THE HON’BLE MR.JUSTICE PARESH UPADHYAY AND THE HON’BLE MR.JUSTICE D.BHARATHA CHAKRAVARTHY W.A.No.1470 of 2021 V.Prabhakar             .. Appellant. For Appellant           : Mr.L.Chandra Kumar                                  For Respondent        : Mr.S.Haja Mohideen Gisthi JUDGMENT D.BHARATHA CHAKRAVARTHY, J. The appellant, if he so chooses, shall submit his further explanation to the second show cause notice, dated 09.10.2020 within 10 days from today and we will make it clear that the appellant will be at liberty to submit his explanation on all aspects of the matter so as to persuade the disciplinary authority to agree/disagree with the findings of the enquiry officer in respect of the charges and the same shall be considered by the respondent on merits, in accordance with law, without in any manner, being influenced by the observations in the second show cause notice about the proposal of penalty; Consequently, C.M.P.Nos.9314 and 10403 of 2021 are closed. (P.U., J.)            (D.B.C., J.) .

IN THE HIGH COURT OF JUDICATURE AT MADRAS

Judgment Reserved on : 06.09.2022

Judgment Pronounced on : 16.09.2022

CORAM :

THE HON’BLE MR.JUSTICE PARESH UPADHYAY

AND

THE HON’BLE MR.JUSTICE D.BHARATHA CHAKRAVARTHY

W.A.No.1470 of 2021

V.Prabhakar                                             .. Appellant

Versus

Chennai Port Trust

Rep. by its Chairman,

Rajaji Salai, Chennai.            .. Respondent

Prayer : Appeal filed under Clause 15 of the Letters Patent against the order, dated 08.06.2021 in W.P.No.16148 of 2020.

For Appellant           : Mr.L.Chandra Kumar

For Respondent        : Mr.S.Haja Mohideen Gisthi

JUDGMENT D.BHARATHA CHAKRAVARTHY, J.

A. Facts in Brief leading to the filing of this appeal:-

In the year 2012, the appellant, V.Prabhakar, was working as Deputy

Chief Mechanical Engineer, M & EE Department, Chennai Port Trust. While so, a firm, namely, M/s.Hunter Shipping & Trading Company was allotted an open space measuring 8230 Sq.meters for a period of 11 months on 01.08.2022 to 30.06.2013, for which electric power supply was provided by the Chennai Port Trust.  When the above lease period was extended from 01.07.2013 to 31.05.2014, it is alleged that the appellant had arbitrarily denied the continuation of power supply, inspite of the firm submitting the letter along with extension of land allotment order.  It is further alleged that with a view to provide scope for himself to demand bribe, inspite of already the said firm having deposited a security deposit amount of Rs.14,319/-, the appellant informed them to remit a fresh deposit of a sum of Rs.23,210/-.  It is further alleged that the appellant had demanded a sum of Rs.25,000/- to continue the electricity connection without any fresh deposit.  Unwilling to pay the bribe, the representatives of the said firm lodged a complaint with the appropriate wing of the Central Bureau of Investigation, upon which, a trap was set and the appellant was caught red handed accepting bribe on 05.08.2013 and the appellant was proceeded with criminally in accordance with law for the  offenses under the Prevention of Corruption Act, 1988.

  1. Since the said above acts also amount to gross misconduct as per the Chennai Port Trust Employees’ (Classification, Control and Appeal) Regulations, 1988, (hereinafter referred to as ‘the Regulations’) a charge memorandum, containing three charges, was issued on the appellant on 14.06.2014.  The appellant thereupon filed W.P.No.17674 of 2014 stating that when criminal investigation and trial are proceeding on the same charges, proceeding further with the  Departmental Enquiry would result in prejudice to the appellant, as he will be forced to disclose his defence and by relying upon the judgment of the Hon’ble Supreme Court of India in Capt. Paul Anthony Vs. Bharat Gold Mines Ltd., and Anr.[1] and prayed to postpone the enquiry. At his prayer, an interim order, dated 04.07.2014 was passed granting an interim injunction restraining the Chennai Port Trust from proceeding further with the enquiry based on the charge memorandum and the matter stood thus.
  2. In the meanwhile, the investigation in the criminal case was completed and a chargesheet was filed and the appellant was tried before the XIII Additional Special Court (C.B.I), Chennai in C.C.No.45 of 2013 and by a judgment, dated 22.12.2015, the appellant was found guilty for the offences under Sections 7 and 13(2) read with 13(1)(d) of the Prevention of Corruption Act, 1988 and was imposed with a sentence of two years Rigorous Imprisonment and fine. Thereafter, when W.P.No.17674 of 2014 came up for hearing on 01.08.2016, it was pleaded on behalf of the appellant that the appellant has been convicted on 22.12.2015 and that he has preferred an appeal and therefore prayed that his Writ Petition be dismissed as infructuous and accordingly, the said Writ Petition was dismissed as having become infructuous, however, with liberty that if the appellant succeeds in the appeal, he can challenge in the manner known to law.
  3. On the basis of the said conviction by the Criminal Court, a show cause notice, dated 03.09.2016 was issued as to why the penalty of removal from service should not be imposed as per the Regulation 17(i) of the

