The State of Tamil Nadu vs T. Ganapathay, Formerly Deputy Tahsildar

M. Jaichandren, J.—This writ appeal has been preferred by the appellants against the order of the learned single Judge, dated 12.1.2009,

made in W.P. No. 31347 of 2007.

The respondent herein had filed the writ petition in W.P. No. 31347 of 2007 praying for a writ of Certiorarified Mandamus to call for the

records relating to the Letter No. 25082/E1/2007-20, dated 30.8.2007, issued by the first respondent and quash the same and to direct the

second respondent to pay his pensionary benefits from the date of his superannuation, including the periods when he was under suspension.

The respondent herein, who is the petitioner in the writ petition, had stated that he had served for nearly 38 years in the Revenue Department.

He rose to the post of Deputy Tahsildar. He ought to have retired, on 30.6.2005, on attaining the age of superannuation. However, he was placed

under suspension, with effect from 29.6.2005, by the proceedings of the District Revenue Officer and Collector in-charge, Tirunelveli, dated

28.6.2005, made in proceedings No. A6/45603/05. In the said proceedings, it had been stated that it was necessary, in public interest, to place

him under suspension from service, from 29.6.2005, until further orders, since a criminal case registered against him in C.R. No. 2 of 1997, under

Sections 7 and 13(2) read with 13(1) of the Prevention of Corruption Act, 1988, was still pending. Therefore, he was placed under suspension,

invoking Rule 17(e) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules, 1955. It had also been stated that he would be paid the

subsistence allowance and dearness allowance admissible under Fundamental Rule 53(1).

The respondent herein had stated in the affidavit filed in support of the writ petition that he had been deputed to work as Deputy Tahsildar in the

office of the Assistant Director of Geology and Mining, Tirunelveli, for a short span from 28.8.1996 to 21.3.1997. During the relevant period, the

second respondent in the writ petition, namely, the District Collector, Tirunelveli District, had instructed the subordinate officers to collect the Flag

Day Collection to achieve the target. The Review Meetings had been held in every month to achieve the target. While so, one V.R. Elango, had

paid a sum of Rs. 200/- towards the Flag Day Collection, on 20.3.1997. The Vigilance and Anti-Corruption Officials had arranged for a trap and

had recovered the amount from the respondent herein, even before he had issued a receipt for the said amount. Thereafter, a case has been

registered against the respondent in Special Case No. 4 of 2000, on the file of the Chief Judicial Magistrate, Tirunelveli. The respondent had been

acquitted based on the evidence of P.W.1, the complainant, who had stated that the amount had been paid only towards the Flag Day Collection

and not for any other purpose. The said version of P.W.1 had been supported by the statements made by the other official witnesses.

The respondent had further stated that even though he had reached the age of superannuation, on 30.6.2005, he had been kept under

suspension, by the proceedings of the second respondent, dated 29.6.2005. The suspension had not been revoked, till date. The respondent was

being paid only the provisional pension. However, the pensionary benefits due to him had not been settled.

The respondent had further submitted that consequent to the acquittal of the respondent by the Chief Judicial Magistrate, Tirunelveli, in Special

Case No. 4 of 2000, the order passed by the second respondent under Fundamental Rule 56(i)(c) cannot have any effect and there would be no

possibility of any action being taken against the respondent under the provisions of Tamil Nadu Civil Services (Classifications Control and Appeal)

Rules. The said Rules would apply only for a Government employee, while he is in service. It cannot be applied to a person, who had attained the

age of superannuation. Under such circumstances, the respondent had filed the original application before the Tamil Nadu State Administrative

Tribual, Chennai, in O.A. No. 3898 of 1999.

The Tribunal by its order, dated 20.7.1999, had set aside the order of suspension stating that it was unjustified. However, it was made clear that

as and when the criminal proceedings ended in conviction against the respondent, the appellants herein were at liberty to pass suitable orders.

Thereafter, the second respondent had issued a charge memo, dated 30.8.2007, vide Letter No. 25082/E1/2007-20, dated 30.8.2007.

However, the subject matter covered in the charge memo is based on the same set of facts, the same documents marked as exhibits and the

witnesses, who had already adduced evidence before the concerned criminal Court. While the criminal proceedings had ended in a clear acquittal

of the respondent and as it had become final, the authority concerned cannot initiate disciplinary proceedings against the respondent, afresh that too

after an inordinate delay and unexplained delay.

