Full Text
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.7220 OF 2006
Rajesh Ashok Mankar
Aged 38 years, presently working as Office Assistant, in the
Company Hqrs. Office at Belapur in the Konkan
Railway Corporation Ltd.
CBD, Belapur, Navi Mumbai – 400 614. ....Petitioner
Belapur Bhavan, Sector 11, CBD Belapur, Navi Mumbai 400 614.
2 Chief Manager
(Information Technology)
Konkan Railway Corporation Ltd., Belapur Bhavan, Sector 11, CBD, Belapur, Navi Mumbai 400 614.
3 Regional Railway Manager, Manager, Ratnagiri Division, Railway Complex, MIDC Mirzole, Ratnagiri 415 639. ....Respondents
…
Mr. Ramesh Ramamurthy a/w Mr. Saikumar Ramamurthy, Ms. Kavita
Anchan, Ms. Seema Sorte and Mr. Kartik Pillai for the Petitioner.
Ms. Shristi Shetty i/b M/s. M.V. Kini & Co. for Respondents.
… katkam 1/23
JUDGMENT
2 Brief factual background of the case is as under: Petitioner was appointed in the Konkan Railway Corporation Limited (KRCL) on the post of Computer Operator initially for a period of six months on daily salary of Rs.40/-. By order dated 15 July 1992 his services were converted to consolidated salary in the pay scale of Rs.1400- 2300 (5000-8000). Petitioner was later brought on to the regular scale of pay by order dated 23 November 1992. He was later subjected to a written test and interview and empaneled for regular absorption in Computer category vide office order dated 15 February 1996. This is how Petitioner came to be regularized in service.
3 Petitioner came to be transferred and posted as Computer Operator in the office of Regional Accounts Officer, Ratnagiri Division. katkam 2/23 While being posted at Ratnagiri, till the month of July 1997 he was drawing basic pay of Rs.1600/-. There was sudden increase in his pay by two increments in the month of August 1997 raising his basic pay to Rs.1700/-. Petitioner claims that he brought the factum of his wrong pay fixation to the notice of the concerned officials vide representations dated 28 October 1997, 20 November 1997, 5 February 1998 and 19 March
1998. In those letters Petitioner, requested for recovery of excess payment from his salary.
4 It appears that the error in pay fixation was noticed in the internal audit and on 25 March 1998, Petitioner was issued a communication calling for his explanation about sudden rise in his basic pay in August 1997 from Rs.1600-/- to 1700/-. It was alleged that Petitioner was personally handling the work of pay sheet at Ratnagiri including the feeding of the relevant data. Petitioner gave his explanation by letter dated 4 April 1998 and sought to blame the software program for occurrence of the technical error. He once again requested for recovery of excess payment by his letter dated 15 May 1998.
5 Disciplinary proceedings were initiated against Petitioner vide Memorandum dated 21 April 1998 alleging that while personally handling the work of pay-sheet of Ratnagiri including feeding of data directly at his level, he gave two undue increments to himself in the katkam 3/23 month of August 1997 raising his basic pay to Rs.1700/-. It was alleged that Petitioner’s act resulted in undue and intentional benefit to him. It was also alleged that he failed to bring the error in pay to the notice of higher authorities immediately. Petitioner denied the charges and took a defence that he had voluntarily brought the factum of wrong pay fixation to the notice of higher officials and therefore did not have any intention of drawing any undue benefits. Enquiry Officer was appointed to conduct disciplinary enquiry. Petitioner requested for change of Enquiry Officer by seeking appointment of his Controlling Officer, which request was turned down by the Respondents by communication dated 22 May
1998. The Enquiry Officer conducted enquiry and submitted report without recording any definite finding about proof or otherwise of charges. However the findings recorded by the Enquiry Officer do indicate that Enquiry Officer was inclined to hold Petitioner guilty of misconduct. Report of the Enquiry Officer was served on Petitioner vide letter dated 21 September 1998. Petitioner submitted his response on 3 October 1999.
