Department cannot take diametrically opposite stands in inter-parte proceedings against employee.

The applicant, Mohandas S., a Driver with the Department of Posts, retired on March 31, 2023.

While in service, on January 19, 2005, a Motor Van driven by him was involved in an accident with a motorcycle, leading to Crime No. 323 of 2015 being registered for rash and negligent driving.

The injured party filed OP(MV) No. 396 of 2016 before the Motor Accidents Claims Tribunal (MACT), Thiruvananthapuram, claiming compensation against the applicant, and respondents 1 and 3.

The applicant filed a written statement denying negligence.

The 3rd respondent also denied rash and negligent driving by the applicant, stating the accident was due to the motorcycle driver's fault and that the applicant drove with care and caution.

The MACT, by Annexure A2 award dated April 21, 2021, allowed the OP(MV) and ordered a sum of Rs. 1,10,200/- with 8% interest to be paid by the 1st respondent therein (3rd respondent in the present OA).

Subsequently, the 3rd respondent directed the applicant to remit the compensation.

The applicant denied liability for the compensation.

Disciplinary proceedings were initiated under Rule 16 of CCS (CCA) Rules, 1965.

The disciplinary proceedings were later dropped.

Fresh disciplinary proceedings were initiated.

These fresh proceedings culminated in Annexure A10, which ordered recovery of Rs. 1,76,626/- from the applicant's pay and terminal benefits.

The applicant was later acquitted in the criminal case related to the accident by the Magistrate court through Annexure A12 judgment dated March 27, 2023.

1. Whether the disciplinary proceedings and the recovery order are vitiated due to a lack of proper application of mind regarding the necessity of an inquiry under Rule 16(b) of CCS (CCA) Rules, 1965.

2. Whether the recovery of the award amount from the applicant's terminal benefits is permissible under Rule 67 of CCS (Pension) Rules, 2021.

3. Whether the Department is estopped from taking a diametrically opposite stand in disciplinary proceedings compared to its defence before the MACT regarding the applicant's negligence.

4. Whether the disciplinary authority was justified in relying solely on the MACT award and without independent evidence to conclude the applicant was rash and negligent.

The court primarily applied Rule 16(b) of the CCS (CCA) Rules, 1965, which mandates an inquiry when the disciplinary authority deems it necessary, requiring application of mind.

It also considered Rule 67 of the CCS (Pension) Rules, 2021, regarding the recovery of "Government dues" from retirement gratuity, outlining the specific types of dues that can be adjusted.

The principle of estoppel was applied, questioning whether a party can take contradictory positions in different legal proceedings involving the same facts, with reference to the Karnataka High Court's ruling in *The Karnataka State Road Transport Corporation v. Sri Ganganna*.

The Tribunal also acknowledged the principle that acquittal in a criminal case does not automatically preclude disciplinary proceedings, citing *J. Spadigam v. State of Kerala – 1970 KHC 202*.

The Tribunal found that while Rule 16(b) of CCS (CCA) Rules, 1965 requires an application of mind regarding the necessity of an inquiry, the absence of a separate speaking order itself does not vitiate the proceedings if such consideration was made.

However, the disciplinary authority's decision relied solely on the Annexure A2 MACT award, which largely presumed rashness and negligence based on the police's final report and wound certificate, without independent evidence adduced before the MACT.

The Tribunal determined that the MACT’s presumption of *res ipsa loquitur* for fixing liability is not a valid parameter for evaluation in departmental inquiries, which require substantiation through reliable evidence.

Crucially, the Tribunal concluded that the Department was estopped from taking a contradictory stand in the disciplinary proceedings (alleging negligence) compared to its defence before the MACT (claiming the driver drove carefully).

Citing *Sri Ganganna*'s case, the Tribunal emphasized that this contradictory stance on a pure question of fact makes the disciplinary action unsustainable, noting that, unlike in the Madras High Court case, the driver was a party to the MACT proceedings in Kerala.

Furthermore, the amount sought to be recovered did not fall under the definition of "Government dues" as contemplated in Rule 67(3) of CCS (Pension) Rules, 2021, thereby rendering recovery from terminal benefits unsustainable.

The subsequent acquittal of the applicant by the Magistrate court, though not solely relied upon, served to supplement the Tribunal's findings that the disciplinary authority's conclusion was based on no evidence.

It held that the conclusion reached by the disciplinary authority for imposing a penalty on the applicant was based on no evidence and was legally unsustainable.

It specifically ruled that the decision to recover the amount from the retirement gratuity was not sustainable under Rule 67 of CCS (Pension) Rules, 2021.

The Tribunal also found that the Department was estopped from taking diametrically opposite stands in inter-parte proceedings regarding the applicant's negligence.

Accordingly, Annexure A3 was set aside, and it was ordered that the amount recovered from the applicant and the amount withheld from DCRG (Death-cum-Retirement Gratuity) be returned to him with statutory interest within two months, failing which it would carry 8% interest until payment.