P.Ramesh Babu & Ors. v. The Registrar & Ors.

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 11.8.2011CORAM: THE HONOURABLE MR.JUSTICE K.CHANDRUW.P.Nos.23929 and 23930 of 2009P.Ramesh Babu.. Petitionerin WP:23929/2009M.Rajendran.. Petitionerin WP:23930/2009Vs.1. The Registrar Pondicherry University Puducherry.2. The Executive Council Pondicherry University Puducherry.3. The Vice Chancellor Pondicherry University Puducherry... Respondentsin both writ petitions PRAYER in W.P.No.23929 of 2009: Petition under Article 226 of theConstitution of India for issue of writ of CertiorarifiedMandamus to call for the records relating to the proceedings inOffice Order No.128 Ref.No.PU/Estt/NT3/720/2008-09/131, dated1.8.2008 and the consequential order in MemorandumRef.No.PU/Estt/NT3/950/2008-09/281, dated 19/21.1.2009, and theorder in memorandum Ref.No.PU/Estt/NT3/950/2009-10/72, dated26.6.2009/1.7.2009 of the Registrar, Pondicherry University,Puducherry and quash the same and to direct the respondents torestore the petitioner in his original post of Senior Assistantwith all attendant and consequential benefits arising thereof.PRAYER in W.P.No.23930 of 2009: Petition under Article 226 of theConstitution of India for issue of writ of CertiorarifiedMandamus to call for the records relating to the proceedings inOffice Order No.113 Ref.No.PU/Estt/NT3/734/2009-10/83, dated6.7.2009 and the consequential Office Order No.131 inRef.No.PU/Estt/NT3/734/2009-10/98, dated 20/21.7.2009 and theAppellate Order in memorandum Ref.No.PU/Estt/NT3/2009-10/146,dated 24.9.2009 of the Registrar, Pondicherry University,Puducherry and quash the same and to direct the respondents to https://hcservices.ecourts.gov.in/hcservices/ reinstate the petitioner as Junior Assistant with all attendant andconsequential benefits arising thereof.For Petitioners:Mr.N.R.Chandran, Sr.Counselfor M/s.R.MuthukannuFor Respondents :Mrs.A.V.BharathiORDERThe petitioner in the first writ petition (W.P.No.23929 of2009) was employed as an Assistant in the Department of French inthe respondent/ Pondicherry University. He has filed the writpetition seeking to challenge the rejection of his appeal filedagainst the penalty of reduction to lower time scale of pay,communicated vide order dated 26.6.2009, as well as the earlierorder of rejection dated 19.1.2009.2. Likewise, in the second writ petition (W.P.No.23930 of2009), the petitioner had challenged the order dated 6.7.2009,wherein and by which he was imposed with a penalty of compulsoryretirement. In that case, the petitioner was working as JuniorAssistant in the respondent/ University.3. Both the writ petitions were admitted on 23.11.2009. Onnotice from this Court, the first respondent has filed counteraffidavit in W.P.No.23929 of 2009 on 19.7.2011 and in W.P.No.23930of 2009 on 8.6.2011.4.1. In the first writ petition (W.P.No.23929 of 2009), thepetitioner (P.Ramesh Babu) was appointed as Typist-cum-Clerk in theyear 1986 and he was promoted to the post of Assistant on 12.1.1995and subsequently, as Senior Assistant/Office Manager on 6.11.2000.When he was working as Senior Assistant/Office Manager in theAcademic II Section of the University, in the year 2003, he waslooking after the duty of issuing transcripts of the answer sheetsfor verification. 4.2. A complaint was received on 14.11.2003 from K.GeethaNayak, a Ph.D. student attached to the School of Ecology andEnvironmental Sciences, and it was informed to the University bythe Bank officials that the challans given to K.Geetha Nayak by thepetitioner, as a proof of remittance of money for obtainingtranscripts, are fake and it was found that while the challanscarried the bank cash seal, there was no official's signature andno cash remittance was made to the University. 4.3. The petitioner was, therefore, issued a charge memo on9.12.2003, asking him as to why disciplinary action should not be https://hcservices.ecourts.gov.in/hcservices/ taken against him. He submitted explanation on 26.12.2003.Thereafter, a random check was made on the financial transactionsand it was found that most of the transcripts of the answer sheetsfor the year 2002-2003 were untraceable. But, on scrutiny of theregister maintained by the petitioner for recording the challans,it was found that several amounts had not been remitted to theUniversity account. 