Union of India and Others vs M. Duraisamy

Union of India and Others vs M. Duraisamy - Supreme Court Case - 

Landmark Cases of India / सुप्रीम कोर्ट के ऐतिहासिक फैसले


REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 2665 OF 2022
(Arising from SLP(C) No.6062/2022 @ D.No.18112/2017)
Union of India and Others …Appellants
Versus
M. Duraisamy …Respondent
J U D G M E N T
M.R. SHAH, J.
1. Feeling aggrieved and dissatisfied with the impugned judgment
and order dated 30.08.2016 passed by the High Court of Judicature at
Madras in Writ Petition No. 33303/2013, by which the High Court has
dismissed the said writ petition preferred by the appellants herein –
Union of India and others and has confirmed the order passed by the
Central Administrative Tribunal, Madras Bench (hereinafter referred to as
the ‘Tribunal’) in Original Application (OA) No. 357 of 2012 by which the
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Tribunal allowed the said OA and modified the punishment from
dismissal/removal from service to compulsory retirement, the Union of
India and others have preferred the present appeal.
2. The facts leading to the present appeal in a nutshell are as under:
That the respondent herein was serving as a Postal Assistant.
While he was working as SPM Veppur SO during the period from 2004
to 2007, he committed fraud by way of fraudulent withdrawal in 85 RD
accounts and by way of non-credit of deposits in 71 RD accounts and
defrauded a sum of Rs.16,59,065/-. The fraud came to light when
enquiries were made based on the report of Postmaster, Srirangam vide
letter dated 11.06.2007 about double payment of RD closure in respect
of some RD accounts which revealed that the accounts were
fraudulently closed by the respondent herein for the second time by way
of forging the signatures of the depositors and a sum of Rs.52,395/- had
been withdrawn from the said accounts by the respondent fraudulently.
Further investigation brought to light the frauds committed by the
respondent herein. Thereafter having come to know that the fraud has
been detected, the respondent herein deposited a total sum of
Rs.18,09,041/- (the amount of fraud Rs. 16,66,439/- + penal interest of
Rs.1,42,602/-).
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2.1 A departmental enquiry was initiated against the respondent vide
office memorandum dated 26.07.2010. Six charges were framed
against the respondent. The respondent admitted the fraud in his
defence representation. An Inquiry Officer was appointed. The Inquiry
Officer held all the charges proved against the respondent – delinquent,
as the delinquent officer himself admitted all the charges in the
preliminary sitting itself. The Inquiry Officer’s report was forwarded to
the charged official. The charged official submitted his representation on
the Inquiry Officer’s report. Thereafter the Disciplinary Authority imposed
the penalty of ‘removal’ from service vide memo dated 19.01.2011,
having found that the offence committed by the charged official –
respondent herein was grave in nature and retention of such person in
the department would further hamper the services rendered to the
public. The departmental appeal against the order of removal from
service came to be dismissed.
2.2 The respondent – charged official challenged the order of ‘removal’
before the Tribunal. Vide order dated 26.03.2012, the Tribunal partly
allowed the said original application and modified the order of
punishment from ‘removal’ from service to that of compulsory retirement
on sympathetic ground by observing that as such the delinquent officer
himself deposited the entire amount involved and therefore no loss has
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been caused to the department. The Tribunal also noted that the
delinquent officer had completed nearly 39 years of service and has not
suffered any other punishment other than the present one. By observing
so, the Tribunal interfered with the order of punishment imposed by the
Disciplinary Authority and modified the same to that of compulsory
retirement.
2.3 Feeling aggrieved and dissatisfied with the order passed by the
Tribunal modifying the order of punishment from removal to that of
compulsory retirement, the department preferred a writ petition before
the High Court. By the impugned judgment and order, the High Court
has dismissed the said writ petition. Hence, the department has
preferred the present appeal before this Court.
3. Shri Balbir Singh, learned Additional Solicitor General of India has
vehemently submitted that in the facts and circumstances of the case,
the Tribunal as well as the High Court have committed a grave error in
interfering with the order of punishment imposed by the Disciplinary
Authority.
3.1 It is contended by Shri Balbir Singh, learned ASG that both, the
Tribunal as well as the High Court have shown undue sympathy to the
delinquent officer who committed the fraud and defrauded the huge sum
of Rs.16,59,065/- belonging to the RD account holders.
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3.2 That the delinquent officer admitted the charges and the
misconduct and he deposited the entire amount along with penal interest
only after the detection of the fraud committed by him. It is submitted
that looking to the serious proved misconduct and when the respondent
was holding a public office of confidence in the Postal Department and
thereafter when a conscious decision was taken by the Disciplinary
Authority to remove him from service, the same ought not to have
interfered with by the Tribunal as well as the High Court. It is urged that
merely because the delinquent officer worked for 39 years and the
present one was the first misconduct and that the entire amount was
deposited (after the fraud was detected) cannot be grounds to interfere
with the conscious decision taken by the Disciplinary Authority to remove
the delinquent officer from service.