Regulations.  On 07.09.2016, the appellant replied that he was infected with Jaundice and requested extension of time for reply.  Thereafter, the appellant submitted his detailed reply on 16.09.2016.  Thereafter, considering the conviction and the reply submitted by the appellant, by an order, dated 21.09.2016, the punishment of removal from service was imposed.  It was also mentioned that if the appellant is aggrieved, he can file an appeal within two months from the date of receipt of the said order.

  1. Thereafter, on 15.05.2017, a learned Single Judge of this Court in the appeal preferred by the appellant in Crl.A.No.18 of 2016, upturned the finding of the guilt and acquitted the appellant on the grounds that the sanction order did not contain the date of request, and that for payment of an additional security deposit of Rs.23,210/- it was in doubt that the accused would have demanded a sum of Rs.25,000/- and on other technical grounds, granted the benefit of doubt and acquitted the accused of the charges. Pursuant thereto, the appellant was reinstated into service, by an order, dated 23.07.2018, in and by which, the charge memorandum, dated 14.06.2014 was also restored and revived and an undertaking that the appellant will co-operate for the enquiry was also taken.
  2. On 29.12.2018, the appellant submitted his explanation denying the charges. Therefore, an Enquiry Officer was also appointed and after conduct of detailed domestic enquiry, the Enquiry Officer submitted his report holding that the charges 1 & 2 against the appellant have been proved and that the charge No.3 alone as not proved.  The Disciplinary Authority, while agreeing with the Enquiry Officer’s finding in respect of the charge Nos.1 and 2, differed with the finding of the Enquiry Officer in respect of the charge No.3 and by duly giving the reasons for his disagreement, issued a show cause notice, dated 19.10.2020 calling for the explanation in writing within 15 days from the date of receipt of the memorandum.  In the said second show cause notice, it was also mentioned that the disciplinary authority proposes to impose a major punishment.
  3. At this stage, once again on 28.10.2020, the appellant filed the present Writ Petition in W.P.No.16148 of 2020 challenging both the charge memorandum and the second show cause notice along with the Enquiry Officer’s report and again an order of interim stay was passed upon his interim prayer. The respondent Port Trust filed its counter and the petition to vacate the interim order and the matter was taken up for final disposal on 31.03.2021 and by a judgment, dated 08.06.2021, this Court had found that the Port Trust was well within its limits to revive the charge memorandum once the criminal case ended in acquittal and that merely because a punishment is also proposed in the show cause notice that it will not in be treated that the respondent authorities have closed their mind and further taking into account that the respondent is due to retire on 30.06.2021, directed the appellant to submit his explanation within 10 days time and directed the respondent Port Trust to pass final orders on or before 29.06.2021.  It is useful to extract the paragraph No.43 of the said judgment which is as follows:-

43. Taking note of the said submissions, the Petitioner is given ten (10) days’ time from today to submit a Reply to the Respondent, failing which, the Respondent is entitled to proceed against him based on the records available. It is made clear that, the Petitioner shall not seek time for submitting a Reply under any circumstances, even be it COVID-19, as he has already sought time on this pretext. However, if the Petitioner fails to submit a Reply, he cannot take a stand that, he was not afforded an opportunity to submit his explanation. The Respondent/Port Trust shall pass final orders based on the Petitioner’s Reply, on or before

29.06.2021.”

  1. The learned Judge had also made certain observations against the Criminal Appeal judgment in the order in paragraph 36 (a). Aggrieved by the said observations and the judgment, the present Writ Appeal is filed and again upon the interim prayer of the appellant, considering the said observations made against the judgment in Criminal Appeal, on 17.06.2021, an interim order of stay of the operation and all further proceedings pursuant to the order of the learned Judge in W.P.No.16148 of 2020 was passed.