6. The Disciplinary Authority thereafter passed order dated 1 November 1999 imposing the penalty of removal from service. Petitioner preferred appeal before the Appellate Authority. After granting personal hearing, the Appellate Authority was pleased to reject the appeal by order dated 26 July 2000 confirming the order of removal from the service. katkam 4/23 Petitioner preferred further appeal to the Managing Director of KRCL on 6 September 2000. By another letter dated 18 October 2000, he requested for reinstatement stating that if the KRCL was of the opinion that any mistake was committed by him, Petitioner regretted the same. Petitioner’s letter dated 18 October 2000 was considered as a mercy appeal. The Managing Director, KRCL passed order dated 28 October 2000 and offered a fresh appointment to Petitioner as Office Assistant in the grade of Rs.4500-7000 fixing his pay at minimum of the grade from the date of joining. Petitioner accordingly joined duties on 20 October
2000.
7. Petitioner however continued his efforts for reinstatement on original post by addressing several communications. By letter dated 12 December 2003 Respondent-KRCL rejected request for restoration of the original grade. Petitioner thereafter filed Writ Petition No.1811 of 2005 in this Court, in which he sought to rely upon documents in support of his contention that there were 15 other persons in respect of whom, similar mistake in pay fixation had occurred at the relevant time. This Court accordingly disposed of Writ Petition No.1811 of 2005 by its order dated 31 December 2005 by setting aside the order dated 20 October 2000 and remanded the matter to the Appellate Authority for reconsideration of the case. katkam 5/23
8. It appears that the Appellate Authority heard the appeal afresh by conducting a hearing on 13 March 2006 and thereafter passed order dated 11 April 2006 imposing the penalty of reduction to lowest scale and grade in Group-C with cumulative effect and posting Petitioner in a non-technical and non-money sensitive job. Petitioner contends that the penalty so imposed by order dated 11 April 2006 effectively reduced him by three grades. That he was appointed in the Grade of Rs.5000-8000 and was functioning as Senior Computer Operator in the Grade of Rs.5500-9000 at the time of service of chargesheet. That as a result of penalty order dated 11 April 2006, he was brought down to the Grade of Rs.4500-7000 posting him as Office Assistant. Petitioner is aggrieved by the order dated 11 April 2006 and has filed the present Petition.
9. Mr. Ramamurty, the learned Counsel appearing for Petitioner would submit that Petitioner was not at all responsible for the error in pay fixation which had occurred on account of a technical glitch. That Petitioner had voluntarily brought the factum of sudden increase in pay to the notice of Respondents by numerous communications before issuance of the chargesheet. That if the Petitioner had any ill-intention, he would not have requested for recovery of excess payment. He would further submit that Petitioner functioned merely as a Computer Operator and did not perform functions of an Accountant or an Accounting Officer, who alone could sanction higher amount of pay. That as katkam 6/23 Computer Operator, it was impossible for the Petitioner to effect any manipulation in the system for the purpose of grant of any additional benefit to himself.
10. Mr. Ramamurthy would further submit that various letters written by Petitioner for recovery of excess pay were erroneously ignored while holding him guilty in the disciplinary proceeding. That Petitioner successfully proved before the Appellate Authority that similar error had occurred in case of 15 other employees in Ratnagiri for the month of August 1997, which would buttress his contention that the error was on account of a technical glitch. That despite accepting the factum of similar error in case of 15 employees, the Appellate Authority still proceeded to impose harsh penalty of reduction to the lowest grade in Group-C..
11. He would further contend that the penalty imposed on Petitioner is otherwise impermissible in law as he is reduced to a level lower than the one at which he was initially appointed. That penalty imposed is so harsh that it not only has the effect of wiping out Petitioner’s entire service since the year 1991, but also brought him down by three stages. He would therefore urge before us that the penalty order be set aside by restoring Petitioner’s original position with all consequential benefits.