3.3 Making the above submissions and relying upon the decisions of
this Court in the cases of B.C. Chaturvedi v. Union of India, reported in
(1995) 6 SCC 749 (paragraph 19); Chairman & Managing Director,
V.S.P. & Others v. Goparaju Sri Prabhakara Hari Babu, reported in
(2008) 5 SCC 569, as well as the other decisions of this Court in the
cases of Maruti Udyog Ltd. v. Ram Lal, reported in (2005) 2 SCC 638;
State of Bihar v. Amrendra Kumar Mishra, reported in (2006) 12 SCC
561; Regional Manager, SBI v. Mahatma Mishra, reported in (2006) 13
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SCC 727; State of Karnataka v. Ameerbi, reported in (2007) 11 SCC
681; State of M.P. v. Sanjay Kumar Pathak, reported in (2008) 1 SCC
456; and Uttar Haryana Bijli Vitran Nigam Ltd. v. Surji Devi, reported in
(2008) 2 SCC 310, it is vehemently submitted that as held by this Court
in the aforesaid decisions, the High Court cannot set aside a wellreasoned order passed by the Disciplinary Authority only on sympathy or
sentiments. It is submitted that in the aforesaid decisions, it is observed
and held that once it is found that all the procedural requirements had
been complied with, the Courts would not ordinarily interfere with the
quantum of punishment imposed upon a delinquent employee.
4. The present appeal is vehemently opposed by the learned counsel
appearing on behalf of the respondent – delinquent officer.
4.1 It is strenuously contended by the learned counsel appearing on
behalf of the respondent that when the Tribunal, considering the facts
and circumstances of the case, interfered with the order of punishment
imposed by the Disciplinary Authority, the High Court was absolutely
justified in not interfering with the same. It is submitted that, as such, the
Tribunal assigned cogent reasons while modifying the punishment from
removal to that of compulsory retirement. The same is rightly not
interfered with by the High Court. It is urged that the same may not be
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interfered with by this Court, in exercise of powers under Article 136 of
the Constitution of India.
4.2 It is also submitted that even otherwise on merits also, once the
delinquent officer voluntarily deposited the entire amount along with
interest even before the departmental enquiry was initiated and thereby
no loss has been caused to the department and considering the fact that
the delinquent officer had a long service career of 39 years and during
the entire career, there was no punishment imposed and now by the
order of compulsory retirement, he will get the retiral/pensionary
benefits, which otherwise he would not be able to get in view of the order
of removal from service, it is prayed not to interfere with the impugned
judgment and order passed by the High Court as well as of the Tribunal.
5. We have heard the learned counsel for the respective parties at
length.
The respondent herein, who at the relevant time was serving as
Postal Assistant was subjected to a departmental enquiry for defrauding
a sum of Rs.16,59,065/-. That during the period from 2004 to 2007, he
committed fraud by way of fraudulent withdrawal in 85 RD accounts and
by way of non-credit of deposits in 71 RD accounts and thus defrauded
a sum of Rs. 16,59,065/-. Only after the fraud came to light, the
respondent – delinquent officer deposited the entire defrauded amount
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with interest. However, as the misconduct was very serious, the
department initiated departmental enquiry for having failed to maintain
absolute integrity and devotion to duty as required of him by Rule 3(1)(i)
and 3(1)(ii) of CCS (Conduct) Rules, 1964. The respondent – delinquent
officer admitted the charge. The Inquiry Officer submitted the report and
held all the charges proved. That thereafter, the Disciplinary Authority
concurred with the findings recorded by the Inquiry Officer and
considering the seriousness of the misconduct committed, passed an
order of removal. The Tribunal interfered with the quantum of
punishment of removal imposed by the Disciplinary Authority and
substituted the same to that of compulsory retirement, mainly on the
ground and reasoning that the delinquent officer had completed 39 years
of unblemished service and the entire amount of fraud with interest has
been paid and recovered from him and thus there is no financial loss
caused to the department. The order passed by the Tribunal has been
confirmed by the High Court, by the impugned judgment and order.
6. Therefore, the short question which is posed for the consideration
of this Court is, whether, in the facts and circumstances of the case, the
Tribunal and the High Court were justified in interfering with the
punishment imposed by the Disciplinary Authority and
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modifying/substituting the same from removal to that of compulsory
retirement.
7. While answering the aforesaid question/issue, the decision of this
Court in the case of Goparaju Sri Prabhakara Hari Babu (supra), on the
judicial review and the limited jurisdiction of the High Court on the
proportionality of the order of departmental authority is required to be
referred to.
In the said decision, after referring to a catena of judgments of this
Court, it is observed and held by this Court that the jurisdiction of the
High Court on the proportionality of the order of departmental authority is
limited. It is observed that it cannot set aside a well-reasoned order only
on grounds of sympathy and sentiments. It is further observed and held
that once it is found that all the procedural requirements had been
complied with, courts would not ordinarily interfere with the quantum of
punishment imposed upon a delinquent employee. It is further observed
that the superior courts, only in some cases may invoke the doctrine of
proportionality, however if the decision of an employer is found to be
within the legal parameters, the doctrine would ordinarily not be invoked
when the misconduct stands proved.
