JYOTHIMANI JUDGEMENTS

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The writ petition is filed challenging the order of the first respondent, Inspector General of Registration dated 29.6.1992, by which the first respondent passed order of removal of the petitioner from servic

IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED:07.12.2010
CORAM:
THE HON'BLE MR.JUSTICE P.JYOTHIMANI
WRIT PETITION NO.19287 of 2008
and M.P.No.1 of 2009
..
G.Durai Raj .. Petitioner
vs.
1.The Inspector General of Registration
  Chennai 28.

2.The Secretary to Government
  Commercial Taxes and
  Registration Department
  Secretariat, Chennai 9. .. Respondents

Writ Petition filed under Article 226 of the Constitution of India praying for issuance of a Writ of   Certiorarified mandamus as stated therein.

For petitioner : Mr.G.Elanchezhiyan

For respondents : Mr.N.Senthilkumaran
 Addl.Govt.Pleader
..
ORDER
The writ petition is filed challenging the order of the first respondent, Inspector General of Registration dated 29.6.1992, by which the first respondent passed order of removal of the petitioner from service, against which the revision filed before the second respondent came to be rejected under the impugned G.O.(2D)No.58 Commercial Taxes and Registration (H2) Department, dated 24.4.2008, confirming the order of removal of the first respondent.

2. The petitioner who had originally joined in the Registration Department as a Junior Assistant was given various promotions and ultimately he was promoted as Sub-Registrar Grade-I in the year 1984, in which post he continued till the order of removal was passed.  It was, by virtue of a trap by the Vigilance and Anti-corruption Department to the effect that the petitioner received bribe of Rs.20/- which is stated to be legitimate fees collected by the petitioner for registration purpose and on the ground that he was keeping a sum of Rs.10/-, which was found to be tainted money, he was arrested and charge sheet was issued by the Tribunal for Disciplinary Proceedings on 1.12.1989 and on the same day, another charge was also framed.

3. In respect of the first charge relating to the trap in respect of receiving bribe of Rs.20/-, the Tribunal for Disciplinary Proceedings held it proved on the basis of clinching evidence, based on which the first respondent, Inspector General of Registration, imposed the punishment of removal from service, which was confirmed by the Government under the impugned Government Order.

4. Originally, the petitioner filed O.A. before the Tamil Nadu State Administrative Tribunal in O.A.No.7329 of 1995, which was transferred to this Court  and numbered as writ petition in W.P.No.37857 of 2005 and the same  came to be allowed, setting aside the earlier order of the second respondent dated 25.1.1995  with direction to the Government to follow Rule 23 of the Tamil Nadu Civil Services (Disciplinary and Appeal) Rules and pass fresh orders. It was, thereafter, the second respondent passed the impugned G.O. dated 24.4.2008.

5. The impugned orders are challenged on various grounds including that the Enquiry Officers finding is perverse; that the witnesses who have made complaint against the petitioner have turned hostile during the time of enquiry; that the enquiry has not been conducted in a proper manner and no opportunity of making explanation to the enquiry report was given as required  under rule 17(b) of the Tamil Nadu Civil Services (Disciplinary and Appeal) Rules; that the enquiry report has been totally reproduced by the first respondent in the original order of punishment; that the major punishment of dismissal was ordered just one day prior to the date of retirement of the petitioner and served on the date of retirement; that the allegation of bribe of Rs.20/- stated to have been received by the petitioner on 16.9.1989 was attributed to the document which was produced seven days later viz., on 23.9.1989 involving sale of one cent; that there has been discrepancy in respect of alleged time of receipt of bribe between the evidence of P.W.1, Revenue Inspector who has stated that it was at 4.15 p.m., and the evidence of P.W.10, Inspector who has stated that it was at 5.00p.m.; that the appreciation of evidence has not been properly done;  and that in respect of another charge of demand and acceptance of bribe of Rs.30/- the Commissioner found the same as disproved, apart from raising other grounds.

6. Even though the petitioner has chosen to challenge the entire disciplinary proceedings including the Tribunals findings and the substantial aspects of the order of the respondents, the learned counsel for the petitioner would ultimately restrict his submission regarding the quantum of punishment which was imposed on the petitioner.  It is admitted that the order of removal from service was passed and served on the petitioner on the date of his retirement.  In the first charge sheet, the charge relates to the receipt of bribe of Rs.20/- as stated above.  The second charge sheet contains three parts, all relating to the allegation of bribe of Rs.30/-, etc.  As per the finding of the Tribunal for Disciplinary Proceedings, it is only the first charge relating to the bribe of Rs.20/- which is stated to have been proved by way of clinching evidence while the other charges framed are stated to have not been substantiated.

