IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated: 24/11/2005
Coram
The Hon'ble Mr. Justice P. SATHASIVAM
and
The Hon'ble Mr. Justice S.K. KRISHNAN
Writ Petition No. 9341 of 2004
and W.P.M.P.No. 10918 of 2004 and W.V.M.P.No.2481 of 2005
The District Revenue Officer,
Erode District,
Erode. .. Petitioner.
-Vs-
1. R. Palanisamy,
Assistant,
Erode District Revenue Unit,
Erode.
2. The Registrar,
Tamil Nadu Administrative Tribunal,
Chennai. .. Respondents.
Writ Petition has been filed under Article 226 of the Constitution of
India, to issue a Writ of Certiorari calling for records pertaining to orders
dated 24-07-2003 made in O.A.No. 3211 of 1995 on the file of Tamil Nadu
Administrative Tribunal/2nd Respondent herein and quash the same.
!Mr. E. Sampathkumar, Govt., Advocate:-For petitioner.
^Mr. P. Rajendran:- For 1st Respondent.
:ORDER
(Order of Court was made by P. Sathasivam, J.,)
Aggrieved by the order of the Tamil Nadu Administrative Tribunal dated
24-7-2003 made in O.A.No. 3211 of 1995, directing the Department to proceed
against the applicant in accordance with the decision in Criminal Court, the
District Revenue Officer, Erode has filed the above Writ Petition.
2. A criminal case as well as disciplinary proceedings were initiated against
the first respondent herein, namely, R. Palanisamy, an Assistant of Erode
District Revenue Unit for irregularities of misappropriating Government money
to the tune of Rs.96,206.41. The criminal case instituted in the Judicial
Magistrate’s Court, Perundurai in C.C.No. 110/90 ended in acquittal of the
individual from the criminal charges levelled against him on 13-7-99. The
departmental disciplinary proceedings was initially stayed by the Tamil Nadu
Administrative Tribunal by an interim order in O.A.No. 3211/95 dated 4-7-95
and the Tribunal finally heard the case and issued direction in its order
dated 24-7-2003 to take action in consonance with the judgement of the
criminal case. Being aggrieved of the said direction, the District Revenue
Officer has filed the present writ petition.
3. Heard Mr. E. Sampathkumar, learned Government Advocate for petitioner
and Mr. P. Rajendran, learned counsel for first respondent.
4. The only point for consideration in this writ petition is, whether the
Tribunal is justified in issuing direction to the Revenue Administration to
proceed against the applicant in accordance with the decision in Criminal
Court?
5. The first respondent herein while working as Revenue Inspector, Kanjikoil
Firka in Perundurai Taluk of Erode District during the period from 6-8-81 to
29-9-82, he was charged that he had misappropriated an amount of Rs.96,206.41
during the said period. A criminal case was registered against him in Crime
No. 589/82 under Sections 420, 409 and 477-A read with Section 109 I.P.C.
and the same was taken on file in C.C.No. 110/90 of the Judicial Magistrate’s
Court, Perundurai. During the pendency of the criminal case, charges were
framed under Rule 17 (b) of the Tamil Nadu Civil Service (Classification,
Control and Appeal) Rules and he was dismissed from service as per District
Revenue Officer’s proceedings dated 6-7-86. Against this order, he preferred
an appeal before the Special Commissioner and Commissioner of Revenue
Administration, Chennai, and the latter remanded back the matter for fresh
disposal for rectification of certain procedural irregularities. The first
respondent was placed under suspension again and subsequently fresh charges
were framed against him on 10-7-90. By orders of the Administrative Tribunal
in O.A.No. 5011 of 93 and in view of the fact that the disposal of the
criminal case takes longer time, he was allowed to join duty. The grievance
of the Revenue administration is that because of the dilatory tactics adopted
by the first respondent, the departmental proceedings would not be completed.
It is also their claim that even after acquittal by the criminal court, they
are free to proceed with the departmental enquiry. Learned Government
Advocate basing reliance on Ajit Kumar Nag v. G.M, Indian Oil Corporation
Limited, reported in 2005 AIR SCW 4986, would contend that acquittal by
criminal court will not preclude the department from holding departmental
proceedings. In the impugned order, it is true that the Tribunal has directed
the department to proceed based on the result of the criminal case. In other
words, as per the direction of the Tribunal, if the criminal case ended in
acquittal, the department is barred from proceeding further or else they are
free to proceed with the departmental enquiry. It is settled law that
acquittal by a criminal court would not debar an employer/department from
exercising power in accordance with the rules and regulations in force. The
two proceedings, namely, criminal and departmental are entirely different.
They operate in different fields and have different objectives. The object of
criminal trial is to inflict appropriate punishment on the offender, whereas
the purpose of enquiry proceedings is to deal with the delinquent
departmentally and to impose on him penalty in accordance with service Rules.
In a criminal trial, incriminating statement made by the accused in certain
circumstances or before certain officers is totally inadmissible in evidence.
Such strict rules of evidence and procedure would not apply to departmental
proceedings. Likewise, the degree of proof which is necessary to order a
conviction is different from the degree of proof necessary to record the
commission of delinquency. The rule relating to appreciation of evidence in
the two proceedings is also not similar. In criminal law, burden of proof is
on the prosecution and unless the prosecution is able to prove the guilt of
the accused beyond reasonable doubt, he cannot be convicted by a Court of Law.
