Central Administrative Tribunal - Madras
P Kowsalya vs M/O Health And Family Welfare on 30 April, 2024
1 OA No. 961/2016 CENTRAL ADMINISTRATIVE TRIBUNAL CHENNAI BENCH QA/310/00961/2016 Dated this, the 3o%day of April Two Thousand & Twenty Four CORAM : HON'BLE MR. VARUN SINDHU KUL KAUMUDI, Member (A) HON' BLE MR.M. SWAMINATHAN, Member (J) P.Kowsalya, W/o. V. A. Sudhakaran, F4, Golden Flats, No. 88/43, Palayampillai Nagar, Ayanavaram, Chennai 600023. .... Applicant By Advocate M/s. Balan Haridas Vs. 1 Union of India, Rep by its Director General, Indian Council of Medical Research, V. Ramalingaswamy Bhavan, Ansari Nagar, New Delhi 110029. 2.The Director, 'National Institute for Research in Tuberculosis and Epidemology Unit, (Earlier Tuberculosis Research Unit), Indian Council of Medical Research, Department of Health Research, Ministry of Health and Family Welfare, No. 1, Sathyamoorthy Road, Chetpet, Chennai 600031. .... Respondents By Advocate Mr. M. Kishore Kumar, SPC CKSE 2 OA No. 961/2016 ORDER
(Pronounced by Hon'ble Mr. Varun Sindhu Kul Kaumudi, Member(A)) This OA has been filed by the applicant seeking the following relief:-
"i. To set aside the order of the 2™ respondent dated 07.01.2010 bearing No. 2563/E/2010 and the order of the 1 Respondent dated 17.09.2015 bearing No. VIG/8/2008.PART I as illegal, arbitrary and contrary to law;
il, Consequently direct the respondents to restore the pay of the applicant with due increments, pay arrears of salary and all other monetary benefits and attendant benefits;
iil. Pass such other orders or directions as this Hon'ble Tribunal think fit in the circumstances of the case. "
2. The facts of the case, as submitted by the Applicant, are as follows, in brief:-
2.1, The applicant was suspended vide order, dated 17.6.2009, and charge memo, dated 17.6.2009, was issued. In the charge memo, it was alleged, as if, the applicant, at the instance of Mnr.V. Adikesavan, the then Administrative Officer, leaked out the question paper and the answer key before the examination was conducted for filling up the posts in a project.
To the charge memo, the applicant gave her explanation, dated 29.06.2009. Thereafter, a domestic enquiry was conducted. In the enquiry, no evidence was adduced in respect of the allegations levelled against the applicant. The Enquiry Officer submitted his report, dated 30.1 1.2009, and, in that, he did 3 OA No. 961/2016 not find the applicant guilty of the allegations levelled against her. The applicant had also given her comments on the enquiry report on 11.12.2009. While so, the Disciplinary Authority, viz., the Director Incharge, imposed the punishment of reducing her pay to the minimum of the pay band for a period of 3 years with cumulative effect, while treating the period of suspension as such, by an order, dated 7.1.2010. The order stated that the applicant can prefer an appeal to the 2nd Respondent. Accordingly, the applicant preferred an appeal on 16.2.2010. The applicant received a communication, dated 19.12.2011, from the 2nd Respondent to the effect that her appeal had been kept pending till the CBI case, viz., C.C.No.6 of 2009 against V. Adikesavan and others, was finally decided by the CBI Court.
2.2. In the criminal case, the applicant was only a witness. During the pendency of C. C. No. 6 of 2009, proceedings were initiated against the applicant and punishment was imposed, though the report does not find the applicant guilty, 2.3, According to the Applicant, there is no justification for causing delay in deciding the appeal preferred by the applicant, particularly when the department did not wait for the criminal proceedings to be over against Mr. 4 OA No. 961/2016 Adikesavan and others. The Department proceeded against the applicant and imposed punishment in a most arbitrary manner without justification. Consequent to the punishment, her pay was reduced to the bottom of the pay scale and the applicant had been losing about Rs.10,000/- every month. In fact, the punishment itself was over on 17.01.2013. Even, thereafter, the applicant's increments were not paid and, further, her name was not considered for promotion as Upper Division Clerk while her juniors were already promoted. The applicant's name was kept in a sealed cover as she was undergoing punishment. Though the punishment period was over, her name was not considered for promotion.