4.4. A preliminary Enquiry Committee was constituted toenquire into the issue on 19.7.2005. After enquiring the BankManager and K.Geetha Nayak and after perusing the relevantmaterial, the Committee noted that fake bank seal was used andthere was a deviation of procedure for obtaining requiredapplication in the prescribed format and hence, the Committeerecommended initiating disciplinary action against the petitioner.4.5. Further, irregularities in the matter of utilization ofhouse building advance was also noticed. While the petitioner hasdrawn an advance of ` 1,90,750/- towards first and secondinstalments, he was directed to complete the construction of housewithin 24 months. As he failed to intimate the progress of theconstruction, he was also asked to explain the same by a memodated 1.7.2005. In his reply dated 15.7.2005, he has stated thatthe construction has already reached the plinth level and requestedfor an inspection and for release of third instalment. But, duringthe inspection, it was found that only a dummy foundation was laidwith a view to mislead the inspection team and hence, he was issuedwith a memo dated 14.9.2005, asking for his explanation. Anotherinspection of his construction was carried out in his presence bythe Executive Engineer and two Assistant Engineers on 25.9.2005 andit was found that the earlier allegation was true. 4.6. In the light of these commissions and omissions made bythe petitioner, it was decided to initiate disciplinary action and,therefore, he was placed under suspension by an order dated29.9.2005. By a charge memo dated 27.2.2006, specific charges wereframed against the petitioner. The petitioner gave his reply dated17.3.2006 and denied the charges. 4.7. After that, an enquiry officer was appointed. Theenquiry officer submitted a detailed report dated 31.1.2008 holdingthe first charge relating to misappropriation of house buildingadvance was partially proved. The second charge relating tomisappropriation of money collected from K.Geetha Nayak was alsoproved. But, the third charge that the petitioner produced fakechallans in few other cases to defraud the University was notproved. In the departmental enquiry, 9 witnesses were examined onbehalf of the University and the petitioner examined himself on hisside. While 30 exhibits were filed by the University, 13 exhibitswere filed by the petitioner. A copy of the enquiry report was https://hcservices.ecourts.gov.in/hcservices/ furnished to the petitioner and his further explanation dated7.3.2008 was also received.4.8. Thereafter, the matter was placed before the ExecutiveCouncil of the University on 17.7.2008. The Executive Council,after consideration of all the relevant facts, accepted thefindings of the enquiry officer and resolved to impose a penalty ofreduction to the post of Assistant for a period of five years. Itwas stated that after completion of five years, he may beconsidered once again for promotion to the post of Senior Assistantbased upon his performance during the period. The ExecutiveCouncil also resolved to revoke the suspension, but it held that itwill not be treated as duty and the emoluments during the period ofsuspension will be restricted to the subsistence allowance alreadyreceived by him.4.9. The petitioner sent an appeal dated 15.9.2008 against thepenalty imposed. The same was also considered in the ExecutiveCouncil meeting held on 18.11.2008. The Executive Council rejectedhis appeal and a communication was also sent to the petitioner on21.1.2009. Notwithstanding the same, the petitioner once againsent a second appeal dated 9.3.2009. The petitioner was informedthat in the normal course the petitioner should have been imposedthe maximum penalty of dismissal, especially as the misconductinvolved moral turpitude, but taking a considerate view of theissue, a lower punishment was given to him. Challenging theseorders, the writ petition came to be filed.4.10. The contention raised by the petitioner was that theappellate authority did not assign reason for rejecting his appeal.It was stated that in similar case of misuse of house buildingadvance, only a censure was imposed to another employee. It wasalso stated that the documents produced during the enquiry were notrelevant and the punishment imposed was contrary to the Ordinanceof the University and the imposition of multiple punishment wasalso contrary to the statutes. 5.1. In the second writ petition (W.P.No.23930 of 2009), thepetitioner (M.Rajendran) was employed initially as a JuniorAssistant in the year 1989. He was working in the Examination Wingand was entrusted with the work of looking after the MBBS course.He dealt with the written answer scripts and other exam relateddocuments. The petitioner's work covered assigning dummy numberson various answer scripts for MBBS course and keeping them in safecustody in the store room and assisting the examiners in valuationof papers. It is also his duty to distribute the answer scripts tothe examiners and collect the same after evaluation along with theindividual mark sheet in which the marks are entered by theexaminers. https://hcservices.ecourts.gov.in/hcservices/

