Madras High Court
S.Gandhi vs The Deputy Inspector General Of Police on 18 August, 2011
Author: S.Manikumar
Bench: S.Manikumar
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 18/08/2011 CORAM THE HONOURABLE MR.JUSTICE S.MANIKUMAR W.P.(MD).No. 9274 of 2011 & W.P.(MD).No.9275 of 2011 And M.P.(MD).Nos. 1 & 2 of 2011 S.Gandhi ... Petitioner in W.P.(MD).No. 9274/2011 S.Rajamanickam @ Rajkumar ... Petitioner in W.P.(MD).No. 9275/2011 Vs 1. The Deputy Inspector General of Police Vellore District Vellore 2. The Additional Superintendent of Police Crime Vellore District Vellore ... Respondents in both W.Ps. PRAYER IN W.P.(MD).No. 9274/2011 Petition filed under Article 226 of the Constitution of India, praying for the issuance of Writ of Certiorari to call for the records on the file of the first respondent in connection with the impugned charge memo issued by him in P.R.No. 8 of 2009, dated 17.02.2009 and consequential impugned enquiry notice issued by the second respondent in C.No.50/ADSP/CRIME/VLR/2010, dated 04.08.2011 and quash the both as illegal and arbitrary. PRAYER IN W.P.(MD).No. 9275/2011 Petition filed under Article 226 of the Constitution of India, praying for the issuance of Writ of Certiorari to call for the records on the file of the first respondent in connection with the impugned charge memo issued by him in P.R.No. 9 of 2009, dated 17.02.2009 and consequential impugned enquiry notice issued by the second respondent in C.No.50/ADSP/CRIME/VLR/2010, dated 04.08.2011 and quash the both as illegal and arbitrary. **** !For Petitioners in both W.Ps. ... Mr. G.Thalaimutharasu ^For Respondents ... Mr.T.S.Mohamed Mohideen Additional Government Pleader :COMMON ORDER
In W.P.(MD).No. 9274 of 2011, an Inspector of Police, under suspension, has challenged the correctness of the charge memorandum, dated 17.02.2009 and the consequential enquiry notice, dated 04.08.2011 fixing the enquiry on 18th and 19th of this month, respectively.
2. In W.P.(MD).No. 9275 of 2011, a Sub - Inspector of Police now under suspension, has challenged the charge memorandum, dated 17.02.2009 and the consequential enquiry notice, dated 04.08.2011.
3. As facts and submissions advanced by the learned counsel for the petitioners, are one and the same, they are taken up together for disposal.
4. As per the supporting affidavit, the petitioner in W.P.(MD).No. 9274 of 2011, Mr. Rajamanickam, Sub-Inspector of Police, had received a source of information that one drug smuggler was trying to smuggle a banned Narcotic Drug from Tharvaikulam to Srilanka. The Sub-Inspector of Police, on 30.06.2006, at about 10.30 a.m., went along with his party and the informer proceeded to Tharuvaikulam Vilakku in a police vehicle and waited for the arrival of the alleged smuggler, viz., Eswaramoorthy. He was interrogated and a search was also conducted. He was found in possession of 400 grams of Amphetamine, a prohibited Narcotic Drug packed in a plastic bag and hidden in the waists. The contraband was seized, the said Eswaramoorthy was arrested and taken to the office of NIB - CID, Tuticorin. A case in Crime No. 40 of 2006 was registered under Section 8 (c) r/w 22 (c) of NDPS Act, on 30.06.2006 on the file of the NIB-CID, Tuticorin. Thereafter, wife of the said Eswaramoorthy sent a petition, dated 06.07.2006, to the higher police officials stating that her husband has been falsely implicated in Crime No. 40 of 2006. According to her, on 29.06.2006, at about 11.30 a.m., a courier parcel by Professional Courier came to her house addressed to Eswaramoorthy and the said parcel contained a Narcotic Drug. Pursuant to the petition dated 06.07.2006 submitted by the wife of Eswaramoorthy, the police conducted an investigation and on the basis of the confessional statement of one Nallakani, 7 persons were implicated as accused including the petitioners in the same crime number by dropping the charges against the said Eswaramoorthy. Pursuant to the registration of the criminal case and transfer of the above case to CBCID, Thoothukudi, the petitioners were arrested and released on bail. They were also suspended on 05.09.2006.
