Punjab-Haryana High Court
Hc Niranjan Singh Through His L.Rs vs The State Of Haryana And Others on 9 November, 2012
Author: G.S.Sandhawalia
Bench: Gurmeet Singh Sandhawalia
CWP No. 69 of 1994 -1-
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IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CWP No.69 of 1994
Date of decision: 9.11.2012
HC Niranjan Singh through his L.Rs. ....Petitioner
Vs.
The State of Haryana and others ....Respondents
CWP No.65 of 1994
Ramesh Kumar ....Petitioner
Vs.
The State of Haryana and others ....Respondents
CORAM: HON'BLE MR.JUSTICE GURMEET SINGH SANDHAWALIA
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Present: Mr. Harish Nain, Advocate for the L. Rs. of the petitioner
Ms. Mamta Singla Talwar, Assistant Advocate General,
Haryana for the respondents
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G.S.SANDHAWALIA, J.
1. This order shall dispose of Civil Writ Petition No.69 of 1994 (HC Niranjan Singh through his L.Rs Vs. State of Haryana and others ) and Civil Writ Petition No. 65 of 1994 ( Ramesh Kumar Vs. State of Haryana and others) as common questions of law and facts have arisen out of both the petitions. However, the facts have been taken from Civil Writ Petition No.69 of 1994.
CWP No. 69 of 1994 -2-
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2. The petitioner challenged the orders dated 8.7.1992 (Annexure P-14), dated 24.2.1993 (Annexure P-16), dated 3.11.1993 (Annexure P-18) and dated 12.7.1993 (Annexure P-19) whereby petitioner HC Niranjan Singh was reverted from the rank of Head Constable to that of Constable and recovery of ` 29,284.85 paise was ordered to be made from him.
3. The case pleaded in the petition is that the petitioner Niranjan Singh was enlisted as Constable in Haryana Police on 27.7.1993 and promoted as Head Constable in the year 1988 due to his hard work and passing of the Lower School Course. The petitioner had earned 20 good entries for displaying exceptional work and no bad report even warning had ever been communicated to the petitioner during his entire service and all the ACRs of the petitioner were of very good nature. While posted as M.T.O. in the month of December, 1991, the driver of Gypsy bearing No.HR-01-1723 took the gypsy for repair purposes and entry to this effect was made vide DDE No.46 dated 25.12.1991. The said Gypsy was required to be got repaired to make available for patrol duty to the Superintendent of Police, Yamuna Nagar. Since there was no provision for repairing the Gypsy in the Government workshop, the same was got repaired from the open market and defects from the said vehicle were removed at the workshop of Amar Motor Garage, Yamuna Nagar. After removing the defects the vehicle was put to trial and Constable Driver Ramesh Kumar (petitioner in Civil Writ Petition No.65 of 1994) and Mohan Kumar, Mechanic of Amar Motor Garage, Yamuna Nagar CWP No. 69 of 1994 -3- **** completed the trial and vehicle was also tested by the Mechanic Foreman and later on Constable Driver Ramesh Kumar was having try and at that time the vehicle met with an accident with Haryana Roadways bus due to rash and negligent driving of the bus driver and the petitioner was also injured in that accident because he was also sitting in the gypsy for supervising the try. The petitioner was treated by Dr. Saini at Chhappar. However, he was placed under suspension on 26.12.1991 by respondent no.4 alongwith co-defaulter Constable Ramesh Kumar. Deep Chand Bhardwaj, Deputy Superintendent of Police, Jagadhari was appointed as Enquiry Officer to hold enquiry against the petitioner. The charge against the petitioner was that the petitioner asked Constable Ramesh Kumar who was posted as Driver of the Gypsy to drop him at PS Chhappar and the said Constable without permission from officers had started to drop him and on the way near village Haripur Jattan the Gypsy had been involved in an accident with Haryana Roadways bus of Yamuna Nagar Depot whereby great loss/damage had been caused to the Gypsy. Further allegation was that HC Niranjan Singh had taken liquor and misused the said vehicle without obtaining permission from the higher officers whereas Constable Ramesh Kumar without taking permission from the competent officer had gone to Chhappar to drop HC Niranjan Singh by driving the Gypsy and on the way committed