Madras High Court
M.Srinivasa Raghavan vs The State Of Tamil Nadu on 2 January, 2023
W.P.(MD).No.24773 of 2019
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 02.01.2023
CORAM
THE HONOURABLE MRS.JUSTICE S.SRIMATHY
W.P.(MD).No.24773 of 2019
and
W.M.P.(MD).Nos.21378 and 21379 of 2019
M.Srinivasa Raghavan ... Petitioner
Vs.
1.The State of Tamil Nadu,
Represented by its Principal Secretary,
Department of Municipal Administration
and Water Supply, Fort St.George,
Chennai – 600 009.
2.The Commissioner / Director of
Municipal Administration,
Ezhilagam Annex, 6th Floor,
Kamarajar Salai, Chepauk,
Chennai – 600 005.
3.The Municipal Commissioner,
Dharapuram Municipality,
Thirupur District.
4.The Commissioner,
Padmanabhapuram Municipality,
Thuckalay – 629 175,
Kanyakumari District. ... Respondents
1/15
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W.P.(MD).No.24773 of 2019
Prayer : Writ Petition filed under Article 226 of the Constitution of India,
praying this Court to issue a Writ of Certiorarified Mandamus, to call for the
records relating to the impugned order passed by the first respondent in
G.O.(D).No.423, Municipal Administration and Water Supply (ME.4)
Department dated 22.10.2019 relieving the petitioner from service on
Compulsory Retirement, quash the same, and further direct the first and second
respondents to reinstate the petitioner into service with all attendant and
consequential benefits including continuity of service, seniority, salary and
allowances.
For Petitioner : Mr.Isaac Mohanlal,
Senior Counsel,
For M/s.Isaac Chambers
For R-1 and R-2 : Mr.J.John Rajadurai,
Government Advocate.
For R-3 : Mr.J.Parekhkumar
For R-4 : Mr.A.K.Manikkam
ORDER
This Writ Petition is filed challenging the G.O.(D)No.423 dated
22.10.2019 with a consequential relief of reinstatement and all benefits.
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W.P.(MD).No.24773 of 2019
2. The facts are that the petitioner initially, he was appointed as Assistant
Engineer on 26.02.1999 and was placed as Municipal Engineer in
Padmanabhapuram Municipality, then was transferred to various
Municipalities. The next promotional post is Assistant Executive Engineer and
the petitioner was on the verge of his promotion. The second respondent issued
tentative seniority list of Assistant Engineers for further promotions vide
proceedings dated 07.02.2019 and the petitioner was at Serial No.4 in the list.
Under these circumstances, the first respondent issued the impugned order of
compulsory retirement vide G.O.(D).No.423 dated 22.10.2019, for the
disciplinary proceedings which was initiated against the petitioner while he was
working as Assistant Engineer in Dharapuram Municipality in the year 2005,
that is 14 years before and the impugned order was communicated by the fourth
respondent vide proceedings dated 07.11.2019. The contention of the petitioner
is that for the alleged incident happened in the year 2005, the impugned
punishment imposed after a period of 14 years is illegal, belated and
unconstitutional. Aggrieved over the same the petitioner had filed this writ
petition.
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W.P.(MD).No.24773 of 2019
3. Heard Mr.Isaac Mohanlal, learned Senior Counsel, for M/s.Isaac
Chambers for the petitioner, Mr.J.John Rajadurai, learned Government
Advocate appearing for the first and second respondents, Mr.J.Parekhkumar,
learned counsel appearing for the third respondent and Mr.A.K.Manikkam,
learned counsel for the fourth respondent and perused the records.
4. The facts involved in the disciplinary proceedings is with regard to the
allotment of tender to one Smitha wife of Devaraj and subsequent payment to
works completed covering in the tender. The Municipality invited tender on
20.11.2003 for construction of Sanitary Complex and the tender value was Rs.
3,85,887/-. The Municipality received two tenders from one Smitha and another
from Kandhasamy. The said Smitha being the lowest bid, she is the successful
tenderer. All these tender proceedings were completed prior to the petitioner's
joining in Dharapuram Municipality on 01.01.2004. On 05.01.2004, the work
order was issued by the Commissioner Municipality to the said Smitha and not
by the petitioner. In the Dharapuram Municipality, one Mrs.G.Chitra joined as
Commissioner of Municipality in April 2004. Even though the work order was
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W.P.(MD).No.24773 of 2019
issued as early as on 05.01.2004, the Contractor had not commenced the work,
due to delay in obtaining permission from the Highways Department. Three
charges were imputed against the accused No.1 and accused No.2 and the
petitioner is the accused No.2. Only the charge No.2 was framed against the
petitioner, the charges 1, 2 and 3 were framed against the accused No.1 and not
the petitioner. Hence, the second charge alone would be dealt with in this Writ
Petition.
