High Court · 2007

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 26.7.2007CORAMTHE HON'BLE MR.JUSTICE N.PAUL VASANTHAKUMARW.P.No.15384 of 2006(O.A.No.1817 of 1995)V.K. Kuppuraj...Petitioner/ApplicantVs1.The Secretary,Education Department,Fort St.George,Chennai - 600 009.2.The Director of Collegiate Education,College Road,Madras - 600 006.(Presently redesignated asCommissioner of Collegiate Education,College Road,Madras - 6)...Respondents/RespondentsThis writ petition came to be numbered under Article 226 ofConstitution of India, by way of transfer of O.A.No.1817 of 1995 from thefile of the Tamil Nadu Administrative Tribunal with a prayer to call forthe records relating to the order of the second respondent made inNa.Ka.No.025634.A1.86, dated 22.1.1994 and quash the same.For Petitioner : Mr.L.ChandrakumarFor Respondents :Mr.V. Manoharan,Government AdvocateO R D E RIn this writ petition, petitioner seeks to quash the order of thesecond respondent dated 22.1.1994 imposing punishment of reduction in rank. https://hcservices.ecourts.gov.in/hcservices/

2.The brief facts necessary for disposal of the writ petition arethat the petitioner was appointed as Peon-cum-Driver in the EducationDepartment on 11.7.1972 and he was posted as Driver-cum-Mechanic fromSeptember, 1982. When the petitioner was working as Driver to the secondrespondent herein, a charge memo was issued and he was placed undersuspension on 18.3.1986. A criminal case was also registered against thepetitioner under section 448 IPC read with Section 4(1)(j) of the TamilNadu Prohibition Act, in Cr.No.261 of 1986. The 8th MetropolitanMagistrate, Egmore, imposed a fine of Rs.500/- on the petitioner by orderdated 17.3.1986 and he was released from the jail. Thereafter a chargememo was issued by the second respondent on 24.6.1986 containing sixcharges. Petitioner filed criminal appeal No.72 of 1986 before the 7thAdditional Sessions Court, which was dismissed and thereafter he filedCrl.R.C.No.22 of 1988 before this Court and the said revision case wasallowed on 13.2.1992. According to the petitioner, High Court ordered toreinstate the petitioner and the petitioner having not been reinstated, hefiled O.A.No.2775 of 1992 before the Tamil Nadu Administrative Tribunaland the Tribunal on 16.6.1992 granted stay of suspension order dated18.3.1986, which was also subsequently made absolute. The Tribunalultimately granted liberty to the department to conduct enquiry and thepetitioner was reinstated as driver in the second respondent office on14.9.1992. Since the charges framed by the department were pending,petitioner was again placed under suspension by order dated 14.9.1992 andafter enquiry the charges were held proved and thereafter petitioner wasreverted from the post of driver and posted as Office Assistant. Thesuspension was also revoked and he was reinstated as Office Assistant.The said order of punishment is challenged in this writ petition.3.Petitioner even though filed an appeal before the firstrespondent on 17.3.1994 and no order having been passed, the originalorder of reversion was challenged without awaiting for the orders to bepassed by the appellate authority.4.The second respondent has filed counter affidavit wherein it isstated that as action was initiated against the petitioner on the basis ofthe report of the Principal, Queen Marry's College, Chennai, and theInspector of Police, D-5 Marina Police Station arrested the petitioner andkept him in jail for more than 48 hours, he was suspended under Rule 17(e)of the Tamil Nadu Civil Services (Classification, Control and Appeal)Rules, and 17(b) charges were framed under the Tamil Nadu Civil Services(Classification, Control and Appeal) Rules. The watchman attached to theQueen Marry's College, Chennai, was examined by the Enquiry Officer andall the procedures were rightly followed by the Enquiry Officer andcharges having been proved, the order imposing punishment was passed andthat there is no illegality in the said order. https://hcservices.ecourts.gov.in/hcservices/

5.The learned counsel appearing for the petitioner submitted thatthe criminal Court having acquitted the petitioner as per the order passedin Crl.R.C.No.22 of 1988 on 13.2.1992, the respondents ought not to haveconducted enquiry on the very same set of charges and imposed punishmentof reduction to the lower post. The learned counsel further submittedthat even assuming that the procedure followed by the respondents arepermissible, the impugned order of punishment is contrary to FundamentalRule 29 applicable to the Tamil Nadu Government Servants and submittedthat as per the said rule, the order of reversion can be passed only for aspecified period and not for ever. The impugned order having been passedin violation of the statutory rule viz., F.R.29, the same is to be setaside. The learned counsel further submitted that the petitioner was keptunder suspension for about eight years and he is left with less than twoyears of remaining service and hence, to shorten the litigation, thisCourt can prescribe the period of reduction in rank so that the petitionerwill get monetary benefit as he suffered the punishment