5. It is the case of the petitioners that after three years from the date of suspension for the alleged incident, which took place in the year 2006, the charge memorandum were issued to the petitioners in P.R.Nos. 8 and 9 of 2009 respectively, under Rule 3(b) of the Tamil Nadu Police Subordinate Service (Discipline and Conduct) Rules 1955. Being aggrieved by the initiation of the disciplinary proceedings, the petitioners have filed W.P.(MD).Nos. 13608 and 12255 of 2009 before this Court seeking for a Mandamus to defer the departmental proceedings. Status quo was granted initially and later on, the Writ Petitions were dismissed on 16.09.2009 stating that the criminal case was only at initial stage and no prejudice would be caused if the departmental proceedings are continued.
6. It is the further case of the petitioner that after the dismissal of the Writ Petitions, the Deputy Inspector General of Police, Vellore District, Vellore, the first respondent herein, has changed the enquiry officer, vide proceedings, dated 13.08.2010 and after a lapse of one year from that date, enquiry notice, dated 04.08.2011 has been issued to the writ petitioners calling upon them to appear for an enquiry on 18th and 19th of this month.
7. The petitioners have further submitted that charge sheet has been filed against the petitioners in C.C.No. 241 of 2010, on the file of the Special District Judge (EC & NDPS Act), Madurai, and that the trial is likely to be commenced shortly. On the above pleadings and assailing the correctness of the charge memorandum, dated 17.02.2009 and the enquiry notice, dated 04.08.2011, Mr. G.Thalaimutharasu, learned counsel for the petitioners submitted that there is an inordinate delay of three years, in initiating departmental proceedings and a further delay of one year in issuing the enquiry notice, pursuant to the change of enquiry officer, which requires an explanation from the respondents and that the delay in initiating the disciplinary proceedings vitiates the same. In support of the said contention, Mr.G.Thalaimutharasu, learned counsel for the petitioners placed reliance on the decisions in P.V.Mahadevan Vs. M.D., Tamil Nadu Housing Board, reported in 2005 (4) CTC 403, and in M.Elangovan Vs. The Trichy District Central Co-op. Bank Ltd., and another reported in 2006 (2) CTC 635 and an unreported decision in W.P.(MD).No. 433 of 2008, dated 09.06.2010, etc.
8. Placing reliance on the decisions of the Supreme Court in Capt. M.Paul Anthony Vs. Bharat Gold Mines Ltd., and another reported in AIR 1999 SCC 1416 and Ammaiappan Vs. General Manager and others reported in 2009 1 MLJ 404, learned counsel for the petitioner further submitted that when the departmental action and prosecution are on the same set of facts, and if it involves complicated question of law and facts, the departmental proceedings requires to be deferred till the conclusion of the prosecution, so as to protect the right of the charged official to defend the criminal case effectively and that his defence should not be exposed.
9. In this context, the learned counsel for the petitioner took this Court through the details of the charges levelled against the petitioners in P.R.Nos. 8 & 9 of 2009 and the offences for which they were charge sheeted in C.C.No. 241 of 2010 on the file of the Special District Judge (EC & NDPS Act), Madurai.
10. Learned counsel for the petitioners further submitted that if this Court is not inclined to quash the impugned proceedings, atleast there can be a direction to continue the departmental proceedings and that the decision in the departmental proceedings may be deferred, till the conclusion of the trial, in C.C.No. 241/2010 on the file of the Special District Judge (EC & NDPS Act), Madurai.
11. At the time of admission, Mr.T.S.Mohamed Mohideen, learned Additional Government Pleader submitted that by this time, the enquiry would have already commenced. He further submitted that, on the same set of facts, simultaneous disciplinary proceedings are permissible. It is his further contention that the charges framed against the petitioners fall under the Tamil Nadu Police Sub-ordinate Service (Discipline and Appeal) Rules and that therefore, there is no need to quash the charges or to defer the enquiry proceedings.
12. Heard the learned counsel for the parties and perused the material available on record.
13. Before adverting to the facts and submissions made by the learned counsel for the petitioners, this Court deems it fit to consider, the decisions relied on by the learned counsel for the petitioners.
