Madras High Court
The District Collector vs K.P.Kolandai on 30 August, 2023
W.A.No.1316 of 2023
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 30.08.2023
CORAM
THE HONOURABLE MR.JUSTICE R.MAHADEVAN
AND
THE HONOURABLE MR.JUSTICE MOHAMMED SHAFFIQ
W.A. No.1316 of 2023
and
C.M.P. No.12980 of 2023
1.The District Collector,
Dharmapuri District
at Dharmapuri.
2.The Director of Town Panchayats,
Commissioner of Municipal Administration,
MRC Nagar, Raja Annamalai Puram, Chennai 28. ... Appellants
v.
K.P.Kolandai ... Respondent
Prayer: Writ Appeal is filed under Clause 15 of the Letters Patent praying to set
aside the order dated 24.01.2022 made in W.P.No.20622 of 2021.
For Appellants : Mr.Silambanan,
Additional Advocate General
assisted by Mrs.Mythreye Chandru,
Special Government Pleader.
For Respondent : Mr.L.Chandrakumar
1/12
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W.A.No.1316 of 2023
JUDGMENT
(Judgment of the Court was made by MOHAMMED SHAFFIQ, J.)
The Writ Appeal has been filed challenging the order of the learned Judge
setting aside the order of suspension and the charge memo primarily on the
ground that the departmental proceedings initiated after 17 years of the alleged
occurrence may not be capable of being established due to the passage of time nor
would it be rationale, reasonable or just, on the part of the appellants / department
to proceed against the respondent / writ petitioner.
2. The Respondent herein was appointed as Sanitary Maistry on
01.06.1970. He was promoted as Junior Assistant on 23.02.1983. While working
as Junior Assistant, a trap was laid on 22.01.2004 which led to the registration of
a criminal case against him in S.C.No.103/2004 under the Prevention of
Corruption Act, 1988. After completion of trial, the trial Court convicted the
Respondent vide judgment dated 29.08.2008 by sentencing him to undergo
rigorous imprisonment for a period of one year and to pay a fine of Rs.1000/-, in
default to undergo three months simple imprisonment.
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W.A.No.1316 of 2023
3. Pursuant to the conviction of the criminal Court, the 1st Appellant issued
a show cause notice under Rule 17(c)(1)(i) of the Tamil Nadu Civil Services
(Discipline and Appeal) Rules (hereinafter referred to as "TNCS (D&A) Rules")
on 16.09.2008 directing the Respondent to show cause why action should not be
taken against him. A reply is stated to have been submitted on 19.09.2008
requesting the authorities to defer action as the sentence in S.C.No.103/2004 was
challenged in Criminal Appeal No.693/2008 and the same was pending on the file
of this Court. However, based on the conviction by the trial Court, the respondent
was dismissed from service on 12.11.2008. He was to retire from service on
31.10.2009 on attaining the age of superannuation, but on 31.10.2009 he was not
allowed to retire from service, in view of the pendency of the criminal appeal and
the order of dismissal from service.
4. On 09.08.2019, this Court allowed the Criminal Appeal filed by the
respondent herein by setting aside the conviction and sentence imposed on him,
on merits. According to the respondent, he was acquitted from all the charges and
it was an honourable acquittal. Thereafter, the respondent submitted a
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W.A.No.1316 of 2023
representation on 07.11.2019 seeking recall of the order of penalty of dismissal
from service. In response to the representation, the authorities concerned passed
an order on 01.07.2021 withdrawing the dismissal order dated 12.11.2008.
However, simultaneously, on the same day (01.07.2021) the respondent was
placed under deemed suspension retrospectively invoking Rule 17(e)(4) of the
TNCS (D&A) Rules. Subsequently on 01.09.2021, a charge memorandum was
issued against the respondent for the same trap proceedings, which had ended in
acquittal by the judgment of this Court.
5. Challenging the order of suspension dated 01.07.2021 as well as the
charge memo dated 01.09.2021, the respondent filed the writ petition in
W.P.No.20622 of 2021 before this Court, which is the subject matter of challenge
in the present appeal. By order dated 24.01.2022, the aforesaid writ petition was
allowed by the learned Judge. It was found that there was no foundation at all for
the prosecution to sustain its case. The learned Judge had also commented
adversely on the failure of the prosecution to bring a cogent case against the
respondent and held that the entire action is suspicious and shrouded with doubts.
