N. Munusamy v. The Managing DirectorThe Tamil Nadu Water Supply and Drainage BoardTWAD Board Office31

IN THE HIGH COURT OF JUDICATURE AT MADRASDated:03.02.2007Coram: The Honourable Mr. Justice V. DHANAPALANW.P. No.1352 of 2003N. Munusamy..PetitionerVs.1.The Managing DirectorThe Tamil Nadu Water Supply and Drainage BoardTWAD Board Office31, Kamarajar SalaiChepauk, Chennai – 600 0052.Tamil Nadu Water Supply and Drainage Boardrepresented by its Managing DirectorTWAD Board Office31, Kamarajar SalaiChepauk, Chennai – 600 005.. RespondentsWrit Petition filed under Article 226 of the Constitution ofIndia praying for issuance of a writ of certiorari as statedtherein.For petitioner:Mr. T.N. Rajagopalan For respondents:Mr. Patty B. JeganathanO R D E RThe petitioners seeks to call for the records made in B.P.Ms. No.58 (TWAD-Estt.(DP) Wing) dated 06.02.2001 as confirmed bythe order in B.P.Ms.No.156 (TWAD-Estt.(DP)Wing) dated 29.05.2001passed by the respondents and for issuance of a writ of certiorariquashing the part fixing minimum scale of pay of Junior Assistantand taking away his past service as an Office Assistant.2.The facts that are necessary for the disposal of thiswrit petition, as culled out from the petitioner’s affidavit, areas follows: https://hcservices.ecourts.gov.in/hcservices/ i.The petitioner, who holds a pass in theS.S.L.C. examination, was appointed in the HighwaysDepartment, Chennai as an Office Assistant on temporarybasis and was since retrenched for want of vacancy.Pursuant to the interview conducted by the secondrespondent Board, he was appointed there as an OfficeAssistant on 28.10.1980 and was subsequently promotedas Junior Assistant with effect from 14.09.1988 and hisservices were also regularized. ii.While so, he was issued with a Charge Memodated 12.04.1990 stating that he had failed to producehis employment registration card and the previousexperience certificate to support his claim as aretrenched employee. In response, he submitted anexplanation on 04.10.1990 denying the charges levelledagainst him. In the circumstances, he was served witha proceedings dated 28.02.1991 by the firstrespondent, removing him from service with effect fromthat date stating that the charges leveled against himstood proved. iii.Being aggrieved by the order of removal, hefiled a writ petition in W.P. No.3661 of 1991 whichwas admitted and stay granted and at the stage offinal hearing, based on the submission made by thecounsel for the respondents that in similarcircumstances, the respondents had proposed to stopone increment wherever the petitioners were notrecruited through the Employment Exchange, this Courtdismissed the writ petition with a direction to therespondents to consider the petitioner's appeal on parwith the other employees whose appeals had beendisposed of.ivActing upon the afore-said order of thisCourt, the respondents passed an order in B.P.Ms.No.58 (TWAD-Estt.(DP) Wing) dated 06.02.2001 to theeffect that the petitioner may be continued as JuniorAssistant subject to the condition that his pay shouldbe fixed in the minimum of Junior Assistant’s scaleand that his past service should not be taken intoaccount. Questioning this order, the petitioner fileda Memorial Petition dated 23.02.2001 and the same wasrejected and the order dated 06.02.2001 stoodconfirmed. v.Though he had given various petitionspointing out that for similar charges, certain otherpersons were punished with stoppage of three https://hcservices.ecourts.gov.in/hcservices/ increments, the order passed by the respondents takingaway his entire past service is in violation ofArticles 14 and 16 of the Constitution of India andhence, this writ petition, seeking a writ ofcertiorari.3.The respondents have filed their counter andtheir case is as below:i.The petitioner was initially appointed as anOffice Assistant in the respondent Board from amongthe candidates in the “retrenched list” sponsored bythe Collector of Madras and was later promoted asJunior Assistant. From the investigation made by theChief Vigilance Officer of the respondent Board, itcame to be detected that the petitioner was inpossession of neither the Employment Registration cardnor the experience certificate to prove his claim as aretrenched employee. Hence, after issuance of ChargeMemo to him, an Enquiry Officer was appointed toenquire into the charges framed against him. ii.The Enquiry Officer, based on the depositionof the petitioner in the course of enquiry that hishouse was burnt and he had not taken any step toproduce the original employment registration card,held the first charge of non-production of employmentcard as proved. As regards the second charge, thecertificate produced by the petitioner showed hisservice as from 07.02.1975 to 29.02.1976 whereas asper the Vigilance enquiry, it is from 07.02.1975 to03.12.1976. In this regard, the petitioner haddeposed that he worked only as