Madras High Court
M. Arasu vs The Senior Regional Manager, Tamil Nadu ... on 1 October, 1997
Equivalent citations: (1998)2MLJ461
Author: P. Sathasivam
Bench: P. Sathasivam
ORDER P. Sathasivam, J.
1. The amended prayer in the writ petition is as follows:
To issue a writ of certiorari or order or direction in the nature of writ calling for the records relating to order of dismissal passed in Rc. No. U2/45373/86, dated 8.3.1986 on the file of the 1st respondent and Rc. No. U2/45373/80, dated 8.3.1988 on the file of the 1st respondent as confirmed by the order of the second respondent dated 11.7.1988 bearing Ref. No. G1/44930/88. Amendment carried out as per order of court dated 19.8.1997 in W.M.P. No. 19650 of 1997.
2. The case of the petitioner is briefly stated hereunder:
According to the petitioner, he joined as Bill Clerk in the Tamil Nadu Civil Supplies Corporation, Madras in the year 1977. After completion of the probation period, his service was confirmed by the competent authority in the year 1982. While so, on 3.12.1996 some charges were framed against the petitioner and the same was served on him on 11.12.1986 stating that short in remittance and collection of money to the bank. Three charges have been framed against the petitioner. The petitioner submitted his explanation on 6.4.1987 and thereafter an enquiry was conducted and the enquiry officer erroneously found that all the charges were proved against the petitioner. There after on 15.9.1987 provisional conclusion notice for dismissal was issued to the petitioner for which the petitioner submitted proper explanation. However, the first respondent has passed an order of dismissal against the petitioner. Thereafter he preferred an appeal to the second respondent. The second respondent also by an order dated 11.7.1988 dismissed the appeal and confirmed the order of dismissal passed by the first respondent. Aggrieved by the orders of the respondents 1 and 2, the petitioner has filed the present writ petition as stated above.
3. On behalf of the respondents, counter-affidavit has been filed by the first respondent disputing various averments made by the petitioner. In the counter-affidavit, they have enumerated various punishments meted out by the petitioner. It is contended that after giving proper opportunity to the petitioner, an enquiry was conducted in respect of the 3 charges framed against the petitioner. On the basis of the Enquiry Report, after giving one more opportunity to the petitioner, the original authority imposed a punishment of dismissal from service which was confirmed by the appellate authority. It is also reiterated that since the petitioner was involved in many more cases earlier to the incident in dispute, the disciplinary authority imposed service punishment namely dismissal from service. Inasmuch as there is no infirmity in the orders of the respondents 1 and 2 they prayed for dismissal of the same.
4. In the light of the above pleadings. I have heard Mr. R. Muthukumarasami, learned Counsel for the petitioner and Mr. N. Muthusamy, learned Counsel, for the respondents.
5. The learned Counsel for the petitioner raised the following submissions:
(1) The charge memo issued by the Manager is contrary to regulation.
(2) In the light of the regulation No. 2 the impugned order of the Senior Manager cannot be sustained.
(3) Inasmuch as the disciplinary authority has taken into consideration the previous record of the petitioner without giving an opportunity to the petitioner, the entire proceedings including the punishment of dismissal cannot be sustained.
(4) Considering the charges made against the petitioner, the punishment of dismissal is disproportionate to the charges. Accordingly the order of dismissal is liable to be set aside.
On the other hand the learned Counsel for the respondent submitted that as per the service rules of the Tamil Nadu Civil Supplies Corporation, the order passed by the Senior Regional Manager is perfectly in order. He also submitted that the General Manager alone is competent to dispose of the appeal and hence the order of the appellate authority is also in order. He further submitted that since the petitioner was given an opportunity with regard to previous offence, the order of dismissal considering the grave charge is perfectly in order and in accordance with the service rules. I have considered the rival submissions.
