Madras High Court
The Government Of Tamil Nadu vs R.Swaminathan on 5 November, 2013
Bench: R.Banumathi, K.Kalyanasundaram
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 05.11.2013 CORAM THE HON'BLE MRS.JUSTICE R.BANUMATHI and THE HON'BLE MR JUSTICE K.KALYANASUNDARAM W.A.No.1230 of 2012 and M.P.No.1 of 2012 1.The Government of Tamil Nadu, rep.by the Secretary to the Government, Health and Family Welfare Department, Fort St.George, Chennai-600 009 2.The Director of Medical Education, Chennai-600 010 .... Appellants vs. R.Swaminathan .. Respondent Writ appeal against the order dated 21.09.2011 made in W.P.No.4776 of 2007. For Appellants : Mr.V.R.Kamalanathan,A.G.P. For Respondent :Mr.P.Rajendran JUDGMENT
(Judgment of the Court was delivered by K.KALYANASUNDARAM,J) Aggrieved by the order dated 21.9.2011 made in W.P.No.4776 of 2007, in and by which the punishment of dismissal from service imposed on the respondent herein, was modified into one that of withholding the increment for a period of six months without cumulative effect, the Government is on appeal.
2.From the materials as disclosed, it appears, that when the respondent was working as an Assistant in Kilpauk Medical College Hostel, Chennai, the second appellant issued a charge memo framing three charges that (i)he failed to maintain proper accounts for hostel collections; (ii)failed to remit the collected amounts into the bank during 2.1.1995 to 7.6.1995 and thus he was responsible for the misappropriation of Rs.1,98,482.00; (iii)that he failed to submit day-to-day accounts for the collections and remittance to the Warden and that he violated Rule 20 of the Government Servants Conduct Rules. The respondent denied the charges and opted for an enquiry.
3.The enquiry officer held that all the charges were proved and submitted a report. The second appellant accepted the said findings and issued an order dated 15.9.2004, imposing the punishment of dismissal from service as against the respondent. The respondent preferred an appeal to the first appellant and the same was rejected on 7.12.2006 confirming the order of the second appellant.
4.Aggrieved by the order of dismissal, the respondent filed a writ petition seeking to quash the said order and to reinstate him in service with all consequential benefits contending that the enquiry was not conducted as per Rule 9-A of the Tamil Nadu Civil Services (Discipline and Appeal) Rules (herenafter referred to as the 'Rules'); that the views of the Tamil Nadu Public Service Commission was not communicated before issuing the impugned order of dismissal, that the appellate authority did not assign any reason for dismissing the appeal and the punishment imposed is discriminatory.
5.The appellants filed their counter disputing and denying the allegations made by the respondent.
6. The learned single Judge allowed the writ petition holding that there is clear violation of Rule 9-A of the Rules, the delinquent was not furnished with a copy of the views of the Commission, which amounts to violation of principles of natural justice and in awarding the punishment two other co-delinquents have been awarded with the punishment of stoppage of increment for a period of six months without cumulative effect, whereas the respondent was imposed the major punishment of dismissal from service, which is not only disproportionate, but also discriminatory.
7.Aggrieved and dissatisfied with the order of the learned single Judge, the appellants have filed this writ appeal.
8.Mr.Kamalanathan, the learned Additional Government Pleader submitted that the respondent was in-charge of the entire administration of the hostel, that he has to maintain proper day-to-day records and accounts of the hostel collections, but he failed to remit the collected amounts into the bank properly and regularly and thereby, he was responsible for the misappropriation of the entire amount. It was submitted that there is no provision in the Tamil Nadu Civil Services (Discipline and Appeal) Rules and in Tamil Nadu Public Service Commission Regulation 1994, to communicate the views of the Commission to the respondent before passing the order. He would further submit that depending upon the gravity of charges the respondent was proceeded under Rule 17(b) of the Rules and was imposed with the punishment of dismissal from service. The respondent participated in the enquiry, but he never raised any objection for conducting of such separate enquiry. It was contended that charges against the co-delinquents were different and they were differently placed and so, charge under Rule 17(a) has been initiated against them and accordingly imposed minor punishment and the respondent being in-charge of the entire administration cannot contend that he is similarly placed.
