@JUDGMENTTAG-ORDER
M. Venugopal, J.@mdashThe Petitioner has filed the present Writ of Certiorarified Mandamus in calling for the records relating to the impugned order of the First Respondent/Chairman and Members of the Appointment committee, Corporation of Chennai, Chennai-3, communicated to him by the Second Respondent/Zonal Officer-1, Health Department, Zone-1, Corporation of Chennai, Chennai-3, in Ma.A.1. Na.Thu. Na.Ka. No. Su. 1/1752/2003 dated 23.06.2003 confirming the order of the Third Respondent in Ma.A.1. Na.A.Na.Ka. No. H1/829/99 dated -05-2002(But signed on 09.06.2002) and to quash the same. Further, the Petitioner has sought for issuance of a direction to the Respondents in treating his period of suspension from 19.02.1988 to 14.04.1998 as duty period and to grant him all consequential benefits.
2. The Petitioner was working as a pharmacist under the control of Assistant Health Officer, Zone-I, Tondiarpet, Corporation of Chennai. He attained the age of superannuation on 31.7.1998. He was placed under suspension with effect from 19.02.1988, while he was in service for his involvement in a criminal case in C.C. No. 8530/88 on the file of the Learned X Metropolitan Magistrate, Chennai.
3. The Petitioner was convicted for offences u/s 18(C) read with Section 27(b)(ii) of the Drugs and Cosmetics Act and sentenced to pay a fine of Rs. 5,000/- in default, to undergo simple imprisonment for three months. He was also convicted as per Section 18(a) read with Section 28(a) of the said Act and sentenced to pay a fine of Rs. 1,000/- in default, to undergo a simple imprisonment for three months, as per judgment delivered on 03.06.1999.
4. The Petitioner projected an appeal in Crl.Appeal No. 153 of 1999 on the file of the Learned III Additional Sessions Judge, Chennai. On 06.12.1999, the learned III Additional Sessions Judge allowed the Crl.Appeal No. 153 of 1999, by setting aside the judgment of the Learned X Metropolitan Magistrate, Egmore, Chennai in C.C. No. 8530 of 1988. As a matter of fact, he was acquitted of all the charges framed against him. During the pendency of Crl.Appeal No. 153 of 1999, he was reinstated in service with effect from 14.04.1998. He was placed under suspension once again on 30.07.1998 and was not allowed to retire from service on 31.07.1998., i.e., the date of superannuation.
5. The Third Respondent/Commissioner, Corporation of Chennai issued a Charge Memo dated 25.07.2000 subsequently in regard to the same set of facts on which a criminal case was filed against the Petitioner in C.C. No. 8530 of 1988, wherein he was acquitted in Crl.Appeal No. 153 of 1999 by the Learned III Additional Sessions Judge, Chennai. He has submitted his explanations to the Charge Memo and an inquiry was conducted. The Inquiry officer submitted his Inquiry report on 26.06.2001 exonerating him from all the charges.
6. The Third Respondent/Commissioner, Corporation of Chennai, passed an order in Ma.A.1. Na.A.Na. Ka. No. H1/829/99 dated -05-2002(But signed on 09.06.2002) permitting the Petitioner to retire from service with effect from the date of Superannuation viz. 31.07.1998, since he was exonerated from all the charges. The Third Respondent/Commissioner, Corporation of Chennai, however imposed a punishment of ''Censure'' on him, because of the reason that he was responsible for bringing disrepute to the Corporation of Chennai, in the eye of public and treating the period of his suspension from 19.02.1988 to 14.04.1998 as ''Leave on loss of Pay''.
