Madras High Court
S.Prabhakaran vs Co-Operative Sub-Registrar/ on 30 November, 2016
Author: R.Suresh Kumar
Bench: R.Suresh Kumar
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 30.11.2016
CORAM :
THE HONOURABLE MR. JUSTICE R.SURESH KUMAR
W.P.No.23900 of 2010 and
M.P.Nos. 1 & 2 of 2010 and
M.P.No.1 of 2015
S.PRABHAKARAN .. Petitioner
Vs.
1 CO-OPERATIVE SUB-REGISTRAR/
THE SPECIAL OFFICER VELLAKARAI PRIMARY
AGRICULTURAL CO-OPERATIVE BANK VELLAKARAI
CUDDALORE TALUK.
2 JOINT REGISTRAR/ REVISIONAL
OFFICER CO-OPERATIVE SOCIETIES CUDDALORE.... Respondents
Writ Petition filed under Article 226 of the Constitution of India praying for issuance of a Writ of Certiorarified Mandamus, to call for the records and quash the entire proceedings commencing with the Show Cause Notice of the 1st respondent in his proceedings No.1/2008 Tha.A.(6) dt.7.7.2008 resulting in the order passed by the 1st respondent in his Na.Ka.No.1/2008 Tha.A.(6) dt.20.6.2009 and consequent order of the 2nd respondent in his order in Na.Ka.5384/09 Thu.Va.tha.1 dt.15.6.2010 and consequently direct respondents to reinstate petitioner forthwith with all benefits of seniority salary and allowances in tact.
For Petitioner : Mr. C.Prakasam
For R1 : Mr. L.P.Shanmugasundaram
For R2 : Ms. T.Girija Govt. Advocate
O R D E R
The prayer in the writ petition is for a writ of certiorarified mandamus calling for the records and quash the entire proceedings commencing with the Show Cause Notice of the 1st respondent in his proceedings No.1/2008 Tha.A.(6) dated 7.7.2008 resulting in the order passed by the 1st respondent in his Na.Ka.No.1/2008 Tha.A.(6) dated 20.6.2009 and consequent order of the 2nd respondent in his order in Na.Ka.5384/09 Thu.Va.tha.1 dated 15.6.2010 and consequently direct respondents to reinstate petitioner forthwith with all benefits of seniority salary and allowances in tact.
2.1. The petitioner joined in the first respondent society as an Assistant on 1.3.1991. Thereafter, he was promoted as Assistant Manager in 1997. His job, from the date of appointment even after his promotion as Assistant Manager is only to look after the deposits. The petitioner had put in blemishless service throughout his career. While so, some of the employees and officials of the first respondent society since had indulged in some malpractices, the first respondent society had prepared a charge sheet against those employees wherein unfortunately, the petitioner also has been implicated. Therefore, on 07.07.2008, the first respondent had prepared and served a charge memo on the petitioner comprising of nine charges. All those charges framed against the petitioner are basically relating to the signatures of the petitioner allegedly have been made in the records verification.
2.2. A retired Joint Registrar was appointed to conduct the domestic enquiry. The list of witnesses were not furnished to the petitioner. The petitioner was not allowed to cross examine any witnesses. The secretary one Mr. Sivakozhundu, who replaced the suspended secretary Thirunavukkarasu has clearly stated before the enquiry officer that there was no mistake or misleading on the part of the petitioner. However, enquiry was concluded and ultimately, the Enquiry Officer has prepared a report by which he found that the charges 1,2,3,4,5,6 and 9 were not proved against the petitioner. In respect of the charges 7 and 8, the Enquiry Officer has stated that those two charges were partly proved.
