IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 13.06.2011 CORAM: THE HONBLE MR. JUSTICE K.CHANDRU W.P.Nos.19650 and 26869 of 2010 and M.P.No.2 of 2010 Kannamani ... Petitioner in both WPs Vs. 1.The Secretary to Government, Health and Family Welfare Department, Fort St.George, Chennai 600 009. 2.The Director of Medical Education, Kilpauk, Chennai 600 010. 3.The Dean, Government General Hospital, Chennai 600 003. ... Respondents 1 to 3 in both Wps
4.Accountant General (A&E)
Teynampet, Chennai 600 006. …4th respondent
in W.P.No.26869/2010
W.P.No.19650 of 2010 is filed under Article 226 of the Constitution of India praying for a Writ of certiorarified mandamus, calling for the records pertaining to the impugned order of the first respondent passed in G.O.(D) No.1253 Health and Family Welfare (I-1) Department 27.11.2009 and the proceedings of the second respondent passed in Ref.2257/SCII/2/99 dated 29.01.1999 and to quash the same and consequently direct the respondents to repay the amount to the petitioner which has been already recovered from his monthly pension from December 2009 onwards by way of implementing the order of the first respondent passed in G.O.(D) No.1253 Health and Family Welfare (I-1) Department 27.11.2009.
W.P.No.26869 of 2010 is filed under Article 226 of the Constitution of India praying for a Writ of mandamus, directing the respondents to pay interest to the petitioner’s delayed payment of pension and pensionary benefits.
For Petitioner : Ms.S.T.P.Kuilmozhi
For Respondents : Mr.R.Ravichandran,AGP
for R1 to R3
Mr.Vijayshankar for R4
C O M M O N O R D E R
The petitioner is one and the same in the both the writ petitions. In the first writ petition, the petitioner challenges an order of punishment given to him vide G.O.(D)No.1253, Health and Family Welfare Department, dated 27.11.2009 and the proceedings of the second respondent dated 29.01.1999 and after setting aside the same seeks for a direction to the respondents to repay the amount to the petitioner which was recovered from his monthly pension from December, 2009. By the impugned order, the petitioner was imposed with the penalty of recovery from pension at the rate of Rs.1000/- per month for a period of two years.
2. The writ petition was admitted on 27.08.2010. Pending the writ petition, on finding that there being no prima facie case in favour of the petitioner, this Court declined to grant any interim order.
3. Even while the first writ petition was pending, the petitioner filed the second writ petition being W.P.No.26869 of 2010, seeking for a direction to the respondents to grant interest on the alleged delay in payment of pension. When that writ petition came up on 29.11.2010, this Court directed the petitioner to give notice to the respondents. Subsequently, both the writ petitions were directed to be posted together.
4. In the second writ petition, the third respondent has filed a counter affidavit dated 15.04.2011.
5. In the first writ petition, the facts of the case are as follows:-
The petitioner was employed as an Office Superintendent of the Diet Section of the Government General Hospital. He was issued with a charge memo initially under Rule 17(a) of the Tamil Nadu Civil Services (D & A) Rules along with one S.Jeyavelu, who was an Assistant and at the relevant time, he was a Provision Store Keeper. Subsequently, the charges were converted and charge memo was issued under rule 17(b) of TNCS (D &A) Rules.
6. The charges levelled against the petitioner were:
i) He had failed to obtain prior sanction from the Dean for the purchase of Diet and non-diet articles in the Dean’s sanction Register during the period 05.02.1998 to 15.06.1998.
ii) He had failed to exercise proper supervision over the duties of Provision Store Keeper which resulted in the fraudulent purchase of certain Diet and non-diet articles, straight away from the unapproved agencies, which had resulted in extra expenditure to the Government to the tune of Rs.1,03,099/-.
iii)He had also derelicted in his duties by not arranging the settlement of bills of Aavin, Khadi Kraft, Modern Foods and others bills relating to supplies made during the year 1995-96, 1996-97, 1997-98, thus resulting in financial constraint to the institution to the tune of more than Rs.14 lakhs.
iv) He had failed to maintain absolute integrity and devotion to duty as a government servant.
7. The petitioner gave his explanation dated 29.03.1999. Thereafter, an Enquiry officer was appointed. The Enquiry Officer found that the petitioner was guilty of the first charge partially. In respect of charges 2 to 4, the charges were found completely proved. The petitioner gave a further explanation on 10.06.2002 on the final report.
8. The State Government on the basis of the report and connected materials consulted the TNPSC, which also gave its opinion on 16.07.2009 and thereafter, the impugned order viz., G.O.(D)No.1253, Health and Family Welfare Department, dated 27.11.2009 came to be passed. The State Government considered the explanation offered by the petitioner as well as the findings of the Enquiry Officer and found that the charges as held to be proved by the Eqnuiry Officer do not warrant any reconsideration. The petitioner was also asked on the penalty to be proposed as required under Rule 9 of the Pension Rules. The petitioner did not accept the imposition of the penalty. The contention of the petitioner was that one Sivanandi, who was an Office Superintendent was allowed to retire peacefully without any punishment and therefore, he also should be let off. But in present case, it was found that the said Sivanandi was allowed to retire because the proceedings initiated were not completed and due to technical defect, he was allowed to retire. The other delinquents were also punished. In the case of the petitioner, at the time of initial explanation, he had accepted the lapse committed by him. Therefore, the penalty was imposed on the petitioner but at the same time, accepting the recommendation of the TNPSC, he was let off with the minor penalty viz., cut in the pension for two years at the rate of Rs.1000/- per month.