2.4. It is further submitted that the minimum of the pay scale for LDC/Typist is Rs.5830 in the pay band of Rs.5200-20200 plus grade pay of Rs. 1900. However, while imposing the punishment, the applicant's pay was fixed at Rs.5200/-. Consequently, the applicant is suffering every month even after the punishment was over. In such circumstances the applicant made representations, dated 12.03.2012 17.12.2012, 12.06.2013, 10.02.2014, 07.08.2014, 02.03.2015 and 26.08.2015. Only after repeated representations, the 1* Respondent passed the order, dated 17.09.2015, and he revised the punishment as follows:
5 OA No. 961/2016"Revised the reduced minimum of Pay Band given in the original penalty order dated 7.1.2010 in respect of Smt. P. Kowsalya from Rs.5200/- to Rs.5830/-, which is the minimum pay for LDC/Typist in the Pay Band Rs.5200-20200"
In all other respects, the applicant's appeal was rejected. He has not considered the other contentions raised by the Applicant in the appeal.
2.5. Aggrieved, the applicant has filed this OA.
3. The grounds raised by the Applicant are as follows:-
i. The Enquiry Officer, in his report, has not found the applicant guilty of the two charges levelled against her. While so, the 2nd Respondent, without notice and without hearing, had come to a conclusion, as if the charges were proved and imposed the punishment which is in violation of the principles of natural justice. Valuable opportunity had been denied resulting in imposing the punishment by the 2nd Respondent which has been mechanically confirmed by the Ist Respondent and modified only on the ground of being too harsh.
li, The Ist charge levelled against the applicant is that she had connived with Mr. V. Adikesavan, Administrative Officer, and manipulated the records during the course of the selection process to fill up posts in the project by the TB division of DGHS, New Delhi. The Enquiry Officer has 6 OA No. 961/2016 held that whether the applications relating to Vijaya Anand, son of V. Adikesavan, and Rajaselvasekaran, son of Ramadoss, were inserted after the prescribed time limit could be ascertained only after verification of the receipt register and that the receipt register was not produced in the enquiry, as the same was seized by the CBI. Thus, from the findings of the Enquiry Officer, it will be evident that no material was placed in the enquiry to prove the Ist charge against the applicant.
iii. The 2™ charge levelled against the applicant is that she, at the behest of Mr. V. Adikesavan, the then Administrative Officer, had leaked the question paper and the answer key before the examination to some candidates. In respect of this charge also, the Enquiry Officer has not given findings that the applicant had leaked the question paper. The 2nd Respondent holds the charge by giving his own findings without any material and holds as if the 2™ charge is also proved. Thus, the punishment imposed is grossly illegal.
iv. The Central Bureau of Investigation investigated into the allegation in respect of which charges were levelled against the applicant and filed charge sheet against V. Adikesavan and Vijay Anand in the IX Additional City Civil Court, Chennai, vide C.C.No.6 of 2009. In that case, the applicant was 7 OA No. 961/2016 examined as a prosecution witness, viz, PW5. By the judgment, dated 28.03.2014, in the aforesaid C.C. case, V. Adikesavan and Vijay Anand, were convicted for an offence under Section 420 of IPC and sentenced to undergo rigorous imprisonment for one year and, further, V.Adikesavan was found guilty and convicted for the offence under Section 409 of IPC and sentenced to undergo rigorous imprisonment for one year.
v. The appellate authority, viz., the 1' Respondent, was duly informed about the decision rendered in C.C.No. 6 of 2009. However, the Ist Respondent, without considering the same, merely modified the punishment on the ground as if the punishment is too harsh, without going into the facts that there is absolutely no material to hold the charges as proved. Thus, the order of the Ist Respondent, rejecting the appeal of the applicant, exhibits total non-application of mind.
vi. It is submitted that, in C. C. No 6 of 2009, there are two accused. The Ist accused is V. Adhikesavan, Administrative Officer, and the 2nd accused is A, Vijay Anand, who is the son of the first accused. As per the Applicant, V. Adhikesavan retired on 31.3.2009 and he was convicted in C.C.No.6 of 2009 by a judgment, dated 28.3.2014. The Respondent permitted him to retire with provisional pension. He was also chargesheeted by the 8 OA No. 961/2016 Respondents and now the Respondents have imposed the punishment of stoppage of one increment and all his terminal benefits have been directed to be settled. As far as A. Vijaya Anand is concerned, his services were terminated as his entry into service was illegal. Though Mr. B. Ramadoss, Section Officer, Tuberculosis Research Centre, Chennai, was arrayed as Accused No.3, he turned an approver in the criminal proceedings. He retired in April, 2008. In respect of him, no action was taken and no punishment was imposed. In fact, his son, R. Raja Selvasekaran, is continuing in the Respondent organization as Technician (C). However, the Respondents have proceeded against the applicant and imposed the punishment aforesaid without any justification. In any event, there is gross discrimination in initiating and imposing the punishment.
