JUDGMENT :

PUSHPA SATHYANARAYANA, J.

Prayer: Writ Appeal filed under Clause 15 of Letters Patent against the order dated 11.09.2018 in W.P. No. 12885 of 2010.

1. This is an appeal filed by the Government seeking to set aside the order of the learned Single Judge dated 11.09.2018 made in W.P. No. 12885 of 2010, wherein and whereby, the order of the Government rejecting the petition submitted by the writ petitioner seeking to modify the punishment of removal from service imposed on him into one of compulsory retirement was set aside and certain directions were issued.

2. The writ petitioner had served as an Assistant Elementary Educational Officer between 13.06.1990 and 30.06.1995 at Bhavanisagar, Erode District and after his transfer to the teacher post, a special audit was conducted with respect to the Provident Fund Accounts (PF) maintained in the office of the Assistant Elementary Educational Officer, which revealed misappropriation of funds committed by the petitioner and two others, namely, Prabhakaran and N. Subramanian. Their modus operandi was that without there being applications from the teachers for PF loan, the accused persons issued proceedings by preparing bill entries and took cash from the bank without disbursing the same to the concerned teachers. The amount so misappropriated was pegged at Rs. 2,98,547/- and therefore, the criminal prosecution was initiated and the same ended in conviction, thereby, sentencing the writ petitioner and others to undergo two years imprisonment with appropriate fine amounts. On appeal, the appellate court, namely, Fast Track Court, Gopichettipalayam, affirmed the conviction and sentence on 13.02.2003. He preferred revision petition in Crl. R.C. No. 221 of 2003 and this Court vide order dated 19.03.2004, modified the sentence of imprisonment into the one of fine of Rs. 50,000/-. In the interregnum, the petitioner was removed from the service vide proceedings dated 28.08.2003 issued by the third respondent in the writ petition/third appellant herein. The appeal preferred by the writ petitioner questioning the said order was rejected by the second respondent on 30.04.2004 confirming the order of the third respondent. Annexing the order of this Court in the aforesaid criminal revision case, the petitioner filed a petition before the Government, the rejection order of the same in G.O. (ID) No. 370, School Education Department, dated 06.10.2009 is put to the challenge before the writ Court. The writ court vide the impugned order dated 11.09.2018 allowed the writ petition. Thus, the appeal came to be filed.

3. According to the writ petitioner, one of the co-accused persons, namely, N. Subramanian was also punished by the criminal court and dismissed from service, but the Director of Elementary Education had modified the dismissal order and thereby inflicted the punishment of compulsory retirement. Thus, he sought for the similar benefit, which was granted by the writ Court and the said order need not be disturbed.

4. The appellants herein, as the respondents, pleaded before the Writ Court that since the writ petitioner became B.T. Assistant subsequent to the commission of the alleged misappropriation, the Director of School Education dealt with the disciplinary proceedings, whereas, the co-accused N. Subramanian remained in the same post and hence, the disciplinary proceedings against him was concluded by the Director of Elementary Education and thus, two different authorities passed two different orders with respect to the two delinquents, and such exercise of power cannot be found fault with. It is also contended that this Court in the criminal revision case confirmed the conviction of the writ petitioner and only modified the sentence imposed on him and therefore, there is no reason for the appellate authority to modify the punishment of removal from service, as has been prayed by the writ petitioner.

5. The learned counsel appearing on behalf of the respondent/writ petitioner contended that