The Principal Secretary To ... vs K.R.Palanisamy
2021 Latest Caselaw 16226 Mad

                                                                                    W.A.No.1558/2021


                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                   DATED : 10.08.2021

                                                         CORAM

                          THE HONOURABLE MRS. JUSTICE PUSHPA SATHYANARAYANA
                                                 AND
                             THE HONOURABLE MR.JUSTICE KRISHNAN RAMASAMY

                                               W.A.No.1558 of 2021
                                             and C.M.P.No.9838 of 2021


                      1. The Principal Secretary to Government,
                         Department of School Education,
                         Secretariat, Chennai-600 009.

                      2. The Director of School Education,
                         Directorate of School Education,
                         Chennai.

                      3. The Joint Director,
                         (Paniyalar Thougudhi),
                         Directorate of School Education,
                         Chennai.                                           ..
                      Appellants/Respondents

                                                          Vs.

                      K.R.Palanisamy                                   .. Respondent/Petitioner
                                                         ***
                      Prayer :    Writ Appeal filed under Clause 15 of Letters Patent against
                      the order dated 11.09.2018 in W.P.No.12885 of 2010.
                                                         ***
                                  For Appellants     :    Mr.R.Neelagandan
                                                          State Government Counsel

                                  For Respondent :        Mr.Agilesh




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                                                                                             W.A.No.1558/2021


                                                         JUDGEMENT

PUSHPA SATHYANARAYANA, J.

This is an appeal filed by the Government seeking to set aside the

order of the learned Single Judge dated 11.09.2018 made in

W.P.No.12885 of 2010, wherein and whereby, the order of the

Government rejecting the petition submitted by the writ petitioner

seeking to modify the punishment of removal from service imposed on

him into one of compulsory retirement was set aside and certain

directions were issued.

2. The writ petitioner had served as an Assistant Elementary

Educational Officer between 13.06.1990 and 30.06.1995 at

Bhavanisagar, Erode District and after his transfer to the teacher post, a

special audit was conducted with respect to the Provident Fund

Accounts (PF) maintained in the office of the Assistant Elementary

Educational Officer, which revealed misappropriation of funds

committed by the petitioner and two others, namely, Prabhakaran and

N.Subramanian. Their modus operandi was that without there being

applications from the teachers for PF loan, the accused persons issued

proceedings by preparing bill entries and took cash from the bank

without disbursing the same to the concerned teachers. The amount so

misappropriated was pegged at Rs.2,98,547/- and therefore, the

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criminal prosecution was initiated and the same ended in conviction,

thereby, sentencing the writ petitioner and others to undergo two years

imprisonment with appropriate fine amounts. On appeal, the appellate

court, namely, Fast Track Court, Gopichettipalayam, affirmed the

conviction and sentence on 13.02.2003. He preferred revision petition in

Crl.R.C.No.221 of 2003 and this Court vide order dated 19.03.2004,

modified the sentence of imprisonment into the one of fine of

Rs.50,000/-. In the interregnum, the petitioner was removed from the

service vide proceedings dated 28.08.2003 issued by the third

respondent in the writ petition/third appellant herein. The appeal

preferred by the writ petitioner questioning the said order was rejected

by the second respondent on 30.04.2004 confirming the order of the

third respondent. Annexing the order of this Court in the aforesaid

criminal revision case, the petitioner filed a petition before the

Government, the rejection order of the same in G.O.(ID) No.370, School

Education Department, dated 06.10.2009 is put to the challenge before

the writ Court. The writ court vide the impugned order dated

11.09.2018 allowed the writ petition. Thus, the appeal came to be filed.

3. According to the writ petitioner, one of the co-accused

persons, namely, N.Subramanian was also punished by the criminal

court and dismissed from service, but the Director of Elementary

Education had modified the dismissal order and thereby inflicted the http://www.judis.nic.in Page 3/12 W.A.No.1558/2021

punishment of compulsory retirement. Thus, he sought for the similar

benefit, which was granted by the writ Court and the said order need

not be disturbed.