Whereas, in departmental enquiry penalty can be imposed on the delinquent
officer on a finding recorded on the basis of the preponderance of
probability. Acquittal of the accused by a Judicial Magistrate, therefore,
does not ipso facto absolve him from the liability under the disciplinary
jurisdiction of the Revenue administration. The contention that since he was
acquitted by a criminal court, the department is completely debarred to
proceed with the enquiry cannot be accepted. However, as observed in M. PAUL
ANTHONY Vs. BHARAT GOLD MINES LTD., [AIR 1999 SC 1416], since the facts and
the evidence in both the proceedings, namely, departmental proceedings and the
criminal case were the same, without their being an iota of difference, the
distinction which is usually drawn as between the departmental proceedings and
the criminal case on the basis of approach and burden of proof, would not be
applicable. In the case on hand, the facts and the evidence in both the
proceedings, namely, departmental and criminal were the same and in view of
acquittal of the criminal case on merits, we are of the view that the Revenue
administration is not justified in pursuing the departmental enquiry.
6. Even if we accept the departmental proceedings can be continued, in view
of enormous and unexplained delay on the part of the Revenue Administration,
they are not permitted to proceed with the enquiry. The details regarding
dates and events amply show that in view of the enormous delay, the department
cannot be permitted to proceed further. It is not in dispute that the period
of alleged misconduct pertains from 6-8-81 to 10-8-82. First respondent
herein was placed under suspension on 9-11-82. Charge Memo was issued on
26-01-83. Order of dismissal from service was passed by the disciplinary
authority on 6-7-86. The order of dismissal was set aside by the appellate
authority and the matter was remanded to the disciplinary authority on
7-10-86. Fresh charge memo was issued to the first respondent on 10-7-90.
There is no explanation at all for taking four years’ time from the date of
remand by the appella te authority for framing fresh charge memo. On 26-10-93
the first respondent who was under suspension from 9-11-82 to 26-10-93 (for 11
years) was reinstated in service following the order of the Tribunal in
O.A.No. 5011/1993. Copies of the documents relied upon by the disciplinary
authority were furnished to the first respondent on 13-01-95 i.e., after 5
years from the date of charge memo. The Tribunal stayed the departmental
proceedings in O.A.No. 3211/1995 on 4-7-95. The first respondent was
acquitted by Judicial Magistrate, Perundurai in C.C.No. 110/90 on 13-7-99 .
The Tribunal passed final order in O.A.No. 3211/95 on 24-7-2003. The
petitioner/District Revenue Officer filed this Writ Petition and obtained an
order of stay on 7-4-2004. It is also brought to our notice that the first
respondent is due to retire from service on 30-11-2005. In this regard, it is
useful to refer a judgement of the Supreme Court in P.V. Mahadevan v. M.D.,
T.N. Housing Board, reported in 20 05 (4) CTC 403 wherein the Supreme Court
after finding that there is inordinate delay of 10 years in initiating the
departmental enquiry against the appellant, in the absence of explanation from
his employer-Tamil Nadu Housing Board, concluded that allowing the Housing
Board to proceed with the departmental proceedings at this distance of time
would be very prejudicial to the appellant and consequently quashed the charge
memo issued against him. While arriving such a conclusion, Their Lordships
made a reference to State of U.P. v. N. Radhakrishnan, 1998 (4) SCC 154.
After considering the factual details and rival contentions, the Supreme Court
has concluded that: (para 11)
“11. Under the circumstances, we are of the opinion that allowing the
respondent to proceed further with the departmental proceedings at the
distance of time will be very prejudicial to the appellant. Keeping a higher
Government official under charges of corruption and disputed integrity would
cause unbearable mental agony and distress to the officer concerned. The
protracted disciplinary enquiry against a Government employee should,
therefore, be avoided not only in the interests of the Government employee but
in public interest and also in the interests of inspiring confidence in the
minds of the government employees. At this stage, it is necessary to draw the
curtain and to put an end to the enquiry. The appellant had already suffered
enough and more on account of the disciplinary proceedings. As a matter of
fact, the mental agony and sufferings of the appellant due to the protracted
disciplinary proceedings would be much more than the punishment. For the
mistakes committed by the department in the procedure for initiating the
disciplinary proceedings, the appellant should not be made to suffer.”
After holding so, the Supreme Court quashed the charge memo issued against the
appellant and also directed settlement of all retiral benefits in accordance
with law within 3 months from the date of the order. Following the above
decision, this Court (P. Sathasivam and S.K. Krishnan, JJ) in Obaidhullah,
A. v. The State of Tamil Nadu (2005 (5) CTC 380) quashed the second charge
memo issued after a lapse of more than 12 years. In view of the fact that the
alleged misconduct dates back to 8-11-82 and of the fact that the Revenue
administration had taken longer time at every stage and taking note of the
fact that the first respondent herein is due to retire from service on
30-11-2005 and also of the fact that it would not be fair on the part of the
department to proceed with the departmental enquiry after 24 years of the
alleged incident, the petitioner-District Revenue Officer, Erode is not
permitted to proceed with the departmental enquiry. The first respondent
shall be allowed to retire on 30-11-2005, if there is no other charge pending
against him. The Writ Petition is dismissed with the above direction. No
costs. Consequently, connected miscellaneous petitions are closed.
Index:- Yes
Internet:- Yes.
R.B.
To:
The Registrar,
Tamil Nadu Administrative Tribunal,
Chennai-104.