Madras High Court
C. Chandrasekaran vs The Deputy Inspector General Of Police on 9 August, 2011
Author: Vinod K. Sharma
Bench: Vinod K. Sharma
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Dated: 09/08/2011
Coram
THE HONOURABLE MR. JUSTICE VINOD K. SHARMA
Writ Petition (MD) No.2893 of 2006
and
W.P.M.P.(MD)No.3161 of 2006
C. Chandrasekaran,
S/o. Chinna Thambi,
Formerly Head Constable 1411,
Vallam Police Station,
Thanjavur District. ...... Petitioner
Vs
1. The Deputy Inspector General of Police,
Thanjavur Range,
Thanjavur.
2. The Superintendent of Police,
Thanjavur District. ...... Respondents
Writ Petition filed under Article 226 of the Constitution of India
praying for issuance of a Writ of Certiorari to call for the records pertaining
to the Departmental Proceedings dated Nil under Charge Memo PR.No.15 of 2005 of
the first respondent and quash the same as illegal.
!For Petitioner ... Mr. D. Rajagopal
^For Respondents... Mr. D. Muruganandam
Additional Government Pleader
- - - - - - - -
:ORDER
The petitioner has prayed for issuance of a Writ, in the nature of Certiorari, to quash the Departmental Proceedings instituted Vide Charge Memo PR.No.15 of 2005.
2. The petitioner was recruited, as Grade II Police Constable, in the District Armed Reserve, Thanjavur on 23.12.1985, and thereafter, transferred to Law & Order in 1990. The petitioner was upgraded, as Grade I Police Constable, in the year 1995, and promoted as Head Constable in the year 1999. The petitioner received 16 rewards with no adverse remarks in his service career. The petitioner is also the recipient of Chief Minister's Medal for meritorious performances for the year 2002.
3. It is the submission of the petitioner, that he was falsely implicated in a criminal case registered Vide Crime No.5 of 2004, by the Vigilance and Anti Corruption Department, Thanjavur, for an offence under Section 7 of the Prevention of Corruption Act 1988.
4. The case was registered on the complaint by Thiru.K.Balu, S/o. Kaliyaperumal of Kollupettai Street, Vallam. A complaint was also preferred against Vairam, Sub Inspector of Police of Vallam Police Station. The Complaint was regarding the demand of Rs.3,000/- (Rupees Three Thousand only) as bribe for registering a case against Karnan and others for assaulting him on 25.02.2004.
5. The case of the petitioner is, that Thiru. Balu is a drunkard, habitual offender, and was in the habit of quarrelling with his neighbours. Number of criminal cases were pending against him, which were registered, and investigated by Sub Inspector of Police Thiru.Vairam. It is, claimed that Thiru.Balu had personal animosity, and grudge against the Sub Inspector of Police Thiru.Vairam, and was waiting for an opportunity to rope him in a criminal case.
6. On 25.02.2004, the complainant quarreled with his neighbours Karnan and Murugan, and assaulted both of them. Based on the complaint preferred by Ramachandran, a criminal case was registered against Thiru.Balu for offence under Section 294(b) I.P.C.
7. As a counter blast to the complaint by Ramachandran, Thiru.Balu also filed a Complaint against Thiru. Karnan and Thiru. Murugan, alleging snatching of his chain. On investigation, the complaint was found to be false. The Sub Inspector of Police Thiru.Vairam, refused to register the case against them. This was complained to higher authorities, and in the fresh enquiry, again the allegation of Thiru. Balu were found to be wrong.
8. The case of the petitioner is, that being aggrieved by this, the Complainant approached the Vigilance and Anti Corruption Department, alleging therein, that Sub Inspector of Police, and petitioner had demanded a sum of Rs.3,000/- (Rupees Three Thousand only) or at least Rs.2,000/- (Rupees Two Thousand only) for registering a criminal case against the accused for the offence of robbery.
9. On the basis of the Complaint to the Vigilance and Anti Corruption Department, a trap was organised, and the Vigilance officials came to the house of the petitioner, recovered money, subjected him to phenapthelene test, which proved positive.
