IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 20.09.2011 CORAM THE HONOURABLE MR. JUSTICE K.N. BASHA W.P.No.12341 of 2010 & M.P.No.1 2010 V.Prabhu .. Petitioner Vs The Principal Secretary/Commissioner of Commercial Taxes, Ezhilagam, Chepauk, Chennai – 600 005. .. Respondent Prayer : Petition filed under Article 226 of the Constitution of India praying Writ of Certiorari to call for the records pertaining to the charge memo framed against the petitioner by the respondent herein in his E1/29932/2008 dated 13.03.2009 and quash the same. For Petitioner : Mr.Ravi Shanmugam For Respondent : Mr.Kanmani Annamalai Govt. Advocate (Taxes) O R D E R The challenge in this petition is to the charge memo issued against the petitioner dated 13.03.2009 by the respondent in his proceedings No.E1/29932/2008. 2.0. The case of the petitioner is that he had joined the service as Typist on 12.12.1986 and he was promoted as Assistant on 23.10.1997 and he was due for promotion as Assistant Commercial Tax Officer on 11.05.2006. One K.P.Ramachandran, Driver of Shri Ganesh Transport had preferred a complaint on 11.10.2002 before the Vigilance and Anti-Corruption Department, Coimbatore, registered in Crime No.20 of 2002 for the alleged offence under the Prevention of Corruption Act. The name of the petitioner was not included in the said complaint. The entire allegation was made against (late) Thiru.Abdul Munaf, the then Assistant Commercial Tax Officer. 2.1. The petitioner was placed under suspension on 12.10.2002 on the ground that a criminal complaint is under investigation as per https://hcservices.ecourts.gov.in/hcservices/ Rule 17(e)(2) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules (hereinafter referred to as "the Rules"). Challenging the order of suspension, the petitioner preferred application in O.A.No.1760 of 2003 before the Tamil Nadu Administrative Tribunal and the same was allowed and the order of suspension was revoked on 18.09.2003. 2.2. The charge sheet was filed in the criminal case on 04.06.2004 before the Chief Judicial Magistrate, Coimbatore, against their K.Rajendran, Assistant Commercial Tax Officer, and against the petitioner in Special C.C.No.7 of 2004. The petitioner has been honourably acquitted by the Chief Judicial Magistrate, Coimbatore, as per the judgment dated 29.04.2008 holding that there is no acceptable evidence to implicate the petitioner on the allegation of demand and receipt of illegal gratification. Against the said judgment of acquittal, the State has not preferred any appeal. Thereafter, the petitioner was served with a charge memo under Rule 17(b) of the Rules by the respondent as per his proceedings dated 13.03.2009 in respect of the very same charge as alleged in the criminal proceeding initiated against the petitioner. 2.3. The charge levelled against the petitioner under Rule 17(b) of the Rules is that on 11.02.2002 as per the instructions of the Thiru.Abdul Munaf, Assistant Commercial Tax Officer and direction of Thiru.K.Rajendran, Assistant Commercial Tax Officer, the petitioner accepted a bribe of Rs.2,000/- from the complainant Mr.K.P.Ramachandran. In respect of the very same charge, the petitioner has faced the criminal trial which ended in acquittal and there is no fresh material to frame the charge in the departmental proceedings. The charge was framed on 13.03.2009 and the enquiry is yet to be commenced. The petitioner had already submitted his explanation as early as on 28.04.2009 to drop further action. But till date there is no progress in the enquiry and as such, the petitioner, being aggrieved against the charge memo, has been constrained to approach this Court to prefer this petition with the above said prayer. 3. Mr.Ravi Shanmugam, learned counsel for the petitioner would vehemently contend that the impugned charge memo is liable to be quashed on the ground that the charge in the departmental proceedings and the charge in the criminal proceedings are one and the same and in both the proceedings, the witnesses are also same and the petitioner, having been acquitted in the criminal case, cannot be proceeded in the departmental proceeding pursuant to the issue of the charge memo. The learned counsel would further point out that even as per the charge levelled against the petitioner, he has not made any demand of illegal gratification and he as acted only as per the instructions of his superior officers. The learned counsel for the petitioner would place reliance on the following decisions in support of his contentions : https://hcservices.ecourts.gov.in/hcservices/ (1)Shaik Kasim V. The Superintendent of Post Offices reported in AIR 1965 MADRAS 502 ; (2)M.Paul Anthony V. Bharat Gold Mines Ltd., reported in (1993) 3 SCC 679 ; (3)G.M.Tank V. State of Gujarat & another