Madras High Court

P.Sekar vs The District Collector on 30 October, 2024

Author: J.Sathya Narayana Prasad

Bench: J.Sathya Narayana Prasad

                                                                          W.P.(MD)No.15404 of 2022

                       BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                               DATED: 30.10.2024

                                                       CORAM:

                        THE HONOURABLE MR.JUSTICE J.SATHYA NARAYANA PRASAD

                                           W.P.(MD)No.15404 of 2022
                                  and WMP (MD) Nos.11047 and 11050 of 2022


                     P.sekar                                                   : Petitioner


                                                         Vs.


                     1.The District Collector,
                       Madurai District, Madurai.

                     2.The District Revenue Officer,
                       Madurai District, Madurai.

                     3. The Thasildhar,
                       Usilampatti Taluk, Madurai District.

                     4.The Thasildhar (Social Security Scheme),
                       Tirupparankundram, Madurai District.                    : Respondents


                     PRAYER: Writ Petitions filed under Article 226 of the Constitution of
                     India for issuance of Writ of Writ of Certiorarified Mandamus, calling for
                     the records relating with the impugned charge memo issued by the
                     second respondent, in Na.Ka.No.14317/2013/PA2, dated nil.08/2018, but
                     signed on 02.08.2018 and quash the same as it is illegal and vitiated in
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                     1/24
                                                                            W.P.(MD)No.15404 of 2022

                     view of the acquittal in a criminal case, on the same set of facts and
                     charges in Special Case No. 15/2014 on the file of Special Court for Trial
                     of Prevention of Corruption of Act Cases, Madurai, dated 30.12.2020 and
                     in consequence to direct the 1st respondent to reinstate the petitioner with
                     all attended benefits.


                                  For Petitioner     : Mr.R.Suriyanarayanan
                                  For Respondents : Mr.J.K.Jeyaseelan
                                                      Government Advocate


                                                      ORDER

This writ petition has been filed for an issuance of a writ of

certiorarified mandamus to quash the charge memo issued by the second

respondent, in Na.Ka.No.14317/2013/PA2, dated nil.08/2018, but signed

on 02.08.2018 and for a consequential direction to the first respondent to

reinstate the petitioner with all attended benefits.

2. The facts of the case is that the petitioner was joined as a

Revenue Assistant on 30.12.2009 in Nilakottai Taluk in Dindigul

District, then posted in Peraiyur Taluk in Madurai District on 27.09.2011

and then he was promoted as Revenue Inspector on 10.11.2012 in

Karumathur, in Usilampatti Taluk and discharging unblemished services https://www.mhc.tn.gov.in/judis

of all these years.

3. While so, after the petitioner was joining at Karumathur

office, one A.Kasimayan approached him for issuance of the destitute

widow certificate for his brother's wife and he told that his application

was pending for about six months. It is the case of the petitioner that the

said application was given even before the joining of the petitioner in

that particular office. When the petitioner was joining at Karumathur

Office, there was a law and order problem relating with the temple

festival at Karumathur, entire revenue and police department were

engaged in settling the issue and at that time the said Kasimayan picked

up quarrel with the petitioner and developed hostile attitude against the

petitioner. Then he was pacified by the village people and suddenly and

unexpectedly the said Kasimayan forced the currency notes in the

petitioner's hand and at that time, the anti vigilance team caught the

petitioner red-handed.

4. Thereafter, the petitioner was arrested and suspended from

service by the order of the first respondent on 11.03.2013 and then a

criminal case has been registered against him for the offence punishable https://www.mhc.tn.gov.in/judis

under Section 7 of the Prevention of Corruption Act, 1988 and after the

full-fledged trial, he was acquitted by the special court in the said case in

Special Case No.15 of 2014, on 30.12.2020.

5. It is the further case of the petitioner that during the

pendency of the criminal case, after five years the disciplinary

proceeding was initiated against the petitioner in Na.Ka.No.

14317/2013/PA2, dated nil.08/2018 and since, both are on same

allegation and the charge contains the same set of facts, the disciplinary

proceeding was kept in abeyance, awaiting for the outcome of the

criminal case. Thereafter, the petitioner was acquitted in the criminal

case. However, the disciplinary proceeding has not been dropped and he

was not reinstated.

6. In this regard, he had made several representations and

requested the authority to reinstate him with all attended benefits.

However, without considering the same, the first respondent had passed

an order appointing the third respondent as an enquiry officer to proceed

with the disciplinary proceeding.

