IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 4.7.2007 CORAM: THE HONOURABLE MR.JUSTICE F.M.IBRAHIM KALIFULLA AND THE HONOURABLE MR.JUSTICE S.TAMILVANAN W.P.No.19843 of 2001 & W.P.M.P.No.29250 of 2001 & W.V.M.P.No.1339 of 2002 The Transport Commissioner, Chepauk, Chennai-5. .. Petitioner vs. 1. G.Durai 2. The Registrar, Tamil Nadu Administrative Tribunal, Chennai-104. .. Respondents Writ Petition filed under Article 226 of the Constitution of India, praying for issuance of a Writ of Certiorari, to call for the records pertaining to the order dated 20.12.2000 made in O.A.No.3744 of 1999 on the file of the Tamil Nadu Administrative Tribunal, Chennai, the second respondent herein and quash the same. For petitioner : Mr.P.S.Raman, Addl. Advocate General, assisted by Mr.M.Dhandapani, Spl.G.P. For respondent-1 : Mr.K.V.Srinivasaraghavan ORDER F.M.IBRAHIM KALIFULLA,J The State has come forward with this Writ Petition challenging the order of the Tamil Nadu Administrative Tribunal, dated 20.12.2000 passed in O.A.No.3744 of 1999, in and by which the Tribunal set aside the charge memo issued to the first respondent in Letter No.14057/V.1/90, dated 2.6.1999. The Tribunal held that in respect of the very same charges of corruption, a criminal case in Special Case NO.22 of 1990 was laid against him before the Chief Judicial Magistrate, Thanjavur, which resulted in https://hcservices.ecourts.gov.in/hcservices/ his conviction, by judgment dated 28.9.1992, which conviction was set aside by this Court on 20.11.1997 in Crl.A.Nos.633 and 634 of 1992, and therefore, in the light of the fact that such criminal proceedings were initiated under the special procedure which ended in acquittal, the departmental proceedings cannot be allowed to go on. The Tribunal also took the view that since the facts and charges were identical in nature, in the light of the decision of the Supreme Court reported in AIR 1999 SC 1416 (Capt.M.Paul Anthony vs. Bharat Gold Mines Ltd. and another), the charge memo had to be set aside. As against the above said order of the Tribunal, the State has come forward with this Writ Petition. 1(a). This Writ Petition is resisted by the first respondent by raising certain contentions based on Tamil Nadu Civil Services (Disciplinary Proceedings Tribunal) Rules, 1955 and on the ground that the first respondent was acquitted by this Court in Crl.A.Nos.633 and 634 of 1992, by judgment dated 20.11.1997. 1(b). At the very outset, we wish to state that the above contentions are covered by the order of the Supreme Court, dated 26.9.2006 passed in Civil Appeal Nos.2674-2676 of 2004, wherein the Regional Transport Officer who was also identically placed like that of the first respondent herein, raised similar contentions which were rejected by the Supreme Court. Though the learned counsel appearing for the first respondent who appeared for the RTO in this Court when the matter came up before a Division Bench of this Court in W.P.Nos.100, 5579 and 19749 of 2001, dated 26.2.2002, reported in 2002 (III) L.L.J. 66 (State of Tamil Nadu vs. H.A.Munaff), the copy of the order of the Supreme Court dated 26.9.2006 in Civil Appeal Nos.2674-2676 of 2004, was not placed before us at the time when the arguments were advanced before us. Therefore, we deal with the contentions raised by the first respondent, which found favour with the Tribunal, in this Writ Petition at length. However, since we were able to secure the copy of the order of the Supreme Court in Civil Appeal Nos.2674-2676 of 2004 from the Registry, we will refer to the same in detail at the appropriate place in the later part of this order. 2. Mr.P.S.Raman, learned Additional Advocate General appearing for the petitioner raised three contentions. According to him, application of Tamil Nadu Civil Services (Disciplinary Proceedings Tribunal) Rules, 1955, (hereinafter referred to as "the 1955 Rules"), in particular, Rules 4 and 5 will kick into operation only if the Government decides to refer the case to the Tribunal and if such a step was not taken by the Government, Rule 5 itself will have no application. The second contention was that the expression "or" used in Rule 5(b) of the 1955 Rules is only an enabling provision and not a disjunctive prohibitive provision and that any other construction of the said expression would render Rule 5 itself unconstitutional, as that would otherwise conflict with the enforcement of legislative enactment. Lastly, it was contended that in any event, the said expression "or" contained in Rule 5(b), can be read by this Court as "and" as between the expressions "Court of Law" and "by the Tribunal" to give life and make the provision a meaningful one. It was also contended that https://hcservices.ecourts.gov.in/hcservices/ the acquittal by the High Court was only by giving "benefit of doubt" and inasmuch as the degree of proof in the criminal case and the domestic enquiry varies to a very large extent, at the threshold, namely at the stage of issuance of the charge memo, the Tribunal ought not to have interfered with the said disciplinary proceedings. The learned Additional Advocate General relied upon AIR 1976 SC 394 (Delhi Municipality vs. Kacheroo Mal), AIR 1980 SC 360 (Delhi Municipality vs. Tek Chand), AIR 1999 SC 1416 (M.Paul Anthony vs. Bharat Gold Mines Ltd.), AIR 2004 SC 4647 (Management, K.Tea Estates vs. A.B.C.Mazdoor Sangh), 2006 (5) SCC 446 (G.M. Tank vs. State of Gujarat) and 2007 (3) CTC 211 (SC) (NOIDA Enterprises Assn. vs. NOIDA) in support of his submissions. 