IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 11.06.2010 CORAM THE HONOURABLE Mr. Justice T.RAJA W.P.No. 42364 of 2006 A.P.Kasilingam ... Petitioner -vs- 1.The Commissioner of Municipal Administration, Chepauk, Chennai- 600 005. 2.The Secretary to the Government, Municipal Administration and Water Supply Department, Fort St. George, Chennai-600 009. 3.The Municipal Commissioner, Vellore Municipality, Vellore. ... 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.4313 of 1999 from the file of Tamil Nadu Administrative Tribunal, to call for the records relating to the order of the first respondent dated 12.07.1999 in Ref.Na.Ka.No.13588/97/K1, quash the same and direct the first respondent to reinstate the petitioner with all consequential benefits. For Petitioner : Mr.P.Ganesan for M/s.S.Mani For Respondents : Mr.S.Gopinathan, Additional Government Pleader for R1 and R2. Mr.P.I.Thirumoorthy for R3. https://hcservices.ecourts.gov.in/hcservices/ O R D E R On abolition of the Tribunal, the Original Application in O.A.No.4313 of 1999 filed before the Tamil Nadu Administrative Tribunal stood transferred to this Court and re-numbered as W.P.No.42364 of 2006. 2.The petitioner joined as Junior Assistant in the Municipal Service in the year 1962 and after his unblemished service, he was promoted as Manager. While he was serving at Kumbakonam Municipality, the first respondent issued a charge memo dated 29.04.1997 levelling certain allegations against the petitioner alleging that the petitioner had failed to ensure whether the amount noted in the challans presented by the public remittance into Municipal Treasury towards deposits for water supply connection have been remitted properly since the petitioner, being a Manager, should check up the same before signing in the triplicate challan as per Article 3 - 7 of the Municipal Manual Volume-II, which he failed to do. It was alleged that the petitioner had colluded with one S.Kumar, Cashier and misappropriated the Municipal funds to the tune of Rs.6,90,480/-. Subsequently, an enquiry was conducted. The Enquiry Officer, in his enquiry proceedings, found them guilty of the charges and submitted his Enquiry Report. On the basis of the enquiry report, the Disciplinary Authority passed an order of dismissal from service against the petitioner as well as the Cashier. 3.However, even before the enquiry was conducted, on receipt of the charge memo by the Cashier admitting the misappropriation of Municipal Funds of Rs.6,90,480/-, the entire amount was repaid in the Municipal account and the same was accepted by the respondents but the Enquiry Officer found them guilty of the charges levelled against the petitioner and the Cashier, based on which the Disciplinary Authority has passed the order of dismissal from service. Aggrieved by the said order, the Cashier did not prefer any Appeal and he accepted the order of dismissal. However, the petitioner, who worked as Manager, aggrieved by the order of the punishment of dismissal from service, challenged the same before the Tribunal by filing Original Application. This Court, having seen that the petitioner was not prima facie responsible for misappropriation of the Municipal Funds and since the Cashier had already repaid the entire amount, granted stay of operation of the dismissal order. As per the interim order of stay passed by the Tribunal, the petitioner was reinstated in service and consequently, retired from service on 30.09.2002. https://hcservices.ecourts.gov.in/hcservices/ 4.The learned counsel appearing for the petitioner submits that this is a case where the respondents initiated the proceedings against two persons. The Cashier, who was legally responsible for maintaining the Municipal Funds having accepted the charge leveled against him, came forward to repay the entire amount of Rs.6,90,480/- and the same having been accepted, the order of the punishment of dismissal from service imposed against the petitioner cannot stand to legal scrutiny by this Court, since the petitioner had not in any way, as alleged by the respondents, colluded with the cashier. On the basis, the petitioner prayed for quashing the imposition of the punishment of dismissal from service. 