High Court · 2008

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 04.12.2008CORAMTHE HON’BLE Mr.A.K.GANGULY, CHIEF JUSTICE and THE HON’BLE Mr.JUSTICE K.CHANDRU W.A.No.1204 of 2008& M.P.No.1 of 2008Sevugaperumal,Formerly Inspector of Police,NIB Dindigul,Residing at 11A, Round Road,Dindigul – 5. ..Appellant/PetitionerVs. 1. The Superintendent of Police, Dindigul, Dindigul District.2. The State of Tamil Nadu, rep. by its Secretary, Home (Police B) Department, Fort St.George, Chennai – 9. ..Respondents/Respondents PRAYER: Appeal filed under Clause 15 of the Letters Patentagainst the order of the learned single Judge dated 29.10.2007passed in W.P.No.21612 of 2006 writ petition filed under Article226 of the Constitution of India to issue a Writ of Certiorari tocall for the proceeding No.H4/PR42/92 dated 10.12.1993 of the 1strespondent and quash the same. For Appellant : Mr.V.BabuFor Respondents : Mr.J.Raja Kalifulla, Govt. PleaderJ U D G M E N T (Judgment of the Court was delivered by The Hon’ble The Chief Justice) Heard learned counsel for the appellant and also the learnedGovernment Pleader for the respondents. https://hcservices.ecourts.gov.in/hcservices/

2. This writ appeal has been filed by the appellant - writpetitioner impugning a judgment and order dated 29th October, 2007passed by a learned Judge of the writ Court, whereby the learnedJudge is pleased to dismiss the writ petition. 3. The relevant facts of the case in a nutshell are:- The writ petitioner was working as Sub-Inspector of Police onor about 13.10.1976 and later on he was promoted as Inspector ofPolice on 29.06.1988. While working as Sub-Inspector of Police inPalani Police Station, Anna District he was proceeding to thePolice Station in a motor cycle on 24.06.1996. At that time hisvehicle dashed against a person causing grievous injury to him.Thereafter, a case was registered against him being Crime No.856 of1986 under Sections 279 and 337 of IPC, and later on it wasreferred as mistake of fact. The mother of the injured person fileda proceeding before the Motor Accident Claims Tribunal claimingcompensation and the Tribunal awarded a compensation of Rs.10,000/-to the victim. The Government of Tamil Nadu paid a sum ofRs.15,458/- towards compensation with interest and costs. 4. Over the aforesaid incident a departmental proceeding wasinitiated against the writ petitioner under Rule 3(a) of the TamilNadu Police Subordinate Service (Discipline and Appeal) Rules, 1955(herein after referred to as the “said Rules”). The writ petitionerdid not give any reply to the charge memo nor did he participate inthe said departmental proceedings. In the said departmentalproceedings the Superintendent of Police has come to the conclusionthat the writ petitioner drove his motor cycle rashly andnegligently and thus caused grievous injury and imposed on him apunishment of Deferred Censure for six months along with an orderfor imposition of penalty of recovery of the compensation amountawarded by the Motor Accident Claims Tribunal from the pay of thewrit petitioner. The compensation amount which was to be recoveredwas Rs.15,458/- in 24 instalments, first of such was Rs.646/- andthe rest of the 23 instalments was at Rs.644/- per month. Itappears that this penalty is provided under Rule 2(e) of the saidRules, which is as follows:- “2(e) (1) Recovery from pay of the whole or partof any pecuniary loss caused to Government bynegligence or breach of orders. (2) Recovery from pay to the extent necessary ofthe monetary value equitable to the amount ofincrements ordered to be withheld where such an ordercannot be given effect to.”5. The learned Judge of the writ Court on those facts did notinterfere with the punishments ordered as pointed out herein above.It may be mentioned herein that initially challenging the aforesaidorder of penalty an Original Application being O.A.No.1865 of 1994was filed before the Tamil Nadu State Administrative Tribunal under https://hcservices.ecourts.gov.in/hcservices/ Section 19 of the Administrative Tribunals Act. But, since all theoriginal applications, which were pending before the said Tribunalwere transferred to this Court, the matter was heard and disposedof by the learned single judge. 6. The learned single judge in his judgment under appeal hasheld that the compensation awarded, which was given by the MotorAccident Claims Tribunal to which the writ petitioner was a party,was not challenged by the writ petitioner even though he wasadvised to do so by the Superintendent of Police, NarcoticsIntelligence Bureau. The learned Judge has also noted that whendisciplinary proceeding was initiated against the writ petitioner,there also he failed to submit his objections, and therefore, thedepartmental proceeding went unchallenged. 7. While the matter was heard by us, the learned counsel forthe writ petitioner – appellant argued that the charge memo wasnever served on the writ petitioner, and therefore, he could notparticipate in the departmental proceeding. We do not find thesaid submission correct from the facts of the case. From thecounter, which has been field by the department before the TamilNadu State Administrative Tribunal, it appears that the charge memowas served on him, and the petitioner acknowledged the charge memoon 20th August 1992, but he did not submit any explanation in spiteof repeated reminders sent to him, and since he did not submit hisexplanation the proceeding went on ex parte (See page 11 of thetyped set filed along with the writ appeal). Therefore, he did notchallenge the departmental proceeding at all. 8. The learned counsel for the writ petitioner – appellantfurther submitted that assuming that the petitioner has doneanything as a result of which the person concerned was injured, thecompensation has to be paid by the government, invoking theprinciple of vicarious liability. It may be stated here that thepetitioner was not acting as driver or otherwise, driving was notthe official duty assigned to him. While the petitioner was drivinghis motor cycle, he was possibly going home and it has not been hisplea that he is going to perform his official duties. But, he wasgoing home in his government provided motor cycle. It is obviousthat while a person is driving his motor cycle he has to drivecarefully, and he is responsible for any accident which he causesin the process of driving his motor cycle. Since, admittedly he wasnot driving as a driver engaged by the government nor was drivingin connection with any official duty, the concept of vicariousliability is not attracted. 