5. The charge against the petitioner in charge No.2 is that the petitioner
has received Rs.6,000/- on behalf of the accused no.1, who is the
Commissioner of Municipality for issuing the cheque of Rs.88,525/-. The sub-
charge in the charge No.2 is that, for the next payment of cheque for Rs.
1,92,916/-, the petitioner has accepted Rs.14,000/- as bribe for and on behalf of
accused No.1 and Rs.6,000/- for himself. On receipt of the charge, the
petitioner denied the acceptance of bribe. But the respondents did not accept
the explanation and hence an Enquiry Officer was appointed and it was
transferred to the Tribunal for disciplinary proceedings under Vigilance and
Anti-Corruption. A detailed enquiry was conducted by the Tribunal. While the
petitioner cross examined the Contractor, it is stated by the Contractor that
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W.P.(MD).No.24773 of 2019
there is no evidence for demand of the bribe or payment of bribe. The relevant
portion of the order is extracted hereunder:
Fw;wk; rhl;lg;gl;Ls;s mYtyh;-2 jug;gpy; FWf;F tprhuiz
bra;jnghJ xt;bthU fhz;l;ouhf;flUf;Fk; gzp cj;jut[ tHq;fpa
gpd;dh; jhd; gzp bjhlq;fg;gLk; vd;Wk;> gzp xg;ge;jk;
ifbaGj;Jg; nghl;Lf; bfhLf;fhjjhy; jhd; ntiyf;fhd cj;jut[ jdf;F
tHq;fg;gltpy;iy vd;Wk;> F.rh.m gzk; nfl;ljw;Fk;> F.rh.m
gzk; nl;ljw;Fk;> F.rh.m-tpw;F gzk; bfhLj;jjw;Fk; Mjhuk;
vJt[k; ,y;iy vd;Wk;> rhl;rpakspj;Js;shh;.
Further on perusal of order passed in by the Tribunal, it is seen even the
said Devaraj, while deposing before the Tribunal had not stated that he had paid
the bribe to the accused No.2. In the entire proceedings before Tribunal, there is
no evidence against the petitioner that he had demanded bribe and the
contractor had paid the bribe.
6. Further the Tribunal had held as under:
“F.rh.m2 jug;gpyhd vGj;JK:ykhd thJiuapYk; fhz;ouhf;lh;fs;
rpz;onfl; midj;Jf; bfhz;L muir Vkhw;wpa[s;shh;fs; vd;Wk;>
thjk; itf;fg;gl;Ls;sJ. nkw;go tpguq;fs; blz;lh; nfhUk;nghJ
F.rh.mf;fSf;F bjhpe;jpUg;gjw;fhd tha;g;g[fns cs;sJ.
Vbdd;why; efuhl;rpapy; blz;lh; nfhUk; epfH;t[ vd;gJ
murpd; KG ftdj;jpw;F bry;Yk; vd;gJk; mjpy; VnjDk; jtWfs;
neh;e;jhy; jq;fSf;Fk; murpw;Fk; mtg;bgah; Vw;gLk;
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W.P.(MD).No.24773 of 2019
vd;gjpdhy; kpf ftdKld; bray;gl;oUf;f ntz;oaJ mtrpakhfpwJ.
