W.P.No.31443 of 2016
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 16.09.2022
CORAM
THE HONOURABLE MR.JUSTICE S.M.SUBRAMANIAM
W.P.No.31443 of 2016
and
W.M.P.No.6397 of 2017
G.1836, Kayapakkam Primary,
Agricultural Co-operative Credit
Society,
Rep.by President (In-charge)
R.Kanagaraj,
Kayapakkam,
Cheyyur Taluk,
Kanchipuram District,
Pin Code – 603 301.
(P1 cause title amended vide order
dated 30.03.2022 made in W.M.P.No.6621/2020
in W.P.No.31443 of 2016) Petitioner
Vs.
1.The Joint Registrar of Co-operative Societies,
Kanchipuram Zone,
Kanchipuram.
2.R.Manickam,
Vennagarpattu Village,
Kottaikadu Post,
Cheyyur Taluk,
Kanchipuram District. ..Respondents
1/16
https://www.mhc.tn.gov.in/judis
W.P.No.31443 of 2016
Prayer : Writ Petition filed Under Article 226 of the Constitution of India,
to issue a Writ of Certiorari, calling for the records relating to the Impugned
Order dated 14.07.2016 passed in Na.Ka.No.6772/2015/Sa.pa. on the file of
the 1st respondent herein, quash the same in so far as it relates to the
punishment modified on the 2nd respondent herein is concerned.
For Petitioner : Ms.J.T.Ajitha
For Mr.K.Govi Ganesan
For R1 : Mr.T.Srinivasan
Special Government Pleader
For R2 : Mr.N.Ishak
ORDER
The relief sought for in the present writ petition is to call for the records relating to the Impugned Order dated 14.07.2016 passed in Na.Ka.No.6772/2015/Sa.pa. on the file of the 1st respondent and quash the same in so far as it relates to the punishment modified on the 2nd respondent.
2. The writ petitioner is G.1836, Kayapakkam Primary Agricultural Co-operative Credit Society. The second respondent was working as Clerk and was given additional Charge as Sales Man in Chinna Kayappakkam Village Fair Price Shop. Based on the complaint received from the general 2/16 https://www.mhc.tn.gov.in/judis W.P.No.31443 of 2016 public, the second respondent/employee was placed under suspension on 18.09.2014. A charge memorandum dated 16.10.2014 was issued to the 2nd respondent, framing six charges against him. The charges against the writ petitioner are:
(i) that he did not perform his function as Sales Man with sincerity as he did not supply the commodities to card holders properly and abused the Card Holders and thereby caused hindrance to the Public Distribution System.
(ii) that he expressed his insubordination to the orders of the Superiors.
(iii) that he fraudulently made entries in the Stock Register and Sales Invoice.
(iv) that on suspension he did not hand over the charge to the successor properly.
(v) that he misappropriated the Sale process without remitting it in the society.
(vi) that after suspension, he had signed the Attendance Register from 18.09.2014 to 23.09.2014.
3. The second respondent/employee submitted his explanation, denying the charges on 31.10.2014. Not satisfied with the explanation, the Disciplinary Authority appointed an Enquiry officer, who in turn, conducted an enquiry by affording opportunity to the second respondent/employee and 3/16 https://www.mhc.tn.gov.in/judis W.P.No.31443 of 2016 submitted his final report on 01.04.2015, holding that the charges against the 2nd respondent/employee are held proved. Accepting the report of the enquiry officer, the Disciplinary Authority issued second show cause notice on 18.05.2015, providing an opportunity to the second respondent/employee to submit his further objections on the findings of the enquiry officer. The second respondent/employee made a request for fresh enquiry by the enquiry officer. On 23.09.2015 at 11.00 am, the second respondent/employee was called for personal hearing, but he had not chosen to appear for the personal hearing and thereafter, the file was placed before the committee for discussion and for taking a decision. The committee, after elaborate discussion, passed a Resolution on 23.09.2015, to terminate the services of the second respondent. Consequently, the second respondent/employee was dismissed from service in proceedings dated 25.09.2015. The second respondent/employee filed a Revision Petition under Section 153 of the Tamil Nadu Co-operative Societies Act, 1983 before the first respondent on 25.09.2015 and the first respondent / Revisional Authority through the impugned order dated 14.07.2016, allowed the Revision Petition partly and modified the punishment of dismissal from service to that of 3 years of stoppage of increment without 4/16 https://www.mhc.tn.gov.in/judis W.P.No.31443 of 2016 cumulative effect. Thus, the Management of the Co-operative Society is constrained to move the present writ petition.
