Madras High Court
Unknown vs The Joint Registrar Of ... on 16 September, 2022
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
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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
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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
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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
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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:
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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
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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.”
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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.
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W.P.No.31443 of 2016
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
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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,
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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
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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
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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
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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
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W.P.No.31443 of 2016
To
1.The Joint Registrar of Co-operative Societies,
Kanchipuram Zone,
Kanchipuram.
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W.P.No.31443 of 2016
S.M.SUBRAMANIAM, J.
kak
W.P.No.31443 of 2016
16.09.2022
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