2.3. Pursuant to the said Enquiry Officer's report, the explanation of the petitioner was called for and he submitted his detailed explanation on 09.4.2009. Without considering the same, the first respondent had passed an order dated 20.6.2009 by merely accepting the said Enquiry Officer's report in respect of the said two charges and even though the Enquiry Officer had said that charges 7 and 8 were partly proved, the first respondent by order dated 20.06.2009 removed the petitioner from service. As against the said order of the first respondent, the petitioner preferred a revision to the second respondent, who inturn by order dated 15.6.2010 dismissed the revision and aggrieved by both orders, of first and second respondents, the petitioner has come out with the present writ petition with the aforesaid prayer.
3. Heard both sides.
4. The learned counsel appearing for the petitioner would contend that all the nine charges framed against the petitioner are baseless as there is no direct charges against the petitioner. It was only alleged that the petitioner had not prevented those employees, who were indulged in malpractices and only on that score, those charges were framed. Particularly, in respect of charge Nos. 7, the findings of the Enquiry Officer is that in respect of crop loan for two persons, namely, one Mrs. V.Usha and S.Santhanam, their signatures were verified and signed by the petitioner and the representative of the Management also corroborated the said thing that those signatures were genuine. Therefore, in this regard, the Executive Officer had given a finding that this charge No.7 was partly proved. Like that inrespect of charge No.8, the findings of the Executive Officer that there is no evidence to state that the petitioner had directly assisted other employees for the misdeeds, but in the capacity as Assistant Secretary 1 being the next position to head of the Bank, he has not taken any steps to prevent it and therefore, the Enquiry Officer has stated that this charge No. 8 also was partly proved. This finding is totally baseless and therefore, based on which such a maximum punishment of removal of service ought not to have been inflicted on the petitioner, the learned counsel for the petitioner argued.
5. Per contra, the learned Special Government Pleader appearing for the respondents would contend that the charges were framed and enquiry was conducted in accordance with the procedure established under law. After conducting the enquiry, explanation was called for and after considering the explanation given by the petitioner, the first respondent invoking his power inflicted the punishment of removal of service as any one of the punishment as enumerated under Clause 28 of the Model Special bye laws of the first respondent society can be inflicted on any erring official/employee. The learned counsel for the first respondent further contended that though nine charges were framed against the petitioner, atleast two charges were partly proved for which the punishment of removal of service can very well be inflicted on him and therefore, the same cannot be questioned or termed as excessive punishment and in that view of the matter, the learned counsel for the respondents contended that no interference is warranted on the impugned orders from this Court.
6. This Court has considered the rival submissions made by the learned respective counsel.
7. Admittedly, there were nine charges framed against the petitioner. Even according to the Enquiry Officer's report seven charges were not proved. Only with regard to other two charges, namely, charges No.7 and 8, the findings were given and for which punishment of removal of service has been inflicted on the petitioner. The charge No.7 says that by creating falsified account as if that crop loans were given to the members, heavy amounts were misappropriated and by thus, loss caused to the first respondent Bank to the extent of Rs.5,75,200/- and for this action, the petitioner also had aided to the Secretary one Mr. Thirunavukkarasu and jewel appriser one P.Ramalingam. For the said charge, the findings of the Enquiry Officer is as follows:
