N. Balakumaran vs The Special Officer

The petitioner (the Charged Official - the CO for short) who was working as Senior Clerk in the District Court, Pondicherry, was served with a show cause notice dated 13.05.2010 under the provisions of Rule 14 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965 (in short "Rules 1965"), containing four charges with Statement of imputations of misconduct in support of Article of Charges and also list of documents and list of witnesses. The CO filed a reply to the said show cause notice, on 7.6.2010, denying all the allegations. An enquiry was conducted against the CO and also one P.Mariappan, Sarishtadar, District Court, Pondicherry. The charges levelled against the said P. Mariappan were not found proved. However, all the four charges levelled against the CO were found proved. On the basis of the enquiry report dated 6.6.2011, a second show cause notice was issued by the Special Officer, who is the Disciplinary Authority, on 14.6.2011, calling upon the CO to submit his reply to the enquiry report. The CO submitted a detailed explanation on 28.6.2011.

The Disciplinary Authority, having considered all aspects of the matter and on the basis of the enquiry report, passed the following order :

"1. The entire loss of Rs.31,122/- is ordered to be recovered from the pay and allowances payable to Thiru N.Balakumaran for making good the pecuniary loss caused by him as detailed below:

i) the recovery shall be at the rate of Rs.5000/- per month commencing from the salary payable from the month of September 2011.

ii) the amount to be recovered in the 6th instalment shall be Rs.6,122/-

iii) During the period of recovery now ordered, the outside Non-Governmental, recovery towards LIC premium at Rs.5,357/- per month is ordered to be kept in abeyance and not effected.

(a) In Special C.C.1/97, the amount of Rs.6,000/- is missing. Out of the amount of Rs.31,122/- recovered from Thiru N. Balakumaran, Rs.6,000/- relating to Special C.C.No. 1/97 is ordered to be deposited in the relevant Head of account as the Hon''ble Special Court vide judgment dated 4.9.2000, has ordered confiscation of the amount. After deposit, a report shall be submitted to the Hon''ble Special Court, Pondicherry, about the recovery and remittance along with original challan.

b) As regards Special C.C.1/2002, the Hon''ble Special Court has passed the following orders in para 26 of the judgment, relating to the said Case property.

It is troublesome and painful to mention that the currency notes allegedly given to the accused by PW1 in the morning of 21.09.1998, which was seized later in the evening from the accused and the trap money, totally amounting to Rs.25,000/- were sent to court. Unfortunately, the said amount among other valuables kept in the court have been mishandled or lost. A detailed enquiry in this matter is being made by the Vigilance Cell of the Hon''ble High Court, Chennai. Therefore, any order for return of the trap money and bribe money totaling to Rs.25,000/- said to be belonging to P.W.2 can be passed only after the enquiry is over.

Therefore, this amount of Rs.25,000/- shall be deposited in 8443 Civil Deposit 105 Criminal Court Deposit, (which head of account is refundable head of account) so as to enable the Hon''ble Special Court, Pondicherry to pass orders as contained in paragraph 26 of the judgment. After deposit, a report shall be submitted to the Hon''ble Special Court, Pondicherry, about the recovery and remittance along with original challan.

c) As regards S.C.48/91, the amount of Rs.122/- is ordered to be deposited in the relevant head of account as the Hon''ble Principal Sessions Court, Pondicherry (MO 28 series as per judgment), vide judgment dated 28.02.1992, ordered confiscation of the amount. After deposit, a report shall be submitted to the Hon''ble Special Court, Pondicherry, about the recovery and remittance along with original challan.

II. Thiru N.Balakrishnan/CO2 is reduced in rank from the post of Senior Clerk to the Post of Junior Clerk until he is found fit by the Competent Authority to be restored to the higher post of Senior Clerk and in consequence thereof, he will lose his seniority and his seniority in the post of Junior Clerk will count from the date of punishment.

Feeling aggrieved, the CO preferred an appeal before the Appellate Authority, i.e., the Chief Judge, Pondicherry on 10.10.2011. The Chief Judge, after having considered all aspects of the matter in detail, passed the detailed reasoned order on 26.12.2011, upholding the punishment imposed by the Disciplinary Authority.

Being aggrieved, the CO has come up with the instant writ petition, questioning the validity of the order dated 30.08.2011 of the Disciplinary Authority, confirmed by the order dated 26.12.2011 of the Appellate Authority and to quash the same and consequently, seeking for a direction to reinstate him as Senior Clerk with all consequential monetary, service, promotion and other benefits, including back wages.

