Madras High Court
T.Rethina Swamy vs The Deputy Inspector General Of Police on 11 January, 2018
Author: S.M.Subramaniam
Bench: S.M.Subramaniam
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 11.01.2018 CORAM THE HONOURABLE MR.JUSTICE S.M.SUBRAMANIAM W.P(MD)Nos.8954 of 2010, 8955, 8956, 8957, 8958, 8421, 8288 and 8370 of 2010 and all other connected miscellaneous petitions +W.P(MD)Nos.8954 of 2010 T.Rethina Swamy ... Petitioner Vs. The Deputy Inspector General of Police, Tirunelveli Region, Tirunelveli. ... Respondent PRAYER in WP(MD) No.8954 of 2010: Writ Petition filed under Article 226 of the Constitution of India praying for a issue of a Writ of Certiorari, calling for the records of the memorandum of charge by the Respondent vide P.R.No.35 of 2009 dated 12.03.2009 and the consequent memorandum vide C.No.C1/1080/2009 dated 06.07.2010 calling for oral enquiry, quash the same.
!For Petitioner : Mr.C.T.Perumal
For Respondent : Mr.R.Sethuraman
Special Government Pleader
:COMMOM ORDER
The issue involved in all these writ petitions is one and the same and therefore, all these matters are taken up together for final disposal by way of this common order.
2. The charge memo issued to the writ petitioners in P.R.Nos.35, 38, 36, 40, 39, 119, 118, 41 dated 12.03.2009, 12.05.2009, 01.06.2009 and the consequential Memorandum issued in proceedings dated 06.07.2010, 17.06.2010, 01.06.2009, respectively, are under challenge in these writ petitions.
3. The writ petitioner in WP(MD) No.8954 of 2010 was appointed as Gr.II Constable on 13.02.1977 and posted to serve in Armed Reserve, Tirunelveli. Thereafter, the petitioner was promoted as Gr.I Constable in the year 1993 and subsequently as Head Constable in the year 1998.
(i) The writ petitioner in WP(MD) No.8955 of 2010 was appointed as Gr.II Constable on 25.10.1984 and posted to serve in Armed Reserve, Chennai. Thereafter, the petitioner was promoted as Gr.I Constable in the year 1997 and subsequently as Head Constable in the year 2000.
(ii) The writ petitioner in WP(MD) No.8956 of 2010 was appointed as Gr.II Constable on 17.11.1988 and posted to serve in Armed Reserve, Tuticorin District. Thereafter, the petitioner was promoted as Gr.I Constable in the year 1998 and subsequently as Head Constable in the year 2004.
(iii) The writ petitioner in WP(MD) No.8957 of 2010 was appointed as Gr.II Constable on 01.05.1988 and posted to serve in Armed Reserve, Chennai. Thereafter, the petitioner was promoted as Gr.I Constable in the year 1999 and subsequently as Head Constable in the year 2004.
(iv) The writ petitioner in WP(MD) No.8958 of 2010 was appointed as Gr.II Constable on 01.04.1981 and posted to serve in Tamil Nadu Special Police, Tirunelveli District. Thereafter, the petitioner was promoted as Gr.I Constable in the year 1995 and subsequently as Head Constable in the year 2000.
(v) The writ petitioner in WP(MD) No.8421 of 2010 was appointed as Constable on 01.10.1970. Thereafter, the petitioner was promoted as Sub-
Inspector of Police in the year 2006.
(vi) The writ petitioner in WP(MD) No.8288 of 2010 was appointed as Constable on 14.08.19690. Thereafter, the petitioner was promoted as Inspector of Police in the year 2004. Subsequently, on completion of his service, on 30.06.2006, he attained superannuation.
(vii) The writ petitioner in WP(MD) No.8370 of 2010 was appointed as Constable on 01.04.1974. Thereafter, the petitioner was promoted as Sub-Inspector of Police in the year 2004.
4. On account of certain allegations a criminal case was registered against the writ petitioners in Cr.No.391 of 2006 in Kadayanallur Police Station. The writ petitioners have been arrayed as accused No.6, 8, 7, 10, 9, 12, 4, 5 in the said criminal case. The criminal case registered against the writ petitioners has been transferred to CBCID, by the order of Director General of Police. Under these circumstances, departmental disciplinary proceedings were initiated against the writ petitioners under Rule 17(b) of Tamil Nadu Police Subordinate Service (Discipline and Apppeal) Rules 1955. The charges against the writ petitioners are extracted hereunder:
"Charge: Highly reprehensible conduct in having beaten and tortured one secured suspected accused namely Mohamed Masood, S/o.Abdul Jabar, a resident of Chanthai Nadupettai, Kadayanallur, Thenkasi Taluk, in Tirunelveli District on 29.11.2005 while he was detained at Keeriparai P.S. from 28.11.2005 to 30.11.2005 midnight under the guise of interrogation in the dacoity case in Aralvoimozhy P.S. Cr.No.482/2005 u/s.395, 397 and 427 IPC registered on 28.11.2005 at 01.30 hours."
