Madras High Court
Sivasamy vs The Chief Engineer (Personal) on 29 July, 2019
Author: D.Krishnakumar
Bench: D.Krishnakumar
1
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 29.07.2019
CORAM
THE HONOURABLE MR.JUSTICE D.KRISHNAKUMAR
W.P.(MD) No.4156 of 2016
and
W.M.P.(MD) No.3730 of 2016
Sivasamy ...Petitioner
Vs.
1.The Chief Engineer (Personal),
Tamilnadu Electricity Board,
No.144, Anna Salai,
Chennai - 2.
2.The Superintending Engineer
Theni Electricity Distribution Circle,
Tamilnadu Electricity Board,
Theni 625 531.
3.The Secretary to the Government,
TANGEDCO,
Fort.St.George,
Chennai.
4.The Director,
Vigilance and Anti Corruption Department,
No.293, MKN Road,
Alandur,
Chennai 600 016.
(R3 and R4 are suo motu impleaded by this Court
by order dated 29.07.2019)
...Respondents
http://www.judis.nic.in
2
PRAYER: Writ petition filed under Article 226 of the Constitution of
India, to issue a Writ of Certiorarified Mandamus, to call for the
records relating to the impugned order of the second respondent
passed in Ku.No.01829/Mepo/Theni/NiA/NiP1/Vu3/Ko.Marai/15
dated 24.02.2015 and quash the same as illegal and consequently,
directing the respondents herein to regularize the period of
suspension with all monetary and service benefits to the petitioner
within a reasonable time in the light of judgment of the Hon'ble
Supreme Court reported in 2015 (3) CTC 119 SC.
For Petitioner :Mr.K.Appadurai
For Respondents :Mr.K.Chellapandian
Additional Advocate General for
Mr.S.Dhayalan
Standing Counsel
ORDER
This Writ Petition has been filed to quash the order dated 24.02.2015 passed by the second respondent in Ku.No. 01829/Mepo/Theni/NiA/NiP1/Vu3/Ko.Marai/15 and to direct the respondents to regularize the period of suspension with all monetary and service benefits to the petitioner.
2.According to the petitioner, he was working as Foreman in the office of the Assistant Electrical Engineer, TANGEDCO, Surulipatti, Theni. On 23.02.2015, one R.Mahendiran, lodged a complaint before http://www.judis.nic.in 3 the Vigilance and Anti Corruption Department, Theni, by alleging that the petitioner had demanded a sum of Rs.4,000/- for getting new service connection to his house and Rs.2,000/- as bribe termed as service charge to the Department. Based on the aforesaid complaint, the petitioner was trapped, arrested and remanded to prison by the Vigilance Officials.
3.Pursuant to the aforesaid complaint, on 24.02.2015, the petitioner was placed under suspension by the second respondent. After that, the second respondent did not frame any charge against the petitioner till date. Hence, the petitioner made a representation on 09.06.2015 to the second respondent requesting him to revoke the order of suspension dated 24.02.2015. But, the second respondent has not chosen to consider the request of the petitioner. Hence, the petitioner is before this Court with the present writ petition for the relief stated supra.
4.The learned Additional Advocate General appearing for the respondents would submit that on 23.02.2015, a case in Crime No.2 of 2015 for the offences under Sections 7 and 13 (2) r/w 13(1) (d) of PC Act, 1988, has been registered against the petitioner and after http://www.judis.nic.in 4 filing a charge sheet, the same has been taken on file by the jurisdictional criminal Court. Now, the entire case records and other materials are available with the office of the Director of Vigilance and Anti Corruption Department, Chennai.
5.Further, the learned Additional Advocate General would submit that after the completion of DV&AC enquiry and also based on the recommendations/findings, the suspension orders passed against the delinquent officials have been examined/reviewed on the merits of each and every case as per the orders issued in memo (Per) No. 13108/A.18/A.181/2010-1 dated 28.12.2010. Further, he would submit that if any positive orders are issued in favour of the employees, who are placed under suspension based on the DV&AC Case, then the competent authority, who ordered the suspension, were also directed to take immediate action to contest the case by filing an appeal in the appropriate Court without delay.
6.Further, the learned Additional Advocate General undertakes that by taking note of the facts of the case and in the light of the judgment rendered by the Hon'ble Supreme Court in the case of Ajay Kumar Choudhary Vs. Union of India (UOI) and others reported in http://www.judis.nic.in 5 2015 (3) CTC 119, the representation of the petitioner dated 09.06.2015, ought to have been considered and the same would be considered within a time frame to be fixed by this Court by the respondents.
