IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 24.2.2010 CORAM: THE HONOURABLE MR.JUSTICE ELIPE DHARMARAO AND THE HONOURABLE MR.JUSTICE T.S.SIVAGNANAM Writ Petitions No.29751 and 30370 of 2004 W.P.No.29751 of 2004: B.Stanley Jones ... Petitioner Vs. 1.The Superintendent, Central Prisons, Chennai-600003. 2.The Registrar, Tamil Nadu Administrative Tribunal, Chennai-600104. ... Respondents W.P.No.30370 of 2004: N.Sethuraman ... Petitioner Vs. 1.The Inspector General of Prison, CMDA Tower 2, Egmore, Chennai-8. 2.The Deputy Inspector General of Prison, CMDA Tower 2, Egmore, Chennai-8. 3.The Superintendent, Central Prison, Chennai-600003. 4.The Registrar, Tamil Nadu Administrative Tribunal, Chennai-600104. ... Respondents * * * W.P.No.29751 of 2004 has been filed under Article 226 of the Constitution of India, praying to issue a Writ of Certiorarified Mandamus, calling for the records of the respondents in connection with the impugned order passed by the second respondent in O.A.No.7868 of 2000, dated 26.5.2004 and quash the same as illegal and consequently direct the first respondent to reinstate the petitioner into service with all consequential service and monetary benefits. W.P.No.30370 of 2004 has been filed under Article 226 of the Constitution of India, praying to issue a Writ of Certiorarified Mandamus, to call for the records of the respondents in connection with the impugned order passed by the fourth respondent in O.A.No.3098 of 2002, dated 26.5.2004 and quash the same as illegal and consequently direct the first respondent to reinstate the petitioner into service with all consequential service and monetary benefits. * * * For petitioners in both the W.Ps. : Mr.K.Shahul Hameed For respondents in both the W.Ps. : Mrs.Malarvizhi Udayakumar, Spl.G.P. * * * COMMON ORDER ELIPE DHARMARAO, J.
Both the petitioners were working as Jail Warders and they were sent for a training in the Training School at Vellore Prison for a period of six months from 10.5.1992 to 25.2.1993 and since these petitioners absented themselves from taking part in the training programme, they were suspended from service on 1.12.1992. The orders of suspension were challenged by the petitioners before the Tamil Nadu Administrative Tribunal and thereafter, as per the orders of the Tribunal, they were reinstated into service and their training period was extended.
2. It is seen from the records that on 1.12.1992, these petitioners joining hands with three other colleagues have attacked and abused Mr.Ramamurthy, who is the Principal of the Training College in the rank of Jailor in filthy language, since he insisted one Samipillai, who arrived in civil dress and complaining headache required the sick-book from the Jailor, who directed him to appear before him by wearing Uniform prescribed. Enraged, the said Samipillai, petitioners and others, have attacked the said Jailor. Therefore, a charge memo. was issued to the petitioners on 26.4.1993, framing two charges under Rule 17(b) of the Tamil Nadu Civil Service (Classification, Control and Appeal) Rules.
3. It is also seen from the records that the said Ramamurthy, Jailor has also lodged a criminal complaint against the petitioners and others in Cr.No.1777 of 1992 of Vellore South Police Station and after investigation, a charge sheet was filed in the said case, whereupon a case in C.C.No.16 of 1993 was taken on file by the learned Chief Judicial Magistrate, Vellore. Since the said criminal case was pending, the petitioners by their representations dated 17.5.1993 submitted to the Superintendent, Central Prison, Vellore, requested the authorities not to proceed with the enquiry and considering such a request of the petitioners, the Department did not proceed with the enquiry and the same was dropped. By the judgment dated 22.9.1993, the petitioners were acquitted in the criminal case. Thereafter, the petitioners were again issued with the charge memo. dated 26.11.1994 and enquiry was conducted wherein the charges were held to be proved and a punishment of compulsory retirement was inflicted on the petitioners.
