IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 17/11/2005
C O R A M
THE HON'BLE Mr.JUSTICE P.SATHASIVAM
AND
THE HON'BLE Mr.JUSTICE S.K.KRISHNAN
Writ Petition No.19934 of 2002
a n d
W.P.M.P.No.27519 of 2002
a n d
W.V.M.P.No.498 of 2003
1. State of Tamil Nadu
rep. by the Secretary to Government
Home Department
Fort St. George
Chennai 9.
2. The Inspector General of Prisons
Chennai 8.
3. The Deputy Inspector General
of Prisons
Chennai 8.
4. The Superintendent
Central Prison
Cuddalore. ... Petitioners
-Vs-
1. T. Muniraj Naidu
2. The Registrar
Tamil Nadu Administrative Tribunal
Chennai 600 104. ... Respondents.
Petition filed under Article 226 of the Constitution of India,
praying for issuance of a writ of certiorari, as stated therein.
!For petitioners ... Mr.D.Krishna Kumar
Spl. Government Pleader
^For respondents ... Mr.R.Gandhi, Sr. Counsel
for Mr.M.Kamalanathan
for R.1.
:O R D E R
S.K.KRISHNAN,J.
The writ petition is filed by the petitioner seeking to issue
a writ of certiorari to call for the records of the Tamil Nadu Administrative
Tribunal, the second respondent herein, pertaining to the orders made in
O.A.No.4861 of 1996 dated 21/8/2001 and to quash the same.
2. In the affidavit filed in support of the writ petition,
the petitioners had stated that the orders of the Tamil Nadu Administrative
Tribunal dated 21/8/2001 in O.A.No.4861/1999, wherein the Tamil Nadu
Administrative Tribunal had set aside the punishment of “Removal from service”
imposed on the first respondent, with directions to reinstate him in service
with all service and monetary benefits.
3. The case of the petitioners is that the first respondent
was working as Warder Grade-II in Prison Department attached to Sub-jail,
Tindivanam from 1/9/1977. While he was serving as Warder Grade-II at
Sub-jail, Tindivanam, he was entrusted to attend duty on 31/10/1984 , between
10.00 p.m. and 12.00 mid night. On 31/10/1984 around 11.0 0 p.m., when the
Sub-jail Superintendent inspected the jail, he did not find the first
respondent at the place where he was assigned to attend the duty. However, he
found the first respondent sleeping in front of the steps of the Court hall
under the influence of some giddiness, thereby he was issued a charge memo on
28/11/1984 by the Superintendent, Sub-jail, Tindivanam.
4. The gist of the charges is as follows:-
“You are working in Sub-jail, Tindivanam and serving in the
Prison Department for the past seven years. You are duty bound to observe the
rules and regulations. On 31/10/1984 night at 10 – 12 p.m., you were allotted
treasury para duty. During your duty time you have placed the musket in the
Superintendent’s table and sleeping in the doorsteps of the Court after
drinking. During night rounds by the Subjail Superintendent, you have been
found in the doorstep’s of Court and even after sprinkling water in your face
you are unable to stand due to intoxication. Thus during para duty time you
have slept outside the Prison and the musket belonging to Govt. with pouch
was placed in the Superintendent’s table without any responsibility and thus
failed in his duties and therefore, this charge.”
5. After the conclusion of the enquiry, the enquiry
authorities found him guilty of the charges proved and on the basis of the
said finding, disciplinary authorities finally passed an order terminating the
first respondent from the service on 21/3/1991 and the same was confirmed by
the Government Order in G.O.Ms.No.116 (Home) dated 27/3/1992 . As against the
said dismissal order passed by the authorities, the first respondent preferred
O.A.No.4861 of 1996 before the Tamil Nadu Administrative Tribunal and the
Tribunal, after considering the relevant materials and also considering the
relevant connected documents related to the findings, allowed the said
petition in favour of the first respondent. Aggrieved against the said order
passed by the Tamil Nadu Administrative Tribunal, the State of Tamil Nadu,
represented by the Secretary to the Government, Home Department, preferred
this writ petition under Article 226 of the Constitution of India with a
prayer to call for the records of the Tamil Nadu Administrative Tribunal, the
second respondent herein, pertaining to the orders made in O.A.No.4861 of 1996
dated 21/8/2001 and to quash the same.