vii. According to the Respondent, the question paper was prepared ten days before the examination by Mr.C-Kolappan, Scientist 'F', and handed over to V. Adhikesavan, which itself is illegal. As such, the question paper should have been handed over just prior to the examination. The Respondents have not proceeded against him and he has been also permitted to retire with full terminal benefits. No evidence was placed against the 9 OA No. 961/2016 applicant in the domestic enquiry. Therefore, the punishment imposed on the applicant is totally without any justification apart from being discriminatory.
4.1, The respondents have filed their reply. It is submitted that, vide Letter, dated 24.03.2005, administrative approval was received to recruit staff for the Mortality Survey Project. Pursuant to the same, advertisement was given in the Employment News, dated 23-29 April, 2005, for the post of Supervisor/ (temp) Health Worker. The last date for receiving applications was mentioned as 02.05.2005. 13 Applications for the post of Supervisor and 48 applications for the post of Health Worker were received. Out of 13 applications for the post of Supervisor, one was found to be ineligible being overaged. In the examination, both oral and written tests were scheduled to be conducted on 23.07.2005, at Hyderabad. The question paper was prepared by Dr. Kollappan and, since he was on medical leave from 13.06.2005 to 16.07.2005, and further extended it 'from 17.07.2005 to 31.07.2005, he handed over the question paper with the answer keys for the examination in a floppy disk, at his residence, to the then Administrative Officer, Mr. V. Adikesavan, in the presence of Mr. M. Subramanian, Senior Administrative Officer, which had to be treated in a highly confidential manner, The then Administrative Officer, Mr. V. Adikesavan, with the help 10 OA No, 961/2016 of the Applicant herein, transferred the question paper and the answer keys from the floppy disk to the computer installed in his room and the applicant handed over the print outs of the question paper and answer keys to him on 22.07.2005. Mr. V. Adikesavan had leaked one set of answer keys and question paper to his son, Mr. Vijay Anand, who was competing for the post of Supervisor and one set to Mr. Rajaselvasekaran, son of Mr. B. Ramdoss, the then Section Officer, who was competing for the post of Health Worker. Both the applicants scored 100 % marks in the written examination. The said candidate, Mr. Vijay Anand, did not possess the requisite educational qualification. The applicant herein, along with the said Mr. V. Adikesavan, prepared the final list showing the name, address, date of birth, educational qualification, experience and mother tongue of all the applicants, except Mr. Vijay Anand, and it was the applicant who consolidated all the applications received and had the knowledge of the requirements as per the advertisement in the Employment News. A register was maintained for the receipt of applications from the candidates who had applied for the post for the project "Mortality Survey" in Andhra Pradesh and Orissa. Mrs. Rajeswari, who was working in the Despatch Section and who was incharge of the register, had categorically deposed that except the receipt of applications and also 11 OA No. 961/2016 despatch of call letters for interview in respect of Mr.Vijayanand, S/o Mr.Adhikesavan, and Mr. Rajaselvasekaran, son of Mr. Ramdoss, she had received all the other applications. All together, there were 12 applications, inclusive of Mr. Vijay Anand and Mr. Rajaselvasekaran, for the Mortality Survey Project.
4.2. It is submitted that, on the basis of the Special Police Establishment Report in RC 24 (A)/2008 of the CBI, Anti-Corruption Branch, Chennai, and letter No.Vig/8/2008, dated 13th/20th May, 2009, received from Mr.M.Rajamani, Senior Deputy Director General (Admn.) and Chief Vigilance Officer, Indian Council of Medical Research, New Delhi, departmental proceedings for imposing major penalty was initiated against Smt. P. Kowsalya, LDC, TRC Epidemiology Unit, Chennai, for her misconduct in leaking out the question paper at the behest of Shri.V.Adikesavan, Administrative Officer, Epid Unit TRC, Chennai. Smt. P. Kowsalya was placed under suspension by the Disciplinary Authority vide order No.612/E/2009, dated 17.06.2009.
