Madras High Court
N.D.Elangovan vs The Disciplinary Authority And on 5 February, 2010
Bench: Elipe Dharma Rao, M.Venugopal
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Date:05-02-2010
Coram
THE HONOURABLE Mr. JUSTICE ELIPE DHARMA RAO
AND
THE HONOURABLE Mr. JUSTICE M.VENUGOPAL
W.P.No.13800 of 2007
N.D.Elangovan .. Petitioner
vs.
The Disciplinary Authority and
The Principal District Judge
Vellore .. Respondent
Petition filed under Article 226 of the Constitution of India praying for the issuance of a writ of Certiorarified Mandamus as stated therein.
For petitioner : Mr.V.Jeevagiridharan
For Respondent : Mrs.Malarvizhi Udayakumar, Spl.G.P.
O R D E R
M.VENUGOPAL,J.
The petitioner has filed this writ petition praying for issuance of a writ of certiorarified mandamus, to call for the records of the impugned order passed by the respondent in Dis.No.11658/2006/Shr dated 28.12.2006 and to quash the same and also to direct the respondent to reinstate the petitioner in service with all the arrears of salary and attendant benefits.
2.The petitioner was appointed on compassionate grounds and joined service in the Judicial Department in the year 1987 as Office Assistant. He was promoted as Process Server, Amina and in 1988, he was promoted as Examiner of Copies and was serving in Sub Court, Gudiyatham.
3. On 2.6.2006, a Honourable Judge of this Court made a surprise inspection of the District Munsif Court, Gudiyatham at 3.30P.M., At that time, the petitioner was in District Munsif Court, to bring the "B" Register. When he saw the Honourable Judge, he opened the chamber and the Honourable Judge smelt some odour emanating from the chamber of District Munsif and made enquiries with him about it. He replied that the odour was coming from nearby drainage. His Lordship sat for five minutes in the chamber, thereafter left the campus.
4. He was issued with an order of suspension on 6.6.2006 with an allegation against the petitioner that he attended the Court under the influence of liquor during office hours, when an Honourable Judge of this Court made a surprise inspection on 2.6.2006 at 3.30P.M.. Later on 20.6.2006, he was issued with a charge memo under Rule 17(b) of the Tamil Nadu Civil Service Rules, 1973. He submitted his explanation on 26.6.2006 itself explaining his innocence. However, a Departmental Enquiry was conducted by the Enquiry Officer ie., Subordinate Judge, Gudiyatham against the petitioner and a report was submitted to the Respondent/Disciplinary authority.
5.It is the stand of the petitioner that before the Enquiry Officer, the Junior Bailiff N.Mani, was examined as witness and in his evidence, he deposed that the odour of alcohol was smelt on the petitioner and that he made a suggestion to the witness N.Mani (Junior Bailiff) that the Medicine"digitalis' which he consumed on that day smelt such an odour, but the witness stated that it was the odour of alcohol and not that of the medicine and the Enquiry Officer, without appreciating the fact that the medicine itself contained alcohol, submitted a report to the respondent holding that the charges were proved.
6.The learned counsel for the petitioner before this Court submits that the petitioner submitted his further representation on the findings of the Enquiry Officer in which the petitioner had stated that he consumed medicine "Digitalis' on the day of occurrence and that had emanated the smell of alcohol but his explanation was not accepted and therefore, the Respondent/Disciplinary authority passed the impugned order of dismissing the petitioner from service on 28.12.2006.
7.Continuing further, the learned counsel for the petitioner submits that there was no basic complaint against the petitioner before the Enquiry Officer and also that the copy of such complaint was not furnished to the petitioner and without any basic complaint, framing of charges and proceeding with the Departmental Enquiry against the petitioner was not sustainable in the eye of law and the entire proceedings are liable to be quashed for want of basic complaint and service of the same . As a matter of fact, the findings of the Enquiry Officer, was based on only assumptions and presumptions and also that inasmuch as the matter was earlier complained by the Honourable Judge of this court, the Enquiry Officer and the respondent/Disciplinary Authority dealt with the case in a predetermined and prejudiced manner and the Departmental Witness N.Mani was not an expert to differentiate between the alcohol smell emanating from liquor and the medicine"Digitalis" and therefore placing reliance on his evidence and arriving at a finding without any scientific basis is not legally valid and there was no ground to prove that the petitioner was under the influence of liquor and that the impugned order was passed mechanically without appreciating the evidence properly and the punishment awarded was disproportionate to the charge proved and therefore the impugned order is liable to be quashed.
