R.A. Jameela v. State of Kerala and others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE TUESDAY, THE 7TH DAY OF FEBRUARY 2012/18TH MAGHA 1933 WPC.No. 33715 of 2004 (L) ------------------------PETITIONER: ------------R.A. JAMEELA, FORMER SECRETARY, KAIPAMANGALAM GRAMA PANCHAYAT, THRISSUR DIST. NOW RESIDING AT PULINTHARA PARAMBIL W/O. P.A. KUNHUMUHAMMED, CHAZHOOR P.O. THRISSUR DISTRICT, PIN-680 571. BY ADVS.SRI.K.JAJU BABU SMT.M.U.VIJAYALAKSHMI RESPONDENTS: ----------1. STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, LOCAL SELF GOVERNMENT DEPARATMENT, GOVT.SECRETARIAT TRIVANDRUM. 2. THE DIRECTOR OF PANCHAYATS, TRIVANDRUM. 3. THE DEPUTY DIRECTOR OF PANCHAYATS, MALAPPURAM. 4. MELATTUR GRAMA PANCHAYAT, P.O. MELATTUR MALAPPURAM DISTRICT, PIN-679 326, REPRESENTED BY ITS SECRETARY. 5. THE AGRICULTURAL OFFICER, KRISHI BHAVAN, MELATTUR, MALAPPURAM DISTRICT. R4 & 5 BY SRI.C.M.KAMMAPPU R1 TO 3 BY GOVERNMENT PLEADER SMT.K.T.LILLY THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 0702-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **APPENDIX TO W.P.C.No.33715 of 2004** ## **PETITIONER'S EXHIBITS:** EXT.P1: TRUE COPY OF CHARGE MEMO ISSUED TO THE PETITIONER DATED 15/7/2002 VIDE NO.04-19946/01 BY THE 2ND RESPONDENT. EXT.P2: TRUE COPY OF REPLY SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT DT.28/9/2002. EXT.P3: TRUE COPY OF JUDGMENT DATED 6/10/2003 IN W.A.NO.1609/03 OF THS HON'BLE COURT. EXT.P4: TRUE COPY OF REPORT SUBMITTED BY THE 2ND RESPONDENT DATED 29/10/2003 VIDE NO.D419946/01. EXT.P5: TRUE COPY OF SHOW CAUSE NOTICE DATED 25/10/2003 VIDE NO.D4.19946/01 ISSUED BY THE 2ND RESPONDENT. EXT.P6: TRUE COPY OF OBJECTION DATED 3/11/03 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT. EXT.P7: TRUE COPY OF ORDER NO.D4-19946/01 DATED 11/11/03 ISSUED BY THE 2ND RESPONDENT. EXT.P8: TRUE COPY OF MEMORANDUM OF APPEAL SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT DATED 15/12/2003. EXT.P9: TRUE COPY OF ARGUMENT NOTES SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT DATED 14/9/2004. EXT.P10: TRUE COPY OF ORDER NO.G.O.NO.3774/04/LSGD DATED 28/10/2004 ISSUED BY THE 1ST RESPONDENT. EXT.P11: TRUE COPY OF ORDER NO.MLR.10/97-98 DATED 28/10/98 ISSUED BY THE 5TH RESPONDENT. EXT.P12: TRUE COPY OF NOTICE DATED 11/8/2005 VIDE NO.A3.194/01 ISSUED BY THE 4TH RESPONDENT TO THE PETITIONER. ## **RESPONDENT'S EXHIBITS:** NIL // True Copy// PA to Judge ## **A.M.SHAFFIQUE, J * * * * * * * * * * * * *** W.P.C.No.33715 of 2004 ---------------------------------------- Dated this the 7[th] day of February 2012 ## **J U D G M E N T** The petitioner retired from service on superannuation on 28/2/2002. A few months before retirement, she was placed under suspension on the allegation that while she was working at Melatoor Grama Panchayath from 10/10/1998 to 24/2/2000 she was involved in a misconduct as evident from Ext.P1. Though the petitioner submitted objections denying her involvement in the allegations mentioned in the show cause notice based on an enquiry report Ext.P4, she was issued Ext.P5 show cause notice dated 25/10/2003 proposing to recover an amount of Rs.87,800/- with 18% interest from her retirement benefits. Though an objection was filed to the said show cause notice, by Ext.P7 order the Director of Panchayat confirmed the proposal. The petitioner preferred an appeal, but by Ext.P10 order, Ext.P7 order was confirmed. Hence alleging that the disciplinary proceedings taken by the respondents against the petitioner was illegal, irregular and outcome of non-application of mind, this writ petition is filed challenging Exts.P1, P4, P5, P7 W.P.C.No.33715/04 2 and P10. Since the petitioner retired while in suspension and during the pendency of the enquiry the sanctioned amount of gratuity was not paid to her and the petitioner therefore seeks disbursement of the said gratuity amount with interest also. 2. Four counts of allegations were levelled against the petitioner in Ext.P1 charge memo. First charge is that, while working as Secretary of the Panchayat, she issued cheques for Rs.65,000/- and Rs.42,000/- to Sri.A.Prabhakaran as value of fertilizer. It is stated that this payment was made without proper records like contingent bill or decision by the Panchayat. The second allegation is that a cheque for Rs.32,000/- was given in the name of Sri.Sukumaran as subsidy without permission from the Panchayat and without complying with the formalities for payment. The third allegation is regarding payment of Rs.12,000/- to Sri.Chemmaniyode Vijayan as subsidy again without complying with the required formalities and the fourth allegation is payment of Rs.24,600/- to Sri.Abdulla towards paddy and vegetable cultivation bonus