IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 01-08-2008 CORAM THE HONOURABLE MR. JUSTICE P.K. MISRA AND THE HONOURABLE MR. JUSTICE K.KANNAN WRIT PETITION NO.35810 OF 2004 S. Baskar .. Petitioner Vs. 1. The Commissioner, Pudukottai Municipality, Pudukottai. 2. The Registrar, Tamil Nadu Administrative Tribunal, Chennai 600 104. .. Respondents Petition filed under Article 226 of the Constitution of India for the issuance of writ of Certiorarified Mandamus to call for the records relating to the order dated 2.12.2003 made in O.A.No.1239 of 2003, on the file of the Tamil Nadu Administrative Tribunal, Chennai, the second respondent herein in confirming the order of compulsory retirement passed by the Commissioner, Pudukottai Municipality, Pudukottai, the first respondent herein made in his office na.Ka.No.C1/1119/2002 dated 15.5.2002, quash the same and direct the respondent herein to reinstate the petitioner as Revenue Assistant / Bill Collector either in Pudukottai Municipality or in any other Municipality with all consequential service benefits such as pay fixation, seniority, due promotion, all backwages due to the petitioner within a date that may be fixed by this Court. For Petitioner : Mr.K. Rajkumar For Respondent-1 : Mrs.Geetha Thamaraiselvan Government Advocate - - - O R D E R (Order of the Court was made by P.K. MISRA, J) Heard the learned counsels appearing for the parties. 2. The petitioner, while serving as Bill Collector in Pudukottai Municipality, received a sum of Rs.4,920/- on 3.2.2002, towards the property tax. Such amount was to be deposited by the https://hcservices.ecourts.gov.in/hcservices/ next day. However, he remained absent from 4.2.2002. He was immediately placed under suspension on 5.2.2002 in contemplation of a departmental proceeding. The suspension order specifically stated that the suspension was on account of absence. On 12.2.2002, the amount was deposited. On 15.2.2002, a charge memo was issued on the allegation of belated remittance and unauthorised absence. 3. The petitioner gave an explanation stating that on 4.2.2002 itself, he had fallen ill and had to go to the Hospital for treatment and he was going to such hospital for continuous treatment from 4.2.2002 onwards. It was also explained by him that there was no intention to misappropriate the money and the amount could not be deposited on account of the fact that he was suffering from peptic ulcer and was being treated as an out-patient in the hospital. After such statement was given, there was no formal enquiry by the departmental authorities and punishment of compulsory retirement from service was imposed. 4. Challenging the same, the petitioner filed O.A.No.1239 of 2003 before the Tamil Nadu Administrative Tribunal, Chennai, which was dismissed by the Tribunal by holding that since there was a temporary misappropriation, it cannot be said that the punishment was excessive. The Tribunal, however, did not deal with the contention that in the absence of any enquiry, the punishment should not have been imposed. 5. Learned counsel appearing for the petitioner submitted that as a matter of fact, the petitioner had given explanation that he could not deposit the amount on account of his illness. There is no dispute that the medical certificate indicates that the petitioner has been treated as an out-patient for peptic ulcer. It is no doubt true that some of the basic facts viz., the factum of absence from 4.2.2002 and the fact that on 5.2.2002 he was immediately placed under suspension, were not disputed. Similarly it was not in dispute that the amount in the normal course should have been deposited on 4.2.2002, but the same was in fact deposited on 12.2.2002 through a relative of the petitioner. 6.Inspite of non-denial of these basic facts, there were other facts and circumstances, which were required to be considered in the departmental enquiry such as the basis for the charge, whether the petitioner had remained deliberately absent on 4.2.2002 and that there had been misappropriation of amount, even though for a temporary period. 6.1 So far as the petitioner is concerned, the petitioner had given an explanation to the effect that he had gone to the hospital not only on 4.2.2002, but also thereafter. These aspects are fortified by the medical certificate relating to the petitioner. https://hcservices.ecourts.gov.in/hcservices/ 6.2 Similarly, for the alleged misappropriation, the petitioner had given an explanation that on account of the fact that he had to go to the hospital for his treatment, he could not deposit the money, but subsequently, he deposited the money through his relative. 7. If these explanations would have been considered, it was quite possible for the departmental authority to come to a different conclusion. In view of such inherent defect, the order of punishment cannot be sustained. Since the punishment was imposed without holding a formal enquiry, in normal course, we would have remanded the matter for fresh enquiry. However, in the peculiar facts and circumstances of the case, we refrain from doing so and intend to finalize the matter by modifying the punishment for the reasons to be stated hereinafter. 