Madras High Court
Abdul Hakim vs The Principal Secretary To Government on 25 April, 2025
W.P.No.25910 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on 05.02.2025
Pronounced on 25.04.2025
CORAM
THE HONOURABLE MS.JUSTICE R.N.MANJULA
W.P.No.25910 of 2019 and
W.M.P.Nos.25371 & 25373 of 2019
Abdul Hakim
... Petitioner
Vs.
1.The Principal Secretary to Government,
Public Department,
Secretariat, St.George Fort,
Chennai - 600 023.
2.The Commissioner,
Greater Chennai Corporation,
Ribbon Building,
Chennai 600 003.
3.The Central Regional Deputy Commissioner,
Corporation of Chennai,
No.62, Basin Bridge Road,
Old Washermenpet,
Chennai 600 021. ... Respondents
Prayer: Writ Petition is filed under Article 226 of the Constitution of
India, to issue a Writ of Certiorarified Mandamus, to call for the records
of the order passed by the second respondent in
Page No.1 of 22
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W.P.No.25910 of 2019
Po.Thu.N.K.No.E.6/36252/2015 dated 10.05.2019 confirming the order
passed by the first respondent made in G.O.No.422, Municipal
Administration and Water Supply Department (M.N.3) dated 13.10.2016,
confirming the order passed by the first respondent in
Po.Thu.Na.Ka.No.E.6/36252/2015 dated 20.10.2015 and order passed by
the third respondent made in M.V.A.Na.Ka.No.A.5/002236/2015 dated
09.06.2015 and quash the same as illegal, arbitrary and nonest in law and
consequently, direct the third respondent to grant all attendant service
benefits such as notional promotion with continuity of service and all
other monetary service benefits with effect from 02.10.2008 to the
petitioner with reasonable rate of interest.
(Prayer amended as per order dated 06.01.2020 made in WMP.No.30126
of 2019 in W.P.No.25910 of 2019)
For Petitioner : Mrs.R.Dakshayini Reddy, Senior Counsel
for Mr.A.R.Balaji
For Respondents : Mr.S.Rajesh, GA for R1
Mr.G.T.Subramanian, Standing Counsel
for R2 & R3
ORDER
The petitioner has filed this Writ Petition to call for the records of
the order passed by the second respondent in
Po.Thu.N.K.No.E.6/36252/2015 dated 10.05.2019 confirming the order
passed by the first respondent made in G.O.No.422, Municipal
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Administration and Water Supply Department (M.N.3) dated 13.10.2016,
confirming the order passed by the first respondent in
Po.Thu.Na.Ka.No.E.6/36252/2015 dated 20.10.2015 and order passed by
the third respondent made in M.V.A.Na.Ka.No.A.5/002236/2015 dated
09.06.2015 and quash the same as illegal, arbitrary and nonest in law and
consequently, direct the third respondent to grant all attendant service
benefits such as notional promotion with continuity of service and all
other monetary service benefits with effect from 02.10.2008 to the
petitioner with reasonable rate of interest.
2. Heard Mrs.R.Dakshayini Reddy, learned Senior Counsel for the
petitioner, Mr.S.Rajesh, learned Government Advocate for R1
and Mr.G.T.Subramanian, learned Standing Counsel for R2 and R3 and
perused the materials available on record.
3. The brief facts of the case are as follows:
The petitioner was appointed as Casual Labour in the year 1969
and he was promoted as Bill / Tax Collector in the year 1986. Thereafter,
he was posted as Tax Collector in Division No.51, Zonal No.IV, in the
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Corporation of Chennai. On 19.08.2008 a complaint has been given by
one Kumar alleging that the petitioner had demanded an illegal
gratification of Rs.1500/- for effecting name transfer of the property.
Subsequently, he was arrested under Section 7 of the Prevention of
Corruption Act and later, he was suspended on 02.10.2008. Both criminal
proceedings and disciplinary proceedings have been initiated against the
petitioner. During the pendency of these proceedings, the petitioner had
reached the age of superannuation on 30.06.2010. But he was not
permitted to retire.
3.1. In the criminal proceedings, the petitioner was convicted and
immediately after the conviction, the petitioner was issued with the
second show cause notice and a finding of guilty was recorded by the
Enquiry Officer and thereafter, the petitioner was imposed with the major
punishment of dismissal from service on 09.06.2015. He preferred an
appeal and the same was also dismissed on 20.10.2015. The petitioner
has filed a revision and the same was also rejected on 13.10.2016.