4. The learned counsel for the petitioner mainly contended that the proved charges are very serious and the charges proved including the allegations of misappropriation. When the petitioner was imposed the punishment of dismissal from service for the proved charges of misappropriation and other serious misconducts, there is no reason for the first respondent / Revisional Authority to modify the punishment. The modification of punishment was made based on extraneous considerations and therefore, the modified punishment is not in commensuration with the gravity of the proved charges of misappropriation of the funds of the society and other serious misconducts.
5. The learned counsel for the petitioner made a submission that the modification of punishment is untenable, in view of the judgment of the Hon'ble Supreme Court of India in the case of U.P.State Road Transport Corporation Vs. Vinod Kumar, reported in (2008) 1 SCC 115 and the relevant Paragraph Nos.10 and 11 are extracted hereunder: 5/16 https://www.mhc.tn.gov.in/judis W.P.No.31443 of 2016 “10. As stated in the preceding paragraphs, the respondent had confined his case only to the conclusions reached by the enquiry officer as well as the quantum of punishment. Therefore, since the respondent had not challenged the correctness, legality or validity of the inquiry conducted, it was not open to the Labour Court to go into the findings recorded by the enquiry officer regarding the misconduct committed by the respondent. This Court in a number of judgments has held that the punishment of removal/dismissal is the appropriate punishment for an employee found guilty of misappropriation of funds; and the courts should be reluctant to reduce the punishment on misplaced sympathy for a workman. That, there is nothing wrong in the employer losing confidence or faith in such an employee and awarding punishment of dismissal. That, in such cases, there is no place for generosity or misplaced sympathy on the part of the judicial forums and interfering with the quantum of punishment. Without burdening the judgment with all the judgments of this Court on this point, we may only refer to a recent judgment in Divisional Controller, N.E.K.R.T.C. v. H. Amaresh [(2006) 6 SCC 187 : 2006 SCC (L&S) 1290] wherein this Court, after taking into account the earlier decisions, held in para 18 as under : (SCC p. 193) “18. In the instant case, the misappropriation of the funds by the delinquent employee was only Rs 360.95. This Court has considered the punishment 6/16 https://www.mhc.tn.gov.in/judis W.P.No.31443 of 2016 that may be awarded to the delinquent employees who misappropriated the funds of the Corporation and the factors to be considered. This Court in a catena of judgments held that the loss of confidence is the primary factor and not the amount of money misappropriated and that the sympathy or generosity cannot be a factor which is impermissible in law. When an employee is found guilty of pilferage or of misappropriating the Corporation's funds, there is nothing wrong in the Corporation losing confidence or faith in such an employee and awarding punishment of dismissal. In such cases, there is no place for generosity or misplaced sympathy on the part of the judicial forums and interfering therefore with the quantum of punishment. The judgment in Karnataka SRTC v. B.S. Hullikatti [(2001) 2 SCC 574 : 2001 SCC (L&S) 469] was also relied on in this judgment among others. Examination of the passengers of the vehicle from whom the said sum was collected was also not essential. In our view, possession of the said excess sum of money on the part of the respondent, a fact proved, is itself a misconduct and hence the Labour Court and the learned Judges of the High Court misdirected themselves in insisting on the evidence of the passengers which is wholly not essential. This apart, the respondent did not have any explanation for having carried the said excess amount. This omission was sufficient to hold him guilty. This act was so grossly negligent that the respondent was not fit to be retained as a conductor because such action or inaction of his was bound to result in financial loss to the appellant irrespective of the quantum.” 7/16 https://www.mhc.tn.gov.in/judis W.P.No.31443 of 2016
11. Respectfully agreeing and following the aforesaid decision of this Court, we accept this appeal and set aside the judgment of the High Court as well as the order passed by the Labour Court. Consequently, the order passed by the punishing authority dismissing/removing the respondent from service is restored. No costs.”