5.2. While the examinations were conducted in May, 2006 forMBBS course, the answer scripts were kept under the custody of thepetitioner. It was subsequently valued by the examiners and markswere awarded. Dummy numbers were allotted to the answer sheets andthe petitioner had to take out the answer scripts from the storeroom for valuation and replace the same under safe custody. It wasfound that the dummy numbers and the marks in the valued answersheets for the year 2006 for MBBS examination were altered andtampered and the signatures of the examiners were also forged.Since it was the petitioner who was mainly dealing with the May,2006 examination and was handling the answer scripts in the storeroom, the University, by an order dated 18.8.2006, placed thepetitioner under suspension for his act of misconduct and alsoordered for a departmental enquiry.5.3. The tampered records containing the handwriting of thepetitioner as well as other staff members and officers of theexamination were sent to Forensic Department and the alteration andmanipulation were confirmed. The handwriting in the alteration andmanipulation were found to be in the handwriting of the petitionerand, therefore, the petitioner was issued with a charge memo dated24.5.2007 containing as many as five charges. The petitioner'sexplanation was sought. Since the petitioner's explanation was notsatisfactory, it was decided to hold a full-fledged enquiry. 5.4. Thereafter, the then Dean of the School of Management wasappointed as an enquiry officer. The enquiry officer, afterexamining the records and reports of the Forensic Department andafter giving sufficient opportunity to the petitioner, came to theconclusion that the first four charges were proved and the fifthcharge was not proved and gave a report accordingly on 26.2.2009.The petitioner, on the basis of the enquiry report, submitted afurther reply on 2.4.2009. 5.5. The entire enquiry report along with the petitioner'sexplanation were placed before the Executive Council on 30.6.2009.The Executive Council accepted the findings of the enquiry officerand, by an order dated 6.7.2009, imposed a penalty of compulsoryretirement with immediate effect. The suspension period was alsodirected not to be treated as duty period. The petitionerpreferred an appeal against the decision taken by the ExecutiveCouncil and also submitted additional grounds. Since the ExecutiveCouncil was not inclined to interfere with the decision alreadytaken, it rejected the appeal in a decision taken in the meetingheld on 24.9.2009. The petitioner challenging those orders isbefore this Court.5.6. The contention raised by the petitioner was that therewas no legal evidence to hold the petitioner guilty and there are https://hcservices.ecourts.gov.in/hcservices/ several other persons in the University who have also dealt withthe assignment of dummy numbers and only the petitioner is held asculprit and it was selective action taken against the petitioner.It was also stated that the enquiry was only an empty formality andthe enquiry officer himself has acted as an investigator,prosecutor and judge. The appeal filed against the punishment wasdismissed by a non speaking order and there was no determination ofthe grounds raised by him in the appeal. It is also stated thatthe Registrar, who initially rejected the case of the petitioner,had also participated in the appeal proceedings by attending theExecutive Council meeting and in that view of the matter, the orderis liable to be set aside.6.1. Mr.N.R.Chandran, learned Senior Counsel leadingMr.R.Muthukannu, submitted that the final order was not a speakingorder and hence, non est in the eye of law and for this purpose, heplaced reliance upon the decisions in S.N.Mukherjee v. Union ofIndia, AIR 1990 SC 1984, Raj Kishore Jha v. State of