Research › Search › Judgment

Madras High Court · body

2014 DIGILAW 2247 (MAD)

N. P. Krishnan v. State of Tamil Nadu

2014-07-25

R.MAHADEVAN

body2014
Judgment 1. The writ petition has been filed for a Writ of Certiorarified Mandamus to call for the records in pursuance of the impugned orders passed by the third respondent in Na.Ka.No.17484/99/C1, dated 30.03.2001 and the consequential appellate order passed by the second respondent in Na.Ka.No.39579/2001/H2, dated 04.05.2006 and the Revision Order passed by the first respondent in Government Order [Ten Years] No.51 Municipal Administration and Water Supply [Na.Pa.1] Department, dated 09.02.2007 and quash these orders and consequently direct the third respondent to reinstate the petitioner in service with all attendant and monetary benefits. 2. The brief facts of the case of the petitioner, are follows: 2.1. The petitioner had been working as Junior Assistant in the 3rdrespondent Municipality from 27.08.1991. The petitioner was placed under suspension by the 3rdrespondent on 24.12.1999 for misappropriation and forgery with two others. The petitioner paid the sum of Rs.1,25,030/-(Rupees One Lakh Twenty Five Thousand and Thirty only) under the belief that he would be reinstated into service. However, a charge memo was issued on 09.03.2000. The charges against the petitioner are as follows: “LANGUAGE” 2.2. Subsequently, an Enquiry Officer was appointed and the petitioner also participated in the enquiry. The Enquiry Officer submitted a report holding that all the charges against the petitioners were proved based on the documentary evidence. The report was furnished to the petitioner and his explanation was sought for. The petitioner had also submitted an explanation. After considering the explanation and the report along with the documentary evidence, the services of the petitioner were terminated by the 3rdrespondent. Aggrieved over the same, the petitioner filed O.A.No.2832 of 2001 and obtained an order of interim stay. As against the interim order of the Tribunal, the 3rd respondent filed W.P.No.22222 of 2002. The said writ petition was disposed of by this Court with a direction to the Tribunal to dispose of the Original Application within four months and till such time, status quo was directed to be maintained. The petitioner subsequently withdrew the O.A and filed an appeal before the 2nd respondent. The appeal was rejected by the 2nd respondent. The revision petition filed challenging the order passed by the 2nd respondent, was also dismissed. Aggrieved thereby, the petitioner is before this Court. 3. The petitioner subsequently withdrew the O.A and filed an appeal before the 2nd respondent. The appeal was rejected by the 2nd respondent. The revision petition filed challenging the order passed by the 2nd respondent, was also dismissed. Aggrieved thereby, the petitioner is before this Court. 3. The Counsel for the petitioner vehemently contended that the petitioner has been falsely implicated in the case as the petitioner was working in different schemes where the malpractices and misappropriation took place. The Counsel further contended that the amounts from the shelter scheme account was withdrawn by one Thirumalai and Raghavan. The Counsel further contended that since the police complaint was dropped on the same charges, the 3rd respondent ought not to have proceeded with the enquiry. The Counsel further contended that in view of the letter of the 2ndrespondent, the appointment of the manager of the municipality is vitiated. Further, the denial of opportunity to examine Thirumalai amounts to violations of the principles of natural justice. The Counsel further placing reliance upon the judgment of this Court in 2007(2) Writ L.R 52 contended that the action of the 3rd respondent was discriminatory as different yard stick had been observed with regard to other delinquents and therefore, he sought for setting aside of the impugned orders. 4. Per contra, the Counsel for the respondents contended that there is no perversity in the orders passed by the respondents. The punishment of termination from service was awarded only after considering the documentary evidence that the funds from the account of Raghavan to the tune of Rs.49,500/- had ultimately been transferred to the account of the petitioner. The Counsel further contended that the petitioner and others misappropriated public funds by forging the signature of the 3rd respondent in cheques and letters and therefore the conduct of the petitioner deserves no indulgence and sought the dismissal of the writ petition. 5. Heard both sides and perused the materials available on record. 6. The first contention that the Enquiry Officer was not competent to enquire into matter as the appointment is contrary to the instructions of the 2nd respondent, is unsustainable. Such a ground has been taken for the first time before this Court. Further, the petitioner having participated in the enquiry, cannot challenge the appointment of the Enquiry Officer. 