Madras High Court
J.K.Balaji vs 3 The Assistant Commissioner on 9 March, 2022
W.P.No.3082 and 3086 of 2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 9.3.2022
CORAM
THE HONOURABLE Mr.JUSTICE D.KRISHNAKUMAR
W.P.No.3082 and 3086 of 2020
W.M.P.Nos.3617, 3620, 3621, 3629 & 3631 of 2020
1 J.K.Balaji ... Petitioner in
both W.Ps.
Vs.
1 The Commissioner,
Greater Chennai City Municipal Corporation
Ripon Buildings, Chennai 600 003.
2 The Regional Deputy Commissioner (Central),
Chennai City Municipal Corporation,
Shenoy Nagar, Chennai 600 030.
3 The Assistant Commissioner
Greater Chennai City Municipal Corporation,
Ripon Buildings, Chennai 600 003. ... Respondents in both W.Ps
Prayer in W.P.No.3082 of 2020:
The Writ Petition is filed under Article 226 of the Constitution of
India, seeking for a Writ of Certiorarified Mandamus, calling for the records
relating to the impugned memorandum issued by the 3rd respondent in G.D
Na.Ka.No.E5/26449/2019 dated 27.1.2020 and quash the same and
consequently direct the 1st Respondent to revoke the suspension order and
to restore the petitioner to duty as Assistant and consequently treat the
entire period of suspension as duty since the criminal case and also the
departmental enquiry haven been ended in acquittal.
Prayer in W.P.No.3086 of 2020:
The Writ Petition is filed under Article 226 of the Constitution of
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W.P.No.3082 and 3086 of 2020
India, seeking for a Writ of Certiorarified Mandamus, calling for the records
relating to the impugned order of suspension issued by the Commissioner
(in-charge) in GDC No.E5/10076/2010 dated 24.4.2010 and quash the same
and consequently direct the 1st Respondent to revoke the suspesion order
immediately in the light or the orders issued by the Apex Court in C.A.No.
1912 of 2015 dated 16.2.2015 (Ajay Kumar Choudhary Vs Union of India) and
to permit the Petitioner to rejoin duty and consequently treat the entire
period of suspension from 24.4.2010 till the date of rejoining duty as under
the Fundamental Rules.
For Petitioner in : Mr.T.Ranganathan
both W.Ps.
For Respondents in : Mr.R.Gopinath
both W.Ps. Standing Counsel
******
COMMON ORDER
Though two writ petitions are filed by the petitioner challenging
the impugned suspension order and the impugned show cause notice, the
issue involved in both writ petitions are one and the same and therefore,
common order is being passed.
2. According to the petitioner, the petitioner was working as
Assistant in the respondent Corporation and he was placed under suspension
on 24.4.2010 by the first respondent on the ground that a criminal case in
No.RC110/2009 LB/CC- was under investigation by the Vigilance and Anti
Corruption, Chennai City based on the complaint given by one
Tmt.R.Alphonsa @ Nirmala. Based on the aforesaid complaint and on
investigation, the petitioner was arrayed as 3rd Accused in C.C.No.107 of
2011 after obtaining sanction orders and prosecuted for the offence
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W.P.No.3082 and 3086 of 2020
punishable under the provisions of Prevention of Corruption Act. However,
the petitioner was acquitted by the judgment dated 30.10.2018 made in
C.C.No.107 of 2011 on the file of Special Court for the cases under
prevention of Corruption Act. According to the petitioner, after the lapse
of 10 years, the respondent has proceeded against the petitioner by issuing
charge memo and the petitioner submitted detailed explanation. The
enquiry officer submitted a report by holding that the charges as against the
petitioner was not proved. However, the third respondent disagree with the
findings of the enquiry officer, issued the impugned show cause notice,
dated 27.1.2020 to the petitioner. Challenging the said show cause notice,
the petitioner has filed W.P.No.3082 of 2020 and to revoke the suspension
order, the petitioner as filed W.P.No3086 of 2020 before this Court.
