Joseph v. K. S. R. T. C. — 1997 DIGILAW 414 (KER)

Judgment :- K.S. Radhakrishnan, J. Question that has come up for consideration in all these cases is as to whether the Kerala State Road Transport Corporation has got power to withhold Death-cum-Retirement Gratuity amount so as to meet the liability of the employees or pensioners pertaining to the awards passed by the Motor Accident Claims Tribunals. 2. Motor Accident Claims Tribunals are awarding large amounts by way of compensation against the Corporation and their drivers, in respect of the accidents occurred due to rash and negligent driving of drivers of the Corporation. Several awards are being passed making the Corporation as well as the drivers jointly and severally liable to compensate the victims. In some awards drivers are directly made liable to pay the compensation and the Corporation vicariously. In many of the awards-, there are clear findings to the effect that drivers are rash and negligent which led to the claim being allowed, and even then the Corporation was constrained to satisfy those awards causing considerable financial strain. 3. In fact, the loss caused to the Corporation due to rash and negligent driving of their drivers came up for serious comments by a Division Bench of this Court in Jacob Eapen v. K.S.R.T.C. (1987 (1) KLT 219). Relevant portion is extracted below: "There is one disturbing aspect revealed in the case, and we are constrained to comment on it in view of its serious implications. Rash and negligent driving has been the cause of grave suffering and misery to the appellant and loss to the K.S.R.T.C. Cases have come to our judicial notice where death, misery and deprivation have been caused due to the callous negligent exhibited by drivers of buses. We are not certain whether any action is taken against such negligent drivers, but we are certain that any commercial utilitarian venture cannot promote or countenance a state of affairs where the negligence of its servants put the undertaking to huge losses and passengers and pedestrians and users of other vehicles in peril. It behaves not a public sector undertaking to be public hazard of distressing dimensions. To contain this, K.S.R.T.C. should instill the right perspective and attitudes in their employees so that they realise their public accountability and pay heed to safety. If provisions in this regard do not exist, time has come to bring into existence. It behaves not a public sector undertaking to be public hazard of distressing dimensions. To contain this, K.S.R.T.C. should instill the right perspective and attitudes in their employees so that they realise their public accountability and pay heed to safety. If provisions in this regard do not exist, time has come to bring into existence. A unit to oversee the functioning of drivers, periodical assessment of performance and the use of mechanical devices can be thought of. We expect that the KSRTC will take necessary action in this regard without losing time." In another decision in Vavachan v. K.S.R.T.C. (1991 (1) KLT 828), a learned single judge of this Court observed as follows: "Before parting with the case, I must notice a disturbing aspect revealed in this case, as also in several other cases. Some of the Motor Accident Claims Tribunals seem to think that only KSRTC is liable to make the payments and not the particular employee who is responsible for the accident. It is well to remember that the liability of the employer is vicarious, while that of the driver is direct. However, awards are passed against the Corporation alone, exonerating the drivers when they are liable, it will lead to unsatisfactory results. The funds of the Corporation will be dissipated, while the erring drivers are left free without constraints or consequences. That might encourage rash drivers and lead to the depletion of funds of a public undertaking... If the liability of the drivers are fixed, where they ought to be, Corporation can realise the amount of compensation from them, and thus reduce its own losses. The attitude of the Corporation and the attitude of the Motor Accident Claims Tribunals require updating of realistic concerns. It is expected that all the Motor Accident Claims Tribunals in the State and the KSRTC will act in consonance with the observations made hereinbefore." 4. The Motor Accident Claims Tribunals in most of the award have found the drivers primarily liable. When the drivers are still in service, the Corporation could recover a portion of the amount from their salary. But in many cases, by the time the awards are passed, the employees are about to retire or retired from service. 5. The Motor Accident Claims Tribunals in most of the award have found the drivers primarily liable. When the drivers are still in service, the Corporation could recover a portion of the amount from their salary. But in many cases, by the time the awards are passed, the employees are about to retire or retired from service. 5. A meeting of the Board of Directors of the Corporation was therefore held on 4.4.1994 in which it was decided that full pension and commutation value of pension shall be paid to the delinquent drivers who retired from service of the Corporation and having MACT cases pending against them for final disposal after withholding their DCRG amount. A Board order to that effect was issued by the Corporation 15.4.1994. Board of Directors of the Corporation again met on 28.2.1995 and decided that the apportioned amount of MACT awards to be realised from the employee found at fault, should be limited to DCRG admissible to them. An order to that effect was passed by the Corporation vide proceedings dated 14.3.1995. 