jpUv!;/gpughfud; cjtp brayhsh; 1? jdJ tpsf;fj;jpy; Fw;wr;rhl;L 7 bjhlh;ghd rhl;Liuapy; bjhptpf;fg;gl;lthW 6 egh;fSf;fhd 20 tptrha eiff; fld;fspy; 2 ,d';fspy; jpUkjp/tp/ cc&h kw;Wk; v!;/re;jhdk; Mfpa ,UtUk; bgw;w fld; tt[r;rh;fspy; kl;Lk; (Signature verified) vd;W ifbahg;gkpl;Ls;sij xg;g[f;bfhz;Ls;shh;/ nkw;go ,uz;L egh;fspy; ifbaGj;Jk; cz;ikahdit vd;Wk; bjhptpj;Js;shh;/ eph;thfg;gpujpepjp jdJ rhl;rpaj;jpy; nkw;go tpsf;fk; rhpahdJ vd;Wk; bjhptpj;Js;shh;/ vdpDk; jpUkjp/tp/ cc&h kw;Wk; v!;/re;jhdk; ,UtUk; nkw;go flDf;; mlF itj;j eiffs; j';fSilait my;y vd;W bjhptpj;Js;sdh;/ cjtpbrayhsh; ? 1 vd;w Kiwapy; ,J tptuk; ,th; mwpe;nj ,Ue;Js;shh; vd;W Kot[ bra;J Fw;wr;rhl;L vz;/7 mjw;fhd rhl;Liu vz; 1 gFjpahf (partly) epU:gzkhfpwJ vd;W Kot[ bra;ag;gLfpwJ/
8. Like that, charge No.8 as framed against the petitioner is that by converting the ordinary jewel loan into crop loan, the Secretary, Thirunavukkarasu and jewel appriser P.Ramalingam had caused loss to the Bank to the extent of Rs.25,13,502/- for which the petitioner had aided or supported. For the said charge, the finding of the Enquiry Officer is as follows:
neuoahf Jizg[hpe;jhh; vd;gjw;F Mjhukpy;iy vdpDk; ,th; cjtpbrayhsh;?1 vd;w Kiwapy; t';fp jiyik eph;thfpf;F mLj;j epiyapy; ,Ue;Jk;. ,jid jLj;jpl eltof;if vLf;f jtwpa[s;shh;/ vdnt Fw;wr;rhl;L vz;/8 mjw;fhd rhl;Liu vz;/1 gFjpahf (Partly) epU:gzkhtjhf Kot[ bra;ag;gLfpwJ/
9. If we see the import of the charges 7 and 8 and the findings of the Enquiry Officer one can easily say that charges framed against the petitioner i..e, charge Nos.7 and 8 have not been proved even under the theory of preponderance of probabilities. That is the reason why the Enquiry Officer had stated that the said charges were partly proved, even for that finding, there is no evidence to state that the petitioner had infact aided to the said Secretary and jewel appriser as those two persons were responsible for the alleged loss caused to the first respondent Bank. In what way, the petitioner had aided or supported those two persons have not been established or proved by the department before the Enquiry Officer and that is the reason why in respect of charge No.8, the Enquiry Officer had stated that there is no evidence to state that the petitioner had aided for those two persons.
10. When that being the factual position, the disciplinary authority, namely, the first respondent without going into the merits of the enquiry report has mechanically invoked his power to impose the maximum punishment of removal of service on the petitioner which is totally unjust and arbitrary.
11. The learned counsel appearing for the second respondent by producing the Model Special Bye Laws relating to the first respondent Bank invited the attention of this Court to Bye law 28 and its explanation. Bye law 28 says the kinds of penalties whereby the following ten penalties are provided:
(i) Censure
(ii)Fine in the case of an employee on whom such penalty can be imposed.
(iii) Withholding of increments with or without cumulative effect (iv)Withholding of promotion (v) Suspension by way of punishment
(vi) Reduction to a lower rank in the seniority list or to a lower post or to lower stage in a time scale.
(vii) Recovery from the pay, the whole or part, for any pecuniary loss caused to the society by negligence or breach of orders.
(viii) Compulsory retirement.
(ix) Removal from service.
(x) Dismissal from service.
12. Under Explanation-III, the term misconduct has been explained in the following manner:
Explanation-III:-
The expression "misconduct" shall include any of the following acts of omissions and commissions on the part of an employee:-
a)Theft, fraud, dishonesty, misappropriation or misapplication of the funds of the society or any of its constituents or committing any offence under Indian Penal Code in relation to the society and its constituents.
b) Engaging in any trade or business outside the scope of the duties.
c) Wilful insubordination or disobedience of any lawful and reasonable order of a superior or misbehaviour with any employee.
d) Drunkenness, riotous or disorderly or indecent behaviour in the premises of the society or any act subversive discipline or unbecoming of the post that he holds.