3. Common counter affidavit has been filed by the third
respondent wherein it is stated that based on the complaint given by one
Tmt.Alphonsa @ Nirmala, a beneficiary under the Marriage Assistance
Scheme, Directorate of Vigilance and Anti Corruption had registered F.I.R.
and caught red handed one R.Baskar who obtained illegal gratification of
Rs.5,000/- through one middleman Thiru C.Naganathan to hand over the
cheque to the beneficiary Tmt.Alphonsa through trap organised by the
D.V.A.C. Subsequently, based on the investigation, the petitioner was
arrayed as accused-3 and the D.V.A.C. had prosecuted all the three accused
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W.P.No.3082 and 3086 of 2020
under the Prevention of Corruption Act, 1988 r/w Schedule 109 of I.P.C. In
C.C.No.107 of 2011 before the Special Court for the cases under Prevention
of Corruption Act. However, the petitioner was acquitted by the judgment
dated 30.10.2018 made in C.C.No.107 of 2011 on the file of Special Court
for the cases under prevention of Corruption Act. A Charge memo was
issued by the Regional Deputy Commissioner to the petitioner as per Rule
9(2) of Chennai Corporation Class III and IV Employees (Discipline and
Appeal) Bye-laws and the petitioner submitted his explanation to the charge
memo on 26.6.2019. The enquiry officer has given his finding that charge
framed as against the petitioner is not proved.
4. Heard the rival submissions of the parties and perused the
materials available on record.
5. The learned counsel appearing for the petitioner would
contend that the enquiry officer found that there was no evidence or record
to show that the cheque payable to Tmt.Alphonsa was handed over to
Baskar by the petitioner, thereby charge framed as against the petitioner
was not proved. The third respondent cannot take a deviated view,
according to the petitioner who is an incompetent authority. Further, the
learned counsel appearing for the petitioner would submit that the third
respondent has not assigned any reasoning to disagree with the findings of
the enquiry officer. Further, the charge memo dated 18.6.2019 itself is
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W.P.No.3082 and 3086 of 2020
unsustainable on the ground of inordinate delay of over 9 years. In support
of his contention, he placed reliance on the unreported judgment of this
Court in THE SECRETARY TO GOVERNMENT, COMMERCIAL TAXES &
REGISTRATION DEPARTMENT, FORT ST. GEORGE, CHENNAI - 600 009
AND ANOTHER VS. S.GURUNOORTHY AND ANOTHER [ W.A.Nos.953 and
954 of 2015 dated 23.7.2015].
6. The learned Standing Counsel appearing for the respondents
would submit that the third respondent being a Competent Authority need
not accept the findings of the inquiry officer. In a departmental
proceedings, the principle of preponderance of probability is sufficient to
hold the charges against the petitioner as proved and the punishment is
awarded to the petitioner only after considering the gravity of the offence
committed by the petitioner. Therefore, the impugned orders are
sustainable in law.
7. The petitioner was placed under suspension on 24.4.2010 on
the ground that a criminal case against the petitioner was under
investigation and an enquiry officer was appointed and the petitioner also
participated in the enquiry proceedings. The enquiry officer submitted his
report in the year 2019 by holding that the charge as against the petitioner
is not proved. When the criminal case in C.C.No.107 of 2011 for which
departmental proceedings was initiated against the petitioner, was ended in
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W.P.No.3082 and 3086 of 2020
acquittal on 30.10.2018, the impugned show cause notice was issued to the
petitioner on 27.1.2020. When the alleged delinquency had taken place in
the year 2010, this Court could not understand why the respondent
Corporation has taken such a long 10 years period for conducting
departmental proceedings, when the Government has issued circular
instructions to all the departments to proceed departmental proceedings as
well as the criminal proceedings simultaneously. The respondent
Corporation following the guidelines issued by the Government should take
appropriate action against the concerned officials for dragging the
departmental proceedings for 10 years against the petitioner.
8. In sofar as the disagreement with the findings of the enquiry
officer by the disciplinary authority, this Court already decided the similar
issue in A.Arumuga Navaraj, S/o.M.Arumugam Vs. The Additional Chief
Secretary to Govt., Commercial Tax and Registration (K) Dept., Fort
St.George, Chennai-9 [W.P.No.13392 of 2017 dt.10.1.2020] by placing
reliance on the judgment of the Hon'ble Supreme Court and the Division
Bench of this Court, has held as under:
''9. The Division Bench of this Court in THE
SECRETARY TO GOVERNMENT, COMMERCIAL
TAXES & REGISTRATION DEPARTMENT, FORT ST.
GEORGE, CHENNAI-9 AND ANOTHER VS.
