The High Court dismissed a writ petition seeking quashing of enhanced disciplinary punishment for misappropriation. It held that the petitioner's prior remittance of funds precluded unfairness regarding witness statements or lack of opportunity, relying on its own precedents.
The writ petition was dismissed; no order for reinstatement was granted.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 03.02.2017
CORAM:
THE HONOURABLE MR.JUSTICE D.KRISHNAKUMAR
W.P.No.25895 of 2011
M.Muthudurai .. Petitioner
Vs
Prayer : Writ petition filed under Article 226 of the Constitution of India praying for issuance of a writ of Certiorarified Mandamus calling for the records relating to the proceedings AD 4/5421/2010 dated 08.11.2010 of the 2nd respondent, quash the same and consequently direct the respondents to reinstate the petitioner in service with all attendant consequential benefits.
For Petitioner : Mr.S.Venkataraman
For Respondents : Mr.L.P.Shanmugsundaram Spl.Govt.Pleader
O R D E R
This writ petition has been filed to issue a writ of Certiorarified Mandamus calling for the records relating to the proceedings AD 4/5421/2010 dated 08.11.2010 of the 2nd respondent, quash the same and consequently direct the respondents to reinstate the petitioner in service with all attendant consequential benefits.
cause notice dated 22.01.2010 was issued by the second respondent by exercising the suo motu power of review under 13 (2) of the Regulations, directing the petitioner to submit his explanation within a period of fifteen days.
“5. This Court finds full force in the submissions made by the learned counsel for the first respondent. The reason is that when the petitioner was issued with the charge memo dated 10.06.2008, even prior to the issuance of charge memo, when he was placed under suspension by memo dated 5.4.2008, the petitioner immediately rushed to the first respondent by paying a sum of Rs.11,002.92p. Subsequently, he had also paid the balance amount of Rs.9,623.10 p representing the difference between the procurement price and the sale price. Therefore, when the allegation of loss of Rs.20,623.05p made in the memo dated 05.04.2008 and the charge memo dated 10.06.2008 controversy to “Nil”, the exercise to be undertaken by the enquiry officer has been completely reduced to nothing by the act done by the petitioner himself. Therefore, when the report of the enquiry officer dated 3.12.2008, on which the petitioner was called upon to submit his written representation vide the show cause notice dated 11.12.2008, has been responded by the petitioner, this Court is unable to agree with the contentions made by the learned counsel for the petitioner that since the copy of the report of the enquiry officer was not submitted to the petitioner, he was unable to submit his opportunity was given to the petitioner and no fair and proper opportunity was given to the petitioner, he was unable to submit his proper defence before the disciplinary authority. Moreover, the lapses for which he was prosecuted
departmentally have not been disputed by the petitioner. As mentioned above, when the petitioner on his own, brought the entire controversy by the repayment of the entire amount and also admitted the lapses in his repeated representations and explanation dated 2.7.2008, 20.11.2008 and 27.1.2009, this Court is unable to interfere with the impugned orders. In fact, the judgment relied upon by the learned counsel for the petitioner was dealing with a situation different to the one in which the petitioner is placed. As per the ratio of that judgment, this Court has come to the conclusion that harsh and disproportionate punishment should not be imposed against a person when he was not given a reasonable opportunity. In the said judgment, while imposing the punishment of dismissal, it ws found that no full-fledged enquiry was conducted. But in the present case, a fullfledged enquiry was conducted, therefore, the ratio of that judgment cannot be applied to the present case. Moreover, it is well settled by the judgment of the Apex Court in Managing Director, ECIL v. B.Karunakar (1993) 4 SCC 727 that unless a party proves his prejudice to the satisfaction of the Court that non-furnishing of the report of the enquiry officer has resulted in injustice, no interference can be called for in the decision taken by the disciplinary authority. In the present case, the petitioner has not shown any prejudice suffered on account of non-furnishing of the enquiry report either to the appellate authority or revisional authority or before this Court. Therefore, the new plea of non-furnishing of the enquiry report has caused prejudice to the petitioner, belatedly taken only before this Court, is far from acceptance. For all these reasons, the writ petition fails and, accordingly, it is dismissed.” Yet another decision of this Court in W.P.Nos.6895 & 6896 of 2010, is as follows:
“3. The learned counsel appearing for the petitioners contended that the suo motu revision by the first respondent under Section 153 of the Tamil nadu co-operative societies Act, 1983, (for brevity), " the Act" is barred by Limitation, as any such revision can be exercised only within
ninety days. The learned counsel further contended that the second respondent, after considering the evidence and the fact that the petitioners had already remitted the amounts back, imposed a lesser punishment, and therefore, without any other incriminating material, the first respondent cannot re-open the case and pass orders on mere change of opinion. The learned counsel for the petitioners also placed reliance upon the judgments of this Court in M.Thangaivelu vs. The Joint Registrar of Cooperative Societies, reported in 200491) CTC 183; 200492) LW 734 and the unreported Judgment in S.Aruna vs. The Registrar of Co-operative Societies (W.P.No.18934 of 2013 dated 11.07.2013)
s/d-
Assistant Registrar(CS-III)
True Copy
Sub-Assistant Registrar
kkd
To
+1cc to Mr.S.Venkataraman, Advocate Sr.No.7515
+1cc to M/s.L.R.Shanmugasundaram, advocate SR.No.7146
W.P.No.25895 of 2011
RK(CO)
GN(28/03/2017)
2 issues framed by the court
Whether the writ court should interfere with disciplinary orders imposing punishment for misappropriation where the employee had remitted the amounts but the punishment was increased on review.
Whether failure to provide the enquiry officer's report to the petitioner constituted a denial of natural justice warranting judicial intervention.
Colour shows how this judgement treated each authority
Managing Director, ECIL v. B.KarunakarReferred¶22
Managing Director, ECIL v. B.Karunakar (1993) 4 SCC 727 · Who else cites this
M.Thangaivelu vs. The Joint Registrar of Cooperative SocietiesReferred¶26
M.Thangaivelu vs. The Joint Registrar of Cooperative Societies, reported in 200491) CTC 183; 200492) LW 734
S.Aruna vs. The Registrar of Co-operative SocietiesReferred¶26
S.Aruna vs. The Registrar of Co-operative Societies (W.P.No.18934 of 2013)
2 provisions across 2 enactments
M.Muthudurai
Tamilnadu Civil Supplies Corporation Ltd., Rep.by its Senior Regional Manager
Tamil Nadu Civil Supplies Corporation Ltd., Rep.by its Managing Director
D.Krishnakumar
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