e) Wilful damage or damage due to negligence or carelessness to work-in-process or attempt to cause damage to any other property of the society or any of its customers.
f) Unauthorised disclosure of information regarding the affairs of the society or any of its customers or any other person connected with the business of the society, which is confidential or the disclosure of which is likely to be prejudicial to the interest of the society.
g) Taking or giving bribes or any illegal gratification whatsoever from/to a member or customer or any employee
h) Punishment or found guilty by any court of law for any criminal offence involving moral turpitude.
i) Threatening, abusing, intimidating or assaulting any workmen outside the premises of the society if such threat, abuse, intimidation or assault is in connection with the employment in the society.
j) Deliberately making false, vicious or malicious statements, public or otherwise, against the society or the Government or Government officers.
k) Strike of work or inciting others to strike work in contravention of the provisions of the Industrial Disputes Act 1947 (Central Act XIV of 1947) or any other enactment or Rule in force.
13. On perusal of the said bye laws, this Court finds that none of the explanation given for the expression, misconduct i.e., from A to K cover even the charges framed against the petitioner especially charge Nos.7 and 8. When that being so, absolutely, there is no basis on the part of the first respondent to arrive at a conclusion that the petitioner is liable to be punished to the maximum punishment of removal of service. The removal of service is the extreme punishment for an employee and the same can be inflicted only on proven misconduct to the greater extent or veracity.
14. Here in this case, the very charges itself are vague and assuming the charges were framed against the petitioner or to be enquired if after enquiry all the charges were disproved, even according to the Enquiry Officer's report, even in respect of charge Nos. 7 and 8, the findings of the Enquiry Officer is totally alien to the charges.
15. Even in the said findings the Enquiry Officer states that there is no evidence that the petitioner had aided or supported two persons, who actually involved in misconduct and misappropriation. When that being so, the very finding given by the Enquiry Officer that the charges were partly proved itself is highly doubtful and based on which the first respondent has inflicted the maximum punishment to the petitioner, which, in the opinion of this Court is highly unjustifiable and totally disproportionate. Therefore, this Court has no hesitation to interfere with the impugned orders passed by the first respondent and second respondent and accordingly, those impugned orders are quashed.
16. However, if the first respondent feels some minor punishment has to be given even for the partly proven charges of charge Nos.7 and 8, this Court feels that on reading the report of the Enquiry Officer, there is no further scope for giving any minor punishment on the petitioner as the Enquiry Officer himself has stated that there is no evidence to state that the petitioner has aided or supported other two persons. When that being so, even the minor punishment as enumerated under Bye law 28 cannot be imposed on the petitioner. Therefore, the writ petitioner has made out a case in his favour.
17. Resultantly, the impugned orders are quashed. Writ petition is allowed and it is needless to state that the petitioner shall be reinstated immediately. Since the petitioner was out of service for all these years and he has not contributed anything to the first respondent society during this period, he shall not be entitled to claim full backwages. In this regard, by applying the theory of no work and no pay, if the full backwages is denied to him, it will harm the petitioner to a considerable extent. Therefore, in the circumstances, this Court allows the petitioner to claim only 50% of the backwages and other service benefits including continuity of service. The needful R.SURESH KUMAR,J.
kua shall be done by the respondents within a period of three months from the date of receipt of a copy of this order. No costs. Consequently, connected miscellaneous petitions are closed.
30.11.2016 Index : Yes Internet : Yes kua To 1 CO-OPERATIVE SUB-REGISTRAR/ THE SPECIAL OFFICER VELLAKARAI PRIMARY AGRICULTURAL CO-OPERATIVE BANK VELLAKARAI CUDDALORE TALUK.
2 JOINT REGISTRAR/ REVISIONAL OFFICER CO-OPERATIVE SOCIETIES CUDDALORE W.P.No.23900 of 2010 http://www.judis.nic.in