14. In P.V.Mahadevan Vs. M.D., Tamil Nadu Housing Board, reported in 2005 (4) CTC 403, the alleged incident which gave rise to initiation of disciplinary proceedings was of the year 1990. Disciplinary proceedings were initiated against the petitioner therein in 2000, for an irregularity in issuing the sale deed in 1990 to one Mr.A.N. Beemaiah, who was an employee of the Housing Board. As the delay of 10 years was inordinate and since the petitioner / appellant therein was denied promotion to the higher post causing prejudice, and considering the nature of the allegations, the Supreme Court was inclined to quash the disciplinary proceedings, on the ground that the appellant therein had already suffered enough and more on account of disciplinary proceedings.
15. In M.Elangovan Vs. The Trichy District Central Co-op. Bank Ltd., and another reported in 2006 (2) CTC 635 , for an occurrence of the year 1992-1996, charges are framed in 2001 and after completion of enquiry, the second show cause notice was issued in the year 2004, there was an inordinate delay of 18 months in passing orders after furnishing the enquiry report. In the meanwhile, promotion was denied on account of disciplinary proceedings. The charges relate to some financial loss to the Bank in granting loans. The facts pleaded were not even disputed by the respondents therein that the period relate to which the charges were levelled against the petitioner was 10 years in so far as first case is concerned and 5 years in so far as the second case. Considering the inordinate delay, Court was pleased to quash the disciplinary proceedings.
16. In an unreported decision in W.P.(MD).No. 433 of 2008, dated 09.06.2010, the occurrence was of the year 1993, in C.C.No. 15 of 2004, the petitioner therein was also tried for certain offences, before the learned Judicial Magistrate, Boothapandy, and by Judgment, dated 17.08.2007, he was acquitted. After the Judgment, the second respondent therein initiated disciplinary proceedings under Rule 17(b) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules. By initiation of the disciplinary proceedings and exercise of power under Section 56(1) (c) of the Fundamental Rules, the petitioner therein was not permitted to retire from service on the afternoon of 31.07.2007.
17. On the abovesaid facts and circumstances and considering the inordinate delay for nearly 14 years in initiating the disciplinary proceedings, this Court at paragraph Nos. 34 and 35 are held as follows:-
"34. In the case on hand, the occurrence is of the year 1993 and admittedly, the charges have been framed on 30.06.2007, after 14 years. There is no explanation for the inordinate delay in initiating the departmental proceedings. Merely because there is a power conferred on the authorities to initiate disciplinary proceedings, the same cannot be initiated at the whims and fancies of the disciplinary authority. When simultaneous proceedings are permissible in law, nothing prevented the authorities in initiating disciplinary proceedings even during the pendency of the criminal case registered against the petitioner. Power granted to the disciplinary authority should be exercised in a fair and reasonable manner and should not reflect his closed mind, that the department can prolong the matter for long time and initiate the disciplinary proceedings on the verge of retirement. It is in this context, the Government have issued G.O.Ms.No.144, Personnel and Administrative Reforms (N) Department, dated 08.06.2007, prohibiting suspension of the employee, within three months, before the date of retirement from service. The said Government Order may not in strict sense be applicable to a criminal or vigilance case, yet it is the duty of the disciplinary authority to see whether the delinquencies alleged to have been committed by the Government servant warrants immediate action and imposition of penalty. If the delinquencies warrant departmental action, the disciplinary authority need not wait till the criminal case is disposed of and take departmental action on the verge of his retirement. If that is allowed to be done, without any reasonable cause, the purpose of issuing the Government Order becomes nugatory and it would pave way for initiation of disciplinary proceedings at the whims and fancies of the authority at any time, he desires. The Government servant cannot be kept under Damocles sword till he peacefully retires from service.
35. In view of the settled proposition of law on the aspect of inordinate and unexplained delay in initiating or conducting disciplinary proceedings, on the part of the employer, as discussed in the foregoing paragraphs, this Court is of the view that the initiation of departmental action against the petitioner after 14 years, would cause serious prejudice and hence, violative of the principles of natural justice".
18. In W.P.(MD).No. 433 of 2008, dated 09.06.2010, there was an inordinate delay of 14 years initiating departmental proceedings. Even in the above case, this Court has observed that simultaneous proceedings is permissible. All the three Judgments relied on by the learned counsel for the petitioner, the delay is inordinate and therefore, the Courts have interfered with.
19. Reverting back to the case on hand, the charges levelled against the petitioners in P.R.Nos. 8 and 9 of 2009 respectively, are as follows:
P.R.No. 8 of 2009 in W.P.(MD).No. 9274 of 2011:
(i) Highly reprehensible conduct in having allowed then S.I. Tr.S. Rajamnaickam to prepare a false report u/s. 57 NDPS Act and subsequently you registered a false case in Thoothukudi NIB CID Cr.No. 40/2006 u/s.8(c) r/w.