Bihar, [2003]11 SCC 519, Union of India and others v. Jai Prakash Singh andanother, [2007] 10 SCC 712, K.Chelliah v. Chairman, IndustrialFinance Corporation of India and another, AIR 1973 Madras 122, andG.Vallikumari v. Andhra Education Society and others, [2010] 2 SCC497.6.2. Secondly, he submitted that the order of the appellateauthority did not give any reason while confirming the order of thedisciplinary authority and therefore, they are not sustainable andfor this purpose, he relied upon the decisions in Ram Chander v.Union of India, AIR 1986 SC 1173, Chairman, Disciplinary Authority,Rani Lakshmi Bai Kshetriya Gramin Bank v. Jagdish Sharan Varshneyand others, [2009] 4 SCC 240, T.Bapuraj v. Commissioner of Police,Chennai and others, [2008] 6 MLJ 882, and Chairman and ManagingDirector, Tamil Nadu Small Industries Development Corporation Ltd.,Madras and others v. M.Jagadeesan and others, [2009] 7 MLJ 17. 6.3. The third submission was that the persons who passed theoriginal order cannot involve themselves in the appeal filedagainst the original order. Even though the Registrar is only anEx-Officio member of the Executive Council, still the term "Ex-Officio" means that the person becomes a member by virtue of hisoffice and he also stated that the decision of the ExecutiveCouncil was communicated by the Registrar and hence, he is part ofthe Executive Council decision making process and, therefore, theorder of the appellate authority confirming the original order isalso invalid and for this purpose, he referred to the decisions inCantonment Executive Officer and another v. Vijay D.Wani andothers, [2008] 12 SCC 230, A.U.Kureshi v. High Court of Gujarat andanother, [2009] 11 SCC 84, Chairman and Managing Director, TamilNadu Small Industries Development Corporation Ltd., Madras andothers v. M.Jagadeesan and others, [2009] 7 MLJ 17, and https://hcservices.ecourts.gov.in/hcservices/ S.D.Balasubramaniam v. Director of Animal Husbandry and VeterinaryServices, Chennai, 2009 Indlaw Mad 1919.7. Refuting these arguments, it was contended by the learnedcounsel for the respondents that the enquiry against thepetitioners was conducted in conformity with the principles ofnatural justice and there was nothing unfair or unreasonable. Theorders communicated to the petitioners were reasoned orders andthey are not cryptic. It is submitted that based on the request ofthe petitioner in W.P.No.23929 of 2009 an outsider was appointed asEnquiry Officer in the place of a Professor of the University. Itis further submitted that the Executive Council was competent toimpose the penalty under Rule 6 and the appellate authority, in thefirst case, had considered the issue and imposed a lesser penalty.The Registrar is only a communicating authority of the decisions ofthe Executive Council or the Vice Chancellor and he is only an Ex-Officio Secretary of the Executive Council and not a member of theExecutive Council.8. It must be noted that the charges levelled against thepetitioners are serious and in respect of the first case, even forthe proved misconduct, he was let off with a lesser penalty, thoughit was rightly contended in the counter affidavit that it requiresa severe penalty. Tampering with the records and misappropriatingthe amount due to the University is a serious misconduct. In thesecond case, the charges were clearly proved against the petitionerand for the proved misconduct, he was only imposed with the penaltyof compulsory retirement.9. In respect of the first contention made by the learnedSenior Counsel that the competent authority's order is cryptic andnot reasoned one, it must be noted that the disciplinary authorityis required to give reasons only when he disagrees with thefindings of the enquiry officer and not when he is in agreement andtherefore, the contention raised by the learned Senior Counselcannot be accepted in the light of the judgment of the SupremeCourt in National Fertilizers Limited v. P.K.Khanna, [2005] 7 SCC597.10. In respect of the second argument that the appellateauthority did not give reasons, it must be noted that the appellateauthority is the supreme authority on all administrative mattersand the entire agenda of the meeting was placed in the ExecutiveCouncil meeting and after discussion, the case of the petitionerswas rejected. 