S.Ponmani Vs The Principal Secretary to the Govt of Tamil Nadu

Writ Petition is filed under Article 226 of Constitution of India, praying for issuance of a Writ of Certiorarified Mandamus, calling for the entire records in pursuant to the letter issued by the 2^nd respondent No.3829/DCD-a2/2017-1 dated 9.6.2018 and the consequential punishment order issued by the 1^st respondent vide G.O.(Ms)No.139 (Cooperation, Food and Consumer Protection(CE2) Department) dated 8.10.2018 and quash both of them with a consequential direction to the respondents to pay all the consequential and attendant benefits to the petitioner within a stipulated time.

¶23

For Petitioner : Mr. T.P.Prabakaran For Respondents : Mr.R.Neelakandan, AAG Assisted by Mr.P.Ganesan, GA – R1 to R3 Mr.M.Devendran, Standing Counsel-R2 Mr.V.Vijayshankar – R6 & R7 R4 & R5 – No Appearance.

¶24

O R D E R

¶25

The challenge in this Writ Petition is to G.O. (Ms) No.139, Co-operation,

¶26

Food and Consumer Protection (CE2) Department, dated 29.06.2018, issued by the first respondent, whereby the provisional decision was confirmed imposing

¶27

2

¶28

https://www.mhc.tn.gov.in/judis

¶29

W.P No. 31269 of 2018

¶30

the punishment of permanent pension cut of Rs.7,867/- per month from the pension payable to the petitioner.

¶31

The petitioner, while serving as Additional Registrar of Co-operative Societies, was issued a charge memo dated 05.05.2005 alleging that, actuated by corrupt motive and abuse of official position, he demanded illegal gratification from the complainant. It was alleged that on 31.07.2002, the petitioner demanded a sum of Rs.25,000/- from the complainant for permitting him to rejoin duty after the expiry of medical leave and, on 05.08.2002, reduced the demand to Rs.10,000/- as advance and Rs.15,000/- to be paid after rejoining duty. It was further alleged that on 13.08.2002, the petitioner accepted Rs.10,000/- and handed over the amount to his Personal Clerk, Ms. K. Banumuthy, to keep in her custody, thereby receiving illegal gratification other than legal remuneration.

¶32

The petitioner denied the charges. A departmental enquiry was conducted. The Inquiry Officer, after examining the prosecution witnesses and recording the defence statement of the petitioner, held that the charges were proved. A second show-cause notice was issued to the petitioner, who submitted a further representation disputing the findings. Thereafter, the first respondent, after considering the enquiry report, the petitioner’s explanation, and the

¶33

3

¶34

https://www.mhc.tn.gov.in/judis

¶35

W.P No. 31269 of 2018

¶36

opinion furnished by the Tamil Nadu Public Service Commission, passed the impugned order imposing a permanent pension cut. Aggrieved by the same, the petitioner has filed the present writ petition.

¶37

Learned counsel for the petitioner contended that the finding of guilt rests solely on the uncorroborated testimony of PW1, the complainant. The shadow witness (PW2) did not witness the alleged demand and acceptance. PW3, who was stated to be present at the relevant time, did not support the prosecution case and was treated as hostile. It was further submitted that the chemical analyst’s report does not conclusively establish demand and acceptance. In the absence of cogent and reliable evidence, the impugned order is arbitrary and unsustainable.

¶38

Per contra, learned counsel for the respondents submitted that the testimony of PW1, coupled with the evidence of PW11 and PW14 and the chemical analyst’s report (Ex.P6), establishes demand and acceptance of illegal gratification. It was contended that the findings of the Inquiry Officer are based on evidence on record and do not warrant interference under Article 226 of the Constitution of India.

¶39

4

¶40

https://www.mhc.tn.gov.in/judis

¶41

W.P No. 31269 of 2018

¶42

This Court has considered the rival submissions made by the learned counsels for the parties and perused the materials available on record.

¶43

PW1 lodged a complaint with the Department of Vigilance and AntiCorruption alleging demand of bribe. A trap was arranged. A phenolphthalein demonstration was conducted and a pre-trap mahazar was prepared. PW1 entered the petitioner’s chamber and later gave the pre-arranged signal. The trap team thereafter entered and conducted the post-trap proceedings.

¶44

However, material inconsistencies emerge from the evidence. PW1 stated that PW2 accompanied him into the chamber. PW2, the shadow witness, categorically deposed that he did not accompany PW1 inside the chamber and did not witness any demand or acceptance. Thus, the shadow witness did not corroborate the complainant on the crucial aspects of demand and acceptance.

¶45

PW3 deposed that the complainant left the money on the table and hurried out without any conversation relating to demand. She further stated that the petitioner asked that the person be caught and that the police be called. PW3 did not support the prosecution case regarding demand and acceptance and was treated as hostile. No material was elicited in her cross-examination to substantiate the charge.

¶46

5

¶47

https://www.mhc.tn.gov.in/judis

¶48

W.P No. 31269 of 2018

¶49

PW8, the chemical analyst, confirmed the presence of phenolphthalein in the solutions. However, in cross-examination, she admitted that if a person touched the paper cover in which the tainted money was kept, the phenolphthalein powder could spread to the fingers and cause the solution to turn pink. Thus, the chemical test alone does not conclusively establish conscious acceptance of bribe. It is well settled that proof of demand and voluntary acceptance is sine qua non for establishing the charge of illegal gratification.

¶50

PW12 categorically deposed that he was the competent authority to sanction leave, suspend the complainant and initiate disciplinary action. Therefore, the petitioner was not the authority competent to grant extension of medical leave. This evidence probabilises the defence that no official favour was pending with the petitioner so as to necessitate illegal gratification.

¶51

From a cumulative assessment of the evidence, it is evident that, except for the self-serving testimony of PW1, there is no independent and reliable corroboration of demand and acceptance. The shadow witness and another material witness did not support the prosecution case. Though strict rules of evidence do not apply to departmental proceedings, the findings must be based on legally acceptable and credible evidence. A finding resting solely

¶52

6

¶53

https://www.mhc.tn.gov.in/judis

¶54

W.P No. 31269 of 2018

¶55

on uncorroborated and doubtful testimony, while ignoring material contradictions, would be perverse.

¶56

The impugned order merely extracts the charges, the evidence, and the representation of the petitioner, but does not assign independent reasons for rejecting the petitioner’s defence and accepting the findings of the Inquiry Officer. Such non-application of mind renders the order unsustainable.

¶57

It is also relevant that the criminal case registered under the Prevention of Corruption Act culminated in the filing of a closure report citing absence of sufficient evidence. Though departmental proceedings are independent, the absence of substantive evidence in both forums reinforces the conclusion that the charge is not proved by reliable material.

¶58

In the considered view of this Court, the findings of the Inquiry Officer are perverse and not supported by cogent evidence. This Court, in exercise of its jurisdiction under Article 226 of the Constitution of India, is empowered to interfere where findings are arbitrary or based on no evidence.

¶59

Accordingly, the Writ Petition is allowed:

¶60

7

¶61

https://www.mhc.tn.gov.in/judis

¶62

W.P No. 31269 of 2018

¶63

(i) The impugned order dated 29.06.2018 in G.O. (Ms) No.139, Co-operation, Food and Consumer Protection (CE2) Department, is hereby quashed.

¶64

(ii)The respondents are directed to refund the amount deducted from the petitioner’s pension pursuant to the impugned order, within a period of three (3) months from the date of receipt of a copy of this order. The said amount shall not carry any interest.

¶65