22(c) of NDPS Act on 30.06.2006 by foisting an innocent of one. A.Eswaramoorthy of Thoothukudi as accused and thus spoiled the image of police Force.
(ii) Highly reprehensible conduct in having allowed S.I. Tr.S. Rajamnaickam and HC 2777 of A.Stephen Louis Selvaraj to demand a sum of Rs.7 lakhs as illegal gratification to release A.Eswaramoorthy of Thoothukudi from the case in Thoothukudi NIB CID Cr. No. 40/2006 u/s. 8(c) r/w. 22(c) of NDPS Act on 29.06.2006 and thus violated the rule 24 of Tamil Nadu Suboridinate Police Officers Conduct Rules 1964.
(iii) Highly reprehensible conduct in having arrested one A.Eswaramoorthy of Thoothukudi at his residence and detained under police custody and registering a false case as if he was arrested on 30.06.2006 at Tharuvaikulam Vilakku, Thoothukudi, with 400 gms of Narcotic Substances in Psychotrophy custody. Thus, he was arrested and detained under police custody illegally from 29.06.2006 to 30.06.2006 and remanded for judicial custody before the JM-II, Thoothukudi on 30.06.2006.
(iv) Gross neglect of duty in having failed to carry out the specific instructions of the DSP/Madurai about the credibility of the information received which paved way for registering the false case.
(v) Highly reprehensible conduct in having allowed the S.I. of Police, S.Rajamanickam to take the accused and the escort police personnel in the said S.I.'s own Maruthi 800 car to produce the accused before the JM-II, Thoothukudi, and to handover him in Central Prison, Palayamkottai on 30.06.2006.
(vi) Highly reprehensible conduct in having left the H.Qtrs. of Arcot Town Police Station during the period of your suspension without obtaining any prior permission and having failed to give intimation about your whereabouts to your immediate superior officers.
P.R.No. 9 of 2009 in W.P.(MD).No. 9275 of 2011:
(i) Highly reprehensible conduct in having prepared a false report u/s. 57 NDPS Act and assist to register a false case in Thoothukudi NIB CID Cr.No. 40/2006 u/s.8(c) r/w. 22(c) of NDPS Act on 30.06.2006 by fixing an innocent Eswaramoorthy of Mela Renganathapuram of Thoothukudi as accused and thus spoiled the image of police Force.
(ii) Highly reprehensible conduct in having demand a sum of Rs.7 lakhs as illegal gratification along with HC 2777 A.Stephen to release A.Eswaramoorthy of Thoothukudi from the case in Thoothukudi NIB CID Cr. No. 40/2006 u/s. 8(c) r/w.
22(c) of NDPS Act on 29.06.2006 at NIB CID offence and thus violated the rule 24 of Tamil Nadu Suboridinate Police Officers Conduct Rules 1964.
(iii) Highly reprehensible conduct in having arrested one A.Eswaramoorthy of Thoothukudi at his residence and detained under police custody from 29.06.2006 to 30.06.2006 illegally and assisted to register a false case as if he was arrested on 30.06.2006 at Tharuvaikulam Vilakku, Thoothukudi, with 400 gms of Narcotic Substances in his custody and produced before the JM-II, Thoothukudi and handed over at Central Prison, Palayamkottai for judicial custody on 30.06.2006.
(iv) Highly reprehensible conduct and gross neglect of duty in having failed to record the actual duty performed by the S.I. Rajamanickam o 29.06.2006 that is the S.I. along with the police party went to professional courier office Thoothukudi and ascertaied teh parcel intended to Eswaramoorthy was available for delivery and proceeded to the residence of Eswaramoorthy and seized the parcel when Eswaramoorthy receiving ad opened the parcel and tested the contents as Narcotic Substance and arrested Eswaramoorthy. The official duty performed was not recorded in the G.D., on 29.06.2006. You have suppressed the fact and thus spoiled the important contemporaneous record of G.D.
(v) Highly reprehensible conduct in having utilized the S.I.'s own Maruthi 800 car for taking the accused and escort police personnel to produce the accused before the JM-II, Thoothukudi, and handed over the accused at Central Prison, Palayamkottai on 30.06.2006.
