Madras High Court
K.Vijayalakshmi vs The Additional Commissioner Of Police ... on 25 February, 2019
Author: S.M.Subramaniam
Bench: S.M.Subramaniam
1
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 25-02-2019
CORAM
THE HON'BLE MR.JUSTICE S.M.SUBRAMANIAM
W.P.No.15236 of 2018
And
W.M.P.Nos.18062 and 18063 of 2018
K.Vijayalakshmi .. Petitioner
- Vs. -
1.The Additional Commissioner of Police (Hqrs),
I/c. Joint Commissioner of Police (Hqrs),
Greater Chennai Police,
Vepery,
Chennai-600 007.
2.The Deputy Commissioner of Police,
Armed Reserve Force-II,
St. Thomas Mount,
Greater Chennai Police,
Chennai-600 016.
3.The Deputy Commissioner of Police,
Motor Transporting Wing,
Pudupet,
Chennai-600 002. .. Respondents
Prayer: Writ Petition filed under Article 226 of the Constitution of India
praying to issue a Writ of Certiorari, calling for the records of the
second respondent pertaining to the charge memo in P.R.No.1010/PR
2
V(2)/2017 dated 18.12.2017 and records of the first respondent
pertaining to the order in POR.No.1010/PR V(2)/2017 dated 1.3.2018
appointing the third respondent as Enquiry Officer and records of the
third respondent pertaining to the order in Na.Ka.No.857/DCMT/Camp/
2018 dated 3.5.2018 and quash the same.
For Petitioner : Mr.A.Kalaiselvan
For Respondents : Mrs.P.Rajalakshmi,
Additional Government Pleader.
ORDER
The charge memo, issued by the second respondent, dated 18.12.2017 and the consequential order passed by the first respondent, appointing the third respondent as the Enquiry Officer and the enquiry notice of the third respondent dated 3.5.2018, are under challenge in the present writ petition.
2. The writ petitioner was recruited as Police Constable-II on 3.3.2003 and thereafter, he was recruited to the post of Sub Inspector directly on 1.2.2011.
3. On account of certain allegations against the writ petitioner, in a public place, a criminal case was registered against him in FIR No.863 of 2017 by D5 Marina Police Station under Sections 341, 3 294(b), 323 and 354 IPC. The criminal case registered against the writ petitioner is now pending. Simultaneously, the departmental disciplinary proceedings are also initiated against the writ petitioner and the authorities competent issued charge memo in proceedings dated 18.12.2017 and the charges against the writ petitioner are extracted as under:-
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4. Annexure-II to the charge memo provides statement of allegations and imputations of misconducts in respect of the allegations set out in the charge memo. Annexure-III denotes the list of documents relied on by the respondents. Annexure-IV enumerates the list of witnesses to be examined in respect of the allegations set out in respect of the charge memo issued against the writ petitioner. Thus, there is no infirmity, as such, sought for in respect of the charge memo issued against the writ petitioner.
5. The learned counsel for the writ petitioner contended by stating that simultaneous proceedings in the present case is 5 impermissible. In view of the facts and circumstances, the allegations set out in the criminal case as well as the departmental disciplinary proceedings are one and the same. Therefore, the respondents ought to have kept the departmental disciplinary proceedings in abeyance till the disposal of the criminal case by the competent Criminal Court of Law. Instead of keeping the departmental disciplinary proceedings in abeyance, the respondents have appointed the Enquiry Officer and now proceeding with the enquiry. In the event of proceeding with the enquiry by the Enquiry Officer, the rights of the writ petitioner would be affected. Thus, the writ petitioner is constrained to move the present writ petition.
6. This Court is of a considered opinion that the nature of the criminal proceedings are not akin to that of the departmental disciplinary proceedings. For convicting a person, high standard of proof is required before the Criminal Court of Law. However, no such proof is required in respect of the departmental disciplinary proceedings. Even the preponderance of probabilities are sufficient to punish an employee under the Discipline and Appeal Rules. However, no such strict proof is required for punishing an employee under the Discipline and Appeal Rules.6
7. This being the distinct procedures followed in the criminal proceedings as well as the departmental proceedings, there is no bar for the continuance of the departmental disciplinary proceedings if the competent authorities are in possession of the required documents as well as the other materials to proceed with the enquiry against the delinquent officials.
8. In the present case on hand, the charge memo unambiguously portrays the nature of the allegations against the writ petitioner, the list of documents are furnished, statement of imputations are also given and the list of witnesses are also cited. The writ petitioner is also working as the Sub Inspector of Police, the criminal case is registered by the Inspector of Police against the Sub Inspector of Police on the ground that the writ petitioner had misbehaved against the police official in the public.
