Madras High Court
K.Shanmugam vs The Managing Director on 8 April, 2025
W.P.(MD)No.6856 of 2019
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 08.04.2025
CORAM
THE HON'BLE MR.JUSTICE M.JOTHIRAMAN
W.P.(MD)No.6856 of 2019
and
W.M.P.(MD)Nos.2187 & 5466 of 2019
K.Shanmugam ... Petitioner
Vs.
1.The Managing Director,
Tamil Nadu Civil Supplies,
12, Thabusamy Road,
Kilpauk, Chennai.
2.The Regional Manager,
Tamil Nadu Civil Supplies,
Madurai Region,
Maurai. ... Respondents
PRAYER : Writ Petition filed under Article 226 of the Constitution of
India, to issue a Writ of Certiorarified Mandamus, to call for the entire
records of the impugned order passed by the first respondent in his
Se.Mu.Aa.No.Aad2/34335/2018 dated 20.02.2019 and quash the same
as illegal and consequently direct the respondents to promote the
petitioner for the post of Junior Assistant based on the seniority list dated
01.10.2015 with effect from 22.07.2016, within the time stipulated by
this Court.
1/15
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W.P.(MD)No.6856 of 2019
For Petitioner : Mr.
For R1 : Mr.
ORDER
Under assail is the order dated 20.02.2019 imposing punishment of
stoppage of increment for two years with cumulative effect.
2.The case of the petitioner is that he is working as Bill Clerk in
CRS Shop No.29, Koodal Nagar, Madurai District. He joined Civil
Supply Corporation as a Seasonal Helper as early as on 22.04.2010 and
thereafter, he was confirmed as a Bill Clerk from 05.03.2019. While he
was working as a Bill Clerk along with Backer, viz, Ramaiah, the then
Regional Manager viz., Rehobagyam issued a proceedings directing a
two members committee to conduct inspection in CRS shop No.30.
Accordingly, on 01.05.2016 between 12.00 noon to 05.00 pm, inspection
was conducted. At the time of inspection, they did not find any default
or mistake against the petitioner and therefore, they have taken the
original records of “C” Register from the shop, which itself against the
Rules. In the meantime, in the criminal proceedings came to be initiated
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in C.C.No.2 of 2017 on the Judicial Magistrate No.III (C.C.I.W),
Madurai. The petitioner had been acquitted vide judgment dated
11.01.2019. The petitioner made a representation before the first
respondent by furnishing copy of the judgement and also requested to
consider in the light of the above said judgment. However, the first
respondent in total non application of mind, without even referring to the
grounds raised in the appeal, mechanically rejected the same vide order
dated 20.02.2019. Hence, the petitioner has come forward with the
present writ petition to challenge the impugned order on the ground of
selective punishment.
3.The learned counsel appearing for the petitioner would submit
that the order impugned came to be passed only to harass the petitioner,
who is active participant in the Employees Union, like CITU, that too
when no evidence is proved against the petitioner. He would submit that
for the very same incident, the second respondent initiated criminal
proceedings and the petitioner was acquitted on 11.01.2019. He would
submit that all the charges levelled against the petitioner is itself stand
fall vide their own proceedings to conduct reinvestigation on their
alleged inspection held in CRS shop No.30. The same is evident from
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the very admission of P.W.2 in criminal case in C.C.No.2 of 2017. He
would submit that the entire allegations in the charge memo based on the
complaint given by one hard holder, who himself was not investigated by
the Department as well as by the Police. There is no deficiency stock or
deficiency of cash between the period of inspection and there is no loss
to the corporation and the order impugned is liable to be set aside. The
petitioner was paid the alleged amount on protest. The respondents have
failed to consider the crucial facts that the entire inspection conducted
by Mr.Ramaguru and Mr.Mayapandi based on C-Register and they
themselves ignored to refer stock register and cash book. The Vigilance
Cell of the respondent Corporation itself issued a charge memo and
awarded punishment to the inspecting committee members, who
inspected CRS shop No.30 and the same is not considered by the
respondents while passing the impugned order. He would submit that
entire batch of employees of the year 2010 and 2011 were promoted to
the post of Junior Assistant and the said promotion was not granted to the
petitioner, though he is eligible as per seniority. To strengthen his
contention, he has relied upon the judgment of the Hon'ble Supreme
Court reported in (2006) 5 SCC 446 in a case of G.M.Tank Vs. State of
Gujarat and Ors to show that the departmental enquiry and criminal
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proceedings based on the same set of facts of charges, evidence and
witnesses and no evidence against employee to hold him guilty and
finding to contrary recorded in departmental proceedings in such a case,
held unjust, unfair and dismissal order not sustainable.
