M. KandanS/o Muthumalai Pillai v. The Principal District Judge,Madurai & Ors.

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 23.07.2009CORAMTHE HONOURABLE MR. JUSTICE P.K. MISRAANDTHE HONOURABE MR. JUSTICE R. SUBBIAHWRIT PETITION No.31943 of 2004M. KandanS/o Muthumalai Pillai.. PetitionerVs1. The Principal District Judge,Madurai.2.The Registrar General,High Court, Madras... RespondentsPetition filed under Article 226 of the Constitution for theissuance of Writ of Certiorarified Mandamus calling for the recordsrelating to the orders of the 1st respondent, dated 31.8.99 issued inthe D.E.No.3/93 and the order dated 26.11.99 issued in the Ref.No.Niland the order of the II Respondent, dated 20.9.2002, issued in theRef No.R.O.C.No.5896/2001/01 and quash the same and further directthe respondents to settle all the retirement benefits treating theperiod from4.2.94 to 30.6.99 as duty period and to award theconsequential benefits.For Petitioner: Mr.V. Prakash Senior Counsel for Mr.S. MuthukrishanFor Respondent-1: Mr.K. Balasubramaniam,Special Govt.PleaderJ U D G M E N TP.K. MISRA, JThe brief facts of the case are as follows :-The petitioner was initially appointed as an Examiner in theOffice of the District Munsif, Melur, and in course of time he waspromoted to the post of Head Clerk and subsequently posted as CopyistSuperintendent in the District Court, Madurai, in October, 1992. A https://hcservices.ecourts.gov.in/hcservices/ charge-memo was issued against him in June, 1993, alleging that hehad demanded and received bribe on several occasions. In the charge-memo five such instances have been indicated. Even though enquirywas conducted by the Principal District Judge himself, who was thedisciplinary authority, the order of punishment of compulsoryretirement was passed by the Chief Judicial Magistrate as the filerelating to the disciplinary proceedings were placed before him. Thesaid order of punishment was challenged by the petitioner by filingW.P.No.5429 of 1994, which was allowed by order dated 17.3.1993,quashing the order of compulsory retirement on the sole ground thatthe Chief Judicial Magistrate was not the appropriate authority toimpose such punishment. While allowing the writ petition, the HighCourt remitted back the matter to the Principal District Judge forfresh disposal. After such direction was issued by the High Court,the petitioner, who was compulsorily retired with effect from3.2.1994, was reinstated in service by order dated 30.6.1999 andresumed duty thereafter. Subsequently, the Principal District Judge,Madurai, by order dated 31.8.1999, passed the order of compulsoryretirement. Subsequently, by order dated 26.11.1999, the interregnumperiod between 4.2.1994 and 30.6.1999 was treated as leave. Thepetitioner had filed W.P.No.8127 of 2001 against the order ofpunishment. The said writ petition was permitted to be withdrawnwith liberty to the petitioner to file an appeal in theAdministrative Side, namely, the High Court. Thereafter, the appealdated 20.8.2001, filed by the petitioner, was rejected by order dated20.9.2002. Thereafter, the present writ petition has been filedchallenging the order of compulsory retirement dated 31.8.1999 andthe subsequent order dated 26.11.1999, treating the period from4.2.1994 to 30.6.1999 as leave.2. Learned counsel for the petitioner has contended asfollows :-(1) The first order dated 3.2.1994, passed by the Chief JudicialMagistrate compulsorily retiring the petitioner has been quashed bythe High Court in the earlier round of litigation and the matter hasbeen remitted to the Principal District Judge for fresh considerationand, therefore, the Principal District Judge should have afforded anopportunity of personal hearing to the petitioner or at least shouldhave called upon the petitioner to make his submission in the form ofwritten representation relating to various charges. In thisconnection, learned Senior Counsel has placed reliance upon thedecision of the Supreme Court reported in 2008(6) Supreme 87 (STATEBANK OF INDIA & OTHERS v. RANJIT KUMAR CHAKRABORTY & ANOTHER).(2) In the enquiry report prepared initially by the the thenPrincipal District Judge, the allegations contained in Charge Nos.1,2 and 4 had not been proved, whereas on the basis of the similarmaterials he has held that Charge Nos.3 and 5 had been proved. Inthe above background it is submitted that the reasons for which the https://hcservices.ecourts.gov.in/hcservices/ Principal District Judge had discarded the allegations contained inCharge Nos.1, 2 and 4, similar allegations contained in Charge Nos.3and 5 should have been discarded. It is further submitted that sincethe Association of the Advocates' clerk was very much prejudicedagainst the petitioner, the allegations had been made with a view tovictimize the petitioner and, therefore, the conclusion ofdelinquency on the part of the petitioner in respect of Charge Nos.3and 5 should be quashed as no reasonable man could have come to sucha conclusion.