8.The plea of the respondent/Disciplinary authority was that the official memorandum in Roc No.2743-A/2006/03 dated 6.6.2006 was received from this Court with a direction to place the petitioner (Examiner of Copies, Sub Court,Gudiyatham, Vellore District) under suspension for having attended the Court under the influence of liquor during office hours,when the Honourable Judge of this Court made a surprise inspection of the District Munsif Court, Gudiyatham on 2.6.2006 at 3.00P.M., pending contemplation of enquiry into his conduct and that the petitioner was kept under suspension with immediate effects as per the order of the Principal District Judge, Vellore/Disciplinary authority.
9. Moreover,the respondent/Disciplinary Authority, by means of the official memorandum dated 12.6.2006, directed the Subordinate Judge, Gudiyatham to initiate disciplinary proceedings against the petitioner and the Sub Judge, Gudiyatham initiated disciplinary proceedings against the petitioner by framing charge under Rule 17(b) of the T.N.C..S(D &A) Rules 1973 on 20.6.2006 and the petitioner in his written statement has stated that he had not consumed any alcohol but bad odour emanated from the drainage nearby the chamber of District Munsif Court, Gudiyatham. But during the enquiry, the petitioner took the defence that the odour was due to the medicine "Digitalis" consumed by him on 2.6.2006 and the Enquiry Officer viz., the Subordinate Judge, Gudiyatham in his findings dated 1.8.2006 held that the charge against the petitioner/delinquent was proved as per Rules 17(b) of T.N.C.S.(D&A) Rules 1973.
10. The respondent/Disciplinary authority, accepted the findings of the Enquiry Officer and provided an opportunity to the petitioner/delinquent by means of a show cause notice dated 22.8.2006 to submit further representation about the findings of the Enquiry Officer and the petitioner appeared in person before the Principal District Judge, Vellore on 4.9.2006 and gave his written representation stated that he was taking Ayurvedic medicine "Digitalis" on that day ie., at the time of surprise inspection made by the Honourable Judge of this Court to the District Munsif Court, Gudiyatham on 2.6.2006 at 3.30P.M., and prayed for permission to join duty and the Disciplinary Authority after considering the representation submitted by the petitioner, imposed the punishment of 'Dismissal from Service' as per Rule 8(VIII) of T.N.C.S.(D &A) Rules 1973 on 28.12.2006 and served the said order of dismissal on the petitioner on 29.12.2006.
11. The first respondent/Disciplinary authority by his order in Dis.No.4752/2006 Shr. dated 6.6.2006 placed the petitioner under suspension in larger interest of the public and also the suspension order was forwarded to the Subordinate Judge, Gudiyatham for causing service on the petitioner. The served copy of the suspension order on the petitioner was intimated to the respondent/Disciplinary Authority by the Subordinate Judge, Gudiyatham in Dis. No.750/2006 dated 6.6.2006. The respondent, as per the official memorandum in Dis.No.4931/2006 Shr. dated 12.6.2006 directed the Subordinate Judge, Gudiyatham to initiate disciplinary proceedings against the petitioner(Examiner of copies of Sub Court, Gudiyatham) and to submit his report within a month's time.
12. The Enquiry Officer, viz., the Subordinate Judge, Gudiyatham, conducted the domestic enquiry against the petitioner as directed and submitted his findings on 1.8.2006 by placing reliance on the evidence of departmental witness N.Mani, Junior Bailiff, that the petitioner was smelling liquor and he was under influence of alcohol and also the observation of the Honourable Judge of this court that the petitioner was under the influence of liquor and held that the contention of the delinquent/the petitioner that he was under the influence of ayurvedic medicine 'digitalis' and not under the influence of liquor was not accepted and found that the charge was proved against the petitioner.