B. The submissions on either side:-

  1. Heard L.Chandra Kumar, learned Counsel for the appellant and

Mr.S.Haja Mohideen Gisthi, learned Counsel for the respondent.

  1. The learned Counsel for the appellant, taking this Court through the order impugned in the Writ Petition, made three submissions. Firstly, the revival of the charge memorandum that too by taking an undertaking at the time of reinstatement is illegal and high handed.  The second contention of the learned Counsel is that the impugned second show cause notice did not stop with the forwarding of Enquiry Report. The disciplinary authority disagreed with the findings of the Enquiry Officer and also proposed to impose a major penalty under Regulation 8(b) of the Regulations and therefore, the opportunity, which is proposed to be given, is only a farce one and not a fair opportunity as the Disciplinary Authority has already made up his mind and such making up of the mind without issuance of second show cause notice and without hearing the explanation of the appellant on the findings of the Enquiry Authority is illegal.  His third submission is that in any event, now the appellant has attained superannuation with effect from 30.06.2021 and he is also permitted to retire by the respondent Port Trust and is granted provisional pension and therefore, once the respondent has permitted the appellant to retire and did not retain him in service, it is not now open to proceed with the charges except to proceed under the pension rules for pension cut, if any, that too in the manner known to law and therefore, would submit that on this score also the appeal has to be allowed.
  2. Per contra, S.Haja Mohideen Gisthi, the learned Counsel appearing for the respondent would submit that it is only because of the interim stay obtained by the appellant in the earlier W.P.No.17674 of 2014, the Disciplinary Enquiry was not proceeded till the disposal of the criminal case. By passing an order under Regulation 17(i) on account of the conviction, the appellant was removed from service.  Once the acquittal is granted and the appellant is reinstated into service, the respondent Port trust has every right to revive the charge memorandum.  He would therefore submit that the challenge to the charge memorandum is without any basis. He would submit that the second impugned order in the Writ Petition is the second show cause notice and merely because it is generally proposed to impose a major penalty, it cannot be said that the second show cause notice is issued with closed mind and the the petitioner cannot be permitted to challenge the second show cause notice and he has to only submit an explanation to the same.
  3. As far as the third submission is concerned, he would submit that continuously interim orders are obtained by the appellant. Even in the present Writ Appeal, an interim order is obtained.  Even the enquiry proceedings were protracted in the every manner possible.  The appellant is not permitted to retire by the respondent.  In view of the order of the interim stay, an express order of suspension and retaining him in service also could not be passed and therefore, a communication was sent on 18.06.2021 stating that he is due for retirement on superannuation with effect from 30.06.2021 and was advised to return all the trust properties before the said date.  Further, by another communication, dated 14.09.2021, he was informed that terminal benefits will be withheld till the finalisation of the departmental and judicial proceedings and only considering his subsistence, provisional pension was allowed, that also was subject to the finalisation of the departmental and judicial proceedings.  In fact, by an order, dated 03.06.2022, all the above proceedings were recorded and the request of the appellant to treat  the period of suspension on duty etc., were specifically rejected and he has been put on notice that everything will be decided only after the finalisation of the disciplinary proceedings after the W.A.No.1470 of 2021 (the present Writ Appeal) is finalised.  Therefore, he would submit that the arguments of the learned Counsel for the appellant, in this regard, is liable to be rejected.

C. The Discussion & Findings:-

  1. We have considered the rival submissions made on either side and perused the material records of the case. As far as the first contention of the learned Counsel for the appellant is concerned, it is settled law that the disciplinary proceedings, which are initiated pending the criminal proceedings, need not be continued and when there are alternative provisions to remove the convicted person from service based on the

Criminal Court judgment. As per the Regulation 17(i) , a convicted person can be removed from service after being heard by issuing a show cause notice based on the Criminal Court judgment which was done in the instant case.  But, however, when subsequently an appellate forum acquits the appellant, the law is very well settled that the acquittal by a Criminal Court will not by itself automatically entitle to closure of proceedings but the departmental proceedings can be revived and  concluded for the facts that the standard of proof is preponderance of probability in a departmental proceeding, while it is proof beyond doubt in a Criminal Court. The departmental proceedings are also not affected by  the technical aspects such as improper sanction etc.. The acquittal in this case is by granting benefit of doubt. In the departmental proceedings, what has to be decided is to whether there is  misconduct or not which can be considered irrespective of is whether or not the offenses under Sections 7 and 13(2) read with 13(1)(d) of the Prevention of Corruption Act, 1988 is made out beyond any doubt.  The law on the subject has been recapped in the latest judgment of the Hon’ble Supreme Court of India in The State of Rajasthan Vs. Phool Singh[2] in paragraphs 11 and 12.  Therefore, the submissions made on behalf of the appellant regarding the revival of the charge memorandum is without any substance as the respondents are well within their right to revive and continue the departmental proceedings and even the undertaking obtained from the appellant is superfluous.  Thus, the challenge to the charge memorandum is without any merits. But, however, we are not in agreement with the language used in the judgment in paragraph No.32(a) and therefore, those observations contained therein are not in accordance with law.

