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2014 DIGILAW 420 (MAD)

S. Duraimanickam v. Secretary to Government Home

2014-02-20

T.S.SIVAGNANAM

body2014
JUDGMENT 1. In this writ petition, the petitioner seeks for issuance of writ of Certiorarified Mandamus to quash the order passed by the second respondent dated 24.05.2008 imposing a punishment to the lower rank and pay reduction and the consequential order passed by the first respondent/Appellate Authority in G.O.(3D).No.61, Home (Tr.II-A) Department dated 30.10.2009 and to direct the respondents to grant him pensionary and retirement benefits as Assistant with effect from 31.05.2008. 2. The petitioner joined the service of the second respondent Department as Typist on 23.06.1980 and was promoted as Assistant on 27.09.1997 and was due for promotion as Superintendent in the year 2007. The petitioner attained the age of superannuation on 31.05.2008. While so, during the year 2003, a charge-memo was issued to the petitioner containing two charges; that during the period 16.03.2000 to 28.02.2002, while the petitioner was working as Assistant in the Regional Transport Office, Trichy, the fees and tax collected after office hours was unauthorisedly entered as 0' (zero fees) and were kept out of the account books. In Charge No.2, it was alleged that the petitioner had misappropriated to the tune of Rs.2715/- by tampering of entries in the computer. 3. It is not in dispute that along with the petitioner, several others were issued charge memo relating to the same incident. Parallely, Trichy City Police Crime Branch also investigated and all the records were seized and taken by them. The petitioner submitted his explanation to the charge-memo and an Enquiry Officer was appointed to enquire into the charges. The Enquiry Officer submitted his findings on 17.06.2007. In the findings, the Enquiry Officer has stated that due to lack of training in computer, the petitioner has made wrong entries out of ignorance. With the said finding, the Enquiry Officer has held that Charge No.1 is not proved. 4. With regard to Charge No.2 i.e., with regard to misappropriation of Rs.2715/-, the Enquiry Officer observed that the petitioner could not produce any evidence to show that the said amount was properly accounted for at a later date in the absence of original records which have been taken away by the Trichy City Police Crime Branch. Though, such a finding was given by the Enquiry Officer, the enquiry officer ultimately held that the petitioner failed to produce any proof and hence Charge No.2 is proved. 5. Though, such a finding was given by the Enquiry Officer, the enquiry officer ultimately held that the petitioner failed to produce any proof and hence Charge No.2 is proved. 5. The petitioner was furnished with a copy of the Enquiry Report with liberty to make further representations. The petitioner submitted his further representation on 27.03.2008 pointing out that the charge of misappropriation was not proved since entire records were taken by the Trichy City Police Crime Branch and therefore the finding of the Enquiry Officer with regard to Charge No.2 is an incorrect finding. After considering the explanation of the petitioner, the Disciplinary Authority/2nd respondent, by order dated 24.05.2008, accepted the findings of the Enquiry Officer in respect of Charge No.1 and held that the same is not proved. Insofar as Charge No.2, the second respondent observed that considering the fact that the petitioner was allowed to remain in service till his retirement i.e., 31.05.2008, he should be awarded the punishment of reduction to the lower rank in the post of Typist and his pay fixed at the lowest of the pay scale applicable to that rank and allowed him to retire so that he earns some terminal benefits to sustain his retired life. 6. In the said order, it was stated that if the petitioner desires to prefer appeal, he may do so to the first respondent within a period of 60 days. The petitioner preferred appeal to the first respondent on 12.06.2008 raising several contentions including the contention that there is gross discrimination in the imposition of punishment compared to the punishment imposed on other persons, who were charged of similar allegations and even in respect of allegations of misappropriation of more than Rs.50,000/-, the delinquent was also imposed with punishment of stoppage of increment for 2 years with cumulative effect and hence, the petitioner, who was imposed with major punishment has been discriminated. The said appeal petition was not disposed of by the first respondent, which necessitated the petitioner to file Writ Petition No.18939/2008. This Court, by order dated 06.08.2008 disposed of the writ petition with direction to the respondent (Secretary to Government) to pass orders on the appeal filed along with his additional grounds dated 18.07.2008 raised by the petitioner in the matter of imposition of penalty. The first respondent, by order dated 30.10.2009 dismissed the appeal preferred by the petitioner. This Court, by order dated 06.08.2008 disposed of the writ petition with direction to the respondent (Secretary to Government) to pass orders on the appeal filed along with his additional grounds dated 18.07.2008 raised by the petitioner in the matter of imposition of penalty. The first respondent, by order dated 30.10.2009 dismissed the appeal preferred by the petitioner. Challenging this, the petitioner has approached this Court by way of the present writ petition. 7. The impugned order has been challenged on several grounds and it would be sufficient to take into consideration three of the grounds viz., (i) findings of the Enquiry Officer as regards Charge No.2 is perverse; (ii) the petitioner was denied reasonable opportunity to defend himself in enquiry proceedings and (iii) there is no parity in the matter of imposition of penalty. 8. Counter affidavit has been filed on behalf of the respondents setting out the factual details and stating that the allegations came to light because of an article published in a Tamil Magazine. It is further stated that the petitioner has misappropriated Government money by carrying out unauthorised transaction, by collecting the fees and tax under zero fees transaction and not remitted the collection to Government account, which on examination by the Officers of the second respondent ultimately resulted in issuance of charge memo and a proper opportunity was given to the petitioner, who defended himself and the order of punishment is justified. 9. It is to be noted that the averment of the petitioner that he has been discriminated and seven other persons, who have been issued with similar charge-memos were awarded with lesser punishment of stoppage of increment has not been denied in the counter affidavit. 