11. Though the petitioner in the second writ petitioncontended that there are several other persons working in theExamination Wing and selective action is taken against him, it mustbe noted that the signatures and handwritings of all the persons https://hcservices.ecourts.gov.in/hcservices/ concerned were sent to Forensic Department and only thepetitioner's signature and handwriting tallied with the alterationand manipulation and therefore, he cannot complain of anydiscrimination in the matter of penalty.12. The next submission that the Registrar had participated inthe Executive Council proceedings and therefore, the orders of theappellate authority are vitiated also cannot be accepted. TheStatute 4(5) of the Pondicherry University Act, 1985 clearly statesthat the Registrar shall be the Ex-Officio Secretary of theExecutive Council, the Academic Council and the Board of Schools,but he shall not be deemed to be a member of any of theseauthorities. Notwithstanding the statutory position of theRegistrar, the petitioners contended that Registrar must haveparticipated in the deliberations of the Executive Council whiledisposing of the appeals and as it has not been controverted in thecounter affidavits, the allegation made by the petitioners must bedeemed to have been proved.13. In fact, in paragraph [27] of the counter affidavit, ithas been specifically stated that the contention that the Registrarhas participated in the appeal proceedings is incorrect and he isonly an Ex-Officio Secretary and he conducts officialcorrespondence on behalf of the Executive Council. It was alsostated that he was neither the penalty imposing authority nor theappellate authority.14. The contention of the learned Senior Counsel was largelyinspired by the judgment of the Supreme Court in Institute ofChartered Accountants of India v. L.K.Ratna, [1986] 4 SCC 537.But, the ratio of the said judgment as seen from paragraphs [25]and [26], which are as follows:"25. We must remember that the President and the Vice-President of the Council and three members of theCouncil compose the Disciplinary Committee. ThePresident and the Vice-President do certainly holdsignificant status in the meetings of the Council. Amember whose conduct has been the subject of enquiryby the Disciplinary Committee ending in conclusionsadverse to him can legitimately entertain anapprehension that the President and the Vice-Presidentof the Council and the other members of theDisciplinary Committee would maintain the opinionexpressed by them in their report and would press forthe acceptance of the report by the Council. To themember whose conduct has been investigated by theCommittee, the possibility of the Council disagreeingwith the report in the presence of the President andthe Vice-President and the other members of theCommittee would seem rather remote. His fears would be https://hcservices.ecourts.gov.in/hcservices/ aggravated by the circumstances that the Presidentwould preside over the meeting of the Council, andwould thus be in a position to control and possiblydominate the proceedings during the meeting. We do notdoubt that the President and the Vice-President, andalso the three other members of the DisciplinaryCommittee, should find it possible to act objectivelyduring the decision-making process of the Council. Butto the member accused of misconduct, the danger ofpartisan consideration being accorded to the reportwould seem very real indeed.26. The objection on the ground of bias would havebeen excluded if the statute had expressed itself tothe contrary. But nowhere do we find in the Act anyevidence to establish such exclusion. It is true thatby virtue of Section 17(3) it is obligatory that theDisciplinary Committee should be composed of thePresident and the Vice-President of the Council andthree other members of the Council. While that is so,there is nothing in the Act to suggest that themeetings of the Council must always be presided overby the President or the Vice-President, and that nomeeting can be held in their absence. We find thatRegulation 140 framed under the Act contemplates thatthe Council may meet in the absence of the Presidentand the Vice President, and provides that in theirabsence a member elected from among the members whoare present should preside. There is an element offlexibility which makes it possible for the Council toconsider the report of the Disciplinary Committeewithout the participation of the members of theCommittee. Because of the “flexibility” potential inthe scheme, the doctrine of necessity, to whichreference has