13. At this stage, we deem it appropriate to extract Rule 20 of The Tamil Nadu Government Servants' Conduct Rules,1973 which speaks of 'Integrity and Devotion to Duty' and the same runs as follows:
"(1) Every member of the service shall at all times maintain absolute integrity and devotion to duty and shall do nothing which is unbecoming of a member of the service.
(2) Every member of the service shall take all possible steps to ensure integrity and devotion to duty by all Government servants for the time being under his control and authority.
(3) i) No Government servant shall, in the performance of his official duties or in the exercise of powers conferred on him, act otherwise than in his best Judgment except when he is acting under the direction of his official superior.
(ii) The direction of the official superior shall ordinarily be in writing. Oral directions to subordinates shall be avoided. Where the issue of oral direction becomes unavoidable the official superior shall confirm it in writing immediately thereafter.
(iii) A Government servant who has received the oral directions from his official superior shall seek confirmation of the same in writing as early as possible, where upon it shall be the duty of the official superior to confirm the direction in writing.
(iv) No Government servant shall, in the performance of his official duties or in the exercise of powers conferred on him evade the responsibility devolving legitimately on him and seek instruction from, or approval, of a superior authority when such instruction or approval is not necessary in the scheme of distribution of powers and responsibilities.
Explanation:- A Government servant who habitually fails to perform a task assigned to him within the time set for the purpose and with the quality of performance expected of him shall be deemed to be lacking in devotion to duty within the meaning of sub rule(1)."
From the above, Sub Rule 1 of Rule 20, it is evident that every member of the service shall, at all times-
(i) maintain absolute integrity;(ii) Maintain devotion to duty ; and
(iii) do nothing which is unbecoming of a member of the service and therefore, these are very essential characters expected from the employees in regard to a code of conduct.
14.Rule 21 of the Tamil Nadu Government Servants' Conduct Rules speaks of a Government Servant not to be found drunk while attending office etc., and for better appreciation, the same is extracted as hereunder:-
"A Government servant-
(a) shall strictly abide by any law relating to consumption of liquor or intoxicating drugs in force in any area in which he may happen to be for the time being;
(b) shall not be found drunk or under the influence of liquor while attending office or appearing in a public place.' The word' influence of intoxicating drink/liquor',or 'state of intoxication' are of two different stages of inebriations and the 'state of intoxication' is a grave stage than being 'under influence of drink' The stage of intoxication is the stage whereby the individual loses control over his physical and mental faculties. Significantly, the appearance of a Government servant in such condition in a public place has been prohibited by Rule 21(b).
15. Admittedly,the term 'misconduct' receives its meaning from the context, the delinquency in its performance and its effect on the discipline and the nature of the duty. It may involve moral turpitude; it must be improper or wrong or unlawful behaviour; wilful in character;forbidden act; a transgression of established and definite rule of action or code of conduct but not a mere error of judgment, carelessness or negligence in performance of the duty; In fact, the act complained of bears forbidden quality or character . The scope of misconduct has to be construed with reference to the subject matter and the context wherein the word occurs, of course, regard must be duly given to the scope of the statute and the public purpose it aims to serve/achieve.
16. According to the Oxford Dictionary 'Integrity' means the quality of being honest and having strong moral principles. It speaks of a state of being whole. The term 'integrity' is further qualified here by the word 'absolute' which means 'total', 'complete'. The word 'integrity' is 'integer' (LAT) which means whole, untouched and as such there is no reconciliatory with this conduct of Homo-Sapien quality of integrity in respect of the Government servants. After all, if, a public servant is required to maintain integrity and be devoted to duty, he is merely asked to keep within the limits of that administrative decency in a civilised Administration.
17. The 'Devotion to duty' means a faithful service and as a matter of fact of devotion to duty seems to have been employed as something opposed to indifference to duty or easy-going or light hearted approach to duty. The word' unbecoming conduct' has not been defined in the Rules . As per Dictionary meaning, the term 'unbecoming' means 'unsuitable', ' undecorous', or 'improper'. In short, by means of ordinary Dictionary meaning of the word, a conduct which is indecent, reprehensible or abominable involving moral though not legal lapses, is conduct unbecoming of a Government servant .
