IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 02.08.2010 CORAM THE HONOURABLE MR. JUSTICE D.HARIPARANTHAMAN W.P.NO.13119 OF 2009 AND M.P.NO.1 OF 2009 K.Nagamanickam ... Petitioner Versus 1.The Sub Collector Pollachi. 2.The District Collector Coimbatore District. ... Respondents PRAYER: Writ petition filed under Article 226 of the Constitution of India praying for the issuance of writ of certiorarified mandamus, calling for the records of the respondents in connection with the impugned orders passed in (1) Ref.4768/07/A4 dated 31.05.2007 (2) Ref.4768/07/A4 dated 31.05.2007 (both of the first respondent) and (3) Na.Ka.No.38447/2008/E1 dated 01.09.2008 of the second respondent and quash the same and to direct the respondents herein to declare that the petitioner is deemed to have retired from service as on 31.05.2007 AN and to forthwith disburse to him all the retirement benefits due and payable to him along with 18% interest on the delayed payment. For Petitioner : Mr.M.Ravi For Respondents : Mrs.Lita Srinivasan Government Advocate O R D E R
The petitioner was employed as a Village Administrative Officer in Avalappampatti Village, Pollachi Taluk, Coimbatore District. He was issued with a charge sheet dated 18.03.2005 under Rule 17(b) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules (Shortly “the Rules”), levelling four charges against him. Charge Nos.1 and 2 are that the petitioner demanded a sum of Rs.10,000/- from one R.Soundararajan to take action on the application made by him relating to grant track rent permission and that he accepted a sum of Rs.3,000/- as bribe from the said R.Soundararajan during July 2002 and the other charges are not relevant for this case.
2.An enquiry was conducted. Based on the enquiry, the petitioner was imposed with the punishment of stoppage of increment for a period of three years with cumulative effect, vide order dated 02.01.2006 of the first respondent. In the meantime, the petitioner was placed under suspension from 16.07.2002. On the intervention of the Tamil Nadu Administrative Tribunal, by an order dated 27.04.2004, in O.A.No.1802/2004, the petitioner was reinstated in service. The order of the Tamil Nadu Administrative Tribunal became final.
3.As stated above, the disciplinary proceedings ended in the punishment of withholding of stoppage of increment for three years with cumulative effect. While so, the petitioner attained the age of superannuation on 31.05.2007. But the first respondent, invoking its power under Rule 17(e) of the Rules, passed an order dated 31.05.2007 placing the petitioner under suspension on the ground that a criminal case is pending trial. The first respondent has also passed an order on the same day i.e. on 31.05.2007, retaining the petitioner in service, by not permitting him to retire from service till the conclusion of the criminal case. The said order was passed invoking its power under Rule 56(1)(c) of the Fundamental Rules.
4.A criminal case was also instituted on the same set of charges, i.e. demanding and accepting bribe from Thiru.R.Soundararajan, in Spl.C.C.No.4/2003 before the Special Judge / Chief Judicial Magistrate, Coimbatore under the Prevention of Corruption Act. The petitioner was acquitted in the criminal case in Spl.C.C.No.4/2003 by the Special Judge cum Chief Judicial Magistrate, Coimbatore, on 12.06.2007. That is, after 12 days from the above said orders placing him under suspension and not permitting him to retire from service, he was acquitted in the criminal case, on the same set of charges.
5.Since the petitioner was not allowed to retire even after 12.06.2007, he made a representation dated 30.08.2007 to the first respondent requesting to revoke the suspension order and to permit him to retire from service. But the second respondent passed an order dated 01.09.2008 rejecting his request.
6.The petitioner filed the present writ petition seeking to quash the orders dated 31.05.2007 of the first respondent placing him under suspension and not permitting him to retire from service and also the order dated 01.09.2008 of the second respondent rejecting his request to revoke the suspension and to permit him to retire from service.
7.Heard Mr.M.Ravi, learned counsel for the petitioner and Mrs.Lita Srinivasan, learned Government Advocate for the respondents.
8.The learned counsel for the petitioner submits that since the respondents decided to proceed simultaneously with the disciplinary proceedings before the conclusion of the criminal trial and imposed the punishment by the order dated 02.01.2006, the respondents are not justified in placing the petitioner under suspension on the ground that a criminal trial is pending on the same set of allegations. In this regard, the learned counsel for the petitioner relies on the judgment of the Division Bench of this Court in D.NARAYANAN VS. DISTRICT REVENUE OFFICER, VIRUDHUNAGAR reported in 2009 (4) MLJ 708.
9.The learned counsel for the petitioner further submits that in any event, the petitioner was acquitted from the charges, even in the criminal case on 12.06.2007 and that therefore, the respondents are not justified in continuing the suspension and not permitting him to retire from service. According to him, this is contrary to Rule 56(1) (c) of the Fundamental Rules.
