IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 15.03.2010 CORAM: THE HON'BLE MRS.JUSTICE R.BANUMATHI AND THE HON'BLE MR.JUSTICE M.VENUGOPAL W.A.NO.960 of 2009 R.Muthukrishnan .... Appellant/Petitioner Vs. 1. The Managing Director Tamilnadu State Transport Corporation (Salem) Limited, Salem - 7. 2. The Board of Directors rep.by its Chairman Tamil Nadu State Transport Corporation Salem – 7 3. The Secretary to Government Transport Department Secretariat, Chennai – 9. ... Respondents/Respondents Writ Appeal filed under Clause 15 of the Letters Patent against the order of this Court dated 19.1.2009 passed by the single Judge in W.P.No.7950 of 2006, this Writ Petition presented to this Court under Article 226 of the Constitution of India to issue a Writ of Certiorarified Mandamus calling for the records of the 3rd respondent made in Lr.No.17724/D/2002 dated 18.01.2006 confirming the order of the 2nd respondent made under proceedings No.68/D2/5393/Legal/TSTC (SLM)/2004-2 dated 22.04.2005 and M.No.68/D2/5393/Legal/TSTC/(Salem)/ 2002-2 dated 09.11.2004 on the file of the 1st respondent and quash the same and direct the 1st respondent to pay the with held salaries in pursuant to the order passed by him under M.No.68/D2/5393/Legal/TSTC/(SLM)/2004-2 dated 09.11.2004 till date. For Appellant : Mr.L.Chandrakumar For Respondents : Mrs.Rita Chandrasekaran for Mr.Jayesh B.Dolia for RR.1 and 2 Mr.A.Arumugham, Spl.GP for R-3 https://hcservices.ecourts.gov.in/hcservices/ JUDGMENT R.BANUMATHI,J. This Writ Appeal arises out of order dated 19.1.2009 made in W.P.No.7950 of 2006 dismissing the writ petition and declining to quash the proceedings of the third Respondent dated 18.1.2006 confirming the punishment of reduction to lowest time of scale for a period of three years. 2. The brief facts are that the Appellant was working in the 1st respondent Corporation as a Law Officer in the cadre of an Assistant Manager. Based on a resolution of the sub committee consisting of the appellant and 3 others viz., Managing Director, General Manager and Chief Accounts Officer, the award amount in M.C.O.P.Nos.805 of 2000, 1085 of 2001, 263 of 2001 and 37 of 1996 was deposited in the Court and the same was ratified by Finance Committee by resolution dated 11.12.2002. However, in the meeting held on 27.12.2002, the Board of Directors advised the Corporation to initiate disciplinary action against the members of sub-committee for not obtaining prior permission from Finance Committee before deposit of award amount. Accordingly, a charge memo dated 12.3.2003 was issued to the Appellant and after conducting enquiry, the Appellant was imposed with a punishment of reduction in the lowest of the scale of his basic pay for a period of three years by an order dated 09.11.2004 issued by the first respondent. By his appeal dated 12.11.2004, the Appellant filed an appeal before the Board of Directors. In the 172nd meeting of the Board of Directors held on 19.3.2005, the Appellant's appeal was rejected and the same was communicated to him by a letter dated 22.4.2005. Appellant preferred appeal before Government. The Government after examining the request of the Appellant has rejected his appeal by letter No.9793/D/2005-2 dated 29.8.2005 stating that he is mainly responsible for the irregularity in having deposited the MACT award amount in the Court without prior approval of Finance Committee or Board and the further review petition dated 16.9.2005 was also rejected by Government in Letter dated 18.1.2006. The said order was challenged before the learned single Judge. 3. Learned single Judge after considering the submissions on either side dismissed the writ petition holding that when the decision of the Sub-Committee was placed before the Board for ratification, the Board in its meeting dated 26.12.2002 did not ratify the action in having deposited the amount without prior approval of the Finance Committee or the Board. The learned single Judge further observed that Appellant did not dispute his role in placing the matter before the Sub-Committee, even though the Sub- Committee had no such financial powers to take decision on award amounts exceeding Rs.3 lakhs. Learned single Judge observed that the Appellant was a Law Officer/Assistant Manager (MACT) holding an https://hcservices.ecourts.gov.in/hcservices/ important position and is expected to properly advise the Corporation on legal matters and the charge of discrimination levelled against the respondent cannot have any legal basis. By relying on a decision of the Supreme Court in Regional Manager, U.P.SRTC. Etawah and others -vs- Hoti Lal and another reported in (2003) 3 SCC 605, the learned single Judge further observed that the power of this court to interfere with the quantum of punishment is very limited 4. We have heard Mr.L.Chandrakumar, learned counsel appearing for the Appellant and Mrs.Rita Chandrasekaran, learned counsel appearing for the Respondents. 