18. Any conduct which is not appropriate or befitting the position of a Government Servant may be considered as unbecoming conduct. What is unbecoming , can always be looked into having regard to the totality of conduct. Some of the appreciated norms of conduct are Morality, Decency, Decorum and Propriety becoming of Government Servants. A fall from such standard will render an act unbecoming of Government servants in our considered opinion.
19. It is an exigency of circumstance that alone can determine the conduct becoming or unbecoming of a Government servant to do or not to do. The part pertaining to unbecomingness is to be judged from a robust common sense point of view on a reasonable standard. The issue of 'what is unbecoming' is a relative term.
20. Before the Enquiry Officer, the petitioner/Delinquent examined himself as witness and in his evidence, he deposed that on 2.6.2006 at 3.30P.M., he was on duty in the District Munsif's Court, Gudiyatham and he came to the Court to bring "B" Register and at that time, the Honourable Judge of this Court made a surprise visit of District Munsif Court, Gudiyatham and he opened the chamber of the District Munsif and that the Honourable Judge went inside the chamber and during that time, it was wrong to state that he was under the influence of liquor and that he took "Digitalis" Ayurvedic medicine at 2.10P.M. and only that smell emanated from him.
21. Before the Enquiry Officer,ie., the Subordinate Judge, Gudiyatham, it is the evidence of D.W.1(Departmental Witness) Mani (Junior Bailiff) that he was on duty in the District Munsif's Court, Gudiyatham on 2.6.2006 and at about 3.30 P.M. on the said day, an Honourable Judge of this Court made a surprise inspection of District Munsif Court, Gudiyatham and at that time, the petitioner/delinquent was on duty in that Court and opened the chamber and His Lordship went inside the Court and delinquent opened the chamber door and after five minutes, the Honourable Judge of this Court came outside along with the delinquent. Further, it is the evidence of D.W.1 in his cross examination that it is correct to state that in front of the Court's building, there is a drainage and it is also correct to state that quite often, there will be a bad odour from the said drainage and to a suggestion that the medicine smell of "Digitalis" came from the delinquent, the same has been denied and after smelling the "Digitalis" medicine shown by the delinquent's counsel, he has replied that it is incorrect to state that the said smell of 'Digitalis" has come from the delinquent.
22. Admittedly, in the present case on hand, the petitioner was not subjected to medical examination either of his urine or blood and no steps, for conducting medical examination, were taken by the authorities concerned. But, in the present case, except the evidence of petitioner/delinquent,no one was examined and no further witness was examined on his side,to substantiate his version that he took an ayurvedic medicine by name Digitalis at about 2.00P.M., in the afternoon on 2.6.2006, when he was in duty at the District Munsif's Court, Gudiyatham. The allegation against the petitioner was that an alcohol smell emanated from him. Though this was stoutly denied on the side of the petitioner/delinquent, the Department Witness D.W.1 Mani (Junior Bailiff) in his evidence had categorically stated that no smell of "Digitalis" medicine came from the delinquent and also when he smelt the said medicine at the instance of the petitioner's advocate, the said "Digitalis" smell had not emanated. Therefore, the evidence of Departmental Witness Mani was very specific to the effect that the alcoholic smell emanated from the petitioner/delinquent and not "Digitali" an Ayurvedic medicine. Though no medical examination was conducted by the concerned authorities on the petitioner/delinquent to find out whether he had consumed liquor on 2.6.2006. In the departmental enquiry conducted on the petitioner/delinquent, the Departmental Witness Mani had specifically stated that from the delinquent, alcoholic smell emanated and not a smell of ayurvedic medicine viz., "Digitalis" and therefore, the allegation against the petitioner that he attended the District Munsif Court on 2.6.2006 at 3.30P.M., under the influence of liquor during office hours stands proved.