an accident with the Haryana Roadways bus and had given a proof of indiscipline and carelessness. It is further pleaded that the prosecution examined seven witnesses and none of them clearly stated that the petitioner had taken CWP No. 69 of 1994 -4- **** liquor and it was only hearsay version and even Dr. B.L.Saini, had been produced as DW-2 to depose about the line of treatment given to the petitioner. The Enquiry Officer without taking into consideration and without discussing the prosecution evidence came to the conclusion that the charges had been proved against the petitioner and his co-defaulter. An enquiry committee was also constituted by respondent no.4 to find out the cause of the accident and loss caused to the gypsy. The committee submitted its report that the new material was purchased for the repair of Gypsy and all the items which had become unserviceable be declared as condemned and sold in open auction for ` 200/-. The Committee thereafter met and recommended for sanction of the material purchased for the vehicle in its meeting dated 12.2.1992. The sanction of the same was granted by respondent no.2 vide his letter dated 25.5.1992 and in the letter sent to respondent no.1, it was specifically mentioned that the vehicle was involved in an accident while it was on Government duty and the parts had been purchased from the open market. Prior to this respondent no.4 had submitted details to the Deputy Inspector General of Police, Ambala Range, Ambala vide letter dated 11.4.1992 in which it was specifically mentioned that the Gypsy No.HR-01-1723 had met with an accident while it was on Government duty. However, copy of the letter was not with the petitioner. It was further pleaded that no purchase was made from the local market at Yamuna Nagar but the petitioner along with ASI Lahori Lal, MTO and Mohan Lal, Mechanic had left on 8.1.1992 from Yamuna Nagar for Ambala/Delhi for procuring the spare CWP No. 69 of 1994 -5- **** parts of the Gypsy and 2nd hand material was purchased and fitted in the said Gypsy and the said Gypsy was got repaired. The return was also there on 9.1.1992 at 5.00 P.M. and the material was purchased from Kabari Bazar, Delhi. Affidavit of Madan Lal along with Jugal Kishore to the effect that Madan Lal along with ASI Lohari Lal and HC Niranjan Singh had gone to Kabari Bazar, New Delhi was appended. The petitioner was thereafter issued two show cause notices dated 29.5.1992 and in one show cause notice it was mentioned that why the penalty of dismissal from service be not imposed upon him and in the other an explanation was asked as to why the amount of ` 29,284.85 paise be not recovered from him on the basis of the enquiry report. The petitioner had replied to both the show cause notices taking the plea that the vehicle was on Government duty and the petitioner was never associated with the survey committee and no enquiry regarding that had taken place. The alleged smell of liquor was only due to medicines given to him by a private Doctor and he was not under the influence of liquor. The vehicle had met with an accident during the try which is beyond the control of the MTO. The recovery of amount of repair was not justified.
4. Respondent no.4, however, vide order dated 8.7.1992 ordered the reversion of HC Niranjan Singh to the post of Constable and further that recovery of ` 29,284.85 paise be made at the rate of ` 300/- per month. The co-defaulter Ramesh Kumar, who had got his leg severally fractured in the accident was awarded penalty of stoppage of four annual increments with cumulative effect. The appeal filed by the CWP No. 69 of 1994 -6- **** petitioner was dismissed vide order dated 24.2.1993 by the Deputy Inspector General of Police, Ambala Range, Ambala. The revision filed before respondent no.2 was also dismissed vide order dated 3.11.1993. In pursuance of the said orders, respondent no.4 removed the petitioner from the promotion list 'C'. The writ petition was accordingly preferred against the said orders on the ground that he was sitting in the Gypsy, which was on Government duty and met with an accident and in similar circumstances, a mini bus of Sadhora Police Station No.HNE 9570 driven by Constable Krishan Lal had also met with an accident and no recovery was made from the said Constable or from the ASI who was accompanying the bus.