The following observations were made by the learned Judge, after referring to the
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W.A.No.1316 of 2023
judgment passed in the criminal appeal by this Court:
"16. As rightly contended by the learned counsel for the
petitioner, this Court, in the Criminal Appeal has completely
exonerated the petitioner of the charges. In fact, this Court has made a
strong observation questioning the very foundation of the prosecution
case with reference to the allegation against the petitioner. That being
the case, proceeding against the petitioner for the same act of
misconduct by the Department, in the opinion of this Court, would not
serve any purpose a this distance of time.
....
18. Even otherwise, assuming that the power is still vested in the
authority in proceeding against the petitioner, the facts and
circumstances do not warrant initiation of departmental action against
the petitioner, particularly, in the face of the clear finding by this Court
in the Criminal Appeal as extracted supra. The justification on the part
of the respondents in proceeding against the petitioner that the
preponderance of probabilities would be the key factor in the
departmental proceedings may not be a valid and legally acceptable
stand for the simple reason that after a period of 17 years, it is unlikely
that the charge could be established against the petitioner. This is
particularly so, establishing the allegation of demanding illegal
gratification will have to depend on oral testimony of witnesses, and
such charge is incapable of being established by any documentary
evidence unimpeachably.
19. In this case, the alleged trap was laid in 2004 and to prove
the demand of illegal gratification through witnesses with their fading
memory in 2021 due to passage of extraordinary length of time appears
to be farfetched. To reopen the case against the petitioner may legally
be permissible looking at it from the perspective of the settled legal
principles, but not the letter but the spirit of law which ought to weigh
with the authorities while proceeding with disciplinary action against
the petitioner, after passage of sixteen long years. Not in all
circumstances, departmental action is warranted after acquittal of the
employee in the criminal case. It entirely depends on efflux of time
factor pending criminal case and also the eventual findings of the
criminal court. The authorities are mandatorily be guided by the
findings of the Court, on which, acquittal of the employee was being
recorded. In a matter like the present one where disciplinary action is
initiated after a long period of time, though may be justified citing
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W.A.No.1316 of 2023
pendency of the criminal appeal, nonetheless valid reasons must be
disclosed justifying the action by the department after the acquittal in
the appeal. A mechanical initiation of disciplinary proceedings,
demonstrate lack of application of mind on the part of the authority
concerned.
20. In any case, the petitioner having suffered from the
protracted litigation from 2004 till 2019 and in the face of the complete
exoneration of the charges by this Court in the criminal appeal, it may
not be rationale, reasonable or just to proceed against the petitioner by
the Department at this distance of time.”
5.1. Assailing the aforesaid order passed by the writ court, the authorities
are before this Court with the present writ appeal.
6. The learned Additional Advocate General appearing for the appellants
made the following submissions:
(a) That, the Respondent/Writ Petitioner while working as Junior Assistant
in Denkanikottai Town Panchayat was trapped and arrested on 22.01.2004 for
demanding and accepting bribe for issuing house tax receipt and no objection
certificate for obtaining electricity service connection to the house of one
A.Thimmaraj.
(b) That the learned Judge failed to consider that the appeal in
Crl.A.No.693 of 2008 against the judgment of conviction in S.C. No. 103/2004,
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W.A.No.1316 of 2023
was allowed by judgment dated 09.08.2019, on the ground of benefit of doubt and
the accused was not honourably discharged from the charges.
(c) That the learned Judge ought to have considered that there was no
prohibition for initiating disciplinary proceedings for the administrative lapses on
the same cause of action, as the civil and criminal proceedings can run parallel.
(d) That it is settled legal principle that the standard of proof in disciplinary
proceedings for adminstrative lapses or misconduct of employee is preponderance
of probability, while in cases of criminal trial, it is proof beyond reasonable doubt
and would involve establishment of mental state. Though, the delinquent was
acquitted in criminal appeal it was only on the ground of benefit of doubt.
Therefore, the same does not prohibit the department from proceeding with the
disciplinary action in terms of the TNCS (D&A) Rules.
