V. Rathinam vs The Commissioner of Employment and Training and The Joint Commissioner of Employment Office of the Special Commissioner and Commissioner of Employment and Training

K. Chandru, J.—The prayer in the writ petition is as follows:

The writ petition is filed praying for issuance of writ of Certiorarified Mandamus calling for the records of the second respondent relating to Charge

Memo in O.N.1/38940/2003 dated 23.8.2006 (which was served on 11.9.2006) and consequently, direct the first respondent to consider the

claim of the petitioner for promotion as Junior Employment Officer without reference to the above Charge Memo.

The petitioner in this writ petition challenges the order of the first respondent dated 23.8.2006 by which he was charge sheeted under Rule

17(b) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules (hereinafter referred to as �the Rules�). Under the charge sheet given to

the petitioner, in Annexure I three charges have been levelled against him. The first charge is that when the petitioner was working as an Assistant

in the District Employment Office, Villupuram during 1997-2000, he fraudulently collected amounts from various persons falsely stating that he will

get them seats in the Teacher Training Institute. A list of persons, who were allegedly cheated by the petitioner, is given and the amount collected

was a sum of Rs. 4,77,000/-. It is also stated that one of those persons, who had paid money, had given a complaint before the District Crime

Branch, Dharmapuri District, for committing an offence u/s 420 I.P.C. He was also arrested on 26.02.2000 and produced before the Judicial

Magistrate, Harur and kept in Sub-Jail, Harur, till 10.3.2000. It is further stated that the Judicial Magistrate, Harur, by his judgment dated

02.02.2005, held that since the petitioner had refunded the amounts to the persons from whom he had collected the same, there was no necessity

to pursue the case against him. Therefore, it is charged that the petitioner has committed misconduct under Rule 20(1) of the Tamil Nadu

Government Servants� Conduct Rules, 1973 (hereinafter referred to as �the Conduct Rules�). In the Annexure 4 to the charge memo, a list

of five witnesses has been given and in Annexure 3, apart from the judgment of the Criminal court, the agreements received from one Kubendiran

and Madeswaran for having received the sum were also enclosed. This charge memo is under challenge in this writ petition.

I have heard the arguments of Mr. J.Muthukumaran, learned Counsel appearing for the petitioner and Mr. Gopiraja, learned Government

Advocate, taking notice for the respondents and perused the records.

The learned Counsel appearing for the petitioner submitted that the petitioner was suspended pending criminal case, by proceedings dated

20.3.2000 by the District Employment Officer, Villupuram, and he challenged the same before the Tamil Nadu Administrative Tribunal in O.A.

No. 4432 of 2000 and obtained an interim order on 30.6.2000. The said matter was taken on appeal by the District Employment Officer,

Villupuram, and a Division Bench of this Court in W.P. No. 12292 of 2000 set aside the interim order and the District Employment Officer was

directed to move the Tribunal. Thereafter, the Tribunal dismissed the O.A. by order dated 12.3.2002 and upheld the order of suspension but,

however, directed the Department to review the case of the petitioner. The respondent, by an order dated 31.01.2002, reinstated the petitioner in

service. The criminal case filed against the petitioner was rejected in C.C. No. 184 of 2003 by judgment dated 02.02.2005 by the learned Judicial

Magistrate, Harur. In that he had stated that the charge sheet was filed belatedly and that the persons, who made complaints, have received the

money and withdrawn the complaints and, therefore, there was no necessity to punish the petitioner and he was acquitted by giving benefit of

doubt. When the petitioner sought for increments by way of representation as he had continued in service and in view of the acquittal of the

criminal case, the respondents by letter dated 29.6.2006 informed him that the acquittal was only on technical grounds but, however, for infraction

of the Conduct Rules, they are entitled to take departmental action. Accordingly, the impugned charge memo came to be issued to the petitioner.

The learned Counsel for the petitioner drew the attention of this Court to the judgment of the Supreme Court reported in G.M. Tank Vs. State

of Gujarat and Another, and also the judgments of this Court reported in (2000) 3 MLJ 372 [Union of India v. T.K. Choudhuri] and 2006 (2)

CTC 635 [M. Elangovan v. The Trichy District Central Co-Op. Bank Ltd.] and contended that the authorities are bound to accept the verdict of

the Criminal Court and they cannot proceed with the departmental enquiry on the same set of facts. It is further stated that there is an inordinate

delay in instituting disciplinary action and, therefore, the departmental proceedings can be quashed.

Per contra, the learned Government Advocate stated that there was no delay in the case of the petitioner. Initially, the petitioner challenged the

suspension order before various forums and continued in service. Thereafter, even though the complaint was relating to the year 1999, the

judgment in criminal case was delivered only on 02.02.2005 and after studying the said decision, the first respondent even as early as on

29.6.2006 informed the petitioner the proposal to initiate departmental enquiry. Therefore, the allegation that there is a delay in instituting

proceedings does not arise. In any event, as the petitioner himself wants to take advantage of the criminal case as the basis for quashing the charge

sheet and, therefore, he cannot address the argument of delay. In the present case, the charge sheet was laid before the Criminal Court on

02.4.2003 and the judgment was rendered in the year 2005 and as such, there is no delay on the part of the Department in initiating the disciplinary

action.

