Madras High Court
R.Mohanasundaram vs Conservator Of Forests on 18 June, 2014
Author: T.Raja
Bench: T.Raja
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated 18.06.2014
CORAM
THE HONOURABLE MR.JUSTICE T.RAJA
Writ Petition Nos.21980 & 21981 of 2010
R.Mohanasundaram ... Petitioner in both the W.Ps.
Vs
1.Conservator of Forests,
Villupuram Circle,
Villupuram.
2.The District Forest Officer,
Kailakurichi Range,
Kallakurichi,
Villupuram District.
3.The District Forest Officer,
I.F.F. Division,
No.56/6, Kopuram Complex,
Kallakurichi.
... Respondents in both the W.Ps.
Prayer in W.P.No.21980 of 2010: Writ Petition is filed under Article 226 of the Constitution of India praying to issue a writ of Ceritorari calling for the records pertaining to charge memo issued by the second respondent in charge memo No.497/09/pa dated 10.08.2009 and quash the said order dated 10.08.2009.
Prayer in W.P.No.21981 of 2010: Writ Petition is filed under Article 226 of the Constitution of India praying to issue a writ of Ceritorari calling for the records pertaining to order of the third respondent in his proceedings Na.Ka.No./Po/2716.2009, dated 24.08.2010 and quash the said order dated 24.08.2010 and consequently direct the respondents to order for enquiry by an independent agency other than the Forest Officers, whether the criminal case WLR.No.2/2009, pending on the file of the Judicial Magistrate, Kallakurichi is a foisted case.
For Petitioner in both W.Ps. : Mr.P.Anbarasan
For Respondents in both W.Ps. : Mr.M.Hidayathullah Khan, GA (Forest)
COMMON ORDER
The writ petition No.21980 of 2010 has been filed by one R.Mohanasundaram, for issuance of a Writ of Certiorari, to call for the charge memo No. 497/09/pa dated 10.08.2009, issued by the District Forest Officer, Kallakurichi, second respondent herein, and to quash the same on the ground that the petitioner has filed a criminal case against the accused by name Gopi and five other forest offenders, for hunting of deers in Reserve Forest areas in W.L.O.R.No.2 of 2009 and even during the pendency of the criminal case on the file of the learned Judicial Magistrate, Kallakurichi, the Department ought not to have been pre-judged the issue, by issuing the charge memo against the petitioner wrongly that he has filed a false case against one Gopi and five other forest offenders.
2. Learned counsel for the petitioner would submit that after joining the Forest Department as Forester on 07.08.1991 he got promoted as ranger on 25.09.2006. Subsequently, he was transferred to Kallakurichi Range on 18.06.2008. Even during his short tenure of ten months, he has booked 117 cases against the prohibition offenders under Wild Life Act against the wild life offenders who involved in cases of hunting, killing spotted deers, illicit tree cutting, trespass etc., But in view of the effective action taken by the petitioner in Kallakurichi Range against poaching of spotted deer, the population of spotted deers also got doubled as per the census report. In one such event, the petitioner has also booked a criminal case against one Gopi and five other forest offenders for hunting a deer in reserved forest area in W.L.O.R.2 of 2009 and the same is pending trial on the file of the learned Judicial Magistrate, Kallakurichi. Since the said Gopi, who a politically influential person after trespassing into petitioner's range office on 16.05.2009, had threatened the petitioner and his staff and challenged him that the petitioner would be transferred if he did not withdrew the case against him, the petitioner was forced to file a police complaint against the said Gopi for the said incident and an FIR was also filed in Crime No.205 of 2009 by Chinnasalem Police Station. For the reason that the petitioner has taken effective action against the forest offenders, a false complaint dated 30.01.2009 was filed by one Mr.Ramesh, who is a close friend of Gopi. Similarly, on one another occasion, the petitioner after coming across an encroachment in the form of path way, made from Kallanatham to Kodamathi tribal village, took a possible steps to clear the encroachment and submitted a report. But the persons who were affected by the steps taken by the petitioner to protect the encroachment and wild life, falsely, motivated the higher officers, as a result, the petitioner was issued with the charge memo under Rule 17(b) of Tamil Nadu Civil Services (Discipline and Appeals) Rules on 15.04.2009. Although the petitioner submitted a detailed explanation, no orders were passed till now.