23. Though the plea on the side of the petitioner/delinquent was taken to the effect that there was no basic complaint against the petitioner and before the Enquiry Officer or copy of any such complaint was supplied to him for the allegation that he was found to have attended the District Munsif Court, Gudiyatham on 2.6.2006 at 3.30P.M., under the influence of liquor during office hours when the Honourable Judge of this Court made a surprise inspection/visit and in view of the fact that this Court's Official memorandum in Roc No.2743/A/2006 dated 6.6.2006 had directed the Principal District Judge, Gudiyatham to place the petitioner under suspension pending contemplation of enquiry into his conduct etc, later, he was suspended as per order of the respondent in Dis. No.4752/2006 /Shr dated 6.6.2006 in larger public interest, the question of supply of any basic complaint to the petitioner does not arise and because of the fact that the Service Rules do provide that an appointing authority/appropriate authority has ample power to place an employee under suspension for the nature of misconduct committed by him, when departmental action against him is contemplated or pending and placing an employee under suspension, is the discretion of the authority and when the discretion in the instant case was exercised properly for good and sufficient reason and apart from the above, when the charge sheet mentions the substance of imputation of misconduct or misbehaviour constituting a distinct charge, the question of supply of any basic complaint to the petitioner does not arise for the added reason, the petitioner knew the nature of accusation and the names of the witnesses, who were to be examined since he was already informed accordingly. In this regard, we are of the considered view that there was no violation of any principles of natural justice.
24. The authority, who imposes a penalty performs a duty,he should muster all his faculties in discharging his duty. He should not only be fair but shall also look to be fair and just. If, the conduct of the employee warrants imposition of penalty, what that should be, is the question , he must address to himself. The punishment should not suffer from any bias, it should not be retaliatory or expose any vindictive attitude towards the charged employee for his misdemeanour/misconduct . The penalty ,however, should meet the misconduct in a manner that is just, proper and not an extreme one. As a matter of fact, illegality,irrationality and procedural impropriety are some of the good grounds for judicial review. Imposition of an appropriate penalty proves the finesse of the Disciplinary Authority where it is missing the Court has to do it.
25. It is to be noted that the disciplinary rules provide for graded penalties for the purpose and only the required penalty be imposed to reclaim an employees' services. The penalty of dismissal is an extreme penalty that can be imposed to meet extreme misconduct involving the moral turpitude and extreme insubordination where in public interest, it is considered just and proper to impose it.
26. It is true that a Disciplinary Authority being the Fact Finding Authority has exclusive power to consider the evidence with a view to maintain discipline. He is vested discretion to impose appropriate punishment, keeping in view the magnitude or gravity of the misconduct.
27. Generally speaking, this Court, while exercising power of judicial review cannot generally/normally substitute its own conclusion of penalty and impose some other penalty. However, when the punishment imposed by the disciplinary authority or appellate authority shocks the conscience of this Court, it could in an appropriate case mould the relief, either directing the Disciplinary Authority/Appellate Authority to reconsider the penalty imposed or to shorten the litigation, this Court itself in exceptional and rare cases could impose proper punishment with cogent reasons thereto.
28. As a matter of fact, the judicial review is not an appeal from a decision but a review of the manner in which the decision has been made. It is not directed to the decision, but to the decision making process. The powers of Judicial review are meant to ensure that an individual receives a fair treatment and not to ensure that the conclusion with the authority reaches is necessarily correct in the eye of the law. A Court of law always has got necessary powers of Judicial review in matter of disproportionate penalty. Proportionality is in effect a facet of the principle of reasonableness. On certain aspects even a Judicial review of fact is permissible. In short, the principle of Wednesbury is applicable.
29. In the present case on hand, the disciplinary authority viz., the Principal District Judge, Vellore had concurred with the findings of the Enquiry Officer viz., the Subordinate Judge, Gudiyatham dated 1.8.2006 that the petitioner was under the influence of liquor and the charge was proved against him.
30. The disciplinary authority viz., The Principal District Judge, Vellore in his proceedings in Dis.No.7236/2006/Shr dated 22.8.2006 issued a show cause notice to the petitioner for the purpose of making further representation on the findings of the Enquiry Officer viz., The Subordinate Judge, Gudiyatham dated 1.8.2006 and the petitioner submitted his representation dated 4.9.2006. However, the respondent/Disciplinary Authority viz. The Principal District Judge,Vellore in his final order 28.12.2006 had observed in paragraph 13 to the effect that ' though it is not relevant to take into consideration the punishments awarded to the delinquent in the earlier instance and not taken into consideration in the present enquiry it would be justifiable to stated here that the delinquent was already awarded punishments as detailed hereunder and that those punishments had no effect on the delinquent.