7. It is to be noted that the Third Respondent/Commissioner, Corporation of Chennai had not disagreed with the findings of the Inquiry Officer, acquitting the Petitioner of all the charges. Furthermore, the third Respondent has not rendered a finding that the Petitioner was guilty. Infact, the third Respondent/Commissioner, Corporation of Chennai should not have punished him, when he was not found guilty in Crl.Appeal No. 153 of 1999 (by the Competent Court) as well as in the Departmental proceedings. Hence, he filed an Appeal to the First Respondent/Chairman and Members of the Appointment Committee, Corporation of Chennai on 23.07.2002. The Second Respondent/Zonal Officer-1, Health Department, Zone-1, Corporation of Chennai communicated the order dated 23.06.2003 in Ref. No. Ma.A.1. Na.Thu.Na.Ka. No. Su.1/1752/2003 mentioning that the First Respondent has rejected his Appeal.
8. The Petitioner, aggrieved against the impugned order of the First Respondent, communicated to him by the Second Respondent in Ref. No. Ma.A.1. Na.Thu.Na.Ka. No. Su.1/1752/2003 dated 23.06.2003, confirming the order of the Third Respondent has filed the present Writ Petition, before this Court.
9. The Learned Counsel for the Petitioner urges before this Court that the Petitioner has been acquitted in Crl.Appeal No. 153/1999 by the Learned III Additional Judge, Chennai and in respect of the same set of facts, the Third Respondent/Commissioner, Corporation of Chennai issued a Charge Memo dated 04.08.2000 and the Inquiry Officer has given a categorical finding that the charges levelled against the Petitioner have not been proved.
10. It is the contention of the Learned Counsel for the Petitioner that the Third Respondent/Commissioner, Corporation of Chennai has not disagreed with the findings of the Inquiry Officer and further he has also not held that the charges framed against the Petitioner have been proved.
11. Added further, the core contention advanced on behalf of the Petitioner is that there is No. finding of guilt against him either in Criminal Proceedings or in Departmental proceeding and hence, he cannot be punished in the eye of law.
12. Advancing his arguments, the Learned Counsel for the Petitioner submits that the Third Respondent/Commissioner of Corporation, Chennai has awarded the punishment of ''Censure'' and treated the period of suspension from 19.02.1988 to 14.04.1998 as Leave on loss of Pay and indeed the suspension period should have been treated as duty period in as much as the Petitioner has not been found guilty of the charges.
13. According to the Learned Counsel for the Petitioner, when an individual is found guilty of the charges framed against him, a punishment can be imposed and in any event, the First Respondent/Chairman and the members of the appointment committee, Corporation of Chennai should have set aside the order passed by the Third Respondent/Commissioner of Corporation, Chennai.
14. The substance of the contention of the Learned Counsel for the Petitioner is that when there is No. finding that the charges against the Petitioner have been proved, then there is No. justification at all in law to impose a punishment of ''Censure'' on the Petitioner. But in the instant case on hand, the First Respondent/Chairman and Members of the Appointment Committee, Corporation of Chennai has committed an error in confirming the order of the Third Respondent/Commissioner of Corporation, Chennai, which is not a speaking order. Therefore the order of the First Respondent communicated to Petitioner by the Second Respondent dated 23.06.2003 and the order of the Third Respondent, dated 05/2002 (but signed on 09.06.2002) are to be set aside to promote substantial cause of Justice.
15. The Petitioner has been issued with the Memo in H.D.C. No. C6/3135/83 dated 26.02.1988 issued by the Health Officer of the Third Respondent/Corporation of Madras, consequent to his arrest by the Police under criminal law in Crime No. 16 of 1988 as per Section 41(1) and 102 of Code of Criminal Procedure. He was remanded to Judicial Custody by the Learned 14th Metropolitan Magistrate, Egmore,. Hence, he has been placed under suspension with effect from 19.02.1988 pending disposal of the Criminal case. In this connection, it is to be mentioned that the Petitioner has applied for casual leave for 10 days from 19.02.1988 to 29.08.1988 on the ground of his ill health.
