UNION OF INDIA AND OTHERSversusM. DURAISAMY

                          [2022] 3 S.C.R. 51                             51


                  UNION OF INDIA AND OTHERS                              A
                                   v.
                           M. DURAISAMY
                    (Civil Appeal No. 2665 of 2022)
                            APRIL 19, 2022
                                                                         B
         [M. R. SHAH AND B. V. NAGARATHNA, JJ.]
       Service Law – Misconduct – Fraud – Defrauding public
money – Limited jurisdiction of the Court on proportionality of the
order of departmental authority – Respondent was a public servant
in Post office – He committed fraud by way of fraudulent withdrawal
/ non-credit of deposits in RD accounts – Punishment of ‘removal’        C
from service imposed by the Disciplinary Authority – Tribunal
interfered with the punishment so imposed by modifying / substituting
the same from ‘removal’ to ‘compulsory retirement’ – Order passed
by Tribunal confirmed by the High Court – Neither the Tribunal
nor the High Court found any irregularity or procedural lapses in        D
conducting departmental enquiry – On appeal, held: Once, a
conscious decision was taken by the Disciplinary Authority to remove
an employee on the proved misconduct of a very serious nature of
defrauding public money, neither the Tribunal nor the High Court
should have interfered with the order of punishment imposed by the
Disciplinary Authority, which was after considering the gravity and      E
seriousness of the misconduct – Merely because respondent had
worked for 39 years and in those years, there was no punishment
imposed and/or that he voluntarily deposited the defrauded amount
along with penal interest and therefore there was no loss to the
Government/Department cannot be a ground to interfere with the           F
order of punishment imposed by the Disciplinary Authority and
substitute the same from removal to that of compulsory retirement –
Being a public servant in the post office, respondent was holding
the post of trust – By such misconduct /act on the part of respondent,
the reputation of the Postal department had been tarnished – Order
of Disciplinary Authority imposing punishment of ‘removal’ of            G
respondent from service, accordingly, restored – Judicial Review.
       Allowing the appeal, the Court
       HELD:1. In the case on hand, the order passed by the
Tribunal, confirmed by the Division Bench of the High Court,
                                                                         H
                                 51
52           SUPREME COURT REPORTS                     [2022] 3 S.C.R.


A    substituting the punishment of removal to that of compulsory
     retirement is unsustainable. Neither the Tribunal nor the High
     Court have found any irregularity in conducting the departmental
     enquiry. No procedural lapses have been found. In fact, the
     respondent employee admitted the charge of having defrauded
     Rs.16,59,065/- and on detecting the fraud, he deposited the
B
     defrauded amount of Rs.16,59,065/- along with penal interest.
     But for the detection of the fraud, probably, the respondent
     employee would not have deposited the defrauded amount. Once,
     a conscious decision was taken by the Disciplinary Authority to
     remove an employee on the proved misconduct of a very serious
C    nature of defrauding public money, neither the Tribunal nor the
     High Court should have interfered with the order of punishment
     imposed by the Disciplinary Authority, which was after considering
     the gravity and seriousness of the misconduct. [Para 8][59-B-E]
           2. Merely because the respondent-employee had worked
D    for 39 years and in those years, there was no punishment imposed
     and/or that he voluntarily deposited the defrauded amount along
     with penal interest and therefore there was no loss to the
     Government/Department cannot be a ground to interfere with
     the order of punishment imposed by the Disciplinary Authority
     and substitute the same from removal to that of compulsory
E    retirement. Neither the Tribunal nor the High Court have, in
     fact, considered the nature and gravity of the misconduct
     committed by the delinquent officer. [Para 9][59-E-G]
           3. Once it was found that the delinquent officer who was
     serving in the post office had defrauded to the extent of
F    Rs.16,59,065/- and that too, by way of fraudulent withdrawal in as
     many as 85 RD accounts and by way of non-credit of deposits in
     71 RD accounts, no sympathy on such an employee was warranted.
     Being a public servant in the post office, the delinquent officer
     was holding the post of trust. Merely because subsequently the
G    employee had deposited the defrauded amount and therefore
     there was no loss caused to the department cannot be a ground
     to take a lenient view and/or to show undue sympathy in favour
     of such an employee. What about the loss caused to the
     department by way of goodwill, name and fame of the department

