THE HON’BLE SRI JUSTICE B. PRAKASH RAO AND THE HON’BLE SRI JUSTICE B. CHANDRA KUMAR WRIT PETITION No.17643 of 2007 AND WRIT APPEAL NO. 518 of 2008 Date: 13-11-2009 WRIT PETITION No.17643 of 2007 Between: Smt. C. Nagalaxmi. - - - Petitioner And The Andhra Pradesh State Civil Supplies Corporation Limited, Rep. by its Vice Chairman and Managing Director, D.No.6-3-655/1/A, Civil Supplies Bhavan, Somajiguda, Hyderabad and two others. - - - Respondents. AND WRIT APPEAL NO. 518 of 2008 Between: Smt. C. Nagalaxmi. - - - Petitioner And Board of Director, A.P. State Civil Supplies Corporation Ltd., Hyderabad and four others. - - - Respondents. THE HON’BLE SRI JUSTICE B. PRAKASH RAO AND THE HON’BLE SRI JUSTICE B. CHANDRA KUMAR WRIT PETITION No.17643 of 2007 AND WRIT APPEAL NO.518 OF 2008 COMMON ORDER: (Per Hon’ble Sri Justice B. Chandra Kumar) This Writ Appeal has been filed challenging the order dated 18-03- 2008 in Writ Petition No.7520 of 2005 passed by the learned single Judge whereby and where under the recovery of Rs.3,54,000/- (Rupees three lakhs fifty four thousand only) from the salary of the appellant apart from imposing the stoppage of two increments without cumulative effect was modified to the effect that the appellant shall be imposed with a punishment of stoppage of two increments without cumulative effect only. Consequently, the impugned order for recovery of Rs.3,54,000/- (Rupees three lakhs fifty four thousand only) was set aside. Challenging the part of the order by which the punishment of stoppage of two increments without cumulative effect was imposed, the appellant filed this Appeal. The appellant has also filed Writ Petition No.17643 of 2007 seeking a Writ of Mandamus declaring the action of the third respondent in not considering and recommending her case for promotion to the post of Assistant Manager (Accounts) from the post of Accountant Grade-I and the consequential proceedings of the second respondent dated 02-03-2007, as arbitrary, illegal and void ab-initio as it is violative of principles of natural justice and further direct the Respondents to accord promotion to the Petitioner with effect from the date on which her juniors were promoted to the post of Assistant manager (Accounts) and place the petitioner in appropriate place in the Seniority list and all consequential benefits i.e., pecuniary or otherwise and pass such other order or orders. The result of Writ Petition depends upon the result in Writ Appeal. Therefore, we shall proceed to decide Writ Appeal at the first instance. The brief facts of the case are as follows : The appellant’s case is that she was appointed as Account Grade-III in the A.P. State Civil Supplies Corporation (Hereinafter referred as ‘Corporation’) in the year 1981. Subsequently, she was promoted as Accountant Grade-II in the year 1986. She was further promoted as Accountant Grade-I in the year 1989. On 30-06- 1992 she was posted as Godown In charge at Gudur Mandal Level Stock Point, Gudur (for short ‘MLS Point’). While so, the Government of Andhra Pradesh introduced a scheme known as “Food for Work” programme with a view to provide employment to the people who were affected by drought conditions in the State. As per the said scheme, the District Manager, A.P. Civil Supplies Corporation will transport the rice from Food Corporation of India to MLS Point and from the MLS Point to Fair Price Shops. As per the scheme, the M.R.O. has to re-allot the stocks to the Fair Price Shops, as per the requirement given by the Executive Agency. They have to ensure that an officer called as Route Officer has to follow the truck transporting the rice till it is unloaded at Fair Price Shops. Under the ‘Food for Work’ scheme a quantity of 15.930 Metric Tons of rice was allotted to Gurramkonda village, Ozili Mandal, Nellore District. Smt. Y. Sridevi was the fair price shop dealer of Gurramkonda village. The husband of Smt. Y. Sridevi approached the appellant for taking delivery of the rice allotted to Gurramkonda village’s Fair Price Shop. After obtaining the acknowledgment, the appellant delivered a quantity of 15-930 Metric Tons of rice to the husband of the Fair Price Shop dealer of Gurramkonda village. As Route Officer was not appointed, the Fair Price Shop dealers themselves have transporting the rice without any Route Officer. At about 08-00 p.m. there was a rumour that the stocks delivered to the Fair Price Shop of Gurramkonda village was unloaded in a private rice mill near by godown. On the same day at about 12-00 p.m. the Revenue Divisional Officer, Gudur, raided M/s. Sri Rama Krishna Rice, Flour and Decorticator Mill, Naidupeta and found 15.930 Metric Tons