With reference to the Criminal Case and the departmental enquiry initiated were based on the same set of facts, it is stated by the learned

Government Advocate that while the criminal case related to the case of cheating u/s 420 I.P.C. and the petitioner�s acquittal was on the basis

of the complainants withdrawing their complaints since they have received the amounts from the petitioner, the present disciplinary action is based

upon Rule 20(1) of the Conduct Rules. Even without the Conduct Rules, it is needless to state that any Government servant should at all times

maintain absolute integrity and devotion to duty while in service. In this context, Rule 20(1) of the Conduct Rules under which the petitioner was

charge sheeted may be usefully extracted.

Integrity and Devotion Duty:

(1) Every member of the service shall at all times maintain absolute integrity and devotion to duty and shall do nothing which is unbecoming of a

member of the service.

Therefore, the conduct of the petitioner by collecting money from various persons and thereafter, refunding the same on a bond of agreement is

wholly reprehensible and the authorities are entitled to proceed with their action and the writ petition is not maintainable at this stage. If the charges

levelled against the petitioner are proved, then he is liable for punishment under Rule 8 of the T.N.C.C.S. (D&A) Rules, 1973. Rule 8 of the said

Rules begins as follows:

Rule 8:

The following penalties may, for good and sufficient reason and as hereinafter provided, be imposed upon every person who is a member of the

civil service of the State and every person holding a civil post under the State specified in Rule 2

Even if misconduct is not specified, the Supreme Court while interpreting a rule analogous to Rule 8 in its decision reported in Secretary to

Government and Others Vs. A.C.J. Britto, in paragraph 9 held as follows:

The Rules applicable in this case do not specify acts of misconduct for which a delinquent officer can be punished. Rule 2 empowers the

competent authorities to impose upon members of the Service penalties specified therein ""for good and sufficient reason"". Therefore, the decision

of this Court in A.L. Kalra case is clearly distinguishable. Before holding that there was no justification to initiate disciplinary proceeding against the

respondents, the Tribunal ought to have considered whether there was ""good and sufficient reason"" for initiating such proceedings against him. It

was not justified in taking that view on the ground that such an act of delinquency has not been specified in the Rules as an act of misconduct.

While the judgments reported in (2000) 3 MLJ 372 and 2006 (2) CTC 635 (cited supra) proceed on the basis of delay, in the present case, it

is clearly established that there is no delay on the part of the Department. It must be further stated that the petitioner himself wants to take

advantage of the judgment passed by the Criminal Court, which came as a rescue to him after seven years of the alleged incident.

With reference to the decision of the Supreme Court reported in G.M.Tank''s case (cited supra), the Supreme Court factually found that the

departmental proceedings and the Criminal Cases in that case were based on identical and similar set of facts. In that case, the Supreme Court

went into the details of the case before the Criminal Court and held that the findings of the Criminal Court that the Government employee was

innocent of the charges was on merits and the very same witnesses were also brought before the departmental enquiry. It was held that such an

action cannot be accepted by the Courts.

In the present case, the complainants were also examined before the Criminal Court and stated before the Court that they received the

amounts from the petitioner and, therefore, they do not want to prosecute the petitioner. In fact, the very same finding itself is detrimental to the

petitioner�s claim. In fact, in the decision of the Supreme Court in G.M.Tank''s case (cited supra), the Court approved the earlier decisions of

the Supreme Court reported in AIR 2005 SCW 4986 [Ajit Kumar Nag v. General Manager (PJ), Inidan Oil Corporation Ltd. Haldia and Ors.

and AIR 1997 SCW 2078 [Depot Manager, A.P. State Road Transport Corporation v.Mod. Yousuf Miya and Ors.] for the proposition that the

acquittal of the criminal case is not a bar for conducting departmental enquiry. After referring to these decisions and approving the same, in

paragraph 31 of the judgment, the Supreme Court observed as follows:

The judgments relied on by the learned Counsel appearing for the respondents are distinguishable on facts and law. 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.

Therefore, the said decision is not helpful to the case of the petitioner.

[Note: The above quoted passage has been wrongly reported in TLNJ 2006 (3) 457 (CIVIL) which has been cited before this Court. In the

above passage, in the second line after the word ''are'' and before the word ''distinguishable'', the word ''not'' was found printed by the Law

Report. It was verified with an authentic text. With that word, the passage itself will be incongruous and will be inconsistent with the reasoning of

the learned Judges of the Apex Court.]

In the light of the above, the writ petition fails and the same shall stand dismissed. In view of the same, connected M.P. Nos. 1 and 2 of 2006

shall also stand dismissed. However, there will be no order as to costs.