S. Baskar v. The Commissioner,Pudukottai Municipality,Pudukottai

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 01-08-2008CORAMTHE HONOURABLE MR. JUSTICE P.K. MISRAANDTHE HONOURABLE MR. JUSTICE K.KANNANWRIT PETITION NO.35810 OF 2004S. Baskar.. PetitionerVs.1.The Commissioner,Pudukottai Municipality,Pudukottai.2.The Registrar,Tamil Nadu Administrative Tribunal,Chennai 600 104... RespondentsPetition filed under Article 226 of the Constitution of Indiafor the issuance of writ of Certiorarified Mandamus to call for therecords relating to the order dated 2.12.2003 made in O.A.No.1239of 2003, on the file of the Tamil Nadu Administrative Tribunal,Chennai, the second respondent herein in confirming the order ofcompulsory retirement passed by the Commissioner, PudukottaiMunicipality, Pudukottai, the first respondent herein made in hisoffice na.Ka.No.C1/1119/2002 dated 15.5.2002, quash the same anddirect the respondent herein to reinstate the petitioner as RevenueAssistant / Bill Collector either in Pudukottai Municipality or inany other Municipality with all consequential service benefits suchas pay fixation, seniority, due promotion, all backwages due to thepetitioner within a date that may be fixed by this Court.For Petitioner: Mr.K. Rajkumar For Respondent-1: Mrs.Geetha Thamaraiselvan Government Advocate- - -O R D E R(Order of the Court was made by P.K. MISRA, J)Heard the learned counsels appearing for the parties.2. The petitioner, while serving as Bill Collector inPudukottai Municipality, received a sum of Rs.4,920/- on 3.2.2002,towards the property tax. Such amount was to be deposited by the https://hcservices.ecourts.gov.in/hcservices/ next day. However, he remained absent from 4.2.2002. He wasimmediately placed under suspension on 5.2.2002 in contemplation ofa departmental proceeding. The suspension order specificallystated that the suspension was on account of absence. On12.2.2002, the amount was deposited. On 15.2.2002, a charge memowas issued on the allegation of belated remittance and unauthorisedabsence.3. The petitioner gave an explanation stating that on4.2.2002 itself, he had fallen ill and had to go to the Hospitalfor treatment and he was going to such hospital for continuoustreatment from 4.2.2002 onwards. It was also explained by him thatthere was no intention to misappropriate the money and the amountcould not be deposited on account of the fact that he was sufferingfrom peptic ulcer and was being treated as an out-patient in thehospital. After such statement was given, there was no formalenquiry by the departmental authorities and punishment ofcompulsory retirement from service was imposed.4. Challenging the same, the petitioner filed O.A.No.1239of 2003 before the Tamil Nadu Administrative Tribunal, Chennai,which was dismissed by the Tribunal by holding that since there wasa temporary misappropriation, it cannot be said that the punishmentwas excessive. The Tribunal, however, did not deal with thecontention that in the absence of any enquiry, the punishmentshould not have been imposed.5. Learned counsel appearing for the petitioner submittedthat as a matter of fact, the petitioner had given explanation thathe could not deposit the amount on account of his illness. Thereis no dispute that the medical certificate indicates that thepetitioner has been treated as an out-patient for peptic ulcer. Itis no doubt true that some of the basic facts viz., the factum ofabsence from 4.2.2002 and the fact that on 5.2.2002 he wasimmediately placed under suspension, were not disputed. Similarlyit was not in dispute that the amount in the normal course shouldhave been deposited on 4.2.2002, but the same was in fact depositedon 12.2.2002 through a relative of the petitioner.6.Inspite of non-denial of these basic facts, there wereother facts and circumstances, which were required to be consideredin the departmental enquiry such as the basis for the charge,whether the petitioner had remained deliberately absent on 4.2.2002and that there had been misappropriation of amount, even though fora temporary period.6.1 So far as the petitioner is concerned, the petitioner hadgiven an explanation to the effect that he had gone to the hospitalnot only on 4.2.2002, but also thereafter. These aspects arefortified by the medical certificate relating to the petitioner. https://hcservices.ecourts.gov.in/hcservices/

6.2 Similarly, for the alleged misappropriation, thepetitioner had given an explanation that on account of the factthat he had to go to the hospital for his treatment, he could notdeposit the money, but subsequently, he deposited the money throughhis relative. 