This writ petition has been filed seeking a writ of certiorarified mandamus calling for the impugned proceedings of the second respondent dated 13.06.2011, as confirmed by the first respondent by proceedings dated 21.12.2011 and quash the same. Consequently, the petitioner had also prayed direction on the respondents to credit back to the petitioner's account an amount of Rs.8,239/-, which has been withheld from the salary of the petitioner.
follows:
2. The facts which led to the filing of the writ petition are as On 24.04.1990, the petitioner was appointed as Pharmacist in Perundurai Medical College, run by the Institute of Road Transport, on consolidated wages and his services were regularised on 13.01.1993 with effect from 01.01.1993. While he was working so, the petitioner was suspended from service with effect from 02.12.2004 alleging that he had misappropriated sums. Along with the petitioner, two other pharmacists were also placed under suspension for the alleged offence. The second respondent issued a charge memo dated 18.01.2005 to the petitioner alleging that he had distributed medicines procured from Tamil Nadu Medical Services Corporation to the Employees of Government Transport Corporation instead of branded items. He had also sold the branded items to out-patients without bill and thus misappropriated a sum of Rs.27,809.14. The petitioner submitted his explanation on 31.01.2005 denying all the allegations.
3. According to the petitioner, the second respondent, without considering the explanation of the petitioner, appointed an Enquiry Officer, who is an Advocate. The petitioner was not afforded with adequate opportunity to defend himself in the enquiry and he was waiting for the enquiry report to make his objection. However, to his shock and surprise, the second respondent forwarded a copy of the enquiry report to the petitioner calling for an explanation as to why a sum of Rs.8,239.99 should not be recovered from the petitioner and also why he should not be dismissed from service.
4. Aggrieved by the disciplinary proceedings initiated against the petitioner, the petitioner filed W.P.No.38019 of 2005 seeking to quash the show cause notice and to reinstate the petitioner. By an order dated 24.11.2005, this Court granted an interim order of stay of passing of final order. Pending writ petition, the petitioner was reinstated in service from 16.06.2006 by the second respondent without disturbance to the pending disciplinary proceedings.
5. By an order dated 30.09.2010, while allowing W.P.No.38019 of 2005, this Court remitted the matter to the second respondent to issue a fresh show cause notice calling upon explanation from the petitioner and decide the matter afresh.
6. On 22.02.2011, the second respondent issued second show cause notice by mentioning that the department has proposed to inflict the punishment of stoppage of increment with cumulative effect for the period of two years and called upon the petitioner to offer his explanation/objection to the second show cause notice.
7. On 02.03.2011, the petitioner submitted his explanation denying each and every allegation levelled against him. However, on 13.06.2011, the second respondent without considering the explanation of the petitioner, passed an order imposing punishment of stoppage of increment with cumulative effect for the period of 2 years. The second respondent has also withhold the amount of Rs.8,239/- from the petitioner's salary in four equal monthly instalments starting from June 2011.
8. Aggrieved by the order of the second respondent, the petitioner preferred an appeal before the first respondent and the same was dismissed on 21.12.2011. Challenging both the orders, the petitioner has filed the present writ petition.
9. Denying the averments made in the affidavit filed in support of the writ petition, the respondents filed the counter stating that on 02.12.2004 night, the petitioner trespassed into the pharmacy and took out some medicines and kept them in the telephone Section and pharmacy stores. It is stated that the value of medicines kept in the telephone Section was Rs.2,835/- and in the pharmacy store was Rs.9,168/-. It is stated that when the audit staff had audited the pharmacy on 02.12.2004 night, they had also found shortage of one category of medicine for the value of Rs.9,239.99 and excess of another category of medicine to the tune of Rs.3,049.56. Since the petitioner was in-charge of the pharmacy, he was issued with the charge memo dated 18.01.2005. The petitioner received the charge memo with all the relevant basic documents without any objection. The petitioner also participated in the enquiry and he has not raised any objection. It is further stated that the petitioner had accepted the offence and remitted the misappropriated amount in two spells i.e. Rs.15,000/- on 25.01.2005 and Rs.12,809.15 on 27.01.2005. During enquiry, the petitioner was given full opportunity to defend the case. Since the explanation submitted by the petitioner to the second show cause notice was not satisfactory, the second respondent issued the impugned proceedings dated 13.06.2011. An amount of Rs.8,239.99 was deducted from the salary of the petitioner from June 2011 onwards. It is also stated that the appeal petition filed by the petitioner was also dismissed by the appellate authority.
