I. Joseph Lourdhunathan vs The State of Tamil Nadu and The Director, Fire and Rescue Services Department

A. Kulasekaran, J.—The petitioner has come forward with this writ petition praying for a Writ of Certiorari calling for the records of the first

respondent in G.O.2 (D) No. 55 Home (SC) Department dated 16.02.2005 and quash the same.

The petitioner joined the Fire and Rescue Services Department as Station Fire Officer on 09.04.1979, after 25 years of service, he was

promoted as Assistant Divisional Officer on 01.09.1995. In the meanwhile, on 07.06.1993, when the petitioner was serving as Station Fire Officer

in Tirupur, M/s. Best Cotton Mills (P) Ltd, Dharapuram met with a fire accident. On 10.06.1993, one Namashivayam, Deputy Director, Fire and

Rescue Service Department, Western Range, Coimbatore inspected the place of accident and the petitioner also accompanied him since the

station fire officer, Dharapuram was on casual leave between 09.06.1993 and 11.06.1993. On hearing the visit of Deputy Director

Namashivayam, the Station Fire Officer, Dharapuram cancelled his leave and he also visited the said place of occurrence. The petitioner reached

the mill at 11.00 am and the deputy director entered the mill at 1.30 p.m. After completing the inspection, the Deputy Director left the mill at 2.00

p.m. At 2.30 p.m., the station fire officer, Dharapuram also left the mill, however, the petitioner, under the instructions of the deputy director

allegedly remained in the mill to assess the loss and the safety measures provided in the mill. After assessing the loss, the petitioner allegedly left the

mill at 3.55 p.m. and returned to Tiruppur. On 28.06.1993, the Managing Director of the said M/s. Best Cotton Mills (P) Ltd, Dharapuram

preferred a complaint to the Secretary, Home Department, Chennai alleging that on 10.06.1993 at 12.40 pm the deputy director Namashivayam

and the petitioner visited the mill, inspected the affected areas as well as the machineries and told the staff of the mill that their report would be

issued, which are required for claiming compensation, only after payment of Rs. 30000/- as illegal gratification, which was stated to have been

protested by one of the staff Gnanaraj, however, after negotiations, the said amount was reduced to Rs. 12,000/- which was also paid later to

deputy director Namashivayam. Pursuant to the said complaint, a charge memo dated 26.08.1997 was issued containing two charges and they

are:

That actuated by corrupt motive and abuse of your (Accused officers 1 and 2) official position and authority and with intent to secure wrongful

gain while you (Accused Officer-1) were working as Deputy Director of Fire Services, Western Region, Coimbatore and you (Accused Officer-

2) were working as Station Fire Officer, Tiruppur, you (Accused Officer-2) demanded a sum of Rs. 30,000/- as bribe from Thiru.P.A. Gnanaraj,

the office incharge of Best Cotton Mills (P) Ltd, Dharapuram in between 14.00 and 14.30 hrs. on 10.06.1993 on behalf of Accused Officer-1 and

reduced the same to Rs. 12,000/- for giving favourable report by Accused Officer-1, to enable the claim of compensation from Insurance

Company. Accused Officer-1 demanded and accepted Rs. 12,000/- as illegal gratification from P.S. Gnanaraj at or about 16.30 hrs. on

10.06.1993 at the Fire Station, Dharapuram.

That you (Accused Officer-1) engineered a false and forged letter dated 27.06.1994 addressed to the then Secretary to the Government, Home

Department as from M/s. Best Cotton Mills (P) Limited, Dharapuram in order to escape from the charge of demand and acceptance of illegal

gratification of Rs. 12,000/- from Thiru. P.S. Gnanaraj, M/s. Best Cotton Mills (P) Ltd, Dharapuram.