5.On the other hand, the learned Additional Government Pleader appearing for the respondents submits that while the petitioner was serving as Manager in the office of the Thiruvannamalai Municipality, he should have maintained the records properly and the petitioner should also ensure whether the amount noted in the Challans presented by public for remittance into Municipal Treasury towards deposit for water supply connection and building licence fees were duly entered in the Sheroff Chitta Register against each item of receipt before signing in the triplicate challan as per Article 3-7 Municipal to licence fees. But, the Manager also committed delinquency of duty, as a result, the Cashier has misappropriated a sum of Rs.6,90,480/- and, thereby, caused huge loss to the Municipality. Therefore, the respondents decided to initiate the disciplinary proceedings against the Cashier as well as the petitioner/Manager. Subsequently, the Enquiry Officer found them guilty of the charges and based on the report of the Enquiry Officer, the Disciplinary Authority passed an order of dismissal from service. Though the Cashier having accepted the charges leveled against him came forward and repaid the entire amount of Rs.6,90,480/- in the credit of Thiruvannamalai Municipality, the petitioner having committed serious lapse he was proceeded with and imposed the punishment and shall not be interfered with by this Court and on that basis prayed for dismissal of the petition. 6.Heard the learned counsel on either side. 7.Admittedly, both the petitioner and the Cashier were working in the office of the Thiruvannamalai Municipality during the relevant period. The petitioner was to ensure that the amount noted in the challans presented by public for remittance into Municipal Treasury towards deposits for water supply connection and also the Building Licence fees were entered in the Sheroff Chitta Register against each item of receipt before signing in the https://hcservices.ecourts.gov.in/hcservices/ triplicate challan as per Article 3 - 7 of the Municipal Manual Volume-II. The petitioner does not appear to have committed any serious lapse on his part for the simple reason that the Cashier, who was responsible for collecting and receiving the money for maintenance from the public having accepted the charges leveled against him, finally came forward to remit the money, said to have been misappropriated by him and remitted the entire amount of Rs.6,90,480/- in the credit of Thiruvannamalai Municipality. That being the case, it is absolutely clear that the respondents have rightly imposed the punishment of dismissal from service against the Cashier. However, the respondents should not have awarded the same punishment viz., the punishment of dismissal from service on the petitioner. Secondly, the Cashier has admitted the charges leveled against him and remitted the entire amount. For the delinquency of the Cashier, the petitioner cannot be held responsible and awarded major punishments of dismissal from service. In view of the above, there being no prima facie material against the petitioner that he was responsible for the misappropriation of a sum of Rs.6,90,480/- the Tribunal granted interim order. By virtue of the order passed by the Tribunal, the petitioner has continued in service till the date of retirement and finally, the petitioner reached the age of superannuation in the year 2002. The Commissioner of Municipality also passed a Proceeding in ROC No.21435/03/K1, dated 18.05.2007, permitting the petitioner to retire from service on 30.09.2002 without prejudice to the the disciplinary cases pending against him. 8.The respondents are of the opinion that the petitioner was also responsible for committing the offence of misappropriation of the said amount and have passed the order dated 18.05.2007 permitting the petitioner to retire from service with effect from 30.09.2002 without prejudice to the disciplinary proceedings pending against him. However, the petitioner was found guilty of serious lapse in not finding out the misappropriation of Municipal funds and as such there being dereliction of duty on the part of the petitioner by taking into account the fact that the department has already punished the real delinquent with a punishment of dismissal from service for dereliction of duty committed by the petitioner, again awarding of major penalty of dismissal from service against the petitioner would be inappropriate. However, to meet the ends of justice, I am of the considered view that for the delinquency of dereliction of duty committed by the petitioner, it will be appropriate to impose the punishment of cutting of three increments with cumulative effect on the petitioner. https://hcservices.ecourts.gov.in/hcservices/ 9.Accordingly, the order of punishment of dismissal from service is modified into one of cutting of three increments with cumulative effect from 1999-2000. In view of the imposition of the above mentioned punishment, it is for the respondents to work out as to how to collect the terminal benefits of the petitioner. With these observations, this writ petition is disposed of. No costs. Sd/- Asst.Registrar. /true copy/ Sub Asst.Registrar. mps To 1.The Commissioner of Municipal Administration, Chepauk, Chennai- 600 005. 2.The Secretary to the Government, Municipal Administration and Water Supply Department, Fort St. George, Chennai-600 009. 3.The Municipal Commissioner, Vellore Municipality, Vellore. 1 cc to M/s. S. Mani, Advocate, Sr. 42172 1 cc to Government Pleader, Sr. 42046 W.P.No. 42364 of 2006 AKR (CO) kk 16/8 https://hcservices.ecourts.gov.in/hcservices/