3. When the mater stood as above, the petitioner was issued with the suspension order dated 17.08.2009 under Rule 17(b) of the Tamil Nadu Civil Services (Discipline & Appeal) Rules, on a totally false ground that a criminal complaint was pending against him. As there was no such criminal complaint and the same was also politically motivated, the petitioner challenged the order of suspension in W.P.No.11835 of 2009. The said writ petition was dismissed by order dated 23.06.2009 as against that when Review Application No.71 of 2009 was filed, the same also was dismissed. Against which, a Writ Appeal in W.A.No.1038 of 2009 was filed. This Court, finding that there was no basis as alleged by the respondent and that there was no criminal case pending against the petitioner set aside the order of suspension passed by the first respondent and directed re-instatement.
4. Learned counsel adding further has stated that again the respondent instead of appreciating the petitioner who has registered a criminal case against one Gopi and five other forest offenders for hunting of deer in reserved forest areas in W.L.R.No.2 of 2009 which is also pending for consideration on the file of the learned Judicial Magistrate, Kallakurichi Range, with malafide motive issued the present impugned charge memo 29/09 on 10.08.2009. As the petitioner was troubled with the malafide and motivated action of the respondents in issuing the impugned charge memo, he sought for enquiry by an independent agency such as Vigilence or CBI Officer, to find out the correct truth. But the same was also rejected by order dated 24.08.2010. Therefore, the petitioner has come to this Court challenging both the charge memo falsely motivated and the interim order rejecting the request for independent enquiry. Further, learned counsel for the petitioner submitted that the when the respondents had passed an order of suspension on the ground that there was a criminal case pending against the petitioner, a Division Bench of this Court in its detailed order passed in W.A.No.1038 of 2009 has given finding that there was no criminal case pending against the petitioner for issuing the suspension order and has rightly set aside the same. By virtue of the order, the petitioner was re-instated in service. That shows that the respondents have victimised the petitioner as to their whims and fancies for rightly registering a case against the Gopi and five other forest offenders for hunting of deers in Reserve Forest areas and since these forest officers who are politically connected to bigwigs wrongly issued the charge memo on the ground that the criminal case filed by the petitioner in WLR.No.2 of 2009 was pending on the file of the learned Judicial Magistrate, Kallakurichi which is false, such an approach is evident from the fact that even before the competent Court gives its verdict after full trial on the pending criminal case booked against the forest offenders, it is legally impermissible for the department to pre-judge the issue that the petitioner has filed a false case. By concluding his arguments, it is stated that tommorrow if the learned Judicial Magistrate finds that the criminal case filed by the petitioner against the forest offenders is genuine and the offenders are punished, the respondents would not be in a position to make good the loss that would be put against the petitioner, therefore, he sought for interference of the impugned charge memo.
5. A detailed counter affidavit has been filed by the respondents. Mr.M.Hidayathullah Khan, learned Government Advocate (F) submitted that the present writ petition is not maintainable for two reasons. Firstly, after the issuance of the charge memo, the respondent has called upon the petitioner to submit his detailed explanation to the charge and an explanation dated 15.05.2009 was also presented by the petitioner. Thereafter, an enquiry officer was appointed and after completion of the enquiry, he has submitted a report. At this stage, when there is no adverse order passed against the petitioner and the report prepared by the enquiry officer on completion of the enquiry is also ready for taking decision on the charges issued against the petitioner by the Disciplinary Authority, the present writ petition filed in a hurry, should be dismissed. The second contention is that only if the Disciplinary Authority passes any adverse order, it is open to the petitioner to challenge the same and leaving that option open, at this stage, it is not known whether the Disciplinary Authority is going to accept or reject the charge levelled against the petitioner and even before passing any order, the writ petition has been wrongly filed and hence, prayed for dismissal of the same.
