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Judgment
Sathia Dev, J.—Petitioners are legal representatives of one S. Gunasekaran, who joined Government Service as a Junior Engineer and was
working under the first respondent. He filed the writ petition to quash the order of the first respondent dated 5th March, 1981 directing the period
of his suspension from 5th July, 1974 to 3rd January, 1978 to be treated as leave to which petitioner would be eligible. He dies during the
pendency of the writ petition and his legal representatives have been brought on record.
In the affidavit filed in support of the writ petition, he had stated as follows. In 1974 he was in charge of supervising the work providing laterite
soling of the 60'' road east of the Pallavan Transport Depot at Vyasarpadi. On a suspicion that he had committed certain irregularities he was
placed under suspension by order, dated 10th June, 1974 with effect from 5th June, 1974. An enquiry was conducted on a charge of illegal
gratification alleged to have been received by him from a contractor by name L. Kishtappa Chetty, and ultimately, the Chief Engineer had stated
that the conclusion arrived at by the Divisional Engineer was not a sound one based on his report. By resolution, No. 83 dated 11th April, 1978,
the Board resolved that he charges be dropped and the period of suspension to be treated as one of duty. Without giving any opportunity to
petitioner, it resiled from the said resolution and passed Resolution No. 320 to treat the period of suspension as on leave. The said penalty having
been imposed under F.R. 54, he preferred an appeal to the second respondent, and on it being rejected, he preferred the writ petition claiming
that, once a charge is dropped, it tantamounts to a total exoneration, and hence F.R. 54(2) cannot be invoked. Once first respondent took a quasi-
judicial decision as per R. No. 53, thereafter it had no jurisdiction to review the said decision and pass R. No. 320. Chief Engineer on both the
occasions having cleared him, it was at the behest of the Government alone, this adverse order had been passed and it had no jurisdiction to issue
such directives to the first respondent, particularly, when the disciplinary proceedings are dropped.
On behalf of first respondent, in the elaborate counter-affidavit filed, it is stated as follows : Gunasekaran was the Assistant Engineer put in
charge of the work for providing laterite soling to the balance width of 29'' on 60'' road east of Pallavan Transport Depot at Vyasarpadi. On 7th
June, 1974, a report was received from Vigilance stating that he had been arrested on 5th June, 1974 for his alleged recording of false cash receipt
and preparing a bill for Rs. 8,948 in favour of Contractor L. Kishtappa Chetty and for acceptance of Rs. 3,000 from the Contractor after the bill
was encashed. Based on this report, he was placed under suspension with effect from 5th June, 1974. The Vigilance report was sent by
Government in August, 1975 and he was prosecuted. As Kistappa Chetty, who had turned as an approver died on 21st September, 1975, the
Vigilance informed the Board that he said witness having died, this is a fit case for conducting departmental enquiry. Hence, a charge memo dated
19th April, 1976 was issued to him stating that he had recorded false measures and prepared a bill for Rs. 8,948/- in July, 1973 in favour of
Kishtappa Chetty and accepted a bribe of Rs. 3,000 from him. He submitted his explanation and the Enquiry Officer submitted his report. The
Divisional Engineer certified that the work carried out was of sub-standard quality. The Chief Engineer, who was apprised with the Enquiry
Report, came to the conclusion that the Divisional Engineer''s opinion was not conclusive and that he had not established that the work was sub-
standard. He also held that the bills paid at intervals did not lend credence to the allegations that payment was made without making supply. The
records of enquiry along with Chief Engineer''s (Technical) opinion were placed before the Board, and it called for more comprehensive note to be
submitted and thereafter, a comprehensive note was put up by him stating that the Measurement book does not give room for the impression that
there was any fraudulent practice. As for approver''s statement, he found that it had not been corroborated independently. Regarding evidence of
Divisional Engineer, it was held to be not conclusive, and it is not established that the compaction consolidation was only 10%, and the bills paid at
intervals do not lend credence to the allegation that he payment was made without receiving full supply. Hence, Board passed a resolution in R.
No. 83 on 27th January, 1978 resolving to drop the charge and to treat the period of suspension as one of duty. Pending issue of orders,
Government was apprised of the position, and as desired by the Government, de novo the Board again looked into the matter and then it dropped
the charges, but yet it came to the conclusion in R. No. 320 dated 22nd April, 1978 that the suspension period be treated as leave to which the
petitioner is eligible as he had not been fully exonerated of the charges framed against him. As against the decision being communicated to the
petitioner on 24th June, 1978, he preferred an appeal to the Government on 25th July, 1978. Government felt that a show cause notice should
have been issued to the petitioner as to why such a punishment should not be awarded. Thereafter, petitioner on being informed to submit his
explanation, and as the suspension was not wholly unjustified, as he had faced a departmental enquiry, the impugned order was passed.
