Madras High Court
P.Veeran vs The Superintendent Of Police on 23 October, 2017
Author: S.M.Subramaniam
Bench: S.M.Subramaniam
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 23.10.2017 CORAM THE HONOURABLE Mr. JUSTICE S.M.SUBRAMANIAM W.P. No.19320 of 2014 and MP.No.1 of 2014 P.Veeran .... Petitioner Vs. The Superintendent of Police, Villupuram District. .... Respondent Prayer : Petition filed under Article 226 of the Constitution of India, to issue a Writ of Certiorarified Mandamus calling for the records on the file of the respondent Na Ka No.D2/.R.16/2007 dated 14.03.2014 and quash the same and direct the respondent to permit the petitioner to retire from service with effect from 30.06.2008 with all service and monetary benefits by dropping all further action in the Charge Memo dated 10.03.2007 taking into account the judgment of learned Principal Session Judge, Villupuram made in S.C.No.50/2010 dated 29.01.2011. For Petitioner : Mr.S.Selvathirumurugan For Respondents : Mr.R.Vijayakumar, AGP O R D E R
The charge memo dated 14.03.2014 issued to the writ petitioner is under challenge in this writ petition.
2. The writ petitioner was appointed as Grade II Police Constable on 13.10.1972 and further promoted to the post of Grade I police constable in the year 2003. The petitioner was thereafter promoted as Head Constable in the year 1998. On account of certain allegation against the writ petitioner, a criminal case was registered in Crime No.159 of 2007 under Section 342, 354 IPC read with Section 4 of Tamil Nadu Prohibition of Women Harrasment Act 2002. The writ petitioner was placed under suspension in proceedings dated 20.02.2007. Therefore, he was not allowed to retire from service on account of pendency of the disciplinary proceedings. An order not permitting him to retire from service also was issued in proceedings dated 24.06.2008. The criminal case registered against the writ petitioner was tried by the Court of Special Judge (Principle Sessions Judge) and the judgment was delivered on 29.01.2011, acquitting the accused/petitioner. Against the judgment passed in Sessions case No.50 of 2010, a criminal appeal was filed by the State in criminal Appeal No.142 of 2011 and the appeal is pending before this Court. In these circumstances, a question arises whether the departmental proceedings can be proceeded with or not.
3. The impugned order has been passed holding that the writ petitioner is not entitled for the terminal and retirement benefits during the pendency of the Criminal Appeal No.142 of 2011. Further, the writ petitioner was placed under suspension and his services were retained in proceedings dated 24.06.2008. At the outset, the terminal and retirement benefits of the writ petitioner has been withheld on account of pendency of the criminal appeal filed by the State before this Court.
4. This Court has to consider whether even during the pendency of the criminal appeal, charges framed against the writ petitioner in charge memo dated 10.03.2007 shall be proceeded with or not. The charges against the writ petitioner are as follows:
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5. This Court is of the opinion that charges framed against the writ petitioner are certainly serious in nature and an enquiry was also conducted by the disciplinary authority. On perusal of the charge memo, Annexure 3 provides list of documents which contains twelve documents and Annexure 4 provides list of witnesses containing eleven witnesses. The charges framed and the list of witnesses are also clear in nature. Thus, there is no bar for the disciplinary authority to proceed with the enquiry proceedings in this regard against the writ petitioner. Once the charge memo has been issued against the delinquent official, the disciplinary authority has to proceed with the enquiry proceedings without causing much delay. Long pendency of the charge memo will cause great prejudice to the delinquent officials also. Mere pendency of the criminal case or criminal appeal cannot be a ground for keeping the charge memo in abeyance.
6. This Court is also of the view that the order of acquittal is also not a bar for the continuance of disciplinary proceedings. Mere acquittal under the criminal case will not create a ground for exoneration in respect of delinquent officials are concerned. After an order of acquittal, also the department can proceed with the departmental disciplinary proceedings and suspend the person if the allegation against the delinquent official is proved. In this regard, this court has to emphasize that the standard of proof required for the criminal case is higher in nature. But, in the Departmental Disciplinary Proceedings, preponderance of probabilities are sufficient to impose punishment on the employees under the Discipline and Appeal Rules. Thus, the criminal cases registered and pending before the criminal Courts are standing on different footing and the same will not prevent the disciplinary authorities to continue the Disciplinary Proceedings under the Tamil Nadu Civil services (Discipline and Appeal) Rules. Thus, the mere acquittal in the criminal case cannot be a bar for proceeding with the departmental disciplinary proceedings or a ground for seeking exoneration by the delinquent officials. Thus, there is no reason as such to keep the matter pending by the respondent. The respondents have to proceed with the disciplinary proceedings based on the charge memo framed against the writ petitioner in proceedings dated 10.03.2007 in view of the fact that the charge memo contains the allegation, list of documents and list of witnesses enabling the authorities to proceed with the discipline and appeal rules.