7.Heard the learned counsel on either side and perused the records carefully.
8.Earlier, at the time of hearing the writ petition, this Court found that in some cases, against the delinquent employees, who were placed under suspension based on the DV&AC Cases, the departmental proceedings have been initiated by the respondent Board, but in large number of cases, the departmental proceedings have not been initiated against the delinquent employees. With regard to the same, this Court directed the first respondent to file a report and in compliance of the said order, the first respondent/Chief Engineer (Personal), Tamilnadu Electricity Board, Chennai, has filed a report dated 26.07.2019 before this Court.
9.From the counter affidavit filed by the respondents, it is seen that after receiving the recommendation from the DV&AC, appropriate http://www.judis.nic.in 6 orders have been passed by the respondent Board against the delinquent employees. As on date, the cases pending with DV&AC of the delinquent employees are as follows:
i) Number of pending DVAC cases 225
ii) Number of DVAC cases, in which charges framed 56
iii) Number of DVAC cases, charges not framed 169
10.Further, it is stated that out of 169 cases, for 38 individuals suspension orders were already revoked, but as on date, the original Criminal Cases filed by DV&AC are still pending before the jurisdictional Court concerned. As per the general practice, on receipt of the report from DV&AC with regard to trap and arrest, the employee concerned will be placed under suspension by the competent authority. In certain cases, the DV&AC would recommend the department concerned to initiate disciplinary proceedings and for those cases, the disciplinary proceedings would be initiated.
11.This Court is not satisfied with the said report and raised a query, why the respondent Board has not chosen to take action against all the erring employees, who are involved in criminal charges framed by the DV&AC Department. The first respondent/Chief Engineer (Personal), Tamilnadu Electricity Board, Chennai has filed http://www.judis.nic.in 7 the Additional Report dated 26.07.2019 before this Court and states as follows:
It is stated in the report, in G.O.Ms.No.124, Personnel & Administrative Reforms (Per.N) Department, dated 22.02.1983, the following guidelines have been issued by the Government.
2. The Government have examined the above matter and have decided that the following procedure shall be adopted in such cases:
1) when a criminal case is filed solely on criminal offence committed by the Government Servant, which is in no way connected with the discharge of his official duties; there is no need to pursue departmental action except placing the Government Servant under suspension as contemplated under Tamil Nadu Civil Services (Classification, Control & Appeal) Rules. The ultimate departmental action can be initiated against the delinquent officer after the result of the criminal case pending against him is disposed of by the Court of Law;
and
2) when both departmental as well as criminal action is initiated for the offences of the kind referred to in para 1 above, in regard to departmental action charges may be framed against him for the lapses committed by him and final orders may be passed after obtaining the required registers/records/documents from the Court irrespective of the fact whether he is http://www.judis.nic.in 8 acquitted or not. Thus the departmental action will be confined to the irregularities or lapses committed by the accused officer with reference to the administrative aspect.
12.Further, in memorandum No.49362 D1 86-1 (Secretariat Branch) dated 28.07.1986, the following guidelines have been issued:-
2. The following observations of the Full Bench of the Mysore High Court in T.V.Gowda Vs. State of Mysore (1975 11 LLJ513) on the distinction between criminal proceedings and departmental proceedings are relevant in this context.
1) a disciplinary proceedings is not a criminal trial;
2) in criminal proceedings, the purpose sought to be achieved is protection of the public while in disciplinary proceedings the purpose sought to be achieved is guilty and efficiency of the public service;
3) a criminal Court requires high standard of proof for convincing an accused, while such a standard of proof is not request for finding a person guilty to disciplinary proceedings and it is enough is there is preponderance of probability of the delinquent's guilt;
4) unlike in a criminal proceeding in a disciplinary proceeding the strict rules of evidence and the provisions of the Evidence Act do not apply;
http://www.judis.nic.in 9 and
5) officers are requested to note the above instructions for their future guidance and also dispose of all pending departmental proceedings on the above basis;
13.It is further stated that in the said 169 cases out of 225, concerned officers of the respondent Board had not taken any departmental disciplinary proceedings against the delinquent employees, who have committed irregularities and were placed under suspension based on the DV&AC Cases. Since the guidelines and necessary directions have been issued in the said G.O., dated 22.02.1983 and in the memorandum dated 28.07.1986, to initiate departmental disciplinary proceedings for the serious offences committed by the delinquent employees, no such action is taken by the respondent Board by following the said G.O., and the said memorandum.