4. Against the said order of compulsory retirement, N.Sethuraman (petitioner in W.P.No.30370 of 2004) has filed an appeal before the Deputy Inspector General of Prison, Chennai, who has modified the sentence to one of reduction of his basic pay to the bottom scale of pay without cumulative effect for five years by order dated 3.10.2001. Thereafter, this petitioner was reinstated into service by the order dated 18.12.2001 and he was posted at Sub Jail, Ooty. But, according to this petitioner, in the posting order, nothing was mentioned about the intervening period i.e. from the date of earlier compulsory retirement to the date of modified order and no salary, other benefits were paid for the above said period. Therefore, aggrieved by the said posting order, this petitioner submitted a representation dated 28.1.2002 to the Inspector General of Prison. Immediately thereafter, the first respondent issued a show cause notice dated 8.2.2002, suo motu reviewing the earlier order passed by the Deputy Inspector General of Prison/the second respondent and this petitioner made a request that the transfer order passed by the first respondent can be withdrawn and he may be posted anywhere near Chennai, but he failed to give proper reply to the show cause notice for enhancement of punishment and he was under the impression that he got a regular appeal chance against the appellate order passed by the second respondent. In these circumstances on 15.3.2002, the first respondent has passed an order enhancing the punishment to that of compulsory retirement. Against this order of enhancement of punishment, this petitioner filed Original Application No.3098 2002 before the Tamil Nadu Administrative Tribunal.
5. B.Stanley Jones (the petitioner in W.P.No.29751 of 2004), without filing any departmental appeal as against the punishment of compulsory retirement imposed on him, has straight away approached the Tamil Nadu Administrative Tribunal in O.A.No.7868 of 2000 and the Tribunal, considering the fact that a similarly placed employee viz. N.Sethuraman was awarded lesser punishment by the appellate Authority and this petitioner was discriminated by awarding higher punishment, has ordered the said O.A. by the order dated 26.6.2002, set aside the award of the Tribunal and awarded a punishment of reduction of his pay to the bottom of the time scale for five years with cumulative effect. Aggrieved against this order passed by the Tribunal, the Superintendent, Central Prison, Chennai has filed W.P.No.2037 of 2003 before this Court and submitted before this Court that as against N.Sethuraman also the same punishment of compulsory retirement from service was inflicted and there is no question of any discrimination in treating the equally placed employees unequally. Considering this submission made by the respondents, a Division Bench of this Court, by the order dated 29.1.2004 has set aside the order of the Tribunal imposing lesser punishment and remitted the matter back to the Tribunal to be heard along with O.A.No.3098 of 2002 filed by N.Sethuraman.
6. The Tribunal, having taken up both the above said Original Applications together, by the order dated 26.5.2004, has dismissed both the Original Applications. As a result, both these writ petitions are filed by the petitioners.
7. Since both the matters are inextricably interconnected with each other, they are heard in common and are being disposed of by this common order.
8. The learned counsel appearing for the petitioners has argued that since the petitioners are acquitted in the criminal case, on the same allegations, the departmental enquiry should not have been conducted against the petitioners and major punishment of compulsory retirement should not have been imposed on them, which is disproportionate to the charges levelled against them.
9. It has further been argued that the witnesses examined in the departmental enquiry are different from those examined in the criminal case and had the same witnesses examined, the petitioners would have been in a position to prove their innocence. It has also been submitted that the copies of the documents requested by the petitioners were not furnished to them, which caused much prejudice to them, since they could not make effective and proper representations to the authorities concerned.
10. On the other hand, the learned Special Government Pleader appearing for the respondents would argue that no illegality or irregularity has been committed on the part of the respondents in imposing the penalty of compulsory retirement on the petitioners and their acquittal in the criminal case does not bar the respondents from initiating the disciplinary proceedings and the copies of the documents sought for on the part of the petitioners are not at all connected with the disciplinary case, the enquiry officer rejected the request of the petitioners and the Tribunal has properly assessed the facts and circumstances and has rightly dismissed the plea of petitioners and would pray to dismiss both the writ petitions.
11. In the cases on hand, both the petitioners belong to disciplined forces and are expected to maintain utmost discipline, integrity and devotion to duty. The petitioners are alleged to have attacked and abused their superior, for which not only a criminal case, but also a disciplinary proceeding has been initiated against them. Though in the criminal case registered against them they were acquitted, in the departmental proceedings conducted, the charges are held to be proved and the petitioners were ultimately imposed with the punishment of compulsory retirement from service.
12. In this connection, much has been argued on the part of the petitioners that the authorities are not at all justified in re-opening the disciplinary proceedings, particularly after their acquittal in the criminal case.
13. As could be seen from the materials placed on record, though the departmental proceedings were initiated against the petitioners parallel to the criminal court proceedings, at the request of the petitioners that in the criminal case, trial is going on and therefore, the departmental proceedings need to be stayed, the respondents have dropped the proceedings and after completion of the criminal case, they have issued fresh charge memos. to both the petitioners and proceeded against them in the disciplinary proceedings. Therefore, now, it is to be considered as to whether the acquittal of the petitioners in the criminal case preclude the respondents from initiating disciplinary proceedings against them. For this purpose, we shall now see the law laid down by the Honourable Apex Court in this regard.