without complying with the requirements. W.P.C.No.33715/04 3 3. Ext.P2 is the explanation of the petitioner in which she denied her involvement by contending that there is no practice that the sub vouchers are signed by the President and the documents prepared during the relevant time were kept in the voucher files of the office. The amounts were disbursed only on the basis of orders of the Agricultural Officer. It is reiterated that all the cheques were signed only after getting the approval of the contingent bill which is countersigned and passed by the Panchayat President. However, the enquiry officer by Ext.P4 had come to the conclusion that an amount of Rs.1,75,600/- has been paid from the account of the Panchayat without any decision being taken by the Panchayat and by creating false documents and putting false signatures by the Head Clerk Sri.P.G.Mohanan. The enquiry officer further finds that the petitioner, who believed the Head Clerk in signing the cheques, failed to discharge her duties and could not absolve herself from the liability. It is also found that the Panchayath President, who had signed the contingent bills, has later removed the same when the fraud was detected in order to put the blame on the officers. Since he is no more no action could be taken against him. It was suggested that the loss caused to Panchayat should W.P.C.No.33715/04 4 be recovered from the delinquent officers. 4. On the basis of this report, Ext.P5 show cause notice was issued proposing to recover the amount equally from the petitioner and the Head Clerk and that too with interest @ 18% per annum. The 1[st] respondent has filed a counter affidavit supporting the stand taken by the disciplinary authority. They justified the punishment. In respect of P.G.Mohanan additionally two increments were barred with cumulative effect. 5. It is the contention of the petitioner that when there is a finding by the Enquiry Officer that the Head Clerk was responsible for fraudulent misrepresentation and forgery of records, the Secretary, who is a superior officer, will not be in a position to detect the forgery immediately and therefore signing of the cheques cannot attribute on her any negligence in performing her duties and in that matter she cannot be called upon to pay any amount, which she had not misappropriated from the Panchayat. Even according to the Enquiry Officer, the whole operation was carried out by the Head Clerk by manipulating the records. The President of the Panchayat is also involved for destroying the records. Hence calling upon the W.P.C.No.33715/04 5 petitioner to pay the amount is totally unjustifiable, arbitrary and on account of non-application of mind. 6. The scope of interference by this Court in a matter relating to disciplinary proceedings and punishment is well settled. In **Chairman-cum-Managing Director, Coal India Ltd. v. Mukul Kumar Choudhuri and others (AIR 2010 SUPREME COURT 75) [(2009)15 SCC 620]** the Supreme Court had occasion to consider the powers of High Court in interfering with Departmental enquiry. It is held in paragraph 18 that “ It has been time and again said that it is not open to the High Court to examine the findings recorded by the Inquiry Officer as a Court of Appeal and reach its own conclusions and that power of judicial review is not directed against the decision but is confined to the decision making process. In a case such as the present one where the delinquent admitted the charges, no scope is left to differ with the conclusions arrived at by the Inquiry Officer about the proof of charges. In the absence of any procedural illegality or irregularity in conduct of the departmental enquiry, it has to be held that the charges against the delinquent stood proved W.P.C.No.33715/04 6 ## and warranted no interference.” It is further held in paragraph 26 that: “The doctrine of proportionality is, thus, well recognized concept of judicial review in our jurisprudence. What is otherwise within the discretionary domain and sole power of the decision maker to quantify punishment once the charge of misconduct stands proved, such discretionary power is exposed to judicial intervention if exercised in a manner which is out of proportion to the fault. Award of punishment which is grossly in access to the allegations cannot claim immunity and remains open for interference under limited scope of judicial review. One of the tests to be applied while dealing with the question of quantum of punishment would be : would any reasonable employer have imposed such punishment in like circumstances? Obviously, a reasonable employer is expected to take into consideration measure, magnitude and degree of misconduct and