  1. As far as the challenge to the second show cause notice is concerned, on the face of it is the second show cause notice and the vires of the issuing authority is also not questioned. The ground of challenge is predetermined mind and violation of principles of natural justice. The law on the point has been laid down by the Hon’ble Supreme Court of India in Punjab National Bank & Ors. Vs. Kunj Behari Misra[3] wherein it is clearly held that the purpose of issue of second show cause notice is to enable the delinquent official to put forth such explanation to the Disciplinary Authority to make him accept the enquiry officer’s findings if it is in his favour and to reject the findings if it is against him.  Therefore, if there is any disagreement, the reasons have to be specifically mentioned. The decision should be tentative and should not be final.  As far as the first requirement is concerned, the impugned show cause notice clearly mentions the reasons which is extracted hereunder :

As regards Article of Charge – III, I observed that the Prosecution Witnesses (PW-1, PW-2, PW-3, PW-4 & PW-5) have stated that the tainted currency of Rs.25,000/- was placed on the table of CO and that the CO had demanded bribe money on previous occasions.  It is pertinent to note that had the CO not demanded money, he could have raised alarm and instructed PW-1 & PW-3 to take back the money, which he never done as seen from the enquiry proceedings and related documents.

I have also seen from the report of CBI,

ACB, Chennai that the Sodium Carbonate Solution become pink when left & right hand fingers of CO was immersed in the solution, since the tainted currency possessed by CO was smeared with phenolphthalein power, which proves that the tainted currency was received by Shri. V. Prabakar and the same was in his possession.  If the CO had not demanded money and not touched the tainted currency, the Sodium Carbonate Solution would not become pink when his both hand fingers dipped in the solution.  As such the demand money and receipt of bribe amount by Shri. V. Prabakar is clearly established.

The controversy is in respect of whether the same is tentative or not.

In this regard, the last paragraph of the show cause notice reads thus :

In view of the reasons recorded above, I have proposed to impose major penalty on Shri. V. Prabakar, Dy.Chief Mechanical Engineer under Regulation 8(b) of Chennai Port Trust Employees (CCA) Regulations, 1988.  Copy of the Inquiry Officer’s report dated 14.8.2020 is forwarded to Shri. V. Prabakar, Dy.CME under Regulation 13 (1-A) of the Chennai Port Trust

Employees’ (Classification, Control and Appeal) Regulations, 1988 for his written submission, if any within fifteen days from the date of receipt of this Memorandum.

  1. Thus, it may be seen that ultimately it is the inquiry officer’s report which is forwarded to the delinquent for his explanation and therefore, the finding is only tentative and the appellant is entitled to put forth all his explanation against all the three charges and the Disciplinary Authority has to consider the same on merits. The mentioning about the proposal of major punishment of the first sentence was sought to be explained by the respondents that since Regulation 17 (i) envisages to mention about the penalty it is mentioned. Regulation 17(i) will not come into operation here as the show cause notice was not on the basis of conviction. In any event when the disciplinary authority is only forwarding the inquiry report with opportunity to submit explanation, all the findings are only tentative and the mentioning about punishment will not render the entire proceedings illegal. On the other hand, it is made clear that the disciplinary authority has to consider the explanation of the appellant on merits in accordance with law regarding all aspects of the matter. We say so because, even if there is an error in the second show cause notice, the relief which the petitioner would be entitled to is to restart the proceedings from the said stage.   Therefore, we find that per se, the challenge to the second show cause notice is untenable and therefore, the learned Judge has rightly dismissed the Writ Petition.
  2. Coming to the third contention of the appellant that on account of his superannuation nothing can be proceeded further, first, it may be seen that it is only at the instance of the appellant, this Court has granted interim stay of the order of the learned Single Judge and all further proceedings pursuant thereto. Therefore, when all  further proceedings are stayed, the hands of the respondent are tied and they were in a nebulous situation of not having freedom to pass appropriate orders of suspension on the last date of superannuation (30.06.2021) of the appellant so as to retain him in service. But, however, it can be seen from the orders passed itself that the appellant is not permitted to retire.  The communication dated 18.06.2021 merely calls to return  the trust properties and the communication, dated 14.09.2021 also did not expressly permit him to retire though it is said that he will be granted provisional pension by withholding terminal benefits till finalisation of the departmental and judicial proceedings.  Therefore, that order itself makes it clear that it was till the finalisation of the judicial proceedings. Therefore, now when we are upholding the order of the learned Single Judge, appropriate orders have to be passed undoing the difficulties created by the interim order of the Court. It may be seen that from the beginning, by the orders of interim stay, W.P.No.17674 of 2014 and thereafter in the present Appeal, the appellant has been stalling the proceedings.  If he is innocent or denies allegation, he has to plead before the Disciplinary Authority and it is for the Disciplinary Authority to consider the same on merits and decide the issue.  On the other hand, by sheer ingenuity, repeatedly spokes have been put in the process of the Departmental Enquiry and the appellant wants to go scotfree claiming advantage of his own untenable petitions filed before this Court.  The legal position has been eloquently laid down by the Hon’ble Supreme Court in Amarjeet Singh and Ors. Vs. Devi Ratan and Ors.[4] and it is useful to extract paragraph 15 of the said judgment :