On receipt of the charge memo, the petitioner has submitted his explanation. Thereafter, the case was sent to Tribunal for Disciplinary

Proceedings and it was taken on file by it as TDP No. 1 of 1997. Before the Tribunal, the respondents/department has examined 9 witnesses

namely Pws 1 to 9 and marked Exs. P1 to P11. On the side of the petitioner, Dws 1 to 5 were examined and Exs. D Ex.1 to 9 were marked. The

Tribunal, after consideration of the oral and documentary evidence found that the charges are proved against the petitioner and the said

Namashivayam and submitted its report on 30.06.2000 for which the petitioner also submitted his explanation dated 25.09.2000. Based on the

said report, the first respondent issued G.O.2(D) No. 55 dated 16.02.2005 imposing the punishment of reduction in rank by one stage for a

period of two years to the petitioner, which is challenged in this writ petition.

Mr. G. Rajagopalan, learned Senior counsel appearing for the petitioner submitted as follows:

So far as the charges are concerned, the respondents have examined Pws 1 to 9, in which the evidence of Pws 2, 5 and 9 are relevant, who were

examined to speak about the alleged role of the petitioner in demand and receipt of bribe, similarly, among the documentary evidence namely Exs.

P1 to P11, Exs. P1, P5, P6 and P7 were marked in respect of the charges. It is alleged by the respondents that the petitioner and the said

Namashivayam with corrupt practice and abuse of official position, with an intention to secure wrongful gain of Rs. 30000/- and the petitioner on

behalf of the said Namashivayam made a demand from PW2, Gnanaraj, Office in-charge of Best Cotton Mills, Dharapuram between 14.00 and

14.30 hours on 10.06.1993, after negotiation, the said amount was reduced to Rs. 12,000/- in order to give a favourable report. It is further

alleged that the petitioner had confirmed the said demand over telephone on the same day at 15.30 hours from the fire station, Dharapuram and the

said amount of Rs. 12,000/- was received by Namashivayam at about 16.30 hours on 10.06.1993 at the fire station, Dharapuram from PW2.

Ex.P6 and P7 are inward and outward registers maintained by the said M/s. Best Cotton Mills, Dharapuram wherein the entry and exit of the

petitioner, Namashivayam and PW5 are found mentioned in which the outward register Ex.P7 is more relevant wherein it is clearly mentioned that

at about 14.00 hours, the said Namashivayam left the mill; at 14.30 hours, PW5 left; at 15.45 hours, PW2 left and at 15.55 hours only, the

petitioner left, thus, till 15.55 hours, the petitioner was inside the mill, whereas, it is averred falsely in the charge that the petitioner confirmed the

amount of Rs. 12,000/- and telephoned to PW2 from the fire office, Dharapuram at 15.30 hours. The said contradiction goes to the root of the

charge and prove beyond reasonable doubt that the charges levelled against the petitioner are false. The charges framed against the petitioner is

based on the complaint dated 28.06.1993 preferred by PW1, Managing Director of M/s. Best Cotton Mills (P) Limited, wherein he did not

specify anything against the petitioner, besides that the prosecution witnesses have also not stated that the amount was paid to the petitioner. There

is an extraordinary delay in concluding the disciplinary proceedings, which is evident that the occurrence took place in the year 1993, charge memo

was issued in the year 1997, the Tribunal submitted its report on 30.06.2000 and the impugned order of punishment was passed on 16.02.2005,

thus, 12 years have lapsed from the date of occurrence till the date of passing the impugned order. In view of the above said delay, the petitioner

has suffered enough and more on account of the disciplinary proceedings, his promotional aspects were totally paralysed and his juniors were

promoted as Divisional Fire Officer with effect from 20.03.2003 and prayed for quashing of the impugned order. In support of this contention, the

learned Senior counsel for the petitioner relied on the below mentioned decisions:

i) (P.V. Mahadevan v. Managing Director, Tamil Nadu Housing Board) 2005 SCC 861, wherein the Honourable Supreme Court in Para - 10

and 11, it was held thus:

Section 118 specifically provides for submission of the abstracts of the accounts at the end of every year and Section 119 relates to annual

audit of accounts. These two statutory provisions have not been complied with at all. In the instant case, the transaction took place in the year

1990. The expenditure ought to have been considered in the accounts of the succeeding year. In the instant case the audit report was ultimately

released in 1994-95. The explanation offered for the delay in finalising the audit account cannot stand scrutiny in view of the above two provisions

of the Tamil Nadu Act 17 of 1961. It is now stated that the appellant has retired from service. There is also no acceptable explanation on the side

of the respondent explaining the inordinate delay in initiating departmental disciplinary proceedings. Mr. R. Venkataramani, learned Senior counsel

is appearing for the respondent. His submission that the period from the date of commission of the irregularities by the appellant to the date on

which it came to the knowledge of the Housing Board cannot be reckoned for the purpose of ascertaining whether there was any delay on the part

of the Board in initiating disciplinary proceedings against the appellant has no merit and force. The stand now taken by the respondent in this Court

in the counter-affidavit is not convincing and is only an afterthought to give some explanation for the delay.

Under the circumstances, we are of the opinion that allowing the respondent to proceed further with the departmental proceedings at this

distance of time will be very prejudicial to the appellant. Keeping a higher Government official under charges of corruption and disputed integrity

would cause unbearable mental agony and distress to the officer concerned. The protracted disciplinary enquiry against a government employee

should, therefore, be avoided not only in the interests of the government employee but in public interest and also in the interests of inspiring

confidence in the minds of the government employees. At this stage, ti is necessary to draw the curtain and to put an end to the enquiry. The

appellant had already suffered enough and more on account of the disciplinary proceedings. As a matter of fact, the mental agony and sufferings of

the appellant due to the protracted disciplinary proceedings would be much more than the punishment. For the mistakes committed by the

department in the procedure for initiating the disciplinary proceedings, the appellant should not be made to suffer.

ii) In D. Amaladoss Vs. The State of Tamil Nadu and The High Court of Judicature at Madras, a division Bench of this Court held in Para-21 and

25 thus:

Though we cannot re-appreciate the evidence recorded during the course of enquiry conducted by the Enquiry Officer, but we are satisfied on

the overwhelming material available on record and after going through the entire deposition of PW1 and PW2 and the explanation offered by the

petitioner that the enquiry officer should not have held that the Charge No. 1 is proved against the petitioner. As per the judgment relied on by the

learned Senior counsel for the petitioner in Bani Singh case, cited supra, wherein the Supreme Court has interfered with the punishment where

there was a delay of 12 years from the date of issuance of the charge-sheet and the imposition of penalty. In the present case also, it took nearly

six years to complete the enquiry and impose the punishment. Therefore, we are satisfied that the findings with regard to Charge Nos. 1 and 2 are

to be set aside.

In A.M. Sankaran case, cited supra, a Division Bench of this Court while dealing with the disciplinary proceedings initiated against a Judicial

Officer on the alleged misuse/abuse of powers u/s 451 of Crl.P.C., held as under:

The charge does not disclose that the respondent had any case of recklessness or abuse of power or other misconduct by the petitioner. In such a

case, whether the respondent (Registrar) had jurisdiction to initiate action against the petitioner in relation to an order passed by him while

discharging his function as Judicial Officer, by framing such charge, is the matter to be decided.

In our case, we find that the petitioner has not abused or misused his discretionary powers in the interest of the parties, more so their freedom. The

Division Bench, in the above said case, referred to the decision of the Queen''s Bench Division in Anderson v. Gorrie 1895 (1) QBD 668 and

various judgments of the Supreme Court and ultimately came to the conclusion that in view of the declaration of law by the Honourable Supreme

Court and taking into consideration the charge and the evidence adduced, there was no justification for initiating disciplinary proceedings against

the petitioner therein and quashed the impugned order as well as the impugned proceedings.