6. The learned counsel for the petitioner further relied on the judgment of the Hon'ble Supreme Court of India in the case of Janatha Bazar (South Kanara Central Cooperative Wholesale Stores Limited) and others, reported in (2000) 7 SCC 517 and the Apex Court held as follows:
“3. The question involved in these appeals is — whether the High Court was justified in confirming the order passed by the Labour Court reinstating the respondent workmen with 25% back wages in spite of specific finding of fact that the charges of breach of trust and misappropriation of goods for the value given in the said charges had been clearly established. Apparently, it would be an unjustified direction to reinstate an employee against whom charge of misappropriation is established. A proved act of misappropriation cannot be taken lightly even though a number of such misappropriation cases remain undisclosed and such employees or others amass wealth by such means. In any case, misappropriation cannot be rewarded or legalised by reinstatement in service with full or part of back wages.8/16
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6. As stated above, the learned Single Judge and the Division Bench in writ appeals confirmed the findings given by the Labour Court that charges against the workmen for breach of trust and misappropriation of funds entrusted to them for the value mentioned in the charge-sheet had been established. After giving the said findings, in our view, the Labour Court materially erred in setting aside the order passed by the management removing the workmen from service and reinstating them with 25% back wages. Once an act of misappropriation is proved, maybe for a small or large amount, there is no question of showing uncalled-for sympathy and reinstating the employees in service. Law on this point is well settled. (Re: Municipal Committee, Bahadurgarh v. Krishnan Behari [(1996) 2 SCC 714 : 1996 SCC (L&S) 539 : (1996) 33 ATC 238] .) In U.P.
SRTC v. Basudeo Chaudhary [(1997) 11 SCC 370 : 1998 SCC (L&S) 155] this Court set aside the judgment passed by the High Court in a case where a conductor serving with U.P. State Road Transport Corporation was removed from service on the ground that the alleged misconduct of the conductor was an attempt to cause loss of Rs 65 to the Corporation by issuing tickets to 23 passengers for a sum of Rs 2.35 but recovering @ Rs 5.35 per head and also by making entry in the waybill as having received the amount of Rs 2.35, which figure was subsequently altered to Rs 2.85. The Court held 9/16 https://www.mhc.tn.gov.in/judis W.P.No.31443 of 2016 that it was not possible to say that the Corporation removing the conductor from service has imposed a punishment which is disproportionate to his misconduct. Similarly in Punjab Dairy Development Corpn. Ltd. v. Kala Singh [(1997) 6 SCC 159 : 1997 SCC (L&S) 1434] this Court considered the case of a workman who was working as a Dairy Helper-cum-Cleaner for collecting milk from various centres and was charged for the misconduct that he inflated the quantum of milk supplies in the milk centres and also inflated the quality of fat contents where there were less fat contents. The Court held (at SCC pp. 161-62, para 4) that in view of the proof of misconduct a necessary consequence will be that the management had lost confidence that the workman would truthfully and faithfully carry on his duties and consequently the Labour Court rightly declined to exercise the power under Section 11-A of the ID Act to grant relief with minor penalty.”
7. Relying on the above judgments, the learned counsel for the petitioner made a submission that the deficit of stocks, misappropriation of funds, causing financial loss to the society and other irregularities in dealing with the family card holders and the related misconducts were held proved by the Enquiry officer with an elaborate findings. When such serious allegations or misappropriation of funds and misconducts are established, 10/16 https://www.mhc.tn.gov.in/judis W.P.No.31443 of 2016 there is no reason for the first respondent / Revisional Authority to modify the punishment of dismissal from service to that of stoppage of increment for three years that too without cumulative effect.