16. The Inspector of Police, N.I.B, Madras-17 as per his letter dated 22.02.1988 has reported to the Third Respondent/ Corporation of Madras, Chennai that the Petitioner (Ramakrishnan son of P.Pitchai) was arrested by the police on 19.02.1988 at Perambur paper Mills Road near Gandhi Statue for possession of two blue colour small paper boxes containing English injection ampules having a seal on the label as Tamil Nadu Arasu in Tamil and on his confession, the Police have seized another big paper Box containing a number of injection ampules, tablets, strips having the seal as Tamil Nadu worth about Rs. 22,000/- from his house. The seized articles are suspected to be the stolen ones from the Government Hospitals in Madras city.
17. The trial Court viz., the Learned 10th Metropolitan Magistrate, Chennai in C.C. No. 8530 of 1988 dated 03.06.1999 has convicted the Petitioner in respect of the offences as per Section 18(C) read with Section 27(b)(ii) of the Drugs and Cosmetics Act and sentenced him to pay a fine of Rs. 5,000/- in default to undergo simple imprisonment for three months. Further, the Petitioner has been convicted as per Section 18(a) read with Section 28(a) of the said Act and sentenced to pay a fine of Rs. 1,000/- in default to undergo simple imprisonment for three months.
18. It is not in dispute that the Petitioner in Criminal Appeal No. 153/1999 filed by him has been acquitted of all the charges by the Learned III Additional Sessions Judge, Chennai by judgment dated 06.12.1999.
19. The Appellate Court in Crl.Appeal No. 153 of 1999 while setting the conviction and sentence passed by the Trial Court has directed the refund of the fine amount if any paid by the Appellant.
20. The Inquiry Officer has submitted his Inquiry report on 26.06.2001 exonerating the Petitioner from all the charges levelled against him. But the Third Respondent/Commissioner (incharge) Corporation of Chennai as per proceedings dated 05/2002 (But signed on 09.06.2002) has observed that the Petitioner has been responsible for bringing disrepute to the Corporation of Chennai and hence permitted him to retire from 31.07.1998 afternoon, since he has already retired and imposed a punishment of ''Censure'' and further directed the temporary suspension period from 19.02.1988 to 14.04.1988 as leave without pay.
21. The Third Respondent has also informed the Petitioner that after the receipt of the order dated 05/2002(But signed on 09.06.2002), the Petitioner is entitled to prefer an Appeal within a period of sixty days before the Chairman and Members of the Appointment committee of Corporation of Chennai.
22. The Petitioner by means of his representation dated 28.07.2002 addressed to the First Respondent has made a plea inter alia to the fact that when an official is exonerated from the charges, his period of suspension is to be treated as on duty and placed reliance on a Government Order.
23. The Second Respondent by means of proceedings in Ref. No. Ma.A.1. Na.Thu.Na.Ka. No. Su.1/1752/2003 dated 23.06.2003 has informed the Petitioner stating that the First Respondent has confirmed the punishment of ''Censure'' and the temporary suspension period as ''Leave on loss of pay'' because of the fact that his explanation has been found to be unsatisfactory and also his action has been responsible for bringing the Chennai Corporation into disrepute.
24. The Learned Counsel appearing for the Respondents 1 to 3 submits that as per Rule 9(1)(a) of the Tamil Nadu Pension Rules, 1978, the Government reserves right to withhold or withdraw a pension or part thereof, whether permanently or for a specific period if, in any departmental or judicial proceeding, the pensioner is found guilty of grave misconduct or negligence during the period of his service including Service rendered upon reemployment after retirement, and such withholding or withdrawing the pension may be effected irrespective of the fact whether or not any pecuniary loss on account of such grave misconduct or negligence was caused to the Government etc. In the instant case, the Petitioner because of his involvement in the Criminal case has brought disrepute to his employer viz. Chennai Corporation. As such the order the Third Respondent awarding ''Censure'' and treating the temporary suspension from 19.02.1988 to 14.04.1998 as leave on loss of pay are legally valid one.