7. If these explanations would have been considered, itwas quite possible for the departmental authority to come to adifferent conclusion. In view of such inherent defect, the orderof punishment cannot be sustained. Since the punishment wasimposed without holding a formal enquiry, in normal course, wewould have remanded the matter for fresh enquiry. However, in thepeculiar facts and circumstances of the case, we refrain from doingso and intend to finalize the matter by modifying the punishmentfor the reasons to be stated hereinafter.8. So far as unauthorised absence is concerned, thepetitioner had produced a medical certificate issued by a CivilSurgeon who was the Government Gazetted Medical Officer in thehospital. Not a single word has been whispered raising any doubtregarding the authenticity of such certificate. In other words, itis apparent from the certificate that the petitioner had undergonetreatment as an out-patient on 4.2.2002 and thereafter. In view ofabove undisputed fact, the absence on 5.2.2002 or thereafter, by nostretch of imagination can be characterised as willful absence. Ithas to be remembered that thereafter, the petitioner was placedunder suspension on 5.2.2002. It is therefore obvious that therewas no occasion for him to rejoin the duty unless suspension wasrevoked.9. In so far as misappropriation is concerned, eventhough there was a temporary retention of money by the petitionerfor seven days, in view of the explanation, it cannot be said thatthere had been misappropriation though there was irregularity innot depositing the money on the next day. It may be that thepetitioner, who ultimately deposited the amount after one weekthrough his relative, could have deposited the amount by the samemethod on the very next day. However, one cannot lose sight of thefact that the petitioner was suffering from peptic ulcer which byits nature is a very painful ailment. Therefore, the petitionerobviously was not in a position to act in a normal manner.10. Every retention of money cannot per se be held to bemisappropriation. In this connection, we may point out thedecision of the Supreme Court reported in AIR 1960 SC 889(JAIKRISHNADAS MANOHARDAS DESAI v. STATE OF BOMBAY), wherein it wasobserved :-“6. . . . The principal ingredient of the offencebeing dishonest misappropriation or conversion which maynot ordinarily be a matter of direct proof, entrustment https://hcservices.ecourts.gov.in/hcservices/ of property and failure in breach of an obligation toaccount for the property entrusted, if proved, may inthe light of other circumstances, justifiably lead to aninference of dishonest misappropriation or conversion.Conviction of a person for the offence of criminalbreach of trust may not, in all cases, be founded merelyon his failure to account for the property entrusted tohim, or over which he has dominion, even when a duty toaccount is imposed upon him, but where he is unable toaccount or renders an explanation for his failure toaccount which is untrue, an inference ofmisappropriation with dishonest intent may readily bemade.”11. In AIR 1977 SC 170 (RABINDRA KUMAR DEY v. STATE OFORISSA), it was observed :-“6. ...It is true that under Section 105 of theEvidence Act the onus of proving exceptions mentioned inthe Indian Penal Code lies on the accused, but thissection does not at all indicate the nature and standardof proof required. . . . In other words, the mode ofproof, by standard of benefit of doubt, is not applicableto the accused, where he is called upon to prove his caseor to prove the exceptions of the Indian Penal Code onwhich he seeks to rely. It is sufficient for the defenceto give a version which competes in probability with theprosecution version, for that would be sufficient tothrow suspicion on the prosecution case entailing itsrejection by the court. This aspect of the matter is nolonger res integra but is concluded by severalauthorities of this Court. . . .”12. In these circumstances, we feel that no usefulpurpose would be achieved by holding a fresh enquiry. Thematerials on record clearly indicate that there was no intention ofmisappropriation. Though the absence was unauthorised in the sensethat he had not prayed for any leave, it cannot be characterized aswilful absence. 13. In these peculiar circumstances, instead ofprolonging the agony, since considerable time has elapsed, we feelinterest of justice would be served by directing the respondents toreinstate the petitioner in service. The petitioner shall bedeemed to be reinstated in service with continuity of service andhe shall be paid his regular salary henceforth by calculating theearlier period as duty period and by adding notional increments.Such amount would be payable from the date of rejoining. So far asthe payment of backwages from 15.5.2002 till the date of rejoiningis concerned, the petitioner would not be entitled to entirebackwages, but would be entitled to limited backwages, equivalent https://hcservices.ecourts.gov.in/hcservices/ to the amount, which was otherwise payable towards his pension. Inother words, to be more specific, the pension, which was payablefrom 15.5.2002 till the date of rejoining, pursuant to the presentorder, would be calculated and paid to the petitioner towards thearrear backwages by adjusting the amount, if any, already receivedby the petitioner either towards pension or other retirementbenefits. This exercise relating to payment of amount should becompleted within a period of three months from the date of receiptof a copy of this order.14. Accordingly, the writ petition is allowed, subject tothe above directions. No costs.Sd/-Asst. Registrar/true copy/Sub Asst. Registrarssa/dpkTo1) The Commissioner, Pudukottai Municipality, Pudukottai.2) The Registrar, Tamil Nadu Administrative Tribunal, Chennai- 600 014.+1 cc to Mr.K. Rajkumar, Advocate, SR.No.42132W.P.No.35810 of 2004RSM(CO)SMK/05.09.08