5. In the written statement filed by the State, it was pleaded that the petitioner was promoted to the rank of officiating Head Constable with effect from 26.9.1989 instead of 1988.The petitioner was promoted as officiating Head Constable on his turn and not on the basis of his hard work and passing of the Lower School Course. The Government Gypsy had been taken for repair on 25.12.1991 by Constable Driver Ramesh Kumar and later on petitioner also recorded his departure in the daily diary of Police Lines, Yamuna Nagar for repair of the said vehicle. After the repair of the vehicle at 5.00 P.M., when Constable Driver Ramesh Kumar was likely to move to the Police Lines, the petitioner who was posted as M.T.O.( i.e. Incharge of all the vehicles of district Police, Yamuna Nagar) came there and asked Ramesh Kumar to drop him at Chhappar, where his family was residing in the Government family CWP No. 69 of 1994 -7- **** quarters of Police Station, Chhappar. The vehicle met with an accident 500-600 yards ahead from village Haripur Jattan with Haryana Roadways Bus No.HNA-3018 and FIR No.486 dated 25.12.1991 under Sections 279, 337, 338 IPC was registered at Police Station, Jagadhari against the driver of the Haryana Roadways bus. The petitioner as well as the Constable Driver Ramesh Kumar received injuries and Constable Driver Ramesh Kumar was admitted to Civil Hospital, Jagadhari. While recording FIR, the Constable Driver Ramesh Kumar had deposed before the Investigating Officer that the petitioner had ordered him to drop him at Chhappar where his family was residing in Government family quarters. The contention that the trial of the Gypsy was going on was devoid of any force. The FIR No.486 dated 25.12.1991 was relied upon and from perusal of the same it was clear that the Gypsy was taken for personal benefits without the permission of the competent authority. A joint regular departmental enquiry was conducted against the petitioner as well as the Constable Driver Ramesh Kumar and they had been held guilty for the charges framed against them. The witnesses had supported the prosecution version. It had been proved that the petitioner had consumed liquor at the relevant time. Reasonable opportunity had been given to the petitioner as envisaged under Article 311 of the Constitution of India and the provisions of Rule 16.24 of the Punjab Police Rules. The place of accident was at about 8 Kms., and Mohan Kumar, mechanic was only a got-up witness and such witness could be procured for small consideration. The presence of Mohan Kumar was not there in the CWP No. 69 of 1994 -8- **** Gypsy at the time of accident and that the petitioner had also received injuries. Respondent no.2 in order to get the sanction of the bill had written letter to the Government and at that time they were not aware of the actual facts and the fault of the petitioner. Later on from departmental enquiry it came to the knowledge of the respondents that the accident had occurred at the time when the petitioner had taken the aforesaid Gypsy for his personal use and without the permission of the competent authority. The contents of the FIR also revealed the fault of the petitioner and the respondents after going through the entire proceedings, had passed the order Annexure P-14. It was further admitted that ASI Lahori Lal and the petitioner were deputed to Ambala and Kabari Bazar, Delhi for purchasing the spare parts of the said Gypsy but they did not purchase any spare parts/material for the said vehicle as per record. They did not submit any bill to the answering respondent nor any entry was recorded in the Log Book and History sheet of the said vehicle as per duty which was necessary under the Rules. Infact the material was purchased from the local market of Yamuna Nagar. The petitioner had levelled false allegations in order to get some benefit by misleading this Court. The affidavit of Mohan Lal, mechanic was wrongly procured by the petitioner. The petitioner was held guilty after holding Regular Departmental Enquiry and, therefore, a sum of ` 29284.85 paise was ordered to be recovered from the petitioner. The petitioner was not required to be associated with the survey committee. The appeal of the petitioner had been rejected by the Deputy Inspector General of Police, CWP No. 69 of 1994 -9- **** Ambala Range, Ambala after considering all of the facts and similarly respondent no.2-Director General of Police, Haryana had also rejected the revision. The said orders were speaking orders and decided the case on merits. In consequence of the same, the name of the petitioner had been removed from the List C-II. Regarding the action against Krishan Lal, driver of vehicle No.HNE 9570, it was pleaded that no action was taken against him since the vehicle was on Government duty. The petitioner had purposely ordered driver Constable Ramesh Kumar to drop him at Chhappar without obtaining the prior permission of the competent authority,
6. Replication was filed by the petitioner where the fact that the petitioner had asked the driver to drop the petitioner at Chhappar was denied. It was pleaded that the petitioner was on official duty as Assistant M.T.O. It was alleged that the FIR was recorded by the ASI at his own level and Constable Driver Ramesh Kumar was not in his proper senses and proper state of health to make a proper statement. 2nd hand material had been purchased by ASI Lahori Lal along with mechanic Mohan Kumar and entry had been made in the Rapat Roznamcha. The receipt taken from Shaukat Ali as Annexure P-20 from whose shop material had been purchased was appended. It was prayed that an independent enquiry be held to prove that the bill had been falsely procured from the shops mentioned in it by the respondents for the reasons best known to them. The case of the petitioner and that of Constable Krishan Kumar was similar and petitioner had been wrongly CWP No. 69 of 1994 -10- **** discriminated.