S.GURUNOORTHY AND ANOTHER [ W.A.Nos.953
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W.P.No.3082 and 3086 of 2020
and 954 of 2015 dated 23.7.2015], held as under:
''7. The charge No.3, on reading itself, appears to be
week and vague. A common charge has been levelled
against all the three accused. Finding of unaccounted
cash in one corner of the office cannot be attributed to any
particular person or to all persons working in the office.
The learned Single Judge has rightly come to the
conclusion that the said charge was proved on the basis of
no evidence and that the charge was rightly set aside and
the writ petitions were allowed.''
10. Further, the Hon'ble Supreme Court in
National Fertilizers Ltd. Vs. P.K. Khanna,
[(2005) 7 SCC 597 ] held as follows:
''9. Apart from misreading the enquiry officer's
report, the High Court also misapplied the law. The
various decisions referred to in the impugned judgment
make it clear that the disciplinary authority is required to
give reasons only when the disciplinary authority does not
agree with finding of the enquiry officer......
10. It is apparent from sub-rule (2) that the
disciplinary authority is not required to record its reasons
if it concurs with the enquiry officer's findings in
contradiction with the situation in which the disciplinary
authority disagrees with the findings of the enquiring
authority. Only in the latter case does sub-rule (2)
expressly mandate that the disciplinary authority shall, if it
disagrees with the findings of the enquiry officer record its
reasons for such disagreement as well as its own findings
on such charges.
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W.P.No.3082 and 3086 of 2020
11. In Punjab National Bank v. Kunj Behari
Misra [(1998) 7 SCC 84] the Hon'ble Supreme
Court laid down a law as follows:
''19. ........ whenever the disciplinary authority
disagrees with the enquiry authority on any article of
charge, then before it records its own findings on such
charge, it must record its tentative reasons for such
disagreement and give to the delinquent officer an
opportunity to represent before it records its findings. The
report of the enquiry officer containing its findings will
have to be conveyed and the delinquent officer will have an
opportunity to persuade the disciplinary authority to
accept the favourable conclusion of the enquiry officer.
The principles of natural justice, as we have already
observed, require the authority which has to take a final
decision and can impose a penalty, to give an opportunity
to the officer charged of misconduct to file a
representation before the disciplinary authority records its
findings on the charges framed against the officer.''
12. Considering the facts and circumstances of
the case and the decision cited supra, the impugned
order passed by the second respondent in proceedings
No.51745/V2/2011, dated 8.12.2015 and the
consequential order passed by the first respondent in
G.O.(D) No.370, Commercial tax and Registration
Department, dated 14.10.2016 are quashed.
13. Accordingly, the writ petition is allowed. No
order as to cost. Connected miscellaneous petition is
closed.''
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W.P.No.3082 and 3086 of 2020
9. In the light of the judgments cited supra, the impugned show
cause notice dated 27.1.2019 issued by the third respondent is quashed and
consequently, the suspension order issued by the first respondent, dated
24.4.2010 is also quashed. Taking into consideration of the fact that the
alleged delinquency occurred in the year 2010, it is inappropriate for this
Court to remand the matter to the authorities concerned to consider afresh,
after the lapse of 12 years. Therefore, considering the gravity of the
charges and the criminal case ended in acquittal, the first respondent is
directed to consider the representation of the petitioner for reinstatement
into service and pass appropriate orders within a period of 12 weeks from
the date of receipt of copy of the order.
10. In fine, both the writ petitions are allowed with the above
observations. No Costs. Connected miscellaneous petitions are closed.
9.3.2022
Speaking / Non-Speaking order
Internet:Yes/No
Index:Yes/No
vaan
To
1 The Commissioner, Greater Chennai City Municipal Corporation,
Ripon Buildings, Chennai 600 003.
2 The Regional Deputy Commissioner (Central),
Chennai City Municipal Corporation, Shenoy Nagar, Chennai 600 030.
3 The Assistant Commissioner, Greater Chennai City Municipal
Corporation, Ripon Buildings, Chennai 600 003.
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W.P.No.3082 and 3086 of 2020
D.KRISHNAKUMAR,J.
vaan
W.P.No.3082 & 3086 of 2020
W.M.P.Nos.3617, 3620, 3621,
3629 & 3631 of 2020
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W.P.No.3082 and 3086 of 2020
Dated: 9.3.2022
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