Madras High Court
V.Gandhimathi vs The State Of Tamil Nadu on 5 November, 2024
Author: R.Vijayakumar
Bench: R.Vijayakumar
W.P(MD).No.16663 of 2023
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
ORDER RESERVED ON : 17.10.2024
ORDER PRONOUNCED ON : 05.11.2024
CORAM:
THE HONOURABLE MR.JUSTICE R.VIJAYAKUMAR
W.P.(MD).No.6659 of 2023
and WMP(MD).Nos.6291, 6292 & 26673 of 2023
V.Gandhimathi ....Petitioner
Vs
1.The State of Tamil Nadu
Represented by its Principal Secretary
Social Welfare and Women Empowerment Department
Fort St.George, Chennai 600 009
2.The Commissioner/Director
Social Welfare and Women Empowerment Department
Guindy, Chennai 600 015
3.The Additional Director
Social Welfare and Women Empowerment Department
Guindy, Chennai 600 015
4.The District Social Welfare Officer
Tirunelveli, Tirunelveli District ...Respondents
Prayer : This Petition filed under Article 226 of the Constitution of India, to
issue a Writ of Certiorarified Mandamus calling for the records relating to the
impugned order passed by the second respondent Director, Social Welfare
Department in proceeding Se.Mu.Na.Ka.32283/Niru 5(1)/2013 dated
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1/19
W.P(MD).No.16663 of 2023
14.03.2023 dismissing the petitioner from service as Industrial Co-operative
Officer in the respondent Department, quash the same as illegal and void and
direct the respondents to reinstate the petitioner in service as Industrial
Cooperative Officer with monetary benefits and all other consequential
benefits.
For Petitioner : Mr.Isaac Mohanlal
Senior Counsel for
M/s.Isaac Chambers
For Respondents : Mr.S.S.Madhavan
Government Advocate
ORDER
The instant writ petition has been filed by an Industrial Co-operative
Supervisor challenging the order of punishment of dismissal from service
dated 14.03.2023 issued by the second respondent.
(A)Facts leading to the filing of this writ petition are as follows:
2.The petitioner herein while she was working as Industrial
Co-operative Supervisor at Valliyoor, was issued with a charge memo on
09.02.2015. The petitioner has submitted her explanation on 24.02.2015. Not
satisfied with the explanation submitted by the petitioner, an enquiry officer
was appointed on 29.07.2021. The enquiry officer had issued a notice to the
petitioner to appear for enquiry on 07.02.2022. On the date, the enquiry was
completed and the enquiry report was submitted on 27.05.2022 to the
disciplinary authority.
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3.The disciplinary authority had issued a show cause notice on
13.06.2022 calling for explanation from the writ petitioner. The petitioner has
submitted her explanation on 06.07.2022. After the said explanation, the
impugned order of dismissal from service was passed under the impugned
order on 14.03.2023. This order is under challenge in the present writ
petition.
(B)Contentions of the learned senior counsel appearing for the writ
petitioner are as follows:
4.The petitioner herein while she was working as an Industrial
Co-operative Supervisor at Valliyoor had signed in various cheques during
her tenure between April 2012 till June 2013. Those cheques were presented
by the Store Keeper Cum Writer of the society namely one Amali before the
Bank and they were encashed. At the time of presenting the cheques, the said
Amali had inserted numerals and forged the cheques and encashed higher
amount than for which the cheque was signed by the writ petitioner. There is
no allegation as against the writ petitioner with regard to misappropriation of
the funds.
5.Proceedings were initiated as against the said Amali under Section 81
of the Tamil Nadu Co-operative Societies Act and out of Rs.71,01,500/-, a
sum of Rs.26,31,500/- has been remitted by the said Amali and thereafter, she
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is absconding.
6.The learned counsel had further contended that the petitioner was
exonerated in the enquiry proceedings under Section 81 of the Co-operative
Societies Act by way of the enquiry report dated 04.12.2013. Under the said
report, only disciplinary proceedings were recommended and surcharge
proceedings were not recommended as against the writ petitioner. Therefore,
there is no allegation of any financial irregularity as against the writ
petitioner.