8. So far as unauthorised absence is concerned, the petitioner had produced a medical certificate issued by a Civil Surgeon who was the Government Gazetted Medical Officer in the hospital. Not a single word has been whispered raising any doubt regarding the authenticity of such certificate. In other words, it is apparent from the certificate that the petitioner had undergone treatment as an out-patient on 4.2.2002 and thereafter. In view of above undisputed fact, the absence on 5.2.2002 or thereafter, by no stretch of imagination can be characterised as willful absence. It has to be remembered that thereafter, the petitioner was placed under suspension on 5.2.2002. It is therefore obvious that there was no occasion for him to rejoin the duty unless suspension was revoked. 9. In so far as misappropriation is concerned, even though there was a temporary retention of money by the petitioner for seven days, in view of the explanation, it cannot be said that there had been misappropriation though there was irregularity in not depositing the money on the next day. It may be that the petitioner, who ultimately deposited the amount after one week through his relative, could have deposited the amount by the same method on the very next day. However, one cannot lose sight of the fact that the petitioner was suffering from peptic ulcer which by its nature is a very painful ailment. Therefore, the petitioner obviously was not in a position to act in a normal manner. 10. Every retention of money cannot per se be held to be misappropriation. In this connection, we may point out the decision of the Supreme Court reported in AIR 1960 SC 889 (JAIKRISHNADAS MANOHARDAS DESAI v. STATE OF BOMBAY), wherein it was observed :- “6. . . . The principal ingredient of the offence being dishonest misappropriation or conversion which may not ordinarily be a matter of direct proof, entrustment https://hcservices.ecourts.gov.in/hcservices/ of property and failure in breach of an obligation to account for the property entrusted, if proved, may in the light of other circumstances, justifiably lead to an inference of dishonest misappropriation or conversion. Conviction of a person for the offence of criminal breach of trust may not, in all cases, be founded merely on his failure to account for the property entrusted to him, or over which he has dominion, even when a duty to account is imposed upon him, but where he is unable to account or renders an explanation for his failure to account which is untrue, an inference of misappropriation with dishonest intent may readily be made.” 11. In AIR 1977 SC 170 (RABINDRA KUMAR DEY v. STATE OF ORISSA), it was observed :- “6. ...It is true that under Section 105 of the Evidence Act the onus of proving exceptions mentioned in the Indian Penal Code lies on the accused, but this section does not at all indicate the nature and standard of proof required. . . . In other words, the mode of proof, by standard of benefit of doubt, is not applicable to the accused, where he is called upon to prove his case or to prove the exceptions of the Indian Penal Code on which he seeks to rely. It is sufficient for the defence to give a version which competes in probability with the prosecution version, for that would be sufficient to throw suspicion on the prosecution case entailing its rejection by the court. This aspect of the matter is no longer res integra but is concluded by several authorities of this Court. . . .” 12. In these circumstances, we feel that no useful purpose would be achieved by holding a fresh enquiry. The materials on record clearly indicate that there was no intention of misappropriation. Though the absence was unauthorised in the sense that he had not prayed for any leave, it cannot be characterized as wilful absence. 13. In these peculiar circumstances, instead of prolonging the agony, since considerable time has elapsed, we feel interest of justice would be served by directing the respondents to reinstate the petitioner in service. The petitioner shall be deemed to be reinstated in service with continuity of service and he shall be paid his regular salary henceforth by calculating the earlier period as duty period and by adding notional increments. Such amount would be payable from the date of rejoining. So far as the payment of backwages from 15.5.2002 till the date of rejoining is concerned, the petitioner would not be entitled to entire backwages, but would be entitled to limited backwages, equivalent https://hcservices.ecourts.gov.in/hcservices/ to the amount, which was otherwise payable towards his pension. In other words, to be more specific, the pension, which was payable from 15.5.2002 till the date of rejoining, pursuant to the present order, would be calculated and paid to the petitioner towards the arrear backwages by adjusting the amount, if any, already received by the petitioner either towards pension or other retirement benefits. This exercise relating to payment of amount should be completed within a period of three months from the date of receipt of a copy of this order. 14. Accordingly, the writ petition is allowed, subject to the above directions. No costs. Sd/- Asst. Registrar /true copy/ Sub Asst. Registrar ssa/dpk To 1) The Commissioner, Pudukottai Municipality, Pudukottai. 2) The Registrar, Tamil Nadu Administrative Tribunal, Chennai- 600 014. +1 cc to Mr.K. Rajkumar, Advocate, SR.No.42132 W.P.No.35810 of 2004 RSM(CO) SMK/05.09.08 https://hcservices.ecourts.gov.in/hcservices/