By mutual consent, the main petition itself is taken up for final disposal.
2. The petitioner has come forward with this petition seeking for the relief of quashing the impugned proceedings of the third respondent in R.C.NO.23481/2003PA 2 dated 24.06.2008 and the proceedings of the first respondent singed by the second respondent in R.C.No.23481/2003/PA2 dated 30.06.2008 and directing the respondents herein to disburse the service benefits on par with Junior, pay commissions arrears, consequential retiral benefits and disburse all the arrears accrued on the above counts within a short date that may be fixed by this Court.
3. Mr.K.Rajkumar, learned counsel for the petitioner submitted that after filing this writ petition and after this Court ordering notice, the impugned proceedings, viz., R.C.No.23481/2003/PA2 dated 24.06.2008 suspending the petitioner from service and the consequential proceedings in R.C.No.23481/2003/PA2 dated 30.06.2008 not permitting the petitioner to retire from service have been withdrawn by the order dated 06.11.2009 in R.C.NO.23481/2003 PA 2 passed by the second respondent herein in view of the acquittal of the petitioner in two criminal cases in C.C.Nos.148/2003 and 150/2003 on the file of the learned Judicial Magistrate No.II, Virudhunagar. It is submitted that in view of such order passed by the second respondent herein, the only remaining grievance of the petitioner is the petitioner is entitled to receive all the retirement and attendant benefits and notional promotion. The learned counsel for the petitioner, in support of his claim, placed reliance on the decision of the Hon'ble Apex Court in Sulekh Chand & Salek Chand V. Commissioner of Police & Ors reported in JT 1995 (1) SC 23. It is also pointed out by the learned counsel for the petitioner that this Court also passed similar orders in such similar situation following the decisions of the Hon'ble Apex Court.
4. Heard Mr.R.Manoharan, learned Government Advocate on the submissions made by the learned counsel for the petitioner.
5. I have carefully considered the submissions of both sides and perused the materials available on record.
6. It is seen that the petitioner challenged the impugned orders, viz., suspension order dated 24.06.2008 and consequential order dated 30.06.2008 not permitting the petitioner to retire from the service. It is brought to the notice of this Court that both the said orders have been revoked by the order dated 06.11.2009 passed by the second respondent herein in his proceedings R.C.No.23481/2003 PA2 which reads hereunder :
"Order :
In the proceedings I cited, Thiru.M.Umaiyorubagam, Junior Cooperative Auditor was suspended under rule 17(e) of Tamil Nadu Civil Service (Disciplinary & Appeal) Rules from service with effect from 24.06.2008 due to the criminal case No.3/02 filed by CCIW - CID/Virudhunagar pending before the Judicial Magistrate Court No.2, Virudhunagar.
2. In the proceedings 2nd cited, he was not permitted to retire on his reaching the date of superannuation, on the afternoon of 30.06.2008 but retained in service until the criminal case under trail against him are concluded.
3. In the reference 3rd cited, the Judicial Magistrate Court No.2, Virudhunagar has delivered judgement order dated 12.08.2009 acquitting Thiru.M.Umaiyorubagam, Junior Cooperative Auditor, from all the accusation levelled against him, and discharged from the criminal case No.3/2002 and C.C.NO.150/2003, vide court case No.148/2003 and 150/2003.
4. In view of his acquittal from the criminal case No.3/2002 vide Court Case No.148/2003 and 150/2003 by the Judicial Magistrate Court No.2, Virudhunagar and the dropping of charges from the departmental proceedings, the suspension order issued against him is revoked Under Rule 17(e)(6) of the Tamil Nadu Civil Services (Disciplinary & Appeal) Rules, and he is permitted to retire from the service on the date of his superannuation on 30.06.2008 A.N.
5. As per FR 54(B), the suspension period is regularised as duty period."
6. The Assistant Director of Cooperative Audit/Virudhunagar is authorised to draw and disburse the pay and allowances to the individual for the suspension period and the amount if any paid in excess during his suspension period shall be recovered from him."
7. The only remaining grievance of the petitioner is to the effect that the petitioner is entitled to get notional promotion and attendant benefits on par with his juniors. The learned counsel placed reliance on the decision of the Hon'ble Apex Court in Sulekh Chand and Salek Chand V. Commissioner of Police & Ors reported in JT 1995 (1) S.C. 23 and the Hon'ble Apex Court in that decision held as hereunder :
"It is settled law that though the delinquent official may get an acquittal on technical grounds, the authorities are entitled to conduct departmental enquiry on the self same allegations and take appropriate disciplinary action. But, here, as stated earlier, the acquittal was on merits. The material on the basis of which his promotion was denied was the sole ground of the prosecution under section 5(2) and that ground when did not subsist, the same would not furnish the basis for DPC to overlook his promotion. We are informed that the departmental enquiry itself was dropped by the respondents. Under these circumstances, the very foundation on which the D.P.C. had proceeded is clearly illegal. The appellant is entitled to the promotion with effect from the date immediate junior was promoted with all consequential benefits. The appeals are allowed. No costs."
8. The Hon'ble Apex Court in C.O.Arumugam and others V. State of Tamil Nadu and others reported in 1994-III-LLJ (Supp.) 1133 as held as follows : "5. As to the merits of the matter, it is necessary to state that every civil servant has a right to have his case considered from promotion according to his turn. It is a guarantee flowing from
Article 14 and
16(1) of the Constitution. The consideration of promotion could be postponed only on reasonable grounds. To avoid arbitrariness, it would be better to follow certain uniform principle. The promotion of persons against whom charge has been framed in the disciplinary proceedings of charge-sheet has been filed in criminal case may be deferred till the proceedings are concluded. They must, however, be considered for promotion if they are exonerated or acquitted from the charges. If found suitable, they shall then be given the promotion with retrospective effect from the date on which their juniors were promoted."
9. A Division Bench of this Court in the decision in Secretary, Vallalar Gurukulam Higher Secondary School, Vadalur, Cuddalore District V. District Educational Officer, Cuddalore, Cuddalore District and another reported in 2005 (1) MLJ 488 has held as hereunder :
"6. Once a person is acquitted in a criminal case, it has to be deemed that he never committed that offence. This is because every judgment operates retrospectively unless expressly made prospectively, unlike a legislation which normally operates prospectively unless expressly made retrospectively. Since the employee has been acquitted in the criminal case that judgment will operate retrospectively and it has to be deemed that the teacher concerned was never guilty of that offence. Consequently, he is entitled to his salary for the period of his unemployment and he is entitled to reinstatement. We see no infirmly in the order of the learned single Judge. The position may have been different if disciplinary proceedings had also been instituted against the respondent, but that was not done."
10. This Court also in A.S.Janaardhanan V. District Collector, Madurai reported in 2007 (7) MLJ 236 by following the decision of the Hon'ble Apex Court in C.O.Arumugam case (cited supra) and the Division Bench order of this Court has taken a similar view.
11. Therefore, in view of the above well settled principle of law, this court is constrained to direct the respondents 1 and 2 to give notional promotion to the petitioner on par with his immediate junior within a period of eight weeks from the date of receipt of a copy of this order with all attendant benefits after adjusting and deducting the subsistence allowance, if any, already paid to the petitioner.
With the above direction, this petition is disposed of accordingly. No costs. Consequently, connected miscellaneous petition is closed.
gg To
1. The Director of Co-operative Audit, 5, Kamarajar Road, Chennai - 600 005.
2. The Joint Director of Co-operative Audit (Headquarters), 5, Kamarajar Salai, Chennai - 600 005.
3. The Assistant Director of Co-operative Audit, Sadayandi Street, Virudhunagar.