Aggrieved over that, the petitioner has preferred this Writ Petition
challenging the impugned orders passed by the respondents 1 to 3.
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4. Mrs.R.Dakshayini Reddy, learned Senior Counsel for the
petitioner submitted that both the criminal proceedings and the
disciplinary proceedings have been initiated on the same set of facts and
evidence; in the criminal case, the petitioner has filed an appeal before
the High Court in Crl.A.No.581 of 2014 and the appeal was allowed on
28.03.2018 and he was acquitted in the criminal case; the third
respondent is not an appropriate authority to impose the capital
punishment of dismissal from service; a proper procedure has not been
followed while conducting the departmental enquiry; no oral witness was
examined and the report of the Enquiry Officer does not speak about the
material evidence, if any; though the departmental proceedings have
been initiated in the year 2010, the proceedings were kept pending for
four years and immediately after the petitioner was convicted, he was
served with an order of dismissal without even conducting any
exhaustive enquiry; the petitioner has rendered 35 years of service from
1975 to 2010 and his past service records were not considered before
imposing the major punishment of dismissal from service.
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5. Mr.G.T.Subramanian, learned Standing Counsel for R2 and R3
submitted that the enquiry against the petitioner and the departmental
proceedings have been conducted by following due procedure and the
Enquiry Officer has recorded a finding that the charges against the
petitioner were proved. The petitioner had not chosen to cross examine
the witnesses during the enquiry. After giving adequate opportunity to
the petitioner by way of serving him the second show cause notice, the
disciplinary authority has passed the order of dismissal by considering
the gravity of charges and by considering the materials on record. The
Appellate Authority has also rejected the appeal since no acceptable
grounds have been raised by the petitioner. The review petition was also
rejected because no fresh grounds were raised. Even if the employee was
acquitted in a criminal case, he could be punished in the departmental
proceedings.
6. No doubt, it is a well settled principle of law that the standard of
proof required to prove the criminal charges are different from proving
the charges given under the disciplinary proceedings. While the former
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has to be proved beyond reasonable doubt, it is sufficient for the later to
be proved through preponderance of probabilities. But the contention of
the petitioner is that when both departmental and criminal proceedings
have been initiated on the same set of facts and evidence and in the event
of employee getting acquittal in the criminal case, the same shall have an
impact on the disciplinary action as well. Apart from the above
contention, it is also the grievance of the petitioner that the enquiry
proceedings has not been conducted in compliance of the rules governing
the same.
7. The enquiry report attached with the second show cause notice
issued to the petitioner would show that the Enquiry Officer has recorded
the findings in a summary manner. Even the respondents did not produce
any other enquiry report to show that the Enquiry Officer has recorded
exhaustive evidence or atleast marked documents during the enquiry
proceedings before he arrives at a conclusion about the guilt of the
petitioner.
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8. The petitioner has been punished on the allegation that he was
caught red-handed while accepting Rs.1500/- as bribe and thereby, he
abused his official capacity and failed to maintain absolute integrity and
devotion to duty. In the annexure attached to the charges, there are some
list of documents and it does not contain any list of witnesses proposed
to be examined during the enquiry. The petitioner has submitted an
exhaustive explanation and the Enquiry Officer's report does not show
anything about how the explanation was considered and found to be unfit
for acceptance. As the petitioner was imposed with the punishment of
dismissal from service which is the major penalty as found under Rule 5
of the Chennai Corporation Class III and IV Service (Discipline and
Appeal) by-laws published vide notification No.S.R.O. C-21/83, the
procedure for imposing such penalty contemplated under Rule 9 has to
be followed. By-law 9(2) would stipulate that where it is proposed to
impose any of the major penalties specified in Clauses (iv), (viii), (ix) (x)
and (xi) of by-law 5, after furnishing the charge sheet and getting the
written statement of defence from the delinquent, an oral enquiry shall
be held if the delinquent wishes to have an oral enquiry.
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9. The learned Senior Counsel for the petitioner further submitted
that despite the petitioner had desired to have an oral enquiry, the same
was not held.
10. However, it is submitted by the learned Standing Counsel for
the respondents 2 and 3 that it is the petitioner who did not come forward
to cross examine the witnesses and hence, the petitioner cannot blame the
enquiry proceedings that it was not proper.