7. Counsel for the petitioner has, thus, vehemently submitted on the basis of the pleadings that the vehicle was taken on Government duty and was on trial run and had met with an accident and the petitioner was sitting in the vehicle along with co-defaulter Constable Driver Ramesh Kumar. Stress was made on the statement of DW-1 Mohan Kumar, Mechanic and the letter dated 25.5.1992 (Annexure P-6) written by respondent no.2 to respondent No.1 which mentioned that the vehicle was on official duty. Similar reference was made to the FIR to submit that Constable Driver Ramesh Kumar had given a statement that the vehicle was taken to Amar Motor Garage for repair of its wiper. The statement of Sham Sunder, ASI who had recorded the FIR was referred to allege that Constable Driver Ramesh Kumar had told that HC Niranjan Singh had taken liquor and that there was no proof that Niranjan Singh was under the influence of liquor. It has been further alleged that the payment had been made by the petitioner and he had gone to Delhi to purchase the spare parts/material of the Gypsy. Counsel for the petitioner has also placed reliance upon the judgment of the Hon'ble Apex Court in Union of India and another Vs. S.C.Parashar AIR 2006 Supreme Court 3566 to contend that once major penalty was being imposed then recovery could not have been effected since it was minor penalty. Reference has also been made to the judgment of the Delhi High Court in WP(C) No.4417 of 1999 Sh. S.D.Gupta Vs. Punjab National Bank & others decided on 5.7.2004.
CWP No. 69 of 1994 -11-
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8. It has been further submitted on behalf of Constable Driver Ramesh Kumar in his case that the authorities did not consider the fact that the co-defaulter was under the control of his senior HC Niranjan Singh and he had asked him to drop him to Chhappar and he was not in a position to refuse to his order and thus, harsh punishment had been imposed upon him whereby his four increments with cumulative effect had been stopped.
9. On the other hand, counsel for the State defended the orders and contended that the petitioner and his co-defaulter Constable Driver Ramesh Kumar had been given reasonable opportunities and proper procedure had been followed. After the statement of the witnesses the orders of punishment had been passed and thus, there was no occasion for interference with the valid orders passed by the competent authorities under Articles 226/227 of the Constitution of India.
10. A perusal of the record of the writ petition would show that immediately after the accident on 25.12.1991, respondent no.4 had suspended the petitioner and his co-defaulter on the ground that they had without permission from higher authorities misused the Government vehicle which had met with an accident. They were also transferred to the Police Lines, Yamuna Nagar and regular departmental enquiry was ordered against them which was to be held on day to day basis. The petitioners had been charge sheeted and the following charges have been framed against them:-
"You HC Niranjan Singh No.51/YNR was posted as Asstt. CWP No. 69 of 1994 -12-
**** M.T.O. at Police Lines, Yamuna Nagar. You asked Ramesh Kumar Const. NO.480/YNR who was posted as Driver on Gypsy No.HR-01-1723 to drop you at PS Chhappar and Constable Ramesh Kumar No.480 YNR without permission from officers had started with you in Gypsy to drop you and on the way near village Hari Pur Jattan you had involved Gypsy in accident with Haryana Roadways Bus of Yamuna Nagar Depot from which there was great loss/damage caused to Gypsy. You HC Niranjan Singh No.51/YNR after taking liquor used the Govt. Gypsy without obtaining any permission from higher officers and by misusing the Gypsy and you Constable Ramesh Kumar No.480/YNR without permission from the competent officers had taken Govt. Gypsy and HC Niranjan Singh No.51/YNR Asstt. M.T.O. to drop at Chhappar by driving the Govt. Gypsy and on the way committed an accident with Haryana Roadways Bus No.HNA-3018 had given a proof of indiscipline and carelessness. Therefore, I Deep Chand Bharwaj HPS DSP Jagadhari vide orders of Supdt. Of Police, Yamuna Nagar No.61624-68 dated 25.12.91 charges you HC Niranjan Singh and Constable Ramesh Kumar No.480/YNR and starting the departmental enquiry against both of you."
