Madras High Court
The District Revenue Officer vs R. Palanisamy, Assistant, Erode ... on 24 November, 2005
Equivalent citations: (2006)1MLJ169
Author: P. Sathasivam
Bench: P. Sathasivam
ORDER P. Sathasivam, J.
Page 1977
1. Aggrieved by the order of the Tamil Nadu Administrative Tribunal dated 24-7-2003 made in O.A.No. 3211 of 1995, directing the Department to proceed against the applicant in accordance with the decision in Criminal Court, the District Revenue Officer, Erode has filed the above Writ Petition.
2. A criminal case as well as disciplinary proceedings were initiated against the first respondent herein, namely, R. Palanisamy, an Assistant of Erode District Revenue Unit for irregularities of misappropriating Government money to the tune of Rs. 96,206.41. The criminal case instituted in the Judicial Magistrate's Court, Perundurai in C.C.No. 110/90 ended in acquittal of the individual from the criminal charges levelled against him on 13-7-99. The departmental disciplinary proceedings was initially stayed by the Tamil Nadu Administrative Tribunal by an interim order in O.A.No. 3211/95 dated 4-7-95 and the Tribunal finally heard the case and issued direction in its order dated 24-7-2003 to take action in consonance with the judgement of the criminal case. Being aggrieved of the said direction, the District Revenue Officer has filed the present writ petition.
3. Heard Mr. E. Sampathkumar, learned Government Advocate for petitioner and Mr. P. Rajendran, learned counsel for first respondent.
4. The only point for consideration in this writ petition is, whether the Tribunal is justified in issuing direction to the Revenue Administration to proceed against the applicant in accordance with the decision in Criminal Court?
5. The first respondent herein while working as Revenue Inspector, Kanjikoil Firka in Perundurai Taluk of Erode District during the period from 6-8-81 to 29-9-82, he was charged that he had misappropriated an amount of Rs. 96,206.41 during the said period. A criminal case was registered against him in Crime No. 589/82 under Sections 420, 409 and 477A read with Section 109 I.P.C. and the same was taken on file in C.C.No. 110/90 of the Judicial Magistrate's Court, Perundurai. During the pendency of the criminal case, charges were framed under Rule 17 (b) of the Tamil Nadu Civil Service (Classification, Control and Appeal) Rules and he was dismissed from service as per District Revenue Officer's proceedings dated 6-7-86. Against this order, he preferred an appeal before the Special Commissioner and Commissioner of Revenue Administration, Chennai, and the latter remanded back the matter for fresh disposal for rectification of certain procedural irregularities. The first respondent was placed under suspension again and subsequently fresh charges were framed against him on 10-7-90. By orders of the Administrative Tribunal in O.A.No. 5011 of 93 and in view of the fact that the disposal of the criminal case takes longer time, he was allowed to join duty. The grievance of the Revenue Page 1978 administration is that because of the dilatory tactics adopted by the first respondent, the departmental proceedings would not be completed. It is also their claim that even after acquittal by the criminal court, they are free to proceed with the departmental enquiry. Learned Government Advocate basing reliance on Ajit Kumar Nag v. G.M, Indian Oil Corporation Limited, reported in 2005 AIR SCW 4986, would contend that acquittal by criminal court will not preclude the department from holding departmental proceedings. In the impugned order, it is true that the Tribunal has directed the department to proceed based on the result of the criminal case. In other words, as per the direction of the Tribunal, if the criminal case ended in acquittal, the department is barred from proceeding further or else they are free to proceed with the departmental enquiry. It is settled law that acquittal by a criminal court would not debar an employer/department from exercising power in accordance with the rules and regulations in force. The two proceedings, namely, criminal and departmental are entirely different. They operate in different fields and have different objectives. The object of criminal trial is to inflict appropriate punishment on the offender, whereas the purpose of enquiry proceedings is to deal with the delinquent departmentally and to impose on him penalty in accordance with service Rules. In a criminal trial, incriminating statement made by the accused in certain circumstances or before certain officers is totally inadmissible in evidence. Such strict rules of evidence and procedure would not apply to departmental proceedings. Likewise, the degree of proof which is necessary to order a conviction is different from the degree of proof necessary to record the commission of delinquency. The rule relating to appreciation of evidence in the two proceedings is also not similar. In criminal law, burden of proof is on the prosecution and unless the prosecution is able to prove the guilt of the accused beyond reasonable doubt, he cannot be convicted by a Court of Law. Whereas, in departmental enquiry penalty can be imposed on the delinquent officer on a finding recorded on the basis of the preponderance of probability. Acquittal of the accused by a Judicial Magistrate, therefore, does not ipso facto absolve him from the liability under the disciplinary jurisdiction of the Revenue administration. The contention that since he was acquitted by a criminal court, the department is completely debarred to proceed with the enquiry cannot be accepted. However, as observed in M. Paul Anthony v. Bharat Gold Mines Ltd., , since the facts and the evidence in both the proceedings, namely, departmental proceedings and the criminal case were the same, without their being an iota of difference, the distinction which is usually drawn as between the departmental proceedings and the criminal case on the basis of approach and burden of proof, would not be applicable. In the case on hand, the facts and the evidence in both the proceedings, namely, departmental and criminal were the same and in view of acquittal of the criminal case on merits, we are of the view that the Revenue administration is not justified in pursuing the departmental enquiry.
