IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 25-11-2008 CORAM: THE HON'BLE MR.JUSTICE P.JYOTHIMANI W.P.No.21807 of 2008 and M.P.No.1 of 2008 R.Chandran ...Petitioner vs. 1. The Principal Secretary to Government Home (Transport II) Department Secretariat, Chennai 9. 2. Thiru C.P.Singh, I.A.S., The Special Commissioner and Transport Commissioner Chepauk, Chennai 5. ...Respondents Writ petition filed under Article 226 of the Constitution of India praying for issuance of a Writ of Certiorarified Mandamus to call for the records relating to the order of the 1st respondent herein passed in G.O.(2D)No.518, Home (Tr.II) Department dated 29.8.2008 placing the petitioner under suspension and the consequential order passed by the first respondent herein in G.O.(2D)No.519, Home (Tr.II) Department dated 29.8.2008 not permitting the petitioner to retire from service and retaining him in service and quash the same and consequently direct the respondents herein to permit the petitioner to retire from service with effect from 31.8.2008 without prejudice to the disciplinary proceedings pending against him. For Petitioner : Mr. Ravi Shanmugam For Respondents : Ms.Lita Srinivasan, Government Advocate for R.1 Mr.A.Arumugam for R.2 ORDER This writ petition is directed against the order of the first respondent dated 29.8.2008 under which the petitioner who was formerly Regional Transport Officer (South-west), Chennai and is now Joint Transport Commissioner (Enforcement), Chennai, is placed under suspension due to the reason of pendency of grave charge against him. 2. Normally, this Court would not interfere with such order of suspension, since it is well settled that pending grave charges https://hcservices.ecourts.gov.in/hcservices/ against a Government Servant, if order of suspension is passed in the public interest, the scope of this Court in interfering with such order under Article 226 of the Constitution of India is restricted, unless any mala fide or prima facie illegality is shown. It is also seen that in addition to the order of suspension, by another order dated 29.8.2008, the petitioner has not been permitted to retire from service. On the facts of the case, especially after a detailed counter affidavit has been filed on behalf of the first respondent, this Court had to probe into various instances mentioned in the affidavit filed by the petitioner as well as various documents filed in the typed set of papers, most of which are not disputed. 3. The crux of the issue in this case is that as against the petitioner, T.D.P.Case No.33/08 is pending before the Tribunal for Disciplinary Proceedings, Chennai. The charge runs as under: "That you (AO) being a public servant and while employed in various capacities in the Transport Department of the Government of Tamil Nadu, during the check period from 1.4.2000 to 31.3.2004, you (AO) were in possession on or about 31.3.2004 of pecuniary resources of properties as detailed in the statements I to VII to the extent of Rs.20,15,557/- (Rupees Twenty lakhs fifteen thousand five hundred and fifty seven only) which works out to 37% of Disproportionate Assets either in your (AO's) name or in the name of your (AO's) wife or children which are disproportionate to your (AO's) known sources of income and for the possession of which you (AO's) could not satisfactorily account for and thereby you (AO) had committed grave official misconduct, misdemeanour and failed to maintain absolute integrity and devotion to duty and violated Rule 20 of the Tamil Nadu Government Servants' Conduct Rules, 1973." 4. In addition to that, there is another charge framed against the petitioner under Rule 17(b) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules, which is as follows: "Thiru R.Chandran's son Tr.Balaji received Rs.7,50,000/- as gift from various persons. A.O. had not intimated about this transaction to his HOD and violated the Rule 3 of Tamil Nadu Government Servants Conduct Rules, 1973." 5. In both the matters, the petitioner submitted his explanation and enquiry has not yet commenced. Since, in the meantime, the petitioner attained the age of superannuation on 31.8.2008, by the impugned orders the petitioner was placed under suspension and not allowed to retire until the enquiry into the charges pending against him are concluded. 6. The mere allegation by the petitioner in the affidavit that the T.D.P. Case number has been wrongly mentioned as D.E.No.23/05 instead of 33/08 is in no way helpful to the petitioner. However, the startling disclosure made by the petitioner in the affidavit filed in support of the writ petition is that in respect of many https://hcservices.ecourts.gov.in/hcservices/ other similarly placed persons either facing enquiry under Vigilance and Anti Corruption cases or TDP cases and in some cases, the delinquents were caught red-handed by means of trap and in spite of such grave charges pending against them, they were allowed to retire without prejudice to the right of the Department to proceed with the disciplinary proceedings. The petitioner therefore seeks that the said benefit which has been given to many others who, according to him, are similarly placed persons, may be extended to him and he is prepared to face the disciplinary proceedings. 