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7. The main contention of the petitioner is that since both in

the criminal case as well as in the disciplinary proceeding, the charge is

one and the same and of course, the disciplinary proceeding may be

proceeded during the pendency of the criminal case. However, when the

disciplinary proceeding is stopped for the outcome of the criminal

proceeding and after acquittal, continuing the proceeding is illegal.

8. Per contra, the learned Government Advocate appearing

for the respondents 1 to 4 submitted that the writ petitioner was caught

red-handed and he was arrested in the spot and he was tried for the

offences punishable under sections 7, 13 (2) r/w 13 (1) (d) of Prevention

of Corruption Act, 1988. After getting administrative sanction from the

department, the vigilance department prosecuted a criminal case

registered against the writ petitioner. Thereafter, the Inspector of Police,

Vigilance and Anti-Corruption Department, vide his letter dated

05.03.2013, intimated the department about the arrest and detention of

writ petitioner and thereby, he was placed under suspension from service

vide proceedings dated 11.03.2013 by invoking provision 17 (e) of

TamilNadu Civil Services (Discipline & Appeal) Rules, 1955. https://www.mhc.tn.gov.in/judis

9. On the other hand, Vigilance department has conducted an

enquiry and filed a final report, based on which, the Special Court for

Trial of Prevention of Corruption Act cases, Madurai, took cognizance in

Special. Case. No. 15 of 2014.

10. The learned Government Advocate appearing for the

respondents submitted that only at the request of the writ petitioner, the

departmental proceedings had been kept in abeyance till the disposal of

criminal case initiated against him. Even though pendency of criminal

case is not bar for proceedings with the departmental enquiry, department

with an intention to provide adequate opportunity waited till the disposal

of criminal case initiated against the petitioner, since it is contented by

the writ petitioner that all the supporting materials were submitted before

the criminal court.

11. Learned Government Advocate appearing for the

respondents further submitted that the petitioner got acquitted in Special

Case.No.15 of 2014, on the file of Special Court for Trial of Prevention

of Corruption Act cases, Madurai, by the Judgment dated 30.12.2020. https://www.mhc.tn.gov.in/judis

12. The contention of the learned Government Advocate is

that though the petitioner got acquitted, the acquittal in criminal case is

not bar for proceedings with the departmental enquiry and therefore, the

department directed the competent authority to immediately proceed with

the departmental enquiry and to pass appropriate orders on the same. In

this regard enquiry notice dated 22.07.2022 was issued to the writ

petitioner by the fourth respondent herein, directing him to appear for

enquiry schedule to be held on 05.08.2022.

13. A counter-affidavit also filed by the first respondent on

behalf of the respondents on 30.09.2022. The averments are extracted

hereunder:-

“9. I submit that on receipt of enquiry notice, writ petitioner instead of appearing for departmental enquiry have come with the present writ petition challenging the charge memo dated Nil.08.2018 in Na.Ka. No. 14317/2013/PA2 was issued by the second respondent and quash the same in the light of Judgment passed in Special Case.No.15 of 2014 on the file of Special Court for Trial of https://www.mhc.tn.gov.in/judis

Prevention of Corruption Act cases, Madurai, on the ground that writ petitioner have honourably acquitted in the criminal case and further charges and material evidence both in the criminal case and departmental proceedings are one and the same. I submit that this Hon'ble Court vide interim order dated 21.07.2022 was pleased to grant an order of interim stay of all further proceedings pursuant to impugned charge memo issued by the second respondent, in Na.Ka.No. 14317/2013/PA2, dated nil.08/2018.

10. I submit that very ground raised by the writ petitioner for challenging the charge memo is that the charges in criminal case and departmental enquiry and the materials are one and the same. Since he was acquitted from the criminal case, the departmental proceedings initiated against him also needs to be dropped. I submit that Government of Tamil Nadu vide G.O.Ms.No. 251, personnel and Administrative Reforms (Personnel-N) Department, dated 21-04- 1988 made it clear that it is open for the competent authority either to continue or drop the disciplinary proceedings against the delinquent https://www.mhc.tn.gov.in/judis

and further the Judgment and findings of criminal court may not be bar to proceed with the disciplinary proceedings. Accordingly, in the present case competent authority after due consideration decided to proceed with the departmental enquiry and the same does not warrant any interference from this Hon'ble Court.

11. I submit that mere acquittal in a criminal case is not a bar for the departmental disciplinary proceedings. In the event of conviction by the criminal Court, no enquiry is required as Rule 17(c) contemplates show cause notice and dismissal from service.