reported in TNLJ 2006 (3) 457 (Civil) ; and (4)Union of India V. Naman Singh Shekhawat reported in (2008) 4 SCC 1 ; 4. Per contra, learned Government Advocate (Taxes) would contend that there is no infirmity or illegality in issuing the impugned charge memo. It is contended that the scope of proving the charge in a departmental proceeding is different from proving the charge in a criminal proceedings as the charges in a criminal proceedings have to be proved beyond reasonable doubt and the charges in the departmental proceedings have to be proved even by preponderance of probabilities. It is further contended that the petitioner can very well participate in the departmental proceedings to prove his innocence. The learned Government Advocate submitted that as per the verification from the Vigilance and Anti-Corruption Department, the State has not preferred any appeal challenging the judgment of acquittal of the petitioner in the criminal case. 5. This Court carefully considered the rival contentions put forward by either side and perused the entire materials available on record including the affidavit filed by the petitioner, counter affidavit filed by the respondents, charges in the criminal case, the judgment of acquittal of the trial court in the criminal case dated 29.04.2008 and the impugned charge memo. 6. The fact remains that the petitioner has been implicated as one of the accused in a criminal case in respect of the offence alleged against him and other accused under the Prevention of Corruption Act, 1988 on the allegation of demand and receipt of illegal gratification. It is seen that the petitioner was not implicated in the complaint preferred by the complainant. But he has been implicated in the case at the time of filing the charge sheet as one of the accused and that too on the allegation that he has received the amount as per the instructions of the other co-accused, who are his superior officers. Therefore, it is very clear that the petitioner has not been implicated for the allegation of demand of illegal gratification and he is only a receiver of the alleged bribe amount as per the instructions of his superiors. Further, it is pertinent to note that the petitioner had undergone the ordeal of criminal proceedings and the trial Judge, namely, the Chief Judicial Magistrate, Coimbatore, acquitted the petitioner from the criminal charge as per the judgment dated 29.04.2008 in Special C.C.No.7 of 2004 holding that there is no acceptable evidence adduced by the prosecution against the petitioner. A perusal of the said judgment of acquittal discloses that the learned trial Judge considered the https://hcservices.ecourts.gov.in/hcservices/ evidence of the prosecution witnesses and after assessing and analyzing the credibility of the evidence of such witnesses arrived at the conclusion that the prosecution has failed to establish the guilt against the accused/the petitioner. The said judgment of acquittal is not challenged by the State by preferring an appeal. The said factor is categorically stated by the respondent in the counter at paragraph 8 as hereunder : "8. It is respectfully submitted that based on the instructions of the Government, the Deputy Commissioner (CT), Coimbatore, was instructed to initiate simultaneous disciplinary action under Rule 17(b) of the TNCS (D&A) Rules, 1955 against the petitioner for the allegations of demand and acceptance of illegal gratification, and for violating Rule 5 and 20 of the Tamil Nadu Government Servant Conduct Rules 1973 vide Commissioner of Commercial Taxes letter No.E2/73761/03 dated 17.08.2005. In Government Letter No.12122/E1/2008-1 CT & RE (E1) Department, dated 28.07.2008, government enclosing the report of the appropriate authority intimated that the appropriate authority decided not to file appeal against the accused officials who had been acquitted in the criminal case against them. ...." Therefore, it is crystal clear that the judgment of acquittal of the petitioner has reached its finality. It is pertinent to note that only after the petitioner has been acquitted in the criminal case by the judgment dated 29.04.2008, the impugned charge memo was issued against the petitioner on 13.03.2009. The respondent stated in its counter that the said initiation of departmental proceedings is based on the instructions of the Government. It is further stated that pursuant to the issue of the impugned charge memo, enquiry is pending and the report of the enquiry officer is awaited. 7. Yet another factor to be borne in mind of this Court is that the departmental proceedings initiated against the co-delinquent, viz., Mr.K.Rajendran, Assistant Commercial Tax Officer, was dropped as per the the order dated 27.09.2010 in G.O.