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     UNION OF INDIA AND OTHERS v. M. DURAISAMY                      53


and its reliability amongst the public? By such a misconduct/act    A
on the part of the delinquent officer, the reputation of the
department had been tarnished. Therefore, in the facts and
circumstances of the case, both, the Tribunal as well as the High
Court have exceeded in their jurisdiction in interfering with the
quantum of punishment imposed by the Disciplinary Authority
                                                                    B
and to substitute the same to that of compulsory retirement.
Consequently, the order passed by the Disciplinary Authority
imposing the punishment of removing the delinquent employee
from service is hereby restored. [Paras 10, 12][59-H; 60-A-C;
60-G]
     Chairman & Managing Director, V.S.P. & Others v.               C
     Goparaju Sri Prabhakara Hari Babu, (2008) 5 SCC
     569 : [2008] 3 SCR 1184, and B.C. Chaturvedi v. Union
     of India, (1995) 6 SCC 749 : [1995] 4 Suppl. SCR 644
     – relied on.
     Maruti Udyog Ltd. v. Ram Lal, (2005) 2 SCC 638                 D
     : [2005] 1 SCR 790; State of Bihar v. Amrendra Kumar
     Mishra, (2006) 12 SCC 561 : [2006] 6 Suppl. SCR 650;
     Regional Manager, SBI v. Mahatma Mishra,(2006) 13
     SCC 727 : [2006] 8 Suppl. SCR 216; State of
     Karnataka v. Ameerbi, (2007) 11 SCC 681 : [2006]               E
     10 Suppl. SCR 329; State of M.P. v. Sanjay Kumar
     Pathak, (2008) 1 SCC 456 : [2007] 10 SCR 951; and
     Uttar Haryana Bijli Vitran Nigam Ltd. v. Surji Devi,
     (2008) 2 SCC 310 : [2008] 1 SCR 1042 – referred to.
                     Case Law Reference                             F
[1995] 4 Suppl. SCR 644       relied on               Para 3.3
[2008] 3 SCR 1184             relied on               Para 3.3
[2005] 1 SCR 790              referred to             Para 3.3
[2006] 6 Suppl. SCR 650       referred to             Para 3.3      G
[2006] 8 Suppl. SCR 216       referred to             Para 3.3
[2006] 10 Suppl. SCR 329      referred to             Para 3.3
[2007] 10 SCR 951             referred to             Para 3.3
[2008] 1 SCR 1042             referred to             Para 3.3      H
54              SUPREME COURT REPORTS                         [2022] 3 S.C.R.


A          CIVIL APPELLATE JURISDICTION : Civil Appeal No.2665
     of 2022.
           From the Judgment and Order dated 30.08.2016 of the High Court
     of Judicature at Madras in W.P. No.33303 of 2013.
           Balbir Singh, ASG, Gurmeet Singh Makker, Shyam Gopal, Siddhanth
B    Kohli, Ms. Suhasini Sen, R. Bala, Grish Chaudhary, Advs. for the
     Appellants.
              G. Sivabalamurugan, Adv. for the Respondent.
              The Judgment of the Court was delivered by

C             M. R. SHAH, J.
           1. Feeling aggrieved and dissatisfied with the impugned judgment
     and order dated 30.08.2016 passed by the High Court of Judicature at
     Madras in Writ Petition No. 33303/2013, by which the High Court has
     dismissed the said writ petition preferred by the appellants herein – Union
     of India and others and has confirmed the order passed by the Central
D    Administrative Tribunal, Madras Bench (hereinafter referred to as the
     ‘Tribunal’) in Original Application (OA) No. 357 of 2012 by which the
     Tribunal allowed the said OA and modified the punishment from dismissal/
     removal from service to compulsory retirement, the Union of India and
     others have preferred the present appeal.
E             2. The facts leading to the present appeal in a nutshell are as
     under:
            That the respondent herein was serving as a Postal Assistant.
     While he was working as SPM Veppur SO during the period from 2004
     to 2007, he committed fraud by way of fraudulent withdrawal in 85 RD
F    accounts and by way of non-credit of deposits in 71 RD accounts and
     defrauded a sum of Rs.16,59,065/-. The fraud came to light when enquiries
     were made based on the report of Postmaster, Srirangam vide letter
     dated 11.06.2007 about double payment of RD closure in respect of
     some RD accounts which revealed that the accounts were fraudulently
     closed by the respondent herein for the second time by way of forging
G
     the signatures of the depositors and a sum of Rs.52,395/- had been
     withdrawn from the said accounts by the respondent fraudulently. Further
     investigation brought to light the frauds committed by the respondent
     herein. Thereafter having come to know that the fraud has been detected,
     the respondent herein deposited a total sum of Rs.18,09,041/- (the amount
H    of fraud Rs. 16,66,439/- + penal interest of Rs.1,42,602/-).
      UNION OF INDIA AND OTHERS v. M. DURAISAMY                              55
                     [M. R. SHAH, J.]