12. Per contra, Ms. Shristi Shetty, the learned counsel appearing for the Respondents would vehemently oppose the Petition. She would raise katkam 7/23 preliminary objections of delay in filing the Petition as well as availability of alternate remedy of approaching Labour/Industrial Court. She would further submit that various letters attached by Petitioner to the Petition do not bare any acknowledgments and that the same were not received by KRCL. That Petitioner was fully responsible for effecting manipulations in the software program for increasing his basic pay. That he had never brought the factum of erroneous pay fixation to notice of the Railway Administration before detection of the error in the audit. That Petitioner was independently handling pay rolls of employees in Ratnagiri Division and had full access the relevant computer program. That Petitioner was posted in a money sensitive department and exhibited unreliable and irresponsible behaviour rendering him unfit for any technical or independent job. That Petitioner has made several contradictory statements in Petition particularly with regard to handing over a letter to Shri B.S. Date.
13. Lastly, Ms. Shetty would contend that Petitioner has admitted his guilt by filing mercy petition before the Managing Director and that the Respondent-Railway Administration has already taken a lenient view in the matter by reinstating him in service despite commission of grave misconduct. That therefore no further interference by this Court is warranted in the facts and circumstances of the case. katkam 8/23
14. Rival contentions of the parties now fall for our consideration.
15. We first deal with the preliminary objections raised by Ms. Shetty. The first objection is about delay in filing the petition. The impugned penalty order has been issued on 11 April 2006 and the present Petition, filed on 11 October 2006, cannot be said to be barred by principles of delay or laches. Therefore the objection is unfounded. So far as the objection of availability of alternate remedy is concerned, the Respondents have not raised the same in their Affidavit-in-Reply. Also, KRCL being amenable to writ jurisdiction this Court, Petitioner is entitled to invoke jurisdiction of this Court even if he fits into the definition of workman under the provisions of the Industrial Disputes Act 1947. Also, the present Petition was admitted by this Court on 2 April 2008 and at the stage of final hearing thereof, Respondents cannot now seek to nonsuit him on the ground of availability of alternate remedy. Therefore, the objection of alternate remedy also deserves rejection.
16. In the Disciplinary Enquiry, Petitioner faced the charge drawing two additional increments by misusing his position as Computer Operator by feeding erroneous data in the software thereby raising his basic pay from Rs.1600 to Rs.1700 in the month of August 1997. That this was done to draw undue and intentional benefit to himself. katkam 9/23 Petitioner was also charged with the misconduct of not bringing the erroneous pay fixation either immediately or atleast in the following months to the notice of the higher authorities and not taking any steps to correct the same. Enquiry was conducted into the charge under the provisions of Konkan Railway Corporation Limited Disciplinary and Appeal Rules. Mr. Ramamurthy has not pressed before us any ground of violation of Rules or principles of natural justice in the matter of conduct of enquiry. The enquiry was thus conducted after affording a full opportunity of defence to Petitioner.
17 We now turn to the findings recorded by the Enquiry Officer and the Disciplinary Authority. Before we consider the findings, we are mindful of the fact that the scope of judicial review in findings recorded in a domestic enquiry is extremely narrow. The Court is concerned with the correctness of procedure followed in recording the findings and not the merits of the findings. It is only in a case where the findings recorded in a domestic enquiry are perverse i.e. based on ‘no evidence’ or were the findings as such that no man acting reasonably or with objectivity could arrive at such findings, that courts can interfere while exercising power of judicial review under Article 226 of the Constitution of India. While these principles have been expounded in catena of judgments of the Apex Court, we would refer to only one judgment of three learned Judges of the Supreme Court in SBI vs. Ajai Kumar Srivastava, (2021) 2 SCC 612, in which it is held as under: katkam 10/23 “22. The power of judicial review in the matters of disciplinary inquiries, exercised by the departmental/appellate authorities discharged by constitutional courts under Article 226 or Article 32 or Article 136 of the Constitution of India is circumscribed by limits of correcting errors of law or procedural errors leading to manifest injustice or violation of principles of natural justice and it is not akin to adjudication of the case on merits as an appellate authority which has been earlier examined by this Court in State of T.N. v. T.V. Venugopalan, (1994) 6 SCC 302 and later in State of T.N. v. A. Rajapandian (1995) 1 SCC 216 and further examined by the three-Judge Bench of this Court in B.C. Chaturvedi v. Union of India [B.C. Chaturvedi v. Union of India, (1995) 6 SCC 749 wherein it has been held as under:
23. It has been consistently followed in the later decision of this Court in H.P. SEB v. Mahesh Dahiya (2017) 1 SCC 768 and recently by the three-Judge Bench of this Court in Pravin Kumar v. Union of India
24. It is thus settled that the power of judicial review, of the constitutional courts, is an evaluation of the decision-making process and not the merits of the decision itself. It is to ensure fairness in treatment and not to ensure fairness of conclusion. The court/tribunal may interfere in the proceedings held against the delinquent if it is, in any manner, inconsistent with the rules of natural justice or in violation of the statutory rules prescribing the mode of enquiry or where the conclusion or findkatkam 11/23 ing reached by the disciplinary authority is based on no evidence. If the conclusion or finding be such as no reasonable person would have ever reached or where the conclusions upon consideration of the evidence reached by the disciplinary authority are perverse or suffer from patent error on the face of record or based on no evidence at all, a writ of certiorari could be issued. To sum up, the scope of judicial review cannot be extended to the examination of correctness or reasonableness of a decision of authority as a matter of fact.
25. When the disciplinary enquiry is conducted for the alleged misconduct against the public servant, the court is to examine and determine:
(i) whether the enquiry was held by the competent authority;
(ii) whether rules of natural justice are complied with;
(iii) whether the findings or conclusions are based on some evidence and authority has power and jurisdiction to reach finding of fact or conclusion.
26. It is well settled that where the enquiry officer is not the disciplinary authority, on receiving the report of enquiry, the disciplinary authority may or may not agree with the findings recorded by the former, in case of disagreement, the disciplinary authority has to record the reasons for disagreement and after affording an opportunity of hearing to the delinquent may record his own findings if the evidence available on record be sufficient for such exercise or else to remit the case to the enquiry officer for further enquiry.
27. It is true that strict rules of evidence are not applicable to departmental enquiry proceedings. However, the only requirement of law is that the allegation against the delinquent must be established by such evidence acting upon which a reasonable person acting reasonably and with objectivity may arrive at a finding upholding the gravity of the charge against the delinquent employee. It is true that mere conjecture or surmises cannot sustain the finding of guilt even in the departmental enquiry proceedings.
28. The constitutional court while exercising its jurisdiction of judicial review under Article 226 or Article 136 of the Constitution would not katkam 12/23 interfere with the findings of fact arrived at in the departmental enquiry proceedings except in a case of mala fides or perversity i.e. where there is no evidence to support a finding or where a finding is such that no man acting reasonably and with objectivity could have arrived at those findings and so long as there is some evidence to support the conclusion arrived at by the departmental authority, the same has to be sustained.” (emphasis supplied)
18 Having considered the contours of power of judicial review over findings recorded in a domestic enquiry, we now proceed to examine whether any case of perversity in findings is made out by Petitioner. There is a specific allegation in the chargesheet that Petitioner failed to report erroneous pay fixation to the higher authorities. This charge was sought to be disproved by Petitioner by placing reliance on letters dated 28 October 1997, 20 November 1997, 2 August 1998 and 19 March
1998. These letters are claimed to have been addressed by him before issuance of show cause notice dated 25 March 1998. Based on those letters, Petitioner set up twin defences that he was not responsible for the error and that there was absence of ill-intention on his part to retain the undue pay benefits. Respondents have denied receipt of those letters. In this connection, the pleadings in para 9 of the Affidavit-in-Reply filed by the Respondents are as under: “9. The contentions in Para 1(d) & (e) are not correct and are misleading. It came to our notice in the month of November, 1997 till then the extra increments amount was given to the Petitioner. The katkam 13/23 Petitioner’s statement that the Petitioner wrote a letter dated 20/11/1997 to Dy.
