Madras High Court
K.Kandhamani vs Government Of Tamil Nadu on 30 August, 2022
Author: S.M.Subramaniam
Bench: S.M.Subramaniam
W.P.No.2141 of 2015
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 30.08.2022
CORAM
THE HONOURABLE MR.JUSTICE S.M.SUBRAMANIAM
W.P.No.2141 of 2015
K.Kandhamani ...Petitioner
Vs.
1.Government of Tamil Nadu,
Rep.by Principal Secretary to Government,
Commercial Taxes and Registration (K) Department,
Secretariat,
Chennai – 600 009.
2.The Inspector – General of Registrations,
Chennai – 600 028. ..Respondents
Prayer : Writ Petition filed Under Article 226 of the Constitution of India,
to issue a Writ of Certiorarified Mandamus, calling for the records relating
to orders in (1) G.O.(D)No.363, Commercial Taxes and Registration (K)
Department dated 19.9.2014 of the first respondent and (2)
Pro.No.47767/B2/2009 dated 23.3.2012 of the second respondent to quash
the same and to issue consequential direction to the respondents to reinstate
the petitioner in service to regularize the period of suspension from
29.9.2009 to 28.2.2011 as duty for all purposes and to permit her to retire
from service on 31.10.2010 AN on attaining the age of superannuation
without any condition, with all consequential benefits including all
retirement and pensionary benefits and disburse the arrears thereof with
interest within a time frame.
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W.P.No.2141 of 2015
For Petitioner : Mr.Vishnu Mohan
For Respondents : Mrs.R.L.Karthika
Government Advocate
ORDER
The order of dismissal from service has been confirmed by the 1 st respondent / Government are under challenge in the present writ petition.
2. The petitioner joined as Section Writer in the Registration Department in the year 1982. She was promoted up to the Level of Sub Registrar in 2007. The petitioner was placed under suspension on 29.09.2009 and a charge memo under Rule 17(b) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules was issued against the petitioner on 28.10.2009. The petitioner states that she had submitted a representation on 09.01.2010 and requested the second respondent to furnish the copies of certain documents and such documents were not communicated to the writ petitioner. The respondents appointed the Enquiry Officer even before receiving explanation from the writ petitioner. The petitioner appeared before the Enquiry Officer on 12.03.2010 and her statement was recorded, wherein, the petitioner represented that the copies of the documents sought for by her were not furnished and Subsistence Allowance was not paid. The petitioner contended that soon after the copies of the documents are https://www.mhc.tn.gov.in/judis 2/16 W.P.No.2141 of 2015 furnished as requested by her, she will be in a position to submit her explanations. The Enquiry officer conducted the enquiry on various dates between 12.03.2010 and 16.12.2010. He submitted the enquiry report on 27.12.2010 to the second respondent, holding that out of 10 charges framed against the writ petitioner, charges 1, 3, 5, 6 and 7 are held proved and remaining charges 2, 4, 8, 9 and 10 are held not proved. The second respondent in memo dated 12.01.2011 furnished the copy of the enquiry report to the petitioner for submitting further representation on the findings of the enquiry officer. The petitioner submitted her further representation, disputing the findings of the enquiry as perverse and not based on the evidences on record. Meanwhile, the petitioner was not permitted to retire from service on 28.02.2011 and her services were retained on account of the pendency of the disciplinary proceedings. Finally, the second respondent passed the impugned order of dismissal from service in proceedings dated 23.03.2012. The petitioner preferred an appeal on 13.06.2012 and the first respondent/Government rejected the same in G.O.(D).No.363, Commerical Taxes and Registration Department dated 19.09.2014. Thus, the petitioner is constrained to move the present writ petition.
