Madras High Court

K.Govindasamy vs The Tahsildar on 13 September, 2022

                                                                                   W.P.No.2430 of 2017

                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                     DATED : 13.09.2022

                                                          CORAM :

                            THE HONOURABLE MR. JUSTICE S.M.SUBRAMANIAM

                                                     W.P.No.2430 of 2017
                                                            and
                                                    W.M.P.No.2405 of 2017


                    K.Govindasamy                                                   ... Petitioner

                                                             Vs.

                    The Tahsildar,
                    O/o.Tahsildar,
                    Krishnagiri District.                                         ... Respondent

                    Prayer: Writ Petition filed under Article 226 of the Constitution of India
                    for issuance of a Writ of Certiorarified Mandamus, to call for the records
                    on the file of the respondent made in Na.Ka.No.16366/2008/B3 dated
                    06.01.2017 and quash the same and consequently direct the respondent to
                    reinstate the petitioner in service with continuity of service and seniority.


                                   For Petitioner       : Mrs.Selvi George
                                   For Respondent       : Mr.B.Vijay
                                                          Additional Government Pleader




https://www.mhc.tn.gov.in/judis



                    Page 1 of 7
                                                                                  W.P.No.2430 of 2017

                                                     ORDER

The order of removal from service issued by the respondent in

proceedings dated 06.01.2017 under Rule 17(c)(i)(1) of the Tamil Nadu

Civil Services (Discipline and Appeal) Rules is under challenge in the

present writ petition.

2. The writ petitioner was working as Village Assistant and a

Criminal Case was registered against him with reference to the allegations

of acceptance of bribe and the Criminal Case admittedly ended with an

order of conviction.

3. The learned counsel for the petitioner made a submission that the

petitioner preferred a Criminal Appeal, which is pending. During the

pendency of the Criminal Appeal, the respondent issued the impugned

order of punishment of removal from service by invoking Rule 17(c)(i)(1)

of the Tamil Nadu Civil Services (Discipline and Appeal) Rules. It is

contended that during the pendency of the Criminal Appeal, such an order

ought not to have been issued, but the respondent must have waited till

such time the Criminal Appeal is disposed of by the competent Appellate

Court. The petitioner reiterated that the petitioner was removed from

service without conducting any enquiry. The order of punishment of https://www.mhc.tn.gov.in/judis

W.P.No.2430 of 2017

removal from service was issued merely based on the judgment of

conviction and therefore, the order of removal is liable to be set aside.

4. The learned Additional Government Pleader appearing on behalf

of the respondent objected the said contentions by stating that the Rule

contemplates removal of service of an employee, who is convicted in the

Criminal Case by the competent Court of law. Thus, there is no further

enquiry is required and an order of conviction is sufficient enough to

inflict the order of removal from service. The procedures to be followed,

when a Government servant is convicted by a criminal court of law or

other reasons, Rule 17(c) contemplates that the requirements of Sub Rule

(b) to Rule 17 shall not apply, where it is proposed to impose on a member

of a service any such penalty as is referred to in clause (i) of that sub-rule

on the basis of facts, which have led to his conviction in a Criminal Court.

Therefore, an order of conviction is sufficient enough to inflict the

punishment of removal from service as per Rule 17(c) of the Discipline

and Appeal Rules.

5. The learned counsel for the petitioner strenuously contended that

the petitioner has got a fair chance to succeed in the criminal case.

Therefore, the writ petition is to be kept pending. Such a submission is https://www.mhc.tn.gov.in/judis

W.P.No.2430 of 2017

untenable and per se cannot be entertained. Adjournment cannot be

granted by the Courts merely based on the fact that the criminal

proceedings are pending. The writ petition on hand has been instituted,

questioning the validity of the order of removal from service passed by the

competent authorities based on the order of conviction of the competent

Criminal Court of Law. Thus, the procedures contemplated under Rule

17(c) has been followed or not is the only point to be decided by this

Court and pendency of the criminal case cannot be considered as a

relevant ground for the purpose of keeping the writ petition pending or to

set aside the order of punishment imposed by the Disciplinary Authority.

6. Even in cases, where, the Government employee is acquitted from

the criminal case, he cannot be exonerated from the departmental

disciplinary proceedings automatically. The disciplinary authority is

empowered to conduct enquiry independently with reference to the

allegations and based on the materials available on record. The acquittal in

criminal appeal if at all happened, would not be a ground to claim

exoneration from the departmental disciplinary proceedings. Even in

cases, where an employee was removed from service based on the order of

conviction and if such an employee is acquitted in an appeal, thereafter,

the departmental disciplinary proceedings may be continued against such https://www.mhc.tn.gov.in/judis

W.P.No.2430 of 2017

employees based on the records available by following the procedures and

by conducting an enquiry. The distinction in this regard are considered by

the Hon'ble Supreme Court of India in the recent case of The State of

Rajasthan & Ors., Vs. Phool Singh, reported in (2022) LiveLaw (SC)

735 and the observations are as under:

“7. The question before this Court is therefore only to see whether the respondent can be reinstated in service for the reason that now on the same set of charges he has been acquitted by a criminal court?

8. There should be no ambiguity in law on this subject. A departmental proceeding is different from a criminal proceeding. The fundamental difference between the two is that whereas in a departmental proceeding a delinquent employee can be held guilty on the basis of “preponderance of probabilities”, in a criminal court the prosecution has to prove its case “beyond reasonable doubt”. In short, the difference between the two proceedings would lie in the nature of evidence and the degree of its scrutiny. The two forums therefore run at different levels. For this reason, this Court has consistently held that merely because a person has been acquitted in a criminal trial, he cannot be ipso facto reinstated in service.

11.............

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In the above case a distinction has also been drawn by this Court between a “criminal offence” and “misconduct”. One has to be proved in a criminal court, the https://www.mhc.tn.gov.in/judis

W.P.No.2430 of 2017

other in a departmental proceeding, and though both may arise from the same set of facts, yet there is a clear distinction between the two and merely because one has been acquitted in a criminal trial, it would not amount to a reversal of the findings of “misconduct”, which were arrived in a departmental proceeding.”

7. Therefore, the submissions made on behalf of the writ petitioner

deserves no merit consideration. The petitioner admittedly is convicted by

the competent Criminal Court of Law and pendency of criminal appeal is

not a ground to set aside the order of punishment of removal from service.

8. Thus, the writ petition is devoid of merits and stands dismissed.

No costs. Consequently, connected miscellaneous petition is closed.

13.09.2022

kak Index : Yes Speaking order : Yes

To The Tahsildar, O/o.Tahsildar, Krishnagiri District.

https://www.mhc.tn.gov.in/judis

W.P.No.2430 of 2017

S.M.SUBRAMANIAM, J.