Mr.Bharath Chakravarthy, learned counsel appearing for the CO questions the legality of the impugned orders, mainly on the ground that Rule 14(18) of Rules, 1965, which is mandatory, has been violated and as such, the entire departmental enquiry is vitiated and that the consequential punishment order is liable to be quashed. It is further contended that the Enquiry Officer has held the charges proved based on surmises and presumptions; the Enquiry Officer has failed to appreciate the fact that all witnesses have stated in their depositions and cross-examination that the Sarishtadar was responsible for holding the key and not the CO and as such, the CO cannot be held liable for misplacement of the valuable cash properties and also the loss of currency notes.

Per contra, Mrs. N. Mala, learned counsel for the respondents, would submit that a proper enquiry was held, the CO participated in the enquiry and also cross-examined all the 13 witnesses produced by the prosecution. The contention of the learned counsel for the CO that compliance of Rule 14(18) of the Rules is mandatory is not correct. In the event, the CO participates in the enquiry and cross-examines the witnesses produced by the prosecution, the said provisions become optional and discretionary. The CO was not restrained from examining himself as required under Rule 14(18) of the Rules. It is further contended that after holding a proper enquiry, the Enquiry Officer found all the charges against the CO proved. Thus, there is no scope for interference in the departmental enquiry as well as the punishment imposed thereon.

We have carefully analysed the submissions advanced by the learned counsel on either side. We have also perused the pleadings and documents appended to the writ petition.

Admittedly, the following three charges were framed against P.Mariyappan:

Article 1

That Thiru. P. Mariappan, during his tenure of office from 10.03.1995 to 26.04.2000 as Sarishtadar, District Court, Pondicherry did not maintain the case property registers and his non-maintenance of case property registers amounts to shirking his responsibility and that is viewed as gross mis-conduct and dereliction of his duty.

Article II

That Thiru. P. Mariappan, during his tenure of office from 10.03.1995 to 26.04.2000, as Sarishtadar, District Court, Pondicherry did not attempt to receive the Valuable Case Properties of the Court of Principal Sessions Judge from the safe custody of Senior Clerk Thiru. N. Balakumaran. The non-receipt of Valuable Case properties shows his slackness at work, misconduct and dereliction of duty.

Article III

That Thiru. P. Mariappan, during his tenure of office from 10.03.1995 to 26.04.2000 as Sarishtadar, District Court, Pondicherry did not inform the Presiding Officer of the Court about the non-receipt of case property registers and the valuable case properties of the Court of Principal Sessions Judge, till 26.04.2000. The act of non-information or omission to inform the Presiding Officer amounts to misconduct, on his part and that explains the dereliction of duty.

and the following four charges were framed against the CO:

Article I

That the said Thiru. N. Balakumaran, Charged Official No. 2, now working as Senior Clerk, Copy Section, District Court, Pondicherry during his tenure of office as Senior Clerk at Principal Sessions Court, Pondicherry held the key of the almirah which contained the valuable case properties and during the day-to-day administration of justice mis-handled the valuable case properties concerned in Spl. C.C. No. 1/97, Spl. C.C./2002 and Spl. C.C. No. 48/91 on the file of the PDSJ (Special Court), Pondicherry and S.C. No. 12/94 on the file of ADSJ, Pondicherry that resulted in non-starting of trial in the respective case. This mis-handling of valuable case properties (C.P.) in those cases amounts to dereliction of duty and proves his gross mis-conduct.

Article II:

That Thiru. N. Balakumaran, Charged Official No. 2, during his tenure of Office as Senior Clerk of the Court of Principal Sessions Judge, Pondicherry has mis-handled, mis-placed and lost case property (C.P.) No. 4/97 in Spl. C.C. No. 1/97 on the file of PDSJ (Special Court) Pondicherry. The mis-handling, mis-placing and losing of the case property which contains currency notes worth Rs.6,000/- amounts to dereliction of duty that proves his gross mis-conduct.

Article III

That Thiru. N. Balakumaran, Charged Official No. 2, during his tenure of office as Senor Clerk of the Court of Principal Sessions Judge, Pondicherry has mishandled, misplaced and lost case property (C.P.) No. 1/98 concerned in Spl. C.C. No. 1/2002 on the file of PDSJ (Special Court), Pondicherry. The mishandling, misplacing and losing of the case property which contains currency notes worth Rs.25,000/- amounts to dereliction of duty that proves his gross mis-conduct.

Article IV

That Thiru N. Balakumaran, Charged Official No. 2, during his tenure of Office as Senior Clerk of the Court of Principal Sessions Judge, Pondicherry has mishandled, misplaced and lost case property (C.P.) No. 20/91 concerned in Spl. C.C. No. 48/91 on the file of PDSJ (Special Court), Pondicherry. The mishandling, misplacing and losing of the case property which contains currency notes worth Rs.122/- amounts to dereliction of duty that proves his gross mis-conduct.