11. Even the enquiry report as I found from the records does not
reveal anything about the examination of witnesses. In fact, the summary
entry has been made by the Enquiry Officer and in that, there is no details
about the evidence. It appears that the registration of the criminal case
itself has been considered as a material evidence to record the finding as
to the guilt of the accused in the departmental proceedings.
12. The learned Senior Counsel for the petitioner also submitted
that mere registration of FIR cannot be considered as proof of charges.
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13. As the petitioner has been imposed with the charges in view of
the alleged red-handed arrest while he was receiving bribe, the witnesses
and the materials that can be relied on for the criminal case and the
departmental proceedings can be one and the same. The collection of
evidence is a part of the investigation and proof of evidence can be done
only during the course of the trial.
14. There cannot be any disagreement on the above said
fundamental fact. The Hon'ble Supreme Court has also held in the case of
Roop Singh Negi Vs. Punjab National Bank and Others, reported in
(2009) 2 SCC 570 that tending of the documents by the witnesses cannot
amount to production of evidence unless they have spoken about the
same in their evidence. The judgment of the Hon'ble Supreme Court in
Narinder Mohan Arya Vs. United India Insurance Company Ltd.,
reported in (2006) 4 SCC 713 also makes a clear distinction between
"some evidence" and "no evidence". Even in case of production of some
evidence, the purpose of producing the same should be for the purpose of
proving the charges.
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15. In M.V.Bijlani Vs. Union of India, reported in (2006) 5 SCC
88, the Hon'ble Supreme Court has held that though the standard of proof
for departmental proceedings is not beyond the reasonable doubt, the
enquiry being quasi judicial proceedings, the conclusion should be
arrived basing upon the preponderance of probability. While considering
the preponderance of probability, the Enquiry Officer cannot ignore the
relevant facts and consider the irrelevant facts and the burden of proof
cannot be shifted on the employee and the conclusions cannot be arrived
out of mere surmises and conjunctures. For a better clarity, the relevant
paragraph of the above judgment is extracted hereunder:
"25.....Although the charges in a departmental
proceeding are not required to be proved like a criminal trial
i.e., beyond all reasonable doubt, we cannot lose sight of the
fact that the enquiry officer performs a quasi-judicial
function, who upon analysing 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
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surmises and conjectures. He cannot enquire into the
allegations with which the delinquent officer had not been
charged with."
16. In the instant case, even though the petitioner had narrated
several facts which demand oral enquiry, the records does not reveal that
the oral enquiry has been conducted. Even the annexures attached to the
charges also did not disclose the list of witnesses proposed to be
examined during the enquiry. All that relied was only the registration of a
criminal case. No doubt mere registration of the criminal case itself will
not amount to proof of charges unless put to exhaustive test basing on the
materials and evidence produced during the enquiry. It appears from the
record that the charges against the petitioner have been proved on the
basis of no evidence.
17. So far as the scope of Writ jurisdiction to interfere with the
order of the disciplinary authority is very limited, one of the grounds for
review can be to examine whether the decision making process is
legitimate. The Hon'ble Supreme Court has reiterated the legal position
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of review in Ram Lal Vs. State of Rajasthan and Others, reported in
(2024) 1 SCC 175, which are extracted hereunder:
"10. We have examined both the questions
independently. We are conscious of the fact that a Writ Court's
power to review the order of the disciplinary authority is very
limited. The scope of enquiry is only to examine whether the
decision-making process is legitimate. As part of that exercise,
the Courts exercising power of judicial review are entitled to
consider whether the findings of the disciplinary authority
have ignored material evidence and if it so finds, the Courts
are not powerless to interfere.
11.We are also conscious of the fact that mere acquittal
by a criminal court will not confer on the employee a right to
claim any benefit, including reinstatement.
12.However, if the charges in the departmental enquiry
and the criminal court are identical or similar, and if the
evidence, witnesses and circumstances are one and the same,
then the matter acquires a different dimension. If the Court in
judicial review concludes that the acquittal in the criminal
proceeding was after full consideration of the prosecution
evidence and that the prosecution miserably failed to prove the
charge, the Court in judicial review can grant redress in
certain circumstances. The Court will be entitled to exercise its
discretion and grant relief, if it concludes that allowing the
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findings in the disciplinary proceedings to stand will be unjust,
unfair and oppressive. Each case will turn on its own facts."