6. The learned Counsel for the petitioner relying on Tamil Nadu Civil Supplies Corporation's Employees Service Regulations, 1989 which came into force on 27.6.1990 submitted that the charge memo issued by the Manager and the ultimate order passed by him is contrary to Regulation No. 2. Inasmuch as the enquiry as well as the impugned orders were passed prior to 27.6.1990, the said service regulations relied on by the learned Counsel for the petitioner are not applicable to our case. As rightly brought to my notice by the learned Counsel for the respondents as per the relevant service rules of Tamil Nadu Civil Supplies Corporation which came into force from 1.6.1973 alone are applicable. As per the said service rules, the petitioner is the Clause 4 employee and as per Annexure - 5 to the said rules, the Regional Manager is the competent authority so far as appointments in the region are concerned or the General Manager in the case of appointments in the Head Office are concerned and hence and hence the charges framed by the Regional Manager and the ultimate order passed by him is certainly in accordance with the regulation as mentioned above. Hence, the first 2 contentions made by the learned Counsel for the petitioner cannot be countenanced.
7. Regarding the other two submissions first I shall consider whether the punishment imposed by the first respondent is mainly based on previous record. In this regard the learned Counsel for the petitioner brought to my notice, the second show cause notice dated 15.9.1987 i.e., provisional conclusion notice for dismissal wherein it is stated as follows:
It is proved that he is a habitual offender and he has committed serious irregularities one by one during his period of service. His continuance in service of this Corporation will pave a way to deterioration of smooth functioning of the Public Distribution System. He is highly misconduct and irregular in his service. He is not fit to hold any responsible post in public service.
It is the contention of the learned Counsel for the petitioner that even though the disciplinary authority has considered the earlier record of the petitioner by stating that he is an "habitual offender", no particulars were furnished by him in order to contest those incidents or offences by the delinquent officer. In this regard he has very much relied on the decision of the Apex court reported in State of Mysore v. Mancha Gowda . The following conclusion of their Lordships in the said decision is very much relevant for our case and hence the same is extracted:
Under Article 311(2) of the Constitution, as interpreted by this Court, a Government servant must have a reasonable opportunity not only to prove that he is not guilty of the charges levelled against him but also to establish that the punishment proposed to be imposed is either not called for or excessive. The said opportunity is to be a reasonable opportunity and, therefore, it is necessary that the Government servant must be told of the grounds on which it is proposed to take such action: see the decision of this Court in the State of Assam v. Bimal Kumar Pandid Civil Appeal No. 832 of 1962 dated 12.2.1963 : . If the grounds are not given in the notice, it would be well nigh impossible for him to predicate what is operating on the mind of the authority concerned in proposing a particular punishment: he would not be in a position to explain why he does not deserve any punishment at all or that the punishment proposed is excessive. If the proposed punishment was mainly based upon the previous record of a Government servant and that was not disclosed in the notice, it would mean that the main reason for the proposed punishment was withheld from the knowledge of the Government servant. It would be no answer to suggest that every Government servant must have had knowledge of the fact that his past record would necessarily be taken into consideration by the Government in inflicting punishment on him; nor would it be an adequate answer to say that he knew as a matter of fact that the earlier punishments were imposed on him or that he knew of his past record. This contention misses the real point, namely, that, what the Government servant is entitled to is not the knowledge of certain facts but the fact that those facts will be taken into consideration by the Government in inflicting punishment on him. It is not possible for him to know what period of his past record or what acts or omissions of his in a particular period would be considered. If that fact was brought to his notice, he might explain that he had no knowledge of the remarks of his superior officer that he had adequate explanation to offer for the alleged remarks or that his conduct subsequent to the remarks had been exemplary or at any rate approved by the superior officers. Even if the authority concerned took into consideration only the facts for which he was punished, it would be open to him to put forward before the said authority many mitigating circumstances or some other explanation why those punishments were given to him or that subsequent to the punishments he had served to the satisfaction of the authorities concerned till the time of the present enquiry. He may have many other explanations. The point is not whether his explanation would be acceptable, but whether he has been given an opportunity to given his explanation. We cannot accept the doctrine of "Presumptive knowledge" or that of "Purposeless enquiry", as their acceptance will be subversive of the principle of "reasonable opportunity". We, therefore, hold that it is incumbent upon the authority to give the Government servant at the second stage reasonable opportunity to show cause against the proposed punishment and if the proposed punishment is also based on his previous punishments or his previous bad record, this should be included in the second notice so that he may be able to give an explanation.