7.The learned senior counsel had further contended that the F.I.R was
registered as against the writ petitioner in Crime No.397 of 2013. The
petitioner had filed Crl.OP(MD).No.20360 of 2013 to quash the F.I.R and this
Hon'ble Court was pleased to quash the F.I.R on 02.07.2014 indicating the
fact that the petitioner is innocent.
8.The learned senior counsel had further contended that an award was
passed as against the writ petitioner under Section 90 of the Tamil Nadu
Co-operative Societies Act which was set aside by the Principal District
Court, Tirunelveli on 19.04.2022.
9.He had further contended that the enquiry was conducted only on a
single day namely 07.02.2022 and no documents were produced and no
witnesses were examined by the Presenting Officer. In fact, the Presenting
Officer had reported that the records to implicate the writ petitioner are not
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available since they are retained by the District Court. Therefore, charges
have been falsely framed as against the writ petitioner.
10.The learned senior counsel had further contended that there is no
allegation of misconduct as against the writ petitioner but charges relate only
to lack of supervision. In such an event, the punishment of dismissal from
service is disproportionate and shocking to conscience of the Court.
11.He had further contended that the explanation offered by the writ
petitioner after going through the enquiry report has not been considered by
the disciplinary authority before imposing the capital punishment. The
petitioner was not granted any personal hearing either before the enquiry
officer or by the disciplinary authority.
12.The learned senior counsel had further contended that the order of
removal from service has been passed just three months prior to the date of
superannuation. The petitioner having completed unblemished service for
more than 25 years, should not have been imposed with capital punishment
while she is about to retire in three months.
13.The learned senior counsel had relied upon a judgment of the
Hon'ble Supreme Court reported in 1979 (2) SCC 286 (Union of India and
others Vs.J.Ahmed) and contended that mere lapses will not amount to
misconduct. The learned senior counsel had further relied upon a judgment of
the Hon'ble Supreme Court reported in 2000 (8) SCC 236 ( State of
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Uttaranchal and others Vs. Kharak Singh) to contend that the enquiry
should not be an empty formality. The Presenting Officer should lead
evidence and opportunity should be given to the delinquent to cross examine
the witnesses. In the present case, the enquiry was completed on a single day
and no documents were marked and no witnesses were examined. He had
further relied upon a judgment of the Hon'ble Supreme Court reported in
2009 (12) SCC 78 ( Union of India and others Vs. Gyan Chand Chattar)
and contended that every act or omission cannot be considered to be a
misconduct. When the authority is imposing capital punishment, he should
have been recorded reasons for imposing such a punishment. In the impugned
order, no reasons have been recorded for imposing punishment of removal
from service. Hence, he prayed for allowing the writ petition.
(C)Contentions of the learned Government Advocate appearing for
the respondents are as follows:
14.The learned Government Advocate had contended that the cheques
have been filled up by one of the staff by name Amali, leaving out gap so that
she can insert numerals and words. The petitioner had been so negligent that
she has not taken care to see that there are no gaps at the time of filling up
cheques. After the petitioner has signed the cheques, numerals and words
have been inserted by the said Amali and higher amount has been encashed.
Therefore, the petitioner has been rightly found guilty.
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15.The learned Government Advocate had further contended that if the
petitioner had verified the Bank statement every month, it would have been
revealed that one of her staff member had encashed higher amount than the
cheque amount that was signed by the writ petitioner. Therefore, it is a clear
case of negligence on the part of the writ petitioner. He had further contended
that if the petitioner had verified the day book register and wage register
regularly, the staff would not have been in a position to misappropriate the
amount. Therefore, it is a clear case of lack of supervision on the part of the
writ petitioner.
16.The learned Government Advocate had further contended that the
period of delinquency is between April 2012 to June 2013. During the said
period, more than 100 cheques have been signed by the writ petitioner
wherein the staff member namely Amali had inserted words and numerals and
encashed higher amount. Therefore, the petitioner had been lacking in
supervision for nearly one year. The petitioner cannot contend that she is
innocent just because she was exonerated in the enquiry conducted under
Section 81 of the Co-operative Societies Act. He had further contended that
though the petitioner has not misappropriated the amount, due to her
negligence and lack of supervision, the Society has incurred huge loss to an
extent of Rs.79/- lakhs. Another delinquent namely Amali, who had suffered
surcharge order, is absconding and the Society is not able to recover the
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balance amount.