3. As against the above submissions, Mr.Srinivasaraghavan, learned counsel appearing for the first respondent, by relying upon the decisions reported in 2006 (1) MLJ 146 (Ramasamy,P. vs. Govt. of Tamil Nadu) and 2005 Writ L.R. 314 (State of Tamil Nadu and another vs. M.Jayapal and two others), contended that the issue as to whether the departmental proceedings can be proceeded with after the acquittal in the criminal case, has to be examined still more elaborately by referring to the matter to a larger Bench. The learned counsel, by making reference to the allegations contained in the charge memo and the criminal Court judgment, contended that the facts being one and the same, the disciplinary action cannot be proceeded with. As regards Rule 5(b)(i) of the 1955 Rules, the learned counsel appearing for the first respondent contended that when once the Government took a conscious decision to file a criminal complaint and the said criminal proceedings ended in the acquittal of the first respondent, it cannot proceed against the first respondent by way of disciplinary action. Learned counsel relied upon 1996 (5) SCC 334 (Secretary to Govt. of T.N. vs. D.Subramanyan Rajadevan) in support of his submission. Learned counsel for the first respondent then contended that the first respondent was allowed to retire on attaining the age of superannuation on the afternoon of 31.12.2000 by the order dated 1.6.2001 by specifically stating that no charges were pending against him on the date of superannuation, and therefore, it is not now open for the petitioner to invoke Rule 9(2)(a) of the Tamil Nadu Pension Rules to proceed against the first respondent. According to the learned counsel, as the conditions contained in Rule 9(2)(b) of the Tami Nadu Pension Rules are not specified, the present charge memo cannot be proceeded with. 4. The learned counsel for the first respondent also contended that there is a statutory bar other than Rule 5(b)(i) of the 1955 Rules, in G.O.Ms.No.228, Personnel and Administrative Reforms (Personnel.J) Department, dated 13.4.1989 read along with G.O.Ms.No.544, Personnel and Administrative Reforms (F.R.III) Department, dated 19.6.1987, wherein an amendment to Rule 54 of the Fundamental Rules by way of Ruling No.9 was inserted, which specifically provided that a Government servant who is subsequently reinstated in service on his acquittal by the Court either on merits or on the ground that the charge has not been proved against him or by giving the benefit of doubt or any other https://hcservices.ecourts.gov.in/hcservices/ technically ground, he should be paid full pay and allowances by deeming as not placed under suspension or dismissal or removal or compulsory retirement from service. 5. Yet another contention of the learned counsel appearing for the first respondent was that under the provision to Rule 17 (1)(e)(4) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules, 1955, there is a statutory bar in proceeding with the disciplinary action. That apart, according to the learned counsel, by applying the principles of "res-judicata" and "promissory estoppel" also, the issuance of charge memo cannot be allowed to stand by invoking Rule 9 of the Tamil Nadu Pension Rules. 6. Learned counsel for the first respondent relied upon the following decisions: Mode of citation Name of the parties 2005 Writ L.R. 314 (Madras High Court) State of Tamil Nadu and another vs. M.Jayapal and 2 others AIR 1965 Madras 502 Shaik Kasim vs. Supdt., Post Offices 1971 SLR 743 (Gujarat High Court) Ramsinhji Viraji vs.State of Gujarat 1972 SLR 44 (Supreme Court) State of Assam vs. Raghava Rajagopalachari 1984 Maharashtra Law Journal 406 (Bombay High Court) Dattatraya vs. Director of Agriculture 2006 (1) MLJ 146 (Madras High Court) Ramasamy.P. vs. Govt. of Tamil Nadu 7. Having heard learned counsel for the respective parties, at the outset, we wish to deal with the first objection raised on behalf of the first respondent based on the Division Bench decisions of this Court reported in 2006 (1) MLJ 146 and 2005 Writ L.R. 314 (both cited supra). In the decision reported in 2005 Writ L.R. 314, the Division Bench of this Court took the view that the judgment of criminal Court acquitting the accused by giving the benefit