Madras High Court
C.Ganesan vs The Secretary To Government on 3 August, 2023
WP.No.21357/2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED 03.08.2023
CORAM
THE HONOURABLE MR. JUSTICE C.V.KARTHIKEYAN
WP.No.21357/2017 & WMP.No.22288/2017
C.Ganesan ... Petitioner
Versus
1.The Secretary to Government
Revenue Department,
Fort St George, Chennai 600 009.
2.The Commissioner of Revenue Administration
Chepauk, Chennai 600 005.
3.The District Revenue Officer
Ariyalur District. ... 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 connected with the proceedings issued in Na.Ka.No.A1/7816/2014
dated 27.03.2017 passed by the 3rd respondent and quash the same and
consequently direct the respondents to modify the punishment as
compulsory retirement to the petitioner.
1
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WP.No.21357/2017
For Petitioner : Mr. S.Ilamvaludhi
For Respondents : Mr.S.Ravikumar, Spl.GP
ORDER
(1) The writ petition has been filed in the nature of a certiorarified
mandamus seeking records relating to the proceedings in
Na.Ka.No.A1/7816/2014 dated 27.03.2017 passed by the 3rd
respondent, the District Revenue officer, Ariyalur District and to
quash the same and to direct the respondents to modify the
punishment as compulsory retirement so far as the petitioner is
concerned.
(2) The petitioner had joined the service as Village Administrative Officer
in the year 1984. In the year 2005, owing to heavy rain, the Revenue
Department had directed that particulars of the rain affected
agriculturists should be forwarded for giving compensation by the
Government. In his capacity as Village Administrative Officer, the
petitioner was in-charge of forwarding such a list. Thereafter, owing
to the list which had been forwarded and finding that there were
discrepancies in the same, a Charge Memo under Rule 17[b] of CCA
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[D&A] Rules was served on the petitioner on 26.07.2006. The
petitioner participated in the enquiry and had given his reply. The
Appointing Authority was the Revenue Divisional Officer at
Udayarpalayam. By proceedings dated 14.03.2008, in
Na.Ka.No.A1/1381/06, the petitioner was dismissed from service. The
petitioner then preferred an appeal before the District Revenue
Officer, Ariyalur, on 20.01.2009. An order was passed on
23.01.2009, confirming the order passed by the Revenue Divisional
Officer. The petitioner filed WP.No.29201/2008 and an order was
passed to consider the representation given by the petitioner. This
order was dated 17.12.2008. Parallelly, the petitioner also faced
criminal charges and trial was conducted in CC.No.236/2010 by the
learned Judicial Magistrate, at Jayamkondam. The petitioner was
arrayed as the 1st accused. He was convicted of the charges which
were framed under Sections 465, 477-A, 409 and 420 of IPC. There
were also six other accused. The petitioner then filed an appeal in
Crl.A.No.5/2016. This came up for consideration before the learned
Additional District and Sessions Judge, Ariyalur. By judgment dated
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28.04.2016, the learned Additional Sessions Judge, Ariyalur, had
acquitted the petitioner of all charges. The petitioner then filed
WP.No.37227/2016 seeking consideration of this judgment passed by
the learned Additional Sessions Judge. The petitioner was directed to
give a fresh representation to the respondents. The copy of the
representation is not available in the Court bundle. But, however,
further order was passed by the 3rd respondent / District Revenue
Officer at Ariyalur, on 27.03.2017 in Na.Ka.No.A1/7816/2014. The
3rd respondent confirmed the earlier order passed and found that the
proceedings before the Criminal Court and the disciplinary
proceedings were two parallel procedures and therefore, the finding of
one or the result of one would not have any bearing on the other.
Holding as above, the order earlier passed dismissing the petitioner
from service, was confirmed. The present writ petition has been filed
questioning that particular order.
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(3) Learned counsel for the petitioner took umbrage of the fact that the
3rd respondent had completely ignored the findings of the learned
Additional Sessions Judge which had actually entered into a
discussion on the very same charges as were framed against the
petitioner during the departmental proceedings. It is contended that
though this Court in WP.No.37227/2016 had directed that the
representation should be considered afresh, the 3rd respondent had
extracted the previous proceedings and thereafter, in one specific
paragraph, had proceeded to confirm the findings against the
petitioner herein and also confirmed the order of dismissal from
service. It is contended by the learned counsel for the petitioner that
this procedure adopted is violative of principles of natural justice and
also that due consideration was not given to the representation given
by the petitioner herein. It was therefore urged that this Court should
interfere with the findings given by the 3rd respondent.
(4) A counter affidavit had been filed.
(5) The learned Special Government Pleader appearing on behalf of the
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respondents placed reliance on the same. He pointed out the fact that
the charge namely that owing to agricultural loss due to heavy rain in
October and November 2005, the petitioner had assessed the loss in
his capacity as Additional charge of Village Administrative Offcer at
Sathambadi Village and had put forward a proposal for payment of
compensation. It had been stated that the petitioner made excess
assessment by including Government lands, poramboke lands and
lands where Eucalyptus and cashewnut plantations have been
cultivated. The loss which was caused to the Government was
Rs.5,45,966/-. The learned Special Government Pleader also pointed
out that though this particular assessment was primarily based on the
list prepared by another individual namely, Rajalingam, the petitioner
had given the final approval for the list and therefore, it is urged by
the learned Special Government Pleader that the petitioner should owe
responsibility for the list which had been forwarded to the
Government, on the basis of which, compensation was granted for the
alleged loss for the Government land, poramboke land also for the
lands where Eucalyptus and Cashewnut trees were planted. It was
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therefore urged that the order impugned has to be sustained by this
Court and the writ petition should be dismissed.