10. The petitioner was arrested on 27.02.2004, and remanded to judicial custody. The petitioner thereafter was remanded to judicial custody on 28.02.2004. During his judicial custody, the petitioner was placed under suspension, on the ground of corruption. Charge Sheet has also been filed in the criminal case.
11. The petitioner approached this Court by filing W.P.No.1390 of 2004 and W.P.M.P.No.1366 of 2004, wherein by way of an interim order, Stay was granted against suspension.
12. As the Department failed to revoke the suspension, the petitioner again filed W.P.No.2825 of 2004 for issuance of a Writ of Certiorari, to quash the suspension order, and to direct the respondents, to reinstate the petitioner in service with all consequential benefits. The interim stay was not continued subsequently. The Writ Appeal against the order was also dismissed.
13. The petitioner, thereafter, submitted a representation for revoking the suspension order, as per the provisions of the Tamil Nadu Civil Services (Discipline and Appeal) Rules or under Rule 3(b) of the Tamil Nadu Police Subordinate Service (Discipline and Appeal) Rules.
14. The case of the petitioner is, that his representation was not considered. The petitioner, thereafter, again, approached this Court by filing W.P.No.10394 of 2005, for directing the respondents to review the order of suspension dated 01.03.2004. This Court disposed of the writ petition, with a direction to the respondents, to decide the representation filed by the petitioner.
15. In pursuance to the direction issued by this Court, vide order dated 31.02.2006, the suspension order was revoked and the petitioner was directed to report for duty at District Police Office, Thanjavur for further posting. The petitioner is now posted, as Head Constable at Thanjavur Control Room (VR) Thanjavur.
16. The petitioner was asked to submit his reply to the Charge Sheet issued to him in the Departmental Proceedings. The petitioner filed his reply Statement on 13.03.2006. The petitioner pleaded, that Departmental Proceedings, pending criminal case were nothing but mala fide, void and illegal.
17. The case of the petitioner is that the criminal proceedings and departmental proceedings are based on the same facts, which is to be proved by the same witnesses. Therefore, seeks quashing of the Charge Memo, being not competent.
18. This court, on an application for interim stay in W.P.M.P.(MD)No.3161 of 2006 passed the following order:-
"In the criminal case as well as in the departmental proceedings, same set of facts are relied upon and same charges laid. Admittedly, the criminal case is pending trial. In view of the same, this is an exception of general rule that pendency of criminal case is no bar for proceeding with the departmental enquiry. The same subject is already covered by a judgment of a Division Bench of this Court in the case of INDIAN OVERSEAS BANK ..VS.. P. GANESAN (2006 (1) C.T.C. 689).
2. In view of the above, there will be an order of Interim Stay. Notice".
19. The contention of the learned counsel for the petitioner, is that the interim order passed by this Court, operates as res judicata, as the order of interim stay passed by this Court was not challenged by the respondents in Writ Appeal, that has attained finality.
20. In support of this contention, the learned counsel for the petitioner placed reliance on the Judgment of this Court in the case of HINDUSTAN PETROLEUM CORPORATION LTD., AND ANOTHER ..VS.. K.M.YAKUB(DIED) AND OTHERS (1996 (2) L.W. 817), wherein a finding recorded in a petition under Section 9 of the Tamil Nadu City Tenants Protection Act, which had attained finality, was held to be res judicata / waiver in a suit under Section 11 of the Act.
21. The contention of the learned counsel for the petitioner is totally misconceived. Interim order passed in a pending case can never operate as res judicata, at that time of final adjudication of the case.
22. A reading of Section 11 of Civil Procedure Code shows, that pre-requisite to raise the plea of the res judicata, it has to be proved that the matter or any issue between the parties in the previous suit, had attained finality, which can operate as res judicata.
23. The law itself is settled, that the interim order passed in a case merges with the final order. An order of stay can not be said to be adjudication of an issue, which can operate as res judicata to decide the case finally. If such a plea is accepted, then in all the cases where interim relief is granted, cannot be decided on merit.
24. The reliance of the learned counsel for the petitioner on the judgment of this Court in the case of Hindustan Petroleum Corporation Ltd., (supra) totally is misplaced.