In the event of acquittal, the Department is empowered to continue the disciplinary proceedings and take independent decision including imposition of punishment. To convict a person under Criminal Law, strict offence is required, however no such proof is required to punish an employee under the Discipline and Appeal Rules. Preponderance of probability of grant of punishment to a public servant under Discipline and Appeal Rules, there is no bar for the authority to continue disciplinary proceedings even in case, a person is acquitted https://www.mhc.tn.gov.in/judis

in a criminal case.

12. I submit that the procedures to be followed in a criminal case and the departmental proceedings are distinct and different and under these circumstances, quashing of charge memo does not arose. I submit that in the departmental enquiry authority is empowered to conduct the enquiry independently based on the materials available on record. The allegation against the writ petitioner was relating to corrupt activities and the same is in serious nature.”

14. The learned Government Advocate also relied on the

Government Order in G.O.Ms.No.251, Personnel and Administrative

Reforms (Personnel-N) Department, dated 21.04.1988, wherein it has

been stated as follows:-

“(i) that, in the case of an Accused

Official acquitted by Court of Law whether on

merits or on technical grounds or otherwise, it

is open to the competent disciplinary authority

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is institute or continue disciplinary

proceedings against the said Accused Official

for the same charges from which he was

acquitted by court, if the competent

disciplinary authority is of the view that there

are good grounds and sufficient evidence to

proceed with the departmental disciplinary

proceedings;”

15. Heard the learned counsel for the petitioner and the

learned Government Advocate appearing for the respondents and perused

the material on record.

16. It is pertinent to note that the charges levelled against

the petitioner each in the disciplinary proceedings and the criminal case

are identical and one and the same. Even the documentary evidences and

witnesses cited in the disciplinary proceedings were examined in the

criminal case also. It would be useful to scan and extract the enclosures

of the charge memo filed against the petitioner hereunder:-

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

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17. Similarly, as pointed out earlier, it is pertinent to note

that the prosecution witnesses and exhibits marked on the prosecution

side are identical to that of the charge memo issued to the petitioner. The

same is extracted hereunder:-

Prosecution Witnesses:

P.W.1 Tr.L.Subramanian, IAS, (Sanction Authority)

P.W.2 Tr.A.Kasimayan (Defacto Complainant)

P.W.3 Tr.S.Antonysamy Pushparaj (shadow witness)

P.W.4 Tr.N.Ashokkumar (Official Witness)

P.W.5 Tr.Udayasankar

P.W.6 Tr.Rajeshwaran

P.W.7 Tmt.K.Ambika Devi

P.W.8 Tr.Selvaraj

P.W.9 Tr.S.Rajaram

P.W.10 Selvi.C.Thilagavathy (Head Clerk)

P.W.11 Tr.R.Tamilselvan (Inspector of Police)

P.W.12 Tr.A.Ambrose Jayaraja (Inspector of Police)

P.W.13 Tmt.Suriyakala (Inspector of Police)

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Exhibits marked on the Prosecution Side:

Ex.P.1 05.02.2014 Sanction Proceedings.

Ex.P.2 05.03.2013 PW2's Signature in Ex.P15 Complaint.

Ex.P.3 05.03.2013 PW2’s Signature in Ex.P5 Entrustment

Mahazar

Ex.P.4 05.03.2013 PW2's Signature in Ex.P16 FIR.


                     Ex.P.5       05.03.2013        Entrustment Mahazar

                     Ex.P.6(s)    18.12.2012        File containing the PW7’s Petition

                                                    (Destitute Widow Certificate) to RDO

                                                    Usilampatti along with enclosure and

                                                            Official   Memo    of   Usilampatti

                     Tahsildar. Ex.P.7(s)      15.10.2012         File containing the PW7's

                     Petition                                     (Government Aid under the

                     Ulavar                                       Protection    Scheme)        to

                     Thasidhar                                    Usilampatti with enclosure

                     Ex.P.8       05.03.2013        Rough Sketch

                     Ex.P.9       05.03.2013        Seizure Mahazar

                     Ex.P.10(s) 03.01.2013          Usilampatti Taluk Office “A” Register

with entry of PW7's petition for Destitute

Widow Certificate.

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Ex.P11 21.12.2012 File containing PW7's petition for

Destitute Widow Certificate (Xerox

Copy) with Usilampatti RDO

endorsement forwarding to the Taluk

Office.