11. The Enquiry Officer examined as many as seven departmental witnesses and two witnesses on behalf of the delinquent CWP No. 69 of 1994 -13- **** employees and came to the conclusion that the allegations had stood proved regarding the misuse of the vehicle. The punishing authority after taking into consideration the replies of the delinquent employees came to the conclusion that HC Niranjan Singh had been medically examined by the Medical Officer who had given a report that he had consumed alcohol. It was also noticed that the delinquent refused to give sample of blood and urine for investigation which further made it clear that he had consumed alcohol and the defence that he had taken some medicines seemed to be concocted. The defence that he was going to take trial of Gypsy was held to be concocted and after thought version and reliance was placed upon the FIR wherein Constable Driver Ramesh Kumar had clearly stated that he had gone to drop HC Niranjan Singh at Chhappar in the Gypsy. Accordingly, it was held that the defaulters had taken a false defence in the enquiry proceedings and the charges levelled against them were fully proved beyond the shadow of doubt. A personal hearing was also given to the said employees and accordingly, order of reversion was passed in case of HC Niranjan Singh and recovery of ` 29,284.85 paise at the rate of ` 300/- per month was ordered.
12. However, regarding the default of Constable Driver Ramesh Kumar, it was noticed that his leg was severally fractured in the accident and he had remained admitted in the hospital and while taking a comparative lenient view, punishment of stoppage of four annual increments with cumulative effect had been imposed upon him. The Appellate Authority after scanning the evidence came to the conclusion CWP No. 69 of 1994 -14- **** that the stand taken by the petitioner was self-contradictory regarding the return of HC Niranjan Singh and the stand of Constable Driver Ramesh Kumar in the FIR. No effort had been made to cross examine ASI Sham Sunder PW3 who recorded the statement of Constable Driver Ramesh Kumar in the civil hospital. The vehicle had been taken at 4.30 PM for getting the same repaired from Amar Motor Garage and thereafter, it had been taken to Chhappar for dropping HC Niranjan Singh at his instance. Accordingly, the appeal had been dismissed. Similarly, the revisional authority had also declined to interfere with the impugned order.
13. The submission made by the petitioner qua HC Niranjan Singh is without any basis, regarding the defence that the vehicle was under trial/try when it had met with an accident and thus, it was on Government duty. The defence of the petitioner is exposed by the first version which was recorded in FIR No.486 dated 25.12.1991 which was recorded at 8.00 P.M. In the said FIR, co-defaulter Constable Driver Ramesh Kumar himself in his statement had stated that he had gone to get the wiper of the Gypsy repaired in Amar Motor Garage, Yamuna Nagar and after the repair of the said vehicle he was asked by HC Niranjan Singh to drop him at Chhappar where his family was residing. On his asking he took the Gypsy towards Chhappar and at about 5.15 PM an accident was met with the Haryana Roadways bus and both of them had received injuries. In the said FIR, there is no mention of the fact that there was any test being done for alignment of the vehicle and neither the presence of Mohan Kumar, mechanic is mentioned. The Gypsy after CWP No. 69 of 1994 -15- **** being hit by the Haryana Roadways Bus fell into adjoining ditch from the road which is clear from the FIR itself. Both the persons who had been sitting in the Gypsy had received injuries. Had the mechanic Mohan Kumar been sitting in the said Gypsy for the purpose of the test, he would have also received injuries. The statement of Constable Driver Ramesh Kumar is regarding repair of wiper and it is hard to fathom that for the trial of wiper, the vehicle would be driven about 8 Kms. from the workshop, when the same can be done on a standing vehicle.