(2D)No.133, Commercial Taxes and Registration (E1) Department. It is seen that the said officer has also been issued with the similar charge memo on the same date, i.e., on 13.03.2009 and after receiving the explanation of the said co-delinquent officer and after receiving the enquiry officer's report, the departmental proceedings have been dropped. The fact remains that the said delinquent officer is also one of the co- accused in the criminal case along with the petitioner herein. The petitioner produced a copy of the said order dated 27.09.2010 and the perusal of the said order of dropping departmental proceedings against the said officer Thiru.K.Rajendran, Assistant Commercial Tax Officer, reveals that the disciplinary authority taken note of the acquittal of the said officer in the criminal case by placing https://hcservices.ecourts.gov.in/hcservices/ reliance on the judgment of acquittal in the criminal case dated 29.04.2008 passed in respect of the said delinquent officer, namely, Thiru.K.Rajendran as well as the petitioner herein. 8. It is relevant to incorporate the following paragraphs of the said order as hereunder : "This findings and decision taken by the honourable court cannot be left unnoticed and reconsidered. The accused officer's further explanation relying on the Supreme Court judgment referred by him stating that the charge memo under section 17(b) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules should not have been formulated is not acceptable as the trial conducted before the civil court under the provisions governing the Vigilance and Anti-Corruption activities and the memo issued by the department has been framed for violating rule 20(1) of the Tamil Nadu Government Servant Conduct Rules, 1973 for the reason stated therein. This has been taken up for detailed inquiry to decide whether it is proved or not. The view of the Court that none of the prosecution witnesses brought in, have answered against the accused so as to confirm the charges, still holds goods as the main complainant and the primary witness Thiru.P.Ramachandran (Driver TDG 5211) did not respond to the summon issued for appearance till this moment. Further the Vigilance and Anti-Corruption officials have also reported that he and the 5 other vital witnesses are not traceable as their present whereabouts are not known. This adds strength to the earlier observation of the Honourable court, rendering it impossible for the inquiry officer to wide spread the inquiry further. It is pertinent to note here that the records available on hand, outcomes of the oral enquiry and cross examination will suffice to arrive at a conclusion over the issue." 9. The fact remains from the perusal of the above said order dropping action against the co-delinquent officer, viz., Thiru.K.Rajendran, Assistant Commercial Tax Officer, is mainly based on the judgment of acquittal rendered by the criminal court. In view of such admitted fact, this Court is of the considered view that there is absolutely no justification for subjecting the petitioner for the departmental action in respect of the same charge as that of the charge in the criminal case. 10. The learned counsel also rightly placed reliance on the decision of the Hon'ble Apex Court in M.Paul Anthony V. Bharat Gold Mines Ltd., reported in 1999 (3) SCC 679, wherein the Hon'ble Apex Court has held as follows : "34. There is yet another reason for discarding the whole of the case of the respondents. As pointed out https://hcservices.ecourts.gov.in/hcservices/ earlier, the criminal case as also the departmental proceedings were based on identical set of facts, namely, "the raid conducted at the appellant's residence and recovery of incriminating articles therefrom." The findings recorded by the enquiry officer, a copy of which has been placed before us, indicate that the charges framed against the appellant were sought to be proved by police officers and panch witnesses, who had raided the house of the appellant and had effected recovery. They were the only witnesses examined by the enquiry officer and the enquiry officer, relying upon their statements, came to the conclusion that the charges were established against the appellant. The same witnesses were examined in the criminal case but the Court, on a consideration of the entire evidence, came to the conclusion that no search was conducted nor was any recovery made from the residence of the appellant. The whole case of the prosecution was thrown out and the appellant was acquitted. In this situation, therefore, where the appellant is acquitted by a judicial pronouncement with the finding that the "raid and recovery" at the residence of the appellant were not proved, it would be unjust, unfair and rather oppressive to allow the findings recorded at the ex parte departmental proceedings to stand. 