mjidtpLj;J m.rh.2jpU.njtuh$; kw;Wk; m.rh.3 jpUkjp.Rkpjh
Mfpnahh;fSf;F Fw;wr;rhl;oy; bjhptpf;fg;gl;Ls;s K:d;W
ntiyfSf;fhd blz;lh;fis bfhLj;Jtpl;L> F.rh.m-1 kw;Wk; 2
efuhl;rp mjpfhhpfshf bghWg;gpy; ,Ue;jnghJ blz;lh
nfhhpa rkaj;jpy; xg;ge;jf;fhuh;fs; jq;fisa[k;> muira[k;
Vkhw;wp ntiyfis vLj;Jf; bfhz;ljhf rpj;jhpg;gJ F.rh.m-f;fs;
jq;fsJ flikfSk;> bghWg;g[fspYk; ,Ue;J eGt[tjhfnt
bjd;gLfpwJ. Vdnt ntiyfis blz;lh; vd;w bgahpy;
xg;ge;jf;fhuuhd Rkpjh-tpw;F tHq;fptpl;L jq;fisa[k;>
muira[k; Vkhw;wptpl;lhh;fs; vd;W thjpl;oUg;gJ Vw;g[ilajhf
fUj ,ayhJ vd jPh;g;ghak; fUJfpwJ. vdnt F.rh.m-f;fs; 1
kw;Wk; 2d; kPjhd Fw;wr;rhl;L-2 epU:gzkhfpwJ
vd ,j;jPh;g;ghak; Kot[ bra;fpwJ”
On perusal of Tribunal order, it is seen the report has not mentioned
about acceptance of Rs.6,000/- by the petitioner. Infact the Tribunal has held
that the contractor has stated there was delay in granting work order. The
tribunal has also stated there is no evidence that the petitioner had demanded
and received any bribe. Moreover, the Tribunal had stated that the petitioner
“would have received”, which is mere surmise. There is no categorical finding
that the petitioner had demanded and accepted bribe. Even in the counter the
respondent states that based on the circumstances the petitioner would have
been received. On perusing the reasoning stated in the Tribunal and the
disciplinary authority, this Court is of the considered opinion that the
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W.P.(MD).No.24773 of 2019
respondents have acted on assumption and presumption. There is no evidence
to prove that the petitioner had received Rs.6,000/- for himself from the
contractor. Even according to the enquiry report, there is no evidence of receipt
of such amount by the petitioner.
7. Aggrieved over the order passed by the original authority the petitioner
had preferred appeal before the Government. The petitioner raised various
grounds in the appeal and has submitted that the said contractor had deposed
that the work was carried belatedly since he was not having sufficient funds and
hence the petitioner submitted that there is no delay in payment at all, the
contractor himself has accepted the work is delated due to shortage of funds.
The petitioner further submitted that the contractor had also deposed that the
bill would be prepared by the petitioner and the cheque would be issued by the
Accounts Department, from which it would be evident the petitioner has
nothing to do with the payment of the amount. However, the appellant authority
had passed the impugned order without application of mind. Absolutely, there
is no discussion about the about facts and the evidence and the grounds raised
by the petitioner. Therefore, on perusing the enquiry report, the disciplinary
authority proceedings as well as the impugned Government Order, this Court is
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of the considered opinion that the entire proceeding is vitiated by non-
application of mind.
8. The Learned Senior Counsel relied on Rule 10 of the Tamil Nadu
Municipal Services and Disciplinary and Appeal Rules 1970, where it says all
the order of punishment shall state the grounds on which they are based and
shall be communicated in writing to the person against whom they are passed.
In the present case, all the impugned orders are not stating on which ground the
petitioner is found guilty. The orders passed by the respondents as discussed
supra only indicates its assumption and presumption and it is more of surmises.
For such proposition, the learned Senior Counsel relied on the following
judgments:
(i) in the case of Roop Singh Negi Vs Punjab National Bank and Others
reported in (2009) 2 SCC 570, para 23 is extracted hereunder:
“23. Furthermore, the order of the disciplinary authority as also the appellate
authority are not supported by any reason. As the orders passed by them have
severe civil consequences, appropriate reasons should have been assigned. If the
enquiry officer had relied upon the confession made by the appellant, there was
no reason as to why the order of discharge passed by the Criminal Court on the
basis of self-same evidence should not have been taken into consideration. The
materials brought on record pointing out the guilt are required to be proved. A
decision must be arrived at on some evidence, which is legally admissible. The
provisions of the Evidence Act may not be applicable in a departmental
proceeding but the principles of natural justice are. As the report of the Enquiry
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W.P.(MD).No.24773 of 2019
Officer was based on merely ipse dixit as also surmises and conjectures, the same
could not have been sustained. The inferences drawn by the Enquiry Officer
apparently were not supported by any evidence. Suspicion, as is well known,
however high may be, can under no circumstances be held to be a substitute for
legal proof.
(ii) in the case of Brij Bihari Singh Vs Bihar State Financial Corporation and
Others reported in (2015) 17 SCC 541, para 9 is extracted hereunder:
“9. It is well settled that a person who is required to answer a charge
imposed should know not only the accusation but also the testimony
by which the accusation is supported. The delinquent must be given
fair chance to hear the evidence in support of the charge and to cross-
examine the witnesses who prove the charge. The delinquent must also
be given a chance to rebut the evidence led against him. A departure
from this requirement violates the principles of natural justice.
Furthermore, the materials brought on record pointing out the guilt
are required to be proved. If the enquiry report is based on merely
ipse dixit and also conjecture and surmises cannot be sustained in
law”.