7. In the affidavit, the petitioner has stated that one Mrs.Roselet Mary, Regional Transport Officer, Nagercoil had been charged under Rule 17(b) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules for the demand and acceptance of Rs.500/- as illegal gratification for issue of autorickshaw permit and the demand and acceptance of Rs.400/- as illegal gratification for renewal of National Permit for lorry and she was also placed under suspension, but she was ultimately allowed to retire without prejudice to the disciplinary proceedings. 8. In the counter affidavit filed by the first respondent, while admitting that the said Mrs.Roselet Mary failed to maintain absolute integrity and devotion to duty and the disciplinary proceedings would warrant major penalty, it is stated that the individual was permitted to retire from service on attaining the age of superannuation on 29.2.2008 without prejudice to the pending disciplinary proceedings. In the counter affidavit it is also stated that the case of said Mrs.Roselet Mary cannot be compared, since the case of the petitioner relates to acquisition of assets disproportionate to the known source of income. 9. One another instance that is shown is in respect of one Mr.Abdul Sattar, formerly Regional Transport Officer, Kancheepuram, now Deputy Transport Commissioner-II, Chennai-5 against whom there were corruption charges based on Vigilance and Anti-corruption complaint and TDP case No.40/07 was pending on the following charges: "That actuated by corrupt motive and in abuse of your (AOs1 & 2) official position and authority, you (AO-1) while working as Regional Transport Officer, Kanchipuram and you (AO-2) while working as Personal Assistant to Regional Transport Officer, Kanchipuram, has committed grave official misconduct and misdemeanour and failed to maintain absolute integrity and devotion to duty inasmuch as on 08.02.2007, between 17.45 hrs. and 20.10 hrs. at the office of the Regional Transport Office, Kanchipuram, during a joint surprise check conducted by the officials of the District Inspection Cell, Collectorate, Kanchipuram along with the Vigilance and Anti- Corruption Officers of Kanchipuram, you (AOs 1 & 2) could not satisfactorily account for a sum of Rs.67,310/- (Rupees sixty seven thousand three hundred and ten only) as detailed below: (i) A sum of Rs.25,000/- found hidden and unclaimed in the Record Room of your (AOs 1 & 2) office. https://hcservices.ecourts.gov.in/hcservices/ (ii) A sum of Rs.23,420/- found scattered and unclaimed at the Dining Room of your (AOs 1 & 2) office. (iii) A sum of Rs.3,000/- found in a cover and unclaimed in the room of one Thiru G.Sampath Kumar, Motor Vehicle Inspector of your (AOs 1 & 2) office. (iv) A sum of Rs.7,250/- meant for you (AOs 1 & 2) recovered from one Thiru Karthick S/o.Srinivasan, No.13/3, Muthumariyamman Koil Street, Palayanur village, Maduranthagam, Kanchipuram District, a private individual who was present in your office at the time of the surprise check. (v) A sum of Rs.8,640/- meant for you (AOs 1 & 2) recovered from one Thiru R.V.Balachandar, S/o.Vairavamurthy, No.148/154, Perumal Koil Street, Alapakkam Main Road,Valasaravakkam, Chennai 600 116, a private individual who was present in your (AOs 1 & 2) office at the time of the surprise check. In spite of such charges, the Government allowed him to retire from service on his attaining the age of superannuation on 31.3.2008, without prejudice to the disciplinary proceedings pending against him, as it is seen in G.O.(D) No.367, Home (Tr.II) Department, dated 31.3.2008. This fact has also been specifically admitted in the counter affidavit filed by the first respondent. 10. In addition to that, in respect of one Thiru M.C.Ramalingam, Regional Transport Officer, Villupuram, though the Government did not agree with the report of the Vigilance and Anti-corruption that there were no disproportionate assets, allowed him to retire on 31.12.2007 by dropping further action against him. In the counter affidavit, in respect of said Thiru M.C.Ramalingam, it is specifically admitted that he was allowed to retire without prejudice to the pending charges, but subsequently ordered imposition of minor punishment of pension cut of Rs.100/- per month for a period of six months. Even though it is stated that there is no discrimination, there are many other instances of officers of the same Department who have been allowed to retire by the first respondent, in spite of the fact that they had been either facing disciplinary proceedings or TDP enquiry at the instance of either Vigilance and Anti-Corruption Department or otherwise. 