7.1 In the case of B.C. Chaturvedi (supra), the High Court interfered
with the order of punishment imposed by the Disciplinary Authority and
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substituted the punishment of dismissal from service to one of
compulsory retirement on the reasoning that the employee had put in 30
years of service and that he had a brilliant academic record and that he
had earned promotion after the disciplinary proceedings were initiated.
Setting aside the judgment and order passed by the High Court, this
Court observed that the reasoning is wholly unsupportable. Such
reasons are not relevant or germane to modify the punishment. What is
required to be considered is the gravity of the misconduct. In the said
case, the employee was found to be in possession of assets
disproportionate to the known sources of his income. Therefore, this
Court observed and held that the interference with the imposition of
punishment was wholly unwarranted.
8. Applying the law laid down by this Court in the aforesaid decisions
to the facts of the case on hand, the order passed by the Tribunal,
confirmed by the Division Bench of the High Court, substituting the
punishment of removal to that of compulsory retirement is unsustainable.
Neither the Tribunal nor the High Court have found any irregularity in
conducting the departmental enquiry. No procedural lapses have been
found. In fact, the respondent employee admitted the charge of having
defrauded Rs.16,59,065/- and on detecting the fraud, he deposited the
defrauded amount of Rs.16,59,065/- along with penal interest. But for
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the detection of the fraud, probably, the respondent employee would not
have deposited the defrauded amount. Once, a conscious decision was
taken by the Disciplinary Authority to remove an employee on the proved
misconduct of a very serious nature of defrauding public money, neither
the Tribunal nor the High Court should have interfered with the order of
punishment imposed by the Disciplinary Authority, which was after
considering the gravity and seriousness of the misconduct.
9. Merely because the respondent-employee had worked for 39
years and in those years, there was no punishment imposed and/or that
he voluntarily deposited the defrauded amount along with penal interest
and therefore there was no loss to the Government/Department cannot
be a ground to interfere with the order of punishment imposed by the
Disciplinary Authority and substitute the same from removal to that of
compulsory retirement. Neither the Tribunal nor the High Court have, in
fact, considered the nature and gravity of the misconduct committed by
the delinquent officer. Therefore, both, the Tribunal as well as the High
Court had exceeded in their jurisdiction in interfering with the quantum of
punishment imposed by the Disciplinary Authority.
10. None of the grounds/reasoning on which the order of punishment
of removal has been interfered with by the Tribunal and affirmed by the
High Court are germane and can be sustained. Once it was found that
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the delinquent officer who was serving in the post office had defrauded
to the extent of Rs.16,59,065/- and that too, by way of fraudulent
withdrawal in as many as 85 RD accounts and by way of non-credit of
deposits in 71 RD accounts, no sympathy on such an employee was
warranted. Being a public servant in the post office, the delinquent
officer was holding the post of trust. Merely because subsequently the
employee had deposited the defrauded amount and therefore there was
no loss caused to the department cannot be a ground to take a lenient
view and/or to show undue sympathy in favour of such an employee.
What about the loss caused to the department by way of goodwill, name
and fame of the department and its reliability amongst the public? By
such a misconduct/act on the part of the delinquent officer, the reputation
of the department had been tarnished. Therefore, in the facts and
circumstances of the case, both, the Tribunal as well as the High Court
have exceeded in their jurisdiction in interfering with the quantum of
punishment imposed by the Disciplinary Authority and to substitute the
same to that of compulsory retirement.
11. In view of the above and for the reasons stated above, the
impugned judgment and order passed by the High Court as well as the
order passed by the Tribunal substituting the order of punishment from
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removal to that of compulsory retirement cannot be sustained and the
same deserve to be quashed and set aside.
12. Accordingly, the present appeal is allowed. The impugned
judgment and order passed by the High Court dated 30.08.2016 passed
in Writ Petition No. 33303 of 2013 dismissing the same and confirming
the judgment and order passed by the Tribunal dated 26.03.2013 in O.A.
No. 357 of 2012 is hereby quashed and set aside. Consequently, order
dated 26.03.2013 passed by the Central Administrative Tribunal, Madras
Bench in O.A. No. 357/2012, by which the Tribunal substituted the
punishment of removal to that of compulsory retirement is hereby
quashed and set aside. Consequently, O.A. No. 357/2012, preferred by
the delinquent officer, stands dismissed and the order passed by the
Disciplinary Authority imposing the punishment of removing the
delinquent employee from service is hereby restored. However, in the
facts and circumstances of the case, there shall be no order as to costs.
………………………………….J.
[M.R. SHAH]
NEW DELHI; ………………………………….J.
APRIL 19, 2022. [B.V. NAGARATHNA]
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