P.K. Misra, J - (1.) PETITION filed under Article 226 of the Constitution for the issuance of Writ of Certiorarified Mandamus calling for the records relating to the orders of the 1st respondent, dated 31.8.99 issued in the D.E.No,3/93 and the order dated 26.11.99 issued in the Ref.No.Nil and the order of the II Respondent, dated 20.9.2002, issued in the Ref No.R.O.C.No,5896/2001/01 and quash the same and further direct the respondents to settle all the retirement benefits treating the period from4.2.94 to 30.6.99 as duty period and to award the consequential benefits.) The brief facts of the case are as follows :- The petitioner was initially appointed as an Examiner in the Office of the District Munsif, Melur, and in course of time he was promoted to the post of Head Clerk and subsequently posted as Copyist Superintendent in the District Court, Madurai, in October, 1992. A charge-memo was issued against him in June, 1993, alleging that he had demanded and received bribe on several occasions. In the charge-memo five such instances have been indicated. Even though enquiry was conducted by the Principal District Judge himself, who was the disciplinary authority, the order of punishment of compulsory retirement was passed by the Chief Judicial Magistrate as the file relating to the disciplinary proceedings were placed before him. The said order of punishment was challenged by the petitioner by filing W.P.No,5429 of 1994, which was allowed by order dated 17.3.1993, quashing the order of compulsory retirement on the sole ground that the Chief Judicial Magistrate was not the appropriate authority to impose such punishment. While allowing the writ petition, the High Court remitted back the matter to the Principal District Judge for fresh disposal. After such direction was issued by the High Court, the petitioner, who was compulsorily retired with effect from 3.2.1994, was reinstated in service by order dated 30.6.1999 and resumed duty thereafter. Subsequently, the Principal District Judge, Madurai, by order dated 31.8.1999, passed the order of compulsory retirement. Subsequently, by order dated 26.11.1999, the interregnum period between 4.2.1994 and 30.6.1999 was treated as leave. The petitioner had filed W.P.No,8127 of 2001 against the order of punishment. The said writ petition was permitted to be withdrawn with liberty to the petitioner to file an appeal in the Administrative Side, namely, the High Court. Thereafter, the appeal dated 20.8.2001, filed by the petitioner, was rejected by order dated 20.9.2002. Thereafter, the present writ petition has been filed challenging the order of compulsory retirement dated 31.8.1999 and the subsequent order dated 26.11.1999, treating the period from 4.2.1994 to 30.6.1999 as leave.
(2.) LEARNED counsel for the petitioner has contended as follows :- (1) The first order dated 3.2.1994, passed by the Chief Judicial Magistrate compulsorily retiring the petitioner has been quashed by the High Court in the earlier round of litigation and the matter has been remitted to the Principal District Judge for fresh consideration and, therefore, the Principal District Judge should have afforded an opportunity of personal hearing to the petitioner or at least should have called upon the petitioner to make his submission in the form of written representation relating to various charges. In this connection, learned Senior Counsel has placed reliance upon the decision of the Supreme Court reported in 2008(6) Supreme 87 (State Bank of India & Others V. Ranjit Kumar Chakraborty & Another). (2) In the enquiry report prepared initially by the the then Principal District Judge, the allegations contained in Charge Nos.1, 2 and 4 had not been proved, whereas on the basis of the similar materials he has held that Charge Nos.3 and 5 had been proved. In the above background it is submitted that the reasons for which the Principal District Judge had discarded the allegations contained in Charge Nos.1, 2 and 4, similar allegations contained in Charge Nos.3 and 5 should have been discarded. It is further submitted that since the Association of the Advocates' clerk was very much prejudiced against the petitioner, the allegations had been made with a view to victimize the petitioner and, therefore, the conclusion of delinquency on the part of the petitioner in respect of Charge Nos.3 and 5 should be quashed as no reasonable man could have come to such a conclusion. (3) Third contention of the learned Senior Counsel is to the effect that the order of compulsory retirement passed by the Chief Judicial Magistrate, who not being the disciplinary authority, had no jurisdiction to impose punishment. Therefore, when such order was set aside, it must be deemed that the petitioner was continuing in service all along and, therefore, the disciplinary authority committed an illegality in passing the subsequent order dated 26.11.1999, treating the period from 4.2.1994 to 30.6.1999 when the order of specific order of reinstatement was issued as leave admissible. According to the learned Senior Counsel for the petitioner, the entire period should be treated as on duty and he should be paid entire backwages for the said period. (4) Even assuming that delinquency had been proved, in view of the fact that previous record of the petitioner was free from all blemish, the order of punishment of compulsory retirement passed for transgression on two instances, which came to be passed just one month before the normal date of superannuation of the petitioner, should be quashed as being grossly disproportionate. Learned counsel appearing for Respondent No.1, on the other hand, has refuted the contentions raised by the petitioner and submitted that keeping in view the background of the case and the nature of allegations as proved in the departmental proceedings, the punishment of compulsory retirement should not be interfered with. The first and foremost contention of the learned Senior Counsel for the petitioner relates to the question of natural justice. Learned Senior Counsel has contended that the earlier order, dated 3.2.1994, passed by the Chief Judicial Magistrate having been quashed by the High Court and since the matter was remitted to the disciplinary authority for fresh consideration, the disciplinary authority should have afforded an opportunity of hearing to the petitioner. In support of such contention, learned Senior Counsel has placed reliance upon the decision of the Supreme Court reported in 2008(6) Supreme 87 (cited supra).
(3.) IN the present case, the Principal District Judge himself was the disciplinary authority and the enquiry had been conducted by the Principal District Judge. The Principal District Judge had found the petitioner guilty in respect of two charges relating to demand and acceptance of bribe for issuance of certified copy of various orders of the Court. At that stage, however, the disciplinary authority instead of dealing with the proceedings himself, had placed the concerned records before the Chief Judicial Magistrate to pass appropriate orders. The order of compulsory retirement passed by the Chief Judicial Magistrate was found vulnerable by the High Court on account of the fact that the Chief Judicial Magistrate was not the disciplinary authority competent to impose punishment and, therefore, such order was non-est in law. Thereafter the matter was remitted to the Principal District Judge, who himself is the disciplinary authority. It is of course true that enquiry was earlier conducted by the the then Principal District Judge and ultimately the matter came to be decided by another Principal District Judge. The question is whether the Principal District Judge was required to give any further opportunity of hearing. In this context one has to remember that "opportunity of personal hearing" has many shades of meaning. At the maximum level such opportunity of hearing may include the opportunity of making oral submission either by the person concerned or through his Advocate. Under certain circumstances, opportunity of hearing would only include opportunity of making submission by a written representation. It is not the case of the petitioner that as per the rules relating to disciplinary proceedings applicable to Judicial Ministerial Service, a full-fledged enquiry akin to a trial in Civil Court is contemplated. In other words, even though the basic requirement of giving opportunity of cross-examination and adducing evidence is available, it cannot be said that there is any requirement of giving opportunity of hearing or making oral submission, though there is no embargo for giving such expanded opportunity of even making oral submission.;