IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 14.10.2009 CORAM THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.NO.32745 OF 2006 (O.A.NO.3944 OF 1998) K.Kanagaraj .. Petitioner Vs. 1.The Director of Town Panchayats, Kuralagam, Chennai-108. 2.The District Collector, Coimbatore. .. Respondents This writ petition has been preferred under Article 226 of the Constitution of India praying for the issue of a writ of certiorarified mandamus to call for the records connected in Pro.Na.Ka.No.S2/169219/92, dated 19.7.94 passed by the District Collector, Coimbatore and to set aside the same and to direct the respondents to sanction increment from 1994 onwards and pay arrears. For Petitioner : Mr.G.Elanzhezhiyan For Respondents : Mr.R.Neelakantan, GA - - - - ORDER The petitioner was working as a Junior Assistant in Karamadai Town Panchayat at Coimbatore District. He filed OA No.3944 of 1998 before the tribunal, challenging an order, dated 19.7.1994 passed by the second respondent, by which the petitioner was imposed with a punishment of stoppage of increment for a period of 6 years with cumulative effect. 2.The petitioner had filed an appeal against the said order to the first respondent, vide his appeal, dated 13.9.1994. It is not clear as to why the petitioner had moved the Tribunal after a period of four years. Even if an appeal was filed on time and the said appeal was not disposed of, in terms of Section 21 of the Administrative Tribunal Act, 1985, an appeal is deemed to have been disposed of within six months and then petitioner ought to have filed https://hcservices.ecourts.gov.in/hcservices/ the OA within one year thereafter. However, in paragraph 5 of the OA, he had stated that his O.A. was in time. The Tribunal, without examining this fact, had admitted the OA. 3.In view of the abolition of the Tribunal, the matter stood transferred to this court and was renumbered as W.P.No.32745 of 2006. 4.When the matter came up on 8.9.2009, this court directed the counsel for the petitioner to produce the copy of the judgment in the criminal case in which the petitioner had deposed as a witness. Accordingly, it was produced and circulated to this court. 5.The petitioner was charged by the second respondent with a charge memo, dated 10.3.1993. The charge against the petitioner was that when an Inspector attached to the Directorate of Vigilance and Anti corruption conducted an enquiry, the petitioner's statement was recorded by him. But, when the matter came up during trial before the Chief Judicial Magistrate-cum-Special Judge, Coimbatore on 28.7.1992, he went back on his earlier recorded statement with a view to help the accused officers. By doing so, he had neglected to discharge his duty and contravened the Tamil Nadu Government Servants' Conduct Rules. 6.The petitioner sent a reply, stating that whatever the statement he gave before the Special Judge was the true statement and whatever he gave before the court alone was given as a statement before the Vigilance police and he never went back on his statement. The second respondent, by an order, dated 19.7.1994 held that the charges were proved and therefore, he was guilty of the misconduct attributed to him. 7.Before the Special Court, the petitioner was examined as P.W.3. He was declared as "turned hostile" by the Special Prosecutor and accepted by the Judge. A perusal of the trial court's judgment in C.C. case No.5 of 1990, dated 21.12.1993, though describes the petitioner as having turned hostile being P.W.3, there was no adverse comment passed against the petitioner in that judgment. Even in the impugned order of punishment, the District Collector had merely referred to the deposition of the petitioner given before the criminal court and finally came to a conclusion that he had deliberately changed his stand before the trial court. 8.The defence stand of the petitioner was that he had spoken only as per his earlier statement in the criminal court also. Unless a witness conduct comes up for adverse comment by the trial court, it cannot be presumed that the witness had gone back on his statement given under Section 161 Cr.P.C. In the absence of any credible evidence against the petitioner to hold that he had deliberately gone back on his earlier statement, the second respondent cannot presume that he had made a change over. https://hcservices.ecourts.gov.in/hcservices/ 9.In the absence of any legal evidence, the impugned order passed by the second respondent is hereby set aside. This writ petition stands allowed. However, there will be no order as to costs. Sd/- Asst.Registrar /true copy/ Sub Asst.Registrar vvk To 1.The Director of Town Panchayats, Kuralagam, Chennai-108. 2.The District Collector, Coimbatore. +1 cc to Mr.G.Elanchezhiyan, Advocate, SR.No.54014 1 cc To The Government Pleader, SR.54539 ORDER IN W.P.NO.32745 OF 2006 RL {CO} TP/27.10.2009. https://hcservices.ecourts.gov.in/hcservices/