IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:29.04.2010 CORAM THE HONOURABLE MR. JUSTICE T.RAJA W.P.No.34087 of 2004 K.Rajachandran ... Petitioner Vs. 1.Government of Tamil Nadu, Rep. Secretary to Government, Handlooms, Handicrafts, Textiles and Khadi Department, Fort St. George, Chennai 600 009. 2.The Director of Sericulture, Salem 636 001. 3.Mr.A.Chidambarathanu Pillai 4.Mr.T.Muthiah 5.Mr.S.Veerabathraswami 6.Mr.V.Ramasami ... Respondents PRAYER: Writ Petition filed under Article 226 of Constitution of India praying to issue Writ of Mandamus directing the respondents to [1] regularise the period of suspension of the petitioner from 16.03.1993 to 19.07.1993 as 'duty' period with all consequential benefits and [2] to include the name of the petitioner in the appropriate place in the panel for promotion to the post of Deputy Director of Sericulture for the year 1998-1999, approved in G.O.Ms.No.84, Handlooms, Handicrafts, Textiles and Khadi Department, dated 05.05.1999, below Sl.No.1 and 1-A and above the name of the 3rd respondent and to promote him as such with retrospective effect from 20.05.1999 i.e., the date of promotion of his immediate junior/third respondent with all consequential service benefits such as seniority and monetary benefits with 18% interest for the belated payment with effect from the date of acquittal in the criminal case [19.12.2001] and pass such further orders. For Petitioner :Mr.M.Ravi For Respondents :Mr.B.Vijay, GA for R1 & R2 No Appearance for R3 to R6 ORDER
The present writ petition is for two reliefs; one for seeking regularisation of the period of suspension of the petitioner from 16.03.1993 to 19.07.1993 as ‘duty’ period with all consequential benefits.
The second prayer made by the petitioner is to include the name of the petitioner in the appropriate place in the panel for promotion to the post of Deputy Director of Sericulture for the year 1998-1999, approved in G.O.Ms.No.84, Handlooms, Handicrafts, Textiles and Khadi Department, dated 05.05.1999, below Sl.No.1 and 1-A and above the name of the 3rd respondent and to promote him as such with retrospective effect from 20.05.1999 i.e., the date of promotion of his immediate junior/third respondent.
2. It is considered by both sides that the first prayer of the petitioner seeking regularisation of the period of suspension of the petitioner from 16.03.1993 to 19.07.1993 as ‘duty’ period with all consequential benefits, were already granted by the respondent in G.O.[3D] No.4, Handlooms, Handicrafts, Textiles and Khadi Department, dated 20.07.1993. Therefore, this Court is to deal with second prayer made by the petitioner.
3. The petitioner, while serving as Assistant Director of Sericulture, was placed under suspension by the 2nd respondent in his proceedings Rc.No.26353/DSE.1/86 dated 19.02.1991, on the basis of complaint of a criminal offence pending before the trial Court. Though the petitioner was placed under suspension, the suspension was revoked by G.O.[3D] No.4, Handlooms, Handicrafts, Textiles and Khadi Department, dated 20.07.1993 and he was reinstated in service, without prejudice to the criminal case pending against him. Subsequently, the petitioner was convicted in the criminal case in C.C.No.10/90 and he was sentenced to imprisonment till rising of the Court and a fine of Rs.5,000/-. Aggrieved by the said order, the petitioner preferred criminal appeal before the II Additional Session Judge, Coimbatore and the conviction and sentence imposed by the trial Court were set aside and finally the petitioner was acquitted by order dated 19.12.2001 in Cr.A.No.38/2001. Thereafter, the suspension period undergone by the petitioner from 25.02.1993 to 15.03.1993 was ordered to be treated as a period spent on duty. Since the petitioner was not promoted to the post of Deputy Director of Sericulture, the petitioner brought to the notice of the respondent for passing an order to promote the petitioner to the post of Deputy Director of Sericulture, for which, the Government in Letter No.17404/GI/98 dated 05.05.99 informed the petitioner that in view of pendency of criminal case No.8/88 filed by the Inspector of Police, Coimbatore, the request of the petitioner for inclusion of his name in the panel for the year 1998-99 was deferred and it was further informed that after the criminal case against the petitioner is disposed of, his name would be considered for inclusion in the panel.
