M MANICKAM Vs. STATE

JUDGEMENT

(1.) THE petitioner, who was appointed as clerk in the year 1964, was promoted as Assistant in 1972 and further promoted as Manager in 1981. THEreafter, he was given selection grade in the year 1976 and he was working in Mayiladuthurai Municipality. He was suspended on 01.04.1992 by the second respondent. A charge memo dated 01.04.1992 was issued to him stating that he failed to verify the correctness of the office copy of the 'No Objection Certificate' and sent it to the Commissioner of the Municipality for approvel thus paved way for issuing a false certificate with ulterior motive. THE petitioner denied the charge as false and therefore an enquiry officer was appointed. According to the petitioner, the enquiry officer did not furnish the copies of certain documents sought for by him. Even during the course of enquiry, he was not given opportunity to nominate a defence assistant to assist him in the enquiry proceedings. According to the petitioner, as a layman, he is unaware of the enquiry proceedings and to disprove the charges levelled against him, he requires an assistant, hence, the refusal of the enquiry officer to permit him to have a defence assistant is against the principles of natural justice. According to the petitioner, the witnesses examined during the enquiry namely Balasubramaniam and Surulinathan have deposed that the petitioner has inserted the ward number. According to the petitioner, the said witnesses are interested witnesses as they were also placed under suspension, hence, their evidence is unreliable. According to the petitioner, even though the co-delinquent have accepted the charge that the dealing Assistant has inserted the wrong ward number, action was not taken against him he was lot off from the charges. THE enquiry officer, in his report dated 23.11.1992 has held that the charge levelled against the petitioner is proved. For the report of the enquiry officer, the petitioner has also submitted his further explanation on 23.04.1992. Ultimately, on 25.01.1993, a show cause notice was issued indicating that it is proposed to impose punishment of stoppage of increment with cumulative, for which also, the petitioner has submitted his explanation on 22.02.1993. Finally, the order dated 06.06.193 was issued by the second respondent imposing the punishment of stoppage of increment with cumulative effect which has its effect to affect the pensionary benefits. According to the petitioner, the disciplinary authority has not properly considered the further explanation submitted by him and the deposition of the witnesses in the enquiry. THErefore, he preferred an appeal on 05.08.1993 to the first respondent which was also rejected on 18.09.1996. THE appellate authority also did not consider any of the points raised by the petitioner in the appeal and therefore, the petitioner has filed a review application before the first respondent on 20.12.1996, which was also rejected on 28.09.1998 without considering any of the grounds raised by him. THErefore, challenging the orders passed by the respondents, the petitioner has filed the Original Application before the Tribunal. On abolition of the Tribunal, the matter stood transferred to this Court and re-numbered as WP No. 35797 of 2006.

(2.) THE respondents have filed a detailed counter in which it was stated that one Surilimani, lessee of shop No.5 in the shopping complex of Ward No.XIV had requested for a 'No Objection Certificate' for change of business to sell Indian Made Foreign Liquor items. THE Municipal Commissioner has also issued No Objection Certificate to sell liquor items as if the particular shop was located in Ward No.XI but actually Door No.5 of shopping complex is located in Ward No.XIV. THErefore, such a false certificate was issued with an intention to satisfy the condition of IMFL License. According to the respondents, the shop was located only in Ward No.XI and therefore the No Objection Certificate ought not to have been issued. THErefore, the petitioner was placed under suspension on 01.04.1992 under Rule 8 (2) of Tamil Nadu Municipal Service (Discipline and Appeal) Rules, 1970. One P.R. Balasubramaniam, the then Municipal Commissioner and Surulinathan, the Junior Assistant were also placed under suspension by the respondents. THE petitioner was ultimately imposed with punishment of stoppage of increment increment with cumulative effect for a period of one year, which would affect his pension and the municipal Commissioner was imposed with punishment of stoppage of increment for a period of six months. According to the respondents, the Junior Assistant dealing with the subject put up a note and draft to issue No Objection Certificate and later inserted Ward No.11 in the office copy of the draft, while sending the fair copy, but after approval of the office copy. THE petitioner, who is a Manager of the Municipality should have verified the correctness of the location in which the shop is located, but instead approved the draft letter and sent it to the Commissioner for approval. THErefore, the petitioner was held responsible for the lapses. In order to prove the lapses on the part of the petitioner and others, an enquiry was conducted. After conducting enquiry, the enquiry officer has submitted his report stating that the petitoner and the Municipal Commissioner are guilty of their charges and the Junior Assistant is not guilty. Considering the report of the enquiry officer and after complying with other formalities, the petitioner and the municipal commissioner were imposed with the punishment. THE petitioner also filed appeal and revision and both the appellate authority as well as the revisional authority have given reasons for their conclusion. THE appellate authority also found that all fair opportunity has been given to the petitioner while conducting enquiry and it was proved that the petitioner has failed to check and verify the office note before sending it for approval to the Commissioner. THErefore, the learned Government Advocate supports the impugned orders and prayed for dismissal of the writ petition.

(3.) 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 petitioner was imposed with punishment of stoppage of increment for a period of one year with cumulative effect, which will affect his pensionary benefits. Along with the petitioner, the Municipal Commissioner was also subjected to disciplinary enquiry, but he was given lesser punishment of stoppage of increment for a period of six months without cumulative effect. The petitioner was imposed with punishment mainly on the ground that as a Manager, he is responsible for verifying the correctness of the proceedings before sending it to the higher authority for approval. Whereas, the petitioner would contend that it is the Assistant who has inserted the Ward number for pecuniary gain, but however, he was let off on the ground that he has nothing to do with the erroneous order passed by the municipality. Moreover, in the counter, it has been admitted that it is the Assistant who had inserted the Ward Number in the proceedings of the municipality. When that being so, this Court is of the view that the punishment imposed on the petitioner is a bit harsh and excessive. Therefore, I am inclined to take a sympathetic view and modify the punishment of stoppage of increment for a period of one year with cumulative effect, into one of stoppage of increment for a period of one year without cumulative effect.