all other relevant circumstances and exclude irrelevant matters before imposing punishment. In a case like the present one where the misconduct of the delinquent was unauthorized absence from duty for six months but upon being charged of such misconduct, he fairly admitted W.P.C.No.33715/04 7 his guilt and explained the reasons for his absence by stating that he did not have any intention nor desired to disobey the order of higher authority or violate any of the Company's Rules and Regulations but the reason was purely personal and beyond his control and, as a matter of fact, he sent his resignation which was not accepted, the order of removal cannot be held to be justified, since in our judgment, no reasonable employer would have imposed extreme punishment of removal in like circumstances. The punishment is not only unduly harsh but grossly in excess to the allegations. Ordinarily, we would have sent the matter back to the appropriate authority for reconsideration on the question of punishment but in the facts and circumstances of the present case, this exercise may not be proper. In our view, the demand of justice would be met if the Respondent No. 1 is denied back wages for the entire period by way of punishment for the proved misconduct of unauthorized absence for six months.” It is therefore clear that in the absence of any procedural illegality or irregularity in the conduct of departmental inquiry it has to be held that charges against delinquent stood proved and no interference is warranted. And once the charge of misconduct W.P.C.No.33715/04 8 stands proved, the punishment is exposed to judicial intervention only if it is exercised in a manner which is out of proportion to the misconduct. Only if an award of punishment is grossly in excess to the finding of guilt it remains open for interference under limited scope of judicial review. 7. It is the submission of the petitioner that a perusal of the enquiry report by the Administrative Assistant by itself would show that the main culprits are the Head Clerk and the President. The Secretary was only signing the documents in the usual course. The petitioner had worked in the said Panchayath only from 10/10/1998 to 24/2/2000 and during her long service in the department, there had been no allegations against her. The Enquiry Officer also finds that the petitioner had believed the Head Clerk while signing the cheques and passing the bills. There is no indication in the enquiry report that there was a conspiracy between the petitioner and the said Mohanan. This a crucial fact which the enquiry officer had failed to notice or has ignored while completing the enquiry. It was possible for the President of the Panchayat in connivance with the cashier to make manipulations and get the signature of the Secretary in the W.P.C.No.33715/04 9 documents. This crucial matter was not properly considered by the enquiry officer in his report Ext. P4. In so far as the petitioner is not involved in misappropriation of any amount, calling upon her to pay one half of the amount misappropriated by the Head Clerk or any other persons, according to the learned counsel for the petitioner, is an arbitrary exercise of power and unreasonable under the facts and circumstances of the case. 8. It is further argued that by Ext P7 and P10 a person so unblemished during her career is called upon to pay a huge amount for the forgeries or misappropriation or falsification of records committed by another person thereby depriving her of all her service benefits. No steps had been taken by the Panchayath to recover the amount from the persons who had actually collected the amounts, since, according to the Panchayath, the said payments were wrongful. Apart from that the President of the Panchayat was spared as he was no more. The head clerk was reinstated in service and the same amount was ordered to be recovered from him, in addition to bar of two increments. W.P.C.No.33715/04 10 9. On the other hand the learned government pleader supports the findings and contends that the punishment imposed is proportionate to the finding of guilt. 