Sekar.P v. The District Collector
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 30.10.2024
CORAM:
THE HONOURABLE MR.JUSTICE J.SATHYA NARAYANA PRASAD 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 P RAYER:
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 1/24
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
O R D E R
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 2/24
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 3/24
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. 5/24
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. 6/24
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 7/24
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 8/24
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 9/24
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 10/24
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:- 11/24
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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) 16/24
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 the S.No. 486 18/24
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." 19/24
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 -VsState of A.P. (2010) 15 SCC 1 and C.M. Girish 20/24
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 21/24
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.
30.10.2024 Index : Yes / No Internet : Yes / No PKN 22/24
To 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.
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J.SATHYA NARAYANA PRASAD , J.
PKN 30.10.2024 24/24