The Enquiry Officer, after having examined the records and witnesses produced by the Presenting Officer, who were subjected to cross-examination by the CO, held that all the charges framed against the CO were proved. However, in case of P. Mariappan, it was found that the case property registers were never maintained by him and he was also not handed over the valuable case properties at any point of time, during his tenure as Sarishtadar in the District Court, despite his efforts. The following passages from the report of the Enquiry Officer, are apposite:

x x x x x x x the said missing amount in C.P. 4/97 was missing only during the period of CO2 when he was working as Sessions Bench Clerk in the District Court x x x x x x x

x x x x x x x The witnesses have deposed to this effect and it is quite but natural. What is weird is that in such a situation, how come it was CO2 to find out the lost/valuables? The explanation submitted by CO2 that only on the instructions from his superiors, he took efforts to find out the missing properties and that no adverse inference can be taken on that fades away like a cobweb in thin air. There had been totally 17 items found missing, out of which one item did not tally with the description in the register and the item in C.P. 1/99 namely Rs.62,034/- was found in mysterious circumstances.

x x x x x x x x x Neither the statement by CO1 and deceased Dhandapani under Ex.D.11 nor the evidence of the witnesses concerning this fact nor their statements before the Vigilance Cell of the Hon''ble High Court been denied by CO2 at any point of time. x x x x x x x x x x

Thereafter, an opportunity was afforded to the CO by a second show cause notice dated 14.06.2011, to which, a reply was filed by the CO on 28.06.2011. The CO did not raise the issue of non-compliance of Rule 14(18) of the Rules. The Disciplinary Authority, by order dated 30.08.2011, agreeing with the Enquiry Report, imposed on the CO, the punishment of reduction in rank from the post of Senior Clerk to the post of Junior Clerk, until he is found fit by the Competent Authority to be restored to the higher post of Senior Clerk, besides ordering recovery of a sum of Rs.31,122/- from him.

The CO preferred an appeal and in the appeal also, the CO did not take the plea of non-compliance of the provisions of Rule 14(8) of the Rules. The Appellate Authority affirmed the order passed by the Disciplinary Authority and dismissed the appeal filed by the CO on 08.11.2011. It is only before this Court, that the CO, for the first time, has taken the plea of non-compliance of provisions of Rule 14(18) of the Rules.

Indisputably, the CO has participated in the enquiry and has also cross-examined all the witnesses produced by the other side. The CO has neither examined himself nor has he produced any witness in support of his case. Thus, at this stage, the contention of the CO that compliance of the provisions of Rule 14(18) of the Rules is mandatory and that since he has not examined himself as a witness, the entire proceedings as well as the punishment thereof is vitiated, cannot be countenanced. If the CO has participated in the enquiry and also cross-examined the witnesses produced by the other side, the enquiry cannot be held as vitiated on the ground that he has not examined himself as a witness. The CO was afforded full opportunity to examine himself as a witness and also to produce other witnesses in support of his case. The CO, having failed to make use of the opportunity afforded to him, is estopped from taking advantage of non-compliance of the provisions of Rule 14(18) of the Rules.

The second contention of the CO is that all the witnesses have clearly deposed that he was not holding the key of the almirah which contained the valuable case properties. There is no dispute that the Sarishtadar was in charge of keeping the said key in his custody. However, there is no denial of the fact that the key was handed over to the CO to deal with the case properties and the CO had access to the case properties and other valuable properties, which led to not only loss to the Court, but also, delayed the process of administration of justice. This type of an attitude on the part of the officials in the judiciary has to be taken note of in all seriousness and should not be lightly brushed aside. However, having regard to the fact situation of the family of the CO, the Disciplinary Authority has taken a lenient view by imposing the punishment of reduction in rank from the post of Senior Clerk to the post of Junior Clerk, until he is found fit by the Competent Authority to be restored to the higher post of Senior Clerk, besides ordering recovery of a sum of Rs.31,122/- from him. As such, there is no irregularity or error in the orders sought to be impugned in this writ petition.

It is also pertinent to point out, at this juncture, that it is a trite law that the scope of judicial review in disciplinary proceedings is very limited, except in cases where, the enquiry finding is based on no evidence or it is patently illegal, there is manifest error or procedural impropriety or exercise of mala fides or if perversity is writ large. The Court should not be guided by mis-placed sympathy on other factors. [See S.R. Tewari Vs. Union of India (UOI) and Another, and Deputy Commissioner, KVS and Others Vs. J. Hussain, .

As a sequel, for the reasons stated hereinabove, the writ petition is dismissed. No costs.