Madras High Court
C.Sadasivam vs The State Of Tamil Nadu Rep By on 1 September, 2021
1 /8 W.P.No.17446 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated: 01.09.2021
CORAM:
THE HON'BLE MR.JUSTICE .C.SARAVANAN
W.P.No.17446 of 2021
and W.M.P.Nos.18529 & 18606 of 2021
C.Sadasivam ... Petitioner
vs
1.The State of Tamil Nadu rep by
Principle Secretary / Commissioner of Commercial taxes,
O/o.The Principal Secretary /
Commissioner of Commercial Taxes,
Ezhilagam, Chepauk, Chennai 600 005.
2.The State of Tamil Nadu rep by
Addl.Commissioner (Administration)
O/o.The Principal Secretary /
Commissioner of Commercial Taxes,
Ezhilagam, Chepauk,
Chennai 600 005. ... Respondents
Prayer: Writ Petition filed under Article 226 of the Constitution of
India, praying for issuance of a Writ of Certiorarified Mandamus, calling
for the records on the file of the first respondent made in Procs.No.E1 /
7117/ 08-1 and Procds.No.E1/7117/ 08-II dated 24.09.2008 and
Proc.No.E2/7117/2008 dated 23.03.2021 on the file of the second
respondent and quash the same and consequently direct the Respondents
to permit the petitioner to retire from service on the date of his
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2 /8 W.P.No.17446 of 2021
superannuation i.e on 30.09.2008 and to disburse all his service benefits
including Gratuity amount.
For Petitioner : Mr.G.Selvi George
For Respondents : Mr.V.P.R.Elamparithi,
Government Advocate
ORDER
Heard the learned counsel for the petitioner and the learned
Government Advocate for the respondents.
2. By the impugned communication dated 23.03.2021, the first
respondent has concluded that the enquiry conducted by the enquiry
officer was not proper and therefore in order to set right the infirmities,
which would otherwise vitiate the enquiry, the petitioner asked to come
for an enquiry against him in the disciplinary proceedings.
3. The petitioner was appointed as a Record Clerk on 26.07.1974
by the Commercial Tax Department. Subsequently, the petitioner was
promoted as a Junior Assistant on 27.09.1982 and thereafter he was
promoted as an Assistant Commercial Tax Officer at Ambur. When the
petitioner was serving in the said post, he was placed under suspension
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3 /8 W.P.No.17446 of 2021
on 23.03.2002 under Rule 17(e) of the Tamil Nadu Civil Service
(Discipline and Appeal) Rules on the ground that the petitioner was
arrested and remanded to judicial custody by the Vigilance and Anti
Corruption Department later his suspension was revoked on 24.06.2002
and he was reinstated in service.
4. Meanwhile, when the petitioner attained the age of
superannuation on 30.09.2008 and was once again placed under
suspension on 24.09.2008 on the allegation that a criminal case was
pending against him on the file of the Special Judge/Chief Judicial
Magistrate, Vellore. A charge memo was also issued by the first
respondent dated 24.09.2008. The petitioner was thus not allowed to
retire from service in view of the pendency of the criminal case against
the petitioner in S.C.No.5 of 2004.
5. The charges against the petitioner was that he had demanded a
bribe from the defacto complainant. FIR was registered against the
petitioner in Crime No.3 of 2002 for the alleged commission offences
under Sections 7 & 13(1)(d) of the Prevention of Anti Corruption Act.
The charges against the petitioner in the disciplinary proceedings was
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4 /8 W.P.No.17446 of 2021
that the petitioner demanded a sum of Rs.5000/- from the Auditor
Thiru.Imthiyas Ahmed for clearing the accounts of Tvl.Franco Foot Wear
Company for the year 2000-2001 and therefore the petitioner who was
serving as an Assistant Commercial Tax Officer at Ambur had failed to
maintain absolute integrity and devotion to duty and conducted himself
in an unbecoming manner and thus violated rules 20(1) of the Tamil
Nadu Government Servant Conduct Rules 1973.
6. A charge sheet was filed and the case was taken on the file
of the Special and Chief Judicial Magistrate Court, Vellore in S.C.No.5
of 2004. The Special Judge has acquitted the petitioner in the aforesaid
criminal case filed by the Vigilance and Anti Corruption Department by
a Judgment dated 22.10.2018.
7. The allegation against the petitioner in the disciplinary
proceeding was that he demanded a bribe from the defacto complainant.
The defacto complainant had however contradicted himself while
deposing the evidence as P.W.2. After deposing the evidence, the
defacto complainant also died.
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5 /8 W.P.No.17446 of 2021
8. The petitioner has been acquitted from the criminal
proceedings. Same set of the witnesses who were examined in the above
said criminal proceedings were witnessed in the disciplinary proceeding.
As per the decision of the Hon'ble Supreme Court in M.Paul Anthony v.