(i) Awarded punishment of stoppage of Annual increment for one year with cumulative effect for the violation of Rule 20 of Tamil Nadu Government Servants' Conduct Rules, 1973- Vide Final orders passed by the Subordinate Judge, Tirupattur in Dis.No.2973/92 dated 11.11.92;
(ii)awarded Censure for the delinquency committed that he has absence from duty from 8.4.1999 to 8.6.1999-vide final orders passed by the Subordinate Judge, Tirupattur in Dis.No.1062/99, dated 9.6.99;
(iii) Stoppage of increment for a period of three years with cumulative effect for the delinquency that unlawfully restraining the Car in which District Collector was travelling on 30.10.02 in a drunken mood and insulting public in the Madras-calicut Road at Ambur-vide final orders passed by the Principal District Judge, Vellore in Dis.No.3627/2005, dated 11.4.2005.
(iv) awarded punishment of stoppage of annual increment for two years without cumulative effect for stayed away from duty w.e.f.3.8.99 to 25.7.2000 at Sub Court, Tirupattur-vide final orders passed by Subordinate Judge, Tirupattur in Dis.No.2498/2006 dated 27.11.2006" and therefore came to the conclusion that showing leniency would not in any way make the delinquent to reform himself and was of the view that a major punishment should be awarded to him so that the punishment would have an impact on him and accordingly imposed the penalty of dismissal from service to meet the ends of justice.
31. What is required to be examined in a given case is whether the principles of natural justice have been violated or not has to be seen with reference to the procedure adopted by an appropriate Authority is in accordance with law or otherwise and whether the Departmental Authority has acted in good faith. It is relevant to make a mention that a fair play in action means that an employee must be put on notice and must be heard when his past punishments are taken into account by the Disciplinary Authority or even otherwise proposed to be referred to in his findings. More over, when the consideration or otherwise of the punishments place a vital part in the final orders to be passed by the disciplinary authority then it may likely to affect or affecting the civil consequences and the same must be passed only after putting the concerned employee on notice this regard by providing him hearing in the matter. If any finding of the Disciplinary Authority is passed behind the back of an employee/petitioner without following any procedure in the manner known to law, the same is not legally a valid one. In the present case on hand, the petitioner was not put on notice or heard by the respondent as to the quantum of punishment to be imposed on him. The petitioner is entitled to know at least the mind of Disciplinary Authority in his final order.
32. In the Departmental proceedings, the findings are rendered on the basis of preponderance of probabilities but, in a criminal case, the prosecution has to prove the charge beyond all reasonable doubt. Although, the choice of quantum of punishment is within the jurisdiction and discretion of the authorities, yet it must suit the offence and it should not vindictive or unduly harsh nor so disproportionate to the offence so as to shock the conscience and amount in itself to conclusive evidence of bias.
33. To avoid plurality of proceedings , this Court has enough powers under writ jurisdiction to substitute a penalty in case, it shocks its conscience.
34. As far as the present case is concerned, though the respondent, in his final order dated 28.12.2006 at paragraph 13, had stated that it was not relevant to take into consideration the punishments in the earlier instances and not taken into consideration in the present enquiry but referred to the four punishments earlier awarded to him and in paragraph 14 came to the conclusion that showing leniency towards the petitioner,would not in any way make the delinquent to reform himself etc and imposed the disproportionate penalty of dismissal from service and in our considered opinion, the same is not at all a fair and reasonable and this is an unsustainable one. In fact, the punishment of dismissal is clearly unsustainable in our considered opinion. In fact, the disproportionate penalty is a violation of Article 14 of Constitution and viewed in that perspective, we allow this writ petition and set aside the impugned order of penalty of dismissal from service imposed on the petitioner by the respondent in Dis.No.11658/2006/ Shr dated 28.12.2006 and order reinstatement of the petitioner with continuity of service without any backwages applying the principle of 'No work, No pay' during the period of his non employment and further impose a penalty of stoppage of two increments with cumulative effect . However,we direct that the period of his non employment shall be taken into account for the purpose of pensionary benefits. The respondent is directed to implement the order of this Court within a period of three weeks from the date of receipt of a copy of this order. No costs.
sg To The Disciplinary Authority and The Principal District Judge Vellore