9. This being the nature of the allegations set out against the writ petitioner and when the competent authorities are having sufficient materials to proceed with the departmental disciplinary proceedings, then there is no impediment for them to proceed with the enquiry.7
10. The Hon'ble Supreme Court also categorically states that simultaneous proceedings are permissible only if the competent authorities are of the opinion that no adequate materials are available to proceed with the departmental disciplinary proceedings, then they can keep the departmental disciplinary proceedings in abeyance till the final disposal of the criminal case. However, such a decision is to be taken only by the competent authorities by verifying the materials available on record and the Courts cannot quash the charge memo on this ground.
11. A public servant cannot take shelter under the guise of private life. He has to serve in the interest of public throughout 24 x 7 = 365 days and he cannot seek any exemption by stating that the allegations are relating to his private life. A public servant who enjoy the status in the society, and by virtue of the status, is getting certain perquisites, facilities and other concessions. Therefore, he is bound to maintain discipline both inside the office as well as out side. With this object the Conduct Rules are framed as a part of service conditions of appointment. Having accepted the Rules, the public officials are bound to maintain utmost discipline, integrity and honesty. Committing an offence of dowry harassment or domestic violence is also a misconduct 8 stipulated in the Tamil Nadu Police Subordinate Service (Discipline & Appeal) Rules. This being the factum of the case, there is no infirmity in framing of charges and the grounds raised in the writ petition that the allegations are relating to private life of the writ petitioner, cannot be accepted and the same deserves outright rejection.
12. This Court is of the view that the family of a public servant is also an important factor, because a happy man in the family can deliver better performance in his public service. A good public servant will constitute a good family and the good families can constitute a better Nation. Thus, maintaining the family in a decent and disciplined way is also an important factor for a public servant for better and effective functioning and performance of his duties and responsibilities. Thus, this Court is of the view that the pleading as to the allegations are relating to private life, have no sense at all. It has got a meaning that the public servants are bound to maintain their family in a good manner in all respects.
13. Apart from the departmental disciplinary proceedings, a criminal case was also registered against the writ petitioner under the provisions of Indian Penal Code and under the Dowry Harassment 9 Act. Even simultaneous proceedings are permissible under law, the writ petitioner cannot take a ground that during the pendency of the criminal case, departmental proceedings cannot be proceeded with.
The departmental proceedings are initiated under the provisions of the Conduct Rules and the statement of allegations, list of documents and list of witnesses are also furnished in the charge memo impugned in this writ petition. Thus, the charges are sufficient and capable for proceeding with under the Rules and the pendency of the criminal case is not a bar for conducting disciplinary proceedings. In respect of simultaneous proceedings, the Hon'ble Supreme court has also categorically made a finding that only when the facts and circumstances are complex in nature, then it is preferable to keep the departmental disciplinary proceedings in abeyance and not otherwise.
14. If the charges are capable for conducting the disciplinary proceedings, then the authorities are at liberty to continue the disciplinary proceedings simultaneously.
15. Government servants play a significant role in running the administration of the country. They are important constituents of the administrative set up of the nation. They are pillars of the 10 Government departments on whose shoulders the responsibility to implement the Government policies lies. They provide public services to the citizens at the grass root level and in the same way, they forward grievances of the public, their representations and demands to higher ups for their effective resolution. The Government employees have different work culture and responsibilities as compared to their counterparts in private sector. They are smartly paid and have some kind of perquisites given to them but at the same time, they have heavy responsibilities towards the Government in particular and public in general. However, when the Government servants deviate from the established rules of conduct, the departmental disciplinary proceedings will be initiated. It is the need of the hour to analyse whether conducting departmental proceedings and criminal proceedings would amount to double jeopardy or such simultaneous proceedings are to be continued simultaneously.
16. The departmental authorities are free to exercise such lawful powers as are conferred on them by the departmental rules and regulations.
17. In the case of Sri Bhagwan Ram vs. The State of 11 Jharkand and others [2017 SCC Online Jhar 1739], it is well- settled that a domestic enquiry and a criminal trial can proceed simultaneously and the decision in the criminal case would not materially affect the outcome of the domestic enquiry. The nature of both the proceedings and the test applied to reach a final conclusion in the matter, are entirely different.
18. In the case of Dr.Bharathi Pandey-Deputy General Manager Vs. Union of India [Special Civil Application No.15602 of 2013], the Apex Court held that it is clear that the departmental inquiry proceedings in every case need not be stayed till the criminal proceedings against the petitioner are concluded. It may be done in case of grave nature involving complicated questions of facts and law. The advisability and desirability has to be determined considering facts of each case.