7. It is also stated that the petitioner has put in more than 40 years of service and on the last date of his service, the dismissal order came to be passed.  Under similar circumstances, in Kartar Singh Gerwal vs. State of Punjab  [(1991) 2 SCC 635], when order of dismissal was passed against a State Government employee three days prior to his date of retirement and the communication was received one day after the date of retirement, in order to meet the ends of justice, it was held that the Government servant who has put in 29 years of unblemished service should be directed to go on compulsory retirement so as to enable the wife of the Government servant to get family pension.  It was ultimately held by the Honble Apex Court as follows:


" 4. Having given our anxious consideration we do not consider it necessary to express any opinion on Rule 22 as the order admittedly was published in Gazette Extraordinary on August 20 (sic 28), 1972 and it was broadcast from the radio as well. Nor do we consider it necessary to decide if the inquiry was vitiated because of non-supply of the material relied by inquiry officer. Normally this Court does not interfere with the order of disciplinary authority on punishment. But what appears from the record and which could not be disputed by the learned counsel for the State was the averment that appellants service of 29 years was unblemished, was not controverted. Further when inquiry was completed and the papers were sent to Public Service Commission for consultation it did not agree with proposal for dismissal. But the government did not accept it and got further probe made and dismissed the appellant three days prior to his retirement. Even the evidence in support of the two charges which led to appellants dismissal was not very strong. We have stated so not with a view to reappraise the evidence but to judge whether the circumstances justified the severest punishment. Added to this is the circumstances that the appellant died in 1983 and his widow is said to be in bad health. In our opinion, in the circumstances of this case, the ends of justice would have been met by compulsorily retiring the appellant.
5. In the result the order of the High Court is maintained except to the extent that the order of dismissal dated August 28, 1972 shall stand substituted with an order of compulsory retirement. The State of Punjab shall within a period of six months of the communication of this order get the pension calculated and pay the same. As an interim measure a sum of Rs. 20,000 shall be paid to the widow to be adjusted against pension within a period of one month of the same date. Till final calculation of pension and subject to adjustment the widow shall be paid Rs. 300 p.m. commencing from April 1, 1991."


8. Under similar circumstances, a Division Bench of this Court presided over by Elipe Dharmarao,J. in The Principal Commissioner and Commissioner of Commercial Taxes, Chepauk, Chennai vs. P.Murugesan and another  (W.P.No.25089 and 25090 of 2003, by order dated 18.8.2006)  held that to meet the ends of justice, the order of removal was modified as to one of compulsory retirement so as to enable the Government servant therein to get the pensionary benefits.  The operative portion is as follows:
" 8. In the facts and circumstances of the case, we find that though the documentary evidence is available to establish the charges levelled against the first respondent, the same has to be corroborated by the oral evidence of the traders.  Therefore, it is settled principle of law that the witnesses have to be examined and they are subject to cross-examination by the delinquent officer during the enquiry.  But no explanation is offered by the Government for not examining the traders, who made complaint against the first respondent/applicant.  Taking into consideration that the first respondent/applicant has not faced any prior enquiry, we are of the view that it is appropriate and considerate and the ends of justice would be met if the order of removal is modified to that of compulsory retirement.  Accordingly, we direct the petitioner to modify the punishment of removal from service into that of compulsory retirement and release the pensionary benefits to the first respondent/applicant to which the first respondent is entitled to within a period of eight weeks thereafter.  But the first respondent is not entitled for any backwages for the above said period."

9. On the facts of the case narrated above, and taking note of the fact that there is contradiction in the evidence between P.W.1 and P.W.10 with regard to the time of alleged receipt of bribe and taking note of the fact that in respect of similar charges numbering three involving small amounts, the Tribunal for Disciplinary Proceedings itself concluded that the charges have not been proved and also taking note of the fact that on the date of retirement, the order of dismissal was passed and served on the petitioner while he put in service for nearly 40 years from 1953 onwards,  I am of the considered view that the punishment of removal from service should be directed to be altered into one of compulsory retirement to meet the ends of justice.  Accordingly, the writ petition stands disposed of with direction to the respondents to modify the order of removal from service passed against the petitioner into one of compulsory retirement in order to meet the ends of justice and also pass orders releasing all pensionary benefits due to the petitioner.

The writ petition is disposed of on the above terms.  No costs.  Connected miscellaneous petition is closed.

Index:Yes/No
Internet:Yes/No
Kh 07.12.2010
To
1.The Inspector General of Registration
  Chennai 28.

2.The Secretary to Government
  Commercial Taxes and
  Registration Department
  Secretariat, Chennai 9.



P.JYOTHIMANI,J.


















P.D.Order in
W.P.No.19287 of 2008

















Dated:07.12.2010