of rice issued from MLS Point, Naidupeta, allotted to Smt. Y. Sridevi, Fair price shop dealer, Gurramkonda village and the said stock was seized. The appellant was placed under suspension on the ground that though the Hamalies who were refilling the bags at MLS Point informed the appellant at about 08-00 p.m. that the rice allotted to the Fair Price Shop dealer of Gurramkonda village was unloaded in the nearby private rice mill, the appellant did not inform the same to her superior officers and that she did not record the stock registers of MLS Point from 16-11-1001 to 22-11-2001. The Commissioner of Enquiries, General Administration Department, Hyderabad, conducted departmental enquiry and framed the following two charges against the appellant. 1. That while working as MLS Point In charge, she failed to make stock entries in Stock Register from 16-11-2001 to 22- 11-2001 as per the Rules in vogue, stock entries in registers should be made everyday. Thus, she showed negligence and dereliction in discharging her legitimate duties. 2. That, while she was working as MLS Point In charge, Naidupet, she has delivered 15.930 Metric tons of rice to the husband of Smt. Y. Sridevi, Fair Price Shop Dealer of Gurramkonda village in Ozili Mandal, which was sold to Sri T. V. Subrahmanyam, Fair Price Shop Dealer of first ward, Naidupet and ultimately unloaded in a private rice mill. Though the fact was informed to her by Hamalies, she did not prevent the malpractices nor did she bring the fact to the notice of the higher authorities. Thus, she intentionally lifted the stocks to the unauthorized person and colluded with him in disposing of the stocks with intent to misappropriate Government money. The case of the appellant is that she was handling heavy work load due to Food For Work progamme rice, and that she was handicapped due to insufficient staff to tackle the massive work load and so could not write the stock register though she completed the other registers such as truck wise register, issue register, D.D. Register etc. It is also her case that the Revenue Divisional Officer found in his verification that all the stocks are in agreement with the physical balance. With regard to the second charge, the explanation of the appellant is that at about 08-00 p.m. a rumour was spread among the Hamalies about unloading of rice in a private rice mill. The case of the appellant is that she was suffering from head-ache and in the above circumstances she could not pay attention to the issue. The Enquiry Officer held that, all the charges leveled against the appellant have been proved. The petitioner filed Writ Appeal Miscellaneous Petition No.1222 of 2008 to receive the enquiry report dated 25-10-2002 of the Commissionerate of Enquiries, Secretariat, Hyderabad as additional evidence. In the circumstances, the petition is allowed and the enquiry report is received as additional evidence. As seen from the contentions of the enquiry report, the enquiry officer on Charge No.1 held as follows: With reference to Charge No.1, “Though proved, but still there was no shortage of rice as can be seen from the other records maintained by the petitioner.” It was only a procedural lapse rather than irregularity. With reference to Charge No.2 held that “The charged officer could not convincingly defend herself on her failure to inform whatever information has come to her notice regarding unloading the rice at Rice Mill, notwithstanding her plea that she is not responsible after the rice leaves her godown. Hence, the charge has to be treated as proved though no malafide intention was proved on the part of the charged officer and the Commissionerate recommended that “she may be censured.” Then, the Vice Chairman and Managing Director of the Corporation issued a show cause notice to the appellant seeking her explanation on the findings of the Enquiry Officer. Then the Vice Chairman and Managing Director of the Corporation passed the orders and imposed the punishment of stoppage of two annual increments without cumulative effect apart from ordering to recover Rs.3,54,000/- (Rupees three lakhs fifty four thousand only) being the double the cost of the stock seized from the salary of the appellant at the rate of Rs.2,950/- per month till the date of her superannuation. Challenging the said proceedings dated 20th January, 2003, the appellant filed the Writ Petition. The learned single Judge holding that the punishment is shockingly disproportionate to the misconduct proved, modified the punishment holding that the appellant shall be imposed punishment of stoppage of two increments without cumulative effect and set aside the order to