10.On the other hand, the learned Government Advocate submits that an appeal against acquittal was preferred by the prosecution and the same is pending before this Court in Crl.A.No.20 of 2010. According to her, since the appeal is the continuation of the original proceedings, the petitioner could be kept under suspension, till the disposal of the appeal. The learned Government Advocate also relies on the decision of the Honourable Apex Court in STATE OF PUNJAB AND OTHERS VS. PREM SARUP reported in 2008 (12) SCC 522.
11.The disciplinary action as well as the criminal case in Spl.C.C.No.4/2003 are grounded on the same set of facts. The same is not in dispute. In fact, the disciplinary action was on many charges. One of the charges is the subject matter of the criminal case. When the respondents chose to proceed with the departmental enquiry before the conclusion of the criminal trial and ultimately imposed the punishment of stoppage of increment for three years with cumulative effect by an order dated 02.01.2006, the respondents are not justified in placing the petitioner under suspension by the impugned orders dated 31.05.2007 and not permitting him to retire from service on the ground that criminal trial is pending. It is a different matter that the respondents decided to take action under Rule 17(c) of the Rules. Having chosen to take departmental action simultaneously along with criminal prosecution and also imposed the punishment, the respondents are not justified in placing the petitioner under suspension. The respondents cannot invoke Rule 17(c) of the Rules, if they have already taken action under Rule 17(b) of the Rules. The same is the dictum laid down by the Division Bench of this Court in D.NARAYANAN VS. DISTRICT REVENUE OFFICER, VIRUDHUNAGAR reported in 2009 (4) MLJ 708.
12.The judgment of the Honourable Apex Court reported in 2008 (12) SCC 522 relied on by the learned Government Advocate is not applicable to the facts of the case. In that case, the Honourable Apex Court ruled that even after acquittal in criminal case, the department can initiate departmental proceeding on similar charges. The said proposition is not in issue in this case.
13.Hence, I am of the considered view that the very suspension and retaining the petitioner in service by the impugned orders dated 31.05.2007 of the first respondent, is without jurisdiction and illegal.
14.In any event, the respondents are not justified in continuing the suspension after 12.06.2007. Rule 56(1)(c) of the Fundamental Rules reads as follows:
“56(1)(c) Notwithstanding anything contained in clause (a), a Government servant who is under suspension,
(i) on a charge of misconduct; or
(ii)against whom an enquiry into grave charges of criminal misconduct or allegations of criminal misconduct, is pending; or
(iii) against whom an enquiry into grave charges is contemplated or is pending; or
(iv) against whom a complaint of criminal offence is under investigation or trial.
shall not be permitted by the appointing authority to retire on his reaching the date of retirement, but shall be retained in service until the enquiry into the charge of misconduct or criminal misconduct or the enquiry into allegations of criminal misconduct or the enquiry into contemplated charges or disciplinary proceeding taken under rule 17(c) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules or rule 3(c) of the Tamil Nadu Police Sub-ordinate Service (Discipline and Appeal) Rules, as the case may be, in respect of item (iv) above is concluded and a final order passed thereon by the competent authority or by any higher authority.”
15.The relevant clause is Rule 56(1)(c)(iv). As per this clause, the suspension could be during investigation or trial. In this case, the trial came to end on 12.06.2007 in favour of the petitioner. The respondents cannot say that an appeal was preferred and that therefore, the petitioner should await till the outcome of the appeal on the ground that the same is the continuation of the original proceedings. If that principle is applied, the petitioner has to wait for further appeal before the Honourable Apex Court, if this Court dismisses the appeal. That is not the purport of Rule 56(1)(c) of the Fundamental Rules. Rule 56(1)(c) of the Fundamental Rules uses only “investigation or trial” and it does not use “appeal”. The respondents are given power to keep the petitioner under suspension only during investigation or trial, when the department decided to take action under Rule 17(c) of the Rules. In this case, that is not applicable as the department took action under Rule 17(b) of the Rules.
16.In these circumstances, the impugned orders are bad and illegal and accordingly, the same are quashed. Since the petitioner is deemed to have retired on 31.05.2007 and the delay in disbursement of terminal benefits is not due to the fault of the petitioner, the respondents are directed to disburse the retirement benefits with 10% interest, as per the Judgment of the Division Bench of this Court in Govt. of Tamil Nadu rep. by the Secretary to Government, Revenue Department, Chennai and another Vs. M.Deivasigamani reported in 2009 (3) MLJ 1, within a period of eight weeks from the date of receipt of a copy of this order.
17.The writ petition is allowed on the above terms. No costs. Consequently, connected miscellaneous petition is closed.
02.08.2010
Index : Yes/No
Internet : Yes/No
TK
D.HARIPARANTHAMAN, J.
TK
To
1.The Sub Collector
Pollachi.
2.The District Collector
Coimbatore District.
W.P.NO.13119 OF 2009
02.08.2010