The prayer in the writ petition is for a Writ of Certiorarified Mandamus, calling for the entire records of the impugned order in R.C.No.61691/2003/DA3 of the 1st Respondent dated 31.01.2004, confirming the order of the 2nd Respondent in Na.Ka.No.9896/2001 dated 29.11.2002, quash the same and directing the Respondents to provide all consequential benefits.
2.The case of the petitioner is that the petitioner was working as Special Officer at Marakkanam Primary Agricultural Bank during the period from 01.03.2000 to 07.03.2001. Charges were framed against him under 17(b) of the Civil Services (Discipline and Appeal) Rules for certain lapses on his part.
3.Pursuant to the charges framed, explanations were called for and the petitioner had given a detailed explanation to the said charges framed against him. Thereafter, enquiry was conducted and the enquiry officer has given his report dated 24.05.2002, according to which all the 8 charges were proved. Pursuant to the same, the second respondent being the disciplinary authority had inflicted a punishment by order dated 29.11.2002 against the petitioner for stoppage of increment for 3 years with cumulative effect, against which the petitioner filed appeal before the first respondent, who in turn confirmed the order of the disciplinary authority by rejecting the appeal filed by the petitioner by order dated 31.01.2004. Challenging both the orders passed by the first and second respondent dated 31.01.2004 and first respondent dated 29.11.2002, respectively, the petitioner has come out with the present writ petition with the aforesaid prayer.
4.Heard both sides.
5.The learned counsel appearing for the petitioner has taken this Court through the 8 charges framed against him and the explanation given by him for each of the charges. He has also drew the attention of this Court in respect of a reply submitted by the second respondent to the petitioner pursuant to an R.T.I. Act query dated 31.10.2009, wherein it has been stated that since there was no directive to the petitioner to remove one E.Subramani from service he was not removed from service, whereas the charges framed against the petitioner is that he has not removed the said Subramanin. Like that at paragraph 2 of the said communication dated 31.10.2009 of the second respondent, it is specifically averred that there was no demotion to the three individuals, namely, M.Palani, V.Vengadesan and R.Mohan because they had been promoted as per the norms, whereas the charge in this regard is that the demotion had not been effected to the said three persons, by the petitioner.
6.Like that charge No.3 had been made against the petitioner that the three persons had not been demoted and their promotion or increment had not been cancelled. In so far as charge No.2 is concerned, the daily wages employee was given earned leave for 205 days by this he was instrumental to the loss to the bank, where the petitioner has worked as Special Officer, to the extent of Rs.9,560/- and there is no plausible explanation from the petitioner as to why he had allowed the daily wages employee the earned leave because he was not at all entitled to get any earned leave.
7.Insofar charge No.4 is concerned, the petitioner had acted upon on his own in violating the provisions of Section 88(3) of the Tamil Nadu Co- operative Societies Act (hereinafter referred to as Act). When we have the perusal of the said Section, it is only an enabling provision under which powers are vested with the Special Officer for appointment under Section 88(1) of the Act in case of any situation arises to look after the Co- operative Societies. There is no specific averments made in the said charge as to in what way the petitioner had violated the said provision under Section 88(3) of the Act. Insofar as charge No.5 is concerned, it was the allegation against the petitioner that he had made appointments without previous sanction of the higher authorities.
8.Like that charge No.6 is that he had entertained an appeal from a dismissed employee that too beyond 30 days limitation where the petitioner being Special Officer of the Bank had no power to entertain the appeal. By entertaining the said appeal the said dismissed person had been re-appointed, of course, temporarily. Like that charge No.7 is that the petitioner had acted by putting ante-date resolution said to have been made on 02.02.2001, by which promotion had been given to three persons from the post of Salesmen to Clerk. However, the said orders had been passed after the petitioner had been transferred on 08.02.2001.