17.The learned Government Advocate had further contended that the
petitioner was given adequate opportunity by the enquiry officer and after
considering her explanation and the statement, the enquiry report has been
submitted to the disciplinary authority. The disciplinary authority has also
considered the explanation offered by the petitioner after the enquiry report.
18.In view of the above said opportunity given to the writ petitioner
and consideration of the authority, the order of removal from service cannot
be considered to be disproportionate to the proved misconduct. Considering
the delinquency, lack of supervision for a period of one year which has
resulted in huge loss of more than Rs.79/- lakhs to the Society, the
punishment of removal from service imposed by the respondents cannot be
considered to be shockingly disproportionate. Hence, he prayed for sustaining
the order of punishment.
19.I have considered the submissions made on either side and perused
the material records.
(D) Discussion:
20.A perusal of the report under Section 81 of the Tamil Nadu
Co-operative Societies Act reveals that the proceedings were initiated under
the said provision as against the writ petitioner along with another staff
member namely M.Amali. The said Amali has not appeared before the
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enquiry despite several notices and paper publications. It is reported that she
is absconding.
21.Section 81 enquiry report further reveals that the entire
misappropriation has been done by the staff member namely Amali and the
petitioner is innocent. Based upon the said findings, the enquiry officer has
recommended for surcharge proceedings as against the said Amali and for
initiation of disciplinary proceedings as against the writ petitioner. It could be
seen from the enquiry report that the said Amali had inserted numerals and
words in the cheque after it was signed by the writ petitioner and presented
the same and withdrawn higher amount than the amount for which the cheque
was issued.
22.A perusal of Section 81 enquiry report reveals that there was
negligence and lack of supervision on the part of the writ petitioner and
therefore, disciplinary proceedings have been recommended.
23.The F.I.R that was registered as against the writ petitioner has been
quashed by this Court in Crl.O.P(MD).No.20360 of 2013 on 02.07.2014. The
proceedings that were initiated under Section 90 of the Co-operative
Societies Act as against the writ petitioner were set aside by the Principal
District Judge, Tirunelveli on 19.04.2022 in CMA(cs).Nos. 10 to 34 and
CMA(cs).Nos.36 to 45 of 2018. Therefore, it is clear that the petitioner has
been exonerated from the enquiry under Section 81 of the Co-operative
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Societies Act, criminal proceedings and the proceedings under Section 90 of
the Co-operative Societies Act.
24.A perusal of the typed set of papers reveals that on 18.07.2013, the
petitioner has informed the fourth respondent about the misappropriation of
staff member namely M.Amali. Only thereafter, the misconduct of the said
Amali came into light. Therefore, it is clear that the petitioner was
a whistle-blower.
25. The petitioner was issued a notice on 03.02.2022 directing her to
appear for an enquiry on 07.02.2022. The petitioner has appeared before the
enquiry officer on the said date and submitted her explanation.
26. Charge No.1 relates to the period between April 2012 to June 2013
wherein it was found that by way of insertion in the cheque, a sum of
Rs.79/- lakhs has been misappropriated by Amali and the petitioner was
negligent in not crossing the cheques. The enquiry officer has found that the
petitioner was negligent at the time of signing the cheques.
27.A perusal of the enquiry report further reveals that 54 self-cheques
have been issued to the said Amali who had misappropriated a sum of
Rs.49,90,000/- and there was a negligence on the part of the writ petitioner in
signing those cheques leaving out gaps. The fourth respondent in the writ
petition has addressed a communication on 02.05.2022 ( after conclusion of
enquiry) to the effect that the day register and wage register have been
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submitted to the District Court, Tirunelveli by the Economic Offence Wing
and they are not available. However, the enquiry officer has proceeded to
hold that the petitioner had aided the said Amali to forge the cheques and
commit misappropriation.
28.A perusal of the enquiry report relating to Charge No.3 reveals that
the petitioner has not prepared the monthly reconciliation report after
comparing it with the Bank statement, wage statement register and cash
register which has resulted in huge loss to the Society. For these charges, the
fourth respondent has addressed a communication on 02.05.2022 to the effect
that the day register and wage register are not available with the office and
they are in the custody of the Court. However, the enquiry officer has
proceeded to confirm the negligence of the writ petitioner.