5. Annexure-II of the charge memo provides the statement of allegations namely imputation of misconduct or misbehaviour, in support of the charge framed against the writ petitioners. Annexure-III of the charge memo enumerates the list of documents filed. Annexure-IV of the charge memo denotes the list of witnesses to be examined to establish the charges against the writ petitioners.
6. This Court is of the opinion that there is no infirmity as such in the Memorandum of charges. The charge memo contains the charge which is a specific statement of imputation, list of documents and list of witnesses. Thus, the charge memo is capable of proceeding with the departmental disciplinary proceedings. On receipt of the Memorandum of charges, instead of submitting their explanations / objections, the writ petitioners have chosen to prefer these writ petitions under Article 226 of Constitution of India, mainly on the ground that the facts and circumstances both in the criminal case as well as in the departmental proceedings are similar in nature. Thus, the departmental disciplinary proceedings shall be kept in abeyance, till the criminal trial is concluded.
7. The learned counsel appearing for the petitioners states that in the event of participating in the departmental disciplinary proceedings, the writ petitioners would be prejudiced in respect of defending their case and more specifically in relation to the examination of the witnesses. In this regard, this Court is of the opinion that the procedures contemplated to conduct the criminal trial under the Code of Criminal Procedure, is different and the procedures contemplated in the Discipline and Appeal Rules are distinct. The procedures to be adopted in these two procedures are entirely different and therefore, the contention, as such, deserves no consideration.
8. The criminal case requires a high standard of proof for convicting a person under criminal law. The charges framed under the criminal law ought to be established beyond any reasonable doubt. In fact, strict proof is required for imposing any conviction. However, no such strict proof or evidence are required in respect of departmental disciplinary proceedings. Moral turpitude is sufficient to punish a public servant. Preponderance of probabilities are enough to punish a person under Discipline and Appeal Rules. Thus, there cannot be any comparison in respect of the procedures to be adopted in respect of the criminal case as well as the departmental disciplinary proceedings.
9. The writ against the charge memo can be entertained only on exceptional circumstances and not in a routine manner. A writ proceeding can be entertained against a charge memo, if the same is issued by the authority having no jurisdiction or competency or if any mala fide allegations are raised or if the same is in violation of the Statutory Rules in force. Even in the case of raising allegations on mala fides, the authority, against whom allegation is raised, has to be impleaded as a party respondent in his personal capacity. In the absence of any one of these legal grounds, no writ petition can be entertained against a charge memo. The Judicial review in this regard is certainly limited and the constitutional Courts are to be cautious, while entertaining a writ petition against a charge memo or against show cause notice.
10. Intermittent intervention in the departmental disciplinary proceedings are certainly not desirable. The disciplinary proceedings initiated against a public servant shall be allowed to be completed in all aspects and the same should reach its logical conclusion. It is left open to the delinquent officials to submit their explanations / objections to the charge memorandum, to prove their innocence at the time of enquiry to be conducted by the disciplinary authorities. Thus, this Court is of the opinion that intermittent intervention in the departmental disciplinary proceedings cannot be entertained in a routine manner.
11. In these writ petitions, on perusal of the charge memo, this Court is of the opinion that the charges are independent and relates to the alleged reprehensible conduct of the writ petitioners, while on duty. Thus, the charges are capable of proceeding in accordance with the Discipline and Appeal Rules and the list of documents and witnesses are independently stated in the charge memorandum itself. Thus, there is no bar in proceeding with the departmental disciplinary proceedings and the mere pendency of the criminal case cannot be a ground for the writ petitioners to file writ petitions for the purpose of quashing the charge memo.
12. Interestingly, the relief sought for in these writ petitions is to quash the charge memo. A mere pendency of the criminal case cannot be construed as a ground to quash the charge memo. Probably the idea of the writ petitioners would be to keep the disciplinary proceedings in abeyance till the pendency of the criminal proceedings. Therefore, this Court has to draw the factual inference that the original idea of the writ petitioners are to quash the charge memos and to escape from the clutches of law. Incidentally they would have developed an idea to ensure that the disciplinary proceedings are protracted and prolonged, so as to escape from the clutches of the proceedings.
13. The very concept and idea of these delinquent officials can never be encouraged by the Constitutional Courts and such an attitude of the writ petitioners have to be deprecated. The public servant, on receipt of any such charge memo, has to face the enquiry proceedings, so as to prove his innocence. The Courts are bound to draw such inference and after all it is a human mind, in which, such ideas arise in one way or other to escape from the penalty and departmental disciplinary proceedings. However, Courts are to be cautious, while entertaining these writ petitions.
14. The charge memorandum per se cannot constitute any cause of action to entertain writ petitions. The charge memorandum is not a final order in the disciplinary proceedings, but is an initiation of disciplinary proceedings. The question arises is mere initiation of disciplinary proceedings will provide a cause of action to move a writ petition under Article 226 of Constitution of India. The answer is negative. The answer would be that a person against whom an allegation is set out has to establish his innocence or otherwise, only by undergoing the process of enquiry and he would never be allowed to escape from the clutches of law in a routine manner or on flimsy procedural grounds. Thus, the very concept of filing these writ petitions to quash the charge memo, merely on the ground that the criminal case is pending cannot be accepted and to be rejected in limine.