8. In the light of the said decision, it is seen that as already stated in the provisional conclusion notice for dismissal the first respondent has considered "he is an habitual offender" and "he has committed serious irregularities one by one during his period of service", without providing opportunities or details. In other words, the earlier commissions or omissions or violations or punishments have not been specifically disclosed in the said show cause notice. On the other hand in the impugned order dated 8.3.1988 dismissing the petitioner from service at page '2', the first respondent has enumerated various offences and punishment" incurred by the petitioner. He has catalogued nearly about 7 earlier punishments and which particulars have not been disclosed in the second show cause notice dated 15.9.1997. Hence the decision cited supra by the learned Counsel for the petitioner is directly applicable to the present case. Accordingly, the conclusion in so far as punishment arrived by the first respondent without disclosing the particulars regarding previous records in the second show cause notice itself is fatal to the impugned order passed by the first respondent.
9. Regarding the other contention namely the punishment of dismissal from service is disproportionate to the proved charges or misconduct, the learned Counsel for the petitioner relied on the decision of the Apex Court reported in Ram Kishan v. O.I. . A perusal of the said decision shows that if the imposition of punishment of dismissal from service is disproportionate to the misconduct or charges made against the delinquent, it is open to this Court to remit the matter to the original authority for passing appropriate orders with regard to punishment or in an appropriate case it is open to this Court to pass a suitable punishment in accordance with the provisions applicable to the delinquent.
10. Again regarding the power of this Court to interfere in such matters, the learned Counsel brought to my notice another decision of the Apex Court reported in B.C. Chaturvedi v. O.I. , wherein it is stated as follows:
18...The High Court/Tribunal, while exercising the power of judicial review cannot normally substitute its own conclusion on penalty and impose some other penalty. If the punishment imposed by the disciplinary authority or the appellate authority shocks the conscience of the High Court/Tribunal, it would appropriately mould the relief, either directing the disciplinary/appellate authority to reconsider the penalty imposed or to shorten the litigation. It may itself, in exceptional and rare cases, impose appropriate punishment with cogent reasons in support thereof.
I have already extracted the charges made against the petitioner. Even though the enquiry officer has held that all the charges were proved and it is brought to my notice that with regard to the first charge namely for short remittance of Rs. 400 admittedly the petitioner had paid penal interest at Rs. 2 per day Rs. 100 for 105 days i.e., 1.7.1986 to 13.10.1986. In other words, for the short remittance of Rs. 400 he had paid penalty of Rs. 840 towards interest. Likewise, for the short remittance of Rs. 1,000 on 5.7.1986, the petitioner had remitted Rs. 1,500 on 30.7.1986 including Rs. 500 towards penal interest for 25 days at Rs. 2 per day Rs. 100. Another short remittance is only Rs. 14.40. It is admitted by the respondents that the petitioner had remitted the entire amount with penal interest at Rs. 2 per day per Rs. 100. In other words, by payment of penal interest the petitioner had not caused any loss to the respondents-Corporation. In this regard it is worthwhile to mention the decision of the Apex Court reported in S.C. Ser.Law Judgments Vol. 11, 320. In that case it is held that the advance amount which was not refunded in time where it was recovered by withholding the salary of a highly placed officer can not be termed as unbecoming of a public servant.
11. I am not saying that since the petitioner had remitted the "short remittance" with penalty would exonerate or wipe out completely from taking departmental action. However, the said circumstance could be taken note of while imposing appropriate punishment, I have already expressed that the respondents committed an error in not disclosing the details or particulars regarding his past record or punishments in the second show cause notice itself when the same has been considered by the disciplinary authority. I have also observed that in the light of the various penalties namely minor and major punishments in Rule 16 of the service rule of Tamil Nadu Civil Supplies Corporation applicable at the relevant point of time that the disciplinary authority could have imposed appropriate punishment proportionate to the misconduct charges made against the petitioner. I have already mentioned the decision of the Apex Court that if the punishment imposed by the disciplinary authority shocks the conscience of this Court, it would appropriately mould the relief either directing the disciplinary authority to reconsider the penalty imposed or to shorten the litigation, it may itself, in exceptional and rare case impose appropriate punishment with congent reasons in support thereof. I have already given my reasons how the impugned order is liable to be set aside.
12. Under these circumstances, I pass the following order:
(1) The writ petition is allowed.
(2) The orders of the respondents 1 and 2 are quashed.
(3) The petitioner is entitled to be reinstated with all monetary benefits.
(4) The respondents are at liberty to proceed against the petitioner with regard to quantum of punishment, if they so desire in accordance with law and as per the procedure indicated above.