10. I heard Dr.R.Gouri, learned counsel for the petitioner and Mrs.Kala Ramesh, learned counsel appearing for the respondents. I have also perused the materials available on record.
11. Learned counsel for the petitioner submitted that the impugned proceedings of the second respondent is against law and the same is liable to be set aside on the ground that the punishment imposed is without even considering the legal evidence to substantiate the findings recorded by the Enquiry Officer. The learned counsel submitted that the second respondent ought to have seen that the charges are bereft of particulars and equally the findings of the Enquiry Officer are also based on no valid reasons. She submitted that the second respondent without even considering the fact that there were five pharmacists and also nine contract employees working in shifts, fixed the responsibility solely on the petitioner, as if he had committed the offence.
12. The main argument of the learned counsel for the petitioner is that the punishment imposed on the petitioner is a major penalty and disproportionate to the alleged charges and there is no loss to the department. She would further submitted that the enquiry procedure must link the charge office with the alleged misconduct. Otherwise, it would be no evidence in law. Merely stating in the enquiry report that in view of oral, documentary and circumstantial evidence as adduced in the enquiry is not sufficient. In support of her submission, the learned counsel for the petitioner cited the following decisions:
(i) (2007) 10 SCC 88 [M.P.State Agro Industries Development Corporation Limited and another v. Jahan Khan) (ii)(2002) 7 SCC 142 [Sher Bahadur v. Union of India and others]
13. Learned counsel for the respondents submitted that since the explanation submitted by the petitioner is not convincing, the impugned order dated 13.06.2011 imposing punishment of stoppage of increment for two years with cumulative effect was passed by the second respondent. The appeal preferred by the petitioner was also dismissed by the first respondent. The learned counsel would submit that the petitioner having admitted the offence and paid back the amount, the respondents ought to have passed an order of dismissal. However, taking a lenient view, only a lesser punishment was imposed. The appellate order has given some reasons for confirming the punishment. Therefore, the orders impugned need not be disturbed.
14. While the petitioner was working as pharmacist, he was served with the following charges:
(i) The petitioner has distributed medicines procured from Tamil Nadu Medical Services Corporation to the Employees of Government Transport instead of branded items.
(ii) The branded item were sold to out patients without bill and misappropriated Rs.27,809.14. (iii)Proper bills were not made in respect of the drugs procured from Tamil Nadu Medical Services Corporation to the Employees of Government Transport without entering OP/IP/Ward Number purchase to purchase basis and that the bills have been entered in a single bill at the end of the day.
(iv)During auditing, there was less stock worth Rs.8,239,99 and excess stock worth Rs.3049.56.
15. There is no dispute that the charge memo was served on the petitioner and he submitted an explanation denying the charges. However, it is the say of the petitioner that during enquiry, he was not afforded with an opportunity of hearing. Since, the petitioner was not afforded with full opportunity of hearing in the disciplinary proceedings, he had filed W.P.No.38019 of 2005 before this Court.
This Court, by an order dated 30.09.2010, remitted the matter to the second respondent to issue a fresh show cause notice calling upon explanation from the petitioner. According to the petitioner, the second respondent issued the second show cause notice dated 22.02.2011, verbatim re-producing the same error by mentioning that the department had proposed to inflict the punishment of stoppage of increment with cumulative effect for the period of two years. According to the petitioner, the approach adopted by the second respondent is against the well settled law.