25. The [Chennai]Corporation Clause III and Clause IV Service [Discipline and Appeal] Bye-laws 23 speaks of revision the petition to the Government which runs as follows:
Where the original order imposing any of the penalties specified in by-law 5 has been imposed on a member of a service by the Government, such member may, within two months on the date of which the order is communicated to him, submit a revision petition to the Government against the order. In disposing of such petition, the Government shall, as far as possible, follow the procedure prescribed for dealing with appeals.
26. Further, bye-law 24 of the [Chennai]Corporation Clause III and Clause IV Service [Discipline and Appeal] refers to ''Powers of the Government to pass orders on completed disciplinary proceedings'' which enjoins as follows:
Notwithstanding anything contained in these bye-laws, the Government shall have the power to call for the records relating to the disciplinary proceedings which has been completed either by the disciplinary authority or by the appellate authority and pass such orders on it as they may consider just or expedient.
27. The Learned Counsel for the Respondents 2 to 3 refers to Fundamental Rules 54B-1.(1) which extracted as below:
When a Government servant who has been suspended is reinstated or would have been so reinstated but for his retirement on superannuation or compulsory retirement while under suspension, the authority competent to order reinstatement shall consider and make a specific order--
(a) regarding the pay and allowances to be paid to the Government servant for the period of suspension ending with reinstatement or the date of his retirement or superannuation or compulsory retirement, as the case may be; and
(b) Whether or not the said period shall be treated as a period spent on duty.
28. Also 54B-1(2) specifies as follows:
(2) Notwithstanding anything contained in Rule 53, where a Government servant under suspension dies before the disciplinary or the court proceedings instituted against him are concluded, the period between the date of suspension and the date of death, shall be treated as duty for all purposes and his family shall be paid the full pay and allowances for that period to which he would have been entitled had he not been suspended, subject to adjustment in respect of subsistence allowance already paid. [G.O.Ms. No. 282, P & AR (FR-Spl.) Department, dated 12.06.90]
(w.e.f. 19th August 1989).
29. Fundamental Rules 54 -B-1(5) runs as follows:
(5) In cases other than those falling under Sub-rules (2) and (3), the Government Servant shall, subject to the provisions of Sub-rules (8) and (9) be paid such amount (not being the whole) of the pay, and allowances to which he would have been entitled had he not been suspended, as the competent authority may determine, after giving notice to the Government servant of the quantum proposed and after considering the representation, if any, submitted by him in that connection, within such period which, in No. case shall exceed sixty days from the date on which the notice has been served, as may be specified in the notice.
30. Fundamental Rules 54B-(6) and (7) are as follows:
(6) Where suspension is revoked pending finalisation of the disciplinary or the court proceedings, any order passed under Sub-rule (1) before the conclusion of the proceedings against the Government Servant, shall be reviewed on its own motion after the conclusion of the proceedings by the authority mentioned in Sub-rule (1), who shall make an order according to the provisions of Sub-rule (3) and Sub-rule (5), as the case may be."
"(7) In a case falling under Sub-rule (5), the period of suspension shall not be treated as a period spent on duty unless the competent authority specifically directs that it shall be so treated for any specified purpose:
Provided that if the Government servant so desires, such authority may order that the period of suspension shall be converted into leave of any kind due and admissible to the Government servant.
31. As far as the present case is concerned, the Inquiry Officer has submitted his report on 26.06.2001 exonerating the Petitioner from all the charges levelled against him. However, the Third Respondent/Commissioner, Corporation of Chennai has passed an order dated 05/2002 (But signed on 09.06.2002) has allowed the Petitioner to retire from service with effect from the date of Superannuation viz. 31.07.1998.
32. The Third Respondent/Commissioner, Corporation of Chennai while passing the order in proceedings dated 05/2002 (But signed on 09.06.2002) has not modified or varied the order passed by the Inquiry Officer, instead he has gone to the extent of passing an order permitting the Petitioner to retire on the After Noon of 31.07.1998 besides awarding a punishment of ''Censure'' and further issued a direction to treat the temporary suspension period from 19.02.1988 to 14.04.1998 as leave without salary.