6. On considering the submissions made by the learned counsel on either side, this Court is of the opinion that the submission of the learned counsel for the petitioner has to be accepted by disagreeing with the objections made by the respondents and therefore this Court is inclined to quash the charge memo for the following reasons:
The issue needs to be addressed is whether the impugned charge memo dated 10.08.2009 issued against the petitioner finding fault with him for registering a false criminal case against one Gopi and five other forest offenders for hunting of deer in reserved forest area in WLR.No.2 of 2009 which is pending on the file of the learned Judicial Magistrate, Kallakurichi, is legally maintainable or not. It is an admitted case on both sides that the FIR was registered in Crime No.205 of 2009 by Chinnasalem Police Station against one Gopi and five other forest offenders for hunting of deer in reserved forest area in WLR.No.2 of 2009. Subsequently, the matter was taken cognizance by the learned Judicial Magistrate, Kallakurichi and thereupon, the same is pending for trial. At this stage, for having registered a criminal case against one Gopi and five other forest offenders for hunting of deer in reserved forest area, he was issued with charge memo under Section 17(b) of Tamil Nadu Civil Service (Discipline & Appeal) Rules. Before the case is decided by the competent Criminal Court apprehending that the department would be giving a finding against the petitioner that he had filed a false case that will ruin the pending criminal case on the file of the learned Judicial Magistrate, Kallakurichi infructuous and thereby, helping the forest offenders who are closely associated with political bigwigs, the petitioner requested the respondents department to conduct an enquiry by an independent agency such as Vigilance or CBI other than the forest officers. But the respondents 1 and 2 have not taken any action to order for such an enquiry. On the otherhand, the third respondent herein who was appointed as an enquiry officer has also rejected his request and under this background, the petitioner has come to this Court with apprehension that some foul play would befall to him.
7. Therefore, the question is whether the respondents department can pre-judge the pending criminal case filed against the Gopi and five other forest offenders before the competent Criminal Court delivers its verdict? When the petitioner has set in motion the criminal case to take its course as per law, the respondents who were not competent authority, cannot pre-judge the issue pending before the competent criminal court namely, the Judicial Magistrate, Kallakurichi as to whether the criminal case booked against one Gopi and five other forest offenders for hunting of deer in reserved forest area is a false one. Moreover, only with the malafide motive in helping the forest offenders against whom, the criminal case is pending, the charge memo has been issued by the District Forest Officer, Kallakurichi, the second respondent herein, as it is clearly going to favour Mr.Gopi and five other forest offenders. This could be also suspected from the previous record created by the respondents falsely, against the petitioner, while an order of suspension was issued against the petitioner on the false ground that a criminal case is pending investigation against the petitioner.
8. In fact, when there was no such criminal case pending against the petitioner, he has filed the writ petition in W.P.No.11335 of 2009, challenging the correctness of the suspension order, although the learned Single Judge had dismissed both the writ petition by order dated 23.06.2009 against which Review Application No.71 of 2009 by order dated 10.07.2009, on further filing of Writ Appeal in W.A.No.1038 of 2009 the Hon'ble First Bench of this Court after going into the minute details that there was no criminal case pending against the petitioner, by giving finding, that there was no justification for passing the suspension order had set aside the same which clearly goes to show that the respondent has passed the order of suspension on a false ground that there was criminal case pending against the petitioner. The same respondent has once again attempted to help the vested interest, by issuing charge memo under Section 17(b) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules charging the petitioner that he has filed a false case against Gopi and five other forest offenders for hunting of deer in reserved forest area in WLR.No.2 of 2009 with the ultimate motive making the pending criminal case as infructuous. Indeed, when the criminal Court is the only competent Court, to go into the correctness of the registration of the criminal case filed against the alleged offenders, the respondents have no authority to pre-judge the issue before the competent Criminal Court gives its verdit on the pending Criminal case. This move of the respondents would clearly show that the petitioner is going to be victimised with malafide motive.
9. The repeated motivated charges levelled against the petitioner clearly shows that the respondent department is only attempting to help the vested interest who are facing trial before the trial court to get away from the criminal case. In view of the above, this court having found that the earlier suspension order had been falsely passed against the petitioner, the 2nd respondent has once again attempted to interfere with the pending criminal case in favour of the accused persons, is inclined to interfere with the impugned charge memo. Therefore, the charge memo issued under Section 17(b) of the Tamil Nadu Civil Services (Discipline & Appeal) Rules is liable to be quashed and accordingly, the same is quashed.