7. In respect of the departmental proceedings, the legal principles are well settled by this Court. Only if the facts are so complex in nature, the disciplinary proceedings shall be kept in abeyance during the pendency of the criminal proceeding. If the incidents are capable of proceeding departmentally by the authorities, then there is no need to stall the departmental disciplinary proceedings. Thus, the authorities are free to conclude the enquiry and pass final orders in disciplinary proceedings. On perusal of the charge memo dated 10.03.2007, this Court is of the view that the charges are clear in nature and the list of documents and list of witnesses are enclosed along with the charge memo. Thus, there is no impediment in continuing the disciplinary proceedings.
8. Thus, this Court is of the opinion that the respondent is unnecessarily keeping the Charge memo in abeyance without any progress.
9. 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 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.
10. The departmental authorities are free to exercise such lawful powers as are conferred on them by the departmental rules and regulations.
11. In the case of Sri Bhagwan Ram v. The State of Jharkand, State of Bihar and others(2017), 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.
12. In the case of Dr.Bharathi Pandey-Deputy General Manager V. 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.
13. In the case of Ajith Kumar Das v. 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. 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.
14. In the case of Avinash Sadashiv Bhosale v. 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 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.
15. The Supreme Court in the case of Karnataka State Road Transport Corporation v. 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 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.
16. 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 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.
17. In the case of State Bank of India & Ors. Versus 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.
18. In the case of Ajith Kumar Nag v. 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 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'.
19. In the case of West Bokaro Colliery(Tisco Ltd.) v. 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.
20. In the case of S.A.Venkatraman v. Union of India, 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 v. 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. vs. K.S.Tandon, AIR 2008 SC 1235)
21. 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 exterior 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 proceeding 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 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 is conducted simultaneously.
22.However in the writ petition on hand, an order of denial, denying the terminal pensionary benefits is under challenge. Now during the pendency of the departmental disciplinary proceeding and criminal appeal, the question of settling the terminal benefits does not arise at all. However, the fact remains that the petitioner was placed under suspension and his services were also retained in accordance with the Fundamental Rules. Thus, the relief regarding the settlement of pensionary benefits at this point of time cannot be entertained. Therefore, this Court has to take note of the fact that the long pendency of the disciplinary proceedings will affect the retired employees and the delinquent officials also deprived of their terminal benefits in time. In these circumstances, it is the duty of the competent authority to see that no delay is caused on account of long pendency of the departmental disciplinary proceedings. It is their duty to complete the disciplinary proceedings within a reasonable period of time. Only if there is any genuine reason for delay in this regard, the same can be accepted. However, the delay in completing the disciplinary proceedings cannot be caused merely on the ground that the criminal appeal is pending before any Court. Mere pendency of criminal appeal is not a bar for departmental disciplinary proceedings and in this case, the charge memo was also issued against the writ petitioner in proceedings dated 10.03.2007 and for the last about ten years, the same is kept pending without any progress, on account of pendency of the criminal appeal as well as criminal case. Thus, this Court is of the view that there is no bar to proceed with the departmental disciplinary proceedings.
23. Pursuant to the charge memo on 10.03.2017, the respondents are directed to proceed with the enquiry proceedings and conclude the same in accordance with the rules and pass final orders in the disciplinary proceedings as early as possible preferably within a period of six months from the date of receipt of a copy of this order. The writ petitioner is directed to co-operate for the completion of the enquiry in all respects.
Accordingly, the writ petition stands disposed of. No costs. Consequently connected miscellaneous petition is closed.
23.10.2017 sk To The Superintendent of Police, Villupuram District.
S.M.SUBRAMANIAM, J.
sk W.P.No.19320 of 2014 23.10.2017