6. Accenting to the Corporation, they have taken a very lenient view towards the delinquent driver who is involved in the accident. Usually the recoverable amount is limited to one-third of the award amount or DCRG payable to the driver, whichever is less. As a uniform principle it was decided by the Corporation to realise only one-third of the amount awarded by the Motor Accident Claims Tribunals from the DCRG of the delinquent employee, and two-thirds of the amount awarded would be met by the Corporation. In otherwords, the two-thirds of the compensation amount would still be paid by the Corporation, even though they are directly liable to meet the entire compensation amount. 7. Petitioner in O.P. No. 9366 of 1997 retired from the service of the Corporation on 30.4.1991. As per order No. PLB 5-75 362/90 dated 23.4.1991 pensionary benefits due to the petitioner were sanctioned. However, DCRG was withheld, since he was a party to M.V. (QP) No. 1991/85 of the Motor Accident Claims Tribunals, Thrissur. In that case the accident occurred on 2.5.1985 and the Claims Tribunal passed an award on 28.2.1989 directing the Corporation and the petitioner to pay an amount of Rs. 24.000/- as compensation with interest at 12% per annum to the legal heir of the deceased. Amount covered by the award was paid by the Corporation. In that case the accident occurred on 2.5.1985 and the Claims Tribunal passed an award on 28.2.1989 directing the Corporation and the petitioner to pay an amount of Rs. 24.000/- as compensation with interest at 12% per annum to the legal heir of the deceased. Amount covered by the award was paid by the Corporation. However, according to Corporation, petitioner has to make good a portion of the award, since he was found to be negligent by the Tribunal. In that case, Corporation had to pay an amount of Rs. 37.180/- to the claimant with interest and consequently Corporation issued orders for realising one-third of the amount from the DCRG of the petitioner. DCRG amount payable to the petitioner was Rs. 10.744/-, and therefore, the recovery of one-third of the award amount was limited to that of the DCRG. Ext. P3 is the communication dated 21.9.1995 issued by the Corporation to the petitioner to that effect. 8. Petitioner in O.P. No. 6354 of 1997 retired from the service of the Corporation 31.12.1992. While he was in service as driver an accident occurred on 28.7.1990, which led to the award in O.P. M.V.No. 473 of 1992 by the Addl. Motor Accident Claims Tribunal, Mavelikkara. It was found that the accident occurred due to the rash and negligent driving of the vehicle by the petitioner, and as such he was found primarily liable. Corporation was held to be vicariously liable for the amount of Rs. 62,500/- with interest at 12% per annum. Award was passed on 12.4.1993. Even though an amount of Rs. 22,183/- was sanctioned by the Assistant Accounts Officer (Funds) dated 28.12.1992 with regard to pension and DCRG to the petitioner, the same was not disbursed. Corporation has already paid the Compensation amount of Rs. 86,350/- to the claimants in O.P.M.V. No. 473 of 1992 as per the award, as per order dated 31.3.1994. Corporation, therefore, decided to withhold one-third of the compensation amount from the DCRG of the petitioner. Consequently, petitioner was intimated by order dated 25.3.1996 stating that eventhough an amount of Rs. 29,116.26 is recoverable from the DCRG due to the petitioner towards one-third of the award amount, recovery was limited to Rs. 22,183/- which is the DCRG amount. Consequently, no amount was due to the petitioner by way of DCRG. 9. Petitioner in O.P.No. 12442 of 1997 retired from service on 31.7.1995. 29,116.26 is recoverable from the DCRG due to the petitioner towards one-third of the award amount, recovery was limited to Rs. 22,183/- which is the DCRG amount. Consequently, no amount was due to the petitioner by way of DCRG. 9. Petitioner in O.P.No. 12442 of 1997 retired from service on 31.7.1995. Award in O-P.M.V.No. 289 of 1993 was passed by the Motor Accident Claims Tribunal, Irinjalakuda on 25.1.1995. An amount of Rs. 41,600/- was awarded making the petitioner and the Corporation jointly and severally liable for the said amount. It was found that petitioner was rash and negligent in driving the vehicle. Matter was taken in appeal before a Division Bench of this Court in MFA No. 444 of 1995, which was disposed of by this Court on 25.6.1997 partly allowing the appeal and granting additional amount of Rs. 6020 with interest. Petitioner received a letter from the Corporation dated 17.7.1995 sanctioning an amount of Rs. 35,308/-towards DCRG amount. The amount was not disbursed to the petitioner. Corporation followed the same yardstick in the case of the petitioner as well, holding that the petitioner has to pay one-third of the amount now awarded, and that the same would be adjusted towards DCRG amount. 