10. This Court, taking note of the repeated vindictive and motivated malafide attempt to prosecute the petitioner for discharging his duty and thereby repeatedly wasting the precious time of the Court, is inclined to impose costs of Rs.10,000/-(Rupees Ten Thousand Only) against the second respondent, District Forest Officer, Kallakurichi payable to the petitioner, from his own salary. Accordingly, this writ petition is ordered. It is needless to mention that since the petitioner had reached the age of superannuation, the retiral benefits which the petitioner is legally entitled to also shall be disbursed, within a period of four weeks from the date of receipt of a copy of this order.
11. Mr.M.Hidayathullah Khan, learned Government Advocate (Forest) appearing for the respondents repeatedly requested this court, to delete the portion imposing cost of Rs.10,000/- in the order but, this Court is not inclined to do so.
12. In view of the order passed in W.P.No.21980 of 2010 quashing the charge memo and the fact that the petitioner has also retired from service on reaching the age of superannuation, this court feels, no further order is called for in W.P.No.21981 of 2010. Hence, W.P.No.21981 of 2010 is closed. Consequently, connected miscellaneous petitions are closed.
18.06.2014
Index : Yes/No
Internet : Yes/No
smi
To,
1.The Conservator of Forests,
Villupuram Circle,
Villupuram.
2.The District Forest Officer,
Kailakurichi Range,
Kallakurichi,
Villupuram District.
3.The District Forest Officer, I.F.F. Division,
No.56/6, Kopuram Complex,
Kallakurichi.
T.RAJA, J.
smi
Writ Petition Nos.21980 &
21981 of 2010
18.06.2014
First of all, it is not in dispute that the petitioner, after identifying the odur of deer in the forest range, registered a criminal case against one Gopi and 5 other Forest Offenders. Subsequently, the matter has gone to the file of the learned Judicial Magistrate, Kallakurichi. At this stage, when the competent Criminal Court which had taken cognizance of the criminal complaint filed by the petitioner, has not yet decided and the verdict of the Court against Gopi and five other Forest Offenders is awaited, this court finds no justification whatsoever in issuing the impugned charge memo, more particularly, when the allegation levelled will have the coast guard effect in the criminal case, stating that the petitioner has proceeded to register a false case against the said Gopi and five others in the gist of the charge memo clearly shows that the department wanted to help the forest offenders but, not the officer who wanted to restrict the killing of deer from Forest Offenders.
4. Yet another reason which flows before this Court in favour of the petitioner is the approach adopted by the respondent in placing him under suspension on the false ground that there was a criminal case pending against him although, when there was no such criminal case pending against him. The observation made by the Division Bench in W.A.No.1338 of 2009 dated 28.07.2009 clearly shows that the respondent department for no reason whatsoever has proceeded to place the petitioner under suspension, on a total false ground that there was a criminal case pending against the petitioner. The Honourable Division Bench after going through the details of the entire episode, has given the said finding that there was no such criminal case registered and pending against the petitioner, hence there is no basis for placing the petitioner under suspension. When the department has repeatedly made an attempt to victimise the petitioner for the reason best known to them which is very clear from various proceedings, mentioned above, I am of the view that the approach adopted by the respondent department is fully unwarranted and uncalled for and I have no hesitation in setting aside the impugned charge memo.
5. Accordingly, the charge memo issued against the petitioner is hereby quashed with the cost of Rs.10,000/- (Rupees Ten Thousand Only) tobe paid to the petitioner by the respondent department. This writ petition is ordered accordingly. It is needless to mention that the retrial benefits to which the petitioner is entitled, shall be disbursed within a period of four weeks, from the date of receipt of a copy of this order.