16. On a perusal of the report of the Enquiry Officer, I find that the petitioner has not been examined as witness, instead, the Enquiry Officer, in his enquiry report, narrated the submissions/explanations submitted by the petitioner and in the list of witnesses, the Enquiry Officer, had marked certain documents, which were annexed along with the explanation.
17. On a perusal of the enquiry report, I find that there is no whisper about the opportunity of hearing given to the petitioner during enquiry. Likewise, there is also no whisper when the enquiry started and when the petitioner was given an opportunity to cross-examine the witnesses of the department. It is the definite case of the petitioner that no opportunity was given to defend himself by examining his witnesses, to pursue documentary evidence and also to cross-examine those deposing against him.
18. As stated above, the Enquiry Officer on the basis of the explanation offered by the petitioner, found that charges are proved. The second respondent, based on the findings of the Enquiry Officer, imposed the punishment of stoppage of increment for a period of two years with cumulative effect.
19. In the light of the above, the points that arise for consideration are:
(1) Whether the procedure adopted by the respondent authorities are in accordance with the Rules of the respondent department; and
(2) Whether the respondent authorities satisfied the principles of natural justice and conducted fair hearing.
20. Rule 4 of the Perundurai Medical College and Hospital and R.T.S. Employees' Discipline and Appeal Rules, deals with penalties, which read thus:
4. PENALTIES:
A. The following penalties may be imposed on an employee, as hereinafter provided, for any misconduct committed by him or for any other good and sufficient reasons:-
a) Minor Penalties
i. Censure
ii. Fine
b) Major Penalties:
i. Withholding of increments of pay without cumulative effect.
ii. Recovery from pay to the extent necessary of the monetary value equivalent to the amount of increment ordered to be withheld, where such an order cannot be given effect to.
Explanation: In case of stoppage of increment with cumulative effect, the monetary value equivalent to three times the amount of increments ordered to be withheld may be recovered.
iii. Suspension, where a person has already been suspended under rule 18 pending enquiry into his conduct, to the extent considered necessary by the authority imposing the penalty.
iv. Reduction to lower grade or post or time scale, or to a lower stage in a time scale.
v. Recovery from pay to the extent necessary of the monetary value equivalent to the amount of reduction to a lower stage in a time scale ordered where such an order cannot be given effect to
vi. Removal from service of the institute. vii.Dismissal from service of the Institute. (which disqualifies from future employment in the institute)
21. Even though, it is stated in the counter that the petitioner himself has admitted the offence and remitted the misappropriated amount in two spells, the same have been denied by the petitioner.
22. On going through the explanation submitted by the petitioner found in the typed set of papers, I find that the petitioner denied the charges and explained his position in detail. In the light of the explanation offered by the petitioner and after going through the explanation and also the fact remains that no opportunity was given to the petitioner despite specific direction given by this Court in W.P.No.38019 of 2005, I am unable to accept the argument of the learned counsel for the respondents that question of examination or cross-examination of any witness does not arise. I am of the considered view that the respondents ought to have examined witnesses to prove the alleged charges. It is not possible to arrive at a conclusion merely on the basis of the explanation offered by the petitioner and on the basis of the documents produced before the Enquiry Officer by the department.
23. The learned counsel for the petitioner submitted that stoppage of increment for the period of two years with cumulative effect being a major penalty inflicted upon the petitioner is disproportionate to the alleged charges. She argued that when penalty was imposed withholding two increments, it would indisputably mean that the two increments earned by the employee was cut off as a measure of penalty for every in his upward march of earning higher scale of pay. I find that there is some force in the arguments advanced by the learned counsel for the petitioner.
24. It is well settled that directing stoppage of two increments with cumulative effect would come within the concept of major penalty and imposition of such punishment without a proper enquiry would be illegal.
25. It is pertinent to point out that time and again this Court as well as the Apex Court held that when stoppage of increment is ordered with cumulative effect and Rules are silent on that aspect, it would be deemed as a major punishment calling for a regular enquiry as prescribed for a major punishment.