of doubt cannot be equated to the judgment of acquittal on technical grounds, namely for want of sanction or the sanction accorded did not fulfil the requirement of law or the prosecution was barred by limitation and it cannot be said that the criminal Court's verdict was on technical grounds and therefore, the charge memo can be proceeded with. The Division Bench held that only in such cases, where acquittal was on technical grounds, the authorities are entitled to conduct the departmental enquiry on the self-same allegations and even in the case of acquittal by giving the benefit of doubt based on suspicious circumstances brought out in evidence, such acquittal cannot be held to be on technical ground and therefore, the departmental proceedings cannot be proceeded with. On the other hand, in the decision reported in 2006 (1) MLJ 146, another Division Bench of this Court held that unless the acquittal in the criminal proceedings is an https://hcservices.ecourts.gov.in/hcservices/ honourable one, it is always open for the department to proceed with the disciplinary proceedings even after the acquittal by the criminal Court. In the latter decision (2006 (1) MLJ 146), the Division Bench went on to hold that the honourable acquittal would only mean acquittal which is free from any doubt. 8. In the above context, we wish to be guided by the decision of the Supreme Court reported in 2006 (5) SCC 446 (cited supra), wherein the only distinction now drawn by the Supreme Court as between a departmental action and criminal Court proceedings is that the departmental action would not lie only if there was honourable acquittal of an employee by the criminal Court. In other words, if the facts and evidence in the departmental action as well as criminal proceedings are one and the same, and the criminal proceedings ended in a clear-cut acquittal, leaving no scope for any doubt, then and then only the departmental action cannot be proceeded with. In fact, in that decision, a reference has been made to an earlier decision of the Supreme Court reported in 2005 (7) SCC 764 (Ajit Kumar Nag vs. GM (PJ), Indian Oil Corporation Limited), wherein the Supreme Court has clearly set out the distinction between criminal proceedings and the departmental action by stating as under in paragraph 11 : " .... The two proceedings, criminal and departmental, are entirely different. They operate in different fields and have different objectives. Whereas the object of criminal trial is to inflict appropriate punishment on the offender, the purpose of enquiry proceedings is to deal with the delinquent departmentally and to impose penalty in accordance with the service rules. In a criminal trial, incriminating statement made by the accused in certain circumstances or before certain officers is totally inadmissible in evidence. Such strict rule of evidence and procedure would not apply to departmental proceedings. The degree of proof which is necessary to order a conviction is different from the degree of proof necessary to record the commission of delinquency. The rule relating to appreciation of evidence in the two proceedings is also not similar. In criminal law, burden of proof is on the prosecution and unless the prosecution is able to prove the guilt of the accused 'beyond reasonable doubt', he cannot be convicted by a court of Law. In a departmental enquiry, on the other hand, penalty can be imposed on the delinquent officer on a finding recorded on the basis of 'preponderance of probability'. Acquittal of the appellant by a Judicial Magistrate, therefore, does not ipso facto absolve him from the liability under the disciplinary jurisdiction of the Corporation. We are https://hcservices.ecourts.gov.in/hcservices/ therefore unable to uphold the contention of the appellant that since he was acquitted by a criminal Court, the impugned order dismissing him from service deserves to be quashed and set aside." In fact, in the above said decision reported in 2006 (5) SCC 446, the Supreme Court framed two questions of law, which reads under: "1. Whether in the case of no evidence, the employee can be dismissed from service? 2. Whether acquittal, absolutely on merits amounting to clear exoneration of the appellant by the Special Court under the PC Act does ipso facto absolve the appellant from the liability under the disciplinary jurisdiction when the charges levelled against the appellant in the departmental proceedings and the criminal proceedings are grounded on the same set of facts, charges, circumstances and evidence." (emphasis added) In fact, the Supreme Court went into the evidence at length and ultimately held in paragraph 20 of its judgment that, that was a case of no evidence in the criminal case as well as in the departmental action. In that decision, the Supreme Court also referred to other decisions reported in AIR 1964 SC 787 (R.P.Kapur vs. Union of India), 