IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 19-04-2010 CORAM : THE HONOURABLE MR. JUSTICE B. RAJENDRAN W.P. No. 35222 of 2006 1. Dr. U. Mohammed (deceased) 2. Mumtaj Mohammed 3. Hyrunnisa Afzal 4. Fathima Beevi 5. Sulthaniya 5. Nazeema Amanullah 6. Jannath Saijath 7. Rahmath Javvad 8. Abdul Azeez 9. Bargath Abdul Rahman 10. Abdul Nazeer (petitoners 2 to 10 are the legal heirs of the deceased first petitioner and they were ordered to be impleaded as per the order dated 13.04.2010 made in MP No. 1 of 2010 in WPNo. 35222 of 2006) .. Petitioner Versus State rep. by its Secretary to Government Health and Family Welfare Department Fort St. George Chennai 600 009 .. Respondent O.A. No. 7669 of 1998 filed before the Tamil Nadu Administrative Tribunal stood transferred to this Court, which was filed praying to call for the records connected with G.O. (D).No. 952, Health & Family Welfare Department dated 29.07.1998 and to set aside the same; as a consequence, direct the respondent to deem the applicant tohave retired on superannuation on the after noon of 31.07.1996 and to grant him all the retirement benefits such as pension, D.C.R.G., commutation of pension, encashment of leave at credit etc., For Petitioners : Mr. S. Ilamvaludhi For Respondent : Mr. P. Gurunathan Government Advocate ORDER
While the first petitioner was serving as Deputy Director of Health Services, Krishnagiri, he was placed under suspension by an order dated 28.09.1994 on the ground that enquiry into a grave allegation of demanding and accepting illegal gratification was contemplated against him. Subsequently, challenging the order of suspension, the petitioner has filed O.A. No. 5805 of 1994 before the Tribunal. The Tribunal, by an order dated 15.12.1995 set aside the order of suspension and directed the respondent to reinstate the petitioner in service. Accordingly, the petitioner was reinstated in service on 28.06.1996 and he was given posting order on 11.07.1996 as Deputy Director of Health Services, Devakottai. Subsequently, a charge memo dated 05.01.1996 was issued to the petitioner under Rule 17 (b) of the Tamil Nadu Civil Services (Discipoine and Appeal) Rules wherein two charges were levelled against him and they are as follows:-
“1. That he in connection with the marriage of his daughter celebrated on 05.06.1994 at Krishnagiri, while extending invitation to his subordinates, stipulated that each Village Health Nurse should contribute Rs.500/- and each Pharmacist should contribute Rs.1,000/- by way of marriage gift, threatening to transfer them to far off places and thus the Village Health Nurses were coerced to contribute between Rs.100/- and Rs.500/-.
2. That during May and June 1994, he had demanded and acepted illegal gratification from the Village Health Nurse under his jurisdiction, that is, from Selvi. Manimegalai (Rs.1,500/-); Selvi. Bakyam (Rs.1,000/-) and demanded Rs.2,000/- from Selvi. Nazima Banu for retaining them in their places of preference.”
2. The first petitioner submitted his reply on 02.02.1996 denying the charges. Not satisfied with the explanation offered by the first petitioner, an enquiry officer was appointed and enquiry was conducted on 25.06.1996. The enquiry officer submitted his report holding that both the charges are proved. The report of the enquiry officer was communicated to the first petitioner on 23.07.1996 for which the first petitioner has submitted his reply on 12.08.1996. Thereafter, the matter was referred to Tamil Nadu Public Service Commission for its opinion and the Commission advised the respondent that a pension cut of Rs.200/- per month for a period of three years may be imposed on the first petitioner. But the respondent, notwithstanding the advise given by the Commission, has passed the impugned order dated 29.07.1998 dismissing the first petitioner from service. Challenging the same, the first petitioner herein has filed the Original Application. On abolition of the Tribunal, the matter stood transferred to this Court and re-numbered as WP No. 35222 of 2006. During the pendency of the writ petition, the first petitioner died and therefore, his legal heirs were brought on record.
3. The learned counsel for the petitioners contend that even the Departmental Vigilance Commission, by letter dated 22.05.1995, has only recommended for a departmental action against the first petitioner as it was not worth referring to a criminal court. Furthermore, the fact that the first petitioner has given marriage invitation to his subordinates inviting them for his daughter’s marriage by itself would not amount to seeking illegal gratification in the form of presentation to be given. In any event, the punishment imposed on the first petitioner is shockingly disproportionate to the charges and therefore, the entire proceedings are vitiated. The learned counsel for the petitioners further stated that during the pendency of this writ petition, the first petitioner/government servant died and his legal heirs have been impleaded. Therefore, if the punishment is reduced or modified, atleast the legal heirs will get some benefits for the long number of 27 years of service rendered by the first petitioner.