The learned single Judge, by its order, dated 12.1.2009, made in W.P. No. 31347 of 2007, had allowed the writ petition filed by the

respondent herein by quashing the impugned proceedings of the first respondent, dated 30.8.2007. The learned single Judge had also observed

that the respondent was at liberty to approach the appellants, who are the respondents in the writ petition, for permission to retire and for the

payment of the terminal benefits.

Aggrieved by the said order of the learned single Judge, dated 12.1.2009, the respondents in the writ petition had filed the present writ appeal

before this Court.

The learned Counsel appearing for the appellants had stated that the order of the learned single Judge, dated 12.1.2009, made in W.P. No.

31347 of 2007, is against law, weight of evidence and probabilities of the case. It is a well settled proposition of law that the nature of evidence

required in a criminal case is entirely different from the nature of evidence required in the departmental proceedings. Further, it is also well settled

that the departmental proceedings are different from the criminal proceedings before a criminal Court. Therefore, it cannot be held that since the

respondent had been acquitted by a criminal Court, he cannot be proceeded by way of the disciplinary proceedings initiated by the appellants.

The learned Counsel appearing for the appellants had also submitted that while deciding the issues arising for decision in a writ petition under

Article 226 of the Constitution of India, it may not be appropriate for the learned single Judge to sit on appeal against the decision of a criminal

Court and to state as to whether it was an honourable acquittal or otherwise. Even though the respondent had not replied to the charge memo

issued to him, the learned single Judge had erroneously held that there was no material to sustain the charges levelled against the respondent.

On the contrary, the learned Counsel appearing for the respondent had submitted that the proceedings of the first respondent issued under

Rule 17(b) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules, 1955, after an inordinate and unexplained delay of more than 10 years

is arbitrary, illegal and void. Since the respondent had been suspended from service under Fundamental Rules 56(i)(c), due to the pendency of a

criminal case, he should have been allowed to retire, automatically, without any further proceedings being initiated against him, on his acquittal by

the concerned criminal Court. Once the respondent is acquitted in the criminal case, it would not be open to the appellants to initiate departmental

proceedings against the respondent under Rule 17(b) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules, 1955.

It had also been submitted that since the criminal case registered against the respondent and the departmental proceedings are relating to the

same set of facts and based on the same evidence, it would not be open to the appellants to initiate separate departmental proceedings after a long

delay. Even though the respondent had been honourably acquitted in the criminal case, such proceedings would be hit by the doctrine of double

jeopardy and it would be contrary to the principles enshrined in Articles 20 and 21 of the Constitution of India. The learned Counsel for the

respondent had relied on the following decisions in support of his contentions:

1) In G.M. Tank Vs. State of Gujarat and Another, , the Supreme Court had held as follows:

24... In this case, the departmental proceedings and the criminal case are based on identical and similar set of facts and the charge in a

departmental case against the appellant and the charge before the Criminal Court are one and the same. It is true that the nature of charge in the

departmental proceedings and in the criminal case is grave. The nature of the case launched against the appellant on the basis of evidence and

material collected against him during enquiry and investigation and as reflected in the charge sheet, factors mentioned are one and the same. In

other words, charges, evidence, witnesses and circumstances are one and the same. In the present case, criminal and departmental proceedings

have already noticed or granted on the same set of facts namely, raid conducted at the appellant''s residence, recovery of articles therefrom. The

Investigating Officer, Mr. V.B. Raval and other departmental witnesses were the only witnesses examined by the Enquiry Officer who by relying

upon their statement came to the conclusion that the charges were established against the appellant. The same witnesses were examined in the

criminal case and the Criminal Court on the examination came to the conclusion that the prosecution has not proved the guilt alleged against the

appellant beyond any reasonable doubt and acquitted the appellant by his judicial pronouncement with the finding that the charge has not been

proved.

It is also to be noticed that the judicial pronouncement was made after a regular trial and on hot contest. Under these circumstances, it would

be unjust and unfair and rather oppressive to allow the findings recorded in the departmental proceedings to stand. In our opinion, such facts and

evidence in the department, as well as criminal proceedings were the same without there being any iota of difference, the appellant should succeed.

The distinction which is usually proved between the departmental and criminal proceedings on the basis of the approach and burden of proof

would not be applicable in the instant case. Though finding recorded in the domestic enquiry was found to be valid by the Courts below, when

there was an honourable acquittal of the employee during the pendency of the proceedings challenging the dismissal, the same requires to be taken

note of and the decision in Paul Anthony''s case (supra) will apply....