7. To the contrary, the learned counsel appearing for the respondent would
submit that the impugned suspension is against the Rules and no retrospective
suspension is legally permissible. According to the learned counsel, once penalty
has been withdrawn vide order dated 01.07.2021, the respondent who had
attained the age of superannuation on 31.10.2009, was deemed to have retired
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W.A.No.1316 of 2023
from service from that date and it is impermissible to issue a charge memo after a
period of four years limitation as provided under the Tamil Nadu Pension Rules,
1978. The learned counsel would also submit that the issuance of charge memo
for the misconduct said to have been committed in 2004, at this distance of time
is unwarranted, particularly, when this Court in the criminal appeal has
completely exonerated the respondent of all the charges. According to the learned
counsel, even assuming that the disciplinary action is permissible to be initiated
against the writ petitioner, the initiation of disciplinary action after a period of 17
years on the basis of the same set of facts and circumstances is patently unjust and
unreasonable and hence, the same cannot be countenanced both in law and on
facts.
8. It is the further submission of the learned counsel for the Respondent
that the order of learned Judge is primarily made on the basis of the facts of the
case, after recording a finding that establishing the allegation of demanding
illegal gratification will have to depend on oral testimony of witnesses, and such
charge is incapable of being established by any documentary evidence
unimpeachably and that, the respondent had already suffered in view of the
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W.A.No.1316 of 2023
protracted litigation throughout 17 years. Therefore, the order of the learned
Judge is justified and the same ought not to be interfered with.
9. Heard both sides and perused the materials available on record.
10. We find that the learned Judge set aside the charge memo in view of the
fact that more than 17 years had lapsed since the alleged occurrence; and that, the
respondent had been honourably acquitted from the criminal proceedings. That
being the case, the proceedings initiated against the Respondent for the same act
of misconduct by the Department, in our opinion, would not serve any purpose at
this distance of time i.e., after 17 years from the date of occurrence of the incident
as it is unlikely that the charge could be established against the respondent. This
is particularly so, because establishing the allegation of demanding illegal
gratification will have to depend on oral testimony of witnesses, and the
possibility of proving such charge is remote in view of the long delay. In this
regard, it may be relevant to refer to the judgment of the Hon’ble Supreme Court
in the case of P.V. Mahadevan v. Managing Director, T.N. Housing Board, [(2005)
6 SCC 636], wherein it was held as under:
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W.A.No.1316 of 2023
"11.....The protracted disciplinary enquiry against a government
employee should, therefore, be avoided not only in the interests of the
government employee but in public interest and also in the interests of
inspiring confidence in the minds of the government employees. At this
stage, it is necessary to draw the curtain and to put an end to the enquiry.
The appellant had already suffered enough and more on account of the
disciplinary proceedings. As a matter of fact, the mental agony and
sufferings of the appellant due to the protracted disciplinary proceedings
would be much more than the punishment...."
(emphasis supplied)
11. In view of the above, we are in complete agreement with the finding of
the learned Judge that the attempt made by the department to initiate departmental
proceedings after a period of 17 years by itself, warrants interference. As found
by the learned Judge, it is very unlikely that the charges of demand of illegal
gratification could be established in the manner as required under law, which
interalia would depend on oral testimony of witnesses. The witnesses, if any, still
available with their fading memory, in view of the passage of time, it is
improbable that they may be able to give statement or evidence that may stand
judicial scrutiny. As found by the learned Judge taking into account the mental
agony the respondent must have suffered due to the protracted litigation and
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W.A.No.1316 of 2023
having been completely exonerated in the criminal proceedings, it may not be
rationale, reasonable or just on the part of the department to proceed against the
respondent at this distance of time. Thus, we find no reason to interfere with the
order of the learned Judge.
12. In fine, the Writ Appeal stands dismissed. The appellants are directed to
comply with the order of the learned Judge within a period of six weeks from the
date of receipt of a copy of this judgment. No costs. Consequently, connected
miscellaneous petition is closed.
[R.M.D., J.] [M.S.Q., J.]
30.08.2023
Index: Yes/No
Speaking (or) Non-Speaking Order
Neutral Citation: Yes/ No
mka
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W.A.No.1316 of 2023
R.MAHADEVAN, J.
AND
MOHAMMED SHAFFIQ, J.
mka/ rk
To:
1.The District Collector,
Dharmapuri District
at Dharmapuri.
2.The Director of Town Panchayats,
Commissioner of Municipal Administration,
MRC Nagar, Raja Annamalai Puram, Chennai 28.
W.A. No.1316 of 2023
and
C.M.P. No.12980 of 2023
30.08.2023
https://www.mhc.tn.gov.in/judis