Mr. Gopinathan, learned Additional Government Pleader appearing for the respondents submitted that the charges levelled against the petitioner

are clear; that the Tribunal for disciplinary proceedings conducted enquiry and based on the oral and documentary evidence it rightly found that the

charges levelled against the petitioner are proved; that PW1, Managing Director of M/s. Best Cotton Mills Pvt Ltd., gave the complaint, Ex.P1

against Namashivayam, Deputy Director of Fire Service and the petitioner herein stating that they demanded Rs. 30000/- towards bribe; that the

enquiry conducted by the Tribunal also revealed that the petitioner negotiated the deal on behalf of the said Namashivayam with PW2 Gnanaraj

and reduced the same to Rs. 12,000/- which was also confirmed over telephone; that Ex.P6 and P7, inward and outward registers were duly

considered by the Tribunal and found against the petitioner; that the outward register Ex.P7 did not contain any specific entries about the presence

of the petitioner in the mill at 3.55 p.m. on 10.06.1993; that in a departmental disciplinary case, the circumstantial evidence alone is sufficient to

prove the charge and there is no need that the charge has to be proved beyond reasonable doubt as required in a criminal trial; that it is well settled

that if there is some evidence on record which is acceptable and which could be relied upon, howsoever compendious it may be, the conclusion

would not be treated as perverse and the findings would not be interfered with; that the petitioner has filed this writ petition without exhausting the

alternative remedy of appeal and on that ground also the writ petition is liable to be dismissed.

Arguments of the counsel for both sides were considered by this Court and material records were perused. In this case, the occurrence took

place on 10.06.1993, on that day, inspection was conducted by the Deputy Director Namashivayam along with the petitioner and also

Dhandapani, station fire officer, Tirupur. The Managing Director of the said mill, PW1, gave a complaint, Ex.P1 dated 28.06.1993 against the said

Deputy Director Namashivayam and the petitioner alleging that "" when I was out of station, Mr. Namashivayam, Deputy Director of Fire Service,

Coimbatore and Tirupur Fire Office Mr. Lurthunathan have visited our mill and inspected the affected areas and machines. That they have told our

staff that the insurance claim will be settled only on the basis of their report and for that they have demanded Rs. 30,000/-. Our staff has told that

so much of amount is not available at that time. Then they have bargained and come down to Rs. 12,000/-.... Then they left at 2.20 p.m. and

phoned to our mill to bring the amount to their Dharapuram office "". The documentary evidence namely Exs. P6 and P7 show that PW1 was

present in the mill on 10.06.1993. In his cross-examination by the petitioner he admitted that "" he could not now remember the time of his

departure from the mill on 10.06.1993 "". The said oral evidence of PW1 disclose that he was present in the mill during the relevant time on

10.06.1993. It is not explained by him why he took the stand as if he was not present on 10.06.1993, though he was present, probably to patch

up the delay in giving the complaint.

It is alleged by PW1 that Ex.P5, Voucher for Rs. 12,000/- was raised by PW2 and the same was paid to Namashivayam. A question was

posed to PW1 that the said Ex.P5 was raised for advance towards payment to a contractor, which was denied by him, but he admitted that he has

not verified the same with the cash book, Ex.P4. In this context, it is necessary to mention the contents of Ex.P5 which was written by PW2,

wherein it is found mentioned that the amount was paid to a contractor for painting truss and angles and the same contents is reflected in the cash

book, Ex.P4.

