REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

    CIVIL APPEAL NOS. 11345-11346 OF 2018    (Arising out of SLP(C) Nos. 675-676 of 2017)

STATE OF TAMIL NADU & ANR.  Appellant(s)

                               VERSUS

   M. MANGAYARKARASI AND ETC.         Respondent(s)

JUDGMENT

Dr. Dhananjaya Y. Chandrachud, J.

Leave granted.

These appeals arise from a judgment of the Division Bench of the

High  Court  of  Judicature  at  Madras  dated  6.2.2015  by  which  writ

appeals filed by the State of Tamil Nadu against the judgment of a

learned Single Judge were dismissed.  

The learned Single Judge, while disposing of the writ petitions

filed by two employees of the State, interfered with the punishment

of  removal  from  service  on  the  ground  that  it  was  shockingly

disproportionate. The Single Judge substituted it by directing the

stoppage of increments for a period of two years without cumulative

effect.

The two employees, M. Mangayarkarasi and M. Jayalakshmi, were

working as Superintendent and Accountant respectively in the District

Treasury at Salem. The charges against them were of having admitted

and sanctioned bills of the office of the Assistant Commissioner of

Commercial Taxes without proper verification, in accordance with the

departmental procedures.

The case of the State is that during the period 1997-2000, a

fraud involving misappropriation of a sum of Rs. 1.22 crores by the

staff in the District Treasury Office, Salem came to light  involving

the presentation of 257 bogus bills in the Treasury.   Following the

submission  of  a  Special  Audit  Report,  a  charge  memo  was  issued

against eleven members of the Treasury staff.   Charges were framed

in the course of the disciplinary proceedings.   On the charges

having been found to be established, the State Government issued an

order of removal from service.

The orders of removal were challenged before the learned Single

Judge.

The learned Single Judge interfered with the punishment on the

ground that other employees against whom disciplinary proceedings had

been  initiated  on  similar  charges  had  been  subjected  to  a

comparatively a lenient punishment of stoppage of increments.

The State Government, however, sought to justify the punishment

on the ground that the quantum of loss caused due to the production

of bogus bills in the case of the two employees was substantially

higher. The learned Single Judge rejected this submission on the

ground that the court would have to consider only the nature of the

charge and not the quantum involved.

The Division Bench affirmed the judgment of the learned Single

Judge, while dismissing the writ appeals filed by the State of Tamil

Nadu.  The Division Bench observed that it was conscious of the fact

that  in  cases  involving  disciplinary  proceedings,  cases  of  two

employees cannot as such be compared.  However, it was of the view

that since the charges against all the employees were identical and

the employees were in the same cadre of ministerial service, the view

of the learned Single Judge in applying parity of treatment could not

be  faulted.  Moreover it was held that the violations were of a

procedural nature.

On behalf of the appellants, it has been submitted that there is

a clear distinction between the case of the two employees in question

and others who were awarded minor punishments involving the stoppage

of increments. This distinction is sought to be brought out from the

following chart which is annexed to the present proceedings;

Sl. No. Name of the Delinquent No. of Bills Amount  misappropriated

1. J. Nirmaladevi 6 Rs. 2,56,918/-

2. P. Vardharajan 12 Rs. 4,59,527/-

3. R. Anandan 8 Rs. 2,59,576/-

4. R. Raghavan 19 Rs. 6,01,418/-

5. M. Mangayarkarasi 90 Rs. 45,28,003/- 6. M. Jayalakshmi 105 Rs. 51,98,403/-

It was urged that the two employees in the present case were

involved  in  the  verification  of  90  and  105  bills  respectively

involving misappropriation of an amount of Rs. 45.28 lakhs and 51.98

lakhs respectively.  Having regard to the gravity of the misconduct

and the amount involved, it was urged on behalf of the appellants

that the distinction which was made by the disciplinary authority

could not be faulted.

On  the  other  hand,  it  has  been  urged  on  behalf  of  the

respondents that the High Court has taken a compassionate view of the

matter having regard to the fact that the employees have, in the

meantime, retired from service.   Moreover, it was sought to be urged

that the lapses were procedural and no financial benefit had accrued

to the employees. Learned counsel for the respondents also submitted

that there is no case of misappropriation against the two employees

involved in the present appeals.

There are several reasons, in our view, why the approach of the

High Court in the present case cannot be accepted.

First, in seeking to apply the principle of parity of treatment,

the High Court has manifestly failed to notice that the gravity of

misconduct which was established against the appellants was distinct

from and of a more serious nature than what was found against the

other employees.  This ex-facie emerges from a perusal of the chart

which  has  been  extracted  above.   The  nature  and  extent  of  a

dereliction  of  duty  and  the  consequences  of  the  dereliction  are

significant matters which can legitimately be borne in mind by the

disciplinary authority.

Second, while noticing that such a submission was in fact made

before the learned Single Judge, the Division Bench proceeded to

apply the yardstick of parity. Parity could not be applied for the

simple reason that there is a material distinction in the case of the

misconduct alleged against the appellants as compared to the other

employees.  While the language of the charge may be similar in other

cases that does not detract from the fact that the amount involved

and  the  extent  of  the  lack  of  verification  in  the  case  of  the

respondents is of a much higher order. The Division Bench having

noticed that in a matter of this nature,  the principle of parity

cannot be attracted, nonetheless affirmed the view of the learned

Single Judge.  This is evidently erroneous.

Third, the approach of both the learned Single Judge and the

Division Bench cannot be accepted having due regard to the parameters

of judicial review in disciplinary matters. The learned Single Judge

substituted  the  penalty  which  was  imposed  by  the  disciplinary

authority, for a penalty which appeared to the Court to be just and

proper.  The imposition of a penalty in disciplinary proceeding lies

in the sole domain of the employer.  Unless the penalty is found to

be shockingly disproportionate to the charges which are proved, the

element of discretion which is attributed to the employer cannot be

interfered with.

In this view of the matter, we are of the view that there is

merit  in  the  present  appeals.  However,  since  the  High  Court  had

interfered only on the ground of parity of treatment, it would be

appropriate to remand the proceedings back for fresh consideration on

the other grounds of challenge to the findings in and outcome of the

disciplinary proceedings.

To  enable  this  process  to  be  undertaken,  we  set  aside  the

impugned judgment of the High Court dated 6.2.2015. The writ appeals

shall stand restored to the file of the High Court for disposal

afresh upon hearing the parties.

Since the employees have retired from service in the meantime,

we  request  the  High  Court  to  expedite  the  disposal  of  the  writ

appeals and endeavor an expeditious disposal within six months from

the date on which a certified copy of this order is placed on the

record of the High Court.  

We clarify that while we have disapproved of the view of the

High Court on the question of parity, all other contentions of the

parties are kept open to be adjudicated upon by the High Court.

The appeals are, accordingly, disposed of. No costs.

……………….…...…................J.                                   (DR. DHANANJAYA Y. CHANDRACHUD)

……..…………....…................J.              (M.R. SHAH)  NEW DELHI,  November 26, 2018