10. Petitioner in O.P. No. 8764 of 1997 retired from service of the Corporation on 31.1.1994. Award was passed by the Motor Accident Claims Tribunal in O.P. (MV) No. 743 of 1990 holding that the claimant is entitled to get an amount of Rs. 42,500/-with interst. It was specifically found by the Tribunal, the petitioner herein who was the second respondent before the Tribunal, was primarily liable to pay the compensation and the Corporation was made vicariously liable. In other words, petitioner herein and the Corporation were made jointly and severally liable to pay the compensation amount. The award was passed on 6.11.1991. Corporation paid an amount of Rs. 67,575/- on 28.8.1993, which included compensation amount and interest thereon. In addition to that, the Corporation had also to pay an amount of Rs. 1,200/- to the Kerala State Electricity Board for the damages caused to the electric post at the time of the accident. It was therefore decided to recover an amount of Rs. 8,636/- from the DCRG due to the petitioner. In addition to that, the Corporation had also to pay an amount of Rs. 1,200/- to the Kerala State Electricity Board for the damages caused to the electric post at the time of the accident. It was therefore decided to recover an amount of Rs. 8,636/- from the DCRG due to the petitioner. It is also to be noted that the petitioner had, in fact, given a written consent on 4.4.1995 for recovering the loss caused to the Corporation from his pensionary claims. Accordingly, the Corporation issued Ext. P3 order recovering the above amount. Under such circumstance, according to Corporation, there is no basis in petitioner challenging the said recovery. 11. O.P. No. 10422 of 1997 was disposed of on 26.8.1997. When the matter was heard at that time, it was submitted by counsel for the petitioner that there is no liability outstanding against the petitioner. At that time counter affidavit filed by the Corporation was not made available to the Court. Counsel for the Corporation wanted the matter to be reheard. Accordingly, the matter was posted for to be spoken to on 4.9.1997 and parties were heard again. Petitioner retired from service on 31.5.1994. All the financial benefits due to the petitioner were disbursed except the DCRG. Petitioner, a driver of the Corporation, was a party to O.P. (MV) No. 314 of 1990 of the Motor Accident Claims Tribunal, Attingal and O.P. (MV) No. 1057 of 1990 of the Motor Accident Claims Tribunal, Kollam. Award in O.P. (MV) No. 314 of 1990 was passed on 31.8.1994 directing the petitioner to pay an amount of Rs. 28,350/- with interest to the claimant. Tribunal specifically found that petitioner was primarily liable and the Corporation vicariously. In O.P.(MV) No. 1057 of 1990, the Motor Accident Claims Tribunal, Kollam passed an award on 31.8.1994 directing payment of Rs. 8000/- to the claimants. It was found that petitioner was primarily liable to pay the amount and the Corporation vicariously liable. This amount was also directed to be recovered from the DCRG due to the petitioner. In O.P.(MV) No. 1057 of 1990, the Motor Accident Claims Tribunal, Kollam passed an award on 31.8.1994 directing payment of Rs. 8000/- to the claimants. It was found that petitioner was primarily liable to pay the amount and the Corporation vicariously liable. This amount was also directed to be recovered from the DCRG due to the petitioner. 12.Question that has come up for consideration, as already stated, in all these cases, is as to whether the Corporation has power to withhold DCRG amount and to adjust the same towards the loss caused to the Corporation consequent on the various awards passed by the Motor Accident Claims Tribunal, wherein Corporation is made only vicariously liable for the rash and negligent driving of its drivers. 13. Employees 'right to get pension and gratuity is a statutory right. The measure of deprivation is co-relative or commensurate with the gravity of misconduct or irregularity as it offends right to assistance in the evening of his life, as assured under Art.41 of the Constitution. However, R.3 of Part III KSR reserves a right to the Government to withhold pension either permanently or for a specific period and to recover whole or part of any pecuniary loss caused to the Government, if in a departmental or judicial proceeding, the pensioner is found guilty of grave misconduct or negligence during the period of his service, including service rendered upon re-employment after retirement. If the departmental proceeding is initiated before his retirement the same could be continued. However the same shall not be in respect of any event which took place more than four years before such institution. A judicial proceeding shall be deemed to be instituted in the case of a criminal proceeding on the date on which the complaint or report of Police Officer on which the Magistrate takes cognizance is made, and in the case of a civil proceeding, on the date of presentation of the plaint in the court. However, Note 2 is added to R.3. It says the word 'pension' used in this rule does not include death-cum-retirement gratuity. Liabilities fixed against an employee or pensioner can be recovered from the death-cum-retirement gratuity payable to him without the departmental/judicial proceedings referred to in this rule, but after giving the employee or pensioner concerned a reasonable opportunity to explain. However, Note 2 is added to R.3. It says the word 'pension' used in this rule does not include death-cum-retirement gratuity. Liabilities fixed against an employee or pensioner can be recovered from the death-cum-retirement gratuity payable to him without the departmental/judicial proceedings referred to in this rule, but after giving the employee or pensioner concerned a reasonable opportunity to explain. Note 3 to R.3 says the liability of an employee should be quantified either before or after retirement and intimated to him before retirement if possible or after retirement within a period of three years on becoming pensioner. The liabilities of a pensioner, should be quantified and intimated to him. 14. In all these cases, no departmental or judicial proceeding as such was initiated by the Corporation. Proceedings were initiated by the victims or their legal representatives in connection with various accidents. In all the awards petitioners were primarily found liable and the Corporation vicariously liable. In O.P. Nos. 9366,8764 and 12442 of 1997 awards were passed while the petitioners were in service. In O.P.No. 6354 of 1997, petitioner retired from service on 31.12.1992 and the award was passed on 12.4.1993. In O.P. No.10422 of 1997 petitioner retired from service on 31.5.1994 and the award was passed on 13.8.1994. In all these case, awards were passed with the petitioners in the array of parties. Therefore, as far as petitioners are concerned, liability has already been fixed by a properly constituted Tribunal with the petitioners and Corporation in the array of parties. Therefore, there is no question of fixing any liability by the Corporation with notice to the petitioners. 