Madras High Court
A.Subramani vs Principal Secretary To Government on 21 January, 2013
Author: R. Sudhakar
Bench: R. Sudhakar
IN THE COURT OF JUDICATURE AT MADRAS DATED 21.1.2013 CORAM THE HONOURABLE MR. JUSTICE R. SUDHAKAR W.P.No.11146 of 2011 A.Subramani, ... Petitioner vs. 1.Principal Secretary to Government, Home (Tr.II-A) Department, Secretariat, Chennai-9. 2.The Principal Secretary/ Transport Commissioner, Chepauk, Chennai-5. ... Respondents Writ Petition is filed under Article 226 of the Constitution of India praying to issue a Writ of Certiorarified Mandamus, to call for the records pertaining to the order passed by the second respondent in his R.No.50179/VB1/2004 dated 18.11.2009 imposing the punishment of removal from service and the consequential order of the first respondent passed in G.O.(D)No.307, Home (Tr.II-A) Department, dated 30.3.2011 confirming the punishment and quash the same and consequently direct the respondents to reinstate the petitioner back in service with all service and monetary benefits. For Petitioner : Mr.Ravi Shanmugam, For Respondents : Mr.N.Srinivasan, Additional Government Pleader ----- O R D E R
This writ petition is filed praying to issue a Writ of Certiorarified Mandamus, to call for the records pertaining to the order passed by the second respondent in his R.No.50179/VB1/2004 dated 18.11.2009 imposing the punishment of removal from service and the consequential order of the first respondent passed in G.O.(D)No.307, Home (Tr.II-A) Department, dated 30.3.2011 confirming the punishment and quash the same and consequently direct the respondents to reinstate the petitioner back in service with all service and monetary benefits.
2. Heard Mr.Ravi Shanmugam, learned Counsel appearing for the petitioner and Mr.N.Srinivasan, learned Additional Government Pleader appearing for the respondents.
3. The petitioner in this case while working as Junior Assistant in the Transport Department on 14.7.2004 while he was in duty in the R.T.3 counter at the Regional Transport Office, Trichy at about 12.30 pm, the Vigilance and Anti Corruption Officers conducted a surprise check and found that there was a shortfall of Rs.2,332/- in R.T.3 counter. According to the petitioner, the shortfall was due to error in collection. It is also the plea of the petitioner that the shortfall has been compensated by paying the amount to the Government Account on the next date itself. However, on 4.1.2005, charge memo under Rule 17(b) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules was issued alleging misappropriation of Government money to the tune of Rs.2,332/-. The enquiry officer hold that the charges were proved in proceedings dated 30.4.2008. After following all formalities, the Transport Commissioner passed an order on 23.10.2008 removing the petitioner from service on the allegation of proved misappropriation of Government money and that was challenged.
4. The representation dated 10.9.2008 of the petitioner to the second show-cause notice was not considered by the Transport Commissioner and therefore, the earlier order dated 23.10.2008 came to be set aside by order dated 17.12.2008 in W.P.No.27662 of 2008 and this court directed to pass fresh order on considering the petitioner's representation dated 19.9.2008. Thereafter on 18.11.2009 a final order was passed holding that the petitioner indulged in temporary misappropriation in Government money and he was removed from service. The appeal filed to the Government was rejected on 30.3.2011 in G.O.(D)No.307 Home (Tr.II-A) Department confirming the order of the Transport Commissioner and that is under challenge.
5. The counsel for the petitioner Mr.Ravi Shanmugam pleaded that the amount which is found in shortfall was not recovered or not found anywhere in the vicinity of the department. It is not a case of illegal gratification and there was no recovery from the petitioner. The shortfall is purely due to clerical mistake for which such a harsh punishment could not have been imposed. He further contended that in similar deviant conduct by other employees of the very same department, lenient view was taken by the Transport Commissioner in several proceedings mentioned hereunder:
(1) Proc.R.No.2906/VB1/2002 dated 20.6.2008 imposing punishment of stoppage of increment for a period of three years with cumulative effect upon Tmt.J.Sagaya Arokia Nayagi, Typist.
(2) Proc.R.No.2906/VB1/2002 dated 20.6.2008 imposing punishment of stoppage of increment for a period of three years with cumulative effect upon Thiru P.Boopathy, Junior Assistant.
(3) Proc.R.No.2906/VB1/2002 dated 20.6.2008 imposing punishment of stoppage of increment for a period of two years with cumulative effect upon Tmt.A.Mubarak Nisha Hussain, Junior Assistant.
(4) Proc.R.No.2906/VB1/2002 dated 20.6.2008 imposing punishment of stoppage of increment for a period of two years with cumulative effect upon Thiru K.Venkidisamy, Junior Assistant.
(5) Proc.R.No.2906/VB1/2002 dated 20.6.2008 imposing punishment of stoppage of increment for a period of two years with cumulative effect upon Thiru Kasi alias Ramanathan, Assistant.
(6) Proc.R.No.2906/VB1/2002 dated 20.6.2008 imposing punishment of stoppage of increment for a period of two years with cumulative effect upon Thiru S.S.Vasan, Assistant.