for about 13 yearsand he can work in the higher post for some time.6.The learned Government Advocate appearing for the respondentssubmitted that the charges levelled against the petitioner being seriousand the petitioner was proceeded by following the principles of naturaljustice and also by following the procedures contemplated under Rule 17(b)of the Tamil Nadu Civil Services (Classification, Control and Appeal)Rules, and the behaviour of the petitioner being unbecoming of theGovernment servant, the reversion order was passed and the same need notbe interfered with.7.I have considered the rival submissions made by the learnedcounsel appearing for the petitioner as well as the learned GovernmentAdvocate appearing for the respondents.8.The main charge against the petitioner is that he trespassedinto the Queen Mary's College and he was found in intoxicated mood on16.3.1986. For the said main charge, a criminal case was registered undersection 488 IPC and Section 4(1)(j) of the Tamil Nadu Prohibition Act, andhe was finally acquitted by this Court.9.Insofar as the submission made by the learned counsel appearingfor the petitioner that the petitioner having been acquitted from thecriminal case, no departmental proceeding should have been continuedthereafter, cannot be sustained as proof required in a criminal case andthat of in the departmental enquiry are different. Further, there is nobar to proceed against the Government Servant departmentally even if he isacquitted in the criminal case for the same set of charges. https://hcservices.ecourts.gov.in/hcservices/

10.The said issue was considered by me in the decision reported in(2006) 2 MLJ 34 (M.K.Dange v. Chairman-cum-Managing Director, Oil andNatural Gas Corporation, New Delhi and others) wherein I have held asfollows:"10.Issue No.1: It is not in dispute that evenafter the acquittal by the Criminal Court, thedepartment has the right to continue with thedisciplinary proceedings as held by the HonourableSupreme Court in the decision reported in AIR 2003 SC1571 (C.M.D., United Commercial bank, v. P.C.Kakkar),wherein in paragraph 15 it is held as follows,"... Acquittal in the criminal case is notdeterminative of the commission of misconduct orotherwise, and it is open to the authorities toproceed with the disciplinary proceedings,notwithstanding acquittal in criminal case. Itper se would not entitle the employee to claimimmunity from the proceedings. At the most thefactum of acquittal may be a circumstance to beconsidered while awarding punishment. It woulddepend upon facts of each case and even thatcannot have universal application."11.The Honourable Supreme Court in a very recentdecision reported in JT 2006 (1) SC 444 = (2006) 1M.L.J. 166 (S.C.) (Chairman-cum-M.D., T.N.C.S.Corpn.Ltd. & Ors. v. K.Meerabai) considered a similar issueas to whether departmental proceeding can be initiatedor continued after the acquittal in the criminal casefor the criminal charges. In paragraph 25, theHonourable Supreme Court held thus,"The scope of disciplinary proceedings andthe scope of criminal proceedings in a court ofcriminal law are quite distinct, exclusive andindependent of each other. The prosecutionproceedings launched against the respondent hereinwere in respect of offences punishable underSections 409 and 477A IPC, whereas thedepartmental proceedings as initiated against herwere in respect of the charges of misappropriationand other fraudulent practices such as deliberateomission to bring into accounts the stock receivedshowing bogus issues in the records, falsificationof accounts, submission of defective accounts,tampering of records, manipulation of accounts andrecords etc. Thus, the respondent herein wasproceeded against for quite different charges andon different sets of facts before the court of https://hcservices.ecourts.gov.in/hcservices/ Chief Judicial Magistrate, on the one hand, andbefore the departmental enquiry on the other."In the said judgment it is further held that the HighCourt was wrong in setting aside the order of dismissalon the ground that the criminal Court acquitted thedelinquent and in paragraph 24 held thus,"The order of dismissal passed by thedisciplinary authority was based on dispassionateand independent examination and appreciation ofthe entirety of facts and evidence on recordrelating to the malpractices and mis-appropriationindulged in by the respondent in collusion withthe other members of the staff causing therebyhuge loss to the Corporation."In view of the above said decisions, it cannot bedisputed that the respondents/Management are entitledto proceed with the departmental proceeding, in spiteof the acquittal in the criminal case, moreparticularly, when the criminal Court acquitted thepetitioner by giving benefit of doubt. At thisjuncture I feel it relevant to extract the findings ofthe criminal Court in paragraph 58 of its judgment,which reads as follows,"... as rightly contended by the accused,the benefit of doubt emanating from the sameshould be extended in favour of the accused andaccordingly the benefit of doubt emerging from thecase is extended in favour of the accused. I holdtherefore, that