been made on behalf of the Institute,cannot come into play. We must admit that it doesappear anomalous that the President and the Vice-President of the Council should be disabled fromparticipating in a meeting of the Council because theyare bound by statute to function as the Chairman andthe Vice-Chairman of the Disciplinary Committee, andwere it not for the factor of flexibility which we seein the scheme, we would have been compelled to theconclusion that the Act implies an exclusion of thedoctrine of bias. But as we have observed, no suchexclusion is implied by the scheme of the Act on itspolicy. We suggest the removal of the anomaly bysuitable legislative amendment of Section 17(3) of theAct so that the constitution of the DisciplinaryCommittee should not necessarily include the President https://hcservices.ecourts.gov.in/hcservices/ and the Vice-President of the Council. It is onlyappropriate that due recognition should be given tothe fundamental principles and accepted axioms oflaw."The above passages makes it clear that in that case, the Presidentand Vice President of the Chartered Accountants Council comprisedthe Disciplinary Committee and thereafter, when the DisciplinaryCommittee's conclusions were considered by the Full Council, thequestion arose whether the President and Vice President, who weremembers of the Disciplinary Committee, can be part of the Council.Though it was contended that they must function as Chairman andVice Chairman of the Disciplinary Committee as per the statutes andno exception can be taken, the Supreme Court held that theirparticipation in the Full Council will not bring objectivity duringthe decision making process of the Council, but suggestedamendment of the statutory position so that the constitution ofthe Disciplinary Committee should not necessarily include thePresident and the Vice-President of the Council, as there would bean apprehension that the Council's decision, including thosemembers of the Disciplinary Committee, will be influenced by bias.But, in the present case, such a question never arose. In the caseon hand, not only the statute makes the Registrar only an Ex-Officio Secretary and in-charge of correspondence, but the veryofficer himself had denied his role in the decision making process.15. The contention that multiple punishment was imposed on thepetitioners also cannot be accepted. The fundamental right whichis guaranteed in Article 20(2) of the Constitution of Indiaenunciates the principle of "double jeopardy". But, such conceptsare never imported into the service law. Even otherwise, in thecase on hand, there is only one penalty each against thepetitioners. The Supreme Court in the judgment in State of UttarPradesh v. Madhav Prasad Sharma, [2011] 2 SCC 212 held as follows:"17. The doctrine of double jeopardy enshrined inArticle 20(2) of the Constitution of India has noapplication in the event of there being only onepunishment awarded to the respondent under the Ruleson charges being proved during the course ofdisciplinary enquiry."16. In respect of the next issue relating to the denial ofwages, the same is not a penalty, but a consequence flowing fromthe imposition of penalty and governed by the Rules made in thisregard.17. The contention of the first petitioner that in similarcases relating to housing building advance only a censure was givenas a penalty also cannot be accepted, as the petitioner has alsobeen accused of some other misconduct which is more serious. The https://hcservices.ecourts.gov.in/hcservices/ penalty or punishment unless shockingly disproportionate cannot beinterfered with in a judicial review under Article 226 of theConstitution of India. The scope conferred on this Court in thisregard is very limited and restricted to exceptional cases, as heldby the Supreme Court in State of Meghalaya v. Mecken Singh N.Marak, [2008] 7 SCC 580.In the light of the above, this Court does not find any casemade out to interfere with the penalty imposed on the petitioners.Hence, these writ petitions are dismissed. No costs.sasiSd/-Asst. Registrar//True Copy//Sub Asst. RegistrarTo1. The Registrar Pondicherry University Puducherry.2. The Executive Council Pondicherry University Puducherry.3. The Vice Chancellor Pondicherry University Puducherry.+ 2 ccs to Mr. R. Muthukannu, Advocate SR No.49550, 49549+ 2 ccs to Mr. A.V. Bharathi, Advocate SR No.49648, 49645W.P.Nos.23929 and 23930 of 2009VG(CO)SR/22.8.2011