The first contention of Mr. D. Murugesan, learned Counsel for the petitioner is that, when a decision to drop the charge had been taken under
both the resolutions, it had resulted in exoneration as contemplated under F.R. 54(2) and therefore, as held in Natarajan v. Supdt. of Police, 1975
I M.L.J. 112, petitioner would be entitled to relief under F.R. 54(2) and the impugned order is illegal. In R. No. 83, it was also decided that the
period of suspension should be treated as one on duty because the charge had been dropped. This was not communicated to him. In R. No. 320,
the decision earlier taken to drop the charge was never varied, but it was confined only to treating the period of suspension as leave which he is
eligible. Before the two resolutions were passed, on each occasion, the Chief Engineer had submitted elaborate reports. Though learned Counsel
for the first respondent-Board, would claim that the Divisional Engineer had entertained misgiving about what Gunasekaran had done, it is
unexplained as to how in spite of firm opinion expressed by Chief Engineer who is a superior officer to that of the Divisional Engineer, and who had
been asked by the Board more than once to go through the entirety of the records and submit his opinion based on facts and figures, still the view
expressed by a subordinate officer is relied upon by Board at this stage. In submitting a note to the Board before R. No. 83 was passed, the Chief
Engineer has expressed his anguish that Gunasekaran had fallen into the hands of police, who made an attempt to spread out a wider net in a case
taken by them, which was an off shoot of another enquiry held in the some area. As Chief Engineer, having the expertise to understand the contents
of the records, he had stated that a scrutiny of the Measurement Book does not give room for the impression that there was any fraudulent
practice. After looking into the statement made by the contractor, he found that it was not corroborated by any other material on record. There
was evidence of another person by name Mohamed Ibrahim and that was not found to be conclusive and that it has not been established that the
compaction consolidation was only 15%. He opined that the Divisional Engineer had made this co-efficient in an arbitrary manner. Even regarding
payment for bills produced, he found that they did not lend any credence to the allegation that they were made without his making full supply. Once
again, when the Board asked him to submit a more detailed report, he was more categoric than what he had stated earlier. Though Divisional
Engineer gave opinion that the compaction factor was only 15%, in Court while giving evidence, he had stated that the compaction of laterite could
range between 35 and 40%. This would mean that there was no sub-standard execution of work, and this was the reason why an erroneous view
expressed by the Divisional Engineer in the departmental enquiry was not acceptable to Chief Engineer. As pointed out, when a superior officer
had considered the prevaricating statements and the unreliable opinion of subordinate officer and apprised the Board on two occasions with facts
and figures as to how far such a view was erroneous, it is quite strange that for the purpose of the writ petition, first respondent-Board is relying
upon the opinion of the subordinate officer and not that of the Chief Engineer, whose opinion found acceptance to the Board, while it passed the
two resolutions. Therefore, there is very little substance in the contention of the learned Counsel for the first respondent Board that late
Gunasekaran was not fully exonerated. In the counter-affidavit, in six places, it is stated that as the petitioner had not been fully exonerated from
the charge framed against him, the impugned order as passed is correct. Equally, it is admitted that the charges framed against him had been
dropped. As held by the Division Bench, once the charge is dropped, it could only mean that delinquent had been fully exonerated. Dropping of
charges and at the same time to claim that the delinquent had not been fully exonerated, cannot co-exist. It is only because of this erroneous view
that he had not been fully exonerated, the impugned order came to be passed. Once in law it is held that on charges being dropped, it leads only to
exoneration, then F.R. 54(2) cannot apply. Hence, first respondent was in error in holding that in spite of charge being dropped, still he had not
been fully exonerated, and in turn the suspension was justified. Counter-affidavit is confined only to the aspect of exoneration and does not seek to
claim that an opinion was arrived at by the Board that suspension was justified, and therefore, he had passed an order holding that the period of
suspension is treated as leave to which he was entitled to.
But another contention taken is that dropping of charge in R. No. 23 having been taken pertaining to disciplinary proceedings, at best it is a
quasi-judicial decision, the Board had no jurisdiction later on the review its own decision. On behalf of the respondent, it is contended that the said
order was never communicated to him. But, while disposing of the appeal, the Government had become aware of it. It is not disputed that such a
resolution had been passed. Alongside, a decision had been taken that the period of suspension would be treated as on duty. Learned counsel for
the petitioner relies on State of Haryana v. Roshan Lal, which took the view that an order of the quasi-judicial officer cannot be reviewed by him it
had been communicated, not for compliance, even though not communicated to the concerned party. As petitioners succeed on the point already
dealt with, it is needless to investigate as to what had actually transpired in this matter on this aspect.
Hence, the writ petition is allowed with costs, and the petitioners as legal heirs of late Gunasekaran are entitled to seek amounts which have
become payable, after deducting subsistence allowance paid during the relevant period. Counsel fee Rs. 500/- to be paid by Board.