4.3. The applicant was then issued charge memo, dated 17.06.2009, framing two charges, as follows;
12 OA No. 961/2016a) That the said Smt. P. Kowsalya, (presently under suspension) while functioning as LDC/Typist in Tuberculosis Research Centre, Epidemiology Unit, had in connivance with Shri V. Adikesavan, the then Administrative Officer, TRC Epidemiology Unit had manipulated the records during the course of a selection process to fill up few posts in a project entitled, "Mortality survey in Andhra Pradesh and Orissa" funded by TB Division of the DGHS, New Delhi.
b) That the above said Mrs. P. Kowsalya had at the behest of Sri V. Adikesavan, the then Administrative Officer had leaked out the question paper and answer keys well before the examination schedule to few candidates, during the selection process of the above project.
4.4, The applicant gave reply to the charges, vide letter, dated 29.06.2009. 4.5. She has also admitted that the Administrative Officer, Mr. Adhikesavan, handed over one floppy to her and told her to take print outs before leaving for Hyderabad where the examination was to take place.
4.6. The applicant chose not to go for any Defence Assistant and she herself actively participated in the inquiry and cross examined the witnesses herself.
13 OA No. 961/20164.7. Respondents contended that, in her representation, the applicant has admitted that she was associated with the preparation of statement and final consolidation of applications related to the recruitment process. She has also stated that all the applications received in the office were having office stamp with date. When she was consolidating the applications and preparing a statement, she clearly ought to have known which applicant was not eligible for the post as he did not possess the requisite qualifications, 1.€., M.A. (Sociology) or M.A. (Public Administration). The advertisement had mentioned specific educational qualification, age, limit, language, etc., and, based on these parameters set out in the Employment News, the applicant herein was duty bound to consolidate the applications. Further, the statement given by Ms. Rajeswari who was working in the despatch section and who was maintaining the register of the applications received for the said project stated that she was not in receipt of the application of Sh. Vijay Anand and Mr. Rajaselvasekaran and did not despatch the call letters for the interview as well. The above statement given by Ms. Rajeswari proves that the said two applications were not received till the last date, ie; 02.05.2005, and were inserted later and one of the candidates did not even possess the requisite educational qualification which fact the applicant was well aware of as it 14 OA No. 961/2016 was she who consolidated the applications, as per the requirements given in the advisement.
4.8. The applicant had also admitted that Mr. Adhikesavan handed over a floppy to her three days before the examination and told her that he will be leaving for Hyderabad on 22/07/2005 by flight and before he leaves the office, print out should be taken from the floppy. The applicant copied the floppy into the Hard Disc and took print outs and handed over the same to Mr. Adhikesavan in the afternoon of 22/07/2005. She knew that she was taking a print out of the question paper and the answer keys and, they, connived with Mr. Adhikesavan and manipulated the records by inserting the applications.
4.9. According to the Respondents, the disciplinary authority, by taking into consideration the inquiry report and the explanation of the applicant, vide memorandum reference No.2563/E/2010, dated 07.01.2010, had imposed the penalty of reduction of pay of the Applicant to the minimum of the pay band of the post of LDC i.e.Rs.5200 in PB-1: Rs.5200- 20200 + GP Rs. 1900, for a period of 3 years, with immediate effect.
4.10. In her written representation on 29/06/2009, to the Charge Memo, the applicant herself has stated that 13 applications were received as on the last 15 OA No. 961/2016 date for submission of the applications and one application was rejected by the Administrative Officer as the candidate was over-aged. The applications of Mr. Vijay Anand, s/o Mr.Adikesavan, and Mr. Rajaselvasekaran, s/o Mr.B.Ramadoss, were not received through the receipt register of the office, which was evident from the statement given by Mrs.K.Rajeswari and Mr. B. Ramadoss in his statement, dated 07/08/2009, has also stated that he had submitted his son, Rajaselvasekaran's application before the due date for the post of Health Worker through Mr. Adikesavan. He also stated that Mr. Adikesavan, with the help of the Applicant, has handled all the recruitment files.