5. The learned counsel for Appellant submitted that the Board has ratified the action of the Sub-committee. The other officers of the Sub-committee were imposed lesser punishment whereas the appellant was imposed with reduction to the lowest of the present scale for a period of three years. Though in view of certain exigencies, the Sub Committee decided to settle certain accident claims without prior approval, their action was ratified later. It was further contended that the decision relied on by the learned single judge has no application to the case on hand as it was rendered in a case under Industrial Disputes Act and the punishment being minor was not interfered in the said judgement. The learned counsel would further submit that though the punishment is minor in this case, it has bearing on the retiral and pensionary benefits and therefore, the order of the learned single Judge has to be set aside and the impugned order has to be quashed. 6. On the other hand, the learned counsel appearing for respondent Corporation argued to sustain the order passed by the learned single Judge contending that there is no illegality or infirmity in the order passed by the single Judge. Learned counsel appearing for Respondent would further submit that the Sub-Committee has no vested powers to direct deposit of amount and while so placing the matter before the Sub-committee itself was without jurisdiction. The learned counsel would further submit that because of the subsequent ratification it cannot be contended that misconduct is wiped away and learned single Judge rightly dismissed the writ Petition and the order of single judge warrants no interference. 7. In order to control the expenditures, the Chairman of all State Transport Corporation Undertakings of Tamil Nadu have issued instructions in settling MCOP award amounts in his letterNo.76/Cho/2002 dated 05.07.2002, which reads as follows: "The STUs are placing the details of MACT cases before the Finance Committee/Board as a single subject clubbing together all the cases. In some of the cases where the award amount is on the higher side the same could not be reviewed properly by the Board for want of details about the case. https://hcservices.ecourts.gov.in/hcservices/ Hence Managing Directors are requested to place the subject for settlement exceeding Rs.3.00 lakhs onwards separately as a single subject before the Board with full details." The subject award amount exceeded Rs.3.00 lakhs and the same has to be settled only after the approval of the Finance Committee/Board. 8. Though the award amount was heavy, it was deposited hastily without pursuing appeal remedy when the contributory negligence of the victim has not been properly appreciated. Following the award of compensation in M.C.O.P.cases, amount was remitted by the Corporation based on the decision taken by the Sub-Committee consisting of Assistant Manager (MACT), Chief Accounts Officer, General Manager and Managing Director. Appellant – Law Officer is also one of the Committee member. As pointed out earlier, the amounts were deposited in the respective M.C.O.Ps. While depositing the amount in the above cases, the instructions of the Government dated 5.7.2002 was not followed i.e., the amounts were deposited without obtaining the approval of the Finance Committee and the Board. 9. In the enquiry proceedings, one Kannayyan was examined as M.W.1. In his evidence, M.W.1 has stated that the subject was discussed by the Sub-Committee consisting of Assistant Manager (MACT), Chief Accounts Officer, General Manager and Managing Director and after discussion the decision was taken as:- (i) The award amount may be settled as per the court direction based on the orders passed by the court on the Execution Petition filed by the petitioner; (ii) Ratification may be obtained from Finance Committee/Board later." Based on the above resolution passed by the Sub-Committee, the amounts of Rs.5,00,321/-, Rs.4,68,252/-, Rs.8,51,804/- and Rs.7,44,368/- were deposited to the credit of M.C.O.P.Nos.805 of 2000, 1085 of 2001, 263 of 2001 and 37 of 1996 on 19.11.2002, 4.12.2002, 11.12.2002 and 20.11.2002 respectively. 10. In the Finance Committee meeting held on 3.12.2002 and the Board meeting held on 26.12.2002, the above three cases were placed before the Finance Committee. In his evidence, M.W.1 has stated that by resolution No.113/2002-2003, Finance Committee resolved "not to ratify the action of the Managing Director in having deposited the amount without prior approval of the Finance Committee or Board" and further resolved to prefer "appeal" in all the four cases. The resolution not to ratify the action of Managing Director was as a matter of fact marked as M.Ex.No.4. Based on the above resolution, Appeals were filed before High Court as against the orders in M.C.O.P.Nos.805 of 2002, 1085 of 2001, 263 of 2001. 