14. Further reliance has been placed upon letter dated 25.5.1992 (Annexure P-6) is also of no consequence because the report of the Enquiry Officer is dated 13.5.1992 and the order of punishment was imposed only subsequently on 8.7.1992. It was only at that point of time, petitioner was held guilty and prior to that in an official communication mere mentioning of fact that the vehicle was on official duty for the sanction of bill of its damaged parts would be of no avail to the petitioner. The submission of the counsel that in the FIR it was also mentioned that vehicle was being tested at Amar Motor Garage is also of no help due to the reasons mentioned above. Since the co-defaulter has specifically initially taken the stand that on the direction of HC Niranjan Singh he had gone to drop to him at village Chhappar. The authorities below have noticed that there was no cross examination of ASI Shyam Sunder as why he would have got recorded the version in the FIR at his own instance. Dr. Narender Kumar Garg, Medical Officer, Yamuna Nagar in his statement had also reported that HC Niranjan Singh had CWP No. 69 of 1994 -16- **** taken liquor and denied to give the sample of urine and blood. Therefore, the submission that it was only hearsay evidence cannot be accepted as contended by the counsel for the petitioner.
15. Regarding the issue of payments made by the petitioner pertaining to the repair of the vehicle and procuring the spare parts from Delhi, the petitioner was issued a show cause notice for recovery and dismissal on 29.5.1992 and in reply thereto on 20.6.1992 by the petitioner, there is no defence taken regarding that the vehicle was got repaired at his own expense from the Kabari Bazar at New Delhi. No such defence was taken in the appeal filed before the respondent no.3 also. Even otherwise, the petitioner never placed any such evidence on record before the Enquiry Officer regarding this expense allegedly entailed by him which is now sought to be relied upon by way of affidavit of Madan Lal and Jugal Kishore. The said persons were never produced as witnesses before the Enquiry Officer and this Court in writ jurisdiction cannot take cognizance of veracity of evidence on the basis of affidavits filed. The State has taken a categorical defence that the material was purchased from the local market of Yamuna Nagar and neither any bill was submitted to the answering respondents for payment by the petitioner. Accordingly, no valid reason can be found to interfere with the well reasoned orders passed by the punishing authority which had been upheld in appeal and revision. Since counsel for the petitioner has not been able to point out any legal infirmity in the departmental proceedings which could be interferred with by this Court in exercise of CWP No. 69 of 1994 -17- **** writ jurisdiction.
16. The submission of the counsel that minor punishment of recovery could not be imposed is without any basis. A perusal of the judgment of the Hon'ble Apex Court in S.C.Parashar's case (supra) goes on to show that the procedure followed was for imposition of major penalty and in such circumstances minor penalty could also be imposed regarding the recovery. Relevant paragraph of the observations of the Hon'ble Apex Court reads as under:-
"It is not in dispute that sub-Rules (iii) and (iii)(a) of Rule 11 provide for minor penalties whereas clause (v) thereof provides for major penalty. Indisputably the procedure adopted in the departmental proceeding was for imposition of a major penalty. It is trite that even in a case where the procedure followed in the departmental proceedings for imposition of a major penalty, having regard to the facts and circumstances of a case, minor penalty can also be imposed. The question is as to whether the penalty imposed by the President upon taking into consideration the report filed by the Enquiry Officer, was under clauses (iii) and (iii)(a) or clause (v) of Rule 11 of the CCS Rules."
17. The Apex Court in the said case had modified the judgment of the Hon'ble High Court by imposing punishment of reduction of pay for a period of three years with cumulative effect. A three Judge Bench of the Hon'ble Apex Court in Depot Manager, A.P.S.R.T. Corpn. Vs. CWP No. 69 of 1994 -18- **** N.Ramulu (1997) 11 SC 319 held that recovery due to pecuniary loss can be recovered in addition to the punishment imposed and it would not be a case of double jeopardy. Counsel for the petitioner could not bring any provision to the notice of this Court that barred the respondent from effecting recovery from the petitioner in addition to the major penalty of reversion which was imposed.