recover Rs.3,54,000/- (Rupees three lakhs fifty four thousand only). The said order is challenged in the present Writ Appeal. The learned counsel for the appellant submitted that the appellant was suffering from head-ache and moreover it was only a rumour that the rice was diverted to a private rice mill and there was no confirmed information and that it was not her duty to check such information and therefore the appellant is not guilty of the charges leveled against her. It is also her submission that there was insufficient staff and there was heavy work load and in the above circumstances non making of entries in the stock register was not intentional and the Authorities themselves held that there is no discrepancy in the stocks available and the entries made in other registers. It is also her submission that imposition of punishment of stoppage of two increments in the circumstances is also disproportionate to the misconduct rule as such statement that there is no misconduct at all. Even if there is misconduct, the punishment awarded is disproportionate to the misconduct. The learned counsel for the appellant laid down a judgment of the Supreme Court in case between B.C. Chaturvedi vs. Union of India and others[1] and also in another judgment between Union of India and another Vs. G. Ganayutham[2]. The learned counsel for the respondents submitted that the learned single Judge having considered that the punishment is disproportionate and set aside the order of recovery of Rs.3,54,000/- (Rupees three lakhs fifty four thousand only) but however, confirmed the punishment that holding of two increments without cumulative effect and that order is reasonable and needs no interference. The only point that arises for consideration is, Whether the punishment of stoppage of two increments without cumulative effect is just and reasonable in the circumstances of the case? It is settled law that the punishment should be just and reasonable and should not be disproportionate to the charges proved against the delinquent/ officer. What is just and reasonable depends upon the facts and circumstances of the case. In case between Union of India and another Vs. G. Ganayutham (referred 2 supra) the Apex Court held as follows : “According to Wednesbury case, while examining ‘ reasonableness’ of an administrative decision, the Court has to find out if the administrator has left out relevant factors or taken into account irrelevant factors. The decision of the administrator must have been within the four corners of the law, and not one which no sensible person could have reasonably arrived at, having regard to the above principles, and must have been a bonafide one. The decision could be one of many choices open to the authority but it was for that authority to decide upon the choice and not for the Court to substitute its view”. Proportionality is “concerned with the way in which the decision-maker has ordered his priorities, the very essence of decision making consists surely, in the attribution of relative importance to the factors in the case”. This is precisely what proportionality is about. Proportionality used in the human rights context involves a balancing test and the necessity test. The ‘balancing test’ means scrutiny of excessive onerous penalties or infringement of rights or interests and a manifest imbalance of relevant consideration. The ‘necessary test’ means that infringement of human rights in question must be by the least restrictive alternative. “What is therefore needed is a preparedness to hold that a decision which overrides a fundamental right without sufficient objective justification will, as a matter of law, necessarily be disproportionate to the aims in view… The deployment of proportionality sets in focus the true nature of the exercise, the elaboration of a rule about permissible priorities.” In a case between B.C. Chaturvedi vs. Union of India and others (Referred 1 supra) referred as follows : “Judicial review is not an appeal from a decision but a review of the manner in which the decision is made. Power of judicial review is meant to ensure that the individual receives fair treatment and not to ensure that the conclusion which the authority reaches is necessarily correct in the eye of the Court”. The nature of misconduct, loss or damages caused to the master, the role of the employee, the malafide intention have to be taken into consideration. Where the lapse is technical one, and there was no malafide intention lenient view should be taken. If lapse is technical, procedural or due to unintentional carelessness or lack of promptness all these circumstances have to be taken into