LAWS(MAD)-2012-12-248

V.VAIRAVAN PILLAI Vs. SECRETARY TO THE GOVERNMENT

Decided On December 20, 2012
V.Vairavan Pillai Appellant
V/S
SECRETARY TO THE GOVERNMENT Respondents

JUDGEMENT

(1.) The prayer in this writ petition is to quash the order of the 1st respondent issued in G.O.(3D).No. 72/Home SC Department, dated 23.08.2007 and G.O.(3D) No. 28/Home SC Department, dated 19.05.2009. The case of the petitioner is that he is a Law Graduate, enrolled as an Advocate on 10.01.1979, and after about 4 years of practicing in the Court, he was appointed as Assistant Public Prosecutor Gr. II on 23.09.1983 by the District Collector, Erode. He was promoted as Assistant Public Prosecutor Gr. I, in March 2000 and thereafter, he was promoted as Assistant Director of Prosecution on 25.09.2006 and deputed to serve as Legal Advisor in the Directorate of Vigilance & Anti-corruption, Tirunelveli. While he was serving as Assistant Public Prosecutor, Gr. I, at Cheranmahadevi, he was in-charge of District Crime Branch cases and the Inspector of Police, District Crime Branch, Tirunelveli obtained legal opinion from the petitioner on the petition given by one Tr. P. Lakshmana Perumal, Secretrary, Indian Industrial Mineral Producers Welfare Association, Chennai, addressed to the District Superintendent of Police, Tirunelveli, for taking criminal action against one Tr. Srinivasan, Director, M/s. Earth Mineral Resources Pvt. Ltd. After going through the petition, based on the averments made in the petition, the petitioner herein gave his opinion to take action against the said Tr. Srinivasan for violations of Mines and Minerals Research and Development Act. In respect of allegation No. 4 (sedition) and allegation No. 5 (criminal intimidation), the petitioner had opined to register a case under Section 124(A) and 506-II IPC. The said opinion was given on 09.08.2004. Following the said opinion, a criminal case was registered against the said Tr. R. Srinivasan in Cr. No. 25/2004 on the file of the District Crime Branch, Tirunelveli for offences under sections 124(A) and 506-II IPC. After investigation, the Investigating Officer found that the complaint preferred by the complainant Tr. Lakshmana Perumal dated 23.02.2004 was due to professional rivalry and the said complaint was preferred based on the instigation of one Tr. Sukumaran, Proprietor of Beach Sand Minerals Company and also found that the allegation made against the complaint was not made out and filed a report, referring the case as "mistake of fact".

(2.) The petitioner, being the legal advisor, was issued with a show cause notice by the 1st respondent on 13.11.2006 under Rule 17(a) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules, stating that the petitioner has offered incorrect and wrong legal opinion on the petition dated 23.02.2004 given by one Tr. Lakshmana Perumal and in response to the request of Tr. Sakthivel, formerly Inspector of Police, DCB Thirunelveli and Tr. Sukumar. The petitioner submitted a reply specifically stating that the said legal opinion was given in the regular discharge of his duty based on the request of the Inspector of Police, District Crime Branch, Tirunelveli and not at the instance of one Tr. Sukumar. The petitioner has also pointed out that a mere reading of the complaint given by Tr. Lakshmana Perumal, clearly made out the ingredients of offence defined under Section 124(A) IPC, which is a congnizable offence. However, the petitioner's explanation was not accepted and punishment was imposed by the 1st respondent on 23.09.2007 withholding one increment for one year with cumulative effect. The petitioner filed review petition on 10.12.2007 before the Government and challenged the order of punishment. Thereafter, the Government issued G.O.(3D).No. 28, Home (SC) Department, dated 19.05.2009, stating that the punishment of withholding one increment for one year with cumulative effect imposed on the petitioner is set aside and fresh proceeding was ordered to be initiated from the stage where the defects were crept in. In the order it is further stated that withholding one increment for one year is major punishment and 17(b) proceedings should be initiated.

(3.) The said orders are challenged before this Court by the petitioner in this writ petition contending that the petitioner gave his legal opinion during the discharge of his duty and no motive is attributed against the petitioner for giving such legal opinion. The respondents' action in issuing charge memo/show cause notice and initiating disciplinary proceedings against the petitioner based on legal opinion is contrary to law, particularly, when there is no motive attributed against the petitioner for giving such a legal opinion.