a casual labour andthat casual labourers are not eligible for inclusionin the retrenched list. In view of these, the EnquiryOfficer held the second charged too as proved andaccordingly, the petitioner was removed from service.iii.Based on the order of this Court dismissingthe writ petition filed by the petitioner with adirection that the appeal of the petitioner should bedisposed of on par with the other employees whoseappeals have been disposed of under similarcircumstances, the petitioner submitted an appeal tothe first respondent seeking to quash the order dated28.02.1991 removing him from service and the Board,vide its order dated 06.02.2001, resolved to continuethe petitioner as Junior Assistant subject to thecondition that his pay should be fixed in the minimumof the Junior Assistant pay scale and his pastservices should not be taken into account. https://hcservices.ecourts.gov.in/hcservices/ iv.As against this order of the Board in theappeal, the petitioner filed a Memorial and the Board,in its Resolution, observing that the petitioner hadnot produced the original employment card and he isonly a casual labourer and that casual labourers arenot eligible for inclusion in the retrenched list andthe petitioner has not let in any new materials orfacts for its consideration, rejected the MemorialPetition and confirmed the order dated 06.02.2001,which, in its view, is perfectly in accordance withlaw.4.Mr. T.N. Rajagopalan, learned counsel for thepetitioner would contend that while this Court has directedthe respondents to dispose of the petitioner's appeal onpar with the appeals of the other similarly placed personsand the respondents have punished those similarly placedpersons by way of stoppage of three increments withcumulative effect, the impugned order passed by therespondents is dis-proportionate to the charges levelledagainst the petitioner and is contrary to the orders ofthis Court in W.P. No. 3661 of 1991 filed by the writpetitioner.5.In support of his contention that the orderremoving the petitioner from service does not commensuratewith the charges levelled against him while the othersimilarly placed persons were given only a lesserpunishment of stoppage of three increments, the counsel forthe petitioner would rely on a Division Bench judgment ofthe Allahabad High Court in the case of Basti Ram vs. Unionof India & Others reported in 1996 (3) SLR 308 and therelevant paragraphs read as under (paras 25 and 26)"From the facts and in thecircumstances of the present case, we areof the view that since a minor punishmentwas imposed, in similar set ofcircumstance, rather, in the same offencein which petitioner is involved, one Sri.CHM Sahu, punishment of dismissal fromservice, awarded to the petitioner is notcommensurate to the charge of misconductand a case of hostile discrimination hasbeen made out by the petitioner. Theimpugned order of punishment, therefore,cannot be sustained in law." https://hcservices.ecourts.gov.in/hcservices/

6.Per contra, Mr. Patty B. Jeganathan, learnedcounsel for the respondents would contend that pursuant tothe order of this court in dismissing W.P. No.3661 of 1991with the direction to the respondents to consider theappeal of the petitioner on par with the appeals of othersimilarly placed persons, the Board, in its resolutiondated 31.01.2001, resolved to continue the petitioner inservice as Junior Assistant subject to the condition thathis pay should be fixed in the minimum of the JuniorAssistant’s scale and his past services should not be takeninto account, based on which B.P.Ms.No.58 was issued givingeffect to the resolution and in that view of the impugnedorder does not at all suffer from any infirmity and thewrit petition needs to be necessarily dismissed.7.It is the further contention of the counsel forthe respondents that the Government can be bound only by astatement made by the Advocate General and in the orderpassed of this Court in W.P. No.3661 of 1991 relied on bythe counsel for the petitioner, the counsel for therespondents was not an Advocate General and hence, thatorder cannot bind the respondents in this case. In supportof this contention, he has relied on a judgment of thisCourt reported in 1995 WLR 839 in the case of TheSecretary, Selection Committee, Sabarmathi Hostel, KMCHospital Campus, Kilpauk & Others vs. Dr. R. Rajesh and therelevant para reads as under:"The Supreme Court has held that theGovernment can be bound only by astatement made by the Advocate General andany concession by Government Pleader willnot be binding on the Government. VidePeriyar and Pareekanni Rubbers Ltd. vs.State of Kerala (AIR 1990 SC 2192). Inthe present case, it is not even astatement of a Government Pleader but itis only a Government Advocate whorepresented the appellants before thelearned single Judge."8.Lastly, to substantiate his argument that thequantum of punishment in disciplinary