14. In UTTARANCHAL ROAD TRANSPORT CORPORATION AND OTHERS vs. MANSARAM NAINWAL (2006-III-LLJ 505), the High Court had ordered the Department to reinstate the respondent/delinquent since he got acquittal in the criminal case, following the judgment of the Apex Court in PAUL ANTHONY vs. BHYARAT GOLD MINES LTD. AND ANOTHER (AIR 1999 SC 1416: 1999 (3) SCC 679). As against which, an appeal was filed by the Department before the Supreme Court. In Para No. 12 of this judgment, it has been held by the Honourable Apex Court:
“Though the High Court had not indicated as to how the decision of this Court in Anthonys case laid down as a matter of law that whenever there is acquittal in a criminal trial re-instatement is automatic….”
13. The High Court unfortunately did not discuss the factual aspects and by merely placing reliance on earlier decision of the court held that reinstatement was mandated. Reliance on the decision without looking into the factual background of the case before it is clearly impermissible. A decision is a precedent on its own facts. Each case presents its own features. It is not everything said by a Judge while giving judgment that constitutes a precedent. The only thing in a Judges decision binding a party is the principle upon which the case is decided and for this reason, it is important to analyse a decision and isolate from it the ratio decidendi….”
With such observations, the case was remitted back to the High Court for re-appreciation since no factual discussion was made by the High Court.
15. Further, in catena of decisions, the Apex Court has held that acquittal of the delinquent employee in a criminal case, ipso facto, does not absolve him from the liability under the disciplinary jurisdiction and a judgment of acquittal passed in favour of the employees in a criminal action initiated in respect of the misconduct(s) concerned, by giving benefit of doubt, would not, per se ,be binding upon the employer and does not automatically give the employee the right to be reinstated, vide AJIT KUMAR NAG vs. G.M.(PJ), INDIAN OIL CORPORATION LTD. [(2005) 7 SCC 764] and MANAGER, RESERVE BANK OF INDIA vs. S.MANI [(2005) 5 SCC 100].
16. In CHAIRMAN AND MANAGING DIRECTOR, UNITED COMMERCIAL BANK AND OTHERS vs. P.C.KAKKAR [(2003) 4 SCC 364], the Apex Court has observed:
“Acquittal in the criminal case is not determinative of the commission of misconduct or otherwise, and it is open to the authorities to proceed with the disciplinary proceedings, notwithstanding acquittal in the criminal case. It, per se, would not entitle the employee to claim immunity from the proceedings. At the most, the factum of acquittal may be a circumstance to be considered while awarding punishment. It would depend upon the facts of each case and even that cannot have universal application.”
17. Therefore, from the fact of acquittal by the delinquent employee in the criminal case, he cannot claim absolute immunity from the departmental proceedings. Further more, in the cases on hand, we have gone through the judgment rendered by the learned Chief Judicial Magistrate, Vellore in C.C.No.16 of 1993. By the said judgment, no doubt, both the petitioners were acquitted of the charges framed against them, by giving ‘benefit of doubt’ since there were no corresponding injuries on the body of the victim to the blows attributed to the petitioners and it is not a case of honorary acquittal, but an acquittal, by giving benefit of doubt. Notably, it is not at all the finding of the criminal court that the petitioners were not at all present at the scene of occurrence and they have been falsely implicated in the case. In these circumstances, the respondents cannot at all be blamed for initiating the departmental proceedings against the petitioners, even after their acquittal in the criminal case.
18. The other aspect urged on the part of the petitioners is that in the departmental proceedings separate set of witnesses were examined by the Department and had the Department examined the very same witnesses who deposed before the criminal court, they would have proved their innocence. We cannot appreciate this stand taken on the part of the delinquent employees for the reason that no party can direct their opposite party to examine only a specified persons as their witnesses. If at all, the petitioners could have initiated necessary legal proceedings before the Enquiry Officer to examine their witnesses, including the witnesses who have been left out by the department. Having failed to exercise such a legal option available to them before the Enquiry Officer, now, the delinquents cannot throw blame on the department for not examining such witnesses before the enquiry officer. Probably to claim the benefit that the very same witnesses were examined before the criminal court and also before the enquiry officer and hence the judgment of acquittal rendered by the criminal court should be given prior importance, the petitioners have raked up this point, which we are not able to appreciate and therefore, this contention raised on the part of the petitioners also need to be rejected.