Learned counsel for the petitioner would submit that after joining the Forest Department as Forester on 07.08.1991 he got promoted as ranger on 25.09.2006. Subsequently, he was transferred to Kallakurichi Range on 18.06.2008. Even during his short tenure of ten months, he has booked 117 cases against the prohibition offenders under Wild Life Act. The wild life offenders who involved in cases of hunting, killing spotted deers, illicit tree cutting, trespass etc., But in view of the effective action taken by him in Kallakurichi Range against poaching of spotted deer, the population of spotted deer also got doubled as per the census report. In one such event, he has also booked a criminal case against one Gopi and five other forest offenders for hunting a deer in reserved forest area in W.L.O.R.2 of 2009 and the same is pending trial on the file of the learned Judicial Magistrate, Kallakurichi. Since the said Gopi who a politically influential person after trespassing into petitioner's range office on 16.05.2009, he threatened the petitioner and his staff and challenged him that the petitioner would be transferred if he did not withdrew the case against him. Again, the petitioner was forced to file a police complaint against the said Gopi for the said incident and an FIR was also filed in Crime No.205 of 2009 by Chinnasalem Police Station for the reason that the petitioner has taken effective action against the forest offenders a false complaint dated 30.01.2009 was filed by one Mr.Ramesh, who is a close friend of Gopi. Similarly on one another occasion, the petitioner after coming across an encroachment in the form of path way made from Kallanatham to Kodamathi tribal village, he took a possible steps to clear the encroachment and submitted a report. But the persons who were affected by the steps taken by the petitioner to protect the encroachment and wild life, falsely motivated higher officers, as a result, he was issued with the charge memo under Rule 17(b) of Tamil Nadu Civil Services (Discipline and Appeals) Rules on 15.04.2009. Although the petitioner submitted a detailed explanation, but no orders are passed till now.
When the mater stood as above, the petitioner was issued with the suspension order dated 17.08.2009 under Rule 17(e) of the Tamil Nadu Civil Services (Discipline & Appeal) Rules on a total false ground that a criminal complaint was pending against him. As there was no such criminal complaint and the same was also politically motivated, he has challenged the order of suspension in W.P.No.11835 of 2009. But the writ petition was dismissed by order dated 23.06.2009 as against that when Review Application No.71 of 2009 was filed, the same also was dismissed. As against that a Writ Appeal in W.A.No.1038 of 2009 was filed. This Court finding that there was no basis as alleged by the respondent and that there was no criminal case pending against the petitioner set aside the order of suspension passed by the first respondent and directed re-instatement.
Learned counsel adding further has stated that again the respondent instead of appreciating the petitioner who was registered a criminal case against one Gopi and five other forest offenders for hunting of deer in reserved forest areas in W.L.R.No.2 of 2009 which is also pending for consideration on the file of the learned Judicial Magistrate, Kallakurichi Range with malafide motive issued the present impugned charge memo 29/09 on 10.08.2009. As the petitioner was troubled with the malafide and motivated action of the respondents in issuing the impugned charge memo, he sought for enquiry by an independent agency such as Vigilence or CBI Officer, to find out the correct truth. But the same was also rejected by order dated 24.08.2010. Therefore, the petitioner has come to this Court challenging both the charge memo falsely motivated and the interim order rejecting the request for independent enquiry. Concludingly, learned counsel for the petitioner submitted that the When the respondents had passed an order of suspension on the ground that there was a criminal case pending against the petitioner, a Division Bench of this Court in its detailed order passed in W.A.No.1038 of 2009 has given finding that there was no criminal case pending against the petitioner for issuing the suspension order and has rightly set aside the same. By virtue of the order, the petitioner was re-instated in service. That shows that the respondents have thrown the petitioner as to their whims and fances for rightly registering a case against the Gopi and five other forest offenders for hunting of deers in Reserve Forest areas and since these forest officers who are politically connected to bigwigs wrongly issued the charge memo on the ground that the criminal case filed by the petitioner in WLR.No.2 of 2009 pending on the file of the learned Judicial Magistrate, Kallakurichi is a foisted case. It is evident from the fact that even before the competent Court gives its verdict, for the criminal case booked against the forest offenders, it is legally impermissible for the department to pre-judge the issue that the petitioner has filed a false case. To conclude his arguments, it is stated that tommorrow if in good cause, the learned Judicial Magistrate has found that the criminal case filed by the petitioner against the forest offenders is accepted by punishing the offenders, the respondents would not be in a position to make good laws that would be put against the petitioner. Therefore, he sought for interference of the impugned charge memo.
