Allowed

R.Swaminathan v. the Govt. of Tamilnadu

Madras HC21 Sept 2011WP/4776/2007

Case brief

AI extract

What is this about?

Petitioner challenged dismissal from service, alleging separate proceedings against co-delinquents violated Rule 9-A, non-furnishing of TNPSC views violated natural justice, and punishment was discriminatory. Court upheld writ petition.

What did the court decide?

Order of punishment modified from dismissal to withholding increment for six months; petitioner treated as on duty from date of dismissal with attendant benefits.

R.Swaminathan Vs the Govt. of Tamilnadu — Service and Employment | Madras HC (2011)

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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DATED: 21.09.2011

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CORAM:

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THE HONOURABLE MR. JUSTICE K.N.BASHA

W.P.No.4776 of 2007

R.Swaminathan

.. Petitioner

Vs.

1.The Government of Tamil Nadu represented by the Secretary to the Government, Health and Family Welfare Department, Fort St.George, Chennai 600 009.

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2.The Director of Medical Education, Chennai 600 010. ... Respondents

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PRAYER: Writ petition filed under Article 226 of the Constitution of India to issue a Writ of Certiorarified Mandamus to call for the records relating to the impugned order of the first respondent in G.O.(D) No.1330, Health and Family Welfare (I-1) Department dated 07.12.2006 confirming the order of dismissal issued by the second respondent in Ref.No.16773/SC1/1/2004 dated 15.09.2004 and quash the said orders and direct the respondents to reinstate the petitioner in service and grant all consequential benefits to the petitioner.

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For Petitioner : Mr.P.Rajendran For Respondents : Mr.P.S.Sivashanmugasundaram Additional Government Pleader

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The challenge in this writ petition is to the order of the first respondent in G.O.(D)No.1330, Health and Family Welfare (I-1) Department dated 07.12.2006, confirming the order of dismissal issued by the second respondent in Ref.No.16773/SC1/1/2004 dated 15.09.2004, with a prayer to quash the same and direct the respondents to reinstate the petitioner in service and grant all consequential benefits to the petitioner.

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The case of the petitioner is that he was working as Assistant in Kilpauk Medical College, Chennai and a charge memo was issued to the petitioner by the Director of Medical Education, Chennai as per his proceedings dated 29.03.1997, framing three charges against the petitioner under Rule 17(b) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules (hereinafter referred https://hcservices.ecourts.gov.in/hcservices/ to as 'Rules'). The following are the charges:

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(1) The petitioner while working at Kilpauk Medical College Hostel had failed to maintain proper accounts for the Kilpauk Medical College Hostel collections and he had failed to remit the collected amounts properly and regularly into the Bank during the period from 23.1.1995 to 7.6.1995 and thus responsible for the misappropriation of the amounts to the tune of Rs.1,98,482.70.

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(2) The petitioner had failed to submit the day-today accounts for the collections and remittances of the Hostel amount regularly to the Warden, Deputy Warden, Junior Administrative Officer and Office Superintendent and thus derelicted in his duties.

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(3) By the above acts, the petitioner had violated Rule 20 of the Tamil Nadu Government Servant Conduct Rules.

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In respect of the above said three charges, the petitioner has submitted his explanation dated 17.05.1997, denying the charges. Pursuant to the issue of charge memo, an enquiry was conducted and the Enquiry Officer held that the charges have been proved against the petitioner. The Enquiry Report was furnished to the petitioner by the communication of the second respondent dated 24.09.1999 and the petitioner was called upon to submit his further explanations. The petitioner also submitted his further explanation dated 15.10.1999. However, the same was not accepted and the second respondent passed an order dated 20.12.2000, imposing the punishment of dismissal from service. As against the said order, the petitioner preferred an appeal to the first respondent. The first respondent referred the case to the Tamil Nadu Public Service Commission (TNPSC) for its views and the TNPSC submitted its views through its letter dated 20.11.2001, advising the Government to set aside the order of punishment and to start fresh proceedings from the stage of conducting enquiry. The Government issued an order dated 11.03.2002, setting aside the order of punishment and ordering fresh enquiry.

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A fresh enquiry was conducted and a report was submitted on 29.07.2003, holding that all the three charges framed against the petitioner have been proved. The petitioner has submitted his additional explanation with regard to the Enquiry Officer's report. However, the second respondent awarded the same punishment of dismissal from service as per the order dated 15.09.2004. As against the said order, the petitioner preferred an appeal to the first respondent and the first respondent again sought for the views from the TNPSC and after obtaining the views of the TNPSC, the first respondent rejected the appeal preferred by the petitioner as per the order dated 07.12.2006. Being aggrieved against the said order, the petitioner has come forward with this https://hcservices.ecourts.gov.in/hcservices/ petition with the above said prayer.