4.Per contra, the learned counsel for the respondent would submit
that based on the complaint received from one Raman, it was ordered to
form a inspection team and conducted 100% inspection and submit their
report. Accordingly, the said inspection team conducted inspection of
Shop No.30 on 11.05.2016. During the said inspection availability of
excess commodities was noticed and the petitioner had acknowledged
the said inspection particulars. The documents called “C-Register”which
contains the daily sales records, bill book and other records were seized
for verification of the accounts. The inspection team filed its report
dated 30.05.2016 stating that irregularities were noticed to the tune of
Rs.14,050/- and excess stock was available to the tune of Rs.1400/-. He
would submit that the modus operandi adopted by the petitioner is to
create double entry, ie., for the same card multiple bills were issued and
bills were issued against the ration card, but no record was made in the
C-Register. Based on the inspection report, the petitioner was placed
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under suspension on 07.06.2016. He would submit that charge memo
was issued to the petitioner dated 06.09.2016 consisting 5 charges. The
petitioner gave representation dated 14.09.2016 seeking documents and
the second respondent permitted him to peruse the files. Though he was
permitted to peruse the records as early as on 16.09.2016, the petitioner
on his own proceeded to submit his explanation to the charge memo on
26.09.2016 and thereafter, the petitioner perused the files on 28.09.2016.
He would submit that the explanation submitted by the petitioner was not
satisfactory, an enquiry officer was appointed by the second respondent.
After conducting due enquiry, the enquiry officer submitted his enquiry
report dated 03.11.2016 holding that all the charges were proved. A
copy of the enquiry report was issued to him and call for further
explanation. The petitioner submitted his representation and after
considering all the records, the second respondent passed the final order
dated 15.05.2018 imposing punishment of stoppage of increment for two
years with cumulative effect. The petitioner preferred an appeal before
the first respondent with delay and the same was not filed within 60 days
as contemplated under Regulation 8 of Chapter V. However, the appeal
was considered and rejected by the appellate authority on 20.02.2019.
He would submit that there is no violation of principles of natural justice
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and enquiry was conducted as per the service regulation and proper
opportunity was provided to the petitioner to defend his case and there is
no ground to interfere with the impugned order.
5.This Court considered the submissions made on either side and
perused the available records.
6.It is seen from the records that while the petitioner was working
as Bill Clerk in CRS.Shop No.30, a complaint dated 19.03.2016 was
received from one Raman alleging that the petitioner has not supplied
rice to the public, instead he was smuggling rice in two wheeler.
Thereafter, an inspection team was formed and called upon them to
conduct 100% inspection and submit their report. Inspection team had
conducted inspection of the shop on 11.05.2016. Inspection report dated
30.05.2016 filed stating that irregularities were noticed to the tune of
Rs.14,050/- and excess stock was available to tune of Rs.1400/-, totally
Rs.15,450/- As irregularities were noticed during 100% verification of
the stock and records, the second respondent after considering the
inspection report, placed the petitioner under suspension on 07.06.2016.
Further, charge memo was issued dated 06.09.2016 with the following
five charges:-
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1.The delinquent has prepared false Bills for 261 kg
of Boiled rice, 10 kg of raw rice, 12 kg sugar, 12 Lit of
Pam oil, 12 kg Toor dal, 1 kg Urad dal and caused loss to
the corporation to the tune of Rs.8,725/-
2.The delinquent while selling the essential
commodities under the public distribution system, without
making entries in C register has sold 139 kg of Boiled rice,
15 kg of raw rice, 4 kg of sugar, 10 kg of wheat, 5 Lit of
pam oil, 4 kg Toor Dal, 2 kg of Urad Dal, 4 tea pocket, 4
pockets of salt and caused loss to the corporation to the
tune of Rs.5,325/-.
3.The delinquent while inspection in shop No.30 had
excess stock of 29 kg of boiled rice, 4.5 kg of sugar, and 6
kg of Toor dal valued at Rs.1,400/- to be sold in open
market.
4.The delinquent has caused disrepute to the
Government and Corporation.
5.The delinquent has committed dereliction of duty
and responsibilites.
7.The petitioner gave representation dated 14.09.2016 seeking
documents. The second respondent vide his proceedings dated
16.09.2016 permitted him to peruse the files. The petitioner submitted
his explanation to the charge memo on 26.09.2016 and thereafter, the
petitioner perused the files on 28.09.2016 and gave statement to that
effect that he had perused the files.
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8.It is seen from the records that explanation filed by the
petitioner was not satisfactory and hence, an enquiry officer was
appointed by the second respondent on 29.09.2016. After conducting
due enquiry, the enquiry officer submitted his findings dated 03.11.2016
holding that all the charges were proved. Thereafter, show cause notice
dated 29.12.2016 was issued to the petitioner along with copy of the
enquiry officer's report. The petitioner submitted his explanation. After
considering all the records, the second respondent passed an order dated
15.05.2018 imposing punishment of stoppage of increment for two years
with cumulative effect. The petitioner preferred an appeal before the
first respondent and the same was also rejected vide order dated
20.02.2019. The enquiry was conducted by providing opportunity to the
petitioner, based on the service regulations and records were made
available to the petitioner.
9.The contention of the learned counsel for the petitioner is that
there is no deficiency of the stock and there is no loss to the corporation.
The above said submission is not acceptable one since records would go
to show that the petitioner had created bogus entries and had manipulated
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records which were evident through records. Another contention of the
learned counsel for the petitioner would submit that the respondents have
failed to consider the fact that the petitioner was acquitted from the
criminal case and therefore, the order impugned is un-sustainable in law.