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3. The learned counsel for the petitioner mainly contended that though the enquiry officer held that the charges 1, 3, 5, 6 and 7 are held proved, subsequently, the third charge was also dropped. Thus, the petitioner was imposed with the penalty of dismissal from service based on the proved charges namely 1, 5, 6 and 7. Regarding the said charges also, the request of the petitioner to furnish the documents were not complied with by the respondents and thus, the respondents had violated the principles of natural justice. The learned counsel for the petitioner further contended that there is no proof to establish regarding the allegations of demand and acceptance of bribe of Rs.50,000/- When the witnesses examined by the prosecution, deposed that the petitioner has not received any such bribe, there is no reason whatsoever to form an opinion that the petitioner received bribe of Rs.50,000/-. It is contended that in the absence of any such evidence to establish demand and acceptance of bribe, the punishment of dismissal from service is excessive and perverse.
4. The learned counsel for the petitioner regarding the proved charges 1, 5, 6 and 7, contended that the said charges were also not proved based on the evidences, more specifically, charge 5 has not been established as the demand and acceptance of bribe was not proved by the prosecution. The https://www.mhc.tn.gov.in/judis 4/16 W.P.No.2141 of 2015 time asked for by the petitioner to cross-examine the witnesses were also not granted and therefore, the principles of natural justice has been violated. The other charges 6 and 7 are also held as proved only based on certain presumptions and for all these reasons, the orders impugned are liable to be set aside.
5. The learned Government Advocate appearing on behalf of the respondents objected the said contention raised by the learned counsel for the petitioner by stating that the petitioner was placed under suspension on 29.09.2009. A charge memo was issued on 28.10.2009, framing 10 charges under Rule 17(b) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules. The enquiry officer held that the charges 1, 3, 5, 6 and 7 are held proved. On the date of superannuation of the writ petitioner on 28.02.2011, she was not permitted to retire from service. Opportunities as contemplated under the Discipline and Appeal Rules were provided to the writ petitioner and considering the gravity of the proved charges, punishment of dismissal from service was imposed, which was confirmed by the Appellate Authority/Government in G.O.(D).No.363, Commerical Taxes and Registration Department dated 19.09.2014.
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6. Regarding the contentions of the writ petitioner, the respondents have stated that in respect of Charge No.1, the sum of Rs.10,000/- and Rs.5000/- being flag day collections collected from public were deposited in the Bank Account in the name of the Sub Registrar of R.K.Pet. Such amounts ought to have been sent by demand draft to the Assistant Director of Ex-servicemen Welfare Board. But the Petitioner had withdrawn a sum of Rs.8000/- on 17-08-2009 and another sum of Rs.6000/- on 19.08.2009 for her personal use. When the District Registrar of Kancheepuram on inspection of the said office questioned about the cash of Rs.14,000/- the Petitioner could not answer for the same and the said amount was immediately deposited in the Bank account, i.e. one month after withdrawal by the Petitioner for her personal use. Hence, the charges against her were proved. Charge No.5 relates to demand and acceptance of bribe of Rs.50,000/ by the Petitioner from Mr.Thiagarajan, for registering a settlement deed in favour of his son consisting of 116 plots. The complainant Mr. Thiagarajan, has deposed before the inquiry officer that he had adopted the guideline value of Rs.60/- per sq.ft. but the petitioner has stated that there is discrepancy in the documents and that she had demanded Rs.50,000/- for registering the settlement deed and that he had given the said amount to the petitioner for registering the settlement deed. On the date https://www.mhc.tn.gov.in/judis 6/16 W.P.No.2141 of 2015 of inquiry, the petitioner was allowed to cross examine the complainant Mr.Thaigarajan, but the Petitioner instead of cross examining the Petitioner sought 10 days time for the same so as to drag on the inquiry. The allegations of the Petitioner that she was enquired from 5 PM to 8.30 PM and apart 9 PM, as a lady delinquent, the Petitioner cannot be made to remain for the inquiry, but the inquiry officer had turned down her request as an afterthought. When a serious allegation against the petitioner has been made, the petitioner did not cross examine the complainant and during the personal hearing before the 2nd respondent also, has not placed any reliable material to disprove the allegations. Hence, the charges against her were proved.