8. The reason stated by the Revisional Authority is that the punishment of dismissal from service is disproportionate with the gravity of the proved charges. Prima facie, the reason stated is untenable, in view of the grave allegations, which was held proved against the second respondent/ employee.
9. The learned counsel for the second respondent/employee objected the said contention by stating that the Revisional Authority considered the entire facts and circumstances and formed an opinion that the punishment of dismissal from service is excessive and disproportionate with the gravity of the charges framed against the second respondent. Thus, there is no infirmity and consequently, the writ petition is to be rejected.
10. Considering the arguments and perusal of the Revisional order passed by the 1st respondent, this Court is of the considered opinion that the 11/16 https://www.mhc.tn.gov.in/judis W.P.No.31443 of 2016 order passed by the writ petitioner Management, imposing the penalty of dismissal from service reveals that the petitioner had involved in the serious allegations of misappropriation of the funds of the society and further, committed an act of misconduct against the family card holders, who have given complaint against the second respondent. That apart, there was a deficit of stock in the Fair Price Shop, which caused financial loss to the society. The enquiry officer conducted a detailed enquiry and found that the charges are held proved. The findings of the enquiry officer reveals that the documents and evidences submitted by the prosecution and the defence made by the second respondent/employee were considered and finally, the findings were recorded by stating that the petitioner has committed an act of misappropriation of the funds and further, the other misconducts are held proved.
11. Considering the proved charges and the seriousness involved with reference to the proved charges, the punishment of dismissal from service was issued by the Management of the writ petitioner Co-operative Society. However, the first respondent though recorded the facts, circumstances as well as the findings of the Enquiry officer, finally, formed an opinion that 12/16 https://www.mhc.tn.gov.in/judis W.P.No.31443 of 2016 the punishment of dismissal from service is disproportionate with the gravity of the proved charges. Such a finding does not seems to be based on sound reasons. Whenever a Revisional Authority formed an opinion that the punishment imposed by the Disciplinary Authority is not in commensuration with the gravity of the proved charges, then adequate reasons must be recorded for setting aside the punishment or to modify the punishment.
12. In the present case, except by stating that the punishment is excessive and the petitioner had served for long years, no other reason has been given for the purpose of modifying the punishment with reference to the reasons recorded for imposing the punishment of dismissal from service by the Disciplinary Authority. More specifically, the reasons recorded for imposing the penalty of dismissal from service must be dealt with by the Revisional Authority. If at all, an opinion is formed that the punishment is disproportionate, merely recording that the punishment is successive or considering the long services of an employee alone cannot be an acceptable reason for the purpose of setting aside the punishment of dismissal from service imposed by the Disciplinary Authority. The Revisional Authority 13/16 https://www.mhc.tn.gov.in/judis W.P.No.31443 of 2016 has recorded the fact that the petitioner has committed an act of misconduct, however, failed to consider the proved charges of misappropriation of the funds of the society and other allegations. While accepting the misconducts, the Revisional Authority arrived a conclusion that the punishment is excessive and accordingly, modified the punishment. The other reasons stated on misplaced sympathy cannot be accepted for the purpose of considering the order passed by the first respondent in Revision Petition. In the matter of disciplinary proceedings, any misplaced sympathy would result in serious consequences and therefore, the consideration shown by the 1st respondent for setting aside the punishment of dismissal from service are untenable and not based on any sound and acceptable reasons.
13. For all these reasons, the impugned order passed by the first respondent in proceedings Na.Ka.No.6772/2015/Sa.pa. dated 14.07.2016 is quashed and the writ petition stands allowed. No costs.
16.09.2022 Index : Yes Speaking order:Yes kak 14/16 https://www.mhc.tn.gov.in/judis W.P.No.31443 of 2016 To
1.The Joint Registrar of Co-operative Societies, Kanchipuram Zone, Kanchipuram.
15/16 https://www.mhc.tn.gov.in/judis W.P.No.31443 of 2016 S.M.SUBRAMANIAM, J.
kak W.P.No.31443 of 2016 16.09.2022 16/16 https://www.mhc.tn.gov.in/judis