Sivaramachandran M. Vs. Commissioner, Corporation of Coimbatore - Court Judgment

Excerpt:
- orderr. banumathi, j.1. petitioner seek writ of certiorarified mandamus to quash the order passed by the respondent removing the petitioner from service and to direct the respondent to reinstate the petitioner with all monetary and service benefits.2. brief facts which led to the filing are as follows:(i) petitioner joined the service of respondent/corporation as bill collector in march 1974. the petitioner was unauthorisedly absent from august 10, 2000. therefore, a memo dated august 25, 2000 was issued to him, seeking his explanation for the unauthorised absent for long time. even after the receipt of this memo, there was no response from the petitioner. after a lapse of more than ten months, by his representation dated june 29, 2001, he had requested for sanction of medical leave for the period between october 19, 2000 to july 10, 2001.(ii) a charge memo dated december 12, 2001 was issued to the petitioner under rule 8(2) of the coimbatore corporation service (discipline and appeal) rules, for the unauthorised absence from august 17, 2000, for more than eight months. petitioner has submitted his explanation dated january 21, 2002 admitting the fact that he had submitted medical certificate belatedly. not being satisfied with the explanation, enquiry officer was appointed. enquiry was held on may 21, 2002, in which the writ petitioner participated and accepted the charge stating that he had failed to submit the leave application within a reasonable time. but the petitioner has stated that because of his illness he could not attend duty nor he could inform the corporation. the enquiry officer submitted his report dated may 28, 2002, holding that both charges alleged against the petitioner were proved.(iii) report of the enquiry officer was communicated to the petitioner and the petitioner was directed to submit his further explanation. by letter dated june 24, 2002, petitioner submitted his representation to the report of the enquiry officer. upon consideration of charges and representation of petitioner, respondent has passed the impugned order dated august 30, 2002, removing the petitioner from service. against the order of removal petitioner filed statutory appeal before the appellate committee. the appellate committee also rejected the appeal. the writ petitioner has challenged the impugned order on the ground that penalty is excessive and that corporation commissioner and appellate committee had not applied their mind to the facts and explanation submitted by him.3. learned counsel for the petitioner, s. ravi, has submitted that when the punishment is excessive taking into consideration the gravity of the charge the high court can certainly interfere. it was further submitted that petitioner's absence was due to health reasons and both corporation commissioner and appellate committee have not applied their mind to the explanation of the petitioner and the punishment imposed upon the petitioner is disproportionate to the charges levied against the petitioner.4. learned counsel for the respondent, r. shivakumar has submitted that petitioner having absented for more than eight months the corporation was subjected to inconvenience in collecting the amount. the learned counsel further submitted that earlier in 1975, disciplinary proceedings was initiated against the petitioner that grave charges of misappropriation of tax amount and tampering of the official records major punishment was imposed upon the petitioner and therefore the punishment of removal from service cannot be said to be excessive.5. while working as bill collector in respondent/corporation the petitioner absented himself from august 17, 2000 to july 10, 2001. in his explanation to the charge memo petitioner has stated that because of his illness he could not attend to duty. as rightly submitted by the learned counsel for corporation nothing prevented the petitioner from informing the corporation about his illness and inability to report for duty. the reasons for petitioner's authorised absence was not satisfactorily explained. since the petitioner was then working as bill collector respondent/corporation must have been subjected to inconvenience in collecting the tax amount.6. point falling for consideration is whether the punishment of removal from service for absence of duty for 8 months is excessive and disproportionate.7. in service matters, the scope of judicial review is limited to the deficiency in decision making process and not the decision. unless the punishment imposed by the disciplinary authority or the appellate authority shocks the conscience of the court, there is no scope for interference. in b.c. chaturvedi v. union of india : (1996)illj1231sc , the supreme court, after considering the various issues and case laws and the scope of interference in the punishment imposed by the authorities, has held as follows at p. 1237 of llj:18. a review of the above legal position authority, and on appeal the appellate authority, being fact-finding authorities, have exclusive power to consider the evidence with a view to maintain discipline. they are invested with the discretion to impose appropriate punishment, keeping in view the magnitude or gravity of the misconduct. the high court/tribunal, while exercising the power of judicial review, cannot normally substitute its own conclusion on penalty and impose some other penalty. if the punishment imposed by the disciplinary authority or the appellate authority shocks the conscience of the high court/tribunal, it would appropriately mould the relief, either directing the disciplinary/appellate authority to reconsider the penalty imposed, or to shorten the litigation, it may itself, in exceptiunal and rare cases, impose appropriate punishment with cogent reasons in support thereof.8. the imposition of appropriate punishment is within the discretion of disciplinary authority. power under article 226 is one of the judicial review. it is not a appeal from a decision. if misconduct is established normally the court would not interfere with the quantum of punishment unless it shocks the conscience of the court.9. the scope of interference with quantum of punishment has been the subject matter of various decisions of the supreme court. referring to various decisions in union of india and ors. v. dwarka prasad tiwari (2007) 2 mlj 278 (sc), the supreme court has held as follows at p. 286 of mlj:15. the common thread running through in all these decisions is that the court should not interfere with the administrator's 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 the wednesbury's 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 decision making process and not the decision.16. to put 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 a 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.17. the above position was recently reiterated in union of india and anr. v. k.g. soni : (2006)iiillj802sc following domoh panna sagar rural regional bank and ors. v. munna lal jain : (2005)illj730sc .10. considering the above judicial precedents of the supreme court, it is clear that the high court or tribunal can interfere with the punishment imposed by the disciplinary authority or the appellate authority, where the quantum of punishment is disproportionate or excessive.11. in the case on hand the petitioner working as bill collector ought to have reported for duty if he was suffering from illness he ought to have informed the respondent/corporation. from the submissions of learned counsel for respondent/corporation it comes to be known that during 1975 disciplinary proceedings was initiated against petitioner for grave charges like misappropriation of tax amount and tampering of office records. for proved charges punishment of reversion to the lower post as provided under rule 3 of the coimbatore municipal corporation service (d&a;) rule 1986. the petitioner served respondent/corporation for 28 years and 5 months apart from the punishment imposed in 1975 there was no past record. having regard to nature of charges, and long service of the petitioner in my considered view the punishment of removal from service is disproportionate and excessive and the same is modified as 'compulsory retirement'. during the unauthorised absence of petitioner, corporation must have been subjected to inconvenience in collecting the tax amount. having regard to nature of job responsibilities of petitioner, it is ordered that 20% of pension shall be deducted from the pension amount payable to the petitioner for a period of one year.12. the punishment of removal from service is modified as compulsory retirement and this writ petition is partly allowed.20% of pension amount payable to the petitioner is ordered to be deducted for a period of one year commencing from the payment of pension in the first month.the respondent/corporation is directed to disburse all terminal benefits to the petitioner within a period of four weeks from the date of receipt of a copy of this order.the respondent/corporation is also directed to process the pension papers of the petitioner within a period of eight weeks from the date of receipt of a copy of this order.