PW2, who is the sole witness for the demand and payment of the amount to Namashivayam, in his cross-examination by the petitioner has

stated that the petitioner left the mill at 15.15 hours, again, he changed his version in the same cross-examination by stating that he did not know

the entry found in Ex.P7 as to which fire officer left the mill at 15.55 hours. He also admitted in his evidence that in Ex.P6, it is found mentioned

that at 12.45 hours somebody came to see the Managing Director of the Mill and at 13.55 hours, after seeing the Managing Director, they left. In

this context, when we refer to Exs. P6 and P7, it can be seen that "" at 14.00 hours, fire office Director left ""; "" 14.30 hours Fire Officer,

Dharapuram left "" and at ""15.45 hours, PW2 left in his TVS "" moped and at "" 15.55 hours, fire officer and two other persons "" left. It is argued on

behalf of the petitioner that the fire officer, who left at 15.55 hours is the petitioner as the Deputy Director and the other fire officer, Dharapuram

have already left the mill. On comparing the said timings with the evidence of PW2, it could be concluded that he admitted in his cross-examination

that the petitioner left the mill only at 15.15 hours, though in Ex.P7 it is mentioned that he left at 15.55 hours, hence, the averment that the petitioner

telephoned from the fire office, Dharapuram to the mill at 15.00 hours to PW2 (whereas in the charge it is mentioned as 15.30 hours) thereby

confirmed the demand of Rs. 12,000/- is unbelievable. In this context, it is relevant to mention the evidence of PW9, who accompanied PW2 to

fire office at Dharapuram, who in his evidence stated that PW2 told him that "" the money deal was settled at Rs. 12,000/- "" however, he has not

witnessed the payment as he was standing outside the fire office.

The discussion made above disclose that the demand and negotiations said to have been made by the petitioner are not at all proved. No doubt,

disciplinary proceedings is not a criminal trial and the standard of proof required in the disciplinary proceedings is preponderance of probabilities

and not proof beyond all reasonable doubt and the Court cannot re-appreciate the evidence of the Tribunal and substitute its own findings. When

there is not even minimum material available to prove the charges against the petitioner, this Court cannot blindly confirm the findings of the enquiry

tribunal and say that the charges against the petitioners are proved. Though it is appreciated that Government is anxious to root out corruption from

public service, the Court cannot ignore the fact that in carrying out the said purpose, mere suspicion should not be allowed to take the place of

proof even in domestic enquiries and the charges against the delinquent must be proved before he is punished. In this case, neither the Tribunal nor

the disciplinary authority has taken note of the above said facts, hence, this Court is of the view that the charges against the petitioner are not

proved, hence, the impugned order passed by the first respondent is liable to be quashed.

The learned Senior counsel appearing for the petitioner highlighted in his argument the extraordinary delay in concluding the disciplinary

proceedings. In this case, admittedly the occurrence took place on 10.06.1993, the charge memo was issued on 26.08.1997 i.e., after lapse of

four years, thereafter the matter was referred to the Tribunal and it submitted its report on 30.06.2000 for which the petitioner has submitted his

explanation immediately on 25.09.2000, however, the impugned order was passed by the first respondent only on 16.02.2005. In considering

whether the delay is vitiated in the disciplinary proceedings, the Court has to consider the nature of charges, its complexity and on what account the

delay has occurred. If the delay is unexplained, prejudice to the delinquent employee is writ large on the face of it. Normally, disciplinary

proceedings should be allowed to take their course as per the relevant Rules, but then delay defeats justice. Delay causes prejudice to the charged

officer unless it can be shown that he is to blame for the delay or when there is proper explanation for the delay in conducting the disciplinary

proceedings. Followed (State of Andhra Pradesh v. N. Radhakrishnan) 1998 II SCC 154). This Court is of the considered view that there is

hardly any explanation by the respondents, which is worth consideration, as to why the delay has occurred in concluding the disciplinary

proceedings. For the said reason also, the impugned order of the first respondent is liable to be quashed.

An argument was advanced by the learned Additional Government Pleader appearing for the respondents that the petitioner, without

exhausting the alternative remedy of filing appeal before the appellate authority has chosen to file the present writ petition, which is not at all

maintainable. The discussion made above disclose that the impugned order passed by the first respondent is not a valid order in the eye of law,

hence, the writ petition is maintainable and this issue is answered accordingly.

In view of the above said discussion, the impugned order passed by the first respondent is quashed. The writ petition is allowed as prayed for.

No costs.