15. The learned counsel for the petitioners, cited the Judgment of the Honourable Supreme Court of India in the case of Stanzen Toyotetsu India Private Limited Vs. Girish V. and others, reported in (2014) 3 Supreme Court cases 636 and the paragraph No.19 in the said judgment, is extracted hereunder:
"In the circumstances and taking into consideration all aspects mentioned above as also keeping in view that fact that all the three courts below have exercised their discretion in favour of staying the ongoing disciplinary proceedings, we do not consider it fit to vacate the said order straightaway. Interests of justice would, in our opinion, be sufficiently served if we direct the court dealing with the criminal charges against the respondents to conclude the proceedings as expeditiously as possible but in any case within a period of one year from the date of this order."
16. The learned counsel for the petitioners urged this Court by stating that if the charges are not quashed, at least a direction may be issued to the criminal Court to expedite the trial. This Court is of the opinion that the arguments advanced is certainly reasonable and shall be considered. The Honourable Supreme Court of India, time and again expressed its opinion that speedy trial is also a right of an accused. It was interpreted with reference to Article 21 of the Constitution of India. Thus, the early disposal of the criminal trial is also forming part of the right of an accused. Undoubtedly, the claim is reasonable. However, this Court has to consider the statistical aspects prevailing in the Criminal Courts across the country and more specifically in the State of Tamil Nadu. Undoubtedly, the Subordinate Courts are also over burdened for want of required Judicial Officers, want of required Ministerial Staffs and other infrastructure facilities. However, within the available sources, the Subordinate Officers have to perform their duties and responsibilities with utmost care and devotion to their duties. However, for issuing such a direction to expedite the trial, it is necessary that the counsels, the Public Prosecutor and the police officials, have to file necessary affidavit stating that how many witnesses are to be examined and how much volume of documents are to be perused and how much time they require for completion of arguments and other things. If such an assessment is made by the Courts then it would be practicable for the Honourable High Court for issuing such directions for expediting the trial. The Honourable High Court cannot sitting in the appellate side, close its eyes in respect of the practical difficulties prevailing in the Subordinate Courts, to speed up the trial.
17. If such order is passed, without considering these materials and records, it would be a non-workable order and ultimately, the Honourable High Court on Administrative side will get files from the Subordinate Officials seeking extension of time for completion of trial. Thus, such a situation to be averted. As far as possible a practicable and pragmatic approach to be adopted, while issuing such directions to the Subordinate Courts also. It is, as if, a direction to be issued in a routine manner to the Subordinate Courts to expedite the trial in all cases. Even otherwise, it is not, as if, for issuing a direction to few cases wherein, the litigants approached this Court seeking to expedite the trial. The Courts have to form an uniform procedure for expediting the trial in criminal cases. For instance a direction is issued in one case then the question arises what about the other cases pending in the Courts for a number of years. Whether, those accused are to be made to wait for years or those accused are to be neglected. Providing the relief only for one case may not be of any avail and the Courts have to consider the over all pendency of works, while issuing such a directions to the Subordinate Courts, which would have some meaning in protecting the interest of the persons in all the cases, who are facing the criminal trial.
18. 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.
19. The departmental authorities are free to exercise such lawful powers as are conferred on them by the departmental rules and regulations.
20. 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.
21. 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.
22. 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.
23. 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.
24. 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?.
25. 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.
26. 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.?
27. 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'.
28. 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.
29. 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)
30. 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.
31. In view of the above discussion, this Court is of the view that simultaneous proceedings are permissible and only on certain exceptional circumstances, the departmental proceedings can be kept in abeyance, if the facts and circumstances are so complicated and the departmental authorities cannot proceed with the departmental proceedings. In all other circumstances the departmental authorities are at liberty to proceed with the departmental proceedings and conclude the same at the earliest possible.
32. This Court has to make necessary observation that once disciplinary proceedings are initiated against the public servants and then the same should be concluded at the earliest possible without undue delay. Long pendency of the departmental proceedings will cause prejudice to the employees also. Thus, the competent authorities are to be vigilant in closing the disciplinary proceedings as early as possible. Under these circumstances, this Court is of the opinion that the charge memo cannot be quashed.
33. Yet another concern raised by the learned counsel for the petitioner is that the enquiry was proposed to be conducted by the Deputy Inspector General of Police, Thirunelveli Range, who has issued the charge memo. The point raised is that the authority, who framed the charges cannot conduct the enquiry. Though there is no legal bar, this Court is of an opinion that it is preferable that an independent enquiry officer has to be appointed for the purpose of conducting the domestic enquiry. Such a direction is issued only to conduct the enquiry in a more transparent manner. Thus, the respondents are directed to appoint an independent enquiry officer to proceed with the enquiry in accordance with the rules and by providing opportunity to the writ petitioners to defend their case, under the rules.
34. With these above observations, these writ petitions are dismissed. However, there shall be no order as to costs. Consequently, connected miscellaneous petitions are closed.
To The Deputy Inspector General of Police, Tirunelveli Region, Tirunelveli.
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