33. At this Juncture, this Court aptly points out the decision Sunderlal Bhagaji v. State AIR 1954 MP 129 wherein, the Principle underlying the plea of autre fois acquit (formerly acquitted) is not fully stated merely by mentioning that an accused individual should not be vexed twice by prosecution on the same set of facts.
34. It is to be remembered that the Fifth amendment of the American constitution provides inter alia "Nor shall any person be subjected for the same offence to be put twice in jeopardy of life and limb"
35. When the Third Respondent/Commisioner, Corporation of Chennai has permitted the Petitioner to retire from service on 31.07.1998 after noon and especially when he has not disagreed with the findings of the Inquiry Officer, dated 26.06.2001 exonerating the Petitioner from all the charges, then in law this Court opines that it is not open to the Third Respondent/Commissioner, Corporation of Chennai to pass an order of punishment of ''Censure'' and hence, imposing punishment of ''Censure'' is held illegal by this Court.
36. In this connection, it is worthwhile for this Court to point out that the Government of Tamil Nadu in G.O.Ms. No. 167, Personnel and Administrative Reforms (DO.II) Department, dated 10.06.1993 has issued an amendment to Rule 54 of Fundamental Rules which runs as follows.
In the said Fundamental Rules, in Rule 54, after ruling 9, the following ruling shall be added, namely:-
"10. When a Government Servant, who was suspended, is fully exonerated of the charges on appeal, the period of suspension shall be treated as duty; and he shall be entitled to pay and allowances for the entire period of suspension, provided the period of suspension ended before the date of his superannuation.
(BY ORDER of THE GOVERNOR)
Sd/- M. AHMED,
SECRETARY TO GOVERNMENT.
37. From the amendment of Rule 54 of Fundamental Rules as seen from G.O.Ms. No. 167, Personnel and Administrative Reforms (DO.II) Department, dated 10.06.93, it is candidly clear that the amendment issued under 3/93 refers to the aspect of regularising the period of suspension on Appeal and when a Government Servant who has been suspended and is fully exonerated of the charges on appeal, the period of suspension shall be treated as duty and further he shall be entitled to pay allowances for the entire period of suspension, provided the period of suspension ended before the date of his superannuation.
38. Applying the tenor and spirit of Amendment No. 3/93, Personnel and Administrative Reforms (DO.II) Department dated 10.06.1993, this Court comes to an inevitable conclusion that in the present case on hand, the Petitioner has been acquitted in Crl. Appeal No. 153 of 1999 by the Learned III Additional Sessions Judge, Chennai and also he is exonerated of the charges levelled against him by the report of the Inquiry Officer dated 23.06.2001. As such as per GO.Ms. No. 167, Personnel and Administrative Reforms (DO.II) Department, dated 10.06.93, the Petitioner''s period of temporary suspension from 19.02.1988 till 14.04.1998 will only have to be treated as duty period together with pay and allowances to which he is entitled to for the entire period of suspension. Accordingly, this Court sets aside not only the punishment of ''Censure'' but also the order passed by the Third Respondent/Commissioner, Corporation of Chennai in his proceedings in Ma.A.1. Na.A.Na.Ka. No. H1/829/99 dated -05-2002 (But signed on 09.06.2002) treating the temporary suspension period from 19.02.1988 to 14.04.1998 as leave without loss of pay in the interest of justice. Moreover, this Court holds that the Petitioner''s temporary suspension period from 19.02.1988 till 14.04.1998 is directed to be treated with pay and allowances for the entire period of suspension besides setting aside the punishment of ''Censure'' to prevent aberration of justice. Viewed in that perspective, the Writ Petition is allowed in above terms, leaving the parties to bear their own costs.
