The Petitioner has challenged the proceedings of the 1st Respondent in Na. Ka.No.31803/085APA dated 02.06.2008 and to quash the same with a consequential relief to direct the 3rd Respondent to reinstate the Petitioner as Secretary of EE442 Kaval Kinaru Primary Co-operative Bank of Radhapuram Taluk, Tirunelveli District.
2.The case of the writ petitioner is that he was appointed as a Clerk with the 4th respondent society on 03.12.1993. Thereafter he was promoted as Cashier on 18.05.1998 and thereafter promoted as Assistant Secretary from 01.04.2007. Further he was given additional charge as Secretary on 13.12.2004 as the concerned Secretary at the relevant point of time from 04.12.2004 absconded from service. However, enquiry was contemplated under section 81 of the Tamil Nadu Societies Registration Act as against the President of the aforesaid society and at the completion of the enquiry, the 2nd Respondent directed the President to pay the entire amount of misappropriation by holding that he alone misappropriated the amount involved in the misappropriation. Further the order passed by the 2nd Respondent in the departmental enquiry, it was held that the Petitioner was negligent as he did not inform the misappropriation committed by the President of the Society to the higher officials. At the same time as the President did not pay the misappropriated money, the Deputy Registrar of Society at Cheran Mahadevi lodged a complaint in CCI Wing, Tirunelveli and the petitioner was arrested along with another clerk on 11.01.2003. Thereafter, he was released on bail on 27.01.2003. In the meantime, the Petitioner was suspended from service 12.01.2003. Thereafter on 28.01.2003 as per the order of the Special Officer dated 27.01.2003, the Petitioner was reinstated into service, but he was not allowed to continue his duty. So, the petitioner filed a writ petition before the Madras High Court in W.P.Nos.3923 of 2003 and 3924 of 2003 for Mandamus. By the order dated 31.12.2003, passed in the aforesaid writ petitions, the 1st Respondent was directed to pass appropriate order on the representation of the Petitioner dated 03.06.2003 and 10.09.2003. However by the order dated 24.02.2004 the Petitioner was directed by the 2nd Respondent to wait for his reinstatement till the termination of the criminal proceedings.
3.The further case of the Petitioner is that in the aforesaid circumstances, the 3rd Respondent by his notice dated 28.02.2004 required the Petitioner to offer explanation for the charges framed against him. The Petitioner filed his reply statement and he has informed the enquiry officer to stop the proceedings, as all the original documents were in the custody of the criminal Court, he also pointed some irregularities as the witness were compelled to make their statements. However, the enquiry officer concluded that all the 9 charges were proved and he passed an order in this connection on 25.11.2004. Further, the Petitioner was required to furnish explanation as to why he should not be dismissed from service.
4.The specific case of the Petitioner is that the said communication was received by him on 06.12.2004 and he offered his explanation on 13.12.2004. However, final order was passed by holding that the Petitioner has not furnished any explanation within 7 days after the receipt of the final order; the Petitioner sent another representation stating that the enquiry was against natural justice. Apart from that a review petition was also filed by the Petitioner before the 2nd Respondent on 28.06.2006 after getting acquittal from the criminal case on 30.05.2006. However, by the order dated 17.08.2006 the 2nd Respondent dismissed the review petition. Subsequently, the petitioner filed an appeal before the 1st Respondent and the same was dismissed on 23.01.2007. Thereafter, the Petitioner preferred a revision before the Joint Registrar on 05.01.2008. In the meanwhile the Petitioner filed a writ petition in W.P.(MD)No.87 of 2008 but the same was dismissed on 05.01.2008 with a direction that the revision filed by the Petitioner is to be considered. However, the order passed by the Additional Registrar on 02.06.2008 which is impugned in the present writ petition.
5.That the learned Counsel for the writ petitioner would contend that the whole enquiry is vitiated as admittedly all the original records pertaining to the case are in the custody of the criminal Court and the photo copies cannot be relied upon in the enquiry. Moreover, the charges framed as against the Petitioner by the enquiry officer were dealt with by the criminal Court and acquitted the Petitioner. So, the order passed by the judicial authority will have a bearing in the department proceedings. So, according to the learned counsel for the Petitioner the impugned order is to be set-aside.
6.Per contra, the learned Government Pleader would submit that the writ petition is not maintainable and does not warrant interference by this Court, on the factual events. Moreover, by adopting all legal formalities the enquiry was conducted and report was given and based on that the petitioner was imposed punishment of dismissal from service. The charges leveled against the Petitioner are true and the punishment imposed upon the Petitioner is proportionate to the charges framed against the Petitioner.
7.I heard Mr.A.R.Sethupathy, learned counsel for the petitioner, Mr.K.Guru, learned Additional Government Pleader for the respondents 1 to 3 and Mr.K.Balasubramanian, learned counsel for the 4th respondent and the materials available on records are perused.
