HONOURABLE MR.JUSTICE S.VAIDYANATHAN AND THE HONOURABLE MR.JUSTICE A.A.NAKKIRAN W.A.No.2492 of 2021 and W.M.P.No.14606 of 2021 Mohammed Amin
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 01.10.2021
Coram
THE HONOURABLE MR.JUSTICE S.VAIDYANATHAN
AND
THE HONOURABLE MR.JUSTICE A.A.NAKKIRAN
W.A.No.2492 of 2021
and
W.M.P.No.14606 of 2021
Mohammed Amin …Appellant
vs.
1.The Corporation of Chennai,
rep. by the Commissioner,
Rippon Buildings, Chennai.
2.The Central Circle Deputy Commissioner,
Central Circle Office,
Corporation of Chennai,
No.36-B,Bulla Avenue,
Shenoy Nagar, Chennai – 600 030. …Respondents
Prayer: Writ appeal is filed under clause 15 of the Letter Patent praying to set aside the order passed in W.P.No.5768 of 2016 dated 17.02.2016 and allow this Writ Appeal.
For Appellant : Mrs.S.Thamizharasi
For Respondents : Mrs.Kaarthikaa Ashok
ORDER
(Judgement of the Court was made by S.VAIDYANATHAN, J.)
Instant writ appeal is directed against the order dated 17.02.2016 made in W.P.No.5768 of 2016. The writ petition was dismissed on the ground that the writ petitioner/appellant herein has approached this Court belatedly apart from the fact that the order of dismissal passed by the Disciplinary Authority dated 18.04.2005 has not been questioned.
2. The sum and substance of the issue on hand is that the writ petitioner is responsible for fabricating and manipulating the records and committed an act of impersonation and included the name of the deceased Narayaniammal in the list dated 12.04.1997 recommending regularisation of service of the sweepers. It appears that the husband of Narayaniammal had approached the respondent for certain details wherein he was informed that Narayaniammal was working and he was shocked and informed that one Prabavathi is working in the name of Narayaniammal. Criminal case has also been filed under various Sections of IPC against the appellant/writ petitioner and Prabhavathi. The appellant/writ petitioner was convicted by the criminal Court and ultimately, on technical grounds, he has been acquitted by this Court on 07.11.2014 in Crl.R.C.Nos. 562 & 519 of 2007. Two contentions were raised by the Appellant, firstly, once there is an acquittal by the criminal Court, more so, Hon’ble acquittal and that the appellant has attained the age of superannuation, the respondent ought to have granted all the terminal benefits, as if there is no order of dismissal. Secondly, once the criminal Court acquits a person, he is deemed to be back in service in the light of the G.O.Ms.No.84 dated 24.03.1995 which is extracted below.
GOVERNMENT OF TAMILNADU
AMENDMENT NO.
3/95 ABSTRACT
FUNAMENTAL RULES -Rule 54 – Regularisation of period of suspension made on both the criminal and departmental proceedings – Amendment – Issued.
———————————————————————————-
Personnel and Administrative Reforms (F.R.III) Department.
G.O.Ms.No.84- Dated:24-3-1995
Read:
1.G.O.Ms.No.261, P & AR. (F.R.III) Department dt.4-8-1992.
2.From the Accountant – General (Audit-I) Madras Lr.No.AG. (Au) I/cc/II/1-6 94-95/120 dt.9-3-95.
*****
ORDER:-
The following amendment is issued to the Fundamental Rules:-
2. The amendment hereby made shall be deemed to have come into force on the 4th August, 1992.
AMENDMENT
In the said Fundamental Rules, in Rule 54, after ruling 10, the following ruling shall be added namely:-
“11. When a Government Servant is placed under suspension where an enquiry into grave charges against him is pending or contemplated and a criminal proceedings are also instituted simultaneously in respect of the same charges and subsequently he is reinstated into service, the period of suspension shall be –
(i) treated as duty if there is a specific order or direction of a court of competent jurisdiction to this effect notwithstanding the fact that a penalty has been imposed in the departmental inquiry;
(ii) regulated under FR 54, only after the final order of the criminal court is delivered in which he is acquitted notwithstanding the fact that departmental enquiry have been finalised and a penalty has also been imposed upon him prior to the finalisation of criminal proceedings.
(By order of the Governor)
M.B.PRANESH,
Secretary to Government.
To
All Secretaries to Government, Madras-9
3. In view of the same, on technicalities that the order dated 18.04.2005 has not been questioned cannot be put against the appellant. We are not agreeing with the contention of the appellant on the following grounds. Firstly there is no Hon’ble acquittal and it is a fact that the department in a detailed enquiry established that there was a manipulation of records and impersonation. Merely because a person is acquitted in a criminal case, it does not mean that an employer is prohibited from proceeding with the departmental enquiry. In the present case on hand, even though FIR has been registered, departmental proceedings have been commenced independently and in the enquiry the charges have been established. Even the Disciplinary Authority has referred to the criminal case that has been foisted against the appellant but dehors the finding and conviction by the criminal Court for charge No.2 namely with regard to impersonation it has been held to be proved and that the other charge that he has received the money has not been proved. The factum that the death certificate has been suppressed and the records have been manipulated by the appellant is not in dispute, as it has been categorically established in domestic enquiry that the petitioner is alone responsible. Independent of the criminal case, surprisingly the Corporation has proceeded with the departmental enquiry without waiting for the result of the criminal Court and that the verdict of the criminal Court has been referred to and without being influenced by the criminal Court decision, charges have been established in the domestic enquiry. Mere reference to the order of the criminal Court does not mean that the authority can be influenced by the said decision. If the said criminal case has not been referred to in the order, the employee would have taken a stand that the department should have noticed the order of the criminal Court before passing final orders. The petitioner has referred to G.O.Ms.No.84 to strengthen his case which is extracted supra and a reading of the G.O. shows that it merely deals with how to treat an employee, who is placed under suspension and not with regard to automatic reinstatement. That apart, in the writ petition even though the petitioner has sought for reinstatement of service, he also challenged the order dated 18.04.2005 by which his claim was rejected for terminal benefits as he has attained the age of superannuation. When there is an order of dismissal dated 18.04.2005 which is intact and that no intra department appeal has been preferred or has been challenged before this Court, this Court cannot give a relief which has not been sought for unless otherwise, it is going to shock the conscience of this Court. In this case, the appellant has not challenged the order of dismissal from service dated 18.04.2005, and no relief could be extended. That apart as rightly held by the learned Single Judge, there is a delay of more than a decade in challenging even the order dated 18.04.2005. The appellant sought for a permission now to challenge the original order dated 18.04.2005. More than 16 years have gone by from the date of the order and she has also attained the age of superannuation. Therefore, having slept over the matter and not challenged the same at the threshold and that from the evidence let in before the domestic enquiry it is very clear that there has been manipulation of records which resulted in impersonation. The finding of the enquiry officer with regard to charge No.2 is as below.
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4. We are of the view that no permission can be granted by this Court to challenge the order dated 18.04.2005 as there should be some finality to every litigation more so like the present one of impersonation which has been held to be proved in the domestic enquiry. Accordingly the writ appeal is dismissed. No costs. Consequently connected miscellaneous petition is also closed.
(S.V.N.J.,) (A.A.N.J.,)
01.10.2021
dpq
Speaking order/Non-speaking order
Index: Yes/No
