Union Of India vs M. Duraisamy

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

JUDGMENT

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 Signature Not Verified

Central Administrative Tribunal, Madras Bench (hereinafter referred to as Digitally signed by DEEPAK SINGH Date: 2022.04.19 17:38:48 IST Reason:

the ‘Tribunal’) in Original Application (OA) No. 357 of 2012 by which the

1 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been withdrawn from the said accounts by the respondent fraudulently.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/-).

2 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

3 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.

4 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

5 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 well-

reasoned 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

6 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

7 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

8 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

9 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

10 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

11 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

12 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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