18. In the above said case, the Hon'ble Supreme Court has also
dealt about the effect of acquittal in the criminal proceedings. In this
aspect, the relevant paragraphs of the above judgment (Ram Lal Vs.
State of Rajasthan and Others, reported in (2024) 1 SCC 175) are
extracted hereunder:
"28. Expressions like “benefit of doubt” and
“honorably acquitted”, used in judgments are not to be
understood as magic incantations. A court of law will not be
carried away by the mere use of such terminology. In the
present case, the Appellate Judge has recorded that Exh. P-3,
the original marksheet carries the date of birth as 21.04.1972
and the same has also been proved by the witnesses examined
on behalf of the prosecution. The conclusion that the acquittal
in the criminal proceeding was after full consideration of the
prosecution evidence and that the prosecution miserably failed
to prove the charge can only be arrived at after a reading of
the judgment in its entirety. The court in judicial review is
obliged to examine the substance of the judgment and not go
by the form of expression used.
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29. We are satisfied that the findings of the appellate
judge in the criminal case clearly indicate that the charge
against the appellant was not just, “not proved” - in fact the
charge even stood “disproved” by the very prosecution
evidence. As held by this Court, a fact is said to be
“disproved” when, after considering the matters before it, the
court either believes that it does not exist or considers its non-
existence so probable that a prudent man ought, under the
circumstances of the particular case, to act upon the
supposition that it does not exist. A fact is said to be “not
proved” when it is neither “proved” nor “disproved” [See
Vijayee Singh and Others v. State of U.P. (1990) 3 SCC 190].
30. We are additionally satisfied that in the teeth of the
finding of the appellate Judge, the disciplinary proceedings
and the orders passed thereon cannot be allowed to stand."
19. On perusal of the judgment of acquittal made in C.A.No.581 of
2014 which set aside the order of conviction of the Trial Court, would
show that the acquittal was on merits and not on mere benefit of doubt.
On this aspect, it is worthwhile to reproduce paragraph Nos. 21 to 23 of
the judgment made in Criminal Appeal No.581 of 2014 filed by the
petitioner as below:
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"21.No doubt, by phenolphthalein test, the prosecution
has proved the fact that the accused / appellant had contacted
phenolphthalein. Whether it was due to handling the tainted
currency or by contacting the hands of P.W.2 is not sure. While
so, when the money was recovered from the folder concealed
in between the bill book and the photocopy of the tile
documents, whether it was kept with the knowledge of the
appellant or without his knowledge is also not sure.
22. While the prosecution has not proved its case
beyond reasonable doubt in respect of the demand and
acceptance, the presumption under Section 20 of the
Prevention of Corruption Act cannot be drawn. Proof of
demand and acceptance beyond reasonable doubt is sine qua
non to draw the presumption under Section 20 of the
Prevention of Corruption Act. When the prosecution is unable
to discharge the primary burden of demand and acceptance
beyond doubt, the case of the prosecution is bound to fail.
23. Further, the specific case of the prosecution centres
on demand of illegal gratification by the accused/appellant for
effecting name transfer. It is also the case of P.W.2 in his
complaint marked as Ex.P2 that when he met the accused /
appellant on 11.08.2008, the accused obtained signature in the
name transfer form and kept it with him. P.W.8, the trap laying
officer has deposed that during the search of the accused
table, he has recovered the records including the application
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for name transfer given by P.W.2 which is marked as Ex.P14.
Perusal of Ex.P14 we find except the ward number, division
number and signature of the defacto complainant, the other
columns in the application is blank and unfilled. More
particularly, the name of the transferee is neither filled up nor
his signature is obtained. Without the consent or signature of
his father, P.W.2 contends that he made a request for name
transfer to the bill collector who is not the person competent
to do so and for the said purpose, the bill collector demanded
Rs.1500/-. Further, the learned counsel for the appellant
would submit that till date the property tax assessment stands
in the name of Ramamurthy, the father of P.W.2. This
improbablise the prosecution case. Since the contradiction and
the explanation given by the accused not been properly
considered by the trial court, it requires interference.
Accordingly, appeal is allowed."