Page 1979
6. Even if we accept the departmental proceedings can be continued, in view of enormous and unexplained delay on the part of the Revenue Administration, they are not permitted to proceed with the enquiry. The details regarding dates and events amply show that in view of the enormous delay, the department cannot be permitted to proceed further. It is not in dispute that the period of alleged misconduct pertains from 6-8-81 to 10-8-82. First respondent herein was placed under suspension on 9-11-82. Charge Memo was issued on 26-01-83. Order of dismissal from service was passed by the disciplinary authority on 6-7-86. The order of dismissal was set aside by the appellate authority and the matter was remanded to the disciplinary authority on 7-10-86. Fresh charge memo was issued to the first respondent on 10-7-90. There is no explanation at all for taking four years' time from the date of remand by the appella te authority for framing fresh charge memo. On 26-10-93 the first respondent who was under suspension from 9-11-82 to 26-10-93 (for 11 years) was reinstated in service following the order of the Tribunal in O.A.No. 5011/1993. Copies of the documents relied upon by the disciplinary authority were furnished to the first respondent on 13-01-95 i.e., after 5 years from the date of charge memo. The Tribunal stayed the departmental proceedings in O.A.No. 3211/1995 on 4-7-95. The first respondent was acquitted by Judicial Magistrate, Perundurai in C.C.No. 110/90 on 13-7-99 . The Tribunal passed final order in O.A.No. 3211/95 on 24-7-2003. The petitioner/District Revenue Officer filed this Writ Petition and obtained an order of stay on 7-4-2004. It is also brought to our notice that the first respondent is due to retire from service on 30-11-2005. In this regard, it is useful to refer a judgement of the Supreme Court in P.V. Mahadevan v. M.D., T.N. Housing Board, reported in 20 05 (4) CTC 403 wherein the Supreme Court after finding that there is inordinate delay of 10 years in initiating the departmental enquiry against the appellant, in the absence of explanation from his employer-Tamil Nadu Housing Board, concluded that allowing the Housing Board to proceed with the departmental proceedings at this distance of time would be very prejudicial to the appellant and consequently quashed the charge memo issued against him. While arriving such a conclusion, Their Lordships made a reference to State of U.P. v. N. Radhakrishnan, . After considering the factual details and rival contentions, the Supreme Court has concluded that: (para 11) "11. Under the circumstances, we are of the opinion that allowing the respondent to proceed further with the departmental proceedings at the distance of time will be very prejudicial to the appellant. Keeping a higher Government official under charges of corruption and disputed integrity would cause unbearable mental agony and distress to the officer concerned. The protracted disciplinary enquiry against a Government employee should, therefore, be avoided not only in the interests of the Government employee Page 1980 but in public interest and also in the interests of inspiring confidence in the minds of the government employees. At this stage, it is necessary to draw the curtain and to put an end to the enquiry. The appellant had already suffered enough and more on account of the disciplinary proceedings. As a matter of fact, the mental agony and sufferings of the appellant due to the protracted disciplinary proceedings would be much more than the punishment. For the mistakes committed by the department in the procedure for initiating the disciplinary proceedings, the appellant should not be made to suffer."
After holding so, the Supreme Court quashed the charge memo issued against the appellant and also directed settlement of all retiral benefits in accordance with law within 3 months from the date of the order. Following the above decision, this Court (P. Sathasivam and S.K. Krishnan, JJ) in Obaidhullah, A. v. The State of Tamil Nadu (2005 (5) CTC 380) quashed the second charge memo issued after a lapse of more than 12 years. In view of the fact that the alleged misconduct dates back to 8-11-82 and of the fact that the Revenue administration had taken longer time at every stage and taking note of the fact that the first respondent herein is due to retire from service on 30-11-2005 and also of the fact that it would not be fair on the part of the department to proceed with the departmental enquiry after 24 years of the alleged incident, the petitioner-District Revenue Officer, Erode is not permitted to proceed with the departmental enquiry. The first respondent shall be allowed to retire on 30-11-2005, if there is no other charge pending against him. The Writ Petition is dismissed with the above direction. No costs. Consequently, connected miscellaneous petitions are closed.