0091. The State of Tamil Nadu v. T.Ganapathay,Formerly Deputy TahsildarO/o. Assistant Director of Geology and MiningTirunelveli

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 9.10.2009Coram: THE HONOURABLE MR.JUSTICE D.MURUGESANandTHE HONOURABLE MR.JUSTICE M.JAICHANDREN W.A.No.1061 OF 20091. The State of Tamil Nadu rep. by its Secretary to Government Industries Department (E1) Fort St. George, Chennai-600 0092. The District Collector, Tirunelveli District at Tirunelveli. ..Appellants/Respondentsvs.T.Ganapathay,Formerly Deputy TahsildarO/o. Assistant Director of Geology and MiningTirunelveli. ..Respondent/PetitionerThis Writ Appeal is filed under Clause 15 of Letters Patentagainst the order of this Court dated 12.1.2009, made in W.P.No.31347of 2007. Petition filed under Article 226 of the Constitution ofIndia for issuance of a Writ of Certiorarified Mandamus to call forthe records relating to the Letter No.25082/E1/2007-20 dated30.8.2007 issued by the 1st respondent and quash the same as null andvoid and directing the 2nd respondent to pay all the pensionarybenefits from the date of superannuation including the suspensionperiods as on duty with interest.For Appellants : Ms.Sneha Government AdvocateFor Respondent : Mr.K.PremkumarJUDGMENTM.JAICHANDREN J.,This writ appeal has been preferred by the appellants againstthe order of the learned single Judge, dated 12.1.2009, made inW.P.No.31347 of 2007. https://hcservices.ecourts.gov.in/hcservices/

2. The respondent herein had filed the writ petition inW.P.No.31347 of 2007 praying for a writ of Certiorarified Mandamus tocall for the records relating to the Letter No.25082/E1/2007-20,dated 30.8.2007, issued by the first respondent and quash the sameand to direct the second respondent to pay his pensionary benefitsfrom the date of his superannuation, including the periods when hewas under suspension. 3. The respondent herein, who is the petitioner in the writpetition, had stated that he had served for nearly 38 years in theRevenue Department. He rose to the post of Deputy Tahsildar. He oughtto have retired, on 30.6.2005, on attaining the age ofsuperannuation. However, he was placed under suspension, with effectfrom 29.6.2005, by the proceedings of the District Revenue Officerand Collector in-charge, Tirunelveli, dated 28.6.2005, made inproceedings No.A6/45603/05. In the said proceedings, it had beenstated that it was necessary, in public interest, to place him undersuspension from service, from 29.6.2005, until further orders, sincea criminal case registered against him in C.R.No.2 of 1997, underSections 7 and 13 (2) read with 13(1) of the Prevention of CorruptionAct, 1988, was still pending. Therefore, he was placed undersuspension, invoking Rule 17(e) of the Tamil Nadu Civil Services(Discipline and Appeal) Rules, 1955. It had also been stated that hewould be paid the subsistence allowance and dearness allowanceadmissible under Fundamental Rule 53(1). 4. The respondent herein had stated in the affidavit filed insupport of the writ petition that he had been deputed to work asDeputy Tahsildar in the office of the Assistant Director of Geologyand Mining, Tirunelveli, for a short span from 28.8.1996 to21.3.1997. During the relevant period, the second respondent in thewrit petition, namely, the District Collector, Tirunelveli District,had instructed the subordinate officers to collect the Flag DayCollection to achieve the target. The Review Meetings had been heldin every month to achieve the target. While so, one V.R.Elango, hadpaid a sum of Rs.200/- towards the Flag Day Collection, on 20.3.1997.The Vigilance and Anti-Corruption Officials had arranged for a trapand had recovered the amount from the respondent herein, even beforehe had issued a receipt for the said amount. Thereafter, a case hasbeen registered against the respondent in Special Case No.4 of 2000,on the file of the Chief Judicial Magistrate, Tirunelveli. Therespondent had been acquitted based on the evidence of P.W.1, thecomplainant, who had stated that the amount had been paid onlytowards the Flag Day Collection and not for any other purpose. Thesaid version of P.W.1 had been supported by the statements made bythe other official witnesses. 5. The respondent had further stated that even though he hadreached the age of superannuation, on 30.6.2005, he had been keptunder suspension, by the proceedings of the second respondent, dated https://hcservices.ecourts.gov.in/hcservices/