(vi) Highly reprehensible conduct in having left the H.Qtrs. of Devaram Police Station limits during the period of your suspension without obtaining any prior permission and having failed to give intimation about your whereabouts to your immediate superior officers and thus disobeyed the orders of your officers.
20. Charge sheet has been filed against the petitioners before the Special District Judge (EC & NDPS Act), Madurai, in C.C.No. 241 of 2010, under Sections 22(c), 28, 29, 30 r/w Section 8 (c) of NDPS Act r/w 116 r/w 193 IPC r/w 120(b) IPC, 417 and 193 IPC r/w 511 IPC, 195, 196, 466, 468, 469, 471, 342, 201 and 201 r/w 109 r/w 120(B) IPC and 13, 13(2) r/w Section 13(1)(d) of Prevention of Corruption Act 1988 and Rule 63 of NDPS Act and r/w 120(b) IPC, 27(A) of NDPS Act, r/w 120(b) IPC.
21. It is well settled by the Supreme Court that there is no bar to proceed against a Government Servant simultaneously, under the discipline and Appeal Rules and in the Court of competent jurisdiction, if any prima facie offence is made out by the prosecution. Useful reference can be made to the few decisions of the Supreme Court in Capt.M.Paulanthony versus Bharat Gold Mines Ltd. and another reported in (1999) 3 SCC 679, wherein the Hon'ble Supreme Court, after considering the catena of decisions relating to departmental proceedings vis-a-vis criminal case, deduced the following conclusions, in para 22, which reads as under:
"(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."
22. In State bank of India and Others v. R.B.Sharma reported in 2004 (7) SCC 27, at paragraph 8, the Supreme Court held as follows:-
"8.The purpose of departmental enquiry and of prosecution are two different and distinct aspects. Criminal prosecution is launched for an offence for violation of a 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 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. Offence generally implies infringement of public duty, as distinguished from mere private rights punishable under criminal law. When trial for criminal offence is conducted it should be in accordance with proof of the offence as per the evidence defined under the provisions of the Indian Evidence Act, 1872 (in short "the Evidence Act"). Converse is the case of departmental enquiry. The enquiry in a departmental proceeding relates to conduct or breach of duty of the delinquent officer, to punish him for his misconduct defined under the relevant statutory rules or law. That the strict standard of proof or applicability of the Evidence Act stands excluded is a settled legal position. Under these circumstances, what is required to be seen is whether the departmental enquiry would seriously prejudice the delinquent in his defence at the trial in a criminal case. It is always a question of fact to be considered in each case depending on its own facts and circumstances."
23. In Kendriya Vidyalaya Sangathan and others versus T.Srinivas reported in (2004) 7 SCC 442, the Hon'ble Supreme Court considered a case of an Upper Division Clerk arrested by CBI after a trap and was charged for the offences punishable under Section 7 read with Section 13(1)(d) of the Prevention of Corruption Act. A case in this regard was pending in the trial before the competent court. During the pendency of the trial, the appellants decided to initiate departmental proceedings against the respondent and a charge memo framing three charges was issued to him. The first article in the memo of charges referred to the allegations of the respondent receiving Rs.200/- as bribe in violation of Rules 3(1)(i), (ii) and (iii) of the CCS (Conduct) Rules, 1964. Article II of the said charge memo referred to the conduct of the appellant in not maintaining absolute integrity and devotion to duty and acting in a way unbecoming of an employee in violation of Rules 3(1)(i), (ii) and (iii) of the CCS (Conduct) Rules, 1964. Article III of the said charge memo was with regard to suppression of the fact that he was in police custody on 16-9-2002, which according to the appellants was again a misconduct in violation of Rules 3(1)(i), (ii) and (iii) of the CCS (Conduct) Rules, 1964.
24. A challenge was made before the Central Administrative Tribunal, Hyderabad Bench, which came to the conclusion that the first two articles of charges are identical to the charge levelled against the petitioner before the Special Court under the provisions of the Prevention of Corruption Act and the third article of charge though not a subject matter of the trial is an interconnected charge with charges 1 and 2, and therefore, allowed the Original Application of the respondent and consequently directed the appellants to keep the disciplinary proceedings in abeyance till the conclusion of the trial on the ground that proceeding with the departmental action would expose the defence of the respondent in the pending criminal trial. On appeal, the High Court agreed with the decision of the Tribunal. The correctness of the order was challenged before the Hon'ble Supreme Court.