25. The learned counsel for the petitioner, thereafter, contended that the departmental proceedings deserves to be stayed, as the question in the criminal proceedings, and in the departmental proceedings is based on the same facts, and the evidence to be led is also the same.
26. In support of the contention, the learned counsel for the petitioner placed reliance on the decision of the Hon'ble Supreme Court in CAPT. M. PAUL ANTHONY ..VS.. BHARAT GOLD MINES LTD., AND ANOTHER (1999 (3) L.W. 351), wherein the Hon'ble Supreme Court was pleased to lay down, that the criminal case, and departmental proceedings can proceed simultaneously, but with the exception, to the cases, which are based on identical facts, and evidence is also common, without any variance.
27. The contention of the learned counsel for the petitioner, was that in the case in hand, the reading of the charge framed by the Criminal Court and the Departmental proceedings show, that both the proceedings are based on identical facts, and four of the witnesses to be examined are also common. Therefore, the proceedings deserves to be stayed.
28. The learned counsel for the petitioner also placed reliance on the Judgment of the Hon'ble Supreme Court in the case of STATE BANK OF INDIA AND OTHERS ..VS.. R.B. SHARMA (2005 (3) L.W. 71), wherein again the Hon'ble Supreme Court was pleased to lay down, that the criminal case and departmental proceedings can go on simultaneously, except where departmental proceedings, and criminal case are based on the same set of facts, and the evidence in both the proceedings is common.
29. Reliance was, thereafter, placed on the Judgment of this Court in the case of V. KANAGASABAPATHY ..VS.. THE DEPUTY INSPECTOR GENERAL OF POLICE (2006 W.L.R. 340), wherein this Court accepted the contention to quash the departmental proceedings on acquittal in a criminal case, on the ground that the allegations in both the departmental enquiry, and the criminal case were one and the same.
30. The writ petition is opposed by the State, on the ground, that in view of the subsequent Judgment of the Hon'ble Supreme Court in the case of INDIAN OVERSEAS BANK ..VS.. P. GANESAN AND OTHERS (2008 (1) M.L.J. 37 (SC)), there is no ground to stay or quash the departmental proceedings.
31. The Hon'ble Supreme Court in the case of INDIAN OVERSEAS BANK ..VS.. P. GANESAN AND OTHERS (supra) was pleased to lay down as under:-
"17. Legal position operating in the field is no longer res integra. A departmental proceedings pending a criminal proceedings does not warrant an automatic stay. The superior courts before exercising its discretionary jurisdiction in this regard must take into consideration the fact as to whether the charges as also the evidence in both the proceedings are common and as to whether any complicated question of law is involved in the matter.
18. In Delhi Cloth and General Mills Ltd. v. Kushal Bhan this Court while holding that the employer should not wait for the decision of the criminal court before taking any disciplinary action against the employee and such an action on the part of the employer does not violate the principle of natural justice, observed:
"3. ? We may, however, add that if the case is of a grave nature or involves questions of fact or law, which are not simple, it would be advisable for the employer to await the decision of the trial court, so that the defence of the employee in the criminal case may not be prejudiced."
The same principle was reiterated in Tata Oil Mills Co. Ltd. v. Workmen.
19. In State of Rajasthan v. B.K. Meena this Court held:
"14. ? The staying of disciplinary proceedings, it is emphasised, is a matter to be determined having regard to the facts and circumstances of a given case and that no hard-and-fast rules can be enunciated in that behalf. The only ground suggested in the above decisions as constituting a valid ground for staying the disciplinary proceedings is that 'the defence of the employee in the criminal case may not be prejudiced'. This ground has, however, been hedged in by providing further that this may be done in cases of grave nature involving questions of fact and law. In our respectful opinion, it means that not only the charges must be grave but that the case must involve complicated questions of law and fact. Moreover, 'advisability', 'desirability' or 'propriety', as the case may be, has to be determined in each case taking into consideration all the facts and circumstances of the case."
20. Capt. M. Paul Anthony v. Bharat Gold Mines Ltd also deserves to be noticed. This Court therein held that the departmental proceedings need not be stayed during pendency of the criminal case save and except for cogent reasons. The Court summarised its findings as under:
"22. (i) Departmental proceedings and proceedings in a criminal case can proceed simultaneously as there is no bar in their being conducted simultaneously, though separately.
