to impute reasons in the counter affidavit which does not find place in the impugned notice issued to the petitioner. When the impugned order has simply sought to recover Rs.55,130/- being 5% of the award amount and only seeks the explanation of the petitioner as to why it should not be recovered without furnishing any detail as to the basis on which this determination has been done by them, the reasons furnished by them in the counter affidavit by adducing additional explanation cannot be accepted in view of the settled proposition of law that the impugned order cannot be improved by filing a counter affidavit. 14.Going by the reasons furnished in the impugned order, it could only be seen that the order determining the recovery of 5% of the amount to the tune of Rs.55,130/- is made as per the award passed by the Motor Accidents Claims Tribunal, Namakkal. As rightly pointed out by the learned 10/14 https://www.mhc.tn.gov.in/judis W.P.No.19152 of 2010counsel for the petitioner, when there is no such direction issued by the Motor Accidents Claims Tribunal directing the respondents to recover a sum of Rs.55,130/- being 5% of the award amount, the present impugned order seeking to recover on that ground cannot be sustained.15.Even if the respondent, as stated in the counter affidavit, have taken steps to recover this 5% in view of the powers available with them under Rule 8(v) of the Tarnil Nadu Civil Services (Discipline and Appeal) Rules, even then, when the respondent has not issued any disciplinary proceedings for imposing any penalty under the above said rule, by issuing a mere show cause notice, the present impugned order straight away determining the recovery of this amount is without any basis and cannot be sustained.16.In view of the above reasons, the petitioner is entitled to succeed in the Writ Petition and accordingly, this Writ Petition stands allowed and the impugned order passed by the respondent dated 27.07.2010 is set aside. There shall be no order as to costs. Consequently, connected Miscellaneous Petition is closed.11/14 https://www.mhc.tn.gov.in/judis W.P.No.19152 of 201023.10.2024Speaking order / Non-speaking orderIndex: Yes / NoNeutral Citation: Yes / Nosri12/14 https://www.mhc.tn.gov.in/judis W.P.No.19152 of 2010ToThe Superintendent of Police,Perambalur District.13/14 https://www.mhc.tn.gov.in/judis W.P.No.19152 of 2010G.ARUL MURUGAN , J. sriW.P.No.19152 of 2010and M.P.No.1 of 201023.10.202414/14