(3) Third contention of the learned Senior Counsel is to theeffect that the order of compulsory retirement passed by the ChiefJudicial Magistrate, who not being the disciplinary authority, had nojurisdiction to impose punishment. Therefore, when such order wasset aside, it must be deemed that the petitioner was continuing inservice all along and, therefore, the disciplinary authoritycommitted an illegality in passing the subsequent order dated26.11.1999, treating the period from 4.2.1994 to 30.6.1999 when theorder of specific order of reinstatement was issued as leaveadmissible. According to the learned Senior Counsel for thepetitioner, the entire period should be treated as on duty and heshould be paid entire backwages for the said period.(4) Even assuming that delinquency had been proved, in view ofthe fact that previous record of the petitioner was free from allblemish, the order of punishment of compulsory retirement passed fortransgression on two instances, which came to be passed just onemonth before the normal date of superannuation of the petitioner,should be quashed as being grossly disproportionate.3. Learned counsel appearing for Respondent No.1, on theother hand, has refuted the contentions raised by the petitioner andsubmitted that keeping in view the background of the case and thenature of allegations as proved in the departmental proceedings, thepunishment of compulsory retirement should not be interfered with.4. The first and foremost contention of the learned SeniorCounsel for the petitioner relates to the question of naturaljustice. Learned Senior Counsel has contended that the earlierorder, dated 3.2.1994, passed by the Chief Judicial Magistrate havingbeen quashed by the High Court and since the matter was remitted tothe disciplinary authority for fresh consideration, the disciplinaryauthority should have afforded an opportunity of hearing to thepetitioner. In support of such contention, learned Senior Counselhas placed reliance upon the decision of the Supreme Court reportedin 2008(6) Supreme 87 (cited supra).5. In the present case, the Principal District Judgehimself was the disciplinary authority and the enquiry had beenconducted by the Principal District Judge. The Principal District https://hcservices.ecourts.gov.in/hcservices/ Judge had found the petitioner guilty in respect of two chargesrelating to demand and acceptance of bribe for issuance of certifiedcopy of various orders of the Court. At that stage, however, thedisciplinary authority instead of dealing with the proceedingshimself, had placed the concerned records before the Chief JudicialMagistrate to pass appropriate orders. The order of compulsoryretirement passed by the Chief Judicial Magistrate was foundvulnerable by the High Court on account of the fact that the ChiefJudicial Magistrate was not the disciplinary authority competent toimpose punishment and, therefore, such order was non-est in law.Thereafter the matter was remitted to the Principal District Judge,who himself is the disciplinary authority. 6. It is of course true that enquiry was earlier conductedby the the then Principal District Judge and ultimately the mattercame to be decided by another Principal District Judge. The questionis whether the Principal District Judge was required to give anyfurther opportunity of hearing. In this context one has to rememberthat "opportunity of personal hearing" has many shades of meaning.At the maximum level such opportunity of hearing may include theopportunity of making oral submission either by the person concernedor through his Advocate. Under certain circumstances, opportunity ofhearing would only include opportunity of making submission by awritten representation. It is not the case of the petitioner that asper the rules relating to disciplinary proceedings applicable toJudicial Ministerial Service, a full-fledged enquiry akin to a trialin Civil Court is contemplated. In other words, even though thebasic requirement of giving opportunity of cross-examination andadducing evidence is available, it cannot be said that there is anyrequirement of giving opportunity of hearing or making oralsubmission, though there is no embargo for giving such expandedopportunity of even making oral submission. 7. In the present case, a perusal of the final order passedby the Principal District Judge after the matter was remitted by theHigh Court indicates that the entire enquiry proceedings includingthe report of the enquiry officer dated 22.11.1993, furtherrepresentation of the petitioner dated 12.12.1993, proceedings of theChief Judicial Magistrate, the order of the High Court dated17.3.1999 remitting the matter and the subsequent representation ofthe petitioner dated 16.8.1999, had been placed before the PrincipalDistrict Judge for consideration. Even though the Principal DistrictJudge could have considered all the five allegations afresh, itappears that he confined his attention only to Charge Nos.3 and 5,which had been held to be proved against the petitioner on earlieroccasion. 