9. The learned counsel for the petitioner contended that there was delay in conducting the enquiry. The incident had happened during the year 1997-98 but to complete the proceedings, they had taken more than 10 years and therefore, the Court should interfere in favour of the petitioner.
10. In the present case, it is not as if the petitioner did not have any opportunity of defending himself. On the other hand, in a properly held enquiry, the charges levelled against the petitioner were found to be proved and only in respect of the first charge, the Enquriy Officer found that it was partially proved. It is not as if the petitioner had the total defence of denial, whereas the petitioner himself had accepted his lapse in his lack of supervision in monitoring the purchase. Hence, the respondents are right in imposing the penalty on the petitioner. Only because the petitioner had reached the age of superannuation, the respondents were constrained to punish him in terms of Rule 9 of the Tamil Nadu Pension Rules and that too, a maximum penalty of Rs.24,000/- as monetary loss.
11. This Court do not think that any case is made out to interfere with the penalty imposed on the petitioner. Considering the fact that the penalty is minor, the Court is not called upon to go to into the question of proportionality. Once it is held that if there is a proper enquiry in which legal evidence is let in, the scope for judicial review over the penalty imposed is very limited. This ratio has been laid down by the Supreme Court in a recent decision in V.S.P. v. Goparaju Sri Prabhakara Hari Babu reported in (2008) 5 SCC 569. It is necessary to refer the following passages found in paras 20 and 21, which are as follows:
“20. The jurisdiction of the High Court in this regard is rather limited. Its power to interfere with disciplinary matters is circumscribed by well-known factors. It cannot set aside a well-reasoned order only on sympathy or sentiments. (See Maruti Udyog Ltd. v. Ram Lal; State of Bihar v. Amrendra Kumar Mishra; SBI v. Mahatma Mishra; State of Karnataka v. Ameerbi; State of M.P. v. Sanjay Kumar Pathak and Uttar Haryana Bijli Vitran Nigam Ltd. v. Surji Dev7.)
21. Once it is found that all the procedural requirements have been complied with, the courts would not ordinarily interfere with the quantum of punishment imposed upon a delinquent employee. The superior courts only in some cases may invoke the doctrine of proportionality. If the decision of an employer is found to be within the legal parameters, the jurisdiction would ordinarily not be invoked when the misconduct stands proved. (See Sangfroid Remedies Ltd. v. Union of India.)
12. In the light of the above, there is no case made out for interfering with the penalty imposed on the petitioner. Hence, W.P.No.19650 of 2010 stands dismissed. No costs. Consequently, connected miscellaneous petition is closed.
13. In the second writ petition W.P.No.26869 of 2010, the petitioner has sought for interest on the delayed payment of pension. This was on the ground that the charge memo was issued in the year 1999 but the penalty was imposed only in the year 2009. Even after the imposition of penalty, the order of pension was granted only in April 2010. Therefore, it was contended that interest must be paid on the delayed payment.
14. In the counter affidavit, it was stated that the petitioner’s case has been dealt with departmentally and finally, he was imposed with the penalty of cut in the pension. In the absence of any rules, the question of payment of interest will not arise. No doubt it is true that in respect of delayed payment of DCRG, the Rules themselves provide for interest if the delay is not directly attributable to the Government servant, but with reference to pension, there is no provision for grant of any interest assuming that there was a delay.
15. But however, the Supreme Court in S.K. Dua v. State of Haryana reported in (2008) 3 SCC 44 has held that even if rules are silent, the right to get interest on delayed pension can be derived from Articles 14, 19 and 21 of the Constitution of India. In that case, in paragraph 14, the Supreme Court had observed as follows:
“14.In the circumstances, prima facie, we are of the view that the grievance voiced by the appellant appears to be well founded that he would be entitled to interest on such benefits. If there are statutory rules occupying the field, the appellant could claim payment of interest relying on such rules. If there are administrative instructions, guidelines or norms prescribed for the purpose, the appellant may claim benefit of interest on that basis. But even in absence of statutory rules, administrative instructions or guidelines, an employee can claim interest under Part III of the Constitution relying on Articles 14, 19 and 21 of the Constitution. The submission of the learned counsel for the appellant, that retiral benefits are not in the nature of bounty is, in our opinion, well founded and needs no authority in support thereof. In that view of the matter, in our considered opinion, the High Court was not right in dismissing the petition in limine even without issuing notice to the respondents.”
16. The question of payment of interest, by exercising the extraordinary power of this court will arise when there is unreasonable delay in granting pension and not in a case where a person is faced with departmental action which also culminated in penalty. In the present case, the respondents have explained the pendency of the disciplinary action and the time taken for completing the enquiry, which also resulted in a penalty against the petitioner. Therefore, exercising extraordinary power for granting direction to pay interest will not arise. This Court in W.P.No.19650 of 2100 had also upheld the penalty.
17. In the light of the same, there is no case made out for grant of interest. Accordingly, W.P.No.26869 of 2010 stands dismissed. No costs.
svki
To
1.The Secretary to Government,
Health and Family Welfare Department,
Fort St.George, Chennai 600 009.
2.The Director of Medical Education,
Kilpauk, Chennai 600 010.
3.The Dean,
Government General Hospital,
Chennai 600 003.
4.Accountant General (A&E)
Teynampet,
Chennai 600 006