35. Since the facts and the evidence in both the proceedings, namely, the departmental proceedings and the criminal case were the same without there being any iota of difference, the distinction, which is usually drawn as between the departmental proceedings and the criminal case on the basis of approach and burden of proof, would not be applicable to the instant case." (emphasis supplied by this Court) 11. In yet another decision in G.M.Tank V. State of Gujarat and another reported in TNLJ 2006 (3) 457 (Civil), the Hon'ble Apex Court has held as follows : "31. The judgments relied on by the learned counsel appearing for the respondents are not distinguishable on facts and on law. In this Case, the departmental proceedings and the criminal case are based on identical and similar set of facts and the charge in a departmental case against the appellant and the charge before the criminal court are one and the same. It is true that the nature of charge in the departmental proceedings and in the criminal case is grave. The nature of the case launched against the appellant on the basis of evidence and material collected against him during enquiry and investigation and as reflected in the charge sheet, factors mentioned are one and the same. In other words, charges, evidence, witnesses and circumstances are one and the same. In the present https://hcservices.ecourts.gov.in/hcservices/ case, criminal and departmental proceedings have already noticed or granted on the same set of facts namely, raid conducted at the appellant's residence, recovery of articles therefrom. The Investigating Officer, Mr.V.B.Raval and other departmental witnesses were the only witnesses examined by the Enquiry Officer who by relying upon their statement came to the conclusion that the charges were established against the appellant. The same witnesses were examined in the criminal case and the criminal court on the examination came to the conclusion that the prosecution has not proved the guilt alleged against the appellant beyond any reasonable doubt and acquitted the appellant by his judicial pronouncement with the finding that the charge has not been proved. It is also to be noticed the judicial pronouncement was made after a regular trial and on hot contest. Under these circumstances, it would unjust and unfair and rather oppressive to allow the findings recorded in the departmental proceedings to stand. 32. In our opinion, such facts and evidence in the department as well as criminal proceedings were the same without there being any iota of difference, the appellant should succeed. The distinction which is usually proved between the departmental and criminal proceedings on the basis of the approach and burden of proof would not be applicable in the instant case. Though finding recorded in the domestic enquiry was found to be valid by the Courts below, when there was an honourable acquittal of the employee during the pendency of the proceedings challenging the dismissal, the same requires to be taken note of and the decision in Paul Anthony's case will apply." 12. The principles laid down by the Hon'ble Apex Court in the decisions cited supra are squarely applicable to the facts of the instant case as in this case also the impugned charge memo issued against the petitioner is same and identical as that of the charge framed against him in the criminal case and in the criminal case, the petitioner has been acquitted and as against the said judgment of acquittal, no appeal is preferred by the State, as pointed out earlier. 13. At the risk of repetition, it is to be reiterated that in respect of superior officer of the petitioner, namely, co-delinquent one K.Rajendran, Assistant Commercial Tax Officer, the departmental proceeding was dropped as per the order dated 27.09.2010 mainly on the basis of his acquittal in the criminal case and the findings of the criminal court has been extracted in the said order as incorporated by this Court in the earlier portion of this order. https://hcservices.ecourts.gov.in/hcservices/ 14. In view of the aforesaid reasons, this Court has come to the irresistible conclusion that the impugned charge memo is unsustainable in law. Accordingly, the writ petition is allowed and the charge memo dated 13.03.2009 issued against the petitioner by the respondent in his proceedings No.E1/29932/2008 is hereby set aside. Consequently, connected miscellaneous petition is closed. No costs. Sd/ Asst. Registrar /true copy/ Sub Asst.Registrar gg To The Principal Secretary/Commissioner of Commercial Taxes, Ezhilagam, Chepauk, Chennai – 600 005. 1 cc To The Special Government Pleader, SR.58479 1 cc To Mr.Ravi Shanmugam, Advocate, SR.58411 W.P.No.12341 of 2010 & M.P.No.1 of 2010 UG(CO) RH (26.9.11) https://hcservices.ecourts.gov.in/hcservices/