7. The respondents have further stated that Charge No.6, the contention of the Petitioner is not sustainable. One Mr.Thiagarajan had appointed Mr.Dhanasekar as his power agent and the said power of attorney document was registered as Doct.No. 1621 of 2008 in Sub Registrar Office, Walajah. Subsequently, the said Mr.Thiagarajan cancelled the said power vide Doct.No.236 of 2009 of Sub Registrar Office, Walajah on 13.03.2009 and sent a copy of the Deed of Cancellation of General Power of Attorney by certificate of post on 13.03.2009 to the Petitioner. The Petitioner https://www.mhc.tn.gov.in/judis 7/16 W.P.No.2141 of 2015 discarded the said copy as if the same was not informed either by the aforesaid Mr.Thiagarajan or by the Sub Registrar of Wallajabad and registered the sale deeds executed by the agent Dhanasekar as Power Agent of Mr.Thiagarajan based on the Deed of General Power of Attorney in violation of Sec.34(3)(c) of the Registration Act. The copy of the certificate of posting produced by Mr.Thiagarajan has been perused by the inquiry officer. The petitioner, even after receipt of the notice continued to register the sale documents executed by the power agent on 22.06.2009 and 24.06.2009. Hence, the contention of the Petitioner is not sustainable on facts. Regarding charge No.7, the Petitioner has given a wrong report to the District Registrar of Kancheepuram in her letter No.3/2009 dated. 19-01- 2009 that she had fed the date of the registered documents in Index Form No.II upto the year 2007 and the details of registered documents from 01- 01-2008 was being entered in the computer. On the inspection of the Sub Registrar's Office, R.K.Pet by the District Registrar of Kancheepuram, it was found that as regards 20 documents pertaining to the year 2006 and 672 documents relating to the year 2007 was left to feed in the computer. Whereas the delinquent officer deposed before the Inquiry officer that the aforesaid details of documents were entered in the old computer and the same were when transferred to the new computer the same were destroyed. https://www.mhc.tn.gov.in/judis 8/16 W.P.No.2141 of 2015 But the Petitioner had not recorded the defects in the register prescribed for the said purpose to prove her contention and not produced any letter informing the same to the District Registrar and thus was negligent in keeping the records in proper manner. The flag day collections to the tune of Rs.14,000/- was withdrawn by the Petitioner and temporarily misappropriated the same nearly for one month which was intended for the welfare of ex-servicemen. Further the Petitioner has obtained the bribe of Rs.50,000/- for fixation of value for the layout and she failed to cross examine the complainant in this regard and sought 10 days time so as to prolong the inquiry. Even though the General Power was cancelled and the fact was intimated by the principal by certificate of posting, the Petitioner discarded the same and registered the sale deeds executed by the Agent so as to create a cloud over the ownership of the owner of the properties. Though the Petitioner being a Sub Registrar, bound to keep the records of the public intact, she failed to keep the data of registered documents in Index-II format in the computer which is intended for issuance of encumbrance certificate and relied on by the public and thus worked in perfunctory manner with negligent attitude. Hence, the punishment of dismissal of the Petitioner from service by the 2nd respondent and the dismissal of the appeal filed by the Petitioner before the 1 st respondent are https://www.mhc.tn.gov.in/judis 9/16 W.P.No.2141 of 2015 based on the grave charges against the petitioner which were proved beyond doubts.
8. The respondents have stated that two more disciplinary proceedings were pending against the writ petitioner during the relevant point of time. Since she was dismissed from service and ceases to be a Government Servant, the disciplinary proceedings could not be finalized.
9. The Court in the exercise of judicial review must restrict its review to determine whether:
(i) The rules of natural justice have been complied with
(ii) The finding of misconduct is based on some evidence
(iii) The statutory rules governing the conduct of the disciplinary enquiry have been observed
(iv) Whether the findings of the disciplinary authority suffer from perversity
(v) The penalty is disproportionate to the proven misconduct.
