Judgment · High Court · 2007

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 20.09.2007 CORAMTHE HONOURABLE MR.JUSTICE M.CHOCKALINGAMW.P.NO.2370 OF 2007(T)ANDM.P.NO.1 OF 2007(OA.No.1414/2001)V.Mukundhan.. Petitioner Vs.

The Superintendent, Central Prison, Trichy-620 020.

The Additional Superintendent, Central Prison, Trichy-620 020... Respondents This writ petition has been preferred under Article 226 ofthe Constitution of India praying for the issue of a writ ofcertiorari to call for the records and to quash the impugnedorder passed by the first respondent herein in his proceedingsNo.7112/Po.2/99, dated 14.11.2000 with all consequential monetaryand service benefits. For Petitioner : Mr.G.BalaFor Respondents : Mr.V.Arun, AGP- - - - ORDERChallenging an order of dismissal, originally the petitionerhas filed O.A.No.1414 of 2001 on the file of the Tamil NaduAdministrative Tribunal and on transfer to this court, it wastaken up as the writ petition. 2. The writ petition challenges an order of dismissal passedby the first respondent on 14.11.2000, pursuant to the domesticenquiry.

The court heard the learned counsel on either side. Theshort facts necessary for the disposal of the writ petition canbe stated thus: https://hcservices.ecourts.gov.in/hcservices/ The petitioner was working as Warden in Central Prison, Trichy. On 22.4.1999, an incident took place, in which thepetitioner was found in possession of 400 grams of Kanja, following which a charge memo was issued under Rule 17(b) of Conduct Rules by the Superintendent, Central Prison, Trichy. Apart from that, a criminal case came to be registered againstthe petitioner in Crime No.96 of 1999. The case was being triedbefore the criminal court and it ended in acquittal. Even beforethe criminal proceedings came to an end, an explanation wascalled for, explanation was tendered, charges were framed, enquiry was conducted and on 14.11.2000, the petitioner wasterminated from service on recording a finding that chargeslevelled against the petitioner were proved. The petitionerchallenges the same before the Tamil Nadu Administrative Tribunaland on transfer, the matter has been brought before this court byway of the writ petition.

In support of the writ petition, the learned counsel forthe petitioner has raised two points. Firstly, according to thedepartment, the occurrence has taken place on 22.4.1999 and thepetitioner was found in possession of 400 grams of Kanja, pursuant to which, a charge memo under Rule 17(b) was issued bythe respondents and a criminal case also came to be registered in Crime No.96/99. Even before the proceedings in the criminalcourt are over, the department has proceeded in a haste andhurried manner, called for explanation, conducted enquiry, whichwas not in strict terms and has recorded a finding that chargeswere proved and has also passed the dismissal order on14.11.2000. But, the criminal proceedings came to an end only on17.3.2005. It has been held by the Supreme Court that whilecriminal proceedings are pending on the same facts andallegations, the departmental enquiry must be stayed or kept inabeyance till the criminal proceedings are over, but in theinstant case, the department hastily passed an order of dismissalof the petitioner from service, which was bad. Secondly, in theinstant case, the criminal court has acquitted him on two groundsthat the investigating officer was not examined and apart fromthat what was allegedly found to be in possession of thepetitioner and recovered from him was not proved by thedepartment that it was Kanja. The facts and circumstances fatallyaffects the entire findings recorded by the domestic enquiryofficer and hence, the order of dismissal from service has got tobe set aside.

The court heard the learned counsel for the respondentsalso.

The court has paid its anxious consideration on thesubmissions made. In the instant case, following the incidentthat took place on 22.4.1999, charge memo was issued, allegingthat the petitioner was found in possession of 400 grams of Kanga. It is not in controversy that he tendered explanation andactually, enquiry was conducted by a competent officer and he was https://hcservices.ecourts.gov.in/hcservices/ found guilty as per the charge and punishment of termination ofservice was awarded on him. The petitioner has challenged thesaid order of termination of service mainly on the ground thatwhen the domestic enquiry was pending, a parallel proceedingswere pending before the criminal court and the petitioner hassought that the proceedings on the domestic enquiry has got tobe stayed, but it was not done and hence, it would vitiate theproceedings of domestic enquiry. Secondly, when the matter waspending, the criminal court has acquitted the petitioner on theground that the investigating officer was not examined and alsothe property in possession of the petitioner was not proved as Kanja and hence, it has recorded a finding that the chargeslevelled was not proved and under these circumstances, on thosegrounds, the order of termination of service of the petitionerhas got to be set aside.

After looking into the available materials, the court isof the considered opinion that the writ petition requires anorder of dismissal. Firstly, the petitioner herein was a Wardenattached to Central Prison, Trichy. On the date of the incident, namely on 22.4.1999, he was found in possession of 400 grams of Kanja, according to the charges made. In order to substantiatethe charges, at the time of domestic enquiry, three witnesseshave been examined and the witnesses have also been crossexamined and they have spoken as to the possession of Kanja bythe petitioner. So far as the domestic enquiry was concerned, proper opportunity was given. It is not a case where opportunitywas denied to the petitioner. Now, the main contention is thatat the time when the proceedings were pending before the domesticenquiry, a parallel criminal proceedings were also pending. Under these circumstances, it would vitiate the domestic enquiry, since it was not kept in abeyance.