Madras High Court
J. Karunanidhi vs The Special Commissioner & on 3 March, 2006
Author: N.Paul Vasanthakumar
Bench: N.Paul Vasanthakumar
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated: 03/03/2006
Coram
The Hon'ble Mr.Justice N.PAUL VASANTHAKUMAR
Writ petition No.27224 of 2005
J. Karunanidhi ... Petitioner
-Vs-
1. The Special Commissioner &
Commissioner of Commercial Taxes,
Chepauk,
Madras 5.
2. The Secretary to Government,
CT&RE Department,
Fort St.George,
Madras 9. ... Respondents
This Writ petition came to be numbered by way of transfer of
O.A.No.5084 of 1994 from the file of Tamil Nadu Administrative Tribunal with a
prayer to quash the order of punishment imposed by the Special Commissioner
and Commissioner of Commercial Taxes, Madras-5 in his E1/81 884/92, dated
25.2.1993.
!For Petitioner : Mr.R.Muthukannu
^For Respondents : Mrs.D.Malarvizhi,
Government Advocate
:O R D E R
In this petition, petitioner seeks to quash of order of punishment of removal from service passed against him by the first respondent on 25.2.1993.
2. The necessary facts for disposal of the writ petition as stated in the affidavit are that the petitioner was appointed as a regular Record Clerk from 16.5.1983. While he was working at Thathuvanchery Checkpost, there was a raid by the Vigilance and Anti Corruption Wing of Police Department on 19.3.1988 and an amount of Rs.10/- was recovered from the petitioner which was allegedly accepted by him as bribe. Petitioner was placed under suspension on 19.3.1988 and a charge memo was also issued to him which reads as follows, "While you (Accused Officer) were functioning as Record Clerk, Commercial Taxes Checkpost, Thathuvancherry actuated by corrupt motive and in abuse of your official position and authority, had committed gross misconduct and misdemeanour and failed to maintain absolute integrity and devotion to duty in as much as you (Accused Officer) demanded and accepted an illegal gratification of Rs.10/- from Thiru P. Veeraiyan, S/o.Thiru Paramasivam, 16-A, Perumandi North Street, Mela Cauvery, Kumbakonam on 19.3.88 at about 14.10 hours at the Commercial Taxes Checkpost, Thathuvancheri, for allowing the van TCY 3843 which was loaded with cattle to pass through the checkpost without any hindrance and thereby violated Rule 20 of the Tamil Nadu Government Servants Conduct Rules, 1973."
Petitioner denied the charge by filing his explanation. Not satisfied with the explanation, the matter was referred for conducting enquiry by the Tribunal for Disciplinary Proceedings.
3. The Tribunal conducted enquiry and held that the petitioner accepted a sum of Rs.10/- from PW-1 a few minutes before 2.15 p.m. on 19.3 .1988 at the Commercial Taxes Checkpost, Thathuvancherry and thereby violated Rule 20 of the Tamil Nadu Government Servants Conduct Rules, 1973. However, the remaining parts of the charge are held not proved. After enquiry by the Tribunal, petitioner was issued with a show cause notice on 3.11.1992 and after going through the reply, petitioner was removed from service from 25.2.1993. According to the petitioner, he filed an appeal before the second respondent on 24.3.1993 and the same was not disposed of and therefore he filed the original application before the Tribunal on the ground that the amount of Rs.10/- was not recovered from the petitioner but from a place near to his seat and there is no positive evidence that he demanded and accepted the money voluntarily and consciously. According to the petitioner the acceptance of the said amount is proved by the Tribunal only on probabilities, but without any positive evidence and hence there is no criminal misconduct on the part of the petitioner, for which the penalty of removal from service is highly excessive. It is further stated in the affidavit that mere presence of Rs.10/- in the premises in a trap case is not sufficient to substantiate the charge of demand and acceptance of bribe.
4. In the additional grounds raised by the petitioner it is stated that the disciplinary authority was having a pre-determined mind to punish the petitioner and also alleged that Rules 10(a) and 10(b) of the Tamil Nadu Civil Services (Disciplinary Proceedings Tribunal) Rules, 1955, are not followed.
5. No counter affidavit was filed on behalf of the respondents.
6. Mr.R.Muthukannu, learned counsel appearing for the petitioner argued that even according to the enquiry report, only a part of the charge was proved, wherein the demand of bribe is not proved. The learned counsel reiterated the contentions raised in the affidavit. Finally learned counsel submitted that in any event the punishment awarded is highly excessive and disproportionate with the charge framed against the petitioner.
7. The learned Government Advocate submitted that based on the enquiry report of the Tribunal for Disciplinary proceedings, the disciplinary authority imposed punishment and the charge being acceptance of bribe, serious view was taken by the department and the petitioner was removed from service and hence there is no illegality in the impugned order.
8. I have considered the rival submissions of the learned counsel appearing for the petitioner as well as the learned Government Advocate.
9. The point for consideration in this case is whether the punishment of removal of service imposed on the petitioner based on the enquiry report, in which only part of the charge was found to have been proved, is sustainable.