(ii) If the departmental proceedings and the criminal case are based on identical and similar set of facts and the charge in the criminal case against the delinquent employee is of a grave nature which involves complicated questions of law and fact, it would be desirable to stay the departmental proceedings till the conclusion of the criminal case.
(iii) Whether the nature of a charge in a criminal case is grave and whether complicated questions of fact and law are involved in that case, will depend upon the nature of offence, the nature of the case launched against the employee on the basis of evidence and material collected against him during investigation or as reflected in the charge-sheet.
(iv) The factors mentioned at (ii) and (iii) above cannot be considered in isolation to stay the departmental proceedings but due regard has to be given to the fact that the departmental proceedings cannot be unduly delayed.
(v) If the criminal case does not proceed or its disposal is being unduly delayed, the departmental proceedings, even if they were stayed on account of the pendency of the criminal case, can be resumed and proceeded with so as to conclude them at an early date, so that if the employee is found not guilty his honour may be vindicated and in case he is found guilty, the administration may get rid of him at the earliest."
21. The issue came up for consideration yet again in T. Srinivas where this Court while analysing B.K. Meena and Capt. M. Paul Anthony held that:
"10. From the above, it is clear that the advisability, desirability or propriety, as the case may be, in regard to a departmental enquiry has to be determined in each case taking into consideration all facts and circumstances of the case. This judgment also lays down that the stay of departmental proceedings cannot be and should not be a matter of course."
22. The High Court, unfortunately, although it noticed some of the binding precedents of the Court failed to apply the law in its proper perspective. The High Court was not correct in its view in concluding that the stay of the departmental proceedings should be granted in the peculiar facts and circumstances of the case without analysing and applying the principle of law evolved in the aforementioned decisions. It, therefore, misdirected itself in law. What was necessary to be noticed by the High Court was not only existence of identical facts and the evidence in the matter, it was also required to take into consideration the question as to whether the charges levelled against the delinquent officers, both in the criminal case as also the in disciplinary proceedings, were same. Furthermore it was obligatory on the part of the High Court to arrive at a finding that the non-stay of the disciplinary proceedings shall not only prejudice the delinquent officers but the matter also involves a complicated question of law.
23. The standard of proof in a disciplinary proceedings and that in a criminal trial is different. If there are additional charges against the delinquent officers including the charges of damaging the property belonging to the Bank which was not the subject-matter of allegations in a criminal case, the departmental proceedings should not have been stayed.
24. Furthermore Respondents 1 to 4 have now moved the High Court for quashing of the order taking cognizance of offence against them in the criminal proceedings. The criminal proceedings have been stayed. Thus, even applying the principle laid down in Capt. M. Paul Anthony the impugned judgment cannot be sustained. Before the High Court no contention was raised that because Respondents 1 to 4 are office-bearers of a trade union, the authorities were biased against them. Nothing has been shown that any complicated question of law arose for determination in the criminal case.
25. Reliance placed by Mr Prakash on Hindustan Petroleum Corpn. Ltd. is not apposite. There were certain special features which were noticed by this Court. In that case itself it was held:
"11. There can be no straitjacket formula as to in which case the departmental proceedings are to be stayed. There may be cases where the trial of the case gets prolonged by the dilatory method adopted by the delinquent official. He cannot be permitted to, on one hand, prolong the criminal case and at the same time contend that the departmental proceedings should be stayed on the ground that the criminal case is pending."(emphasis supplied)
26. Therein the departmental proceedings were allowed to continue despite the fact that the delinquent officer therein had been charged for commission of an offence under Section 13(1)(e) read with Section 13(2) of the Prevention of Corruption Act, 1988.
27. In G.M. Tank this Court was dealing with a case where the delinquent officer was acquitted. The said decision has no application in the instant case.
28. Sathi Vijay Kumar pertains to a case involving election dispute. The question which arose therein was as to whether despite the fact that there was no provision in the Representation of the People Act, 1961 for striking out the pleadings, the Tribunal had the power to do so. We are not concerned with such a question in this matter.
