S KALAIYARASU Vs. REVENUE DIVISIONAL OFFICER KANCHEEPURAM DISTRICT

JUDGEMENT

(1.) THE petitioner has challenged the impugned order dated 18.09.2009 passed by the respondent vide show cause notice No.1745.

(2.) FACTS leading to the filing of this writ petition are enumerated below : (i) The petitioner, namely, S.Kalaiyarasu was initially appointed as Village Administrative Officer on 08.07.1984 thereafter, he was transferred and posted as V.A.O. to Mogalvadi Village, Madurantakam Taluk and accordingly, he joined as V.A.O. on 01.06.1994. While so, he learnt that some fictitious claims for the Distress Relief Fund had been registered by his predecessor Mr.Duraikannu based on the death registration of the bread winner of some families. When this was brought to the notice of the authorities concerned, a criminal case was instituted by the Deputy Superintendent of Police, V & AC, Kancheepuram against (i) the petitioner as A-3, (ii) one Mr.E.Devarajan, Revenue Inspector as A-1, (iii) Mr.Duraikannu, V.A.O. as A-2 - the petitioner's predecessor and (iv) Mr.Murugesan as A-4 being Public servants and A-5 to A-7 being beneficiaries in Crime No,2/AC/96/CH under Section 120-B r/w 468, 471 r/w 468, 409, 420 I.P.C. and Sec. 13(2) r/w 13(1)(c) and (d) of the Prevention of Corruption Act (hereinafter referred to as the 'Act') r/w 109 I.P.C. (ii) In the meantime, vide the proceedings of the Sub Collector, Chengalpet, dated 22.11.1995, the petitioner was placed under suspension alleging some grave charges are pending. However, no charges were pending on that day and hence, the petitioner approached the Tribunal in O.A.No,5118 of 2006, wherein the Tribunal allowed the Original Application on 05.03.1997 quashing the suspension order after extracting the statement in the counter that disciplinary action could not be preceded by framing charges against the petitioner. (iii) The criminal case was taken on file in Special Case No,3 of 2000 on the file of the learned Special Judge and Chief Judicial Magistrate at Chengalpet. The petitioner would submit that even as per the F.I.R., the alleged incident took place even before the petitioner assuming charge as V.A.O. of the said Village however, the learned Judge without verifying the same has convicted the petitioner and sentenced to undergo 2 years R.I. for each offence and a fine of Rs.5000/- each in default six months R.I. and sentence and ordered to be run concurrently vide the judgment dated 29.07.2009. Immediately, the petitioner preferred an appeal against the said conviction before this court in Criminal Appeal No,486 of 2009. This court, vide order dated 20.08.2009 was pleased to admit the appeal and the substantive sentence of imprisonment was also suspended. (iv) The petitioner would state that taking advantage of the conviction by the Trial Judge, the respondent herein vide his proceedings dated 18.09.2009 placed him under suspension and by another order on the same day had prejudged the issue and proposed to impose the penalty of dismissal from service, and issued a show cause notice under Rule 17(c)(1)(i) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules, (hereinafter referred to as the 'Rules') calling the petitioner to make representation on the penalty proposed.

(3.) LEARNED Senior Counsel appearing for the petitioner would contend that the respondent vide his proceedings dated 18.09.2009 has placed the petitioner under suspension and by another order on the same day had prejudged the issue and proposed to impose the penalty of dismissal from service, which is highly illegal, arbitrary and violative of rules and principles of natural justice. According to the learned Senior Counsel, the impugned order is dated 18.09.2009 and by that time, the sentence was suspended by this court on 20.08.2009 and it has been mentioned in the show cause notice itself, which shows the total non-application of mind of the respondent. 5a. In support of his contentions, learned Senior Counsel for the petitioner has relied on the following : (i) a Supreme Court decision reported in (1995) 3 SCC 377 (Deputy Director of Collegiate Education, Madras vs. S.Nagoor Meera) "3. On 27.10.1993 the Deputy Director of Collegiate Education issued a notice to the respondent calling upon him to show cause why he should not be dismissed from service in view of his contention by the criminal court. The show cause notice expressly recites that inasmuch as the High Court has only suspended the sentence, his conviction is still in force. The notice also recites the nature of the offence for which the respondent was convicted. 8. ... We are, therefore, of the opinion that taking proceedings for and passing orders of dismissal, removal or reduction in rank of a government servant, who has been convicted by a criminal court is not barred merely because the sentence or order is suspended by the appellate court or on the ground that the said government servant-accused has been released on bail pending the appeal." (ii) a decision of this court reported in (2006) 1 MLJ 40 (M.Devendran vs. The Director, Tamil Nadu Fire and Rescue Services, Egmore, Tamil Nadu) "6. Thus, it is seen from the above said Rule 17(c)(i)(1) that where it is proposed to impose on a member of a service any such penalty as is referred to in Clause (i) of the sub rule on the basis of facts which have led to his conviction in a criminal court (where or not he has been sentenced at once by such court to any punishment) but he shall be given a reasonable opportunity of making any representation that he may desire to make and such representation, if any, shall be taken into consideration before the order imposing the penalty is passed. Whereas in this case, the respondent in the impugned communication has pre-judged the things and has provisionally come to the conclusion to dismiss the petitioner from service which is contrary to the rule referred to above. Hence, the impugned communication is quashed. However, liberty is given to the respondent to issue a fresh notice in accordance with law." (iii) yet another decision of this court reported in 2006 (3) CTC 655 (N.Gokulakrishnan vs. The Transport Commissioner, Chennai and another) "14. Taking into consideration the above decision, the facts and circumstances of the case and also the arguments of the learned counsel on both sides, the impugned proceedings dated 17.10.2005 passed by the first respondent is quashed. However, liberty is given to the first respondent to issue a fresh notice in accordance with law and to follow the procedure contemplated under "the Rules" within a period of eight weeks from the date of receipt of a copy of this order."