Judgment:
ORDER

R. Banumathi, J.

1. Petitioner seek writ of certiorarified mandamus to quash the order passed by the respondent removing the petitioner from service and to direct the respondent to reinstate the petitioner with all monetary and service benefits.

2. Brief facts which led to the filing are as follows:

(i) Petitioner joined the service of respondent/Corporation as Bill Collector in March 1974. The petitioner was unauthorisedly absent from August 10, 2000. Therefore, a memo dated August 25, 2000 was issued to him, seeking his explanation for the unauthorised absent for long time. Even after the receipt of this memo, there was no response from the petitioner. After a lapse of more than ten months, by his representation dated June 29, 2001, he had requested for sanction of medical leave for the period between October 19, 2000 to July 10, 2001.

(ii) A charge memo dated December 12, 2001 was issued to the petitioner under Rule 8(2) of the Coimbatore Corporation Service (Discipline and Appeal) Rules, for the unauthorised absence from August 17, 2000, for more than eight months. Petitioner has submitted his explanation dated January 21, 2002 admitting the fact that he had submitted medical certificate belatedly. Not being satisfied with the explanation, enquiry officer was appointed. Enquiry was held on May 21, 2002, in which the writ petitioner participated and accepted the charge stating that he had failed to submit the leave application within a reasonable time. But the petitioner has stated that because of his illness he could not attend duty nor he could inform the Corporation. The enquiry officer submitted his report dated May 28, 2002, holding that both charges alleged against the petitioner were proved.

(iii) Report of the enquiry officer was communicated to the petitioner and the petitioner was directed to submit his further explanation. By letter dated June 24, 2002, petitioner submitted his representation to the report of the enquiry officer. Upon consideration of charges and representation of petitioner, respondent has passed the impugned order dated August 30, 2002, removing the petitioner from service. Against the order of removal petitioner filed statutory appeal before the Appellate Committee. The Appellate Committee also rejected the appeal. The writ petitioner has challenged the impugned order on the ground that penalty is excessive and that Corporation Commissioner and Appellate Committee had not applied their mind to the facts and explanation submitted by him.

3. Learned Counsel for the petitioner, S. Ravi, has submitted that when the punishment is excessive taking into consideration the gravity of the charge the High Court can certainly interfere. It was further submitted that petitioner's absence was due to health reasons and both Corporation Commissioner and Appellate Committee have not applied their mind to the explanation of the petitioner and the punishment imposed upon the petitioner is disproportionate to the charges levied against the petitioner.