29.6.2005. The suspension had not been revoked, till date. Therespondent was being paid only the provisional pension. However, thepensionary benefits due to him had not been settled. 6. The respondent had further submitted that consequent to theacquittal of the respondent by the Chief Judicial Magistrate,Tirunelveli, in Special Case No.4 of 2000, the order passed by thesecond respondent under Fundamental Rule 56(i)(c) cannot have anyeffect and there would be no possibility of any action being takenagainst the respondent under the provisions of Tamil Nadu CivilServices (Classifications Control and Appeal) Rules. The said Ruleswould apply only for a Government employee, while he is in service.It cannot be applied to a person, who had attained the age ofsuperannuation. Under such circumstances, the respondent had filedthe original application before the Tamil Nadu State AdministrativeTribual, Chennai, in O.A.No.3898 of 1999. 7. The Tribunal by its order, dated 20.7.1999, had set aside theorder of suspension stating that it was unjustified. However, it wasmade clear that as and when the criminal proceedings ended inconviction against the respondent, the appellants herein were atliberty to pass suitable orders. Thereafter, the second respondenthad issued a charge memo, dated 30.8.2007, vide Letter No.25082/E1/2007-20, dated 30.8.2007. However, the subject mattercovered in the charge memo is based on the same set of facts, thesame documents marked as exhibits and the witnesses, who had alreadyadduced evidence before the concerned criminal Court. While thecriminal proceedings had ended in a clear acquittal of the respondentand as it had become final, the authority concerned cannot initiatedisciplinary proceedings against the respondent, afresh that tooafter an inordinate delay and unexplained delay. 8. The learned single Judge, by its order, dated 12.1.2009, madein W.P.No.31347 of 2007, had allowed the writ petition filed by therespondent herein by quashing the impugned proceedings of the firstrespondent, dated 30.8.2007. The learned single Judge had alsoobserved that the respondent was at liberty to approach theappellants, who are the respondents in the writ petition, forpermission to retire and for the payment of the terminal benefits. 9. Aggrieved by the said order of the learned single Judge,dated 12.1.2009, the respondents in the writ petition had filed thepresent writ appeal before this Court. 10. The learned counsel appearing for the appellants had statedthat the order of the learned single Judge, dated 12.1.2009, made inW.P.No.31347 of 2007, is against law, weight of evidence andprobabilities of the case. It is a well settled proposition of lawthat the nature of evidence required in a criminal case is entirelydifferent from the nature of evidence required in the departmental https://hcservices.ecourts.gov.in/hcservices/ proceedings. Further, it is also well settled that the departmentalproceedings are different from the criminal proceedings before acriminal Court. Therefore, it cannot be held that since therespondent had been acquitted by a criminal Court, he cannot beproceeded by way of the disciplinary proceedings initiated by theappellants. 11. The learned counsel appearing for the appellants had alsosubmitted that while deciding the issues arising for decision in awrit petition under Article 226 of the Constitution of India, it maynot be appropriate for the learned single Judge to sit on appealagainst the decision of a criminal Court and to state as to whetherit was an honourable acquittal or otherwise. Even though therespondent had not replied to the charge memo issued to him, thelearned single Judge had erroneously held that there was no materialto sustain the charges levelled against the respondent. 12. On the contrary, the learned counsel appearing for therespondent had submitted that the proceedings of the first respondentissued under Rule 17(b) of the Tamil Nadu Civil Services (Disciplineand Appeal) Rules, 1955, after an inordinate and unexplained delay ofmore than 10 years is arbitrary, illegal and void. Since therespondent had been suspended from service under Fundamental Rules 56(i)(c), due to the pendency of a criminal case, he should have beenallowed to retire, automatically, without any further proceedingsbeing initiated against him, on his acquittal by the concernedcriminal Court. Once the respondent is acquitted in the criminalcase, it would not be open to the appellants to initiate departmentalproceedings