10. In the present case, the charge memorandum was issued and the petitioner participated in the process of enquiry. The grounds raised by the petitioner that the relevant documents were not furnished to her is unsustainable on the ground that she participated in the enquiry and perused https://www.mhc.tn.gov.in/judis 10/16 W.P.No.2141 of 2015 those documents. She was allowed to cross-examine the witnesses. Instead of cross-examining the witnesses, the petitioner has unnecessarily requested for grant of time, which was rejected. Once the examination of witnesses commenced, unnecessary delay is to be avoided. Prolongation of examination of witnesses would cause prejudice to the prosecution and there is a possibility of tampering the witnesses. Once the prosecution examined the witnesses, then without any valid reason, adjournments should not be granted for further examination or cross-examination. In the present case, without any valid reason, the petitioner requested for adjournment, which was rejected. Such a rejection cannot be construed as violation of principles of natural justice. The petitioner had an opportunity to cross- examine and she was holding the post of Sub-Registrar, ought to have cross- examined the witnesses. However, she had intentionally not cross-examined and therefore, now she cannot turn around and say that no opportunity was granted. Opportunity for cross-examination was granted, but the petitioner had not availed the same. Thus, this Court cannot form an opinion that the principles of natural justice has been violated. The delinquent officials, while participating in the enquiry proceedings, adopts several methods to dilute the enquiry proceedings or to escape from the clutches of the departmental disciplinary proceedings. Therefore, the Courts are bound to https://www.mhc.tn.gov.in/judis 11/16 W.P.No.2141 of 2015 examine, whether the proceedings as contemplated under the Rules were given to the delinquent officials or not. Once such an opportunity was granted in accordance with the rules to the charged official, then there is no reason to form an opinion that the delinquent official has not cross-examine or not perused the documents. Such an approach in departmental proceedings would cause prejudice to the interest of the public administration. Strict proof is required to punish an employee under the Discipline and Appeal Rules unlike the criminal proceedings. Preponderance of probabilities are enough to punish an employee. Thus, the opportunities contemplated under the Discipline and Appeal Rules are provided to the charged officials, which would be sufficient to form an opinion that the authorities have not violated the principles of natural justice.
11. In the present case, Charge Nos.5 and 6 are grave in nature. There is an allegation of demand and acceptance of bribe. In view of the fact that there is no strong evidence to prosecute the petitioner under the criminal law, the departmental disciplinary proceedings were initiated. The complainant also has deposed before the enquiry officer that the petitioner had demanded Rs.50,000/- which he handed over in her office and at that https://www.mhc.tn.gov.in/judis 12/16 W.P.No.2141 of 2015 point of time, one Mr.Ravi/Unlicensed document writer was also along with the complainant. When such a deposition was given before the departmental enquiry officer and based on such a deposition of a third party complainant is relied on for the purpose of imposing the punishment, there is no reason for this Court to interfere with the findings or the punishment imposed. The other charges are also grave in nature. The proved charges against the writ petitioners are sufficient enough to impose the penalty of dismissal from service. Penalty cannot be construed as disproportionate as it relates to demand and acceptance of bribe, which was proved before the Enquiry officer. The third party complainant was examined by the Enquiry officer, who in turn, deposed in clear terms, the petitioner could not able to establish any motive or otherwise against the complainant, so as to disbelieve his deposition and that being the facts and circumstances, there is no infirmity in concluding the departmental disciplinary proceedings as per the procedures contemplated and the Government also considered the facts and circumstances as well as the grounds raised by the petitioner and rejected the appeal.
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12. Thus, this Court do not find any infirmity or reason to interfere with the quantum of punishment of dismissal from service imposed on the writ petitioner as confirmed by the Government.
13. Consequently, the writ petition stands dismissed. No costs.
30.08.2022 Index : Yes Speaking order:Yes kak https://www.mhc.tn.gov.in/judis 14/16 W.P.No.2141 of 2015 To
1.The Principal Secretary to Government, Government of Tamil Nadu, Commercial Taxes and Registration (K) Department, Secretariat, Chennai – 600 009.
2.The Inspector – General of Registrations, Chennai – 600 028.
https://www.mhc.tn.gov.in/judis 15/16 W.P.No.2141 of 2015 S.M.SUBRAMANIAM, J.
kak W.P.No.2141 of 2015 30.08.2022 https://www.mhc.tn.gov.in/judis 16/16