The above said submission is not acceptable one. It is settled proposition
that the standard of proof required in a domestic enquiry and that in a
criminal case are altogether different. In a criminal case, the standard of
proof required is beyound reasonable doubt while in a domestic enquiry,
it is the preponderance of probabilities.
10.It is pertinent to mention that the Hon'ble Supreme Court of
India, in a judgment reported in Aironline 2020 SC 795 in a case of
State Of Rajasthan vs Heem Singh wherein it has been held that “the
verdict of the criminal trial did not conclude the disciplinary enquiry.
The disciplinary enquiry was not governed by proof beyond reasonable
doubt or by the rules of evidence which governed the criminal trial”. It
is relevant to refer the judgment of the Hon'ble Supreme Court of India in
a case of Union of India & Ors Vs. P.Gunasekaran wherein laid down
preponderance of probabilities for exercising of judicial review. The
Hon'ble Supreme Court held as follows:-
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12.Despite the well-settled position, it is painfully
disturbing to note that the High Court has acted as an
appellate authority in the disciplinary proceedings, re-
appreciating even the evidence before the enquiry officer.
The finding on Charge no. I was accepted by the disciplinary
authority and was also endorsed by the Central
Administrative Tribunal. In disciplinary proceedings, the
High Court is not and cannot act as a second court of first
appeal. The High Court, in exercise of its powers under
Article 226/227 of the Constitution of India, shall not
venture into re- appreciation of the evidence. The High
Court can only see whether:
a. the enquiry is held by a competent authority;
b. the enquiry is held according to the procedure
prescribed in that behalf;
c. there is violation of the principles of natural justice in
conducting the proceedings;
d. the authorities have disabled themselves from
reaching a fair conclusion by some considerations
extraneous to the evidence and merits of the case;
e. the authorities have allowed themselves to be influenced
by irrelevant or extraneous considerations;
f. the conclusion, on the very face of it, is so wholly
arbitrary and capricious that no reasonable person could
ever have arrived at such conclusion;
g. the disciplinary authority had erroneously failed to admit
the admissible and material evidence;
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h. the disciplinary authority had erroneously admitted
inadmissible evidence which influenced the finding;
i. the finding of fact is based on no evidence.
13.Under Article 226/227 of the Constitution of India, the
High Court shall not:
(i) re-appreciate the evidence;
(ii) interfere with the conclusions in the enquiry, in case the
same has been conducted in accordance with law;
(iii) go into the adequacy of the evidence;
(iv) go into the reliability of the evidence;
(v) interfere, if there be some legal evidence on which
findings can be based.
(vi) correct the error of fact however grave it may appear to
be;
(vii) go into the proportionality of punishment unless it
shocks its conscience.
11.It is also pertinent to refer the judgement of the Hon'ble
Supreme Court in 2022 Livelaw (SC) 304 in a case of State of
Karnataka & Anr. Vs. Umesh wherein it has been stated as follows:-
17.In the exercise of judicial review, the Court does
not act as an appellate forum over the findings of the
disciplinary authority. The court does not re-appreciate the
evidence on the basis of which the finding of misconduct
has been arrived at in the course of a disciplinary enquiry.
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The Court in the exercise of judicial review must restrict its
review to determine whether: (i) the rules of natural justice
have been complied with; (ii) the finding of misconduct is
based on some evidence; (iii) the statutory rules governing
the conduct of the disciplinary enquiry have been observed;
and (iv) whether the findings of the disciplinary authority
suffer from perversity; and (vi) the penalty is
disproportionate to the proven misconduct.
12.By keeping in mind on the above tests, in the instant case on
hand, none of the above tests for attracting to interference of order
impugned. The enquiry was conducted in accordance with the principles
of natural justice. The findings of the enquiry officer and the disciplinary
authority are substantiate with reference to the evidence which was
adduced during the enquiry. It is settled law that the acquittal by a
criminal Court does not preclude a departmental enquiry against the
delinquent officer. The object of a Departmental enquiry is to find out
whether the delinquent is guilty of misconduct under the conduct rules
for the purpose of determining whether he should be continued in
service. It is seen from the records that an enquiry was conducted in
adherence to the statutory provisions and principles of natural justice.
The charges are specific, definite and giving details of the incident,
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which formed the basis of charges. The punishment imposed is
proportionate to the gravity of the misconduct. This Court is of the view
that there is no reasons to interfere with the order impugned. There is no
merit in this writ petition and the same is liable to be dismissed.
13.In the result, this writ petition is dismissed. No costs.
Consequently, connected miscellaneous petitions are closed.
NCC : Yes / No 08.04.2025
Index : Yes / No
gns
To
1.The Managing Director,
Tamil Nadu Civil Supplies,
12, Thabusamy Road,
Kilpauk, Chennai.
2.The Regional Manager,
Tamil Nadu Civil Supplies,
Madurai Region,
Maurai.
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M.JOTHIRAMAN, J.
gns
08.04.2025
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