TRANSPORT COMMISSIONER CHEPAUK CHENNAI Vs. G DURAI

JUDGEMENT

(1.) THE State has come forward with this Writ Petition challenging the order of the Tamil Nadu Administrative Tribunal, dated 20.12.2000 passed in O.A.No.3744 of 1999, in and by which the Tribunal set aside the charge memo issued to the first respondent in Letter No.14057/V.1/90, dated 2.6.1999. THE Tribunal held that in respect of the very same charges of corruption, a criminal case in Special Case NO.22 of 1990 was laid against him before the Chief Judicial Magistrate, Thanjavur, which resulted in his conviction, by judgment dated 28.9.1992, which conviction was set aside by this Court on 20.11.1997 in Crl.A.Nos.633 and 634 of 1992, and therefore, in the light of the fact that such criminal proceedings were initiated under the special procedure which ended in acquittal, the departmental proceedings cannot be allowed to go on. THE Tribunal also took the view that since the facts and charges were identical in nature, in the light of the decision of the Supreme Court reported in AIR 1999 SC 1416 (Capt.M.Paul Anthony vs. Bharat Gold Mines Ltd. and another), the charge memo had to be set aside. As against the above said order of the Tribunal, the State has come forward with this Writ Petition. 1(a). This Writ Petition is resisted by the first respondent by raising certain contentions based on Tamil Nadu Civil Services (Disciplinary Proceedings Tribunal) Rules, 1955 and on the ground that the first respondent was acquitted by this Court in Crl.A.Nos.633 and 634 of 1992, by judgment dated 20.11.1997. 1(b). At the very outset, we wish to state that the above contentions are covered by the order of the Supreme Court, dated 26.9.2006 passed in Civil Appeal Nos.2674-2676 of 2004, wherein the Regional Transport Officer who was also identically placed like that of the first respondent herein, raised similar contentions which were rejected by the Supreme Court. Though the learned counsel appearing for the first respondent who appeared for the RTO in this Court when the matter came up before a Division Bench of this Court in W.P.Nos.100, 5579 and 19749 of 2001, dated 26.2.2002, reported in 2002 (III) L.L.J. 66 (State of Tamil Nadu vs. H.A.Munaff), the copy of the order of the Supreme Court dated 26.9.2006 in Civil Appeal Nos.2674-2676 of 2004, was not placed before us at the time when the arguments were advanced before us. THErefore, we deal with the contentions raised by the first respondent, which found favour with the Tribunal, in this Writ Petition at length. However, since we were able to secure the copy of the order of the Supreme Court in Civil Appeal Nos.2674-2676 of 2004 from the Registry, we will refer to the same in detail at the appropriate place in the later part of this order.

(2.) MR.P.S.Raman, learned Additional Advocate General appearing for the petitioner raised three contentions. According to him, application of Tamil Nadu Civil Services (Disciplinary Proceedings Tribunal) Rules, 1955, (hereinafter referred to as "the 1955 Rules"), in particular, Rules 4 and 5 will kick into operation only if the Government decides to refer the case to the Tribunal and if such a step was not taken by the Government, Rule 5 itself will have no application. The second contention was that the expression "or" used in Rule 5(b) of the 1955 Rules is only an enabling provision and not a disjunctive prohibitive provision and that any other construction of the said expression would render Rule 5 itself unconstitutional, as that would otherwise conflict with the enforcement of legislative enactment. Lastly, it was contended that in any event, the said expression "or" contained in Rule 5(b), can be read by this Court as "and" as between the expressions "Court of Law" and "by the Tribunal" to give life and make the provision a meaningful one. It was also contended that the acquittal by the High Court was only by giving "benefit of doubt" and inasmuch as the degree of proof in the criminal case and the domestic enquiry varies to a very large extent, at the threshold, namely at the stage of issuance of the charge memo, the Tribunal ought not to have interfered with the said disciplinary proceedings. The learned Additional Advocate General relied upon AIR 1976 SC 394 (Delhi Municipality vs. Kacheroo Mal), AIR 1980 SC 360 (Delhi Municipality vs. Tek Chand), AIR 1999 SC 1416 (M.Paul Anthony vs. Bharat Gold Mines Ltd.), AIR 2004 SC 4647 (Management, K.Tea Estates vs. A.B.C.Mazdoor Sangh), 2006 (5) SCC 446 (G.M. Tank vs. State of Gujarat) and 2007 (3) CTC 211 (SC) (NOIDA Enterprises Assn. vs. NOIDA) in support of his submissions.

(3.) YET another contention of the learned counsel appearing for the first respondent was that under the provision to Rule 17(1)(e)(4) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules, 1955, there is a statutory bar in proceeding with the disciplinary action. That apart, according to the learned counsel, by applying the principles of "res-judicata" and "promissory estoppel" also, the issuance of charge memo cannot be allowed to stand by invoking Rule 9 of the Tamil Nadu Pension Rules.