4.11. According to the Respondents, the inquiry officer has found the applicant guilty of the allegations levelled against her and has given his inquiry report, accordingly. The Applicant preferred an Appeal on 16.02.2010 and the Appellate Authority had revised the penalty order, dated 07.01.2010, from Rs. 5200 to Rs.5830, which is the minimum of the pay band of Rs. 5200-20200, as per the fitment table, and revised the same with retrospective effect. With the above said partial modification, the penalty imposed by the Disciplinary Authority was upheld and the appeal was rejected vide order, dated 17.09.2015.
16 OA No. 961/20164.12. It is admitted that the appeal was kept pending, as per the instructions of the Competent Authority, till the finalization of the CBI case in C.C. No. 6/2009 against Mr. V. Adikesavan and others by the IX Additional Special Judge for CBI Cases through the verdict on 28.03.2014. However, since the Department can independently conduct Domestic Enquiry and the pendency of criminal case per se would not entitle the employee to claim immunity from the departmental proceedings, the Department had proceeded with the same. | 4.13. As regards the non-payment of increments and non-consideration of her name for promotion to the post of UDC, it is stated that the increments due to her and the promotions due to her have already been given by the 2nd respondent, vide orders, dated 19/05/2017, (Annexure R-8).
4,14. The 2nd respondent has released the increments due to her with retrospective effect and also promoted her to the post of Upper Division Clerk. It would not be appropriate to say that the Appellate Authority has not considered the various contentions raised by the applicant in the appeal because the Appellate Authority had revised the penalty order, dated 07.01.2010, has already been revised as above.
J 17 OA No. 9612/2016 4.15. The allegation that the punishment imposed on the applicant is totally without any justification apart from being discriminatory has been rebutted because, on the basis of the Special Police Establishment Report in RC 24(A)/2008 of the CBI Anti-Corruption Branch, Chennai, and letter, dated 13th/20th May, 2009, from the Chief Vigilance Officer, ICMR, Departmental Proceedings for imposing major penalty were initiated against Smt. P. Kowsalya. The CBI Court, had found both Mr. V. Adikesavan and Mr. A. Vijay Anand guilty and convicted them. Sh. R. Rajaselvasekaran was dismissed by the 2nd respondent, vide orders, dated 27/11/2014. According to the Respondents, the fact that the question paper was prepared ten days before the examination by Mr. C. Kolappan, Scientist 'F', and handed over to Sh.V.Adikesayan which is illegal does not have any relevance as the facts have already been dealt with by the CBI and the judgement stands delivered in C.C. No. 06 of 2009.
4.16. Respondents have denied that the punishment imposed on the applicant is without any justification or discriminatory and have prayed for dismissal of the OA.
5. The applicant has filed a rejoinder against the reply statement of the respondents.
18 OA No. 961/20166. Heard both sides and perused the records.
7. The applicant has been punished by the Disciplinary Authority. {t has been upheld by the Appellate Authority while revising the pay from Rs. 5200 to 5830/-. The allegation of manipulation of the records regarding accepting the applications of A. Vijaya Anand, S/o. V. Adhikesavan and R. Raja Selvasekaran S/o. B. Ramadoss after the prescribed time limit could not be ascertained for want of the Receipt Register, as it was not produced in the inquiry. In this case, no benefit seems to have accrued to the applicant, even if the allegation of manipulation were to be proved. The beneficiaries were the sons of two serving officials, Shri M. Adhikesavan, the then Administrative Officer, who took the floppy disk and got the print outs of question paper and the answer keys prepared by the applicant. He is actually one of the beneficiaries, as his son secured 100% marks in the examination. The next beneficiary is Shri. Ramadoss, whose son, Mr. Raja Selvasekaran, also secured 100 % marks. In the entire hierarchy, the applicant is junior to the two senior officers, Mr. V. Adhikesavan and Mr. B. Ramadoss. It is worth noting that the applicant was made a prosecution witness in that CBI case, wherein V. Adhikesavan and his son, Vijaya Anand, were convicted, The 3 accused viz., B. Ramadoss, who was the Section Officer, turned an 19 OA No. 9613/2016 approver in the criminal proceedings and he has gone scot free, despite being named as accused no. 3 in the CBI case. No departmental action was initiated against him. More intere stingly, R. Raja Selvasekaran, his son, continues to be in the respondent organization as Technician.