4. Learned counsel appearing for the petitioner submits that when the 1st respondent by letter dated 05.05.99 had informed the petitioner that he should wait till the disposal of the criminal case No.8/88 filed by the Inspector of Police, Coimbatore, the petitioner could not make further representation and waiting for the completion of the said case. Therefore, the above case came to be ended in conviction and the petitioner was sentenced to imprisonment till rising of the Court and also with a fine of Rs.5,000/-. The petitioner aggrieved by the said order, preferred appeal in Cr.A.No.38/2001 and finally, by order dated 19.12.2001, the appeal came to be allowed in favour of the petitioner. Therefore, the stand of the respondents 1 and 2 in refusing to consider the case of the petitioner, on the basis of letter dated 05.05.99, is not only just and fair, but also against the right of the petitioner in getting promotion to the higher post. In support of his submission, learned counsel appearing for the petitioner relied upon a judgment of the Apex Court in Delhi Jal Board v. Mahinder Singh reported in AIR 2000 SC 2767, wherein the Apex Court has held that during the pendency of departmental enquiry, the same would not come in the way of considering the case of the petitioner for his inclusion in the promotional panel. On that basis, prayed for the aforesaid second prayer.
5. Per contra, learned counsel appearing for the respondents 1 and 2 submits that the petitioner, immediately after the acquittal order was passed in Cr.A.No.38/2001, dated 19.12.2001, made a representation to the Secretary. By order dated 08.01.2010, the Principal Secretary to Government has disposed of the petitioner representation 24.02.2002. Earlier, O.A.No.4740/99 filed seeking a writ of mandamus to direct the Secretary to Government, Handlooms, Handicrafts, Textiles and Khadi Department, to consider the name of the petitioner for promotion for the year 1998-1999 and confer the same forthwith, came to be transfered to this Court and the same became W.P.No.40605/2006. In the meanwhile, the present writ petition came to be filed in the year 2004. When the writ petition in W.P.No.40605/2006 came up for consideration, this Court passed an order directing the 1st respondent to consider the representation of the petitioner dated 24.02.2002 and pass orders taking note of the acquittal of the petitioner in the criminal case, on or before 30.06.2009. The 1st respondent, following the order passed by this Court, dated 22.04.2009, passed order dated 08.01.2010, rejecting the representation of the petitioner, declining to include the name of the petitioner in the panel of Deputy Director of Sericulture for the year 1998-99. Therefore, the learned counsel appearing for the respondents 1 and 2 submits that unless that order is challenged, the petitioner cannot persuade his remedy in the present writ petition. On that basis, prayed for dismissal of the present writ petition.
6. Heard the learned counsel appearing on either side and perused the materials available on record.
7. Admittedly, the petitioner was convicted in C.C.No.10/90 by the Judicial Magistrate No.V, Coimbatore. Subsequently, as against the conviction and sentence imposed by the Judicial Magistrate No.V, Coimbatore, the petitioner preferred Cr.A.No.38/2001. In the said appeal, the learned II Additional Session Judge, Coimbatore, by judgment dated 19.12.2001, by reversing the conviction and sentence imposed by the Judicial Magistrate No.V, Coimbatore, acquitted the petitioner of the criminal charges. Thereafter, the matter became final. Therefore, the case of the petitioner that he should be included in the panel for the year 1998-99, cannot be denied, for the simple reason that the respondents 1 and 2 themselves by order dated 05.05.99, have clearly informed the petitioner that his name could not be included in the promotional panel in view of pending criminal case No.8/88 and it was further informed that the case of the petitioner for inclusion in the promotional panel for the post of Deputy Director of Sericulture would be considered as and when the criminal case No.8/88 came to be decided by the said criminal court. As per the above letter dated 05.05.99, when the criminal proceedings came to be completed on 19.12.2001, the respondents should have considered the case of the petitioner by including his name in the panel for the year 1998-99. Therefore, the order passed by the 1st respondent on 08.01.2010, has nothing to do with the letter dated 05.05.99. Earlier O.A.No.4740/99, came to be transferred to this Court and renumbered as W.P.No.40605/2006 and this Court, in the above said writ petition, directed the 1st respondent to consider the case of the petitioner, but the 1st respondent, without looking into the matter, rejected the case of the petitioner, which does not reflect any good reason, as to how the 1st respondent has considered the case of the petitioner. Admittedly, the criminal proceedings came to be disposed of finally by judgment dated 19.12.2001 in Cr.A.No.38/2001. Therefore, as there is no more departmental proceedings pending against the petitioner, now, this Court is of the view that the direction should be given to the respondent to consider the case of the petitioner, as mentioned in letter dated 05.05.99 for inclusion of petitioner’s name in the panel for the post of Deputy Director of Sericulture for the year 1998-99 as per the principles laid down in G.O.Ms.No.368, dated 18.10.93.
With the above observations, the writ petition is disposed of. No Costs.
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To
1.Government of Tamil Nadu,
Rep. Secretary to Government,
Handlooms, Handicrafts,
Textiles and Khadi Department,
Fort St. George,
Chennai 600 009.
2.The Director of Sericulture,
Salem 636 001