       2.1 A departmental enquiry was initiated against the respondent       A
vide office memorandum dated 26.07.2010. Six charges were framed
against the respondent. The respondent admitted the fraud in his defence
representation. An Inquiry Officer was appointed. The Inquiry Officer
held all the charges proved against the respondent – delinquent, as the
delinquent officer himself admitted all the charges in the preliminary
                                                                             B
sitting itself. The Inquiry Officer’s report was forwarded to the charged
official. The charged official submitted his representation on the Inquiry
Officer’s report. Thereafter the Disciplinary Authority imposed the
penalty of ‘removal’ from service vide memo dated 19.01.2011, having
found that the offence committed by the charged official – respondent
herein was grave in nature and retention of such person in the department    C
would further hamper the services rendered to the public. The
departmental appeal against the order of removal from service came to
be dismissed.
       2.2 The respondent – charged official challenged the order of
‘removal’ before the Tribunal. Vide order dated 26.03.2012, the Tribunal     D
partly allowed the said original application and modified the order of
punishment from ‘removal’ from service to that of compulsory retirement
on sympathetic ground by observing that as such the delinquent officer
himself deposited the entire amount involved and therefore no loss has
been caused to the department. The Tribunal also noted that the delinquent
officer had completed nearly 39 years of service and has not suffered        E
any other punishment other than the present one. By observing so, the
Tribunal interfered with the order of punishment imposed by the
Disciplinary Authority and modified the same to that of compulsory
retirement.
       2.3 Feeling aggrieved and dissatisfied with the order passed by       F
the Tribunal modifying the order of punishment from removal to that of
compulsory retirement, the department preferred a writ petition before
the High Court. By the impugned judgment and order, the High Court
has dismissed the said writ petition. Hence, the department has preferred
the present appeal before this Court.                                        G
       3. Shri Balbir Singh, learned Additional Solicitor General of India
has vehemently submitted that in the facts and circumstances of the
case, the Tribunal as well as the High Court have committed a grave
error in interfering with the order of punishment imposed by the
Disciplinary Authority.                                                      H
56            SUPREME COURT REPORTS                           [2022] 3 S.C.R.


A           3.1 It is contended by Shri Balbir Singh, learned ASG that both,
     the Tribunal as well as the High Court have shown undue sympathy to
     the delinquent officer who committed the fraud and defrauded the huge
     sum of Rs.16,59,065/- belonging to the RD account holders.
            3.2 That the delinquent officer admitted the charges and the
B    misconduct and he deposited the entire amount along with penal interest
     only after the detection of the fraud committed by him. It is submitted
     that looking to the serious proved misconduct and when the respondent
     was holding a public office of confidence in the Postal Department and
     thereafter when a conscious decision was taken by the Disciplinary
     Authority to remove him from service, the same ought not to have
C    interfered with by the Tribunal as well as the High Court. It is urged that
     merely because the delinquent officer worked for 39 years and the present
     one was the first misconduct and that the entire amount was deposited
     (after the fraud was detected)cannot be grounds to interfere with the
     conscious decision taken by the Disciplinary Authority to remove the
D    delinquent officer from service.
            3.3 Making the above submissions and relying upon the decisions
     of this Court in the cases of B.C. Chaturvedi v. Union of India, reported
     in (1995) 6 SCC 749 (paragraph 19); Chairman & Managing
     Director, V.S.P. & Others v. Goparaju Sri Prabhakara Hari Babu,
E    reported in (2008) 5 SCC 569, as well as the other decisions of this
     Court in the cases of Maruti Udyog Ltd. v. Ram Lal, reported in
     (2005) 2 SCC 638; State of Bihar v. Amrendra Kumar Mishra,
     reported in (2006) 12 SCC 561; Regional Manager, SBI v. Mahatma
     Mishra, reported in (2006) 13 SCC 727; State of Karnataka v.
     Ameerbi, reported in (2007) 11 SCC 681; State of M.P. v. Sanjay
F    Kumar Pathak, reported in (2008) 1 SCC 456; and Uttar Haryana
     Bijli Vitran Nigam Ltd. v. Surji Devi, reported in (2008) 2 SCC 310,
     it is vehemently submitted that as held by this Court in the aforesaid
     decisions, the High Court cannot set aside a well-reasoned order passed
     by the Disciplinary Authority only on sympathy or sentiments. It is
G    submitted that in the aforesaid decisions, it is observed and held that
     once it is found that all the procedural requirements had been complied
     with, the Courts would not ordinarily interfere with the quantum of
     punishment imposed upon a delinquent employee.
           4. The present appeal is vehemently opposed by the learned counsel
H    appearing on behalf of the respondent – delinquent officer.
      UNION OF INDIA AND OTHERS v. M. DURAISAMY                                  57
                     [M. R. SHAH, J.]