matters is primarilyfor the disciplinary authority rather than the High Courtsand Administrative Tribunals, the counsel for therespondents has placed reliance on a judgment of the ApexCourt reported in 2000 (8) Supreme 217 in the case of OmKumar & Others vs. Union of India in Delhi DevelopmentAuthority vs. Skipper Construction and another and therelevant paragraph reads as under: https://hcservices.ecourts.gov.in/hcservices/ “We agree that the question of thequantum of punishment in disciplinarymatters is primarily for the disciplinaryauthority and the jurisdiction of the HighCourts under Article 226 of theConstitution or of the AdministrativeTribunals is limited and is confined tothe applicability of one or other of thewell known principles known as Wednesburyprinciples. (See Associated ProvincialPicture Houses vs. WednesburyCorporation). This Court had occasion tolay down the narrow scope of thejurisdiction in several cases. Theapplicability of the principle of‘proportionality’ in Administrative lawwas considered exhaustively in Union ofIndia vs. Ganayutham where the primaryrole of the Courts in matters notinvolving fundamental freedoms, wasexplained.”9.Heard both sides.10.The short point involved in this case is whetherthe punishment imposed by the respondents on the petitioneris proportionate to the charges leveled against him andwhether it is on par with the punishment imposed on theother similarly placed persons for identical charges.11.From a perusal of the records available beforethis Court, it is seen that the respondents have dealt withfive persons, other than the petitioner, against whomsimilar charges were framed and the particulars such as thecharges leveled against them and the punishment imposed forthe same are as under:S.No.Name ofdelinquentemployeeChargesframedPunishmentinitiallyorderedPunishmentsubsequentlyordered1N. RajendranProduction ofbogusexperiencecertificateRemovalfromserviceStoppage ofincrement forthree yearswithcumulativeeffect https://hcservices.ecourts.gov.in/hcservices/ 2M. KuppusamyProduction ofboguscertificatein respect ofqualification, age andexperienceRemovalfromserviceStoppage ofincrement forthree yearswithcumulativeeffect3K. KuppanProduction ofbogusexperiencecertificateRemovalfromserviceStoppage ofincrement forthree yearswithcumulativeeffect.4K. AshokKumarFailure toprovideemploymentregistrationcard andpreviousexperiencecertificateto prove thathe is aretrenchedemployeeRemovalfromserviceStoppage ofincrement forthree yearswithcumulativeeffect5A.PanneerselvamFailure toprovideemploymentregistrationcard andpreviousexperiencecertificateto prove thathe is aretrenchedemployeeRemovalfromserviceStoppage ofincrement forthree yearswithcumulativeeffect12.A glance of the above statement would clearlyindicate that the respondents have considered the case ofsimilarly placed persons on the same lines, i.e. in all theabove cases, the punishment of removal from service hasbeen reduced to stoppage of increment for three years withcumulative effect. But, in the case on hand, therespondents have imposed punishment of continuing thepetitioner in service in the minimum scale of pay of aJunior Assistant and canceling his past service as anOffice Assistant, which is prima facie indiscriminate anddisproportionate, as a result of non-application of mind,despite the orders of this Court in W.P. No.3661 of 1991filed by the petitioner in and by which the respondents https://hcservices.ecourts.gov.in/hcservices/ were directed to consider the petitioner’s appeal on parwith that of the other similarly placed persons. 13.Though the counsel for the respondents would relyon the decision of this Court reported in 1995 WLR 839(supra) to contend that the concession given by the counselfor the respondents in W.P. No. 3661 of 1991 cannot bindthe Government since the advocate who appeared for therespondents in that matter was not an Advocate Generalwhose statement alone can bind the Government, the ordersof this Court in the said writ petition have to benecessarily given effect to in the strict sense in which itwas meant, even assuming that the said concession by thecounsel for the respondents is not binding on theGovernment. But, in the instant case, it is a clear caseof violation of the said order in the sense that therespondents have not given effect to the order of thisCourt in W.P. No.3661 of 1991 where the respondents weredirected to consider the petitioner’s appeal on par withthat of the other similarly placed persons. Hence, thiscontention of the counsel for the respondents cannot havelegs to stand and fails accordingly.14.It is to be noted that had the respondentsapplied their mind and acted in accordance with the ordersof this Court while passing orders in respect of thecharges against the petitioner, they would have imposed thepunishment of stoppage of increment for three years withcumulative effect for the same or even grave charges incertain cases; but, they have not done so and have actedwith total non-application of mind. Moreover, I am notable to find any reason whatsoever for the action of therespondents in isolating the case of the petitioner aloneby imposing such a grave punishment. 