consideration. The punishment should be always in proportionate to the proved misconduct. The facts are not in dispute, It is nobody’s case that the punishment imposed is illegal or vitiated by the impropriety. The only issue is whether the punishment is proportionate to the proved misconduct of the appellant? It is also settled law that the Court should consider whether all the facts and circumstances have been taken into consideration while imposing the punishment or not. In this case, there are some peculiar circumstances. As far as the first charge is concerned, the allegation against the petitioner is that she has not made entries in the stock register from 16-11-2001 to 22-11-2001. The contention of the appellant is that there is no sufficient staff and there was heavy wok load. Even according to the authorities, there is no deficiency in the stock, no discrepancy was found with reference to the entries made in the other registers and the available stock. Thus, it is clear that there was no tampering with the records. Admittedly, the appellant has made entries in other registers such as truck wise register, issue register and D.D. register. When all the entries in other registers are in conformity with the physical balance, non making of entries in the stock register even according to the Authorities was found to be only a procedural lapse rather than the irregularity. The authorities seem to have not taken into consideration the contentions of the appellant that there was insufficient staff and heavy work load. Coming to the second charge, according to the appellant she had overheard, the version of the Hamalies that the rice allotted to Fair Price Shop, Gurramkonda village was unloaded in a private rice mill. According to her, she was suffering from head-ache and she could not verify the said information and therefore she could not act on such rumours and did not inform the authorities. Though there appears to be some lapse on the part of the appellant, but however in the circumstances, it appears that a lenient view is required to be taken. Admittedly no malafide intention has been proved on the part of the appellant. When no malafide intention has been proved, awarding of punishment of stoppage of two increments also appears to be disproportionate to the proved misconduct. All the attending circumstances have to be taken into consideration. It is settled law that the punishment should be reasonable, it should neither be excessive nor low. In the above circumstances we are of the view that, if punishment of censure is awarded, the same will meet the ends of justice. Accordingly, the punishment of stoppage of two increments without cumulative effect is set aside and modified to that of “censure” and the Appeal stands allowed accordingly. Insofar as the Writ petition is concerned, the Departmental promotion committee was constituted and met on 14-12-2005 and on 09-09-2006 for considering the eligible candidates and recommending their names for promotion from the post of Accountant Grade-I to the post of Assistant Manager (Accounts). Consequently, the third respondent recommended certain candidates for the said promotion, which includes the appellant’s juniors. It is the case of the writ petitioner that though her name is at Serial No.20 of the Seniority list of Accountants Grade-I, she was not given promotion whereas her juniors were placed at Serial Nos. 22 to 26 were promoted by the proceedings dated 07-10-2006 issued by the second respondent. It is also her contention that as per the promotion policy any punishment of withholding increments with or without cumulative effect will be valid only for a period of one year and the individual would not be entitled for promotion for the said period. As discussed above, we have allowed the Writ Appeal and modified the punishment as that of “censure.” It is made clear that the delinquent who is imposed the punishment of censure will not be eligible for promotion only for a period of one year. It is also made clear that the punishment imposed against the writ petitioner by proceedings dated 20th January, 2002 stands modified as the punishment of “censure” only. In view of the orders passed in Writ Appeal No.518 of 2008, the Writ Petition is disposed of with a direction to consider the case of the petitioner in accordance with the Law. Accordingly, Writ Appeal No.518 of 2008 is allowed in part and Writ Petition No.17643 of 2007 is disposed of subject to the observations made supra. No order as to costs. ___________________ B. PRAKASH RAO, J _____________________ B. CHANDRA KUMAR, J Date: 13-11-2009. DSH [1] (1995) 6 S.C.C. 749 [2] (1997) 7 S.C.C. 463