4. Learned Counsel for the respondent, R. Shivakumar has submitted that petitioner having absented for more than eight months the Corporation was subjected to inconvenience in collecting the amount. The learned Counsel further submitted that earlier in 1975, Disciplinary proceedings was initiated against the petitioner that grave charges of misappropriation of Tax amount and tampering of the official records major punishment was imposed upon the petitioner and therefore the punishment of removal from service cannot be said to be excessive.

5. While working as Bill Collector in respondent/Corporation the petitioner absented himself from August 17, 2000 to July 10, 2001. In his explanation to the charge memo petitioner has stated that because of his illness he could not attend to duty. As rightly submitted by the learned Counsel for Corporation nothing prevented the petitioner from informing the Corporation about his illness and inability to report for duty. The reasons for petitioner's authorised absence was not satisfactorily explained. Since the petitioner was then working as Bill Collector respondent/Corporation must have been subjected to inconvenience in collecting the tax amount.

6. Point falling for consideration is whether the punishment of removal from service for absence of duty for 8 months is excessive and disproportionate.

7. In service matters, the scope of judicial review is limited to the deficiency in decision making process and not the decision. Unless the punishment imposed by the Disciplinary Authority or the Appellate Authority shocks the conscience of the Court, there is no scope for interference. In B.C. Chaturvedi v. Union of India : (1996)ILLJ1231SC , the Supreme Court, after considering the various issues and case laws and the scope of interference in the punishment imposed by the authorities, has held as follows at p. 1237 of LLJ:

18. A review of the above legal position Authority, and on appeal the Appellate Authority, being fact-finding authorities, have exclusive power to consider the evidence with a view to maintain discipline. They are invested with the discretion to impose appropriate punishment, keeping in view the magnitude or gravity of the misconduct. The High Court/Tribunal, while exercising the power of judicial review, cannot normally substitute its own conclusion on penalty and impose some other penalty. If the punishment imposed by the Disciplinary Authority or the Appellate Authority shocks the conscience of the High Court/Tribunal, it would appropriately mould the relief, either directing the Disciplinary/Appellate Authority to reconsider the penalty imposed, or to shorten the litigation, it may itself, in exceptiunal and rare cases, impose appropriate punishment with cogent reasons in support thereof.

8. The imposition of appropriate punishment is within the discretion of Disciplinary Authority. Power under Article 226 is one of the judicial review. It is not a appeal from a decision. If misconduct is established normally the Court would not interfere with the quantum of punishment unless it shocks the conscience of the Court.

9. The scope of interference with quantum of punishment has been the subject matter of various decisions of the Supreme Court. Referring to various decisions in Union of India and Ors. v. Dwarka Prasad Tiwari (2007) 2 MLJ 278 (SC), the Supreme Court has held as follows at p. 286 of MLJ:

15. The common thread running through in all these decisions is that the Court should not interfere with the administrator's 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 the Wednesbury's 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 decision making process and not the decision.

16. To put 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 a 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.

17. The above position was recently reiterated in Union of India and Anr. v. K.G. Soni : (2006)IIILLJ802SC following Domoh Panna Sagar Rural Regional Bank and Ors. v. Munna Lal Jain : (2005)ILLJ730SC .

10. Considering the above judicial precedents of the Supreme Court, it is clear that the High Court or Tribunal can Interfere with the punishment imposed by the Disciplinary Authority or the Appellate Authority, where the quantum of punishment is disproportionate or excessive.

11. In the case on hand the petitioner working as Bill Collector ought to have reported for duty if he was suffering from illness he ought to have informed the respondent/Corporation. From the submissions of learned Counsel for respondent/Corporation it comes to be known that during 1975 Disciplinary proceedings was initiated against petitioner for grave charges like misappropriation of Tax amount and tampering of office records. For proved charges punishment of reversion to the lower post as provided under Rule 3 of the Coimbatore Municipal Corporation Service (D&A;) Rule 1986. The petitioner served respondent/Corporation for 28 years and 5 months apart from the punishment imposed in 1975 there was no past record. Having regard to nature of charges, and long service of the petitioner in my considered view the punishment of removal from service is disproportionate and excessive and the same is modified as 'Compulsory Retirement'. During the unauthorised absence of petitioner, Corporation must have been subjected to inconvenience in collecting the tax amount. Having regard to nature of job responsibilities of petitioner, it is ordered that 20% of pension shall be deducted from the pension amount payable to the petitioner for a period of one year.

12. The punishment of removal from service is modified as Compulsory Retirement and this writ petition is partly allowed.

20% of pension amount payable to the petitioner is ordered to be deducted for a period of one year commencing from the payment of pension in the first month.

The respondent/Corporation is directed to disburse all terminal benefits to the petitioner within a period of four weeks from the date of receipt of a copy of this order.

The respondent/Corporation is also directed to process the pension papers of the petitioner within a period of eight weeks from the date of receipt of a copy of this order.