10. The Tribunal for Disciplinary Proceedings conducted the enquiry on 10.1.1991, 13.2.1991, 14.3.1991, 8.5.1991, 10.6.1991, 16.7.1991, 3 0.7.1991, 16.8.1991 and heard the arguments on 27.8.1991. During the course of enquiry five prosecution witnesses were examined and one defence witness was examined on behalf of the petitioner herein. Tribunal also marked Exs.P-1 to P-8 apart from two material objects. The Tribunal for Disciplinary Proceedings, after elaborate enquiry found that acceptance of Rs.10/- from PW-1 is proved. The said finding is a finding of fact and the same cannot be interfered with under Article 226 of Constitution of India. Petitioner fully participated in the enquiry and there is no procedural violation in the conduct of disciplinary proceeding, particularly enquiry. The only defence of the petitioner is that there is no corrupt motive or criminal misconduct on his part. The said defence is available only in criminal cases and not in the departmental proceedings. The preponderance of evidence establishes the guilt of the petitioner in accepting the bribe of Rs.10/- which was also recovered at the time of raid by the Vigilance and Anti Corruption Wing. This act of the petitioner is clearly in violation of Rule 20 of the Tamil Nadu Government Servants Conduct Rules.
11. The learned counsel for the petitioner placed reliance on the decisions reported in 1990(Supp) SCC 12 (State of U.P. v. Ram Asrey); AIR 1996 SC 426 (Union of India v. Iqbal Singh Cheema); 2000 (II) CTC 434 (Meena, w/o.Balwant Hemake v. State of Maharashtra); and 2006 (1) Supreme 1 (T.Subramaniam v. The State of Tamil Nadu). All the above decisions relate to criminal cases, where the proof required is beyond any reasonable doubt and the motive also should be proved. Therefore, the said judgments will not help the petitioner in any manner.
12. The learned counsel for the petitioner also placed reliance on a Division Bench decision of this Court reported in (2006)1 MLJ 48 (R.M.Palaniappan . v. The Transport Commissioner, Chennai) wherein this Court set aside the punishment on the ground of not supplying materials or required particulars and denied the opportunity to defend the case of the petitioner by the Enquiry Officer. But in the present case, petitioner fully participated in the enquiry and was given full opportunity to defend his case, who had also produced witness on his behalf. Therefore the ratio laid down in the above cited Division Bench judgment cannot be applied to the case on hand.
13. Petitioner having been found guilty of corruption charge, the quantum of money accepted by him is immaterial.
(a) The Honourable Supreme Court in the decision reported in (2006) 1 SCC 63 (Karnataka Bank Ltd. v. A.L.Mohan Rao) in paragraphs 4 and 6 held that the High Court committed an error in allowing the writ petition and ordering reinstatement on sympathetic ground, even though it found that the misconduct had been proved. It is further held that it is not for the courts to interfere in cases of gross misconduct of this nature with the decision of the disciplinary authority so long as the inquiry has been fair and proper and misconduct proved and that it is for the disciplinary authority to decide what is the fit punishment.
(b) A Division Bench of this Court in the decision reported in (2005 ) 1 M.L.J. 621 (Jambunathan v. The Management of Dheeran Chinnamalai Transport Corporation Ltd.) while dealing with the case of misappropriation, placing reliance on the decision of the Honourable Supreme Court reported in AIR 2000 SC 3129 (Janatha Bazar v. Secretary, Sahakari Noukarara Singh), held that once the act of misappropriation is proved, may be for a small or large amount, there is no question of showing uncalled for sympathy and reinstalling the employee in service. The Division Bench also placed reliance on another decision of the Supreme Court reported in J.T. (1996) 3 SC 96 (Municipal Committee, Bahadurgarh v. Krishnan Behari and Others), wherein it was held that in cases of misappropriation, there cannot be any other punishment other than dismissal. It is further held that any sympathy shown in such cases is totally uncalled for and opposed to public interest and that the amount misappropriated may be small or large, but it is the act of misappropriation that is relevant.
(c) In another Division Bench decision of this Court reported in (20 05) 3 M.L.J. 375 (The Management of Hindustan Teleprinters Employees Co-operative Thrift and Credit Society Limited v. The Presiding Officer, Principal Labour Court) in paragraph 14 it is held that in case of misappropriation, whether, of small amount or large amount, the only punishment which can be given is dismissal.
14. In the case on hand, the acceptance of bribe by the petitioner is proved. The contention of the learned counsel for the petitioner that the amount involved is only Rs.10/- is immaterial, in view of the decisions cited supra. The disciplinary authority considered the request of the petitioner to take lenient view in the matter and rejected the same and passed the order of punishment removing the petitioner from service. This Court sitting under Article 226 of the Constitution of India, cannot substitute its view in the matter of punishment imposed by the disciplinary authority.
15. With regard to the contention raised in the additional grounds that the first respondent failed to follow Rule 10(a) and (b) of the Tamil Nadu Civil Services (Disciplinary Proceedings Tribunal) Rules, 1 955, the learned Government Advocate submitted that the petitioner fully participated in the enquiry proceedings before the Tribunal for Disciplinary Proceedings and no procedural violation or denial of opportunity was complained of with regard to the conduct of enquiry. Therefore, according to the Government Advocate, not following the Rule 10(a) and (b), has not caused any prejudice to the petitioner. This is because the petitioner was asked to submit his explanation while serving a copy of enquiry report, for which petitioner also submitted a detailed reply on 17.12.1992, in which the alleged violation of Rule 10(a) and (b) is not complained. On the other hand, the petitioner had only pleaded for mercy and to impose lesser punishment. Even in the affidavit filed in support of the writ petition or in the additional affidavit filed on 23.2.2006, the prejudice caused to the petitioner is not pleaded. Hence I am of the view that the said ground also will not come to the rescue of the petitioner.
16. There is no merit in the writ petition and consequently the same is dismissed. No costs.
vr To
1. The Special Commissioner & Commissioner of Commercial Taxes, Chepauk, Madras 5.
2. The Secretary to Government, CT&RE Department, Fort St.George, Madras 9.