(7) Proc.R.No.2906/VB1/2002 dated 20.6.2008 imposing punishment of stoppage of increment for a period of three years with cumulative effect upon Tmt.P.Anbuselvi, Typist.
6. It is pointed out by the learned counsel for the petitioner that in some of the cases, the amount said to have been either misappropriated or loss caused to the Government is in several thousands and in one or two cases, it is above Rs.50,000/- where as in the present case, the amount is found to be only Rs.2,332/-. Therefore, the harsh punishment of the removal from service is totally inappropriate and not commensurate with the delinquency.
7. In any event, different yardstick has been used for each case as is evident from the various orders passed by the Transport Commissioner as above. The Government on its part has not applied its mind to the fact that the temporary loss has been due to clerical error and has been compensated by depositing the amount on the next date calling for lesser or lenient punishment.
8. Respondents have filed counter-affidavit reiterating the fact in the impugned order. Paras 5 and 7 reads as fallows:-
5. As regards the averments made in paragraphs 8, 9 and 10 of the affidavit, it is submitted that when the Disciplinary Authority is not satisfied with the findings of the Inquiry Officer and considers that there is a defect in the inquiry the may order for further Inquiry of the case. In the instant case, the Disciplinary Authority was not satisfied with the report of the inquiry officer since the Inquiry Officer has failed to follow the procedures laid down in the Tamil Nadu Civil Services (Discipline and Appeal) Rule and based on the witnesses, documents and records had concluded the charges as 'proved'. Hence, further enquiry was ordered in accordance with rules in this case. Therefore, the petitioner's contention in these paragraphs are contrary to the truth. 7. As records the averments made in paragraphs 15, 16, and 17 of the affidavit, it is submitted that the final orders passed by the authorities referred to in these paragraphs are not relevant to this issue. The officials referred to by the petitioner were imposed will punishment of stoppage of increment for 2 years and 3 years with cumulative effect respectively based on the gravity of the delinquencies and based on evidences and circumstances of the case. The petitioner has no locus standi to compare with the punishment awarded on par with others. The petitioner is not the authority to decide the gravity of the delinquency evidence and the circumstances under which the punishment was imposed on other persons. In obedience to the orders of the Hon'ble Court in W.P.No.27662 of 2008 dated 17.12.2008 and W.P.No.13232 of 2009 dated 15.07.2009, the second respondent have carefully and independently, considered the charges, explanation, inquiry report and the two further representations of the petitioner and passed the order of removal from service in his order dated: 18.11.2009. Therefore, there is no violation of the orders of this Hon'ble Court as contended by the petitioner.
9. At this juncture, this court is not inclined to interfere with the impugned order on the merits of the petitioner's claim. But one factor which weighs in the mind of the court to interfere with the impugned order is on the fact that there was no proceedings, like inspection, mahazar to prove that the amount in shortfall was recovered from the petitioner's possession. An explanation about the irregular entry resulting in shortage has been given and further the amount which is found to be in shortfall has been deposited on the next date. These factors along with quantum of amount said to be in shortfall could have been taken into consideration for imposing lesser punishment.
10. The Transport Commissioner in several cases thought it to impose lesser punishment of stoppage of increment, as has been done in the cases referred to above. Therefore, there appears to be non application of mind by the Government. In this regard, petitioner's counsel relies upon the decision reported in 2008(2) SCC 74 where the Apex Court held that similarly person should not be discriminated insofar as punishment is concerned. He also relies upon the decision reported in 2010(5) SCC 783 where the Apex Court held as follows:-
It is undoubtedly open for the disciplinary authority to deal with the delinquency and once charges are established to award appropriate punishment. But when the charges are same and identical in relation to one and the same incident, then to deal with the delinquents differently in the award of punishment, would be discriminatory. In this view of the matter, we see no infirmity with the impugned order requiring our interference under Article 136 of the Constitution.
11. In view of the above, this court is of the opinion that the punishment imposed in the instant case is totally inappropriate and unduly harsh and call for reconsideration. Moreso, keeping in mind the similar orders passed by the Transport Commissioner imposing punishment of stoppage of increment, this court is inclined to direct such an exercise to be taken by the second respondent in the light of the decision of the Supreme Court reported in AIR 2003 SC 1377 where the Supreme Court held as follows:-
One thing is clear that the power of interference with the quantum of punishment is extremely limited. But when relevant factors are not taken note of, which have some bearing on the quantum of punishment, certainly the court can direct re-consideration or in an appropriate case to shorten litigation, indicate the punishment to be awarded.
12. In view of the above, the impugned orders are set aside. The second respondent is directed to pass appropriate orders in the light of the observation made as above as expeditiously as possible, preferably, within a period of six weeks from the date of receipt of a copy of this order so as to enable the petitioner to be reinstated in service.
13. This writ petition is allowed as above. No costs.
21.1.2013
Index: No
Internet: Yes
ts
To
1.Principal Secretary to Government,
Home (Tr.II-A) Department,
Secretariat,
Chennai-9.
2.The Principal Secretary/
Transport Commissioner,
Chepauk,
Chennai-5.
R. SUDHAKAR,J.,
ts
Order in
W.P.No.11146 of 2011
21.1.2013