the prosecution has failed toestablish the case against the accused beyondreasonable doubt and accordingly acquit theaccused."A reading of the above judgment makes it clear that thepetitioner was not acquitted on merits and only on thebasis of giving benefit of doubt."Further, there are other charges also as could be seen from the impugnedorder. Hence, the respondents are justified in proceeding with theenquiry and the charges having been proved, the second respondent is alsojustified in punishing the petitioner.11.However, as rightly contended by the learned counsel for thepetitioner as per F.R.29, the order of reversion or reduction of anofficer should be only for a specified period and it should also statethat the said reversion/reduction in rank shall be effective from whichdate. For proper appreciation, FR29(2) is extracted hereunder:"FR.29(2)Every order passed by a competentauthority imposing on a Government Servant the penaltyof reduction to a lower service, grade or post or to alower stage in his time-scale should indicate; https://hcservices.ecourts.gov.in/hcservices/ (i)The date from which it will take effect and theperiod (in terms of years and months) for which thepenalty shall be operative. It should be noted that areduction to a lower service, grade or post or to alower stage in his time-scale is also not permissibleunder the rules either for an unspecified period or asa permanent measure. It should only be for a specifiedperiod."In the case on hand, the penalty period viz., reversion of thepetitioner's service from the post of driver to Office Assistant is notmentioned. Hence there is statutory violation while passing the impugnedorder of reversion against the petitioner.12.This court in the decision reported in (2006) 4 MLJ 1335(S.V.Mahalingam v. Collector, Pasumpon Muthuramalinga Thevar District)considered similar issue and held that not following FR.29(2) by theDisciplinary Authority while passing the order of reversion, cannot besustained.13.In the decision of the Honourable Supreme Court reported in(1991) 1 SCC 544 (A.K.Bhatnagar v. Union of India) it is held that when astatutory rule is framed under Article 309 of the Constitution of India,the same should be strictly followed. In paragraph 13 the HonourableSupreme Court held thus,"13.On more than one occasion this Court hasindicated to the Union and the State Governments thatonce they frame rules, their action in respect ofmatters covered by rules should be regulated by therules. The rules framed in exercise of powersconferred under the proviso to Article 309 of theConstitution are solemn rules having binding effect.Acting in a manner contrary to the rules does createproblem and dislocation. Very often governmentthemselves get trapped on account of their own mistakesor actions in excess of what is provided in the rules.We take serious view of these lapses and hope and trustthat the government both at the Centre and in theStates would take note of this position and refrainfrom acting in a manner not contemplated by their ownrules. there shall be no order as to costs." The same view was taken by the Honourable Supreme Court in the subsequentdecision reported in (1999) 3 SCC 422 (Babu Verghese v. Bar Council ofKerala), wherein in paragraph 31 it is held thus,"31.It is the basic principle of law long settledthat if the manner of doing a particular act isprescribed under any statute, the act must be done inthat manner or not at all. The origin of this rule istraceable to the decision in Taylor v. Taylor ((1875) 1Ch D 426) which was followed by Lord Roche in Nazir https://hcservices.ecourts.gov.in/hcservices/ Ahmad v. King Emperor (AIR 1936 PC 253), who stated asunder:"(W)here a power is given to do a certainthing in a certain way, the thing must be done inthat way or not at all." 14.In this case, the petitioner is now aged 56 years and he ishaving about two more years of service. The petitioner was suspended from18.3.1986 to 22.1.1994 and he is serving in the reverted post from 1994onwards. Hence to shorten the litigation and in view of the fact thatthe first respondent is not empowered to pass reduction in rankindefinitely as per FR.29(2), I am of the view that the reduction in rankcan be restricted for a period of three years from 22.1.1994 and thepetitioner shall be restored as driver with monetary and other servicebenefits from 21.1.1997. It is made clear that this Court is inclined topass this order only due to the failure on the part of the respondent innot following the statutory provision contained in FR.29(2) as extractedabove. The difference in pay from 22.1.1997 shall be calculated and paidto the petitioner within six weeks from the date of the receipt of copy ofthis order.The writ petition is partly allowed with the above direction. Nocosts.Sd/Asst.Registrar/true copy/Sub Asst.RegistrarvrTo1.The Secretary,Education Department,Fort St.George, Chennai - 600 009.2.The Director of Collegiate Education,College Road, Madras - 600 006.(Presently redesignated asThe Commissioner of Collegiate Education,College Road, Madras - 6)1 cc To The Government Pleader, SR.46747.W.P.No.15384 of 2006 NSM(CO)RVL 01.08.2007