        4.1 It is strenuously contended by the learned counsel appearing         A
on behalf of the respondent that when the Tribunal, considering the facts
and circumstances of the case, interfered with the order of punishment
imposed by the Disciplinary Authority, the High Court was absolutely
justified in not interfering with the same. It is submitted that, as such, the
Tribunal assigned cogent reasons while modifying the punishment from
                                                                                 B
removal to that of compulsory retirement. The same is rightly not
interfered with by the High Court. It is urged that the same may not be
interfered with by this Court, in exercise of powers under Article 136 of
the Constitution of India.
       4.2 It is also submitted that even otherwise on merits also, once
the delinquent officer voluntarily deposited the entire amount along with        C
interest even before the departmental enquiry was initiated and thereby
no loss has been caused to the department and considering the fact that
the delinquent officer had a long service career of 39 years and during
the entire career, there was no punishment imposed and now by the
order of compulsory retirement, he will get the retiral/pensionary benefits,     D
which otherwise he would not be able to get in view of the order of
removal from service, it is prayed not to interfere with the impugned
judgment and order passed by the High Court as well as of the Tribunal.
       5. We have heard the learned counsel for the respective parties
at length.                                                                       E
       The respondent herein, who at the relevant time was serving as
Postal Assistant was subjected to a departmental enquiry for defrauding
a sum of Rs.16,59,065/-. That during the period from 2004 to 2007, he
committed fraud by way of fraudulent withdrawal in 85 RD accounts
and by way of non-credit of deposits in 71 RD accounts and thus                  F
defrauded a sum of Rs. 16,59,065/-. Only after the fraud came to light,
the respondent – delinquent officer deposited the entire defrauded amount
with interest. However, as the misconduct was very serious, the
department initiated departmental enquiry for having failed to maintain
absolute integrity and devotion to duty as required of him by Rule 3(1)(i)
and 3(1)(ii) of CCS (Conduct) Rules, 1964. The respondent – delinquent           G
officer admitted the charge. The Inquiry Officer submitted the report
and held all the charges proved. That thereafter, the Disciplinary Authority
concurred with the findings recorded by the Inquiry Officer and
considering the seriousness of the misconduct committed, passed an
order of removal. The Tribunal interfered with the quantum of punishment         H
58             SUPREME COURT REPORTS                            [2022] 3 S.C.R.


A    of removal imposed by the Disciplinary Authority and substituted the
     same to that of compulsory retirement, mainly on the ground and reasoning
     that the delinquent officer had completed 39 years of unblemished service
     and the entire amount of fraud with interest has been paid and recovered
     from him and thus there is no financial loss caused to the department.
     The order passed by the Tribunal has been confirmed by the High Court,
B
     by the impugned judgment and order.
            6. Therefore, the short question which is posed for the
     consideration of this Court is, whether, in the facts and circumstances of
     the case, the Tribunal and the High Court were justified in interfering
     with the punishment imposed by the Disciplinary Authority and modifying/
C    substituting the same from removal to that of compulsory retirement.
            7. While answering the aforesaid question/issue, the decision of
     this Court in the case of Goparaju Sri Prabhakara Hari Babu (supra),
     on the judicial review and the limited jurisdiction of the High Court on
     the proportionality of the order of departmental authority is required to
D    be referred to.
            In the said decision, after referring toa catena of judgments of
     this Court, it is observed and held by this Court that the jurisdiction of the
     High Court on the proportionality of the order of departmental authority
     is limited. It is observed that it cannot set aside a well-reasoned order
E    only on grounds of sympathy and sentiments. It is further observed and
     held that once it is found that all the procedural requirements had been
     complied with, courts would not ordinarily interfere with the quantum of
     punishment imposed upon a delinquent employee. It is further observed
     that the superior courts, only in some cases may invoke the doctrine of
F    proportionality, however if the decision of an employer is found to be
     within the legal parameters, the doctrine would ordinarily not be invoked
     when the misconduct stands proved.
             7.1 In the case of B.C. Chaturvedi (supra), the High Court
     interfered with the order of punishment imposed by the Disciplinary
G    Authority and substituted the punishment of dismissal from service to
     one of compulsory retirement on the reasoning that the employee had
     put in 30 years of service and that he had a brilliant academic record and
     that he had earned promotion after the disciplinary proceedings were
     initiated. Setting aside the judgment and order passed by the High Court,
     this Court observed that the reasoning is wholly unsupportable. Such
H
     UNION OF INDIA AND OTHERS v. M. DURAISAMY                              59
                    [M. R. SHAH, J.]