1981 (2) SCC 714 (Corpn. Of the City of Nagpur vs. Ramachandra) and 2004 (8) SCC 200 (Krishnakali Tea Estate vs. Akhil Bharatiya Chah Mazdoor Sangh), wherein the Supreme Court reiterated the principle that only in a case where there was an honourable acquittal, the departmental proceedings on the very same set of charges cannot be allowed to go on. 9. In the case on hand, the basic allegation against the first respondent was that while he was functioning as Personal Assistant to the Regional Transport Officer, Nagapattinam, on 6.7.1989 at about 11.30 a.m., he demanded a sum of Rs.50/- by way of bribe from one Thiru.Rajaraman and that he accepted the said sum on 7.7.1989 between 12.15 p.m. and 12.30 p.m. at the RTO Office, Nagapattinam for releasing an impounded tractor-trailer belonging to him. According to the petitioner, by virtue of the said conduct, the first respondent failed to maintain absolute integrity and devotion to duty and thereby contravened the provisions of Rule 20 of the Tamil Nadu Government Servants' Conduct Rules, 1973. The charge memo issued to the first respondent was stated to be on 2.6.1999. In the criminal Court, it was alleged that the above conduct of the first respondent was an offence punishable under Section 7 of the Prevention of Corruption Act, 1988 and that he indulged in corrupt and illegal means, abusing his official position as a public servant by having pecuniary advantage and thereby also committed an offence under Section 13(1)(d) of the Prevention of Corruption Act, punishable https://hcservices.ecourts.gov.in/hcservices/ under Section 13(2) of the said Act. In the criminal Court, along with the first respondent, the Regional Transport Officer and the Office Assistant were also tried together in S.C.No.22 of 1990. The trial Court convicted the R.T.O. as well as the first respondent herein by imposing punishment of two years' rigorous imprisonment, apart from a fine of Rs.1,000/- each, in default, to undergo six months' rigorous imprisonment. The Office Assistant was also convicted and imposed punishment of six months' rigorous imprisonment, apart from a fine of Rs.1,000/-, in default to undergo one month rigorous imprisonment. In the appeal preferred by the first respondent in Crl.A.No.634 of 1992, which was disposed of along with the appeal preferred by the RTO and the Office Assistant in Crl.A.No.633 of 1992, a learned single Judge of this Court has held as under in paragraph 21 of the judgment: "21. .... Taking into consideration of all the above said facts, I come to the conclusion that the Prosecution has not proved its case against Accused No.2 beyond all reasonable doubt and hence he has got to be acquitted against the charges levelled against him." Again, in paragraph 23, the learned single Judge has held as under: "23. In view of the discussions made above I come to the conclusion that the charges levelled against the appellants were not proved beyond reasonable doubts and the findings of the Trial court are not satisfactory to punish the accused and that therefore, I set aside the order passed by the trial Court." The said judgment of the learned single Judge in Crl.A.Nos.633 and 634 of 1992, was rendered on 20.11.1997. 10. A perusal of the appellate judgment of this Court in Crl.A.Nos.633 and 634 of 1992 discloses that the learned Judge wanted to give the benefit of doubt in favour of the first respondent, as according to the learned Judge, the charges levelled against him were not proved to the hilt, in spite of the evidence placed before the Court. The learned Judge has not concluded in the judgment to the effect that the evidence did not support the charges levelled against the first respondent. It was only held that in spite of the evidence available on record, it will have to be held that the benefit of doubt should be extended to the first respondent and he be held not guilty of the charges. Therefore, the case on hand does not fall under the category of "honourable acquittal", as has been laid down by the Supreme Court in the recent decisions. 11. In the above context, our attention was drawn to an earliest decision of a Division Bench of this Court reported in AIR 1960 Madras 325 (Union of India vs. Jayaram), wherein, His https://hcservices.ecourts.gov.in/hcservices/ Lordship Chief Justice P.V.Rajamannar, speaking for the Bench, while interpreting Article 193(b) of the Civil Service Regulations, which used the expression "honourable acquittal", was pleased to observe as under in paragraph 3 of the judgment: "3. ... It is only in this sense that it was urged that he was not honourably acquitted. In the first place, we are unable to understand the legal significance of an expression like "Honourably acquitted". Certainly, the Code of Criminal Procedure does not support this conception. The onus of establishing the guilt of accused is on the prosecution, and, if it failed to establish the guilt beyond reasonable doubt, the accused is entitled to be acquitted." 