15. The procedure to be followed for recovery of liabilities fixed from DCRG is stated in Note 2 to R.3 of Part III, K.S.R.,which is extracted below: "The word "pension' used in this rule does not include death-cum-retirement gratuity. Liabilities fixed against an employee or pensioner can be recovered from the death-cum-retirement gratuity payable to him without the departmental/judicial proceedings referred to in this rule, but after giving the employee or pensioner concerned a reasonable opportunity to explain. Note 3: The liabilities of an employee should be quantified either before or after retirement and intimated to him before retirement if possible or after retirement within a period of three years on becoming pensioner. Note 3: The liabilities of an employee should be quantified either before or after retirement and intimated to him before retirement if possible or after retirement within a period of three years on becoming pensioner. The liabilities of a pensioner should be quantified and intimated to him." (emphasis supplied) In the instant case, as already stated, liability has already been fixed by the Motor Accident Claims Tribunal with petitioners and the Corporation in the array of parties. Therefore, there is no question of fixing any liability by the Corporation with notice to persons like petitioners or giving a reasonable opportunity to explain. Note 2 to R.3 of Part III, K.S.R. is provision of general application. Incases where the liabilities have been fixed by the Corporation against an employee or pensioner without the departmental/judicial proceedings the same could be recovered from the D.C.R.G. but the employee or pensioner be given a reasonable opportunity to explain. In other words, liability already fixed by the Corporation against an employee or pensioner could not be recovered without giving the employee or pensioner a reasonable opportunity to explain. In other words, even without the departmental/judicial proceedings, power is given to the Corporation to fix the liability. However, in cases where the liability has already been fixed by a properly constituted judicial or quasi-judicial Tribunal, with notice to the employee or pensioner and the Corporation in the party array, there is no question of giving another opportunity to explain as to why liability be not fixed. In other words, an opportunity has already been given to employee or pensioner by a properly constituted Tribunal. Due to above mentioned reasons, I am of the view that the Corporation has got the legal right to recover the liability fixed against an employee or a pensioner from the DCRG in accordance with R.3 Part III of the KSR. In all these cases liability has already been fixed by properly constituted Tribunals within the statutory time prescribed by R.3 of Part III, KSR. 16. Counsel for the Corporation, however, relied on the provisions of R.11(1) (iv) (a) of the Kerala Civil Services (Classification, Control and appeal) Rules which is extracted below: 11. In all these cases liability has already been fixed by properly constituted Tribunals within the statutory time prescribed by R.3 of Part III, KSR. 16. Counsel for the Corporation, however, relied on the provisions of R.11(1) (iv) (a) of the Kerala Civil Services (Classification, Control and appeal) Rules which is extracted below: 11. Nature of penalties: (1) The following penalties may for good and sufficient reasons and as hereinafter provide be imposed on a Government servant, namely, - (iv)(a) Recovery from pay of the whole or part of any pecuniary loss caused to a State Government or the Central Government or to a local authority by negligence or breach of orders". I am of the view the above mentioned provision is applicable only for the recovery of amount from the pay and not from gratuity. So long as employees are in service, it is open to the Corporation to recover the amount by way of award due to the loss caused to the Corporation from the pay of the employees. 17. When an employee retired from service, the above said provision is inapplicable, and the only provision that could be applicable is R.3 of Part III, K.S.R. In otherwords, penalty permissible under R.11 can be recovered from the pay of a Government servant and not from the gratuity. This question has been dealt with in Sekharan v. Senior Superintendent, R.M.S.,Kochi, ILR 1974 (2) Ker 121. After retirement there is no question of payment of salary. 18. In all these cases, petitioners have retired from service, and if the amounts were not recovered from their pay before retirement, the same could be recovered from the DCRG amount in accordance with R. 3 of Part III, K.S.R. In the said circumstances, I am of the view that Corporation is justified in adjusting the liabilities by virtue of the awards passed by Motor Accident Claims Tribunals from the DCRG amount of the petitioners. Original Petitions therefore, lack merits and they are dismissed.