18. A Division Bench of this Court in Jagir Singh Vs. State of Punjab and others 2004(1) Punjab Law Reporter 140 upheld the action of the department which was seeking to recover half of the compensation amount paid to the claimants in terms of the award of the Motor Accident Claims Tribunal from the driver of the vehicle involved. The Division Bench came to the conclusion that where the employee due to his negligence causes loss to the State, then the State could recover the said amount from such an employee. In the present case also, it would be clear from the above facts that the State is only recovering the amount of loss caused to it by repair of the official vehicle due to accident caused by the act and conduct of the petitioner. The relevant observations of the Division Bench reads as under:-
"16. It will be appropriate to notice here that the recovery of money is not a specified punishment under Rule 16(1) of the Punjab Police Rules 1934. It is also provided under the said rules that all other government rules would be applicable to the police official/officer covered under the said rules. In light of the above provisions, it cannot be said CWP No. 69 of 1994 -19- **** that the recovery of the amount attracted by the impugned order would be termed as a penalty. Serving of show cause notice would be substantial compliance to the principles of natural justice, which have to be read into Rule 2.33 of the Financial Rules. In any case, there is no challenge to the validity of the said rules before us in this petition.
17. Once a provision is on the statute book and its liability or validity or otherwise is not questioned before the Court, the Court must proceed on the basis that it is a valid piece of legislation. The presumption of validity is in favour of the legislation and not otherwise. The rule postulates recovery of loss sustained by the Government suffered through negligence on the part of the employee. The extent of loss recovery would depend upon his contribution to such act. Loss is a term of wide connotation and has received liberal construction in judicial pronouncements. Understood in its common parlance 'loss' is deprivation of a property of valuable item. Their Lordships of the Hon'ble Supreme Court in the case of East and West Steamship Co., Georgetown, Madras v. S.K. Ramalingam Chettiar, A.I.R. 1960 Supreme Court 1058 observed that is a generic and comprehensive term covering different situations. Loss may result from destruction of a thing and it may amount to deprivation."
19. The judgment in S.D.Gupta's case (supra) pertains to CWP No. 69 of 1994 -20- **** retiral benefits of bank employee and has no applicability to the facts and circumstances of the present case.
20. Accordingly, the Civil Writ Petition No. 69 of 1994 filed by HC Niranjan Singh is dismissed.
21. However, in the case of the co-defaulter Constable Driver Ramesh Kumar (petitioner in Civil Writ Petition No.65 of 1994), it is to be noticed that he was the driver of the vehicle and under the direct supervision of HC Niranjan Singh who was Assistant M.T.O., incharge of all vehicles of district police, Yamuna Nagar. It was the case of Constable Driver Ramesh Kumar himself that he had taken the vehicle for repair to Amar Motor Garage and from there he had been asked to take HC Niranjan Singh to village Chhappar where his family was residing as per FIR. This aspect that the co-defaulter was not in a position to refuse the orders of his senior had not been taken into consideration by the punishing authority in appeal or in revision. The punishing authority has noticed that the said petitioner also suffered a fracture in his leg and had remained hospitalised for several weeks. Accordingly, in the opinion of this court, regarding the quantum of punishment of the stoppage of four annual increments with cumulative effect imposed upon the delinquent employee, who was under the pressure of his immediate superior should have been taken into consideration by the punishing authority and a more lenient view should have been taken. Counsel for the petitioner Constable Driver Ramesh Kumar submitted that the petitioner is still in service and his pay has CWP No. 69 of 1994 -21- **** been substantially reduced due to the punishment imposed. Accordingly, the order dated 8.7.1992 and consequent order dated 24.2.1993 and order dated 3.11.1993 are modified qua the petitioner Constable Driver Ramesh Kumar to the extent that punishment of stoppage of his four annual increments is reduced to the stoppage of four annual increments without cumulative effect.
22. Accordingly, the Civil Writ Petition No.65 of 1994 is partly allowed in the above said terms.
9.11.2012 (G.S.SANDHAWALIA) Pka JUDGE