reasons are not relevant or germane to modify the punishment. What is       A
required to be considered is the gravity of the misconduct. In the said
case, the employee was found to be in possession of assets
disproportionate to the known sources of his income. Therefore, this
Court observed and held that the interference with the imposition of
punishment was wholly unwarranted.
                                                                            B
       8. Applying the law laid down by this Court in the aforesaid
decisions to the facts of the case on hand, the order passed by the
Tribunal, confirmed by the Division Bench of the High Court, substituting
the punishment of removal to that of compulsory retirement is
unsustainable. Neither the Tribunal nor the High Court have found any
irregularity in conducting the departmental enquiry. No procedural lapses   C
have been found. In fact, the respondent employee admitted the charge
of having defrauded Rs.16,59,065/- and on detecting the fraud, he
deposited the defrauded amount of Rs.16,59,065/- along with penal
interest. But for the detection of the fraud, probably, the respondent
employee would not have deposited the defrauded amount. Once, a             D
conscious decision was taken by the Disciplinary Authority to remove
an employee on the proved misconduct of a very serious nature of
defrauding public money, neither the Tribunal nor the High Court should
have interfered with the order of punishment imposed by the Disciplinary
Authority, which was after considering the gravity and seriousness of
the misconduct.                                                             E

       9. Merely because the respondent-employee had worked for 39
years and in those years, there was no punishment imposed and/or that
he voluntarily deposited the defrauded amount along with penal interest
and therefore there was no loss to the Government/Department cannot
be a ground to interfere with the order of punishment imposed by the        F
Disciplinary Authority and substitute the same from removal to that of
compulsory retirement. Neither the Tribunal nor the High Court have, in
fact, considered the nature and gravity of the misconduct committed by
the delinquent officer. Therefore, both, the Tribunal as well as the High
Court had exceeded in their jurisdiction in interfering with the quantum    G
of punishment imposed by the Disciplinary Authority.
      10. None of the grounds/reasoning on which the order of
punishment of removal has been interfered with by the Tribunal and
affirmed by the High Court are germane and can be sustained. Once it
was found that the delinquent officer who was serving in the post office    H
60             SUPREME COURT REPORTS                          [2022] 3 S.C.R.


A    had defrauded to the extent of Rs.16,59,065/- and that too, by way of
     fraudulent withdrawal in as many as 85 RD accounts and by way of
     non-credit of deposits in 71 RD accounts, no sympathy on such an
     employee was warranted. Being a public servant in the post office, the
     delinquent officer was holding the post of trust. Merely because
     subsequently the employee had deposited the defrauded amount and
B
     therefore there was no loss caused to the department cannot be a ground
     to take a lenient view and/or to show undue sympathy in favour of such
     an employee. What about the loss caused to the department by way of
     goodwill, name and fame of the department and its reliability amongst
     the public? By such a misconduct/act on the part of the delinquent officer,
C    the reputation of the department had been tarnished. Therefore, in the
     facts and circumstances of the case, both, the Tribunal as well as the
     High Court have exceeded in their jurisdiction in interfering with the
     quantum of punishment imposed by the Disciplinary Authority and to
     substitute the same to that of compulsory retirement.
D          11. In view of the above and for the reasons stated above, the
     impugned judgment and order passed by the High Court as well as the
     order passed by the Tribunal substituting the order of punishment from
     removal to that of compulsory retirement cannot be sustained and the
     same deserve to be quashed and set aside.
E           12. Accordingly, the present appeal is allowed. The impugned
     judgment and order passed by the High Court dated 30.08.2016 passed
     in Writ Petition No. 33303 of 2013 dismissing the same and confirming
     the judgment and order passed by the Tribunal dated 26.03.2013 in O.A.
     No. 357 of 2012 is hereby quashed and set aside. Consequently, order
     dated 26.03.2013 passed by the Central Administrative Tribunal, Madras
F    Bench in O.A. No. 357/2012, by which the Tribunal substituted the
     punishment of removal to that of compulsory retirement is hereby quashed
     and set aside. Consequently, O.A. No. 357/2012, preferred by the
     delinquent officer, stands dismissed and the order passed by the
     Disciplinary Authority imposing the punishment of removing the delinquent
G    employee from service is hereby restored. However, in the facts and
     circumstances of the case, there shall be no order as to costs.

     Bibhuti Bhushan Bose                                         Appeal allowed.



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