25. The respondents, to sustain the order of the High Court, contended that the charge before the criminal court and departmental enquiry being identical, the appellants should not initiate parallel proceedings which would prohibit his defence. It was further submitted that the facts and material that would be relied upon in the departmental enquiry would be the same, upon which the prosecuting agency before a criminal court would also rely upon, hence, the respondent would be compelled to disclose his defence in advance which would seriously prejudice his case before the criminal court. The decision rendered earlier by the Apex Court in State of Rajasthan versus B.K.Meena reported in (1996) 6 SCC 417, was applied wherein, it has been held that, "The only ground suggested in the decisions of the Supreme Court 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. 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, of staying the departmental enquiry has to be determined n each case taking into consideration all the facts and circumstances of the case. Stay of disciplinary proceedings cannot be, and should not be, a matter of course". All these relevant factors, for and against, should be weighed and a decision taken keeping in view the various principles laid down in the Supreme Court decisions."
26. Explaining the distinction between criminal proceedings and departmental proceedings, the Hon'ble Supreme Court in B.K.Meena's case (cited supra), observed that, the approach and the objective in the criminal proceedings and the disciplinary proceedings is altogether distinct and different. In the disciplinary proceedings, the question is whether the respondent is guilty of such conduct as would merit his removal from service or a lesser punishment, as the case may be, whereas, in the criminal proceedings the question is whether the offences registered against him are established and, if established, what sentence should be imposed upon him. The Apex Court in the above case further reiterated that the standard of proof, mode of enquiry, the rules governing the enquiry and trial in both the cases are distinct and different.
27. Therefore, applying the principles to be followed by the Courts in the matter of disciplinary proceedings with reference to acceptance of illegal gratification, the Hon'ble Supreme Court in Kendriya Vidyalaya Sangathan (cited supra), categorically held that neither the Tribunal nor the High Court did take into consideration the seriousness of the charge which pertains to the acceptance of illegal gratification and desirability of continuing the respondent in service in spite of such serious charges levelled against him. The Apex Court categorically held that both the Tribunal and the High Court proceeded as if a departmental enquiry and a criminal trial should not be proceeded simultaneously and in Their opinion, it is contrary to the principles laid down in the above cited cases.
28. In yet decision reported in Hindustan Petroleum Corporation Ltd. and others versus Sarvesh Berry reported in 2005(10) SCC 471, the question that was posed before the Hon'ble Supreme Court was that whether disciplinary proceedings can be continued despite the pendency of criminal proceedings against the respondent/employee, who was involved in the case of corruption. Short facts of the above said case are as follows:
"The CBI raided the house of the respondent employee and found that he was in possession of assets disproportionate to the known sources of income and a case was registered on 5.5.1998. After completion of investigation, charge sheet was filed. In the mean time, departmental proceedings were initiated against the respondent and charge sheet was issued. The employee filed a Writ Petition before the Andhra Pradesh High Court, inter alia contended that once sanction was granted to launch criminal prosecution nothing further warrants initiation and continuance of departmental proceedings as the issues involved in both the departmental enquiry and the criminal case are identical. The appellants filed counter affidavit, contending inter alia that initiation of disciplinary proceedings and its continuation are in public interest. The three charges levelled against the employee, were viz., possession of assets disproportionate to the known sources of income and two other related to misconduct in not filing the returns at all for some years as required under Rule 13(1)(c) of the Hindustan Petroleum Management Employees (Conduct, Discipline and Appeal) Rules, 1976 and the third charge relating to failure of the respondent employee to file property returns for the years 1991-92, 1994-95, 1995-96, 1996-97 and 1997-98. On behalf of the appellant, it was contended that charges 2 and 3 stated supra are different from charge no.1 which relate to possession of assets disproportionate to the known sources of income and the charge no.1 relates to corruption and therefore, it would not be proper to continue the appellant in employment as it would not be in public interest and in any event, the respondent would be able to place facts relevant to all the charges in the departmental proceedings."