11. Insofar as M.C.O.P.No.37 of 1996, Tribunal passed the award for a sum of Rs.4,55,000/- with interest at the rate of 9%. The Panel counsel for the Corporation has opined that it was 'a fit case for appeal'. Based on the opinion obtained from advocates, the Sub- https://hcservices.ecourts.gov.in/hcservices/ Committee in which the Appellant was also a member has decided that Appeal has to be preferred against the order passed in M.C.O.P.No.37 of 1996. In the mean time Tribunal has passed an order in Execution Petition filed by the claimants to attach the Corporation property. The subject was discussed by the Sub-Committee, which has passed the resolution to deposit the amount as per the Court direction and thereafter to obtain ratification from the Finance Committee/Board. Based on the decision of Sub-Committee, an amount of Rs.7,44,368/- was deposited to the credit of M.C.O.P.No.37 of 1996. However, it was stated that request was made to the Tribunal to retain the amount in the Court till further directions are obtained from High Court. In the Finance Committee meeting held on 3.12.2002 and Board meeting held on 26.12.2002, the Board has resolved not to ratify the action of the Managing Director in having deposited the amount in M.C.O.P.No.37 of 1996. In respect of M.C.O.P.No.37 of 1996, Appeal was filed prior to the placing of matter before the Finance Committee/Board. 12. In his evidence, M.W.1 has clearly stated that the instruction of the Government in letter dated 5.7.2002 was not followed in the four cases i.e., without prior approval of the Finance Committee and the Board, the award amount has been settled. It is pertinent to note that M.W.1 was not cross examined by the Appellant. The Appellant has stated before the Enquiry Officer that M.W.1 need not be cross examined. 13. The resolution passed by the Sub-committee resolving to deposit the amount in the claims exceeding Rs.3 lakhs was in violation of the instruction of the Government. Prior approval of the Finance Committee/Board ought to have been obtained before depositing amount. As rightly contended by the learned counsel for Respondents, placing the matter before the Sub-Committee was without jurisdiction. 14. The Appellant, being a Law Officer, he was in the position of trust to act diligently protecting the interest of the Corporation. Being the Law Officer of Corporation dealing in deposit of amounts before the Tribunals, the Appellant was well conversant with the Rules and procedures. He must be presumed to have known the consequence of violation of the Rules/instructions. Having regard to the clear violation of Rules/instructions, the Appellant was rightly found guilty of the charges. Exercising jurisdiction under Article 226 of the Constitution of India, the High Court will not interfere with the findings of disciplinary authority unless the findings are shown to be perverse or based on no evidence. It cannot be said that this is a case of no evidence or perverse finding, warranting interference. 15. Learned counsel for the Appellant filed additional typed set of papers and contended that in the Finance Committee meeting held on 11.12.2002, the Finance Committee has resolved to ratify the action https://hcservices.ecourts.gov.in/hcservices/ of the deposit of the amount in M.C.O.P.No.37 of , 805 of 2000, 1085 of 2001 and 263 of 2001. It was therefore contended that when the Finance Committee resolved to ratify the action of deposit of award amount, the authorities did not keep in view such ratification given by the Finance Committee. We have called for the records and perused evidence of M.W.1 and also report of Enquiry Officer. By perusal of evidence of M.W.1 and Enquiry Officer's report, it is clear that in the meeting held on 26.12.2002, by the resolution dated 113/02-03 Finance Committee has resolved not to ratify the action of Managing Director in having deposited the amount. The alleged resolution of Finance Committee meeting dated 11.12.2002 was not brought to the notice of the Enquiry Officer, nor M.W.1 was cross examined in this regard. As we pointed out earlier, in the enquiry proceedings, before the Enquiry Officer, the Appellant has stated that M.W.1 need not be cross examined. In such circumstances, no reliance could be placed upon the alleged resolution of the Finance Committee meeting held on 11.12.2002. In any event, as rightly contended by the learned counsel for Respondent, subsequent ratification, even if any, would not wipe away the earlier misconduct of taking the decision in the Sub- Committee meeting to deposit the amount. 16. The learned counsel for the Appellant contended that the Sub-Committee consisting of the Assistant Manager (MACT), Chief Accounts Officer, General Manager, Managing Director and Law Officer – Appellant and Corporation has proceeded only against the Appellant and the Appellant was discriminated in initiating disciplinary proceedings. By perusal of the files produced by the Respondents, it is seen that the other officers were also proceeded with and the grievance of the Appellant that he was discriminated does not merit acceptance. 