19. In the case of Ajith Kumar Das vs. Union of India and Others [W.P.(C) NO.4036 of 2017], the Court held that the departmental enquiry is to maintain discipline in service and efficiency of public service. It would, therefore, be expedient that the disciplinary proceedings are conducted and completed as expeditiously as possible. 12 It is not, therefore, desirable to lay down any guideline as inflexible rules in which the departmental proceeding may or may not be stayed pending trial in criminal case against the delinquent officer. There would be no bar to proceed simultaneously with the departmental proceeding and trial of a criminal case unless the charge in a criminal trial is of grave nature involving complicated questions of fact and law. Offence generally implies infringement of public as distinguished from mere private right punishable under criminal law, when trial for criminal offence is conducted it should be in accordance with the proof of offence as per the evidence defined under the provisions of the evidence act. Converse in the case of departmental enquiry in a departmental proceeding relates to conduct of breach of duty of the delinquent officer who punish him for his misconduct defined under the relevant statute/rule or law that strict standard of rule or applicability of Evidence Act stands excluded in a settled legal position.
20. In the case of Avinash Sadashiv Bhosale vs. Union of India[(2012) 13 SCC 142], the Court held that there is no legal bar for both proceedings to go on simultaneously. The only valid ground for claiming that the disciplinary proceedings may be stayed would be to ensure that the defence of the employee in the criminal 13 case may not be prejudiced but even such grounds would be available only in cases involving complex question of fact and law. Such defence ought not to be permitted to unnecessarily delay the departmental proceedings. The interest of the delinquent officer as well as the employer clearly lies in a prompt conclusion of the disciplinary proceedings.
21. The Supreme Court in the case of Karnataka State Road Transport Corporation vs. M.G.Vittal Rao[(2012) 1 SCC 442] gave a timely reminder of the principles that are applicable in such situations succinctly summed up in the following words:
“(i) There is no legal bar for both proceedings to go on simultaneously. (ii) The only valid ground for claiming that the disciplinary proceedings may be stayed would be to ensure that the defence of the employee in the criminal case may not be prejudiced.
But even such grounds would be available only in cases involving complex questions of facts and law. (iii) Such defence ought not to be permitted to unnecessarily delay the departmental proceedings. The interest of the delinquent officer as well as the employer clearly lies in a prompt conclusion of the disciplinary proceedings. (iv) Departmental 14 Proceedings can go on simultaneously to the criminal trial, except where both the proceedings are based on the same set of facts and the evidence in both the proceedings is common”.
22. In the case of NOIDA Entrepreneur Association v. NOIDA and the others[JT 2001 (2) SC 620], the Court held that the standard of proof and nature of evidence in the departmental inquiry is not the same as in criminal case. The purpose of departmental enquiry and of prosecution is two different and distinct aspects. The criminal prosecution is launched for an offence for violation of a duty the offended owes to the society, or for breach of which law has provided that the offender shall make satisfaction to the public. So crime is an act of commission in violation of law or of omission of public duty. The departmental enquiry is to maintain discipline in the service and efficiency of public service. It would, therefore, be expedient that the disciplinary proceedings are conducted and completed as expeditiously as possible. It is not, therefore desirable to lay down any guidelines as inflexible rules in which the departmental proceedings may or may not be stayed pending trial in criminal case against the delinquent officer. Each case requires to be considered in the backdrop of its own facts and circumstances. There 15 would be no bar to proceed simultaneously with departmental enquiry and trial of a criminal case unless the charge in the criminal trial is of grave nature involving complicated questions of fact and law.
23. In the case of State Bank of India & Ors. Vs. R.B.Sharma, [AIR 2004 SC 4144], the Hon'ble Supreme Court reiterated observing that both proceedings can be held simultaneously. It held, “the purpose of departmental inquiry and of prosecution is to put a distinct aspect. Criminal prosecution is launched for an offence for violation of duty. The offender owes to the society, or for breach of which law has provided that the offender shall make satisfaction to the public. So crime is an act of commission in violation of law or of omission of a public duty. The departmental inquiry is to maintain discipline in the service and efficiency of public service.”
24. In the case of Ajith Kumar Nag vs. General Manager(PJ), Indian Oil Corporation Ltd., Haldia [2005-7-SCC- 764], the Honourable Apex Court considered the issue of validity of conducting departmental proceeding when the criminal case was pending against the official and held as follows:
“Acquittal by a criminal court would not debar an employer from exercising power in 16 accordance with Rules and Regulations in force. The two proceedings, criminal and departmental, are entirely different. They operate in different fields and have different objectives. Whereas the object of criminal trial is to inflict appropriate punishment on offender, the purpose of enquiry proceedings is to deal with the delinquent departmentally and to impose penalty in accordance with service Rules. In criminal law, burden of proof is on the prosecution and unless the prosecution is able to prove the guilt of the accused 'beyond reasonable doubt', he cannot be convicted by a court of law. In departmental enquiry, on the other hand, penalty can be imposed on the delinquent officer on a finding recorded on the basis of 'preponderance of probability'.