8. The Principal District Judge, who is the disciplinaryauthority, thereafter re-affirmed the adverse findings contained inthe report of the disciplinary authority-cum-enquiry officer. The https://hcservices.ecourts.gov.in/hcservices/ disciplinary authority has also referred to the furtherrepresentation made by the delinquent and it is apparent that thedisciplinary authority has accepted the conclusion of the enquiryofficer. It is not the case of the petitioner that, on earlieroccasion, copy of the enquiry report had not been furnished nor hiscase was that opportunity of hearing had not been given at thatstage. Under these circumstances, we do not think the contention ofthe petitioner that opportunity of hearing had not been afforded tohim can be accepted.9. Learned Senior Counsel has placed reliance upon thedecision of the Supreme Court reported in 2008(6) Supreme 87 (supra).In the said decision, the disciplinary authority, who had held theenquiry, had come to a conclusion regarding guilt of the delinquencyof the person, but according to such disciplinary authority majorpunishment was required to be imposed, which was not within hisjurisdiction and, therefore, he placed the records before theappointing authority for imposition of major penalty. The appointingauthority, before whom the matter was placed, had not givenopportunity of hearing to the petitioner. This was found to bevulnerable by the High Court and ultimately the Supreme Courtconfirmed such decision of the High Court by observing as follows :-"5. In this case the respondent was punished with amajor penalty was not heard. Therefore, the order ofremoval was set aside. We have been taken through the Rule68(3)(iii) and we are in full agreement with the view takenby the High Court. When the Disciplinary Authority is notcompetent to pass a major penalty, that is, of the removalor other major penalty prescribed in the Rule, the papersare require to be placed by the Disciplinary Authority tothe Appointing Authority who is competent to pass a majorpenalty. In the present case Disciplinary Authority was notcompetent to pass major penalty, therefore, matter wasplaced before the Appointing Authority & AppointingAuthority passed major penalty of dismissal without hearingdelinquent. Such order which is on the face of it isagainst the principles of natural justice, cannot becountenanced as it is void ab initio. The proviso certainlysays that the Appointing Authority, on the recommendationgiven by the Disciplinary Authority, shall be competent topass the major penalty. Simply by recommending the matterand sending the papers to the Appointing Authority, does notmean that the incumbent who is going to be served with themajor penalty is not required to be heard in the matter. Itis now well settled principle that where ever the Rule issilent the principles of natural justice shall be read init. A hearing should be given to a person who is beingpunished with a major penalty. Therefore, the principle ofnatural justice has to be read in this Rule. A notice ought https://hcservices.ecourts.gov.in/hcservices/ to have been issued to the delinquent by the Authority towhom papers were sent to show cause why the major penaltymay not be imposed on him. It is true that the competentauthority could pass the order of major penalty but notwithout hearing the incumbent. Therefore, in this contextof the matter, we are of the opinion that the view taken bythe Division Bench of the Calcutta High Court is correct andthere is no ground for interference in this appeal."10. We do not think the ratio of the aforesaid decision canbe made applicable to the present case. The records reveal that onearlier occasion when the disciplinary authority himself hadenquired, the petitioner had been given adequate opportunity ascontemplated under the Rules and after report had been prepared bythe disciplinary authority, findings were placed before the ChiefJudicial Magistrate for imposing punishment. Copy of the report hadbeen given to the petitioner, who had made his representation on thefindings. Since the High Court found that Chief Judicial Magistratehad no jurisdiction in the matter, the matter was remitted to thePrincipal District Judge. It is thus apparent that whateverrepresentation the petitioner had to make relating to the enquiryreport had already been made by the petitioner in the shape ofrepresentation and all such matters were placed before the PrincipalDistrict Judge after the case was remitted to him by the High Court.Under these circumstances, we do not think that there has been anyviolation of principles of natural justice. The ratio of the SupremeCourt decision is not applicable to the facts of the present case.11. Next contention of the petitioner relates toacceptability of the findings rendered by the disciplinary authority-cum-enquiry officer in the first instance, which had been reacceptedby the disciplinary authority after the matter was remitted. Thebasic contention is that no reasonable man could have come to such aconclusion. For making such a submission, learned Senior Counsel hassubmitted that in respect of similar charges as contained in ChargeNos.1, 2 and 4, the Principal District Judge has discarded theallegation and the very same logic was applicable to Charge Nos.3 and5. Since other charges had been held to be not proved on the basisthat witness was an interested person as the Advocates' ClerkAssociation was against the petitioner, the very same logic shouldhave been made applicable.12. We regret our