9.In respect of the 8th charge/last charge is concerned, he had given loan advance to six of those employees for Rs.12,000/- in violation of the norms. The learned counsel appearing for the petitioner submits that in respect of the 8th charge detailed explanation had been given, and as has been pointed out by him, through the communication dated 31.10.2009 of the second respondent, as well as the further communication dated 05.01.2010 of the Special Officer of the bank concerned, pursuant to the RTA enquiry, there is no financial loss actually incurred to the bank, where he has worked as Special Officer and alteast in respect of four out of eight charges framed against the petitioner there is no definite proof to show that the charges framed against the petitioner had been proved. Therefore, the punishment awarded against the petitioner i.e., stoppage of increments for three years with cumulative effect is on the higher side because it will have an impact on his salary and pensionary benefits and therefore, the impugned order is liable to be interfered with.
10.Per contra, the learned counsel appearing for the respondents would contend that definite charges 8 in numbers were framed as against the petitioner and explanation was called from him and in response to the same, the petitioner had given a detailed explanation. After having considered the same, the enquiry officer has given a detailed report, whereby each of the charges and explanation given by the petitioner as well as documents pertaining to the said charges framed against him, had been considered in detail by the enquiry officer and ultimately he has given a finding that all the 8 charges framed against the petitioner stands proved.
11.The learned counsel for the respondents would further submit that on considering the said detailed report of the enquiry officer, the second respondent being the disciplinary authority, instead of inflicting a major punishment of removal of service, has inflicted punishment to the extent of stoppage of increments for three years, of course with cumulative effect. Therefore, on the proven charges, the present punishment inflicted on the petitioner is not on the higher side. Therefore, considering the same, the first respondent appellate authority has confirmed the order of the disciplinary authority by dismissing the appeal. Therefore, both the orders are fully justifiable and requires no interference by this Court.
12.I have considered the rival submissions made by the learned counsel appearing for the parties as well as the documents filed for perusal of the Court. I have also gone through the import of the 8 charges framed against the petitioner and the detailed explanation to each of the charges given by the petitioner. I have also considered the two documents heavily relied upon by the learned counsel appearing for the petitioner, which the petitioner has obtained through R.T.I. Act.
13.After having gone through those documents as well as the provisions of the Act, especially Section 88(3) of the Act, it can be easily found that not all the charges framed against the petitioner were proved.
14.Insofar as charge No.1 is concerned, the petitioner had not removed one E.Subramanian from service, whereas in the first paragraph of the information received under R.T.I. Act dated 31.10.2009, it has been specifically averred by the second respondent that there was no directive to the Special Officer to remove the said Subramanian. Therefore, the first charge, no doubt, is not proved against the petitioner.
15.Insofar as second charge is concerned, admittedly the petitioner had given earned leave facility to one of the employee, who was working as daily wages employee for 205 days from 15.10.1994 to 31.12.2000, whereby a loss was caused to the Bank to the extent of Rs.9,560/-. No daily wages employee would be entitled to earn leave facility. Therefore, knowing well that the said employee was not entitled to earned leave, the same had been allowed by the petitioner. Therefore, in this regard the second charge framed against the petitioner is proved.
16.Insofar as the third charge is concerned, the charge against the petitioner is that he had not demoted three persons by name M.Palani, V.Venkatesan and R.Mohan, whereas at paragraph 2 of the letter dated 31.10.2009, issued by the second respondent under R.T.I. Act, it has been specifically averred that promotion had been given to those persons as per norms and therefore, they had not been given reversion. When this specific averment had been made at paragraph No.2 of the communication of the second respondent that those three persons were promoted as per norms, the question of framing such charge against the petitioner for not having taken action against the said persons does not arise. Therefore, the said third charge has not been proved.
17.Insofar as the fourth charge is concerned, it is specifically mentioned that the petitioner had acted upon in violation of Section 88(3) of Act, whereas Section 88(3) of the Act reads as follows:
?88 (3) The administrator appointed under sub-section (1) shall subject to the control of the Registrar and to such directions as he may, from time to time give, have powers to exercise all or any of the functions of the Board or of any officer of the Society and to take such action as may be required in the interest of the Society.?
18.The said sub-section (3) of Section 88 of the Act merely gives powers to exercise all or any of the functions of the Board or of any officer of the Society and to take such action as may be required in the interest of the Society. When such a blanket power is given under Section 88 of the Act and as there is no specific averment in the charge No.4 that on what count the petitioner has acted in violation of the said provisions under Section 88(3) of the Act, this Court is of the considered view that charge No.4 had not been proved against the petitioner.