Bharat Gold Mines Ltd., (1999) 3 SC 679 disciplinary proceeding
cannot be proceeded. In para Nos.34 & 35, it was held as under:
“ 34. There is yet another reason for discarding the whole
of the case of the respondents. As pointed out earlier, the
criminal case as also the departmental proceedings were
based on identical set of facts, namely, “the raid conducted
at the appellant's residence and recovery of incriminating
articles therefrom”. The findings recorded by the enquiry
officer, a copy of which has been placed before us, indicate
that the charges framed against the appellant were sought
to be proved by police officers and panch witnesses, who
had raided the house of the appellant and had effected
recovery. They were the only witnesses examined by the
enquiry officer and the enquiry officer, relying upon their
statements, came to the conclusion that the charges were
established against the appellant. The same witnesses were
examined in the criminal case but the Court, on a
consideration of the entire evidence, came to the
conclusion that no search was conducted nor was any
recovery made from the residence of the appellant. The
whole case of the prosecution was thrown out and the
appellant was acquitted. In this situation, therefore, where
the appellant is acquitted by a judicial pronouncement with
the finding that the “raid and recovery” at the residence of
the appellant were not proved, it would be unjust, unfair
and rather oppressive to allow the findings recorded at the
ex parte departmental proceedings to stand.
35. Since the facts and the evidence in both the
https://www.mhc.tn.gov.in/judis/ proceedings, namely, the departmental proceedings and the
6 /8 W.P.No.17446 of 2021
criminal case were the same without there being any 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 to the instant case”.
9. This view was also followed by the Honourable Supreme
Court in G.M.Tank vs. State of Gujarat and another, 2006 (5) SCC
446, which reads as under:-
“ 30. The judgments relied on by the learned counsel
appearing for the respondents are distinguishable on facts
and on law. In this case, the departmental proceedings
and the criminal case are based on identical and similar
set of facts and the charge in a departmental case against
the appellant and the charge before the criminal court are
one and the same. It is true that the nature of charge in
the departmental proceedings and in the criminal case is
grave. The nature of the case launched against the
appellant on the basis of evidence and material collected
against him during enquiry and investigation and as
reflected in the charge-sheet, factors mentioned are one
and the same. In other words, charges, evidence,
witnesses and circumstances are one and the same. In the
present case, criminal and departmental proceedings have
already noticed or granted on the same set of facts,
namely, raid conducted at the appellant's residence,
recovery of articles therefrom. The Investigating Officer
Mr V.B. Raval and other departmental witnesses were
the only witnesses examined by the enquiry officer who
by relying upon their statement came to the conclusion
that the charges were established against the appellant.
The same witnesses were examined in the criminal case
and the criminal court on the examination came to the
conclusion that the prosecution has not proved the guilt
alleged against the appellant beyond any reasonable
doubt and acquitted the appellant by its judicial
pronouncement with the finding that the charge has not
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7 /8 W.P.No.17446 of 2021
pronouncement was made after a regular trial and on hot
contest. Under these circumstances, it would be unjust
and unfair and rather oppressive to allow the findings
recorded in the departmental proceedings to stand.
31. In our opinion, such facts and evidence in the
departmental as well as criminal proceedings were the
same without there being any iota of difference, the
appellant should succeed. The distinction which is
usually proved between the departmental and criminal
proceedings on the basis of the approach and burden of
proof would not be applicable in the instant case.
Though the finding recorded in the domestic enquiry
was found to be valid by the courts below, when there
was an honourable acquittal of the employee during the
pendency of the proceedings challenging the dismissal,
the same requires to be taken note of and the decision in
Paul Anthony case [(1999) 3 SCC 679 : 1999 SCC
(L&S) 810] will apply. We, therefore, hold that the
appeal filed by the appellant deserves to be allowed ”.
10. The issue is squarely covered by the above two decisions
of the Honourable Supreme Court which have been followed by this
Court in several cases and considering the fact that the petitioner has
attained the age of superannuation on 30.09.2008 since the petitioner
was acquitted in the criminal proceedings as early as on 22.10.2018, this
writ petition deserves to be allowed.
11. The respondents are therefore directed to permit the petitioner
to retire from service on the date of his superannuation on 30.09.2008
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8 /8 W.P.No.17446 of 2021
C.SARAVANAN,J.
kkd
and disburse the terminal and retirement benefits together with pension
to the petitioner. This exercise shall be completed within a period of
sixty days from the date of receipt of a copy of this order.
12. This writ petition is allowed with the consequential relief to
the petitioner. No costs. Consequently, connected miscellaneous
petitions are closed.
01.09.2021
Index:Yes/No
Internet:Yes/No
rgm/kkd
To
1. The Principle Secretary / Commissioner of Commercial taxes,
O/o.The Principal Secretary /
Commissioner of Commercial Taxes,
Ezhilagam, Chepauk, Chennai 600 005
2.The Addl.Commissioner (Administration)
O/o.The Principal Secretary /
Commissioner of Commercial Taxes,
Ezhilagam, Chepauk,
Chennai 600 005.
W.P.No.17446 of 2021
https://www.mhc.tn.gov.in/judis/