6. The first contention that the Enquiry Officer was not competent to enquire into matter as the appointment is contrary to the instructions of the 2nd respondent, is unsustainable. Such a ground has been taken for the first time before this Court. Further, the petitioner having participated in the enquiry, cannot challenge the appointment of the Enquiry Officer. If the petitioner was aggrieved by any of the acts of the Enquiry Officer, he ought to have approached the Court at the earliest point of time. Having not found any bias or prejudice, the petitioner cannot question the appointment at this stage. 7. In the judgment relied upon by the Counsel for the petitioner in N. Nandagopalan Vs. The Secretary to Government reported in 2007 Writ L.R. 52, this Court has held as follows: “9. It is well settled in law that if employees are involved in the same incident, the Department should proceed against all or should not proceed against none. There is no discretion to proceed against some of employees and no action against the other employees, since they are identically placed and their involvement being identical. In the instruction submitted by the Government Advocate, it is not stated as to how the petitioner's involvement is not similar to other 28 persons. In the absence of such distinct feature, the proceedings conducted by the respondent against the petitioner and imposing punishment on the basis of the charge is illegal and hence the impugned order is set aside.” The facts of the above case are completely different. In the above case, the allegations were against 29 persons including the petitioner therein. The charges were pressed against the petitioner therein alone and no action was initiated against the remaining 28 persons. It is under those circumstances, the order came to be passed by this Court. 8. In the case on hand, the charges were framed against all the three delinquent employees and punishments have been awarded. Therefore, the above judgment is not applicable to the present facts of the case. 9. The next contention of the petitioner that since the police authorities have dropped the proceedings, the 3rd respondent also ought to have dropped the proceedings, cannot be accepted in view of the settled proposition of law that even an acquittal in criminal proceedings would not entitle the delinquent employee to get the charges dropped. 9. The next contention of the petitioner that since the police authorities have dropped the proceedings, the 3rd respondent also ought to have dropped the proceedings, cannot be accepted in view of the settled proposition of law that even an acquittal in criminal proceedings would not entitle the delinquent employee to get the charges dropped. The enquiry by the police is for criminal prosecution and the domestic enquiry is to take appropriate action for the misconduct to bring disrepute to the institution. The findings and the statements before the police authorities, can only be looked into for ancillary purposes, like, to test the credibility of the witnesses. But, when the act of misconduct is evident from documents, as in this case, the petitioner cannot take shield under the police officers report or statements made to a police officer. 10. Similarly, the argument of the Counsel for the petitioner that the petitioner was in different scheme when the misappropriation took place, also does not hold water. From the documents, it is clear that the cheques were in the custody of the petitioner and the same were handed over to Raghavan. The amounts have been withdrawn and credited to the account of Raghavan and later on various dates between 08.10.1999 and 21.10.1999, Rs.49,500/-(Rupees Forty Nine Thousand and Five Hundred only) has been transferred to the account of the petitioner from the account of said Raghavan. There is no explanation from the petitioner to this transfer. The collusion is patently evident. Being entrusted with the job of handling the public money and having misappropriated the same, the petitioner must have forseen the consequences of his misconduct. The 2nd respondent has passed a detailed order after considering the explanation of the petitioner and the same has been affirmed by the 1strespondent. 11. This Court does not find any sufficient reason to interfere with the impunged orders. Hence the writ petition fails. At the fag end of the arguments, the Counsel for the petitioner submitted that one periyasamy had been let off with a comparatively minor punishment of stoppage of increment for 5 years and that the petitioner had already submitted a mercy petition dated 12.12.2006 along with sufficient documents. But, the same had not been considered before the orders were passed by the 1strespondent on 09.02.2007 and therefore, he sought for a direction to the 1strespondent to consider the same and pass orders. 12. But, the same had not been considered before the orders were passed by the 1strespondent on 09.02.2007 and therefore, he sought for a direction to the 1strespondent to consider the same and pass orders. 12. Considering the fact that the petitioner has allegedly obtained certain documents in support of his contentions subsequent to the impugned proceedings, the 1strespondent shall consider the same and pass orders within 4 weeks from the date of receipt of copy of this order. 13. With the above direction, the writ petition stands dismissed. No costs.