19.Like that insofar charge No.5 is concerned, it is against the petitioner stating that he had given compassionate appointment to the legal heir of the deceased employee of the bank. It is settled proposition of law that giving compassionate appointment to the legal heir of the employee/servant is to alleviate the penurious situation of the family facing due to the immediate demise of the bread winner of the family. Therefore, the compassionate appointment cannot be found fault with. Hence, this Court is of the considered view that charge No.5 also not proved against the petitioner.
20.Insofar as the 6th charge made against the petitioner is concerned, the petitioner seems to have entertained an appeal beyond 30 days period from a dismissed employee and subsequently by entertaining the appeal the said employee had been given temporary posting, whereas the petitioner being the Special Officer has no power to entertain the appeal from the dismissed employee and if at all the employee got any grievance he can file appeal, of course before the appellate authority and the correctness of the issue has to be decided only by the appellate authority and not by the same disciplinary authority as he had no power to entertain such appeal. Therefore, being the Special Officer, the petitioner has entertained such appeal, without any power. Hence, in this regard charge No.6 framed against the petitioner, in the opinion of this Court, is proved.
21.Insofar as the charge No.7 is concerned, it is the charge against the petitioner that though he had been transferred from the Bank on 08.02.2001, he has put ante-dated proceedings as if he issued the proceedings on 02.02.2001, through which the petitioner had given promotions to Salesmen as Clerk, whereas the record shows that those three persons who had been given promotion by the petitioner by order dated 02.02.2001, in fact had worked as salesmen till 08.02.2001 because they had paid amount out of the sales from the respective fair price shop on 09.02.2001. Therefore, there is every possibility of issuance of ante- dated order, knowing fully well that the petitioner had been transferred on 08.02.2001. Therefore, there is substance on this charge framed against the petitioner. Hence, the same can also be considered as proved.
22.Insofar as last charge i.e., charge No.8 is concerned he had allowed advances to 6 employees for Rs.12,000/- each. That advance of loan to the employee is against the norms, whereas the learned counsel for the petitioner by relying upon the communication issued by the Special Officer of the Bank, where the Special Officer had stated that the employees who had been given advance by the petitioner had repaid the advance. Therefore, there is no loss occurred to the bank. Hence, this charge has to go. Merely, because those employees, who received advance by way of loan from the Bank as ordered by the petitioner have repaid the same, that would not cure the defect on the part of the petitioner in having allowed the loan to the employees against the norms. When we look into the date of sanction of advances for all the employees, the loan has been sanctioned on 08.02.2001 i.e., the date on which the petitioner was transferred. All the facts would disclose that the petitioner for whatever reason had permitted the advances of loan to 6 employees on a single date i.e., on his date of transfer, without following the norms. Therefore, this charge can also be considered as proved.
23.Therefore, on a careful and detailed reading of the documents filed before this Court, this Court is of the considered view that 4 out 8 charges framed against the petitioner is proved i.e., 2, 6, 7 and 8 and the remaining charges i.e., 1, 3, 4 and 5 have not been proved. In view of this, this Court is of the view that the punishment awarded against the petitioner for stoppage of increment with cumulative effect for three years is certainly on the higher side because the said punishment will have a repercussion on the pensionary benefits. Therefore, considering the totality of the situation and given facts and circumstances of the case as has been discussed above, this Court is of the considered view that the impugned order can very well be modified with lesser punishment than the one inflicted on the petitioner.
24.In the result, the impugned order passed by the second respondent as confirmed by the first respondent vide proceedings dated 29.11.2002 and 31.01.2004 respectively are modified to the extent that the petitioner shall be inflicted with a punishment of stoppage of increments for 2 years without cumulative effect and such punishment shall not have any repercussion on the pensionary benefits of the petitioner.
25.With these modification, this Writ Petition is allowed in part. No costs. Consequently, connected Miscellaneous Petition is closed.
To
1.The Registrar of Co-operative Societies, Chennai ? 600 010.
2.The Joint Registrar of Co-operative Societies, Villupuram Region, Villupuram District.
3.The Deputy Registrar of Co-operative Societies, Dindivanam, Villupuram District..