1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 22.11.2011 CORAM: THE HONOURABLE MR.JUSTICE K.N.BASHA and THE HONOURABLE MR.JUSTICE M.VENUGOPAL Writ Appeal (MD) No.1190 of 2011 & MP(MD)No.2 of 2011 in W.P.(MD).No.5129 of 2007 1.The State of Tamil Nadu rep. by its Secretary to Government & Rural Development E1), Secretariat, Chennai-9. 2.The Director of Rural Development, Panagal Building, Saidapet, Chennai. 3.The District Collector, Dindigul District, Dindigul. 4.The Secretary, Tamil Nadu Public Service Commission, Anna Salai, Chennai -2. ... Appellants/Respondents Vs. A.Rajaram ... Respondent/Petitioner Appeal filed under Clause 15 of the Letters Patent, praying to set aside the order, dated 26.11.2010, made in W.P.(MD).No.5129 of 2007 and M.P.(MD).No.1 of 2007 by the learned Single Judge of this Court. WP(MD)No.5129 of 2007 : Writ petition filed under Article 226 of the constitution of India for issue a writ of certiorarified mandamus calling for the records relating to the order issued by the first respondent in GO.MS.No.4 Rural Development and Panchayat (E1) Department dated 25.04.2007 and quash the same as illegal and consequentially to direct the respondents to reinstate the petitioner with all attendant benefits. For appellants .. Mr.R.Anandharaj Government Advocate For respondent .. Mr.M.E.Elango JUDGMENT (Judgment of the Court was made by K.N.BASHA, J.) This appeal is preferred against the order passed by the writ Court, dated 26.11.2010, made in W.P.(MD).No.5129 of 2007, allowing the writ petition filed by the respondent herein and thereby quashing the https://hcservices.ecourts.gov.in/hcservices/ 2 order passed by the first appellant, dated 25.04.2007, in G.O.Ms.No.4 Rural Development and Panchayat E1 Department. 2.By mutual consent of the learned Government Advocate appearing for the appellants and Mr.M.E.Elango, learned counsel appearing for the respondent, the writ appeal itself is taken up for final disposal at the admission stage itself. 3.The learned Government Advocate would submit that the writ Court has overlooked the fact that the respondent herein has played a major role in respect of the misappropriation of the amount. It is contended that the punishment was awarded proportionate to the charges levelled against him and as such, it could not be stated that there is a violation of Rule 9-A of the Tamil Nadu Civil Services (Discipline and Appeal) Rules, (hereinafter referred to as "the Rules"). The learned Government Advocate would further contend that there is no discrimination in awarding the punishment, as the other delinquent Officers have been awarded with different punishment viz., lesser than the punishment awarded to the respondent herein. It is contended that the respondent comes from a different cadre than that of the other delinquents and as such, the charges levelled against the respondent cannot be equated with the charges levelled against the other delinquent officers, who have been awarded lesser punishment and therefore, it is contended that the order of the writ Court is liable to be set aside. 4.Mr.M.E.Elango, learned counsel appearing for the respondent would contend that there is no infirmity or illegality in the order passed by the writ Court. It is pointed out by the learned counsel for the respondent that the enquiry officer found that the charges framed against all the delinquent officers have not been proved and the disciplinary authority deviated from the said findings and held that the charges levelled against the respondent and three other delinquents have been proved and consequentially awarded punishments. The learned counsel appearing for the respondent would further contend that the charges levelled against all the delinquents, who have been found guilty numbering four, are one and the same to the effect of allegations of misappropriation of the Government fund to the tune of Rs.3,80,156/- and there is no different or distinct charge levelled against each one of them. It is contended that in view of the same, all the delinquents have to be tried together, as per the mandates of the provision under Section 9-A of the Rules and in the instant case, all the delinquents have been tried independently and as such, there is a clear violation of Rule 9-A of the Rules and on that ground, the writ Court has rightly held that the impugned order is liable to be set aside. It is further contended that there is not only violation of Rule 9-A, in the instant case, but also there is a discrimination even in awarding punishment to the respondent and three other delinquents. It is pointed out that as far as the other three delinquents are concerned, in respect of one of the delinquents, recovery of Rs.100/- per month for two years was awarded and in respect of the two other delinquents, recovery of Rs.300/- per month for two years was awarded and on the other hand, as far as the respondent is concerned, he has been awarded with the major punishment of compulsory retirement and also imposed punishment of recovery of Rs.1,33,522/- from his death cum gratuity amount and as such, it is a clear case of discrimination in awarding punishment. The learned counsel would submit https://hcservices.ecourts.gov.in/hcservices/ 3 that the writ Court has followed the decisions of the Hon'ble Apex Court and ultimately held that such discrimination cannot be allowed and as such, the writ Court has rightly set aside the impugned order of awarding punishment. 