29.Charge No.4 as against the writ petitioner is that she has not
properly maintained the cash register and wage statement register. The
petitioner has been found guilty for those charges. As far as the Charge No.5
is concerned, the petitioner has been exonerated. Charge No.6 relates to
violation of Rule 20 of the Tamil Nadu Government Servant Conduct Rules.
In view of negligence and lack of supervision which has resulted in huge loss
to the society, the petitioner was found to have violated Rule 20 of the above
said Rules.
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30.The enquiry report was furnished to the writ petitioner and further
explanation was called for by way of proceedings of the fourth respondent
dated 20.06.2022. The petitioner has submitted her further explanation on
06.07.2022 contending that she has already been exonerated under Section 81
enquiry, criminal proceedings and arbitration proceedings. She had further
contended that only on her complaint, misappropriation of staff namely Amali
came to light and therefore, the enquiry report alleging that the charges are
proved as against her is not factually correct. She had further contended that
she had never aided the staff member namely Amali in committing
misappropriation. In fact, the said Amali had committed breach of trust and
inserted numerals and words and encashed the higher amount. Hence, she had
requested for dropping the further action. However, not being satisfied with
the explanation, the second respondent under the impugned proceedings
dated 14.03.2023 has imposed a punishment of dismissal from service
recording the following reasons:
(i) r%f ey ,af;Fehpd; KbT:
“Analysed the file carefully. The Accused Officer is framed with
6 charges. Based on the Accused Officer's reply, further reply, Inquiry
Officer's Report, it is concluded as follows:
1)Loss to the Society of Rs.79,01,500/- is confirmed.
2)Rs.26,31,500/- has been remitted back by Tmt.Amali, the
Clerk-cum-Store Keeper.
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3)The Registers were not checked by the Accused Officer
peridically.
4)The Accounts and the balance, as per the bank pass book was
no reconciled.
5)Bank reconciliation Register, Cheque issue register which are
all mandatory registers are neither maintained nor verified by the
Accused Officer.
The period of offence is from November 2012 to May 2013.
Had the Accused Officer checked the registers periodically which
are mandatory, the offence would have come to light in the
beginning itself and the misappropriation would have been curtailed
in the first attempt itself.
The Accused Officer has miserably failed in performing her
duty and had aided in the misappropriation either directly or
indirectly. Taking into consideration, the amount involved in the
misappropriation and the manner in which it had taken place, the
Accused Officer warrants a severe punishment.
The misappropriation had taken place in almost 61 cheques over
a period of nearly 7 months. The Accused Officer's negligence towards
and lack of devotion had led to the series of offence. As the loss is also
confirmed loss, the Accused Officer is awarded with the punishment of
“Dismissal from Service”.
31.The facts captured above will clearly indicate that the petitioner is
not guilty of misappropriation of any amount. However, the petitioner has
been grossly negligent in not periodically checking the relevant registers for
nearly a period of 7 months. This has resulted in directly aiding the staff
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member namely Amali in committing misappropriation of huge sum of
Rs.79/- lakhs through 61 cheques. The charges issued to the writ petitioner
under Rule 17(b) of Tamil Nadu Civil Services (Discipline and Appeal) Rules
reveals that all the charges relate to negligence and lack of supervision on the
part of the writ petitioner. The disciplinary authority has been carried away by
quantum of loss to the Society and has imposed the capital punishment of
dismissal from service. In fact, there is no finding that the petitioner had
colluded with the staff member namely Amali or derived benefit out of the
said misappropriation.
32.This Court is of the considered opinion that the imposition of
removal from service is highly disproportionate to the proved charges due to
the following reasons:
(i) There is no allegation as against the writ petitioner with regard to
misappropriation. She had been exonerated in the proceedings initiated under
Section 81 of the Co-operative Societies Act.
(ii)The criminal proceedings initiated by the department has been
quashed by this Court holding that it is an abuse of process of Court.
(iii)The proceedings initiated under Section 90 of the Co-operative
Societies Act as against the writ petitioner have been set aside by the
Principal District Court, Tirunelveli on 19.04.2022 and the same has attained
finality.
