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2013 DIGILAW 726 (JHR)

Amod Kumar Jha v. State of Jharkhand

2013-06-21

SHREE CHANDRASHEKHAR

body2013
Judgment The petitioner has approached this Court seeking quashing of orders dated 23.11.2004 and 28.06.2005. 2. The brief facts of the case are that, the petitioner was appointed as Constable in the year 2000 however, he was given the additional work of driver. An accident took place on 19.07.2001 at Jarmundi, with respect to which an F.I.R. was lodged. The son of the deceased lady filed a Title Claim Suit No. 02 of 2002 which was finally decreed on 31.08.2004 by the 3rd Additional District Judge, Dumka and an award of Rs.1,13,000/- was passed in favour of the plaintiff as compensation. It appears that departmental proceeding no.13 of 2001 was initiated by order dated 04.12.2001 and a charge of driving vehicle rashly and negligently was framed against the petitioner. By order dated 23.11.2004, on conclusion of the departmental enquiry an order of forfeiture of increment for a period of one year from the salary of the petitioner which would be equivalent to two black marks, was passed against the petitioner. The petitioner has not challenged the said order before the appellate authority. Thereafter, it appears that the Superintendent of police, Sahebganj wrote a letter dated 31.05.2005 to the Director General of Police, Jharkhand seeking a direction for payment of compensation amount to the plaintiff in the Title Claim Suit No. 02 of 2002 and it appears that by letter dated 28.06.2005, the office of the Director General of Police communicated to the Superintendent of Police, Sahebganj that since the vehicle was plying for personal work therefore, the compensation should be paid by the driver and not by the State and pursuant to such communication from the Director General of Police, by order dated 28.06.2005 the Superintendent of police, Sahebganj passed the impugned order dated 28.06.2005 directing deduction of the compensation amount with interest from the salary of the petitioner in 40 equal installments. In these circumstances, the petitioner has approached this Court. 3. A counter-affidavit has been filed, in which, it has been stated that the petitioner was found guilty for negligently and rashly driving the vehicle resulting into the death of the old lady. In these circumstances, the petitioner has approached this Court. 3. A counter-affidavit has been filed, in which, it has been stated that the petitioner was found guilty for negligently and rashly driving the vehicle resulting into the death of the old lady. A criminal case was also registered against the petitioner and the son of the deceased lady filed Title Claim Suit No. 02 of 2002 seeking compensation which was allowed by the learned trial court by order dated 31.08.2004 and a compensation of Rs.1,13,000/- was ordered to be given to the plaintiff. In the departmental proceeding, the misconduct of driving the vehicle negligently and rashly has been proved against the petitioner and order of penalty dated 23.11.2004 has not been challenged before the appellate authority by the petitioner. On these grounds, the impugned orders have been sought to be justified by the respondents. 4. Heard counsel for both the parties and perused the documents on record. 5. Learned counsel appearing for the petitioner has submitted that admittedly order dated 28.06.2005 has been passed by the Superintendent of Police, Sahebganj without issuing any show-cause notice to the petitioner. In the Title Claim Suit an order for compensation was passed by the competent court in which the State of Jharkhand as well as the Superintendent of police were also made party. Though, the Deputy Superintendent of Police who was not made party in the Title Claim Suit had officially taken the vehicle to Deoghar for submitting the income tax returns and by no stretch of imagination it can be said that the petitioner was not on official duty. Documents relating to command given to the petitioner have been brought on record in support of the claim of the petitioner. Since, the petitioner was requisitioned by the Respondent No.6 any claim, which arose should have been paid by the Respondent No.6 or the State of Jharkhand. 6. Admittedly, the petitioner was on official duty and although the charge of driving the vehicle negligently and rashly has been found proved in the departmental proceeding, the petitioner cannot be made liable for making payment of compensation to the plaintiff in the Title Claim Suit. A perusal of command letter dated 18.07.2001 issued at 20:00 Hrs. clearly reveals that the petitioner was deployed on official work. Even the Charge Memo dated 04.12.2001 clearly indicates that the petitioner was deployed with Sri Parshuram Dubey, Dy. A perusal of command letter dated 18.07.2001 issued at 20:00 Hrs. clearly reveals that the petitioner was deployed on official work. Even the Charge Memo dated 04.12.2001 clearly indicates that the petitioner was deployed with Sri Parshuram Dubey, Dy. S.P. for driving the official vehicle whereas the communication dated 08.06.2005 from the office of the Director General of Police advised the Superintendent of Police that the payment of compensation would be made by the driver and not by the government, because the vehicle was used for personal use. The said communication dated 08.06.2005 is clearly contrary to the official stand which is a matter of record as noticed above. In any event, the official vehicle was used by the said Sri Purshuram Dubey, Dy.S.P. for his personal use and it was not being used by the petitioner for his own personal use and therefore, the said Purshuram Dubey should have been made a party in the Title Claim Suit No. 02 of 2002 which was not done and it also does not appear from the record of the case that the respondents took any step for impleadment of the said Sri Purshuram Dubey, Dy. S.P. as a defendant in the said Title Claim Suit No. 02 of 2002. In this view of the matter, it was open to the respondents to proceed against the said Purshuram Dubey, Dy. S.P. independently however, it was not open for the respondents to pass the impugned order dated 28.06.2005 ordering recovery of the compensation amount from the petitioner. The respondents are not the decree-holder of the Title Claim Suit No. 02 of 2002 and the impugned order dated 28.06.2005 is, in fact, an order executing the order passed by learned trial court awarding compensation of Rs.1,13,000/to the plaintiff. Since, the order of penalty dated 23.11.2004 has not been challenged by the petitioner before the appellate authority and the learned counsel appearing for the petitioner has not been able to indicate any error in the order of penalty dated 23.11.2004, I am not inclined to interfere with order dated 23.11.2004 however, the order dated 28.06.2005 cannot be sustained in law and therefore, it is quashed. It is further ordered that in pursuance of the order dated 28.06.2005, if any amount has been deducted from the salary of the petitioner, it would be refunded to the petitioner forthwith. 7. It is further ordered that in pursuance of the order dated 28.06.2005, if any amount has been deducted from the salary of the petitioner, it would be refunded to the petitioner forthwith. 7. The present writ petition is disposed of in the aforesaid terms.