9. The question whether the petitioner had driven negligentlyor not, is a concluded question now, in view of the finding of theMotor Accident Claims Tribunal. The Motor Accident Claims Tribunalis a quasi-judicial body with trappings of a Court, and its findingon the negligence of the petitioner cannot be assessed or gone intocollaterally by the writ Court when such findings were notchallenged in a regularly filed appeal. It has already been notedthat despite opportunities being given to the petitioner, he did https://hcservices.ecourts.gov.in/hcservices/ not challenge the finding of the Motor Accident Claims Tribunal,and the judgment of the said Tribunal has also not been disclosedbefore us in the typed set.10. The petitioner is placing reliance on the report given bythe Inspector of Police, Palani Nagar before the II Class JudicialMagistrate, Palani in connection with the criminal case. In thesaid report, it has been stated that the accident took place inview of the negligence of the boy. It may be noted here that thesaid report was submitted by the Inspector of Police of the verysame police station in which the petitioner was working as Sub-Inspector of Police. Therefore, we do not attach much reliance onthe said report. In any event, in view of the said report filed inthe criminal case, it does not debar the department from initiatingdepartmental proceeding against the petitioner. The purpose of boththe two proceedings are different. In a criminal proceeding theguilt of a person is assessed and if the guilt is proved, theperson may lose his liberty. Whereas in a departmental proceedingonly the charges are to be established, and if the charges areestablished the delinquent employee has to suffer civilconsequences. In the instant case, the charges against thepetitioner were established and the petitioner never challenged thesame. 11. Even in the Original Application, which was filed beforethe Administrative Tribunal and later on transferred to the HighCourt and heard by the learned Judge of the writ Court, thefindings of the departmental proceeding were not at all challenged.From the five grounds, which were taken in the said OriginalApplication, the emphasis was on the principle of vicariousliability, which we have already discussed and held that it is notattracted in the facts and circumstances of the present case. 12. The second ground, which was taken before theAdministrative Tribunal was on the question of not granting thepetitioner requisite opportunity. The said question does not arisehere inasmuch as the petitioner himself never challenged thedepartmental proceeding, nor gave any reply to the charge memo. 13. The other grounds, which have been taken, are of noconsequence. Therefore, the findings of the departmental proceedinghave not been actually challenged by the petitioner at any stage. 14. Before us, the learned counsel for the petitioner hascited two judgments in order to show that in similar cases theCourts have held that compensation amount has to be paid by thedepartment or by the employer concerned. Reliance was first placedon the judgment of a learned single Judge of this Court in the caseof R.Nagendra Boopathi Vs. Superintendent of Police, DistrictPolice Office, Salem decided on 22.08.2008 passed in W.P.No.17856of 2008. From the facts of that case, it appears that there was amechanical failure of the vehicle involved and as a result of whichthere was an accident. Apart from that it also appears in that case https://hcservices.ecourts.gov.in/hcservices/ that the driver of the vehicle, whose official duty was to drivethe said vehicle, was a party before the Motor Accident ClaimsTribunal and the Tribunal exonerated the driver. Therefore, thenegligence of the driver in that case was not proved. But, in theinstant case, the negligence of the petitioner has been provedinasmuch as the petitioner was found guilty by the Motor AccidentClaims Tribunal. Therefore, factually that decision is totallydistinguishable from the facts of the present case. 15. The same is true with the other Division Bench judgment inthe case of Tamil Nadu State Transport Corporation (KumbakonamDivision – II) Ltd., Vs. P.Karuppusamy reported in [(2008) 1 MLJ694]. In that case also it appears from paragraph – 19 at page 698of the report that the guilt of the driver was not found proved bythe Tribunal. Thus, this fact alone makes a vital distinction fromthe facts of the present case. 16. In this connection, the learned counsel for the petitionerrelied on a plea made by the department before the Motor AccidentClaims Tribunal which found the petitioner guilty even though thedepartment took the stand that the petitioner was not responsiblefor the accident. This is normally the stand taken by thedepartment. But, the Motor Accident Claims Tribunal did not findthe said stand of the department acceptable. Rather, the Tribunalfound him guilty, which finding has not been challenged by thepetitioner before any higher forum. 17. For the reasons aforesaid, we do not find any merit in theappeal, and the same is dismissed. No costs. Consequently,connected miscellaneous petition is also dismissed.sd/-Asst.Registrar/true copy/Sub Asst.RegistrarsmTo1. The Secretary, Home (Police B) Department, Fort St.George, Chennai – 9. 2. The Superintendent of Police, Dindigul, Dindigul District.+ 1 c.c. to The Government Pleader. S.R.No.68433. W.A.No.1204 of 2008VM (CO)GSK 12.12.2008.