The issue needs to be addressed is whether the impugned charge memo dated 10.08.2009 issued against the petitioner finding fault with him for registering a false criminal case against one Gopi and five other forest offenders for hunting of deer in reserved forest area in WLR.No.2 of 2009 which is pending on the file of the learned Judicial Magistrate, Kallakurichi is legally maintainable or not. It is an admitted case on both sides that the petitioner has registered and a FIR was registered in Crime No.205 of 2009 by Chinnasalem Police Station against one Gopit and five other forest offenders with the allegation of hunting of deer in reserved forest area in WLR.No.2 of 2009. Subsequently, the matter was taken cognizance by the learned Judicial Magistrate, Kallakurichi and thereupon the same is pending for trial. The petitioner has also submitted his detailed explanation on 23.10.2009 to the second respondent and thereafter, finding that for having registering a criminal case against one Gopi and five other forest offenders for hunting of deer in reserved forest area he was issued with charge memo under Section 17(b) of Tamil Nadu Civil Service (Discipline & Appeal) Rules. Before the case is decided by the competent Criminal Court apprehending that the department would be giving a finding against the petitioner that he had filed a false case will ruin the pending criminal case on the file of the learned Judicial Magistrate, Kallakurichi infructuous and thereby, helping the forest offenders who are closely associated with political bigwigs requested to the respondents department to conduct an enquiry by an independent agency such as Vigilance or CBI other than the forest officers. But the respondents 1 and 2 have not taken any action to order for such enquiry. On the otherhand, the third respondent herein who was appointed as enquiry officer has also rejected his request and under this background, the petitioner has come to this Court. Therefore, the question is whether the respondents department can pre-judge the pending criminal case filed against the Gopi and five other forest offenders before the competent criminal court gives its verdict. When the petitioner has set in motion the criminal case to take its course as per law, the respondents who were not competent authority cannot legal aid in cases pre-judge the issue pending before the competent criminal court namely, the Judicial Magistrate, Kallakurichi as to whether the criminal case booked against one Gopi and five other forest offenders for hunting of deer in reserved forest area is a false one. Moreover, the malafide motive in helping the forest offenders against whom the criminal case is pending (writ large) on the face of the charge memo issued by the District Forest Officer, Kallakurichi, the second respondent herein. As it is a clearly going to favour the forest offenders, Mr.Gopi and five other forest offenders. This could be also suspected from the previous .. record created by the respondents falsely against the petitioner while an order of suspension dated..... was issued against the petitioner on the false ground that a criminal case is pending investigation against the petitioner. In fact, when there was no such criminal case pending against the petitioner, the petitioner has filed the writ petition in W.P.No.11335 of 2009, challenging the correctness of the suspension order, although the learned Single Judge had dismissed the writ petition by order dated 23.06.2009 against which Review Application No.71 of 2009 and the same was dismissed by order dated 10.07.2009 and on further filing of Writ Appeal in W.A.No.1038 of 2009 the Hon'ble First Bench of this Court after going into the minute details that there was no criminal case pending against the petitioner given finding that there was no justification for passing the suspension order had set aside the same clearly goes to show that the respondent has passed the order of suspension on a false ground that there was criminal case pending against the petitioner has again attempted to once again helping the vested interest by issuing charge memo under Section 17(b) of the Tamil Nadu (Discipline and Appeal) Rules charging the petitioner that he has filed a false case against Gopi and five other forest offenders for hunting of deer in reserved forest area in WLR.No.2 of 2009 with the ultimate motive making ruined the pending criminal case infructuous. Indeed, when the criminal Court is the only competent authority, to go into the correctness of the registration of the criminal case filed against the alleged offenders, the respondents has not authority pre-judge the issue. However, the repeated motivated charges levelled against the petitioner clearly shows that the respondents department is only clearly attempted to vested interest who are facing trial before the trial court. In that view of the matter, this court having found that the earlier suspension order had been falsely passed against the petitioner had once again attempted to interfere with the pending criminal case in favour of the accused persons, this Court is inclined to interfere with the charge memo. Accordingly, the charge memo issued under Section 17(b) of the Tamil Nadu (Discipline & Appeal) Rules is liable to be quashed. Accordingly, the same is quashed.
This Court noting the repeated vindictive motivated attempt with malafide and misuse of the office in prosecuting the good officer for discharging his duty and also wasting the precious time of the Court repeatedly is inclined to impost the cost of Rs.10,000/-(Rupees Ten Thousand Only) against the second respondent, District Forest Officer, Kallakurichi payable to the petitioner from his own salary. Accordingly, this writ petition is ordered. It is needless to mention that since the petitioner had reached the age of superannuation, the retiral benefits which the petitioner is legally entitled also shall be disbursed, within a period of four weeks from the date of receipt of a copy of this order.