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Mr.P.Rajendran, learned counsel appearing for the petitioner put forward the following contentions:

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(1) The Disciplinary Authority has not followed Rule 9-A of the Rules, which contemplates common disciplinary proceedings against all the delinquent officers, whereas in the instant case, though the same and similar charges have been framed against other codelinquents, namely, Wardens, the Disciplinary Authority split up the proceedings and dealt with them separately and as such, the entire proceedings is vitiated.

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(2) The view of the TNPSC obtained by the Disciplinary Authority was not furnished to the petitioner and thereby, the impugned order was passed in violation of the principles of natural justice.

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(3) The Appellate Authority has not assigned any reason for rejecting the appeal and the said order is a non-speaking order.

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(4) Inspite of the same and similar charge framed against other co-delinquents, namely Wardens, the Disciplinary Authority awarded the lesser punishment of stoppage of increment for a period of 6 months without cumulative effect, whereas the petitioner has been awarded with major punishment of dismissal from service and as such, there is a discrimination in awarding punishment.

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(5) Even the Enquiry Officer while submitting his report observed that it was brought to his notice of the similarly placed co-delinquents, who have faced the similar charge have been awarded with the punishment of stoppage of increment for a period of six months and as such, knowing fully well, the Disciplinary Authority ignored the same and awarded the major punishment of dismissal from service.

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The learned counsel for the petitioner, in support of his contentions, placed reliance on the following decisions:

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(i) Unreported order of this Court dated 26.11.2010 in W.P(MD).No.5129/2007.

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(ii) Union of India v. The Registrar reported in (2005) 2 MLJ 154

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(iii) Man Singh v. State of Haryana and Others reported in (2008) 8 MLJ 518 (SC)

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Per contra, Mr.P.S.Sivashanmugasundaram, learned Additional Government Pleader contended that there is no infirmity or https://hcservices.ecourts.gov.in/hcservices/ illegality in the impugned order. It is contended that the

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Disciplinary Authority has considered the seriousness of the charges and awarded the punishment in proportionate to the charges framed against the petitioner, as the petitioner has been charged for the misappropriation of Government funds and thereby causing loss to the Government to the tune of Rs.1,98,482.70. It is submitted that a detailed counter is also filed in this matter by the respondents. It is further submitted that there is no violation of the principles of natural justice as the Disciplinary Authority conducted full fledged enquiry by affording opportunity to the petitioner and ultimately, held that all the charges have been proved against the petitioner.

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This Court carefully considered the rival contentions put forward by either side and perused the entire materials available on record including the affidavit filed by the petitioner, counter affidavit filed by the respondents and the impugned order.

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At the outset, it is to be stated that the petitioner has been charged along with two other co-delinquents, who are working as Wardens in the Kilpauk Medical College, Chennai and the basis for the charges framed against all the three is the Audit Report said to have been prepared on 31.10.1995. It is pertinent to note that the Audit Report states that the petitioner and two Wardens are responsible for the loss of Government money and such being the position, it goes without saying that the Disciplinary Authority is expected to follow the procedure contemplated as per the Rules by conducting a common disciplinary proceedings. As far as the case on hand is concerned, it is seen that the Disciplinary Authority conducted the disciplinary proceedings separately in respect of the petitioner as well as other two Wardens and ultimately, the two Wardens have been awarded with the lesser punishment of stoppage of increment for a period of six months without cumulative effect and as far as the petitioner is concerned, he has been awarded with the major punishment of dismissal from service. At this juncture, it is relevant to state that there is a clear violation of Rule 9-A of the Rules. Rule 9-A of the Rules reads hereunder:

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"9-A.Authority competent to institute disciplinary proceedings where more than one Government servant is involved:

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In any case where more than one Government servant of the same Department are involved, the authority competent to institute disciplinary proceedings and impose any of the penalties specified in Rule 8 shall be the authority in that Department in respect of the Government servant who holds the highest post and the disciplinary proceedings against all of them shall be taken together."

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A reading of the above said provision makes it crystal clear that in a case where more than one officer has been charged for the same and similar allegations, the Disciplinary Authority is expected to https://hcservices.ecourts.gov.in/hcservices/ conduct a common disciplinary proceedings. But, as pointed out

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earlier, in the instant case, the said procedure was not at all followed and as a result, this Court is of the considered view that the entire disciplinary proceedings is vitiated in view of the fact that the same resulted in grave prejudice to the petitioner.