10. In the preceding paragraphs, the observation made by the Enquiry Officer has been referred to. The Enquiry Officer pointed out that lack of due training was the reason for the mistake having occurred. Therefore, the Enquiry Officer exonerated the petitioner in respect of Charge No.1. So far as Charge No.2, it was submitted that original records were taken away by the Trichy City Police Crime Branch. In the absence of original records, there was no evidence to show that the amount of Rs.2,715/-said to have been collected in 14 cases has not been properly accounted for at a later date. 11. So far as Charge No.2, it was submitted that original records were taken away by the Trichy City Police Crime Branch. In the absence of original records, there was no evidence to show that the amount of Rs.2,715/-said to have been collected in 14 cases has not been properly accounted for at a later date. 11. If the original records are not available before the enquiry officer and the amount collected was not accounted, at best would amount to case of negligence and not a case of misappropriation. To establish a case of misappropriation, there should be tangible material to show that the petitioner is guilt of such charge. The finding of the Enquiry Officer does not record any tangible material rather, he would stated that in the absence of records, the petitioner could not establish that the amount was properly accounted. Therefore, the findings of the Enquiry Officer that Charge No.2 has to be held to be incorrect. At best, the petitioner could have been held to be negligent or not diligent in his duties. The petitioner in his further representation dated 27.03.2008 stated that the Disciplinary Authority has not adverted into the same. Further more, it is seen that a Committee was constituted to verify the records and based on the Committee's report, the charge memo was issued to the petitioner and others. Admittedly, the petitioner has not been furnished with the said Committee's report, which amounts to denying reasonable opportunity to the petitioner. 12. In the order passed by the second respondent dated 24.05.2008, which is impugned in the writ petition, he has referred to the nature of charge, findings of the Enquiry Officer, explanation given by the petitioner, paragraph 9 alone is the conclusion of the Disciplinary Authority, wherein, it has been stated that since the petitioner has been allowed to remain in service till his retirement upto 31.05.2008, the punishment of reduction to the lower rank viz., Typist is imposed. The reason assigned by the second respondent to impose such punishment is absolutely perverse. 13. When the petitioner pointed out these issues to the Appellate Authority by appeal petition dated 12.06.2008 and additional grounds of appeal dated 18.07.2008, the first respondent did not advert into any of these points. It is relevant to note that this Court in W.P.No.18939/2008, by order dated 06.08.2008, directed the additional grounds also to be considered. 14. 13. When the petitioner pointed out these issues to the Appellate Authority by appeal petition dated 12.06.2008 and additional grounds of appeal dated 18.07.2008, the first respondent did not advert into any of these points. It is relevant to note that this Court in W.P.No.18939/2008, by order dated 06.08.2008, directed the additional grounds also to be considered. 14. In the additional grounds, the petitioner has specifically stated about the discrimination in the matter of imposition of punishment. Without reference to any of the grounds, the first respondent/Appellate Authority, in paragraph No.4, observed that after careful examination of the issues, the punishment imposed by the second respondent is justified and the views of the Tamil Nadu Public Service Commission is accepted and the appeal is rejected. 15. When similarly placed persons, who were said to have misappropriated amounts ranging from Rs.13,194/-to Rs.83,304/- were imposed with punishment of stoppage of increment for 2 years with cumulative effect and or stoppage of increment for 3 years with cumulative effect, there is no reason assigned by the respondent as to why the petitioner alone was reverted and fixed in the lower rank and his pay fixed at the lowest of the pay scale applicable to that rank. 16. As pointed out earlier, the discrimination or failure to adopt parity in punishment has not been denied in the counter affidavit. Therefore, this Court is inclined to accept the case of the petitioner. As pointed out by the Supreme Court in the case of Director General of Police Vs. G.Dasayan reported in 1998 (1) Supreme 335 if several employees are involved in the same incident, the employer has no discretion to proceed against some of the employees and absolve others. When there is no iota of evidence which would differentiate the case of the appellant from others. 17. In the light of the above fact, the order of punishment imposed on the petitioner dated 24.05.2008, as confirmed in the appeal, by order dated 30.10.2009 deserves to be set aside. 18. As noticed above, the fact is that there was no proper explanation given by the petitioner as to how the amount of Rs.2715/- was left unaccounted for. The stand taken is that the records were not available. 18. As noticed above, the fact is that there was no proper explanation given by the petitioner as to how the amount of Rs.2715/- was left unaccounted for. The stand taken is that the records were not available. However, the petitioner could have very well requested for the copy of those records when the domestic enquiry was conducted or approached the Police and requested for issuance of certified copies or requested for production of the records before the Domestic Enquiry Officer. The petitioner having not taken any steps in this regard cannot be wholly exonerated. This Court is of the view that the conduct of the petitioner amounts to negligence or dereliction of duty and not exercising due diligence in the discharge of duties. Therefore, the petitioner deserves to be imposed with some minor penalty such as stoppage of increment without cumulative effect. 19. With regard to the punishment to be imposed, it is for the second respondent to take a decision in the matter taking note of the observations made in this order. 20. In the light of the above, the Writ Petition is allowed and the impugned order is set aside and the matter is remanded back to the second respondent for the purpose of imposition of any other minor penalty other than penalty of reduction in rank. Such orders shall be passed within a period of three months from the date of receipt of a copy of this order no costs.