4. The appellants herein, as the respondents, pleaded before

the Writ Court that since the writ petitioner became B.T. Assistant

subsequent to the commission of the alleged misappropriation, the

Director of School Education dealt with the disciplinary proceedings,

whereas, the co-accused N.Subramanian remained in the same post and

hence, the disciplinary proceedings against him was concluded by the

Director of Elementary Education and thus, two different authorities

passed two different orders with respect to the two delinquents, and

such exercise of power cannot be found fault with. It is also contended

that this Court in the criminal revision case confirmed the conviction of

the writ petitioner and only modified the sentence imposed on him and

therefore, there is no reason for the appellate authority to modify the

punishment of removal from service, as has been prayed by the writ

petitioner.

5. The learned counsel appearing on behalf of the respondent/

writ petitioner contended that the writ petitioner and two other co-

accused have been tried for the same set of allegations both in the

criminal proceedings as well as the departmental proceedings and http://www.judis.nic.in Page 4/12 W.A.No.1558/2021

imposed with the similar punishment, but the two different appellate

authorities passed two different orders, one modifying the punishment

of removal from service to compulsory retirement, while the other

refused to do so, which cannot be held right in the eye of law. The

learned Single Judge, upon appreciation of all the materials, rightly

passed the impugned order. The learned counsel prayed for dismissal

of this appeal.

6. We have heard the learned counsels on either side and

perused the materials placed before us.

7. It is to be stated that the writ petitioner, who is the

respondent herein, involved in the criminal case along with two other

accused. They have been proceeded with departmentally and criminally

and both the proceedings ended against them. In the criminal case the

trial court and appellate court found the accused guilty and sentenced

them. This Court, which is the revisional court, while confirming the

conviction, only modified the sentence to one of fine. Similarly, in the

departmental proceedings also, the writ petitioner and other accused

were found guilty and they were imposed with the punishment of

removal from service. However, when they went on appeal, since the

writ petitioner became B.T. Assistant subsequent to the commission of

the alleged misappropriation, the Director of School Education dealt http://www.judis.nic.in Page 5/12 W.A.No.1558/2021

with the appeal, whereas, the co-accused N.Subramanian held the same

post and hence, order in his appeal was passed by the Director of

Elementary Education modifying the punishment imposed against him to

one of compulsory retirement.

8. This Court is of the view that for the same set of allegations,

though the accused were tried by the Court in its criminal jurisdiction

and all the three have been given similar punishment, in the disciplinary

proceedings at the appeal stage, the writ petitioner alone was treated

differently, which is impermissible. The reason attributed for such

discrimination being that the two different authorities exercised the

appellate jurisdiction cannot hold water, as has been held by the

learned Single Judge, for the simple reason that the doctrine of equality

is applicable to all similarly placed persons. For holding so, the learned

Single Judge also relied upon the judgment of the Hon'ble Supreme

Court in Rajendra Yadav V. State of Madhya Pradesh, (2013) 3 SCC

9. The learned counsel for the respondent also placed reliance

on the judgments of the Hon'ble Supreme Court in Director General of

Police V. G.Dasayan, (1998) 2 SCC 407 and Anand Regional Coop.

Oil Seedsgrowers' Union Ltd. V. Shaileshkumar Harshadbhai Shah,

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(2006) 6 SCC 548, to contend that the co-delinquents should be

treated on a similar footing.

10. In Naresh Chandra Bhardwaj v. Bank of India, (2019)

15 SCC 786, the Hon'ble Supreme Court held as follows :

"5. It is trite to say that the domain of the courts on the issue of quantum of punishment is very limited. It is the disciplinary authority or the appellate authority, which decides the nature of punishment keeping in mind the seriousness of the misconduct committed. This would not imply that if the punishment is so disproportionate that it shocks the conscience of the court the courts are denuded of the authority to interfere with the same. Normally even in such cases it may be appropriate to remit the matter back for consideration by the disciplinary/appellate authority. However, one other cause for interference can be where the plea raised is of parity in punishment but then the prerequisite would be that the parity has to be in the nature of charges made and held against the delinquent employee and the conduct of the employee post the incident. It is the latter aspect which is sought to be advanced by the learned counsel for the appellant by relying upon the judgment in Rajendra Yadav v. State of M.P. (2013) 3 SCC 73. On this very aspect the learned counsel for the respondents drew out attention to a subsequent judgment in Lucknow Kshetriya Gramin Bank v. Rajendra Singh, (2013) 12 SCC 372, which had taken note of the earlier judgment referred to aforesaid.