26. As argued by the learned counsel for the petitioner, where the stoppage of increment is continued with cumulative effect for a period of two years, it means that two increments earned by the employee was cut off as a measure of penalty.
27. At this juncture, it is to be pointed out that in the earlier writ petition initiated by the petitioner, while remitting the matter to the second respondent for issuing show cause notice afresh, this Court, specifically observed that the act of the second respondent in deciding to inflict punishment even before the stage of calling for explanation from the delinquent is bad in law and suffers from procedural irregularity. However, the second respondent, while issuing the second show cause notice has once again committed the very same infirmity by pre-deciding the issue and proposed to inflict the petitioner with punishment of stoppage of increment for the period of two years with cumulative effect and parallely called upon the petitioner to offer his explanation. The aforesaid approach adopted by the second respondent suffers from the procedural irregularity as the same is a pre-decided one. Further, the respondent authorities adopted an empty formality calling upon the petitioner to submit explanation while the text of the show cause notice itself proposed infliction of punishment upon the petitioner.
28. In the case on hand, as per the version of the petitioner, pending disciplinary proceedings, the petitioner was called upon to remit Rs.27,809.14 and the same was remitted by the petitioner under protest. As such, there is no loss of revenue to the department. That apart an amount of Rs.8,239.99 was deducted from the salary of the petitioner in four equal instalments, while the appeal petition was pending before the first respondent. The aforesaid would show that the impugned order of punishment of stoppage of increment with cumulative effect for the period of two years and to withhold the amount of Rs.8,239.99 from the petitioner's salary is double punishment. Article 20(2) of the Constitution of India contemplates that no person shall be prosecuted or punished for the same offence for more than once.
29. In the light of the principles enunciated by this Court as well as the Apex Court time and again, I am of the view that withholding of increments i.e., for two years with cumulative effect, would mean that two increments earned by the petitioner was cut off as a measure of penalty for every in his upward march of earning higher scale of pay.
30. It is settled law that it is for the department to prove the alleged charges beyond any doubt. Merely because the petitioner did not seek an opportunity that would not mean that charges were established. In number of decisions, this Court held that it was for the Department/Management, as the case may be, to establish charges by way of material evidence.
31. In this case, the procedure adopted by the respondent authorities could not be said to be a legal one and the alleged enquiry is vitiated seriously. Therefore, the order of punishment passed by the second respondent, cannot be sustained in the eye of law.
32. Apart from this, the Appellate Authority, the first respondent herein, without considering the case of the petitioner merely confirmed the order passed by the Original Authority, the second respondent herein and the same is also vitiated.
33. As stated above, the impugned order of punishment of stoppage of increment with cumulative effect for the period of two years and withholding the amount of Rs.8,239.99 from the petitioner's salary is double punishment. In the light of the above narration, the order of the second respondent dated 13.06.2011 and confirmed by the first respondent in his order dated 21.12.2011 are liable to be quashed.
34. In the result:
(a) this writ petition is allowed and the impugned proceedings of the second respondent in No.2568/E3/IRTPMC/2005 dated 13.06.2011 as confirmed by the first respondent by proceedings No.367/24/SA PO NEE/2006 dated 21.12.2011, are set aside;
(b) the respondents are directed to credit back the amount of Rs.8,239/-, which was recovered from the petitioner;
(c) the said exercise shall be done within a period of four weeks from the date of receipt of a copy of this order. No costs. Consequently, connected Miscellaneous Petition is closed.
27.11.2017 Note:Issue order copy on 26.03.2018 vs Index : Yes Internet : Yes To
1. The Director, The Institute of Road Transport, 100 Feet Road, Taramani, Chennai – 600 113.
2. The Dean, IRT Perundurai Medical College and Hospital, Perundurai, Erode District.
M.V.MURALIDARAN, J.
vs Pre-Delivery order made in W.P.No.28284 of 2011 and M.P.No.1 of 2011 27.11.2017