11. Yet another instance that is shown is in respect of one Mr.M.Krishnasamy, Regional Transport Officer, Chennai who had been charged with grave charge that he had not paid the life-time tax, registration fees and fee for reservation of advance numbers for the new vehicles registered in the Office, but, at the same time, the vehicles were registered, advance registration numbers were allotted. 12. After accepting all the facts, which are stated by the petitioner in the affidavit filed in support of the writ petition, the first respondent has strangely stated in the counter affidavit https://hcservices.ecourts.gov.in/hcservices/ that the Government, taking into consideration the totality of the circumstances and the gravity of the charges came to the conclusion, warranting the petitioner to be placed under suspension and hence, there is no discrimination as alleged by the petitioner. 13. Even though in the counter affidavit it is stated that the second respondent in his individual capacity has not passed orders of retirement of officials, viz., "As a matter of fact, the second respondent while sending the proposal for retirement of the petitioner in letter No.T2/46763/08 dated 14.8.2008 has indicated only the pendency of charges under rule 17(b) and the enquiry pending against the petitioner for the allegation of acquisition of assets disproportionate to his known sources of income and has requested the Government to take a decision on the retirement considering everything in totality. From this it is clear that the second respondent has in no way mentioned in the proposal that the petitioner has to be placed under suspension." it is only the Government which has passed such orders. 14. It is relevant to point out that the portion, 'Government to take a decision on the retirement considering everything in totality' which is mentioned in the counter affidavit in bold letters can only be construed to mean that the first respondent, while considering the totality of the situation has taken a lenient view in respect of similarly situated officers who had been either involved in Vigilance and Anti-Corruption trap cases or TDP cases and the Government has denied the said benefit to the petitioner even though the second respondent has recommended for retirement of the petitioner. Such a stand in the counter affidavit does not speak good of itself since it would mean that the persons who were involved in such serious misconduct may tend to be portrayed as martyrs. In any event, it is the admitted case of the first respondent as seen in the counter affidavit that the second respondent has in fact given proposal to allow the petitioner to retire and therefore, there is absolutely nothing against the second respondent and there is no difficulty to conclude that the implication of the second respondent in his personal capacity by the petitioner is not proper. 15. In view of the above said details, the stand taken by the first respondent in the counter affidavit justifying its action in allowing the similarly situated persons to retire without prejudice to the disciplinary proceedings and in denying the same benefit to the petitioner, is certainly against the principles of equity and fair play. If the petitioner wants to claim equality among the other erring officials, the same cannot be permitted by this Court, but the first respondent while taking such a decision must be fair and uniform. It does not mean that the Government is not entitled to prove the grave charge against the petitioner since the charge against the petitioner cannot be underestimated as a small one, but it is only on the basis of the expected fairness in the action of the first respondent, this Court is inclined to interfere with the https://hcservices.ecourts.gov.in/hcservices/ impugned orders with a direction to the first respondent to consider the case of the petitioner on par with others and permit him to retire, however, without prejudice to the disciplinary proceedings. 16. In view of the same, the impugned orders of the first respondent are set aside and the matter is remitted back to the Government, the first respondent herein, to consider the case of the petitioner on par with other similarly situated officials facing enquiry for the purpose of allowing him to retire without prejudice to the disciplinary proceedings and such orders shall be passed by the first respondent expeditiously, in any event, within a period of four weeks from the date of receipt of copy of this order. The writ petition stands ordered accordingly. No costs. Connected miscellaneous petition is closed. sd/- Asst.Registrar /true copy/ Sub Asst.Registrar kh To 1. The Principal Secretary to Government, Home (Transport II) Department, Secretariat, Chennai 9. 2. The Special Commissioner and Transport Commissioner, Chepauk, Chennai 5. + 1 c.c. to Mr. Ravi Shanmugam, Advocate. S.R.No.65730. + 1 c.c. to Mr. A. Arumugam, Advocate. S.R.No.66073. Order in W.P.No.21807 of 2008 KL (CO) GSK 27.11.2008. https://hcservices.ecourts.gov.in/hcservices/