29. Furthermore, the discretionary writ jurisdiction under Article 226 of the Constitution of India should be exercised keeping in view the conduct of the parties. The respondents made a representation that in the event the order of suspension is revoked, they would cooperate with the enquiry officer. They kept on filing applications for extension of time which were allowed. They took benefit thereof. Without, however, filing show-cause, they moved the High Court. Furthermore, before the enquiry officer also, as noticed hereinbefore, although they had appointed the defence counsel, did not cross-examine the witnesses examined on behalf of the management. A large number of witnesses had already been examined on behalf of the appellants. The disciplinary proceedings, as we have noticed hereinbefore, have proceeded to a great extent. In such a situation we are of the firm view that the discretionary jurisdiction should not have been exercised in favour of Respondents 1 to 4 by the High Court.
30. For the reasons above mentioned the impugned judgment cannot be sustained which is hereby set aside. The appeal is accordingly allowed."
32. The learned counsel for the petitioner contended, that the Hon'ble Supreme Court while deciding the case INDIAN OVERSEAS BANK ..VS.. P. GANESAN AND OTHERS (supra), did not take note of the Judgment in the case of STATE BANK OF INDIA AND OTHERS ..VS.. R.B. SHARMA (supra). Therefore, it cannot be said to be a binding precedent.
33. The contention of the learned counsel for the petitioner cannot be accepted, in view of the settled law, that in the case of two judgment of the Hon'ble Supreme Court of co-ordinate Bench the later in time, is binding as precedent, whereas, if the earlier judgment is of Larger Bench, then that is to be followed.
34. On consideration, I find no force in the contentions raised by the learned counsel for the petitioner. The Hon'ble Supreme Court in the case of INDIAN OVERSEAS BANK ..VS.. P. GANESAN AND OTHERS (supra), while deciding the question as to whether departmental proceedings purely internal proceeding can be stayed, has held that the High Court is required to take into consideration the question, as to whether the charges levelled against the delinquent officer both in the criminal case as also disciplinary proceedings were same, and in addition, it is obligatory on the part of the High Court to arrive at a finding that the non staying of the disciplinary proceedings shall not only prejudice the delinquent officer but also that the matter involved a complicated question of law. The Hon'ble Supreme Court also took note of the Judgment in the case of CAPT. M. PAUL ANTHONY ..VS.. BHARAT GOLD MINES LTD., AND ANOTHER (supra).
35. If the facts of the case are tested in the light of the Judgments of the Hon'ble Supreme Court, it is noticed, that the criminal case has been unduly delayed. Therefore, there is hardly any reason to stay the departmental proceedings. Further more, it cannot be said that the continuation of departmental proceedings will prejudice the petitioner, nor the matter involves a complicated question of law.
36. The Hon'ble Supreme Court in the case of STATE BANK OF HYDERABAD AND ANOTHER ..VS.. P. KATA RAO (2008 (15) S.C.C. 657) has laid down that only because the delinquent employee who was also facing a criminal charge stands acquitted, the same, by itself, would not debar the disciplinary authority in initiating a fresh departmental proceeding and / or where the departmental proceedings had already been initiated, to continue therewith. The legal principle enunciated to the effect that on the same set of facts the delinquent shall not be proceeded in a departmental proceedings and in a criminal case simultaneously, has, however, been deviated from.
37. The charges against the petitioner are that of corruption. The decision does not involve any complicated question of law, which can entitle the petitioner to see the stay of the criminal proceedings.
38. It is also necessary to note that the prayer made by the petitioner is to quash the Charge Memo. The prayer, on the face of it, is not competent, in view of the settled law, that both departmental and criminal proceedings can go side by side, and pendency of criminal proceedings cannot be a ground to quash departmental proceedings.
39. As already observed above, no ground is made out to stay the departmental proceedings, merely because the facts in the criminal case and the departmental enquiry are identical, which are required to be proved by same evidence.
40. For the reasons stated hereinabove, finding no merit, this writ petition is dismissed.
No costs. Consequently, the connected W.P.M.P.(MD)No.3161 of 2006 is closed.
Dpn/-
To
1. The Deputy Inspector General of Police, Thanjavur Range, Thanjavur.
2. The Superintendent of Police, Thanjavur District.