(6) I had given careful consideration to the arguments advanced.
(7) It is a fact that criminal Court proceedings and the departmental
proceedings are two parallel proceedings which could always be
initiated against any public servant, particularly who is charged
during the course of his service with an offence which would also
attract registration of a First Information Report and further
prosecution. The nature of proof varies. But the evidence is the same.
It is the analysis of the evidence which varies between the criminal
Court and in departmental proceedings. The evidence has to be
strong and strict proof is required for passing an judgment of
conviction before the criminal Court. The very same evidence would
also sustain an order of punishment in the departmental proceedings
since, strict proof is not required, but only preponderance of
probabilities. The preponderance of probability in this particular case
was that though as a fact, Rajalingam had prepared the list and that
the petitioner was only holding additional charge as Village
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Administrative Officer, and further that Rajalingam had prepared the
list with the help of two other individuals, and therefore, the petitioner
had only confirmed the list. That fact, is only a presumption which
could have been drawn by both the criminal Court and during the
departmental proceedings.
(8) The criminal Court had, on the basis of the records, categorically held
as follows:-
''....
A1 who was working as Village Administrative
Officer of that Village in relevant period and he was
holding additional charge to Sathambadi Village and
A1 filed written submission of the preparation of list.
That, there was no regular Village Administrative
Officer for Sathambadi Village and he was also
holding additional charges of Govindhaputhur Village
and the accounts of Sathambadi Village was in the
hands of A2 and Revenue Inspector and then sent to
Thasildar and other higher officials and the
beneficiaries list was approved by higher officials. On
perusal of documentary and oral evidence placed
before the trial Court this Court found that the points
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put forth by appellant/A1 is true. In connection with
A1 it is found that the beneficiary list was prepared by
A2 and not by this A1. This A1 was holding full
additional charge of the Village concerned in which
the list of beneficiary list with false particulars was
prepared and he was also holding charge of another
village. On perusal of evidence and records it is
found that the beneficiary list was prepared by A2 and
it is admitted. This Court found there is no absolute
evidence to prove that this appellant/A1 prepared
beneficiary list of flood affected farmers. But it is
found that the beneficiary list was also signed by
Revenue Inspector and other Revenue Higher officials.
If the list is approved by revenue higher officials, how
this A1 and A2 above case added as accused is not
explained by prosecution. It is also the question
before this Court. It is found that Ex.P1 was counter
checked and signed Revenue Inspector, Tahsildar and
Revenue Divisional Officer and the concurrence given
by them for the beneficiary list prepared by A1. Ex.P2
is the mane document for this case. But the persons
who gave concurrence and consent were left and this
A1 above charged for the allegations. In the above
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circumstances this Court decides that this A1 is not
responsible for his lapse.''
(9) It is a very specific and direct finding given by the criminal Court. It is
not based on presumption alone, but based on documents produced. It
is based on the analysis of the documents produced. It is found that
the records revealed that the beneficiaries list had been prepared only
by the 2nd accused who was Rajalingam. The petitioner had no role in
preparing the list. That was the crucial factor which played upon the
mind of the disciplinary authority to hold that the charges have been
proved against the petitioner herein. But, there is one another factor.
Though the learned Additional Sessions Judge had found that it was
the 2nd accused Rajalingam who had actually prepared the list, in the
departmental proceedings, for reasons best known to the officials,
Rajalingam was inflicted with the punishment of cut in increment for
five years with cumulative effect. It was also stated that the period of
suspension would be treated as one of duty. If that is the punishment
which had been imposed on Rajalingam on whom the learned
Additional Sessions Judge had found credible evidence, then there is
no reason why the petitioner should be discriminated and not
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considered in parity with the other delinquent. The principle of parity
is a very significant principle in service law. Where two or more
delinquents are charged for practically the same offences, then while
imposing punishment, there should be consistency. There cannot be
one set of punishment given to one delinquent and another
punishment more drastic be given to another delinquent.
(10) In view of that particular fact, it would only be appropriate that
though this Court cannot interfere with the findings that the charge
had been proved since it is passed only on preponderance of
probabilities and reasonable presumption can be drawn by the
Enquiry Officer, still the Court can interfere with the nature of
punishment imposed and grant the same punishment that was granted
to Rajalingam, to the petitioner also.
(11) In view of that particular reasoning, I would modify the punishment
imposed on the petitioner from dismissal from service to one of cut in
increment for a period of five years with cumulative effect and also
simultaneously, treat the period of suspension as one of duty for the
purposes of calculation of pension. The respondents are directed to
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rework the emoluments payable to the petitioner herein consequent to
the modification of the punishment as aforementioned. Such
proceedings to be issued within a period of sixteen weeks from the
date of receipt of a copy of this order.
(12) The writ petition stands partly allowed. No costs. Consequently,
connected miscellaneous petition is closed.
03.08.2023
AP
Internet : Yes
To
1.The Secretary to Government
Revenue Department,
Fort St George, Chennai 600 009.
2.The Commissioner of Revenue Administration
Chepauk, Chennai 600 005.
3.The District Revenue Officer
Ariyalur District.
C.V.KARTHIKEYAN, J.,
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WP.No.21357/2017
AP
WP.No.21357/2017
03.08.2023
https://www.mhc.tn.gov.in/judis