FACAO Ratnagiri, is not correct and is misleading. The letter not received by Dy. FACAO, Ratnagiri and there is no acknowledgment on the copy of the said letter. Shri B.S. Date during enquiry denied that he has received any such letter from the Petitioner. Further Respondent submits that the Respondent has not received two letters dated 20/11/1997 & 5/2/1998. The Respondent submits that in letter dated 19/3/1998, at the bottom noting it is mentioned that “please try to locate the letters dated 20/11/1997 & 5/2/1998 meanwhile calculate the over payment and recover the same from the salary bill on hand and advise FACAO/Belapur. It proves that Petitioner has not sent any letters to the Ratnagiri office as stated in his Petition. The Petitioner was handling pay roll programme of Ratnagiri Office and in the month of August he made entries in the programme and given two increments to himself, which was carried out till November 1997.”
19 Out of the four letters, Respondents have admitted receipt of letter dated 19 March 1998 on account of endorsement made thereon about attempts being made to locate letters dated 20 November 1997 and 5 February 1998. Thus, receipt of letter dated 19 March 1998 is admitted. While receipt of letters dated 20 November 1997 and 5 February 1998 is denied, silence is maintained about letter dated 28 October 1997. Since Ms. Shetty highlighted the fact that the typewritten copy of the letter dated 28 October 1997 at Exhibit-E (Page 61 to the Petition) does not bear any acknowledgment, Mr. Ramamurthy has produced photocopy of letter dated 28 October 1997 which bears acknowledgment by the office of the Chief Engineer dated 29 October 1997. It therefore appears that Petitioner did submit letter dated 20 October 1997. katkam 14/23
20 Now we turn to the factual dispute about submission of letter dated 20 November 1997 by Petitioner. In their Reply, Respondents have flatly denied receipt of letter dated 20 November 1997. However, Enquiry Officer in his report has referred to the deposition of Shri B.S. Date, SO/ AC/RN wherein Shri Date admitted receipt of letter dated ‘22-11-1997’ but denied receipt of any letter before that date. Ms. Shetty did attempt to highlight the difference between the dates of ‘22-11-1997’ referred in findings of Enquiry Officer and the date of Petitioner’s letter being ‘20-11-1997’. Mr. Ramamurthy has placed on record hand-written copy of report of the Enquiry Officer in support of his contention that the letter was received by Shri Date on 22 November 1997. There appears to some overwriting in the hand-written report of the Enquiry Officer and we do not propose to dwell any further in this issue. It is common ground that no other letter was submitted by Petitioner in the month of November 1997. We therefore hold that Shri Date admitted receipt of letter dated 20 November 1997 during the course of his evidence in the enquiry.
21 So far as letter dated 5 February 1998 is concerned the Petitioner has placed on record photocopy of the said letter which shows acknowledgment by the Officer of Chief Engineer, Ratnagiri (North) of 9 February 1998. Therefore, it appears that Petitioner had actually submitted the letter dated 5 February 1998 as well. katkam 15/23
22 We now proceed to examine the findings recorded by the Enquiry Officer about receipt of various letters of Petitioner. He has recorded following findings in para 10j and 10k of his report: “10j. The employee has not brought to the notice of the higher authority immediately after the problem has occurred in Aug’97 and not even the month of Sept or Oct’ 97. The first letter in this respect is seen to be on 22/11/97 which is again without forwarding through proper channel nor has any acknowledgment. 10k. A letter dt. 05/02/98 has the seal of CE/RN office and has been received on 09/02/98. However, the employee has not given any reminder in Dec’97 and January ‘98. This letter letter of 05/02/98 has also not been forwarded through proper channel as the employee was working in Belapur at that time.”
23 Thus, the Enquiry Officer has taken note of letter received on 22 November 1997 (which is dated 20 November 1997). He has also held that the letter dated 5 February 1998 was received on 9 February 1998. Thus, the Enquiry Officer himself has held that the letters dated 20 November 1997 and 5 February 1998 were submitted by Petitioner. There is no dispute about the receipt of letter dated 19 March 1998. We have already held that even the first letter dated 28 October 1997 was submitted by the Petitioner.
