2011(1) ALL MR 242
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
P.B. MAJMUDAR AND R.M. SAVANT, JJ.
State Of Maharashtra & Anr.Vs.Shri. Bhaskar Bhikaji Wagh
Writ Petition No.2946 of 2002,Writ Petition No.9323 of 2004
3rd August, 2010
Petitioner Counsel: Shri. A. D. KANGO,Mr. SHIVA PATIL,Mr. J. N. PAWAR
(A) Motor Vehicles Act (1988), S.166 - Constitution of India, Art.311 - Compensation - PWD jeep driver met with accident resulting death of motor-cyclist - Departmental proceedings - Stoppage of 3 increments as punishment - Driver held jointly and severally liable to pay compensation by Tribunal - State already paid entire decreetal amount - Recovery of 1/3 decreetal amount from driver by State as per order of Tribunal - Amount is not payable as penalty but as compensation - Recovery by State is liable to be upheld. (Para 7)
(B) Motor Vehicles Act (1988), S.166 - Constitution of India, Art.226 - Compensation - Joint and several liability - PWD jeep driver committed accident - State paid entire compensation amount - State to recover 1/3 amount from petitioner driver - Tribunal gave cogent reasons for restricting recovery to 1/3 of decreetal amount - Judgment of Tribunal not liable to be interfered in exercise of extra-ordinary jurisdiction. (Para 8)
R. M. SAVANT, J.:- The above petitions take exception to the judgment and order of the Maharashtra Administrative Tribunal dated 20-04-2001. Writ Petition No.9323 of 2004 has been filed by a person who was working as a driver with the Public Works Department of the Government of Maharashtra. Writ Petition No.2946 of 2002 has been filed by the State Government through its Rural Development and Water Conservation Department.
The petitioner in Writ Petition No.9323 of 2004 was working as a Driver (Class III) with the PWD department of the State of Maharashtra. The petitioner was detailed for duty on 30-08-1989 on a government jeep. The said jeep met with an accident with a motorcycle, resulting in death of the person riding the motorcycle and causing injury to the person who was on the pillion. In view of the said accident, an FIR came to be registered against the petitioner and in view thereof, the petitioner was placed under suspension by an order dated 11-09-1989. Pending criminal prosecution, the petitioner was issued a charge-sheet on 21-02-1990 in respect of a misconduct which the petitioner had allegedly committed on account of the said accident. The heirs of the deceased and the person who was injured, had filed Motor Accident Claim Nos.54 of 1990 and 56 of 1990 against the petitioner and the State Government. In respect of the departmental inquiry which was commenced by the issuance of the charge-sheet, the petitioner vide his letter dated 02-03-1990 sought certain documents. It seems that the petitioner thereafter, has executed a document dated 23-03-1990 accepting the charges, though it is the case of the petitioner that the signature on the said document was obtained by force and without his consent. It appears that pursuant to the execution of the said document on 23-03-1990, the Inquiry Officer vide his report dated 29-08-1990, recommended to the State Government, punishment of stoppage of one increment and recovery of an amount of '867/- from the petitioner. It seems that the petitioner coming to know of the said recommendation of the Inquiry Officer, represented to the Director of Agriculture Department, to cancel the inquiry which had already been completed against him and to initiate fresh inquiry. The disciplinary authority by its order dated 02-03-1991 imposed the punishment of stoppage of three increments. In so far as the disciplinary proceedings are concerned, it appears that the matter rested there.
3. In so far as the criminal case is concerned, the petitioner was acquitted of the charges under Section 304(A) of the Indian Penal Code by the learned Judicial Magistrate, Nashik, by an order dated 26-07-1994.
4. In so far as the Motor Accident Claim Petition Nos.54 of 1990 and 56 of 1990 are concerned, the said claim petitions were allowed and the State Government and the petitioner were directed to pay an amount of '4,58,750/- jointly and severally as compensation to the heirs of the deceased and to the pillion rider who was injured. It appears that since the decree was joint and several, the disciplinary authorities of the petitioner by an order dated 04-03-1998 directed the recovery of 1/3rd of the amount of '4,58,750/- from the petitioner. It appears that the petitioner thereafter, approached the higher authorities against the order dated 02-03-1991 and the order dated 04-03-1998, whereby 1/3rd of the amount was sought to be recovered from the petitioner. The petitioner thereafter receiving no response from the higher authorities, approached the Maharashtra Administrative Tribunal by way of Original Application No.21 of 1999 challenging the said two orders. The Tribunal by its order, directed the State Government to decide the appeal within two months. However, since the State Government did not decide the appeal filed by the petitioner, the petitioner was constrained to file a contempt petition being No.22 of 1992 in the Tribunal, in which contempt petition the Tribunal directed the State Government to decide the appeal within two months. The State Government thereafter, by an order dated 04-05-1999, dismissed the appeal filed by the petitioner. This resulted in the petitioner filing Original Application No.355 of 1999 before the Maharashtra Administrative Tribunal.