9.The learned counsel for the respondent would submit that since Rule 9-A of the Rules clearly contemplates that a common disciplinary proceedings has to be initiated against all the delinquents, the disciplinary proceedings separately taken against the respondent is in violation of the Rules. It was contended that the appellate authority has not assigned any reason for rejecting the appeal and the said order is a non-speaking one. The views obtained from the Tamil Nadu Public Service Commission, by the Government was not furnished to the respondent, which amounts to violation of principles of natural justice. The learned counsel submitted that in respect of the same and similar charges framed against the co-delinquents, namely, Wardens, disciplinary authority awarded the lesser punishment of stoppage of increment for a period of six months without cumulative effect, whereas in the case of the respondent, the major punishment of dismissal from service was imposed, which amounts to discrimination in awarding punishments. He would further submit that the learned single Judge has considered the entire aspect and allowed the writ petition, warranting no interference by this Court.
10.The perusal of the records would reveal that the respondent was incharge of the entire administration of the hostel accounts of the Kilpauk Medical College Hostel, but he failed to maintain proper accounts of the hostel and thereby he misappropriated the huge sum of Rs.1,96,482. The co-delinquents being the Supervisors were holding only additional charges as Wardens and the charge against them is that they only failed to supervise the maintenance of accounts. In view of the above nature of their work/duties, charges under Rule 17(b) of the Rules were framed against the respondent and charges under Rule 17(a) of the Rules were framed against the Wardens. Having regard to the nature of separate charges framed against the respondent and against the Wardens, the appellants had conducted enquiry separately.
11.Where more than one Government Servant of the same Department are jointly involved or whose cases are interconnected, Rule 9-A of the Tamil Nadu Public Servants (Discipline and Appeal) Rules contemplates institution of enquiry against all the delinquents together when they were charged under Rule 17(b) of the Rules. Rule 9-A of the Tamil Nadu Public Servants (Discipline and Appeal) Rules reads as under:
"Rule.9-A.In any case where more than one Government servant of the same Department are jointly involved or whose cases are interconnected, the authority competent to institute disciplinary proceedings shall be the immediate higher authority in that Department in respect of the Government servant who holds the highest post among such Government servants and the disciplinary proceedings against all of them shall be taken together. Where inquiry is to be conducted in terms of Rule 17(b), the said authority may either himself conduct the inquiry or get the inquiry conducted by an Inquiring Officer appointed by the authority competent to impose major penalty in respect of the Government servant who holds the highest post among such Government servants. The said Authority shall remit the case, at the appropriate stage, to the Authority competent to impose any of the penalties specified in Rule 8 in respect of the Government servant who holds the highest post among such Government servants in that Department for passing final orders."
12.In the case on hand, as pointed out earlier, charges against the respondent and the co-delinquents are totally different. Further the respondent, without raising any objection fully participated in the disciplinary proceedings and he has not demonstrated any prejudice due to such separate enquiry. Hence, we are of the view that there is no violation of Rule 9-A of the Rules, as contended by the respondent.
13.It is well settled that while affirming the order of the second appellant, the first appellant/appellate authority need not give elaborate reasons, but what is required is due application of his mind to the relevant facts.
14.The learned counsel for the respondent has relied on the judgments of the Hon'ble Apex Court reported in (i)2006(4) SCC 713-NARINDER MOHAN ARYA V. UNITED INDIA INSUANCE CO.LTD., AND OTHERS; (ii)2008(3) SCC 469-DIVISIONAL FOREST OFFICER, KOTHAGUDEM AND OTHERS V. MADHUSUDHAN RAO and (iii)2009(4) SCC 240-CHAIRMAN, DISCIPLINARY AUTHORITY, RNILAKSHMIBAI KSHETRIYA GRAMIN BANK V. JAGDISH SHARAN VARSHNEY AND OTHERS for the proposition that the order of the appellate authority should contain reasons for dismissing the appeal.
15.In the judgment reported in (2006)4 SCC 713 NARINDER MOHAN ARYA V. UNITED INDIA INSUANCE CO.LTD AND OTHERS, the Apex Court has held that the appellate authority, while disposing the appeal arising out of an order imposing penalties specified in Rule 23, should have considered the following points:
(a)whether the procedure prescribed in these Rules has been complied with and if not, whether such non-compliance has resulted in failure of justice;
(b)Whether the findings are justified;
(c)Whether the penalty imposed is excessive, adequate or inadequate.
and if the appellate authority is in agreement with the order of disciplinary authority, he need not pass a speaking order, but the order must show that there is proper application of mind on the part of the appellate authority with regard to the compliance of requirements of law.
16.The same view has been followed in the decisions reported in (i)2008(3) SCC-DIVISIONAL FOREST OFFICER, KOTHAGUDEM AND OTHERS V. MADHUSUDHAN RAO and 2009(4) SCC 240-CHAIRMAN, DISCIPLINARY AUTHORITY, RNILAKSHMIBAI KSHETRIYA GRAMIN BANK V. JAGDISH SHARAN VARSHNEY AND OTHERS.
