IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated : 24..3..2008 Coram: The Honourable Mr.Justice P.K. MISRA and The Honourable Mr.Justice K.CHANDRU W. P. No. 25860 of 2003 S. Sundaram Pillai ... Petitioner -vs- 1. The State of Tamil Nadu Rep. by Secretary to Government Agriculture Department Fort St. George, Chennai – 9 2. The Director Department of Horticulture Dharmapuri 3. The Deputy Director of Horticulture 10 English Church Road Puliamkottai Tirunelveli 4. The Assistant Director of Horticulture Yesudian Street Nagercoil 5. The Registrar Tamil Nadu Administrative Tribunal Chennai ... Respondents Petition under Article 226 of the Constitution of India praying to issue a writ of Certiorari to call for the records relating to the order dated 19.6.2003 made in O.A. No. 4305 of 1991 on the file of the Tamil Nadu Administrative Tribunal, Chennai and quash the same as illegal in so far as the imposition of the punishment pf stoppage of increment for 2 years with cumulative effect is concerned. For Petitioner : Mr. M. Ajmal Khan For Respondents : Ms. Geetha Thamariaselvan, GA https://hcservices.ecourts.gov.in/hcservices/ ORDER Heard the arguments of Mr. M. Ajmal Khan, learned counsel appearing for the petitioner and Ms. Geetha Thamaraiselvan, learned Government Advocate representing the respondents and have perused the records. 2. The petitioner herein was imposed with the punishment of recovery of amounts from the petitioner's salary amounting to Rs.71,040/- for the loss of shortage of 96 Aluminium Pipes during the period from 02.0.1990 to 06.01.1990. At the relevant time, the petitioner was working as an Horticultural Officer at the fruit farm in Kanyakumari District. During that period, a theft of 96 Aluminium Pipes took place and it could not be recovered inspite of a criminal complaint lodged with the Kanyakumari Police Station. Thereafter, the petitioner was given show cause memo dated 22.01.1990 and after a series of correspondence and getting reply from the petitioner, it was decided by the official respondents that a recovery to be made for the loss caused to the Government from the petitioner. It is this order dated 15.11.1991 which was challenged before the Tamil Nadu Administrative Tribunal [for short, 'Tribunal'] in O.A. No. 4305 of 1991. 3. The Tribunal held that the book value of the pipes was Rs.23,616 as per the records and it was wrong on the part of the official respondents to recover the market value of the old pipes and the respondents cannot be allowed to make a profit out of the misery with which the petitioner had landed himself. It was also held that the petitioner was guilty of negligence and a punishment can be imposed. However, without any basis, the Tribunal held that instead of recovering a sum of Rs.71,040/- as ordered by the fourth respondent, the punishment can be modified and accordingly, in lieu of recovery of the said amount, it ordered on its own, imposition of stoppage of increment for two years with cumulative effect for the negligence of the petitioner while performing his duties. It is against this order, the petitioner has come forward to file the present writ petition. 4. We are of the opinion that the Tribunal was wrong in modifying the so-called punishment imposed on the petitioner. In fact, recovery of amount due from an employee to the extent of loss caused by him cannot be considered to be a punishment. As a Government servant, the petitioner is bound to compensate the State to the extent of loss caused by him due to his negligence. In this case, the Tribunal had granted a categorical finding that the petitioner was negligent in his duties which had resulted in the loss. An employer can impose not only a punishment for a negligent in conduct but also order for recovery of the amounts from the employee who was responsible for the loss and the Courts have held that it may not amount to double jeopardy. In the present case, the State had not come forward to file any writ petition challenging the improper exercise of discretion made by the Tribunal. https://hcservices.ecourts.gov.in/hcservices/ 5. A careful reading of the order of the Tribunal impugned in the writ petition clearly shows that the petitioner had made some kind of plea-bargaining before the Tribunal. At the time of his O.A., he must have thought that Rs.71,040/- was much more valuable than the stoppage of increment for two years with cumulative effect. But later on, he found that the stoppage of increment for two years with cumulative effect will be a constant burden which will also affect his pensionary benefits. All that the Tribunal could have done was, after rendering a finding that the petitionr was negligent and, therefore, he was liable to compensate the State for the loss caused by him and having found the book value of the stolen Aluminium Pipes was only Rs.23,616/-, it should have reduced the amount of recovery made against the petitioner. The Tribunal ought not to have substituted the order by an exercise of a power which it does not possess in terms of the Administrative Tribunals Act, 1985. 6. Under the above circumstances, we are of the opinion that the order of the Tribunal requires interference. Accordingly, the order dated 19.6.2003 made in O.A. No. 4305 of 1991 in so far it had imposed a punishment of stoppage of increments for a period of two years with cumulative effect is hereby set aside and the impugned order of recovery made against the petitioner dated 15.11.1991 will stand restored. Since it was admitted by the respondents State that the loss was fixed on the basis of the market value of the used pipes and there was no dispute regarding the book value of the property, we hereby order that the petitioner is liable to pay Rs. 23,616/- towards the loss caused regarding the stolen pipes due to his negligence. 7. It is seen from the records that the petitioner had the benefit of interim stay of Recovery before the Tribunal. After getting the recovery order modified, even before this Court, he had the benefit of interim stay regarding the imposition of stoppage of increment. Thus, by his clever move, he had stalled any kind of punishment being imposed on him over the last seven years. In view of the conduct of the petitioner, we hereby direct that he shall pay the sum of Rs. 23,616/- within a period of eight weeks from the date of receipt of a copy of this order in two instalments and the respondents shall ensure the compliance of this order. The writ petition is disposed of accordingly. However, the parties are allowed to bear their own costs. Sd/ Asst. Registrar /true copy/ Sub Asst.Registrar gri https://hcservices.ecourts.gov.in/hcservices/ To 1. The Secretary to Government State of Tamil Nadu Agriculture Department Fort St. George, Chennai – 9 2. The Director Department of Horticulture Dharmapuri 3. The Deputy Director of Horticulture 10 English Church Road Puliamkottai Tirunelveli 4. The Assistant Director of Horticulture Yesudian Street Nagercoil +1 cc to Mr.M.Ajmal Khan, Advocate, SR.No.16299. 1 cc To The Government Pleader, SR.16427. Nm (Co) krd / 31.03.08 W. P. No. 25860 of 2003 https://hcservices.ecourts.gov.in/hcservices/