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The learned counsel for the petitioner rightly placed reliance on an unreported order of this Court dated 26.11.2010 in W.P(MD).No.5129/2007. A learned Single Judge of this Court, in the said decision, has held as hereunder:

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" 8.According to me, in initiating proceedings against the petitioner, there is a violation of Rule 9-A of the Tamil Nadu Civil Services (Discipline and Appeal) Rules and there is discrimination in proceeding against the petitioner and others. It is seen from the charge memo that the petitioner along with 16 others conspired and misappropriated a sum of Rs.3,80,156/-. Nevertheless, individual charge memos were issued and separate enquiry was conducted against the co-delinquents and on the basis of the report of the Enquiry Officer, the petitioner and three others were punished."

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As per Rule 9-A, the enquiry has to be initiated against all of them and specific mandate as per Rule 9-A is that the disciplinary proceedings against all of them shall be taken together. This Rule 9-A was interpreted by me in W.P.(MD).No.7828 of 2009 dated 23.12.2009 in the cse of R.NEETHIRAJAN v. THE SECRETARY TO GOVERNMENT, DEPARTMENT OF PROMOTION COMMITTEE and held that unless the disciplinary proceedings are initiated against all the co-delinquents together, it amounts to violation of Rule 9-A and therefore, the charge memo issued by the authority is not in accordance with law.

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In this case also, it is not in dispute that the disciplinary proceedings were not initiated against all of them together and separate proceedings were initiated against the officers and therefore, there is violation of Rule 9-A of the Tamil Nadu Civil Services (Discipline and Appeal) Rules and on that ground, the charge memo is liable to be set aside."

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In view of the violation of Rule 9-A of the Rules, this Court has no hesitation to hold that the entire disciplinary proceedings is vitiated.

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Now coming to the next contention of the learned counsel for the petitioner that the petitioner has not been furnished with the copy of the views of the TNPSC, by affording opportunity to the petitioner to put forward his explanations and contentions and the said report was furnished only along with the impugned order of awarding punishment, this Court is of the considered view that it would certainly amount to violation of the principles of natural https://hcservices.ecourts.gov.in/hcservices/ justice. The Disciplinary Authority ought to have furnished the

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said views of the TNPSC prior to awarding of punishment or prior to the passing of impugned order. It is well settled by a catena of decisions of this Court that in the disciplinary proceedings, the delinquent officer should be furnished with all the documents relied by the Disciplinary Authority, enabling the delinquent to put forward his explanations and contentions and in the event of not furnishing such documents, it would definitely amount to flagrant violation of the principles of natural justice. Therefore, on this ground also, the impugned order is liable to be set aside.

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Last but not the least submission made by the learned counsel for the petitioner is in respect of discrimination in awarding punishment. It is seen that admittedly, as pointed out earlier, the petitioner has been charged along with two other codelinquents, namely, Wardens, in respect of the same and similar charges and the said charges are based on the Audit Report dated 31.10.1995. It is also pointed out that in the said Audit Report, it is stated that the petitioner and two other Wardens were responsible for the loss of Government money. It is pertinent to note that in respect of the petitioner even in the enquiry report it is clearly stated by the Enquiry Officer that it was brought to his notice in respect of two other co-delinquents who have been facing the same charge have been awarded with the punishment of stoppage of increment for a period of six months without cumulative effect. Therefore, this Court has no hesitation to hold that the Disciplinary Authority is well aware about the punishment awarded to other co-delinquents who have faced the same charge and as such, the awarding of major punishment of dismissal from service to the petitioner is definitely shockingly disproportionate to the charges framed against the petitioner. Therefore, it is abundantly clear that there is a discrimination in awarding punishment in respect of the petitioner and other co-delinquents, which would definitely cause prejudice to the petitioner. The learned counsel for the petitioner, in support of such contention, rightly placed reliance on the decision of the Hon'ble Apex Court in Man Singh v. State of Haryana and Others reported in (2008) 8 MLJ 518 (SC). The Hon'ble Apex Court in the said decision has held as hereunder:

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"Any act of the repository of power whether legislative or administrative or quasi-judicial is open to challenge if it is so arbitrary or unreasonable that no fair minded authority could ever have made it. The concept of equality as enshrined in Article 14 of the Constitution of India embraces the entire realm of State action. It would extend to an individual as well not only when he is discriminated against in the matter of exercise of right, but also in the matter of imposing liability upon him. Equal is to be treated equally even in the matter of executive or administrative action. As a matter of fact, the doctrine of equality is now turned as a synonym of fairness in the concept of justice and stands as the most accepted methodology of a governmental https://hcservices.ecourts.gov.in/hcservices/ action. The administrative action is to be just on the