17.In this case, the second appellant had elaborately considered the report of the enquiry officer and the evidence recorded during the departmental proceedings and the report of the audit party and on the basis of the relevant records, he imposed the punishment of dismissal from service. The first appellant-the appellate authority, while considering the appeal of the respondent obtained the views under Regulation 18(1)(a) of the Tamil Nadu Public Service Commission Regulations, and after examining the connected records along with the report of the Tamil Nadu Public Service Commission, rejected the appeal, which in our view, meets the requirement of law. In view of our discussion supra, we are not in agreement with the finding of the learned single Judge that the first appellant/appellate authority has not assigned any reasons in his order and accordingly, the said finding is set aside.
18.As far as the finding of the learned single Judge that the respondent has not been served with the views of the Commission before passing the order and the same is in violation of principles of natural justice is concerned, the Commission's report was communicated to the respondent along with the impugned order. There is no provision in the Service Rules or in the Tamil Nadu Public Service Commission Regulations to provide the opinion of the Commission before passing the order and as such, we are unable to endorse the said finding of the learned single Judge and the same is set aside.
19.The appellants had conducted separate enquiry against the Wardens/co-delinquents and imposed the punishment of stoppage of increment for six months without cumulative effect, but the respondent alone was imposed with the major punishment of dismissal from service, which is arbitrary. The respondent is said to have paid an amount of Rs.60,000/- on 07.6.1995. The Wardens who were in-charge have also said to have paid the amount. As such the financial loss is said to have been made good. Wardens were imposed only minor punishment of stoppage of increment. It is to be noted that respondent had put in 25 years of service (prior to suspension). In these facts and circumstances of the case, we feel that punishment of dismissal imposed on the respondent is harsh and excessive and the same is to be set aside.
20.When the punishment of dismissal from service is modified as that of stoppage of increment for six months without cumulative effect, the point then to be considered is what is the relief to be granted. Learned single Judge ordered that the period of suspension be treated as duty and respondent shall be entitled to all attendant benefits. Respondent was suspended on 20.9.1995 and order of dismissal was passed on him on 15.9.2004. During that period i.e from 20.9.1995 till 15.9.2004, the respondent was paid subsistence allowance at 75%. For a long period of more than 9 years, the respondent was not doing any work and we are of the view that for the said period from 20.9.1995 to 15.9.2004, 75% of the salary paid to the respondent would be sufficient. The respondent attained the age of superannuation on 30.4.2007. The period from 15.9.2004 till the date of superannuation i.e. on 30.4.2007, the respondent shall be deemed to be in service and that period shall be treated as leave on loss of pay. The period from 20.9.1995 till 30.4.2007 shall be taken into account for continuity of service and for calculating all other pensionary benefits, including Pay Commission.
21. In the result, the order of the learned single Judge in W.P.No.4776 of 2007 dt.21.9.2011 is modified and this writ appeal is partly allowed. The subsistence allowance at 75% paid to the respondent for the period from 20.9.1995 to 15.9.2004 is held sufficient and he is not entitled for any arrears of salary. The period from 15.9.2004 till the date of superannuation i.e. on 30.4.2007, the respondent shall be deemed to be in service and that period shall be treated as leave on loss of pay. However, the respondent is entitled to continuity of service from the date of suspension till the date of superannuation i.e. from 20.9.1995 to 30.4.2007 and the said period shall be taken into account for calculating all other pensionary benefits, including Pay Commission. However, there is no order as to costs. Consequently connected miscellaneous petition is closed.
(R.B.I.J.) (M.K.K.S.J.) 05.11.2013 msk W.A.No.1230 of 2012 R.BANUMATHI, J.
and K.KALYANASUNDARAM, J.
After we pronounced the judgment, Mr.P.Rajendran, learned counsel for the respondent submitted that some time frame may be fixed for compliance of the order.
2.Having regard to the submission, the appellants are directed to settle the Death-cum-Retirement Gratuity and other retiral benefits within a period of three months from the date of receipt of a copy of this judgment. The appellants are also directed to process the pension papers of the respondent within a period of six months from the date of receipt of a copy of this judgment.
(R.B.I.J.) (M.K.K.S.J.)
05.11.2013
mmi
R.BANUMATHI,J. and K.KALYANASUNDARAM,J
Pre-delivery judgment in
W.A.No.1230 of 2012
5 .11.2013
PRE-DELIVERY JUDGMENT
IN W.A.NO.1230 OF 2012
TO
THE HON'BLE MRS.JUSTICE R.BANUMATHI
FROM
JUSTICE K.KALYANASUNDARAM