5.We have given our careful and anxious consideration to the rival contentions put forward by either side and also perused the impugned order and other materials available on record, including the order passed by the writ Court. 6.At the outset, it is to be stated that the respondent has been charged as that of the other delinquents totally numbering 17. It is rightly pointed out by the writ Court that there is a clear violation of Rule 9-A of the Rules, as the same mandates that a similarly charged delinquents to be tried together, but as far as the case on hand is concerned, it is not disputed by the learned Government Advocate that all the delinquents have been tried separately and as such, the writ Court has rightly held that there is a violation of Rule 9-A and set aside the impugned order. 7.Yet another ground raised by the respondent herein and accepted by the writ Court is that there is a discrimination in awarding punishment in respect of the respondent herein as well as the other delinquents. The fact remains that the enquiry officer has held that the charges levelled against all the delinquent officers have not been proved and on the other hand, the disciplinary authority took a deviation in respect of four delinquents, including the respondent herein and awarded major punishment of compulsory retirement to the respondent and lesser punishment to the other three delinquents viz., in respect of one delinquent, recovery of Rs.100/- per month for two years was awarded and in respect of two other delinquents, recovery of Rs.300/- per month for two years was awarded. Therefore, it is crystal clear that there is a total discrimination in awarding punishment to the similarly charged delinquents. We are not able to countenance the contention put forward by the learned Government Advocate to the effect that the respondent came from a different cadre than that of the other delinquents, as the same is not deciding factor in respect of awarding punishment. It is seen that the writ Court has placed strong reliance on the decision of the Hon'ble Apex Court in Director General of Police Vs. S.Dasayan reported in (1998) 2 SCC 407 and the writ Court has observed in paragraph 12 as hereunder: "In the above judgment, the facts are also similar and in that case, the disciplinary authority did not concur with the finding of the enquiry officer in respect of two delinquents and dropped proceedings against them and the petitioner and another person were punished and the petitioner in that case was dismissed from service and the other official was compulsorily retired and that was condemned by the Honourable Supreme court in that judgment and held that the petitioner in that case cannot be given a different treatment and the dismissal order against the petitioner cannot be valid in the eye of law and he was also imposed the punishment of compulsory retirement. 8.The writ Court also placed reliance on yet another decisions of this Court as hereunder: https://hcservices.ecourts.gov.in/hcservices/ 4 "Similar view was taken in the judgment reported in Man Singh Vs. State of Haryana ((2008) 8 MLJ 518. Further, in the case of Madurai Management of Social Science Vs. State of Tamil Nadu ((2007)6 MLJ 1040), when two delinquents were charged for having played overtact in a money transaction, imposing punishment on one person leaving the other person amounts to discrimination and the punishment imposed to one person was set aside." 9.In view of the aforesaid reasons, we are of the view that there is absolutely no ground made out, warranting interference of this Court in the order passed by the writ Court. Accordingly, the writ appeal is hereby dismissed. Consequently, connected miscellaneous petition is closed. No costs. Sd/- Assistant Registrar (AS) /True copy/ Sub Assistant Registrar To: 1.The Secretary to Government & Rural Development E1), The State of Tamil Nadu, Secretariat, Chennai-9. 2.The Director of Rural Development, Panagal Building, Saidapet, Chennai. 3.The District Collector, Dindigul District, Dindigul. 4.The Secretary, Tamil Nadu Public Service Commission, Anna Salai, Chennai -2. +1CC TO THE SPECIAL GOVERNMENT PLEADER, SR.41123 Gcg SR : 16.12.2011 : 4p/6c Judgment in W.A (MD) No.1190 of 2011 & MP(MD) NO.2 OF 2011 IN WP(MD).NO.5129 OF 2007 22.11.2011 https://hcservices.ecourts.gov.in/hcservices/