19. It has been strenuously argued on the part of the petitioners that the copies of the documents sought for by the petitioners were not furnished to them by the enquiry officer, thus, they were prevented from making effective and proper representation and presentation of their case and thus the principles of natural justice have been violated by the respondents and on this ground itself, the impugned orders are liable to be quashed. It has further been argued that against the order of compulsory retirement, N.Sethuraman (petitioner in W.P.No.30370 of 2004) has filed an appeal before the Deputy Inspector General of Prison, Chennai, who has modified the sentence to one of reduction of his basic pay to the bottom scale of pay without cumulative effect for five years by order dated 3.10.2001 and thereafter, he was reinstated into service by the order dated 18.12.2001 and was posted at Sub Jail, Ooty and since in the posting order nothing was mentioned about the intervening period from the date of earlier compulsory retirement to the date of modified order and no salary, other benefits were paid for the above said period, he submitted a representation dated 28.1.2002 to the Inspector General of Prison and immediately thereafter, the first respondent issued a show cause notice dated 8.2.2002 suo motu reviewing the earlier order passed by the Deputy Inspector General of Prison/the second respondent and for this the petitioner made a request that the transfer order passed by the first respondent can be withdrawn and he may be posted anywhere near Chennai and he failed to give proper reply to the show cause notice for enhancement of punishment and he was under the impression that he got a regular appeal chance against the appellate order passed by the second respondent, but on 15.3.2002, the first respondent has passed an order enhancing the punishment to that of compulsory retirement, which needs to be interfered with by this Court.
20. In support of such arguments, the learned counsel appearing for the petitioners would rely on the following judgments:
1.UNION OF INDIA vs. H.C.GOEL [AIR 1964 SC 364 = 1964 (4) SCR 718];
2.HARDWARI LAL vs. STATEOF U.P. AND OTHERS [JT 1999 (8) SC 418] and
3.M.NAGARAJAN AND OTHERS vs. THE REGISTRAR, HIGH COURT, MADRAS AND ANOTHER [(2003) 3 MLJ 479].
21. In the first judgment cited above, reported in AIR 1964 SC 364 = 1964(4) SCR 718, the Honourable Apex Court has held:
“In dealing with a writ petition filed by public servants who have been dismissed, or otherwise dealt with so as to attract Art.311(2), the High Court under Art.226 has jurisdiction to enquire whether the conclusion of the Government on which the impugned order of dismissal rests is not supported by any evidence at all. Although the order of dismissal which may be passed against a Government servant found guilty of misconduct, can be described as an administrative order, nevertheless, the proceedings held against such a public servant under the statutory rules to determine whether he is guilty of the charges framed against him are in the nature of quasi-judicial proceedings and there can be little doubt that a writ of certiorari, for instance, can be claimed by a public servant if he is able to satisfy the High Court that the ultimate conclusion of the Government in the said proceedings, which is the basis of his dismissal, is based on no evidence.
It is not necessary that in order to attach the order on the ground that it is based on no evidence mala fide exercise of power by the Government should be alleged. The two infirmities are separate and distinct though, conceivably, in some cases both may be present. If it is proved that there is no evidence to support the conclusion of the Government, a writ of certiorari will issue without further proof of mala fides.”
22. In the said case, there was no evidence before the Government to punish the delinquent and only in such circumstances, the Honourable Apex Court has held that the High Court could have interfered with such a decision of the Government. But, same is not the situation in the case on hand. In the cases on hand, the enquiry officer has conducted a thorough enquiry, examining two witnesses and marking three documents on the part of the department and has arrived at the conclusion of holding the delinquents guilty of the charges framed against them. Therefore, the proposition laid down by the Honourable Apex Court in the above said case has no application to the facts of the present case.
23. In the second judgment cited above, reported in JT 1999 (8) SC 418, the Honourable Apex Court, considering the fact that the complainant himself was not examined as a witness, has held that there was no proper enquiry held by the authorities and quashed the order of dismissal passed against the delinquent appellant therein. But, in the case on hand, the complainant Mr.S.Ramamurhy has been examined as P.W.1 before the enquiry officer and therefore, the above judgment relied on by the learned counsel for the petitioners also has no application to the facts of the case on hand.
24. In the third case cited above, reported in (2003) 3 MLJ 479, a Division Bench of this Court has held that:
“The delinquent employee has the right of hearing not only during the hearing conducted by the Enquiry Officer but also at the appellate stage where the appellate authority considers the legality of the findings of the enquiry officer.”