5. The principal grievance of the petitioner in the said Original Application is that pursuant to the departmental proceedings, the petitioner had already been punished vide an order dated 02-03-1991 and therefore, the respondents could not recover 1/3rd of the amount awarded by the Motor Accidents Claim Tribunal by the order dated 04-03-1998. It was the case of the petitioner that the recovery of the 1/3rd amount was not the charge against him in the said charge-sheet. The Tribunal considered the Original Application and on the basis that a joint and several decree has been passed against the petitioner and the State Government, held that the State Government was after the payment of the decreetal amount, entitled to recover 1/3rd of the decreetal amount from the petitioner. The Tribunal therefore, upheld the order dated 04-03-1998 by which it was proposed to recover 1/3rd of the decreetal amount of '4,58,750/- from the petitioner. Aggrieved by the judgment and order of the Tribunal dated 20-04-2001, that the petitioner has filed the above petition No.9323 of 2004.
6. In so far as the petition filed by the State is concerned, it is the case of the petitioner that it is entitled to recovery the entire decreetal amount of '4,58,750/- from the petitioner and that the Tribunal has wrongly restricted the recovery to only 1/3rd of the said amount.
7. We have heard the learned counsel for the parties. In so far as the petitioner in Writ Petition No.9323 of 2004 is concerned, the principal submission is that the petitioner had already been punished vide order dated 02-03-1991 by stoppage of three increments and therefore, it was not open for the authorities to once again punish him by directing recovery of 1/3rd of the amount of '4,58,750/-, which is the total compensation awarded by the Motor Accidents Claim Tribunal. In our view, the said submission is thoroughly misconceived. The amount which is sought to be recovered vide the order dated 04-03-1998 is not by way of penalty, but the amount which is towards decreetal amount, which the State has already paid, as the decree in the said petitions in the Motor Accidents Claim Tribunal, was joint and several and therefore, the claimants could have recovered the said amount in its entirety from the petitioner also. Merely because the State has paid the entire decreetal amount, would not entitle the petitioner to contend that he is absolved of his liability. The State in seeking to recover the said amount is merely enforcing the liability of the petitioner in so far as the decreetal amount is concerned and therefore, we do not find any substance in the contention of the petitioner in the said Writ Petition No.9323 of 2004 and therefore, for the reasons as mentioned above, we dismiss the said petition and discharge the rule.
8. In so far as the writ petition filed by the State Government being No.2946 of 2002 is concerned, the observations of the Tribunal that the State would be entitled to 1/3rd of the decreetal amount from the petitioner in Writ Petition No.9323 of 2004, for the reasons mentioned in the impugned judgment of the Tribunal, are unexceptional. The Tribunal has given cogent reasons for restricting the recovery to 1/3rd of the decreetal amount. The impugned judgment of the Tribunal, therefore, in our view, does not call for any interdiction at our hands in our extra-ordinary jurisdiction under Article 226 of the Constitution of India. We therefore, dismiss the said petition also and discharge the rule.
9. During the course of the hearing of the above petitions, the learned AGP has drawn our attention to a statement disclosing the amount i.e. towards the retiral benefits which are due to the petitioner in Writ Petition No.9323 of 2004. From the said statement, it can be seen that the authorities have recovered an amount of '57,260/- and the balance to be recovered from the petitioner is '95,657/-. The petitioner is entitled to an amount of '1,98,452/- as his retiral dues. After the amount of '95,657/- is deducted, the petitioner would be entitled to an amount of '1,02,795/-. It appears that though, there is no interim order operating in favour of the State Government in the above petition, the said amount has remained to be paid to the petitioner for the reasons best known to the authorities. We therefore, direct that the balance that would remain i.e. '1,02,795/- be paid to the petitioner with 8% interest per annum from the date of filing of the petition by the State i.e. 12-10-2001, till the date of payment. The said amount to be paid to the petitioner within a period of eight weeks from the date. In so far as the pension which is due to the petitioner, if there are arrears of pension, the same also to be paid with 8% interest from the said date. The petitioner would be entitled to payment of pension as per rules.