IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 20.04.2010 CORAM: THE HON'BLE MR.JUSTICE B.RAJENDRAN W.P.No.37441 of 2006 (OA 9333/1998) K.Narayanaswamy ... Petitioner Versus 1. The Government of Tamil Nadu, Rep. by its Secretary, Agriculture (AA (II) Department), Fort St. George, Chennai – 9. 2. The Director of Agriculture, Chepauk, Chennai – 5. 3. The Director of Horty Culture & Plantation Crops, Chennai – 2. ... Respondents PRAYER: This Writ Petition came to be numbered under Article 226 of the Constitution of India by way of transfer of O.A.No.9333 of 1998 from the file of Tamil Nadu Administrative Tribunal with a prayer to call for the records relating to the 1st respondent herein in G.O.(D) No.79, dated 29.07.1994 and quash the removal order and the consequential order passed in review in G.O.3(D) No.149 dated 19.11.1996 and re-instate the petitioner into service with all attendant and consequential benefits with due regards to his seniority. For Petitioner : Mr.R.S.Anand for M/s. Anand and Suriya For Respondents : Mrs. Lita Srinivasan Government Advocate O R D E R The Original Application has been filed by the petitioner seeking to call for the records relating to the 1st respondent herein in G.O. (D) No.79, dated 29.07.1994 and quash the removal order and the consequential order passed in review in G.O.3(D) No.149 dated 19.11.1996 and re-instate him into service with all attendant and https://hcservices.ecourts.gov.in/hcservices/ consequential benefits with due regards to his seniority. On the abolition of the Tamil Nadu Administrative Tribunal, the Original Application stood transferred and renumbered as W.P.No.37441 of 2006. 2. The petitioner was originally appointed in the Agricultural Department. Subsequently, he was deputed to the Horticulture Department on deputation. While he was working in the Horticulture Department, certain allegation of misappropriation was alleged against the petitioner and consequently he was served with a Departmental Enquiry notice dated 27.02.1986 followed by a charge memo dated 05.06.1990 under Rule 17(b) of the CCA rules was issued by the 3rd respondent herein . The petitioner submitted his explanation denying the charges. Therefore, an enquiry officer was appointed, who, after conducting enquiry, held that the charges against the petitioner are proved. Based on the same, the Government passed an order of removal dated 29.06.1994. The petitioner has also filed an appeal on 28.09.1994 to the Government and the same was also dismissed on 19.11.1996. Challenging the aforesaid orders, the petitioner has filed the Original Application before the Tribunal on two grounds. The first ground was that the Commissioner of Tribunal for Disciplinary Proceedings held that the charge against the petitioner are proved and consequently, the Government by letter dated 12.11.1992 issued a show cause notice as to why the punishment of removal from service should not be imposed on the petitioner, even before communicating the report of the enquiry officer and it is against the amendment to Rule 10 of the Tribunal for disciplinary proceedings rules. Secondly, as per Rule 10, the final order has to be passed only by the Head of the Department. But the impugned order has been passed by the Government. Furthermore, he would specifically plead that even if the charge is proved, the charge relates to alleged misappropriation of fund amount of Rs.10/-, 20/- and thus total maximum amount of Rs.600/- for which without considering the past service of more than 21 years of service put in by the petitioner, the punishment of removal from service has been imposed which is shockingly disproportionate to the alleged charges. Therefore also, the punishment is liable to be reduced, taking into considering the long tenure of 21 years of service of unblemished record of service by the petitioner.. 3. The respondents have not filed any counter. The learned Government Advocate specifically pleaded that all fair opportunities were granted to the petitioner and the petitioner has participated in the enquiry and the report was duly submitted to the disciplinary authority. Furthermore, the petitioner was given copy of the report and then his further representation was sought. Ultimately the order was passed by the Government removing the petitioner from service. There is no impediment in the appointing authority passing the order based on the report after getting further explanation. Even though, the petitioner's contention that the appeal provision is last, already he filed the review application. Therefore, on that ground, it cannot be said that the entire proceedings are vitiated. Furthermore, the principles of natural justice have been followed in letter and spirit. As far as the punishment is concerned even though there was https://hcservices.ecourts.gov.in/hcservices/ misappropriation of funds in the range of Rs.10/- totalling to the tune of Rs.660/-, yet the punishment is justified and prayed for dismissal of the writ petition. 