6. It is an admitted fact that the first respondent was
facing disciplinary proceedings from 4/12/1984 till he was removed from
service on 27/3/1992. Thereafter, he approached the Tamil Nadu Administrative
Tribunal for necessary relief. It is relevant here to refer to the relief
granted by the Tamil Nadu Administrative Tribunal, which reads as follows:-
“Therefore, we are of the view that the applicant is entitled to
succeed. The application is allowed and entire disciplinary proceeding
including the final orders passed by the respondents 1 to 4 are set aside.
The applicant shall be reinstated in service with all service and monetary
benefits.”
7. For quashing the said order passed by the Tamil Nadu State
Administrative Tribunal, the learned counsel appearing for the petitioners
would emphasise on the following points.
The Tribunal, while considering the case of the first
respondent, miserably failed to note that the first respondent being a person
in an uniformed disciplinary force and also to take care of the prisoners
lodged, to watch them, to avoid, escape of the prisoners or any untoward
incident that may happen in prisons and they are expected to be vigil in a
night duty. Whereas, the first respondent who was away from the place where
he was expected to attend the duty in a particular place, slept during
particular hour in an abnormal circumstances, which is considered to be a
grave misconduct. Without considering this aspect and misconduct committed by
the first respondent being a person in an uniformed service, the Tribunal has
come to an erroneous conclusion and held that the harassment itself (facing
enquiry by the first respondent before the disciplinary authorities for a long
time) would be a sufficient punishment for the delinquency, is not at all a
reasonable one and the same is liable to be set aside.
8. Per contra, learned counsel appearing for the first
respondent, would vehemently contend that without any sufficient evidence and
materials available against him, the disciplinary authority passed the order
of removal from service. However, the Tribunal after analysing the entire
circumstances, arrived at a reasonable conclusion to set aside the said order.
Further, the learned counsel, would state that after analysing the harassment
meted out to the first respondent in the pretext of conducting the
disciplinary proceedings for a long time, which is considered as a harassment
to the first respondent and thereby concluded a correct decision, by setting
aside the order of dismissal by the authorities.
9. Further, while deciding the matter, the Tribunal was of
the view that the power of remittance has been abused by the authorities in an
arbitrary manner and hence, the learned counsel pointed out that no
interference is needed by this Court to quash the order passed by the Tamil
Nadu Administrative Tribunal.
10. In this regard, Mr.D.Krishna Kumar, learned Special
Government Pleader would contend that eventhough the Tribunal passed an order
to reinstate the first respondent in service, the first respondent is not at
all entitled to receive full backwages during the relevant period.
11. It is pointed out by learned counsel that when
considering the misconduct committed by the first respondent and the same was
duty proved before the authorities, the disciplinary authorities passed the
dismissal order is a reasonable one. In that circumstances, the punishment of
dismissal cannot be termed unduly harsh or disproportionate.
12. In support of his contention, the learned counsel
relied on the following decisions for consideration.
13. With regard to the first reason emphasised by the learned
counsel, the following decision is relied on.
In M.P.ELECTRICITY BOARD Vs. JAGDISH CHANDRA SHARMA (2005 (3)
SUPREME COURT CASES 401), relied on its decision in Mahindra and Mahindra
Ltd., Vs. N.B.NARAWADE (2005 (3) S.C.C. 134), wherein, the Supreme Court
held as follows:
“20. It is no doubt true that after introduction of Section
11 A in the Industrial Disputes Act, certain amount of discretion is vested
with the Labour Court/Industrial Tribunal in interfering with the quantum of
punishment awarded by the management where the workman concerned is found
guilty of misconduct. The said area of discretion has been very well defined
by the various judgments of this Court referred to hereinabove and it is
certainly not unlimited as has been observed by the Division Bench of the High
Court. The discretion which can be exercised under Section 11 A is available
only on the existence of certain factors like punishment being
disproportionate to the gravity of misconduct so as to disturb the conscience
of the Court, or the existence of any mitigating circumstances which require
the reduction of the sentence, or the past conduct of the workman which may
persuade the Labour Court to reduce the punishment.”