inability to accept such submission madeby the learned Senior Counsel. Law is well settled that the HighCourt, while dealing with disciplinary proceedings in writjurisdiction under Article 226 of the Constitution, cannot sit as anappellate authority. In the present case, the disciplinary authorityhad given adequate reasons to come to the conclusion that theallegation of acceptance of bribe as contained in Charges Nos.3 and 5had been established, while making reference to evidence on record. https://hcservices.ecourts.gov.in/hcservices/ It is not the case of the petitioner that the conclusion is based onno evidence. The contention is that such evidence should not beaccepted because of the prejudice on the part of the witness orprejudice on the part of the Advocates' Association. In a certiorariproceedings, we are not expected to go beyond such finding unlesssuch finding is perverse or based on no evidence. Moreover, the HighCourt on its administrative side in appeal has confirmed theconclusion of the disciplinary authority. It also cannot be saidthat the conclusion of the High Court is based on no evidence. Underthese circumstances, we are unable to accept the submission made bythe counsel for the petitioner.13. Third submission made by the learned Senior Counsel tothe effect that since the petitioner was on verge of normalretirement, the order of compulsory retirement was uncalled for andgrossly excessive. The disciplinary authority has found that the twoallegations which had been accepted by the disciplinary authorityrelated to the question of acceptance of bribe. The petitioner wasworking in the Judicial Department. Keeping in view the backgroundof the case and the fact that the petitioner was working in aresponsible department, which is mainly expected to safeguard theinterest of the litigant public, it cannot be said that the order ofcompulsory retirement was disproportionately excessive. Suchcontention is also not acceptable. 14. Last contention raised by the petitioner, however,stands on a stronger footing. The petitioner was compulsorilyretired by the order passed by the Chief Judicial Magistrate, who hadin fact no jurisdiction to deal with the matter. The High Court hasfound that such order of the Chief Judicial Magistrate was invalidand, therefore, the matter was remitted to the appropriatedisciplinary authority, namely, the Principal District Judge. Itmust be taken that the order of compulsory retirement was non-est inlaw and, therefore, the petitioner must be deemed to have been inservice from the date on which such void order was passed till thesubsequent valid order was passed by the Principal District Judge. 15. The Principal District Judge after passing theimpugned order of punishment, subsequently passed an order treatingthe period from 4.2.1994, when the first order of compulsoryretirement was made effective, till 30.6.1999, when the order ofreinstatement was passed, as on leave.We do not think this subsequent order passed by the PrincipalDistrict Judge can be upheld as, in our opinion, the petitioner musthave been deemed to be in service all along as a void and non-estorder had been passed by the Chief Judicial Magistrate on earlieroccasion. Therefore, the entire period between 4.2.1994 and30.6.1999 shall be treated as period on duty and it can be onlyobserved that the petitioner was compulsorily retired only with https://hcservices.ecourts.gov.in/hcservices/ effect from the subsequent order dated 30.6.1999.16. Next question is regarding payment of salary for theaforesaid period. If the petitioner would not have been directed tobe compulsorily retired by a non-est order, he would have normallycontinued in service and would have received his dues. On the otherhand, the fact remains that he had not worked for the said period.If the petitioner would have been suspended, he would have received50% of the wages as subsistence allowance. However, in such an eventthe disciplinary authority, who had the jurisdiction, would havetreated the period of suspension in any manner as contemplated as inlaw. Even the disciplinary authority possibly could have treatedthat such period of suspension shall not be counted as part of dutywhich would have ultimately affected the amount of pension to bereceived by the petitioner.17. Having regard to various factors, we feel interest ofjustice would be served by observing that though the entire periodshall be treated as on duty, the petitioner would not be entitled toentire backwages, but he would be paid 25% of the backwages for thesaid period.18. In the result, the writ petition is allowed in part.While upholding the order of compulsory retirement, we modify theorder passed by the disciplinary authority as well as the appellateauthority and hold that the entire period shall be treated as onduty, but the petitioner shall be paid only 25% of the backwagespayable for the period from 4.2.1994 to 30.6.1999. No costs. Sd/- Asst.Registrar/True Copy/ Sub.Asst.RegistrardpkTo1. The Principal District Judge,Madurai.2.The Registrar General,High Court, Madras.+ 2 cc to Mr.S.Muthukrishnan,Advocate,SR.33709+ 1 cc to Government Pleader,SR.33962 WP.31943/2004RSM(CO)EM/31.7.09