Madras High Court
G.Ramachandran (Died) vs The Secretary To Government on 1 November, 2021
W.A.No.2893 of 2012
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATE ON WHICH RESERVED: 01.11.2021
DATE ON WHICH PRONOUNCED: 24.11.2021
CORAM:
THE HONOURABLE MR.JUSTICE S.VAIDYANATHAN
and
THE HONOURABLE MR.JUSTICE R.VIJAYAKUMAR
W.A.No.2893 of 2012
and
C.M.P.No.15771 of 2021
1.G.Ramachandran (died) ....Appellant/Petitioner
2.R.Mallika
W/o.Late.G.Ramachandran
3.R.Punithakumaran
S/o.Late.G.Ramachandran
4.R.Chandrakumari
W/o.S.Mahendran
5.R.Indrakumari
W/o.S.Eswaren
6.R.Babu
S/o.Late.Mr.G.Ramachandran
7.R.Menaga
D/o.Late.G.Ramachandran ... Appellants 2 to 7
(Appellants 2 to 7 brought on record the legal heirs of the
deceased first appellant viz., G.Ramachandran vide Court
order dated 29.09.2021 made in CMP.No.15771 of 2021 in
WA.No.2893 of 2012)
Vs.
1/8
https://www.mhc.tn.gov.in/judis
W.A.No.2893 of 2012
The Secretary to Government
Commercial Tax Department
Fort St. George
Chennai 600 009 ... Respondent/Respondent
Prayer: Writ Appeal filed under Clause 15 of Letters Patent, to set aside the order
dated 18.07.2012 in W.P.No.21889 of 2004.
For Appellants : Mr.V.Raghupathi
For Respondent : Mr.K.Tippu sultan
Government Advocate
*****
JUDGMENT
The unsuccessful writ petitioner is the appellant herein.
2.The writ petitioner was working as a Sub-Registrar at Anna Nagar, Sub-
Registrar Office, Chennai. He was issued a charge memo on 13.09.2000 on the
allegation that he demanded and received a bribe of Rs.4,000/- from one Raju for
registering a sale deed. The writ petitioner submitted his explanation to the said
charge memo. An enquiry officer was appointed to go into the allegation. The
enquiry officer examined the witnesses and the writ petitioner was permitted to
engage a counsel and also to cross-examine the witnesses. Thereafter, an enquiry
reported was submitted finding the writ petitioner guilty of charges.
3.The Registration Department sought opinion of the Tamil Nadu Public
Service Commission with regard to the imposition of the punishment. On
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W.A.No.2893 of 2012
17.06.2003, the Tamil Nadu Public Service Commission gave its opinion that it a fit
case for ordering removal from service. Based on the said advise, the respondent
herein passed an order in G.O(Rt).No.89, dated 27.04.2004 removing the petitioner
from service. The said order was challenged in W.P.No.21899 of 2004 mainly on the
ground that there are contradictions in the oral and documentary evidence of the
complaint and the enquiry officer has not properly appreciated the inconsistency
in the written statement filed before him.
4.The learned counsel for the writ petitioner had contended that though
three persons have deposed before the enquiry officer, they have refused to sign in
the statement and hence, their statements should not have been considered by the
enquiry officer. The counsel for the writ petitioner had further contended that
there is absolutely no evidence for imposing a major penalty of removal from
service. The learned Single Judge after considering the submission of the writ
petitioner has held that strict rule of evidence does not apply to departmental
enquiry and hence, non-signing of the statement by the deponents before the
enquiry officer cannot be fatal to the enquiry report. The learned Single Judge has
further held that the High Court while exercising its power under Article 226 of the
Constitution of India, cannot re-appreciate the evidence and arrive at a difference
conclusion unless the findings are perverse. The learned Single Judge further held
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W.A.No.2893 of 2012
that the allegation of corruption is a serious misconduct and hence, the
punishment imposed, namely removal from service, cannot be said to be
disproportionate to the proved charges. As against the said order, the present Writ
Appeal has been filed.
5.Pending writ appeal, the appellant had passed away on 07.04.2017 and his
legal heirs have been substituted as appellants 2 to 7 in the writ appeal. The
learned counsel for the appellants contended that there are various contradictions
among the statement of the deponents and the allegation that the writ petitioner
has received the bribe of Rs.4,000/- has not been proved. The learned counsel
further contended that there is absolutely no evidence to prove the delinquency
that the petitioner had demanded and accepted the bribe amount of Rs.4,000/- for
registering a sale deed and hence, any finding to the said effect is perverse. The
learned counsel for the appellant further contended that the disciplinary authority
has not properly considered the explanation submitted by the petitioner. Pursuant
to the enquiry report, an non-speaking order has been passed by the disciplinary
authority removing the petitioner from service.