17. The learned counsel for Appellant nextly contended that the Appellant served the Corporation for 32 years without any blemish and that he has also obtained good service certificate in 1999, 2000 and 2001 and Appellant was also awarded the appreciation for his good service. It was further submitted that when the Motor Accident Claims Tribunals have passed the award, only with a view to avoid attachment of the Corporation's property, the Appellant has diligently acted and while so, any deviation could only be minor for which the punishment imposed upon the Appellant (reduction of Basic Pay to the lowest present scale of pay for three years) is harsh and disproportionate. It was further submitted that the Appellant has attained age of superannuation in June, 2009 and the punishment imposed upon him reducing his pay to the lowest scale of pay has seriously impinged upon his pensionary benefits depriving him of due pension which he would have been entitled to for his long service of 32 years. It was also argued that the other officers were imposed lesser punishment and only the appellant was discriminated in imposing heavy punishment. 18. Referring to Regional Manager, U.P.SRTC. Etawah and others https://hcservices.ecourts.gov.in/hcservices/ -vs- Hoti Lal and another reported in (2003) 3 SCC 605 learned single Judge held that the Appellant was holding position of trust, where honesty and integrity are in-built requirements of functioning and observed that the punishment imposed upon Appellant is commensurate with the gravity of charges and declined to interfere with the quantum of punishment. 19. It is trite that that the Tribunal or the High Court exercising jurisdiction under Article 226 of the Constitution are not hearing an appeal against the decision of the disciplinary authority imposing punishment upon the delinquent employee. It is very well settled by a catena of decisions of Supreme Court that the jurisdiction exercised by the Tribunal or the High Court is a limited one and while exercising the power of judicial review, they cannot set aside the punishment altogether or impose some other penalty unless they find that there has been a substantial non-compliance of the rules of procedure or a gross violation of rules of natural justice, which has caused prejudice to the employee and has resulted in miscarriage of justice or the punishment is shockingly disproportionate to the gravamen of the employees. 20. In B.C. Chaturvedi v. Union of India, (1995) 6 SCC 749, the Supreme Court held that if the punishment imposed by the disciplinary authority or the appellate authority shocks the conscience of the High Court/Tribunal, it would appropriately mould the relief, either directing the disciplinary/appellate authority to reconsider the penalty imposed, or to shorten the litigation, it may itself, in exceptional and rare cases, impose appropriate punishment with cogent reasons in support thereof. 21. In DAMON PANNA SAGAR RURAL REGIONAL BANK AND ANOTHER VS. MUNNA LAL JAIN, AIR 2005 SC 584 = (2005) 10 SCC 84, the Supreme Court observed that the Court should not interfere with the administrator's decision unless it was illogical or suffers from procedural impropriety or was shocking to the consience of the Court, in the sense that it was in defiance of logic or moral standards. 22. The Appellant had served for a long period of 32 years. By perusal of file, it was seen that Govindarajan, Chief Accounts Officer was also imposed punishment of reducing basic pay to the lowest level in that cadre for a period of one year and on appeal, the Board has reduced the period to six months. While so, only the Appellant was imposed the said punishment of reduction to the lowest of present scale of pay for a period of three years. Though it is contended on behalf of the Respondents that the primary responsibility vests with the Appellant and he has misguided the Committee members and mainly responsible for the irregularity, upon considering the facts and circumstances of the case, in our considered view, the disciplinary authority was not justified in discriminating the Appellant from the similarly placed persons and https://hcservices.ecourts.gov.in/hcservices/ the punishment imposed upon the Appellant has to be modified as reduction of basic pay to the lowest present scale of pay for a period of one year. 23. In the result, the order passed by the learned single Judge is set aside and the Writ Appeal is partly allowed by modifying the punishment imposed upon the appellant as "reduction of basic pay to the lowest present scale of pay for a period of one year". However, there shall be no order as to costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar usk Copy to: 1. The Managing Director Tamilnadu State Transport Corporation (Salem) Limited, Salem.-7. 2. The Chairman Board of Directors Tamil Nadu State Transport Corporation Salem – 7 3. The Secretary to Government Transport Department Secretariat, Chennai – 9. 1 cc To Mr.L.Chandrakumar, Advocate, SR.17427. 1 cc To Mrs.Jayesh B.Dolia, Advocate, SR.17228. 1 cc To The Government Pleader, SR.17491. W.A.No.960 of 2009 MBS(CO) RVL 22.03.2010 https://hcservices.ecourts.gov.in/hcservices/