15.From the above discussion, it is clear that inIndia where administrative action is challenged underArticle 14 as being discriminatory, equals are treatedunequally or unequals are treated equally, the question isfor the Constitutional Courts as primary review Courts toconsider correctness of the level of discrimination appliedand whether it is excessive and whether it has a nexus withthe objective intended to be achieved by the administrator.Here, the Court deals with the merits of the balancingaction of the administrator and is, in essence, applying‘proportionality’ and is a primary reviewing authority andin view of this, the reliance placed by the counsel for therespondents on the judgment reported in 2000 (8) Supreme217 (supra) is unsustainable. Thus, when the respondentshave failed to exercise due care, diligence and properapplication of mind, obviously, the role of the Court comes https://hcservices.ecourts.gov.in/hcservices/ into play as a reviewing authority and it has to take upthe task of ascertaining whether employers have acted inthe manner they ought to have. When that is not the caseand the punishment imposed on the petitioner certainlyshocks the conscience of the Court, I would straight-awayquash the impugned order of punishment and in this regard,it would be relevant to refer to the decision of theSupreme Court reported in AIR 2000 SC 1151 in the case ofU.P. State Road Transport Corporation and others vs. MaheshKumar Mishra and others which deals with the power of theHigh Courts in interfering with the punishment inflictedupon the delinquent employee and the relevant paragraphreads as under:"This will show that not onlythis Court but also the High Court caninterfere with the punishment inflictedupon the delinquent employee if, thatpenalty, shocks the conscience of theCourt. The law, therefore, is not, ascontended by the learned counsel for theappellants, that the High Court can, in nocircumstance, interfere with the quantumof punishment imposed upon a delinquentemployee after disciplinary proceedings."16.Having regard to the facts and circumstances ofthe case, I am of the considered view that the differentialtreatment shown to the petitioner must not only pursue alegitimate aim. It had to be proportionate as well. Therehad to be relationship of proportionality between the“means employed” and the “aim sought to be realized”. Itis always for the disciplinary authority to justify itsaction. If indirect discrimination were established, theremust be sound reasons supported by objective justification.In the instant case, from the action of the respondents intreating the petitioner in an entirely different fashionwhen compared with the case of other similarly placedpersons, it is clear than an arbitrary action has beenshown and acted upon. Therefore, in rarest of rare caseswhere there has been a differential treatment indisciplinary proceedings in the case of similarly placedpersons, the Court can very well substitute its own view asto the quantum of punishment. Even if the respondents werevery particular in punishing the petitioner in such a gravemanner, they should have spelt out valid reasons for doingso. But, that is not the case here. In that view of thematter, I consider that this is one such case where theauthorities have acted upon indifferently insofar as thepetitioner is concerned by imposing the punishment ofcontinuing him in the minimum pay scale of Junior Assistantand taking away his past service as an Office Assistant. https://hcservices.ecourts.gov.in/hcservices/

17.In view of the above, while setting aside theimpugned order of punishment, this Court remits the matterto the appellate authority for consideration of thepetitioner’s appeal afresh independently, by applying itsmind. While doing so, the appellate authority is directedto bear in mind, the charges framed against the petitionerby affording him an opportunity and by treating his appealon par with the other similarly placed persons as directedby this Court in its orders in W.P. No.3661 of 1991 and topass appropriate orders. This exercise shall be carriedout by the respondents within a period of two months fromthe date of receipt of a copy of this order. In fine, the writ petition is allowed with the abovedirection to the respondents. No costs. cadSd/Asst.Registrar/true copy/Sub Asst.RegistrarToThe Managing DirectorThe Tamil Nadu Water Supply and Drainage BoardTWAD Board Office31, Kamarajar SalaiChepauk, Chennai – 600 005+ 1 cc to Mr. Patty B. Jeganathan, Advocate, SR No.6457+ 1 cc to Mr. T.N. Rajagopalan, Advocate, SR No.6469KSJ(CO)SR/8.2.2007W.P. No.1352 of 2003