against the respondent under Rule 17(b) of the TamilNadu Civil Services (Discipline and Appeal) Rules, 1955.13. It had also been submitted that since the criminal caseregistered against the respondent and the departmental proceedingsare relating to the same set of facts and based on the same evidence,it would not be open to the appellants to initiate separatedepartmental proceedings after a long delay. Even though therespondent had been honourably acquitted in the criminal case, suchproceedings would be hit by the doctrine of double jeopardy and itwould be contrary to the principles enshrined in Articles 20 and 21of the Constitution of India. The learned counsel for the respondenthad relied on the following decisions in support of his contentions:1) In G.M.Tank V. State of Gujarat (2006(3) CTC 494), theSupreme Court had held as follows:"24....... In this case, the departmental proceedingsand the criminal case are based on identical and similarset of facts and the charge in a departmental case againstthe appellant and the charge before the Criminal Court areone and the same. It is true that the nature of charge in https://hcservices.ecourts.gov.in/hcservices/ the departmental proceedings and in the criminal case isgrave. The nature of the case launched against theappellant on the basis of evidence and material collectedagainst him during enquiry and investigation and asreflected in the charge sheet, factors mentioned are oneand the same. In other words, charges, evidence, witnessesand circumstances are one and the same. In the presentcase, criminal and departmental proceedings have alreadynoticed or granted on the same set of facts namely, raidconducted at the appellant's residence, recovery ofarticles therefrom. The Investigating Officer, Mr.V.B.Ravaland other departmental witnesses were the only witnessesexamined by the Enquiry Officer who by relying upon theirstatement came to the conclusion that the charges wereestablished against the appellant. The same witnesses wereexamined in the criminal case and the Criminal Court on theexamination came to the conclusion that the prosecution hasnot proved the guilt alleged against the appellant beyondany reasonable doubt and acquitted the appellant by hisjudicial pronouncement with the finding that the charge hasnot been proved.25. It is also to be noticed that the judicialpronouncement was made after a regular trial and on hotcontest. Under these circumstances, it would be unjust andunfair and rather oppressive to allow the findings recordedin the departmental proceedings to stand. In our opinion,such facts and evidence in the department, as well ascriminal proceedings were the same without there being anyiota of difference, the appellant should succeed. Thedistinction which is usually proved between thedepartmental and criminal proceedings on the basis of theapproach and burden of proof would not be applicable in theinstant case. Though finding recorded in the domesticenquiry was found to be valid by the Courts below, whenthere was an honourable acquittal of the employee duringthe pendency of the proceedings challenging the dismissal,the same requires to be taken note of and the decision inPaul Anthony's case (supra) will apply......"2) In Union of India V. N.S.Shekhawat (2008(2) L.LN 783) theSupreme Court had held as follows:"There cannot be any doubt that initiation ofdepartmental proceeding is permissible even after thejudgment of acquittal is recorded by the criminal Court.But the same would not mean that a proceeding would beinitiated only because it is lawful to do so. Adepartmental proceeding could be initiated if theDepartment intended to adduce any evidence which is in its https://hcservices.ecourts.gov.in/hcservices/ power and possession to prove the charges against thedelinquent officer. Such a proceeding must be initiatedbona fide. The action of the authority even in this behalfmust be reasonable and fair.It is not a case where a mere benefit of doubt hadbeen given to the respondent in the criminal proceeding.The criminal Court has given a positive finding that theprosecution has not been able to prove that the accused hadmisappropriated the goods. His visit to the border fordischarging his duties did not tantamount to misuse of thepost or the authority. No evidence has been presented thathe did not have the authority to go to the border side onofficial duties and even the department had not forbiddenhim from going to that place. It was held that