6. There is really no difference in the proposition, which is sought to be propounded except that in the latter judgment the principles have been succinctly summarised in the last paragraph of the judgment, which read as under:

“19. The principles discussed above can be summed up

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and summarised as follows:

19.1. When charge(s) of misconduct is proved in an enquiry the quantum of punishment to be imposed in a particular case is essentially the domain of the departmental authorities.

19.2. The courts cannot assume the function of disciplinary/departmental authorities and to decide the quantum of punishment and nature of penalty to be awarded, as this function is exclusively within the jurisdiction of the competent authority.

19.3. Limited judicial review is available to interfere with the punishment imposed by the disciplinary authority, only in cases where such penalty is found to be shocking to the conscience of the court.

19.4. Even in such a case when the punishment is set aside as shockingly disproportionate to the nature of charges framed against the delinquent employee, the appropriate course of action is to remit the matter back to the disciplinary authority or the appellate authority with direction to pass appropriate order of penalty. The court by itself cannot mandate as to what should be the penalty in such a case.

19.5. The only exception to the principle stated in para 19.4 above, would be in those cases where the co-delinquent is awarded lesser punishment by the disciplinary authority even when the charges of misconduct was identical or the co-

delinquent was foisted with more serious charges. This would be on the doctrine of equality when it is found that the employee concerned and the co-delinquent are equally placed. However, there has to be a complete parity between the two, not only in respect of nature of charge but subsequent conduct as well after the service of charge-sheet in the two cases. If co-delinquent accepts the charges, indicating remorse with unqualified apology, lesser punishment to him would be justifiable.” (emphasis supplied)

7. The principle, thus culled out, is that remitting a matter on the http://www.judis.nic.in Page 8/12 W.A.No.1558/2021

issue of quantum of punishment would be as set out in para 19.5 aforesaid of Lucknow Kshetriya Gramin Bank v. Rajendra Singh, (2013) 12 SCC 372, i.e. where a co-delinquent is awarded lesser punishment by the disciplinary authority even when the charges of misconduct were identical or the co-delinquent was foisted with more serious charges. This is based on the principle of equality but then there has to be an absolute parity."

11. A reading of the above paragraphs makes it abundantly

clear that the courts cannot assume the function of

disciplinary/departmental authorities and to decide the quantum of

punishment and nature of penalty to be awarded, as this function is

exclusively within the jurisdiction of the competent authority, but, an

exception is carved out therein to the effect that if the co-delinquent is

awarded lesser punishment by the disciplinary authority even when the

charges of misconduct was identical or the co-delinquent was foisted

with more serious charges, then the Court is at liberty to interfere with

the punishment. In such case, instead of remitting the matter back, the

Court can substitute a suitable punishment.

12. If the principle enunciated in the above judgments is applied

to the facts of the instant case, it is clear that the writ petitioner is

entitled for the similar treatment, that has been extended to

N.Subramanian and after passage of time, remitting the matter again to

the authorities would not serve any purpose. Thus, directing the

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authorities to modify the punishment imposed on the writ petitioner to

the one that has been imposed on N.Subramanian would meet the ends

of justice. Thus, the learned Single Judge rightly set aside the

Government Order refusing to extent such benefit to him. We find no

reason to interfere with the said order.

13. For the foregoing reasons, the Writ Appeal is dismissed and

the order of the learned Single Judge is confirmed. The appellants are

directed to comply with the directions issued by the learned Single

Judge within a period of four weeks from the date of receipt of a copy of

this order. However, there will be no order as to costs. Consequently,

connected miscellaneous petition is closed.

(P.S.N., J.) (K.R., J.,) 10.08.2021 Index : Yes / No Internet: Yes gg

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To

1. The Principal Secretary to Government, Department of School Education, Secretariat, Chennai-600 009.

2. The Director of School Education, Directorate of School Education, Chennai.

3. The Joint Director, (Paniyalar Thougudhi), Directorate of School Education, Chennai.

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PUSHPA SATHYANARAYANA, J.

AND KRISHNAN RAMASAMY, J.

gg

W.A.No.1558 of 2021

10.08.2021

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