24 During the course of enquiry, Petitioner thus proved that he brought the factum of erroneous pay fixation to the notice of Respondents by way of four letters before issuance of show cause notice, katkam 16/23 the first letter being submitted in October 1997. Therefore, the finding of proof, regarding the element of charge alleging failure to immediately report to higher officials about erroneous pay fixation, is thus perverse.
25 Petitioner took a specific defence right throughout the enquiry that the error occurred on account of technical error in syntax software. After the disciplinary proceedings were over, he came across 15 additional cases where similar error had occurred in Ratnagiri Division in the month of August 1997. This Court in the first round of litigation in Writ Petition No.1811 of 2005, remanded the proceedings to the Appellate Authority to reconsider the matter especially in the light of the similar error occurring in the cases of 15 other officials. The Appellate Authority, upon remand of proceedings, has upheld Petitioner’s contention about similar error occurring in 15 other cases by recording following findings: “6. However, there are 15 additional discrepancies found in the August 1997 Ratnagiri pay-sheets and only three of which lack proper explanations from responsible A/c officials.”
26 It is thus an admitted fact that the error in pay fixation was not restricted to Petitioner but occurred in cases of 15 other officials of Ratnagiri Division in the same month of August 1997. This would belie the allegation that Petitioner intentionally manipulated the software to cause any monetary gain to himself. Contrary to this position, the enquiry officer held as under: katkam 17/23 “10l. If there was a problem with the program due to some changes mode during the month if Aug ‘97 then this double increment problem would have to come to all the staff and officer who were due for increment in that month. However audit has reported only his case and SO/Accounts RN has informed that no other case was reported in the month of Aug ‘97.” The above finding of the enquiry officer is rendered perverse on account of subsequent finding recorded by the Appellate Authority about error occurring in 15 other cases as well.
27 The finding of the Appellate Authority after remand of proceedings also indicate that he did not come to a definite conclusion that Petitioner committed misconduct alleged in the charges. It would be opposite to reproduce relevant findings recorded by the Appellate Authority. “6. …. a. Audit report on the Aug ’97 Ratnagiri pay-sheet lapses were incomplete. Further investigations were required to find the causes of lapses. b. In the PC based pay-roll processing system at Ratnagiri, during the said problem period, accounts officers were having undue trust on the semi-manual system, and also on computer personnel like Shri Rajesh A. mankar running it, by not verifying the outputs, input-checks, program change effects, etc.
7. ….
8. ….. katkam 18/23
9. While the circumstantial evidence of the case point to the earlier charges put on Shri Rajesh A. Mankar, due to the other cases or errors in Ratnagiri pay-roll system, lack of 8 years old data for investigation, in the pay-roll processing system at Ratnagiri during the relevant period, some benefit of doubt may be given to the Delinquent Employee.” 28 The Appellate Authority has thus entertained a doubt as to whether Petitioner indeed committed misconduct alleged against him. Expression of such doubt by the Appellate Authority coupled with the perversity in findings as seen earlier would render the Order of the Appellate Authority imposing penalty on Petitioner unsustainable.
29 Now we turn to the ultimate penalty imposed on Petitioner by the Appellate Authority after remand of proceedings by this Court. Petitioner was initially inflicted with the penalty of removal from service by the Disciplinary Authority by order dated 5 November 1999. The Appellate Authority had rejected the Appeal by order dated 26 July 2000. The Managing Director considered the Petitioner’s application dated 18 October 2000 as a mercy petition and offered him fresh appointment as Office Assistant on grade of Rs.5400-7000 fixing his pay at the minimum of the grade from the date of joining. After going through the representation dated 18 October 2000, we do not find any admission of guilt therein or a plea for mercy. Therefore, Respondents’ contention that katkam 19/23 Petitioner admitted misconduct by submitting mercy petition is not well founded. Be that as it may, since the matter progressed further in view of the order passed by this Court in first round of litigation on 21 December 2005 setting aside the order dated 20 October 2000, we do not wish to delve further into correctness of that order. After remand of proceedings to the Appellate Authority, Petitioner has been visited with the penalty of reduction to the lowest scale and grade in Group-C with cumulative effect. According to Petitioner, he was working on the post of Senior Computer Operator and drawing the pay scale of Rs.5500-9000 at the time of initiation of disciplinary proceedings. By virtue of penalty order dated 11 April 2006 he was reinstated on the post of Office Assistant in the pay scale of Rs.4500-7000 fixing him at Rs.4,000/-.