asmisappropriation of the property has not been proved, thequestion of any criminal conspiracy did not arise. Noevidence had been adduced to bring home the charge ofcriminal conspiracy, which is an independent crime."3) In The Secretary, Vallalar Gurukulam Higher Secondary SchoolV. District Educational Officer, Cuddalore (2005(4) CTC 7), aDivision Bench of this Court had held as follows:"When a misconduct is committed by an employee, theauthorities have the option to take two kinds ofproceedings against him. Firstly a criminal proceeding ifhe is alleged to have committed a criminal offence, and inaddition they can also take a departmental proceedingagainst him by issuing a departmental charge memo. Even ifthe employee is acquitted in the criminal case, he can yetbe found guilty in the departmental proceedings. This isbecause the standard of proof in the two proceedings isdifferent. In criminal proceedings, `the standard of proof'is proof beyond reasonable doubt, whereas in departmentalproceedings, standard of proof is like in a civil casei.e., balance of probabilities."4) In State of Tamil Nadu V. Jayapal.M. (2005-II-LLJ 1138), aDivision Bench of this Court had held as follows:"The only point on which turned the success or failureof this petition was whether an acquittal of the respondentin criminal case upon a set of facts same as those on whicha charge memo served on him were based would justify or notquashing of the charge memo. The High Court observed ajudgment of acquittal giving benefit of doubt to theaccused could not be equated to such judgment on technicalgrounds. https://hcservices.ecourts.gov.in/hcservices/ In this case the acquittal was not on technicalgrounds. Hence the order of the Administrative Tribunalquashing the charge memo was upheld as proper. Further, onfacts, the High Court found the charge memo had been issuedfourteen long years after the incident and four years afterthe acquittal. It observed if the respondent had to facedepartmental enquiry after the lapse of so many years,considerable prejudice would be caused to him."14. In view of the submissions made by the learned counselappearing for the appellants and the learned counsel appearing forthe respondent and on considering the relevant records availablebefore this Court, we are of the considered view that the appellantshave not shown sufficient cause or reason for this Court to allow thepresent writ appeal by setting aside the order of the learned singleJudge, dated 12.1.2009, made in W.P.No.31347 of 2007. 15. On a perusal of the judgment of the criminal Court, dated23.8.2006, made in Special Case No.4 of 2000, on the file of theChief Judicial Magistrate, Tirunelveli, we stand convinced that thesaid acquittal of the respondent by the Chief Judicial Magistrate,Tirunelveli, is not based on the benefit of doubt being given to therespondent, as it is due to lack of evidence. 16. It is well settled in law that if a person is honourablyacquitted based on the merits of the case, it cannot be put againsthim to deny the service benefits that would have accrued to him inthe usual course of the service. However, if a person had beenacquitted by a criminal Court, based on the benefit of doubt going inhis favour, the same result may not accrue. 17. In an earlier decision in W.A.No.1287 of 2008, (THE DIRECTORGENERAL OF POLICE, MYLAPORE, CHENNAI Vs. D.MAHADEVAN), the FirstBench of this Court had held that the acquittal of a person by acriminal Court, if it is based on the benefit of doubt being given inhis favour, would not entitle him to be considered for being selectedin service. However, if a person has been acquitted, based on noevidence, it would amount to an honourable acquittal and therefore,he would be entitled to be considered for such selection. 18. In such view of the matter, we do not find any infirmity inthe decision of the learned single Judge, dated 12.1.2009, made inW.P.No.31347 of 2007. In such circumstances, the present writ appealis liable to be dismissed. Hence, it is dismissed. Consequently,connected M.P.No.1 of 2009 is closed. No costs. Sd/Asst.Registrar/true copy/lanSub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ To1. The Secretary to Government of Tamil Nadu Industries Department (E1) Fort St. George, Chennai-600 009.2. The District Collector, Tirunelveli District at Tirunelveli.+ 1 c.c. to Mr. K. Premkumar, Advocate. S.R.No.52737.+ 1 c.c. to The Government Pleader. S.R.No.52571.W.A.No.1061 of 2009PUR (CO)GSK 29.10.2009.