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test of 'fair-play' and reasonableness. There should be no discrimination between the appellant and HC Vijay Pal as regards the criteria of punishment of similar nature in departmental proceedings. The appellant and HC Vijay Pal were both similarly situated, in fact, HC Vijay Pal was the real culprit who, besides departmental proceedings, was an accused in the excise case filed against him by the Excise Staff of Andhra Pradesh for violating the Excise Prohibition Orders operating in the State. The appellant authority exonerated HC Vijay Pal mainly on the ground of his acquittal by the criminal Court in the Excise case and after exoneration, he has been promoted to the higher post, whereas the appeal and the revision filed by the appellant against the order of punishment have been rejected on technical ground that he has not exercised proper and effective control over HC Vijay Pal at the time of commission of the Excise offence by him in the State of Andhra Pradesh.

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In the backdrop of the above-mentioned facts and circumstances of the case, the order of the disciplinary authority imposing punishment upon the appellant for exhibiting slackness in the discharge of duties during his visit to Hyderabad when HC Vijay Pal was found involved in Excise offence, as also the orders of the appellate and revisional authorities confirming the said order are unfair, arbitrary, unreasonable, unjustified and also against the doctrine of equality. The appellant deserves to be treated equally in the matter of departmental punishment initiated against him for the acts of omissions and commissions vis-a-vis HC Vijay Pal, the driver of the vehicle."

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The principle laid down by the Hon'ble Apex Court in the decision cited supra is squarely applicable to the facts of the instant case as in this case also, as already pointed out, there is a clear discrimination in awarding punishment to the petitioner and to the other co-delinquents, who are the Wardens and who have faced the same charge as that of the petitioner and they have been awarded lesser punishment of stoppage of increment for a period of six months without cumulative effect and whereas the petitioner has been awarded with major punishment of dismissal from service and as such, there is a clear violation of the concept of equality, as enshrined in Article 14 of the Constitution of India.

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In view of the findings of this Court in respect of the violation of the principles of natural justice on the basis of violation of Rule 9-A of the Rules and on the basis of nonfurnishing of the views of the TNPSC before passing the order of awarding punishment, the matter could have been remitted back for fresh consideration. But the fact remains that in the instant case, the alleged incidents said to have taken place as early as on 31.10.1995 as per the Audit Report and the petitioner underwent the https://hcservices.ecourts.gov.in/hcservices/ ordeal of the disciplinary proceedings right from the year 1997 and

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at one stage, the Appellate Authority set aside the order of punishment passed against the petitioner and remitted the matter for fresh enquiry and again the Disciplinary Authority awarded the same punishment of dismissal from service and as such, considering such lapse of time, this Court is of the considered view that the matter need not be remitted back for fresh enquiry. It is also to be stated at this stage that this Court has given a clear finding that there is a violation of Rule 9-A of the Rules, which contemplates a common disciplinary proceedings and as far as the case on hand is concerned, it is pointed that earlier that the petitioner and other co-delinquents have been dealt with by separate departmental proceedings and the other co-delinquents, namely, Wardens have been awarded with the lesser punishment and such being the position, the same cannot be rectified by remanding the matter for further enquiry as it is not possible to conduct common departmental proceedings against all the co-delinquents at this stage.

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As this Court has already arrived at the conclusion that the major punishment awarded to the petitioner is not only shockingly disproportionate to the charges framed against the petitioner, but also discriminatory, as the other co-delinquents who have faced the same charges have been awarded lesser punishment of stoppage of increment for a period of six months without cumulative effect, this Court is of the considered view that modifying the order of awarding punishment would meet the ends of justice.

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In view of the aforesaid reasons, this Court is constrained to modify the impugned order of punishment from imposing dismissal from service to one of withholding the increment for a period of six months without cumulative effect. With the above said modification, the writ petition is disposed of. No costs. As it is reported before this Court that the petitioner has already attained the age of superannuation and as such, the respondents shall treat that the petitioner was on duty including the period of his suspension and dismissal and shall give all attendant benefits within a period of eight weeks from the date of receipt of a copy of this order.

Sd/ Asst. Registrar

/true copy/

Sub Asst.Registrar

jvm

https://hcservices.ecourts.gov.in/hcservices/

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