4. Heard both parties. The only ground of attack was that the petitioner has put in more than 21 years and above service, therefore, the allegation of misappropriation of funds to the tune of Rs.10/-, 20/- totaling for a sum of Rs.600/- in respect of a Government function, even if it is found to be true, it does not warrant the punishment of removal from service. In this case, the charge against the petitioner was that he collected money from various departments towards the caution deposits and hire charges for lending potted plants etc., such as cost of G.I. Pipes, Flag, Flag posts and sale of Grass. According to the petitioner, there was a delay in remitting the amount in to the treasury and the delay has been construed as a wilful misappropriation of funds. Therefore, the petitioner would only plead that considering his long number of years of service, the appointing authority should have imposed punishment of compulsory retirement or other lesser punishment so that the petitioner would be entitled to get retirement benefits . Therefore, according to the petitioner, the punishment of removal from service for the alleged lapses is shockingly disproportionate and liable to be interfered with. 5. In this background, it will be useful to refer to the decision of the Honourable Supreme Court reported in (Union of India v. K.G. Soni) (2006) 6 SCC 794 it was held in Para Nos. 14 and 15 as follows:- 14. The common thread running through in all these decisions is that the court should not interfere with the administrator’s decision unless it was illogical or suffers from procedural impropriety or was shocking to the conscience of the court, in the sense that it was in defiance of logic or moral standards. In view of what has been stated in Wednesbury case the court would not go into the correctness of the choice made by the administrator open to him and the court should not substitute its decision to that of the administrator. The scope of judicial review is limited to the deficiency in the decision-making process and not the decision. 15. To put it differently, unless the punishment imposed by the disciplinary authority or the Appellate Authority shocks the conscience of the court/tribunal, there is no scope for interference. Further, to shorten litigations it may, in exceptional and rare cases, impose appropriate punishment by recording cogent reasons in support thereof. In the normal course if the punishment imposed is shockingly disproportionate, it would be appropriate to direct the disciplinary authority or the Appellate Authority to reconsider https://hcservices.ecourts.gov.in/hcservices/ the penalty imposed. 6. In the above decision, it was categorically held by the Honourable Supreme Court that unless the punishment imposed is shocking to the conscience of the Courts, the Courts should not interfere with the punishment imposed by the administrators. In this case, the charges levelled against the petitoner relates to his failure to deposit the amount to the tune of Rs.660/- collected from various departments in time. The petitioner has rendered 21 years of service with the respondents department and by virtue of the impugned order of removal from service, he could not get any monetary benefits arising out of the 21 years of service rendered by him. Moreover, the charges levelled against the petitioner and the punishment imposed therefor are certainly shocking the conscience of this Court and therefore, I am inclined to reduce the punishment. As mentioned above, the charges leveled against the petitioner are in the nature of temporary non payment or non deposit of meager amount of Rs.10/- and 20/- collected over a period of 1 ½ years which has been explained by the petitioner in detail. Of course, the enquiry officer has given a finding that the charges are proved. Furthermore, the Government, instead of passing an order through Head of the department has passed the order of punishment by itself by which the petitioner has lost an appeal remedy. In any event, the punishment of removal from service is shockingly disproproportionate to the charges against the petitioner. Therefore, taking into consideration that the petitioner was aged about 51 years at the time of removal from service and he has already reached the age of superannuation, the punishment of removal from service is modified into one of compulsory retirement. 7. With the above modification in punishment, the writ petition is allowed. No costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar ogy/rsh To 1. The Secretary, Agriculture (AA (II) Department), Fort St. George, Chennai – 9. 2. The Director of Agriculture, Chepauk, Chennai – 5. https://hcservices.ecourts.gov.in/hcservices/ 3. The Director of Horty Culture & Plantation Crops, Chennai – 2. +1cc to Mr.S.Anand for M/s.Anand & Suryas Sr 26041 +1cc to Govt. Advocate Sr 25984 TEJ(CO) km/29.10. W.P.No.37441 of 2006 https://hcservices.ecourts.gov.in/hcservices/