8. As regards, leaking of the question paper, the root of the irregularity can be traced to handing over of the floppy disk, containing the question paper and the answer keys, by Mr. C. Kolappan, Scientist 'F', to V. Adhikesavan, Administrative Officer (A.O.), 10 days before the actual examination, since Mr. Kolappan was indisposed. No action was taken against Mr. Kolappan for not informing his seniors to make suitable arrangements and, on his own, handing over the floppy disk to the Administrative Officer, after which the Administrative Officer got the print outs taken before proceeding to Hyderabad, which was evidently leaked and the two beneficiaries turned out to be the sons of two officers including the A.O. A significant finding in the Enquiry Report has been as follows :-
"Because of this Medical Leave, Mr. Adhikesavan and Mr. Subramaniam came to his residence to collect the Question Paper and Answer Keys containing in the floppy and he handed over to the same approximately 10 days before the interview date i.e, 23.7.2005 and strictly informed him that it is highly confidential. After getting the floppy and while leaving the residence of Dr. Kolappan, Mr. Subramaniam, then Sr. Administrative Officer, TRC has informed that sons of Mr. Adhikesavan and Mr. Ramadoss have applied. Dr Kolappan was under the impression that they were having the requisite qualifications prescribed for the cited posts. He informed them that let them do their written examination, interview and 20 OA No. 961/2016 based on the merit only, candidates will be selected. He has stated that he was not aware of who has taken the print out and when it was taken. Dr. Kolappan further stated that while interviewing the candidates he came to know that Mr. Vijayanand, and Mr. Rajaselvasekaran who have scored 100% marks were sons of Mr. Adhikesavan and Mr. Ramadoss, respectively. At that time only, Dr. Kolappan got strong embarrassment and shock and felt that there was a strong possibility that the question paper might be leaked to the above said candidates. He also informed that that question paper was not an easy one; otherwise, more candidates might have also scored 100%."
Despite such a major lapse on his part, in allowing the examination process to be rigged, by handing over the floppy to an official whose son was himself a candidate in the said examination, Mr. Kolappan was not made to answer for the same. The question paper and answer keys were transferred to the computer installed in the room of the Administrative Officer, V. Adhikesavan, and, thereafter, print outs of the question paper and answer keys were made and handed over to him. Nowhere it is found that the applicant had also carried with her any print outs which she, subsequently, could have leaked.
9. The respondents have placed reliance on the judgment, dt. 23.11.2022, of the Hon'ble Supreme Court in Civil Appeal Nos. 7939-7940 of 2022 and batch, in the case of Union of India and ors Vs. Subrata Nath, reported in 22 Live Law (SC) 998. The relevant paras are extracted below :-
"14. The point that arises for our consideration is whether in the given facts of the case, the learned Single Judge and the Division Bench ought to have interfered with the punishment imposed on the respondent by the 21 OA No. 961/2016 Disciplinary Authority and upheld by the Appellate Authority as also by the Revisional Authority.
I5. It is well settled that courts ought to refrain from interfering with findings of facts recorded in a departmental inquiry except in circumstances where such findings are patently perverse or grossly incompatible with the evidence on record, based on no evidence. However, if principles of natural justice have been violated or the statutory regulations have not been adhered to or there are malafides attributable to the Disciplinary Authority, then the courts can certainly interfere,"
10. The applicant has relied upon the order, dt. 13.10.2023, of the Hon'ble Madras High Court, in WP No. 3688 of 2015, in the case of D. Manoharan Vs. Canara Bank, rep., by its Executive Director and ors. The relevant paras are extracted below :-
"15. In so far as rule of parity is concerned, the learned counsel for the respondents relied upon the judgment in the case of Lucknow Gramin Bank Vs. Rajendra Singh reported in 2013(5) LLN 100, wherein the Hon'ble Supreme Court of India held as follows:
19.4 Even in such a case when the punishment is set aside as shockingly disproportionate to the nature of charges framed against the delinquent employee, the appropriate course of action is to remit the matter back to the disciplinary authority or the appellate authority with direction to pass appropriate order of penalty. The Court by itself cannot mandate as to what should be the penalty in such a case.
19.5 The only exception to the principle stated in para (d) above, would be in those cases where the co-delinquent is awarded lesser punishment by the disciplinary authority even when the charges of misconduct was identical or the co-
delinquent was foisted with more serious charges. This would be on the Doctrine of Equality when it is found that the concerned employee and the co-delinquent are equally placed. However, there has to be a complete parity between the two, not only in respect of nature of charge but subsequent conduct as well after the service of charge sheet in the two cases. If co- delinquent accepts the charges, indicating remorse with 22 OA No. 9613/2016 unqualified apology lesser punishment to him would be justifiable.
