D AMALADOSS Vs. STATE OF TAMIL NADU

JUDGEMENT

(1.) CHALLENGE is to the order in G.O.(2D) No.208 Home (Courts I-A) Department, dated 29-09-1999 passed by the first respondent, by which the petitioner was dismissed from service in respect of certain charges alleged against him, which have been held to be proved in the enquiry.

(2.) FACTS, in brief, as culled out from the pleadings on record, are: The petitioner was a Judicial Officer in the Tamil Nadu State Judicial Service. A complaint was made to the High Court by one R. Muthusamy against the petitioner alleging corruption and misconduct. The complaint was received by the Vigilance Cell of the Madras High Court on 2-12-1991. The Sessions Judge, Dharmapuri issued an office memorandum, dated 12-5-1992, calling for the remarks of the petitioner in respect of certain allegations made against him in the transfer petition (Crl.M.P. No.1286 of 1992) seeking transfer of the criminal case in C.C. No.152 of 1991, which was pending before the petitioner, to some other criminal court. The allegation was that the petitioner demanded bribe for delivering a favourable judgment. The petitioner submitted his explanation on 14-5-1992 denying the allegation of demand of bribe. Another office memorandum dated 21-7-1992 was issued to the petitioner by the Sessions Judge, Dharmapuri calling for his remarks on the complaint made by an advocate that out of personal animosity and inimical disposition of mind, he has shown discriminatory attitude in the mater of imposition of sentence and awarded higher sentence to one Kaveriammal, who was convicted in STR No.2698 of 1992. Petitioner submitted his explanation, denying the allegations made against him. These incidents had happened during 1991-93 when the petitioner was serving as Judicial Magistrate-I, Dharmapuri. In both these matters, an Advocate by name Kabilan had appeared for the accused and the transfer petition was made by him.While the matter stood at that stage, the petitioner was served with a memorandum in ROC No.176/96 Con.B2 dated 22-10-1996 with a copy of the report of the Special Officer (Vigilance Cell) and copies of the testimonies of the witnesses said to have been recorded during the preliminary enquiry held on 31-08-1996. The petitioner was directed to submit his explanation, which he did on 19-11-1996. In his explanation, the petitioner stated that since the subject-matter of the report related to the period July, 1991 to June, 1992, he could not recollect the factual details and, therefore, requested for copies of certain documents to enable him to make an effective explanation. Permission was granted to the petitioner to peruse the records in the presence of the Registrar of this Court, which was done by him on 14-12-1996. Ultimately, the petitioner submitted his explanation on 2-1-1997, denying all the allegations. The petitioner, in his explanation, also raised the plea of prejudice in view of the whooping delay of more than four years and also due to non-availability of certain important documents relating to the allegations for his persual. The explanation offered by the petitioner was found to be not acceptable. By proceedings dated 4-12-1997, five charges were framed against the petitioner. The crux of the charges is alleged demand of bribe and misconduct relating to the criminal cases in C.C. No.152 of 1991 and STR No.1698 of 1992, which were pending before the petitioner when he was Judicial Magistrate-I, Dharmapuri during 1991-93. Petitioner submitted his statement of defence on 29-1-1998.District Judge, Dharmapuri and the Principal Sub-Judge, Krishnagiri were appointed as the Enquiry Officer and the Presenting Officer respectively to conduct the enquiry proceedings initiated against the petitioner. The Enquiry Officer, after conclusion of the enquiry proceedings, submitted his report dated 25-9-1998 to the High Court, a copy of which was forwarded to the petitioner vide High Court proceedings dated 17-5-1999. Of the five charges, Charge Nos.1,2,4 and 5 were found to be proved against the petitioner and Charge No.3 was found to be not proved. The petitioner was required to make further representation with reference to the findings of the Enquiry Officer. The petitioner submitted his representation dated 20-7-1999.During the pendency of the enquiry proceedings, the petitioner had also made a representation to the High Court that since he had made a complaint before the Bar Council of Tamil Nadu against Advocate Kabilan for having filed false complaint before the District Court, Krishnagiri with reference to the allegation in Charge No.1., the entire enquiry proceedings should be kept in abeyance till the disposal of the complaint by the Bar Council.On 17-08-1999, the Administrative Committee of the High Court passed the minutes recommending to the Full Court to accept the findings of the Enquiry Officer and to impose the penalty of dismissal from service. The recommendation of the Administrative Committee was accepted by the Full Court in the meeting held on 24-08-1999.On the basis of the recommendation made by the Full Court, the second respondent, by the impugned order dated 20-09-1999, dismissed the petitioner from service. This was communicated to the petitioner at 4.45 p.m. on 30-9-1999, the day on which he was to be superannuated. The petitioner submitted an appeal on 19-11-1999, but sensing that no useful purpose would be served by awaiting the outcome of the appeal, he has filed the present writ petition challenging his dismissal from service.

(3.) LEARNED senior counsel further submitted that it is not uncommon in the judicial service, particularly in the criminal courts in mofussil stations, that there are no holidays for the Magistrates as they work on all the seven days of the weeks, including Saturday, Sunday and even on public holidays. Passing remand orders, recording dying declaration, etc. are done even on Saturdays, Sundays and even on public holidays. When once an order of remand to judicial custody is passed on a holiday in bailable offences, the right to move bail application accures to the accused instantaneously and there is no rule or circular prohibiting the release of the accused on bail on holidays in bailable offences. Thus, the findings of the Enquiry Officer on charge Nos.4 and 5 are erroneous. Further, grant of bail, imposition of sentence are all done in exercise of judicial powers and if the accused is aggrieved by the sentence, that could have very well been challenged by way of revision or appeal. No comparison could be made between the sentence imposed in one criminal case with the other to attribute allegations of motive, mala fide, etc. inasmuch as it all depends upon the facts and circumstances of the each case and the antecedents of the accused.