20. So the acquittal of the petitioner in the criminal case is
completely based upon the consideration of the materials. As pointed out
earlier, the facts and materials involved in both the criminal case and the
disciplinary proceedings are one and the same and hence, the acquittal of
the petitioner on appreciation of the merits of the criminal case would
certainly have the bearing on the result of the disciplinary proceedings.
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In this aspect, it is appropriate to refer the ratio decidendi laid down by
the Hon'ble Supreme Court in the case of G.M. Tank Vs. State of
Gujarat and Others, reported in (2006) 5 SCC 446. In the said case, it is
held as under:
"30. The judgments relied on by the learned counsel appearing
for the respondents are not distinguishable on facts and on law.
In this case, the departmental proceedings and the criminal case
are based on identical and similar set of facts and the charge in
a Departmental case against the appellant and the charge before
the Criminal Court are one and the same. It is true that the
nature of charge in the departmental proceedings and in the
criminal case is grave. The nature of the case launched against
the appellant on the basis of evidence and material collected
against him during enquiry and investigation and as reflected in
the charge sheet, factors mentioned are one and the same. In
other words, charges, evidence, witnesses and circumstances are
one and the same. In the present case, criminal and
departmental proceedings have already noticed or granted on
the same set of facts namely, raid conducted at the appellant's
residence, recovery of articles therefrom. The Investigating
Officer, Mr. V.B. Raval and other departmental witnesses were
the only witnesses examined by the Enquiry Officer who by
relying upon their statement came to the conclusion that the
charges were established against the appellant. The same
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witnesses were examined in the criminal case and the criminal
court on the examination came to the conclusion that the
prosecution has not proved the guilt alleged against the
appellant beyond any reasonable doubt and acquitted the
appellant by his judicial pronouncement with the finding that the
charge has not been proved. It is also to be noticed the judicial
pronouncement was made after a regular trial and on hot
contest. Under these circumstances, it would be unjust and
unfair and rather oppressive to allow the findings recorded in the
departmental proceedings to stand."
21. In the disciplinary proceedings conducted against the
petitioner, same set of documents and evidence of witness have been
produced and the enquiry authority has given a summary disposal to the
enquiry merely on the basis of the registration of the criminal case.
Though the punishment of dismissal is the major penalty which can only
be imposed by the second respondent, the third respondent has issued an
order of dismissal. Even though the petitioner has raised the ground of no
evidence in the grounds of appeal filed before the Appellate Authority,
the same was not considered and the order of dismissal was confirmed.
The first respondent revisional authority also did not advert into the
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above grounds and he had confirmed the order of punishment in the
revision petition filed before him.
22. As the order of dismissal has been passed by the authority who
is not competent to pass the order and the charge against the petitioner
has not been proved basing upon the acceptable evidence and the fact
that the petitioner has been acquitted in the criminal case on the same set
of evidence and materials produced before the criminal case, I feel the
impugned orders are liable to be set aside.
23. In the result, this Writ Petition is allowed and the impugned
orders passed by the second respondent in
Po.Thu.N.K.No.E.6/36252/2015 dated 10.05.2019, the order passed by
the first respondent in G.O.No.422, Municipal Administration and Water
Supply Department (M.N.3) dated 13.10.2016, the order passed by the
first respondent in Po.Thu.Na.Ka.No.E.6/36252/2015 dated 20.10.2015
and the order passed by the third respondent made in
M.V.A.Na.Ka.No.A.5/002236/2015 dated 09.06.2015 are set aside and
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the respondents are directed to grant all attendant, service and monetary
benefits with effect from 02.10.2008 to the petitioner and pass
appropriate orders in this regard within a period six weeks from the date
of receipt of a copy of this order. No costs. Consequently, connected
miscellaneous petitions are closed.
Index : Yes/No 25.04.2025
Speaking / Non-speaking
Neutral Citation : Yes / No
gsk
To
1.The Principal Secretary to Government,
Public Department,
Secretariat, St.George Fort,
Chennai - 600 023.
2.The Commissioner,
Greater Chennai Corporation,
Ribbon Building,
Chennai 600 003.
3.The Central Regional Deputy Commissioner,
Corporation of Chennai,
No.62, Basin Bridge Road,
Old Washermenpet,
Chennai 600 021.
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R.N.MANJULA, J.
gsk
W.P.No.25910 of 2019 and
W.M.P.Nos.25371 & 25373 of 2019
25.04.2025
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