16. Whereas, insofar as rule of parity is concerned, the learned Senior Counsel appearing for the petitioner relied upon the judgment of the Hon'ble Supreme Court of India in the case of Naresh Chandra Bhardwaj Vs. Bank of India and others reported in (2019) 15 SCC 786, wherein it is held as follows:
were eae
7. The principle, thus, culled out is that remitting a matter on the issue of quantum of punishment would be as set out in para 19.5 aforesaid, ie., where a co-delinquent is awarded lesser punishment by the disciplinary authority even when the charges of misconduct were identical or the co-delinquent was foisted with more serious charges. This is based on the principle of equality but then there has to be an absolute parity.
17. He also relied upon the judgment of this Court in the case of Principal Secretary to Government Vs. K.R.Palanisamy reported in 2021 SC Online Mad 2850, wherein it is held as follows:
1l. A reading of the above paragraphs makes it abundantly clear that the courts cannot assume the function of disciplinary/departmental authorities and to decide the quantum of punishment and nature of penalty to be awarded, as this function is exclusively within the jurisdiction of the competent authority, but, an exception is carved out therein to the effect that if the co-delinquent is awarded lesser punishment by the disciplinary authority even when the charges of misconduct was identical or the co-delinquent was foisted with more serious charges, then the Court is at liberty to interfere with the punishment. In such case, instead of remitting the matter back, the Court can substitute a suitable punishment.
12. If the principle enunciated in the above judgments is applied to the facts of the instant case, it is clear that the writ petitioner is entitled for the similar treatment, that has been extended to N.Subramanian and after passage of time, remitting the matter again to the authorities would not serve any purpose. Thus, directing the authorities to modify the punishment imposed on the writ petitioner to the one that has been imposed on N.Subramanian would meet the ends of justice, Thus, the learned Single Judge rightly set aside the
11. 23 OA No. 961/2016
Government Order refusing to extent such benefit to him. We find no reason to interfere with the said order.
20. In fact, the petitioner was working as Assistant Manager and he had acted only on the directions issued by the Senior Manager. Once the Senior Manager approved for issuance of demand draft and on the direction issued by the Senior Manager, the petitioner acted upon and issued demand draft to its customers. When it being so, the person who approved and directed to issue demand draft was punished with lesser punishment and whereas the petitioner has been punished with capital punishment. Therefore, it is clear violation of rule of parity." (emphasis added) This Tribunal, has dealt with a similar issue of alleged discrimination in the case of J. Ananda Kumar Vs. Union of India, Secretary to Government, Ministry of Health and Family Welfare, ICMR and ors., and observed in its order, dt. 03.04.2024, that -
"11. The only issue that lends itself to scrutiny now is whether the Applicant has been singled out for discriminatory treatment. If it is so, judicial intervention would be justified. The other big time operator, according to the applicant, is one Anbulingam. Both the Applicant and Sh. Anbulingam were dealt on similar charges. Several co-employees have held Shri. Anbulingam responsible, in one way or the other, for preparing or submitting fraudulent LTC claims. The following punishment was awarded to him, vide order, dt. 13/21.04.2015 :
"The undersigned hereby imposes the penalty of reduction to the lower post of Technician-A (E/S) w.e.f. 15.04.2015, until he is found fit, after a period of 3 years from the date of this order to be restored to the higher post of Technician-B (E/S}. Accordingly, the above said penalty is hereby imposed on Shri. R.Anbulingam, Technician B(E/S).
Further the period of reduction will also operate to postpone his future increments in the time scale of his original post, on his restoration to that post.
He shall on his re-promotion to his original post shall regain his original seniority in the higher post of Technician-B (E/S) which has been assigned to him prior to the imposition of the penalty."24 OA No. 961/2016
Whereas, the applicant was awarded the following punishment, vide order, dt. 13.04.2015;
"The undersigned hereby removes the said Shri. J. Ananda Kumar, UDC from service with immediate effect. Accordingly, the above said penalty is hereby imposed on Shri. J. Ananda Kumar, UDC."