15. No litigant can derive any benefit from mere pendency of case in a Court of Law, as the interim order always merges in the final order to be passed in the case and if the writ petition is ultimately dismissed, the interim order stands nullified automatically. A party cannot be allowed to take any benefit of his own wrongs by getting interim order and thereafter blame the Court. The fact that the writ is found, ultimately, devoid of any merit, shows that a frivolous writ petition had been filed. The maxim “Actus Curiae neminem gravabit”, which means that the act of the Court shall prejudice no-one, becomes applicable in such a case. In such a fact situation the Court is under an obligation to undo the wrong done to a party by the act of the Court. Thus, any undeserved or unfair advantage gained by a party invoking the jurisdiction of the Court must be neutralised, as institution of litigation cannot be permitted to confer any advantage on a suitor from delayed action by the act of the Court.

  1. Therefore, the appellant cannot be allowed to gain advantage of his own acts of filing these petitions and in that view of the matter, we not only reject the contention on behalf of the appellant and we issue appropriate directions enabling the respondent Port Trust to place the appellant under suspension retaining him from service and treating the amount so far paid as the provisional pension as subsistence allowance and providing an opportunity to the respondent to complete the disciplinary inquiry within a time frame as it has already reached the second show cause notice stage.
  2. Accordingly, we dispose off the Writ Appeal on the following terms:-
  • We disagree and expunge the observations of the learned judge in the paragraph No.32(a) of the judgment;
  • We uphold the judgment of the learned Judge in as much as it dismissed the Writ Petition filed by the appellant in W.P.No.16148 of 2020;
  • We hold that the appellant was not expressly permitted to retire and since the respondent was prevented by virtue of interim order and as we are finding that the Writ Appeal as without merits, we hold that the respondent will be entitled to pass appropriate orders suspending/retaining the appellant in service with effect from 30.06.2021, till the finalisation of the disciplinary proceedings and the subsistence allowance if any shall be duly paid in accordance with the rules by adjusting the amount of provisional pension already paid;
  • Since the disciplinary proceedings are at the second show cause notice stage, we direct the respondent to complete the disciplinary proceedings within a period of two months from the date of receipt of copy of the order;
  • The appellant, if he so chooses, shall submit his further explanation to the second show cause notice, dated 09.10.2020 within 10 days from today and we will make it clear that the appellant will be at liberty to submit his explanation on all aspects of the matter so as to persuade the disciplinary authority to agree/disagree with the findings of the enquiry officer in respect of the charges and the same shall be considered by the respondent on merits, in accordance with law, without in any manner, being influenced by the observations in the second show cause notice about the proposal of penalty;
  • Consequently, C.M.P.Nos.9314 and 10403 of 2021 are closed.

(P.U., J.)            (D.B.C., J.)

16.09.2022

Index : yes

Speaking order

grs

PARESH UPADHYAY, J. and D.BHARATHA CHAKRAVARTHY, J.

grs

 

Pre-Delivery Judgment in

W.A.No.1470 of 2021

16.09.2022

[1] (1999) 3 SCC 679

[2] MANU/SC/1082/2022

[3] (1998) 7 SCC 84

[4] (2010) 1 SCC 417

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