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(iv)The departmental enquiry has been completed on a single day and
no documents or witnesses have been examined. In the fact, the fourth
respondent has sent a communication to the enquiry officer (after completion
of enquiry) that the documents are in the custody of the Court and they
cannot be produced.
(v)When the order of dismissal was issued, just three months of service
was left out.
(vi)There is no other proceedings or any enquiry as against the writ
petitioner prior to the disciplinary proceedings and she had completed 30
years of unblemished service, when the charge memo was issued to the writ
petitioner in the year 2015.
33.The Hon'ble Supreme Court in a judgment reported in 2022 INSC 231
( Union of India & others Vs.Managobinda Samantaray) in paragraph No.9 has held
as follows:
“9.......Quantum of punishment is within the discretionary
domain and the sole power of the decision-making authority once the
charge of misconduct stands proved. Such discretionary power is
exposed to judicial interference if exercised in a manner which is
grossly disproportionate to the fault, as the constitutional courts
while exercising the power of judicial review do not assume the role
of the appellate authority. Writ jurisdiction is circumscribed by limits
of correcting errors of law, procedural error leading to manifest
injustice or violation of principles of natural justice. The decision are
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also disturbed when it is found to be ailing with perversity. 5 On the
question of quantum of punishment, the court exercising the power of
judicial review can examine whether the authority has been a
reasonable employer and has taken into consideration measure,
magnitude and degree of misconduct and all other relevant
circumstances and excluded irrelevant matters. In the context of
quantum of punishment these aspects are examined to consider
whether there is any error in decision making process. On merits of
the quantum of punishment imposed, the courts would not interfere
unless the exercise of discretion in awarding punishment is perverse
in the sense the punishment imposed is grossly disproportionate.”
34.In view of the above said deliberations, this Court is of the
considered opinion that the punishment of removal from service imposed
upon the writ petitioner is not only disproportionate, but shockingly
disproportionate, considering the type of duty and relevant circumstances as
stated above. The employer has not taken into consideration the magnitude
and degree of misconduct of the writ petitioner. The employer has not taken
into consideration the reasons catalogued in para 32 which would warrant
imposition of lesser punishment upon the writ petitioner.
35.The Hon'ble Supreme Court in a judgement reported in (2001) 2
SCC 386 (Om Kumar and others Vs. Union of India) in paragraph No.71
has held as follows:
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“71.Thus, from the above principles and decided cases, it must
be held that where an administrative decision relating to
punishment in disciplinary cases is questioned as 'arbitrary' under
Article 14, the Court is confined to Wednesbury principles as a
secondary reviewing authority. The court will not apply
proportionality as a primary reviewing Court because no issue of
fundamental freedoms nor of discrimination under Article 14
applies in such a context. The Court while reviewing punishment
and if it is satisfied that Wednesbury principles are violated, it has
normally to remit the matter to the administrator for a fresh
decision as to the quantum of punishment. Only in rare cases where
there has been long delay in the time taken by the disciplinary
proceedings and in the time taken in the Courts, and such extreme
or rare cases can the Court substitute its own view as to the quantum
of punishment.”
36.In view of the judgment of the Hon'ble Supreme Court and the
reasons stated above, the order of removal from service is set aside and this
Court is inclined to remit the matter to the second respondent herein to
decide the quantum of punishment other than removal from service.
37.In the result, this Writ Petition is allowed to the extent as stated
above and the matter is remitted back to the file of the second respondent to
pass orders on merits and in accordance with law in the light of the
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observations made by this Court. No costs. Consequently, connected
miscellaneous petitions are closed.
05.11.2024.
Internet : Yes/No
Index : Yes/No
NCC : Yes/No
To
1.The Principal Secretary
State of Tamil Nadu
Social Welfare and Women Empowerment Department
Fort St.George, Chennai 600 009
2.The Commissioner/Director
Social Welfare and Women Empowerment Department
Guindy, Chennai 600 015
3.The Additional Director
Social Welfare and Women Empowerment Department
Guindy, Chennai 600 015
4.The District Social Welfare Officer
Tirunelveli, Tirunelveli District
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R.VIJAYAKUMAR, J.
msa
Pre-delivery order made in
W.P.(MD).No.6659 of 2023 and
WMP(MD).Nos.6291, 6292 & 26673
of 2023
05.11.2024
https://www.mhc.tn.gov.in/judis