Ex.P12(s) 18.03.2013 This Court requisition for Chemical

analysis with Inspector's requisition and

Case History.

Ex.P13(s) 08.04.2013 This Court letter with Inspector

requisition to get Chemical Report.

                     Ex.P14       22.03.2013   Chemical Report

                     Ex.P.15      05.03.2013   Complaint

                     Ex.P.16      05.03.2013   First Information Report

                     Ex.P.17      05.03.2013   House Search Intimation letter

                     Ex.P18       05.03.2013   House Search Slip.

                     Ex.P.19      05.03.2013   Section Added Report

                     Ex.P.20(s) 2012           Personal Register maintain by the

                                               Usilampatti RDO Office.

                     Ex.P.21      20.12.2012   PW7's petition entry in Ex.P20(s)under


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Material Objects marked on the Prosecution Side:

M.O.1(s) Tainted Currency Notes of Rs.2000/- (3x500 =Rs.

1500/-+5x 100=Rs.2000/-

M.O.2 Solution tested on the Right hand fingers of Accused

M.O.3 Solution tested on the Left hand fingers of Accused

M.O.4 Solution tested Accused's Pant. M.O.5 Accused's Pant.

18. On perusal of the aforesaid evidences and witnesses, it

could be seen that the facts/charges on which the criminal proceedings

were initiated and the charge memo has been issued and the witnesses

which were examined in both the proceedings are identical and same. It

is also pertinent to note that the criminal Court had acquitted the

petitioner holding that:

“7.For all these reasons, this Court holds on the point that Accused is not guilty under Section 7 and 13(2) read with 13(1)(d) of PC Act, 1988 and he is entitled for acquittal.”

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19. Admittedly, in the present case, the criminal proceedings

were initiated against the petitioner and he was acquitted on 30.12.2020.

The relevant portion of the order is extracted hereunder:-

“6.4. Consideration on ‘Demand of

illegal gratification’ prior to the Trap:-

In P.Satyanarayana -Vs- State of Punjab

(2017) 8 136 and B.Jeyaraj -Vs- State of A.P.

(2014) 13 SCC 55, the Honorable Supreme

Court held that in so far as the offence U/S 7 is

concerned, it is settled position in law that

demand of illegal gratification is 'sine qua non'

(condition precedent) to constitute the said

offence and a recovery of currency notes

cannot constitute the offence U/S 7 unless it is

proved beyond all reasonable doubt that the

Accused voluntarily accepted the money

knowing it to be a bribe. Holding so, the

proposition laid down in C.N.Sharma -Vs-

State of A.P. (2010) 15 SCC 1 and C.M. Girish

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Babu -Vs- CBI (2009) 3 SCC 779 was again

reiterated.

6.5. Bribe demand and PW2's

hostile evidence:

PW2 is bribe-giver/decoy witness. He authored Ex.P15, Complaint. Based on this prime document, Prosecution asserts that on 04.03.2013 at about 11 Am when PW2 met Accused in respect of PW7's petitions on her Destitute Widow Certificate and availing of Relief Fund for her husband's death, he demanded Rs.3,000/- as bribe to take further action; that on bargaining, Accused reduced the demand to Rs.2,000/- with a condition that it should have been paid by 05.03.2013 and that aggrieved by this bribe demand, PW2 went to Vigilance and Anticorruption Wing, Madurai on 05.03.2013 where he filed his written complaint. It has been converted in to FIR, Ex.P16 immediately; whereupon, PW11, Trap laying officer started the Pre-trap proceeding and then laid trap, this is the core feature of Prosecution case on 'bribe demand'.”

20. The respondents cannot initiate the departmental https://www.mhc.tn.gov.in/judis

proceedings pursuant to the charge memo issued by the second

respondent. When the charge memo and the criminal case are in the same

set of facts and charges, and the petitioner was acquitted by the criminal

court, the second respondent cannot issue the charge memo dated

02.08.2018 in Na.Ka.No.14317/2013/PA2, for the same set of charges,

which is liable to be quashed. Therefore, this Court is inclined to quash

the impugned charge memo issued by the second respondent in

Na.Ka.No.14317/2013/PA2, signed on 02.08.2018 and accordingly, the

same is quashed.

21. In the result, the writ petition stands allowed and the first

respondent is directed to reinstate the petitioner with all eligible attended

benefits within a period of eight (8) weeks from the date of receipt of a

copy of this order. Consequently, the connected miscellaneous petitions

are closed. No costs.