25. In the case of West Bokaro Colliery (Tisco Ltd.) vs. Ram Parvesh Singh [(2008) 3 SCC 729], the Hon'ble Supreme Court has held in the case of that since standard of proof required in criminal case are beyond reasonable doubt and what is required in departmental inquiry is only of finding the guilt on the basis of preponderance of probability, there is no bar in continuing both simultaneously.
26. In the case of S.A.Venkatraman v. Union of India, 17 [AIR 1954 SC 375] it has been held by the Supreme Court that taking recourse to both, does not amount to double jeopardy.
1. In Stanzen Toyotetsu India Private Limited vs. Girish V. And Other (2014) 3 SCC 636. It was held that suffice it to say that while there is no legal bar to the holding of the disciplinary proceedings and the criminal trial simultaneously, stay of disciplinary proceedings may be advisable course in cases where the criminal charge against the employee is grave and continuance of the disciplinary proceedings is likely to plagiarize their defence before the criminal court.
2. The Supreme Court in State of Rajasthan v. B.K.Meena and Others (1996) 6 SCC 417 held that in certain situations, it may not be 'desirable', 'advisable', or 'appropriate' to proceed with the disciplinary enquiry when a criminal case is pending on identical charges. Therefore, stay of disciplinary proceedings cannot be, and should not be, a matter of recourse.
3. It is also to note that acquittal in criminal proceedings on the same set of charges, per se, does not entitle the delinquent to claim immunity from disciplinary proceedings, as observed by the Supreme Court in the case of C.M.D.U.C.O. vs. P.C.Kakkar, AIR 2003 SC 1571. In the same way, departmental proceedings may be continued even after retirement of the employee. (U.P.S.S.Corp.Ltd. 18 vs. K.S.Tandon, AIR 2008 SC 1235).
27. Considering the above judgments, this Court is of the firm opinion that the procedure for taking disciplinary action against a Government servant is lengthy and detailed one, giving maximum opportunity to the government servant to prove his innocence. A Government employee is expected to perform his duties with utmost diligence, efficiency, economy and effectiveness. The Government procedures are lengthy in order to ensure that the Government employees perform their responsibilities without any pressure or extraneous considerations. However, at the same time, it ensures discipline amongst the employees and shows the door to the employees who have become dead wood and do not perform as per expectations of public in general and his department in particular. Disciplinary proceedings are conducted to ensure that the morale of the employees as a whole is boosted. It ought to be noted that criminal proceedings will last for years and this can lead to loss of evidences and thereby staying departmental disciplinary proceedings from being conducted simultaneously would lead to gross miscarriage of justice. Also, it is pertinent to note the fact that the object of such departmental proceedings is not to penalise but to assist in restoring 19 the morale of Government servants. Thus, it is of utmost importance that the Court has to strike a balance between the need for a fair trial to the accused on one hand and the competing demand for an expeditious conclusion of the ongoing disciplinary proceedings on the other which will not have any adverse impact if it is conducted simultaneously.
28. For the reasons stated in the aforementioned paragraphs as well as the principles settled by the Constitutional Courts in respect of simultaneous proceedings, the writ petitioner has to submit her explanations/objections in respect of the allegations set out in the charge memo and defend her case by availing the opportunities to be provided by participating in the enquiry proceedings. If there is any non-cooperation on the part of the writ petitioner, then the said non-cooperation shall be recorded by the Enquiry Officer as well as by the Disciplinary Authority in their respective proceedings.
29. This being the principles to be followed, the writ petitioner has not established any acceptable ground for the purpose of considering the relief, as such, sought for in the present writ 20 petition, cannot be granted. Accordingly, the writ petition stands dismissed. However, there shall be no order as to costs. Consequently, connected miscellaneous petitions are also dismissed.
25-02-2019 Index:Yes.
Internet: Yes.
Speaking Order Svn 21 To
1.The Additional Commissioner of Police (Hqrs), I/c. Joint Commissioner of Police (Hqrs), Greater Chennai Police, Vepery, Chennai-600 007.
2.The Deputy Commissioner of Police, Armed Reserve Force-II, St. Thomas Mount, Greater Chennai Police, Chennai-600 016.
3.The Deputy Commissioner of Police, Motor Transporting Wing, Pudupet, Chennai-600 002.
22S.M.SUBRAMANIAM, J.
Svn WP 15326 of 2018 25-02-2019