(iii) in the case of M.V.Bijlani Vs Union of India and Others reported in (2006)
5 SCC 88, para 25 is extracted hereunder:
“It is true that the jurisdiction of the court in judicial review is
limited. Disciplinary proceedings, however, being quasi-criminal in
nature, there should be some evidences to prove the charge. Although
the charges in a departmental proceedings are not required to be
proved like a criminal trial, i.e., beyond all reasonable doubts, we
cannot lose sight of the fact that the Enquiry Officer performs a quasi-
judicial function, who upon analyzing the documents must arrive at a
conclusion that there had been a preponderance of probability to
prove the charges on the basis of materials on record. While doing so,
he cannot take into consideration any irrelevant fact. He cannot refuse
to consider the relevant facts. He cannot shift the burden of proof. He
cannot reject the relevant testimony of the witnesses only on the basis
of surmises and conjectures. He cannot enquire into the allegations
with which the delinquent officer had not been charged with”.
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Even in the disciplinary proceedings to prove the charges based on the
principles of preponderance of probability, it should be on the basis of materials
on record. In the present case there is no evidence and the contractor’s
categorical submission that there is no evidence that the petitioner demanded
and there is no evidence that the contractor had paid the amount to the
petitioner. As far as allegation of bribe is concerned, which is quasi criminal in
nature, at least some evidence is necessary.
9. The impugned G.O. states that the delinquent officer has stated certain
circumstances but there is no direct evidence. The relevant paragraph is
extracted hereunder:
“3. The Government have examined the charges framed against the delinquent
office, his defence statement, findings of the Commissioner for disciplinary
proceedings, Coimbatore, further representation of the delinquent on the on the
findings of the commissioner for disciplinary proceedings, Coimbatore carefully
and independently with the relevant records. The inquiry office in its findings
held all charges as “proved”. The delinquent officer has mentioned certain
circumstances. However, there is no direct evidence. Thus taking not account all
these facts the government have decided to accept the findings of inquiry officer
and to inflict the punishment of compulsory retirement against Thiru. M.
Srinivasa Raghavan, formerly Assistant Engineer, Dharapuram Municipality for
the proven charges and issue order accordingly.”
Except this paragraph, other paragraphs are narrating the events. On
perusal of the impugned appellate authority’s order, this Court is of the
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considered opinion the appellate authority has not discussed the facts and
evidence and it is totally non application of mind.
10. Therefore, this Court is of the considered opinion that the impugned
order passed by the Government is based on assumptions and presumptions and
it is based on surmises only. As rightly pointed out by the learned Senior
Counsel, the very charge initiated against the petitioner itself is vitiated on the
principles of non-application of mind. Since the charge against the petitioner is
that he has received bribe of Rs.6,000/-, however, the enquiry officer report is
not stating anything about the receipt of bribe. It is only a general statement
regarding how a Government official should act while serving as a Government
service. There is no iota of evidence against the petitioner. The respondents
who are acting as a quasi-judicial authority are supposed to verify all the facts
and evidence and thereafter pass orders. In the present case, the quasi-judicial
authority had not exercised his jurisdiction. Therefore, the impugned order is
quashed. The respondents are directed to reinstate the petitioner with
continuity of service. For the period of non-employment period, the petitioner
is entitled to 50% of the salary only. This order shall be complied within a
period of four (4) weeks from the date of receipt of a copy of the order. The
petitioner is entitled to be considered for promotion. If there is any vacancy
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available, the petitioner shall be considered for promotion with his original
seniority.
11. In view of the above, this Writ Petition is allowed. There shall be no
order as to costs. Consequently, connected miscellaneous petitions stand closed.
02.01.2023
NCC : Yes / No
Index : Yes / No
Internet : Yes/ No
Nsr
To
1.The Principal Secretary,
The State of Tamil Nadu,
Department of Municipal Administration
and Water Supply, Fort St.George,
Chennai – 600 009.
2.The Commissioner / Director of
Municipal Administration,
Ezhilagam Annex, 6th Floor,
Kamarajar Salai, Chepauk,
Chennai – 600 005.
3.The Municipal Commissioner,
Dharapuram Municipality,
Thirupur District.
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W.P.(MD).No.24773 of 2019
4.The Commissioner,
Padmanabhapuram Municipality,
Thuckalay – 629 175,
Kanyakumari District.
S.SRIMATHY, J.
Nsr
W.P.(MD).No.24773 of 2019
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02.01.2023
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