30 Petitioner was appointed on the post of Computer Operator in the pay sale of Rs.5000-8000 and reducing him to the Grade of Rs.4500- 7000 would amount to reducing him to a post lower than the one on which he was appointed. This is impermissible in law. The reference in this regard can be made to in the judgment in South Bengal State Transport Corpn. v. Ashok Kumar Ghosh, (2010) 11 SCC 71 in which the Apex Court has held as under:
20. We may next consider whether the punishment is permissible in service jurisprudence. It is well settled that while an employee can be reverted to a lower post or service, he cannot be reverted to a post lower than the post in which he entered service (see Nyadar Singh v. Union of India (1988) 4 katkam 20/23 SCC 170). Further, it is also well settled that reversion to a lower post or service does not permit reversion to a post outside the cadre, that is, from a regular post to a daily-wage post. We are therefore of the view that the punishment inflicted on the delinquent employee not being one of the punishments enumerated in Regulation 36, is not permissible in law. Thus, the penalty of reducing Petitioner below the grade of Rs. 5000- 8000 inflicted upon him is unsustainable.
31 Considering the overall conspectus of the case, we find that there is total absence of evidence to connect Petitioner to the charge levelled against him. Petitioner successfully proved in the enquiry that he had brought the factum of erroneous pay fixation to the notice of his superior officers and that similar error had occurred in case of 15 other officials as well. The findings, based on which Petitioner is penalized, suffer from the vice of perversity. The ultimate penalty imposed on him is also impermissible in law. The penalty order dated 11 April 2006 therefore deserves to be set aside.
32 It appears that Respondent-KRCL desires that Petitioner should not be posted on money sensitive job/department. While we propose to interfere in the penalty order, we do not wish to disturb this direction as posting officers in various departments is a prerogative of the employer. Mr. Ramamurthy has informed us that Petitioner was reinstated in service in the clerical cadre as Office Assistant and since been promoted to the katkam 21/23 post of Section Officer during pendency of present Petition. Having lost touch with the Computer Department during the last several years, it would otherwise be inappropriate to direct Respondents to restore Petitioner to his position of Computer Operator at this juncture. Mr. Ramamurthy has submitted that Petitioner is willing to be continued in the clerical cadre. We are therefore of the view that within the clerical cadre, Petitioner is required to be restored on a post equivalent to that of Computer Operator w.e.f. the date of his removal from service i.e. 5 November 1999. However, in the peculiar facts and circumstances of the case, we are not inclined to grant any backwages/actual arrears of pay and allowances to Petitioner. He would however be entitled to the benefit of continuity of service and notional pay fixation.
33 We accordingly proceed to pass the following order: O R D E R i) The penalty order dated 11 April 2006 is set aside. Respondents are directed to restore Petitioner to a suitable post in the clerical cadre equivalent to the post of Senior Computer Operator carrying the pay scale of Rs.5500-9000 with effect from 5 November 1999. ii) Petitioner shall not be entitled to any back-wages or difference of salary or allowances consequent to setting aside of the order dated 11 katkam 22/23 April 2006. However, he shall be entitled to the benefit of continuity of service and notional pay fixation, seniority and consideration of his case for further promotions. Actual difference of pay and allowances arising out of restoration in grade of Rs.5500-9000 as well as arising out of further promotions, if any, be granted to him from the date of this Order.
SANDEEP V. MARNE, J. NITIN JAMDAR, J. Note:- Corrections are carried out in para 33 only pursuant to speaking to the minutes dated 04 September 2023. katkam 23/23