12. legality committed by other person(s) cannot be ground to absolve the applicant of his liability for defrauding the department. However, we would like to follow ratio of the order of the Hon'ble Supreme Court, in the case of Sengara Singh Vs. State of Punjab (1984 1 LLJ 161), wherein the Hon'ble Supreme Court has held that, "the action taken by the Government is violative of Article 14 of the Constitution, 1.¢., any arbitrary action taken which would tantamount to the denial of equity is violative of Article 14 of the Constitution,"
13. This Tribunal, in OA No. 410/2016, in the case of K.M.Vedapuri Vs. Union of India, rep. by the Secretary, Ministry of Water Resources and ors, had dealt the issue of "discrimination in service matters" and, vide order, dt. 04.01.2024, it was observed as below :-
26. The role of enquiry officers and the competence of the Disciplinary Authority and the Revisionary Authority is not in question. However, the remarks of the Disciplinary Authority that "the outcome of different Disciplinary Authorities taking different decisions in regard to the quantum of punishment based on their findings etc., response shown by individual officers to the instructions of the Government of India"
has been taken note of by this Tribunal, in its order, dated 25.01.2000, in OA numbers 264 & 265 of 1998. The Tribunal had remitted back the impugned orders to the Disciplinary Authority for dealing with the case afresh under specific directions that "the Disciplinary Authority shall give a fresh notice to the applicants showing clearly the reasons for differing from the enquiry officer's report and after receiving the reply from the applicants, the Disciplinary Authority can pass an order afresh. In doing so, the Disciplinary Authority is expected to deal with the case of other 21 officers and how the ?25 OA No. 961/206
case of the applicants are different from that of the other 21 officers."(emphasis added)
27. The Tribunal also referred to its earlier findings that the question of Article 14 has to be considered as in the case decided by the Supreme Court in Sengara Singh Vs. State of Punjab (1984 1 LLJ 161). Wherein it was held that "the action taken by the Government is violative of Asticle 14 of the Constitution i-e., any arbitrary action taken which would tantamount to the denial of equity is violative of Article 14 of the Constitution,"
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35. This Tribunal and the Hon'ble High Court have already come down heavily on the point of discrimination and it was specifically directed to state the reasons for considering the case of the official differently from those of similarly placed officials. This aspect has not been satisfactorily answered by the respondents. The list of 21 officers annexed by the applicant clearly shows that one R. M. Joshi had also overstayed unauthorisedly in Algeria like the applicant. For both the officials, the period of unauthorised absence was declared as dies non. Shri. R. M. Joshi was also awarded 'Censure'. There are other glaring cases of this nature in the list. Dies non is the reason given by the Department in the communication, dated 30.07.2014, to the applicant, for not counting the said period "for regular service to be considered for promotion". On the other hand, Shri. R. M. Joshi got his promotions and the consequential financial benefits. Shri. Joshi took voluntary retirement in April, 2003, as Scientist 'C'. The requisite period of three months' notice in this regard was waived for Shri. R. M. Joshi.""
12. The department has not initiated any disciplinary proceedings against Mr. Ramadoss, whose son is similarly placed as Vijaya Anand, who was convicted in the CBI case, nor has any action been taken against the son of Mr. Ramadoss who continues in the service of the department. Shri. B. Ramadoss, Section Officer, retired in April, 2008. The negligence on the 26 OA No. 961/2016 part of Mr. Kolappan, Scientist 'F', who actually handed over the floppy disk to Mr. Adhikesavan, has gone unpunished and he also retired happily. Under the circumstances, we are forced to take close view of the action against the applicant vis-a-vis the action or rather the lack of it against the other officials who happen to be senior to her and have actually benefitted by getting their sons recruited, on the basis of the question paper and answer keys which were leaked, enabling Vijaya Anand and Raja Selvasekaran to score 100% in the written examination. Such a pick and choose policy makes the action of the Respondents highly arbitrary and discriminatory and cannot be condoned.
13. In view of the above, it would be unfair if the applicant is treated differently from others involved in the entire episode as it would be violation of Article 14 of the Constitution as discussed in the orders of this Tribunal and of the Hon'ble Apex Court, above. Since, the main players, other than V. Adikesavan who was convicted in the CBI case, have retired unscathed long back and the department failed to fix accountability then, it would serve no purpose to remit the matter back to the department, at this belated stage, for any action.27 OA No. 961/2016
14. In view of the foregoing discussion, the orders issued by the 2™ and the 1" respondents, dt. 07.01.2010 and 17.09.2015, respectively, are quashed and set aside. Respondents are directed to extend all consequential benefits to the applicant within a period of 3 months from the date of receipt of a copy of the order.
15. The OA is disposed of, accordingly.
16. No order as to costs.
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