25. Since the enhancement of punishment in respect of N.Sethuraman (petitioner in W.P.No.30370 of 2004) by the Inspector General of Prison from one of reduction in the pay scale (ordered by the appellate authority) to that of compulsory retirement is under challenge, we deem it apt to quote Rule 36 of the Tamil Nadu Civil Services (Classification, Control and Appeal) Rules deals with ‘Revision’ which reads as follows:
“36. Revision (1) Notwithstanding anything contained in these rules –
(i)the State Government; or
(ii)the head of the department directly under the State Government, in the case of a Government servant serving in a department or office under the control of such head of the department, or
(iii)the appellate authority, within six months of the date of the order proposed to be revised, or
(iv)any other authority specified in this behalf by the State Government by a general or special order, and within such time as may be prescribed in such general or special order,may, at any time, either on their or its own motion or otherwise call for the records of any inquiry and after consultation with the Tamil Nadu Public Service Commission where such consultation is necessary and revise any order made under these rules, may –
(a) confirm, modify or set aside the order,
or
(b) confirm, reduce, enhance or set aside the penalty imposed by the order, or impose any penalty where no penalty has been imposed, or
(c) remit the case to the authority which made the order or to any other authority, directing such authority to take such further enquiry as it may consider proper in the circumstances of the case; or
(d) pass such other orders as they or it may deem fit;
Provided that no order imposing or enhancing any penalty shall be made by any revising authority unless the Government servant concerned has been given a reasonable opportunity of making his representation against the penalty proposed ….”
26. This Rule 36 of the Tamil Nadu Civil Services (Classification, Control and Appeal) Rules, vests power on the revisional authority even to enhance the punishment imposed on the delinquent employee. But, the only condition required to be complied with by him, before resorting to such an action is to give an opportunity to the delinquent to make his representation. In the case of N.Sethuraman, (the petitioner in W.P.No.30370 of 2004), the original punishment of compulsory retirement was modified by the appellate authority, by imposing the punishment of reduction of his basic pay to the bottom scale of pay without cumulative effect for five years’. Thereafter, the first respondent issued a show-cause notice dated 8.2.2002 to N.Sethuraman as to why the punishment should not be enhanced to that of compulsory retirement. For this, a reply was also submitted by this petitioner and after rejecting the same, the punishment of compulsory retirement was inflicted on him by the first respondent and therefore, the first respondent has fully complied with and satisfied the proviso to Rule 36 of the Tamil Nadu Civil Services (Classification, Control and Appeal) Rules by issuing show-cause notice to the petitioner.
27. At this juncture, we also feel apt to quote a judgment of the Honourable Apex Court in STATE OF PUNJAB vs. NIRMAL SINGH [2007) 8 SCC 108], wherein it has been held that in departmental enquiry, personal hearing at review stage is not necessary unless rules provide for it. Therefore, we have no hesitation to hold that the principles of natural justice have been duly complied with by the first respondent before restoring the original punishment of compulsory retirement from service. The other argument advanced on the part of this petitioner that only since he submitted a representation regarding the absence of his pay and other particulars for the period from the date of his compulsory retirement and that of his date of reinstatement, unnecessarily, he has been targeted and the punishment was enhanced only to wreak vengeance against him, cannot be appreciated since not only this petitioner but also the other similarly placed employees were inflicted with the punishment of compulsory retirement and no discrimination has been shown by the authorities. Therefore, the third judgment relied on by the learned counsel for the petitioners also does not help the case of the petitioners.
28. Regarding the other aspect of non-furnishing of documents raised on the part of the petitioners, from the communication dated 27.1.1999 sent by the respondents to the petitioners, all the relied on documents were furnished to the petitioners, though not all the documents requested by the petitioners. When it is the specific and uncontroverted contention of the respondents that rest of the documents sought for on the part of the petitioners are not at all available with the respondents, in our considered opinion, no prejudice has been caused to the petitioners.
29. The petitioners belonging to a disciplined force must maintain utmost discipline and must exhibit complete devotion to duty. The charges proved against the petitioners in the departmental proceedings being grave in nature, since they have behaved in an unruly manner against their superior officer, which is unbecoming on the part of an employee of disciplined force, the punishment of compulsory retirement imposed on the petitioners is not at all grave to the proved charges.
For all the above discussions held, both these writ petitions are liable only to be dismissed and are accordingly, dismissed. No costs.
Index: Yes Internet: Yes (E.D.R., J.) (T.S.S., J.) Rao 24.2.2010 To 1.The Inspector General of Prison, CMDA Tower 2, Egmore, Chennai-8. 2.The Deputy Inspector General of Prison, CMDA Tower 2, Egmore, Chennai-8. 3.The Superintendent, Central Prison, Chennai-600003. 4.The Registrar, Tamil Nadu Administrative Tribunal, Chennai-600104. ELIPE DHARMARAO, J. AND T.S.SIVAGNANAM, J. (Rao) Pre-delivery common order in W.P.Nos.29751 & 30370 of 2004 24.2.2010