8.The learned Counsel for the Petitioner has contended that the explanation offered by the petitioner for all the 9 charges are true and they are based on records. Moreover, when the original documents were in the custody of the criminal Court, the enquiry officer ought not to have conducted the enquiry by relying on photo copies as photo copies will not be form part of original records. Further, in no manner the charges against the Petitioner were able to prove but with oblique intention hold that the charges have been proved. The charge memo is perused by this Court and the same has disclosed that there are no details as to how the petitioner is connected with the charges. Further, the same is lack of clarity in its contents and the same ought not to have been considered as proper. So, the prayer of the petitioner for the quashment of the impugned order is having legal force.
9.On the other hand, the learned Additional Government Pleader would submit that all the legal proceedings are duly complied with and the charges against the Petitioners are proved in accordance with law.
10.However, the perusal of the impugned order would show that the explanations given by the Petitioner were not duly considered by comparing the same with the contents of the charges. At the same time it is not desirable to hold that photocopies can be relied upon in the departmental proceedings admittedly all the records are in the custody of the criminal Court in Calendar Case No.2 of 2004. Though the writ petitioner cannot take advantage that the acquittal of the criminal case will shield him the Departmental proceedings, but this Court cannot shirk its responsibility when in the impugned order is prima facie a not tallied with the records relied on in this case. Apart from that no material is available that the petitioner has misappropriated any money of the bank. At the same time the explanations offered by the petitioner has not been considered in the light of the original records, of the bank. It is the duty of the enquiry officer to meet all the explanations offered by the Petitioner and answer the same.
11.Further, it is the admitted case that the criminal case was ended in acquittal on 30.05.2006 but the impugned order was passed only 02.06.2008. It is stated in the impugned order that since the petitioner was given benefit of doubt, it shall not have any bearing in the department proceedings. It is true that the acquittal of the criminal case will have no bearing in the departmental proceedings but, the Hon?ble Supreme Court in JOGINDER SINGH case reported in (2015) 2 Supreme Court cases 377, held as follows:
The learned counsel for has rightly placed reliance upon the decision of this Court in Inspector General of Police V. S.Samuthiram of which relevant paragraph is extracted as under: (SCC p.609, Para 24) ?24. The meaning of the expression ?honourable acquittal? came up for consideration before this Court in RBI v. Bhopal Singh Panchal. In that case, this Court has considered the impact of Regulation 46(4) dealing with honourable acquittal by a criminal Court on the disciplinary proceedings. In that context, this Court held that the mere acquittal does not entitle an employee to reinstatement in service, the acquittal, it was held, has to be honourable. The expressions, ?honourable acquittal?, ?acquitted of blame?, ?fully exonerated? are unknown to the code of criminal procedure or the penal code which are coined by judicial pronouncements. It is difficult to define precisely what is meant by the expression ?honourably acquitted?. When the accused is acquitted after full consideration of prosecution evidence and that the prosecution had miserably failed to prove the charges leveled against the accused, it can possibly be said that the accused was honourably acquitted.?
12.So, the discussion of the Hon?ble Supreme Court in the case of acquittal, Hon?ble Acquittal and Benefit of Doubt, it is held that when the prosecution is failed to prove the charges and the Court concerned acquit the accused, then it can be termed as Hon?ble acquittal admittedly, the term ?Honorable Acquittal? is not been defined in the Code of Criminal Procedure. So, I have no hesitation to apply the ratio laid down by the Hon?ble Supreme Court in the aforesaid case to the instant case. In spite of the fact that the said judgment was rendered by the Hon?ble Supreme Court in the matter of recruitment in the uniform service, the ratio laid down by the Hon?ble Supreme Court in the aforesaid case is applicable to the instant case as the same is relevant to the facts and circumstances of the instant case since the impugned order was passed as because the criminal case registered against the Petitioner was ended in acquittal on benefit of doubt that will not have any bearing in the departmental proceedings. This analogy is negative by the Hon?ble Supreme Court as to how a judgment of a Criminal Court can be viewed. So, the order of acquittal will have a bearing in the departmental proceedings. Apart from that the whole departmental enquiry was conducted based on photo copies of documents and the authorities concerned have not taken any effort to get the original documents from the Court concerned even after the order of acquittal. So, in my considered opinion, the impugned order will not be termed as valid one, but the same is to be set-aside for the foregoing discussions.
13.In the result, this writ petition is allowed and the impugned proceedings of the 1st Respondent in Na.Ka.No.31803/085APA, dated 02.06.2008 is quashed. No costs.
To
1.The Additional Registrar of Co-operative Societies, Chennai ? 600 005.
2.The Joint Registrar of Co-operative Societies, No.2, Surayinar Street, Palayamkottai, Tirunelveli.
3.The Deputy Registrar of Co-operative Societies, Cheranmahadevi Circle, Cheranmahadevi Post, Tirunelveli District..