12. The above said Division Bench judgment (AIR 1960 Madras 325) of this Court was followed by a Division Bench of the Gujarat High Court in the decision reported in 1971 SLR 743, wherein the learned Judges of the Gujarat High Court have reiterated in paragraph 7 as under: "7. ... With respect we are in agreement with the reasoning of Rajamannar, C.J. and in our opinion, it is not open to the authorities concerned to bring in the concept of 'honourable acquittal' or full exoneration so far as the judgment of the Criminal Court is concerned. In a criminal trial the accused is only called upon to meet the charge levelled against him and he may meet the charge--(a) by showing that the prosecution case against him is not true or (b) that it is not proved beyond reasonable doubt; or (c) by establishing positively that his defence version is the correct version and the prosecution version is not correct. In any one of these three cases, if the Court comes to the conclusion that the prosecution has failed to establish its case beyond reasonable doubt or that the prosecution case is not true or that the defence version is correct and is to be preferred as against the prosecution version, the Criminal Court is bound to acquit the accused. The accused is not called upon in every case to establish his complete innocence and it is sufficient for the purposes of criminal trial that he satisfies the Court that the prosecution has not established its case beyond reasonable doubt. Since he is not called upon to prove a positive case, the concept of honourable acquittal or full https://hcservices.ecourts.gov.in/hcservices/ exoneration can have no place in a criminal trial and it is because of this reasoning that we agree with the observations of Rajamannar, C.J., in Jayaram's case, AIR 1960 Mad 325." 13. In 1972 SLR 44 (SC) (cited supra), the Supreme Court had occasion to consider Fundamental Rule 54 as it stood then, wherein the expression "honourably acquitted" has been used. While dealing with F.R.54(a), the Supreme Court has held as under in paragraph 8: "8. ... The Note and the Administrative Instructions appearing under the Rule seem to show that the words 'honourably acquitted' mean 'acquitted' of blame or that the Government servant has been fully exonerated. This also seem to be the meaning which has been ascribed to this expression in some reported cases. In Robert Stuart Wauchope v. Emperor (1934) 61 ILR Cal. 168, Lord Williams, J, observed:- "The expression "honourably acquitted" is one which is unknown to courts of justice. Apparently it is a form of order used in courts martial and other extra judicial tribunals. We said in our judgment that we accepted the explanation given by the appellant believed it to be true and considered that it ought to have been accepted by the Government authorities and by the magistrate. Further we decided that the appellant had not misappropriated the monies referred to in the charge. It is thus clear that the effect of our judgement was that the appellant was acquitted as fully and completely as it was possible for him to be acquitted. Presumably, this is equivalent to what Government authorities term "honourably acquitted". In R.P.Kapur V. Union of India, AIR 1964 SC 787, Wanchoo,J. as he then was, used the expression thus:- "Even in case of acquittal, proceedings may follow where the acquittal is other than honourable." " 14. Again, in the decision reported in 1984 Maharashtra Law Journal, page 406 (cited supra), the Division Bench of the Bombay High Court, observed that the concept of "honourable acquittal" or https://hcservices.ecourts.gov.in/hcservices/ "full exoneration" may be inappropriate qua the result of a criminal prosecution. 15. In yet another decision of this Court reported in AIR 1965 Madras 502 (cited supra), His Lordship Hon'ble Mr.Justice M.Anantanarayanan, Officiating Chief Justice, has held as under in paragraph 8: "8. ... Secondly there could be no rigid or inflexible rule that the finding of a criminal court is conclusive, in every sense, upon Administrative Authorities. If the finding is purely a technical acquittal, the Administrative Authority may conceivably punish, on the same facts. It can certainly punish where the acquittal is solely based on lack of sanction or some technical defect in procedure. It could punish, on the same facts, for some lesser charge, which may not amount to a criminal offence, but may well amount to grave dereliction of duty, entitling disciplinary action. For instance, a school- master may be acquitted of a charge of rape alleged to have been committed against a girl- student in his care. But that cannot preclude the departmental authority, upon those very facts, from punishing him for grave impropriety in his relationships with the girl-students, which