10. Having taken note of the law laid down by the Supreme Court and also the factual circumstances involved in the above case, I am of the view that an interference is called for in the matter. In Ext.P4 enquiry report, it is specifically found that Sri.P.G.Mohanan, Head Clerk was responsible for falsifying the records and committing fraud on the superior officers causing loss to the Panchayath for an amount of Rs.1,75,600/-. The only finding against the petitioner is that she believed her subordinate and signed the cheques. Therefore the finding of misconduct against the petitioner is only on account of the fact that she signed the cheques, believing the documents submitted by the Head Clerk, which is her lack of diligence. There is also a finding that the President of the Panchayath, who signed the bills had destroyed the same and was responsible for the misconduct, but no action is taken against him since he died in the meantime. It is also stated that the superiors were misled by the representations of the aforesaid P.G.Mohanan. The question 11 W.P.C.No.33715/04 therefore is whether the petitioner should be proceeded against for falsification of documents by the Head Clerk and thereby committing fraud. 11. It is further seen that the petitioner is found to have committed a misconduct only on account of the fact that, she had signed the cheques. It is explained that the cheques were signed on the basis of available records which were falsified by the Head Clerk. When a fraud is being committed by a Head Clerk and without detecting such a fraud or falsification of records, an Officer signs a cheque treating the documents as genuine, it is not known how such an Officer can be made responsible for the acts of fraud committed by a subordinate. There is no finding that the petitioner had conspired with the aforesaid P.G.Mohanan or the President of the Panchayath. Therefore, this is a case where the Enquiry Officer had proceeded on a totally erroneous basis by recommending recovery of amounts from the Secretary of the Panchayath, for a fraud committed by the Head Clerk. At best it could only be said that the petitioner has not exercised due diligence in the matter. Therefore applying the principle laid down by the Supreme Court in the W.P.C.No.33715/04 12 ## **Chairman-cum-Managing Director, Coal India Ltd** (Supra) the question is whether an interference is called for in regard to the enquiry report Ext.P4. It cannot be said that the Enquiry Officer had not considered all the relevant aspects while conducting enquiry. But while recommending recovery of amounts from the petitioner, it is evident that the Enquiry Officer had only in mind that the Secretary was not careful before signing the cheques. In a case of fraud, even with due diligence it may not be possible to find out the truth behind the transaction. Viewed in that angle, the advice for recovery of amounts from the petitioner is bad in law and requires to be interfered with. The petitioner had not caused any loss to the Panchayath on account of her action or inaction and therefore the finding in Ext.P4 to recover the loss to the Panchayath from the petitioner cannot be sustained and is in violation of Article 14 of the Constitution of India. The authorities which passed Ext.P7 and P10 did not advert to this aspect of the matter and had acted mechanically. 12. Such being the position, the imposition of punishment so grave in nature, which virtually deprives the petitioner of all her pensionery benefits is unreasonable and not proportionate to W.P.C.No.33715/04 13 the finding of guilt as stated in Ext.P4 enquiry report. Under normal circumstances it would have been proper for this court to sent the matter back to the disciplinary authority to decide on the minimum punishment to be imposed. But this being a case relating to a retired employee and sufficient time has elapsed it would be fair and justifiable to interfere in the punishment by this court. Therefore I feel that withholding of pensionery benefits until now by itself is a punishment for not exercising due diligence in the matter complained off. The interest that accrued in the said sum is enough compensation to the department, and the actual gratuity can be reimbursed to the petitioner. This view of mine is also supported by the law laid down by the Supreme Court in **B.C.Chaturvedi vs. Union of** ## **India and others (1995) 6 SCC 749).** 13. Therefore, the suggestion to recover the amount from the petitioner is treated as bad, while upholding Ext.P4 Enquiry Report, and the punishment imposed in Ext.P7 and confirmed by Ext.P10 requires to be interfered with. Hence the writ petition is allowed as follows: W.P.C.No.33715/04 14 i) The punishment imposed on the petitioner in Exts.P7 and P10 stands set aside. The punishment shall be confined to the interest lost on the gratuity amount till now. ii) The respondents are directed to disburse the gratuity of the petitioner without any interest within a period of two months from the date of receipt of a copy of the judgment. Delay in payment will attract interest at the rate of 12% per annum from the said date. ## **(A.M.SHAFFIQUE, JUDGE)** jsr W.P.C.No.33715/04 15 W.P.C.No.33715/04 16 ## **THOMAS.P.JOSEPH,J.** Crl.M.C.No. of 200 ORDER 19/01/2011