2) In Union of India v. N.S. Shekhawat 2008(2) L.L.N. 783 the Supreme Court had held as follows:

There cannot be any doubt that initiation of departmental proceeding is permissible even after the judgment of acquittal is recorded by the criminal

Court. But the same would not mean that a proceeding would be initiated only because it is lawful to do so. A departmental proceeding could be

initiated if the Department intended to adduce any evidence which is in its power and possession to prove the charges against the delinquent

officer. Such a proceeding must be initiated bona fide. The action of the authority even in this behalf must be reasonable and fair.

It is not a case where a mere benefit of doubt had been given to the respondent in the criminal proceeding. The criminal Court has given a positive

finding that the prosecution has not been able to prove that the accused had misappropriated the goods. His visit to the border for discharging his

duties did not tantamount to misuse of the post or the authority. No evidence has been presented that he did not have the authority to go to the

border side on official duties and even the department had not forbidden him from going to that place. It was held that as misappropriation of the

property has not been proved, the question of any criminal conspiracy did not arise. No evidence had been adduced to bring home the charge of

criminal conspiracy, which is an independent crime.

3) In The Secretary, Vallalar Gurukulam Higher Secondary School Vs. District Educational Officer and G. Anbarasan, , a Division Bench of this

Court had held as follows:

When a misconduct is committed by an employee, the authorities have the option to take two kinds of proceedings against him. Firstly a criminal

proceeding if he is alleged to have committed a criminal offence, and in addition they can also take a departmental proceeding against him by

issuing a departmental charge memo. Even if the employee is acquitted in the criminal case, he can yet be found guilty in the departmental

proceedings. This is because the standard of proof in the two proceedings is different. In criminal proceedings, `the standard of proof'' is proof

beyond reasonable doubt, whereas in departmental proceedings, standard of proof is like in a civil case i.e., balance of probabilities.

4) In State of Tamil Nadu and Commissioner of Municipal Administration Vs. M. Jayapal, The Registrar, Tamil Nadu Administrative Tribunal and

Commissioner, Virudhunagar Municipality, , a Division Bench of this Court had held as follows:

The only point on which turned the success or failure of this petition was whether an acquittal of the respondent in criminal case upon a set of facts

same as those on which a charge memo served on him were based would justify or not quashing of the charge memo. The High Court observed a

judgment of acquittal giving benefit of doubt to the accused could not be equated to such judgment on technical grounds.

In this case the acquittal was not on technical grounds. Hence the order of the Administrative Tribunal quashing the charge memo was upheld as

proper. Further, on facts, the High Court found the charge memo had been issued fourteen long years after the incident and four years after the

acquittal. It observed if the respondent had to face departmental enquiry after the lapse of so many years, considerable prejudice would be caused

to him.

In view of the submissions made by the learned Counsel appearing for the appellants and the learned Counsel appearing for the respondent

and on considering the relevant records available before this Court, we are of the considered view that the appellants have not shown sufficient

cause or reason for this Court to allow the present writ appeal by setting aside the order of the learned single Judge, dated 12.1.2009, made in

W.P. No. 31347 of 2007.

On a perusal of the judgment of the criminal Court, dated 23.8.2006, made in Special Case No. 4 of 2000, on the file of the Chief Judicial

Magistrate, Tirunelveli, we stand convinced that the said acquittal of the respondent by the Chief Judicial Magistrate, Tirunelveli, is not based on

the benefit of doubt being given to the respondent, as it is due to lack of evidence.

It is well settled in law that if a person is honourably acquitted based on the merits of the case, it cannot be put against him to deny the service

benefits that would have accrued to him in the usual course of the service. However, if a person had been acquitted by a criminal Court, based on

the benefit of doubt going in his favour, the same result may not accrue.

In an earlier decision in W.A. No. 1287 of 2008, (The Director General of Police, Mylapore, Chennai v. D. Mahadevan), the First Bench of

this Court had held that the acquittal of a person by a criminal Court, if it is based on the benefit of doubt being given in his favour, would not entitle

him to be considered for being selected in service. However, if a person has been acquitted, based on no evidence, it would amount to an

honourable acquittal and therefore, he would be entitled to be considered for such selection.

In such view of the matter, we do not find any infirmity in the decision of the learned single Judge, dated 12.1.2009, made in W.P. No. 31347

of 2007. In such circumstances, the present writ appeal is liable to be dismissed. Hence, it is dismissed. Consequently, connected M.P. No. 1 of

2009 is closed. No costs.