6.We have heard the learned counsel for the appellants and the respondent.
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W.A.No.2893 of 2012
7.The main contentions of the appellants is that there are contradictions
between the deposition of various witnesses but it cannot be considered by the
Court while exercising power under Article 226 of the Constitution of India. The
judgement of Hon'ble Supreme Court reported in (2015) 2 SCC Page 610 (Union of
India and others Vs.P.Gunasekaran) in paragraph 13 has held as follows:
“13.Under Article 226/227 of the Constitution of India, the
High Court shall not:
(i)reappreciate the evidence;
(ii)interfere with the conclusions in the enquiry, in case the
same has been conducted in accordance with law;
(iii)go into the adequacy of the evidence;
(iv)go into the reliability of the evidence;
(v)interfere, if there be some legal evidence on which
findings can be based.
(vi) correct the error of fact however grave it amy appear
to be;
(vii) go into the proportionality of punishment unless it
shocks its conscience.”
8.The Hon'ble Supreme Court has further held that the High Court has no
power to go into the adequacy or reliability of the evidence.
9.In the present case, we find that even though there are some
contradictions in the deposition of some deponents before the enquiry officer, the
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W.A.No.2893 of 2012
same are not material contradictions which would affect the result of the enquiry.
That apart, it is not a case of no evidence and hence, findings of the enquiry
officer cannot be said to be perverse.
10.The learned counsel for the appellants made an alternative submission
that the writ petitioner had passed away pending writ appeal on 07.04.2017. The
writ petitioner has already put in 38 years of unblemished service in the
department and the punishment of removal from service would result in
deprivation of pensionary benefits to the family members of the deceased
employee.
11.In the present case, the allegation in the charge memo is that the
purchaser of the property had paid a sum of Rs.4,000/- as bribe to the delinquent,
but later the delinquent had returned the said amount to the purchaser on the
advise of the vendor of the property. If we allow the contention of the petitioner
that amount has been returned and hence, no punishment could be imposed,
cannot be accepted. If this is allowed, everyone will demand bribe as a matter of
right and on a complaint, the amount will be returned and thereafter, will contend
that the amount has been returned, hence, no punishment could be imposed. The
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W.A.No.2893 of 2012
reason for interference of the order of dismissal from service is that the family
members should not suffer on account of the demise of the employee.
12.In the said circumstances, we find that the punishment imposed by the
disciplinary authority for removal from service is disproportionate. When the
punishment imposed is found to be disproportionate, this Court has no power to
substitute, but can only remit the matter back to the disciplinary authority to
reconsider the punishment. But, in the present case, the delinquent had passed
away on 07.04.2017 and we find that it may not be possible to remit the matter
back to the disciplinary authority. As per Rule-8 of the Tamil Nadu Civil Services
(Discipline and Appeal) Rules, both compulsory retirement and removal from
service are deemed to be major penalty. The petitioner has put in 38 years of
service and he had passed away pending writ appeal. Hence, in view of the
peculiar circumstances of the case, we interfere in the quantum of punishment.
We impose the punishment of compulsory retirement instead of removal from
service. It is needless to point out that the substitution of punishment as a
compulsory retirement will result in consequential benefit to the family members
of the deceased delinquent. As the misconduct is one of moral turpitude, no
gratuity is payable. The eligible person is only entitled to family pension on
account of the Compulsory Retirement. The said benefit shall be extended to the
family members of the deceased delinquent from 01.12.2021 onwards.
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W.A.No.2893 of 2012
S.VAIDYANATHAN,J.
AND
R.VIJAYAKUMAR,J.
msa
13. With the above said modification, this Writ Appeal is partly allowed. No
costs. Consequently connected miscellaneous petition is closed.
[S.V.N.J.,] [R.V.J.,]
24.11.2021
Index :yes
Internet :yes
msa
Note:In view of the present lock down owing to COVID-19 pandemic, a web
copy of the order may be utilized for official purposes, but, ensuring that
the copy of the order that is presented is the correct copy, shall be the
responsibility of the Advocate/litigant concerned.
Pre-delivery Judgment made in
W.A.No.2893 of 2012
and
C.M.P.No.15771 of 2021
https://www.mhc.tn.gov.in/judis