4. The learned Government Advocate, relying upon the reply affidavit of the respondent, has stated that the first petitioner was given sufficient opportunities in the departmental enquiry conducted against him. The fact that the first petitioner has given invitation for his daughter’s marriage to his subordinate only with a view to get presentations from all his subordinates is a very serious offence. The first petitioner, knowing fully well the Government Regulations in this regard, ought not to have given the marriage invitation to his subordinates. Therefore, the respondent, taking into consideration the nature of charge against the first petitioner has rightly imposed the punishment of dismissal from service and it is befitting to the nature of charges levelled against him. Even though the respondent has intended to initiate criminal proceedings against the first petitioner, it was not contemplated as the respondent has only recommended for conducting a departmental enquiry against the first petitioner and accordingly, the departmental enquiry was conducted which resulted in passing of the impugned order.
5. Heard both sides. The short point for consideration in this writ petition is whether the punishment imposed on the first petitioner is disproportionate to the charges and if so, it requires to be modified.
6. The charge in this case is the first petitioner, while he was working as Deputy Director of Health Services, has given invitation to commemorate the marriage of his daughter to all the subordinates, which according to the respondent, was given with a direction to give necessary presentation, as directed by him. A departmental enquiry was conducted in which the first petitioner participated. The enquiry officer submitted his report holding that both the charges are proved against the first petitioner. After receipt of the enquiry officer’s report, the respondent sought for opinion of the Tamil Nadu Public Service Commission. The Commission, after taking into consideration the nature of charge and the availability of evidence opined that after retirement of the first petitioner, pension cut of Rs.200/- per month for a period of three years may be imposed on him, but the respondent, while disagreeing with the advise given by the Commission, has chosen to pass the impugned order dismissing the first petitioner from service, without even giving any notice to the first petitioner so as to enable him to submit his explanation with regard to the disagreement. The respondent, on his own volition discarded the recommendations given by the Tamil Nadu Public Service Commission. The respondent, not only discarded the suggestion given by the Commission, but enhanced the punishment and dismissed the first petitioner from service.
7. In this background, it will be useful to refer to the decision of the Honourable Supreme Court reported in (Union of India v. K.G. Soni) (2006) 6 SCC 794 wherein it was held in Para Nos. 14 and 15 as follows:-
14. The common thread running through in all these decisions is that the court should not interfere with the administrators decision unless it was illogical or suffers from procedural impropriety or was shocking to the conscience of the court, in the sense that it was in defiance of logic or moral standards. In view of what has been stated in Wednesbury case the court would not go into the correctness of the choice made by the administrator open to him and the court should not substitute its decision to that of the administrator. The scope of judicial review is limited to the deficiency in the decision-making process and not the decision.
15. To put it differently, unless the punishment imposed by the disciplinary authority or the Appellate Authority shocks the conscience of the court/tribunal, there is no scope for interference. Further, to shorten litigations it may, in exceptional and rare cases, impose appropriate punishment by recording cogent reasons in support thereof. In the normal course if the punishment imposed is shockingly disproportionate, it would be appropriate to direct the disciplinary authority or the Appellate Authority to reconsider the penalty imposed.
8. In the above decision, it was categorically held by the Honourable Supreme Court that unless the punishment imposed is shocking to the conscience of the Courts, the Courts should not interfere with the punishment imposed by the administrators. In this case, the charge against the first petitioner was he had extended invitation to his subordinates for the marriage celebration of his daughter thereby he demanded illegal gratification from his subordinates. Even though this charge is proved against the first petitioner, the punishment of dismissal from service is definitely shocking the conscience of this Court and it is unwarranted. The first petitioner could have been imposed with some punishment, but the punishment of dismissal from service for a charge of this nature is absolutely disproportionate to the charges.
9. The first petitioner had put in 27 years of service in the department. Now, the first petitioner died and his legal heirs are on record as petitioners 2 to 10. By virtue of the impugned order of dismissal, the first petitioner could not receive any service benefits during his life time. As pointed out above, the punishment imposed on the petitioner is definitely disproportionate to the charges and it is warranted. Under those circumstances, I am inclined to modify the punishment of dismissal from service imposed on the first petitioner into one of compulsory retirement, so as to enable the legal heirs of the deceased first petitioner to get the retirement benefits. Accordingly, the impugned order is set aside and the punishment imposed on the first petitioner is modified into one of compulsory retirement.
10. With the above modification in the punishment, the writ petition is ordered. No costs.
rsh
To
State rep. by its Secretary to Government
Health and Family Welfare Department
Fort St. George
Chennai 600 009