14.The criminal proceedings and the departmental proceedings are entirely different. In criminal matters, when there is a benefit of doubt in favour of the delinquent employee, he shall be discharged or acquitted from the criminal proceedings, whereas, in the departmental http://www.judis.nic.in 10 proceedings, based on the preponderance of probability, the delinquent employee has to explain before the authority concerned for the irregularities or lapses committed by him for the aforesaid charges. In these kind of criminal offences being registered by the DV&AC, if no disciplinary proceedings are taken against the concerned delinquent employees, the public would loss their confidence on the function of the respondent board for the irregularities committed by the concerned officials and staffs of the board, while discharging their official duties.
15.Further, it has been clarified from the aforesaid statement of the respondent Board that in some cases, based on the recommendation, the DV&AC Department has initiated disciplinary proceedings against the delinquent employees and in support of the same, materials have also been produced before this Court. But, in so many cases, departmental proceedings have not been initiated against the erring employees, against whom, criminal cases have been registered for the offences punishable under Sections 7 and 13 (2) r/w 13(1) (d) of Prevention of Corruption Act, 1988. But, the Director of Vigilance and Anti Corruption Department, has registered criminal http://www.judis.nic.in 11 complaints against the erring Officers and staffs of the respondent board for the offences made out under the Prevention of Corruption Act, 1988 and the same are pending before the concerned jurisdictional criminal Courts. Despite knowing the aforesaid fact, the respondent board has not initiated departmental disciplinary proceedings against the concerned erring officials and staffs of the respondent board, which leads to lose the public faith on the functions of the respondent Board.
16.Thus, the respondent Board has to take necessary action by issuing appropriate instructions to the authorities concerned to take appropriate action against the erring officials and staffs of the respondent board in accordance with the Government Orders, if any complaint is received from the public or any individual as such. If any such action is being taken promptly, the general public would have confidence on the performance of the respondent board. Therefore, the first respondent has to issue necessary instructions to take action on the complaints, if any received with substantial materials against the erring officials and staffs of the respondent board. http://www.judis.nic.in 12
17.Therefore, in the light of the aforesaid facts and discussions and in view of the arguments advanced on either side, this Court is inclined to pass the following directions:
i) the third respondent is directed to issue suitable instructions to the officers concerned to comply with the aforesaid Government Order dated 22.02.1983 and the said memorandum dated 28.07.1986 in letter and spirit without any deviation, within a period of four weeks from the date of receipt of a copy of this order;
ii) based on the aforesaid instruction, the first respondent shall communicate all the concerned officials for taking appropriate action against the erring officials and staffs of the respondent board, who are involved in criminal charges registered under the provisions of Prevention of Corruption Act, 1988, lodged by the DV&AC Department. If no disciplinary action is taken by the officials concerned, the first respondent is directed to take necessary action against the officials concerned;
iii) the Director of Vigilance and Anti Corruption Department shall also furnish the relevant documents to the disciplinary authorities concerned in accordance with rules for initiating departmental disciplinary proceedings against the erring officials and staffs of the respondent board based on the criminal charges under the provisions of Prevention of Corruption Act, 1988, lodged by the DV&AC Department; and http://www.judis.nic.in 13
iv) insofar as the instant case is concerned, in the light of the judgment rendered by the Hon'ble Supreme Court in the case of Ajay Kumar Choudhary Vs. Union of India (UOI) and others reported in 2015 (3) CTC 119, the second respondent is directed to consider the petitioner's representation dated 09.06.2015 and pass appropriate orders on merits and in accordance with law, within a period of eight weeks from the date of receipt of a copy of this order;
18.With the above directions, this Writ Petition is disposed of. No costs. Consequently, connected miscellaneous petition is closed.
Index :Yes/No 29.07.2019 Internet :Yes/No mm To
1.The Chief Engineer (Personal), Tamilnadu Electricity Board, No.144, Anna Salai, Chennai - 2.
2.The Superintending Engineer Theni Electricity Distribution Circle, Tamilnadu Electricity Board, Theni 625 531.
3.The Secretary to the Government, TANGEDCO, Fort.St.George, Chennai.
http://www.judis.nic.in 14
4.The Director, Vigilance and Anti Corruption Department, No.293, MKN Road, Alandur, Chennai 600 016.
http://www.judis.nic.in 15 D.KRISHNAKUMAR, J.
mm W.P.(MD) No.4156 of 2016 29.07.2019 http://www.judis.nic.in