14. With regard to the second point, learned counsel relied
on INDIAN RAILWAY CONSTRUCTION CO. LTD Vs. AJAY KUMAR (2003 (4) SUPREME
COURT CASES – 579), the Supreme Court relied on a three-Judge decision of the
Supreme Court in the case of HINDUSTAN TIN WORKS (p) Ltd Vs. EMPLOYEES (1979
(2) S.C.C. 80), wherein, the Supreme Court held as follows:
“In the very nature of things there cannot be a straitjacket formula
for awarding relief of back wages. All relevant considerations will enter the
verdict. More or less, it would be a motion addressed to the discretion of
the Tribunal. Full back wages would be the normal rule and the party
objecting to it must establish the circumstances necessitating departure. At
that stage the Tribunal will exercise its discretion keeping in view all the
relevant circumstances. But the discretion must be exercised in a judicial
and judicious manner. The reason for exercising discretion must be cogent and
convincing and must appear on the face of the record. When it is said that
something is to be done according to the rules of reason and justice,
according to law and not humour. It is not to be arbitrary, vague and
fanciful
but legal and regular (see Susannah Sharp Vs. Wakefield, AC at p.179).
15. However with regard to the findings arrived by the
authorities, the learned counsel appearing for the first respondent would
submit that the discrepancies and inconsistencies found in the charge memo and
in the findings are visibly exposed and the same are affecting the root of the
charges. The inconsistencies found between the findings and the charge memo
have been clearly discussed by the Tribunal and accordingly, the Tribunal has
concluded that the awarding of punishment is something which is not found in
the charge memo has been ordered and it has influenced the mind of the
authority in awarding the extreme penalty of removal from service.
16. Further, the learned counsel would point out that the
abuse of procedure adopted by the authorities would very much affect the
mental condition of the first respondent and he had experienced such a kind of
mental agony continuously from the date of receiving the charge memo till he
got favourable orders from the Tribunal. It is pointed out by the counsel
that the agony meted out to the first respondent in the pretext of facing
enquiry before the authorities for the long time itself is a sufficient
punishment for the first respondent. Accordingly, the Tribunal has taken a
correct decision, ordering him to be reinstated in service. This point is
also appreciated by the Tribunal in paragraph 19 which is as follows:-
“We are of the view that the applicant has not been punished,
but harassed, and the harassment meted out to him will be sufficient for the
delinquency he has committed.”
17. With regard to the charge memo furnished against the
first respondent, it was stated that while the first respondent was on night
patrol between 10.00 p.m. to 12.00 p.m., on 31/10/1984, he was not present in
the place of duty, but slept somewhere else after drinking. The Sub-jail
Superintendent found the first respondent in an intoxicated condition and
accordingly, the above stated charge memo was furnished. It is a fact that
the first respondent was found sleeping outside the place of work under the
influence of drinking. The said allegation of consuming liquor by the first
respondent was not proved. However, all the departmental witnesses have
categorically stated that the first respondent at the relevant point of time
was away from the place where he was expected to attend the night para work.
Considering this aspect, the disciplinary authorities found him guilty of
misconduct. When comparing the punishment awarded by the authorities with
regard to the misconduct committed by the first respondent with that of the
mental agony which he had experienced from the beginning of the enquiry
proceedings till he got favourable orders from the Tribunal, the punishment
imposed against the first respondent is disproportionate. Accordingly, the
Tribunal while deciding the case, concluded that the punishment awarded by the
disciplinary authority against the first respondent is too excessive.
Accordingly, the punishment was set aside.
18. We are not in dispute about the decision arrived at by
the Tamil Nadu Administrative Tribunal with regard to the passing of setting
aside the order of dismissal. However, we are not in agreement with the
decision awarding monetary benefits to the first respondent in the event of
his reinstatement in service.
19. As per the legal principles observed in the decision
reported by the learned Special Government Pleader in INDIAN RAILWAY
CONSTRUCTION CO. LTD Vs. AJAY KUMAR (2003 (4) SUPREME COURT CASES – 579),
while affirming the decision taken by the Tribunal in respect of the
reinstatement of the first respondent, however when considering the misconduct
committed by the first respondent we differ from the findings of the Tribunal
in this aspect in allowing the first respondent to receive all the monetary
benefits in the event of his reinstatement into service.
20. In the light of the discussions referred to above while
considering the entire aspects, we modify the payment of back wages and
restrict it to 50%.
21. With the above modification, the above writ petition is
disposed of. No costs. Consequently, the connected W.P.M.P.No. 27519 of 2
002 and W.V.M.P.No.498 of 2003 are also dismissed.
mvs.
Index: Yes.
website: Yes.
To
1. The Registrar
Tamil Nadu Administrative Tribunal
Chennai 600 104.