29. In the above said case, placing reliance on M.Paul Anthony's case, the employee submitted that if disciplinary proceedings were allowed to continue, he would be compelled to disclose his defence and in any event as charge no.1 relates to corruption, the departmental authority have no jurisdiction to deal with the matter. After considering the decisions of the Hon'ble Supreme Court, viz., reported in "Depot Manager, APSRTC versus Moh.Yousuf Miya" (1997 (2) SCC 699; "State of Rajasthan versus B.K.Meena" (1996 (6) SCC 417 and in "Capt.M.Paul Anthony versus Bharat Gold Mines Ltd.," (1997(2) SCC 699, the Hon'ble Supreme Court in categorical terms, in para 13 held as follows:
"13. It is to be noted that in cases involving Section 13(1)(e) of the PC Act, the onus is on the accused to prove that the assets found were not disproportionate to the known sources of income. The expression "known sources of income" is related to the sources known to the authorities and not the accused. The Explanation to Section 13(1) of the PC Act provides that for the purposes of the section, "known sources of income" means income derived from any lawful source and such receipt has been intimated in accordance with the provisions of any law, rules or orders for the time being applicable to a public servant. How the assets were acquired and from what source of income is within the special knowledge of the accused. Therefore, there is no question of any disclosure of defence in the departmental proceedings. In the criminal case, the accused has to prove the source of acquisition. He has to satisfactorily account for the same. Additionally, issues covered by Charges 2 and 3 cannot be the subject-matter of adjudication in the criminal case."
30. Earlier, a Division Bench of this Court, in Indian Overseas Bank, rep. By its Deputy General Manager, Inquiry Cell, Industrial Relations Department, Anna Salai, Chennai versus P.Ganesan and others reported in 2006(1) CTC 689, while considering the nature, purpose and scope of the departmental enquiry vis-a-vis the criminal proceedings and the issue as to whether departmental proceedings should be deferred till the conclusion of the criminal trial, in paras 13 and 14, held as follows:
"13. It is thus fairly settled law that on basic principles proceedings in a criminal case and a departmental proceedings can go on simultaneously, except in some cases where departmental proceedings and criminal case are based on the same set of facts and the evidence in both the proceedings are same. It is in these cases, the Court has to decide taking into account special features of the case whether simultaneous continuance of both would be proper. There can be no straight-jacket formula as to in which case the departmental proceedings have to be stayed, and the Court will have to decide in the given circumstances of a particular case as to whether disciplinary proceedings should be interdicted, pending criminal trial.
14. In the instant case, there is no dispute that the criminal action and the disciplinary proceedings are founded upon the same set of facts. In fact, the disciplinary proceedings are solely based upon the criminal complaint lodged by the president of a rival union, who is also facing prosecution with regard to the same incident. It has been conceded before us that the bank had not conducted any independent enquiry before initiating the impugned departmental proceedings."
31. The above said decision was challenged before the Hon'ble Supreme Court. While setting aside the judgment of the Division Bench, in Indian Overseas Bank, Anna Salai and another versus P.Ganesan and others reported in (2008) 1 MLJ 37 (SC), the Hon'ble Supreme Court in para 22 held as follows:
"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."
32. A Division Bench of this Court, considered a case in G.Nagarajan Vs. The Union of India represented by the Commissioner of Central Excise, reported in 2006(4) MLJ 739, where a Superintendent of Customs, Thirupur was trapped by the CBI on the charge of demand of illegal gratification for clearing export consignment and a criminal case in C.C.No.3 of 2005 was registered on the file of the Principal Special Judge for CBI cases, for the offences punishable under Section 120(B) IPC r/w Sections 7, 13(2) and 13(1)(d) of the Prevention of Corruption Act. Pending criminal case, the Union of India, represented by the Commissioner of Central Excise, decided to initiate departmental proceedings for having committed a gross misconduct and for the failure to discharge the duties of a public servant in connection with the clearance of export consignment in contravention of Rule 3(1)(i)(ii) and (iii) of CCS (Conduct) Rules 1964. The core contention of the petitioner before the Tribunal was that if the departmental proceedings are permitted to be proceeded with, he would be compelled to disclose his evidence in the departmental enquiry and that the same would affect his defence in the trial and cause prejudice. The Division Bench, after considering a catena of judgments, held that the question of prejudice of disclosure of defence before the criminal Court would not arise.
33. As held by the Division Bench judgment of this Court in S.E., C S.E., Chennai Electrical Distribution Circle v. N.Rangaraj reported in 2009 (3) MLJ 833, the purpose of departmental enquiry is to adjudge the government servant/employee's conduct under the relevant conduct or discipline and appeal rules and to maintain discipline and efficiency in Public service, whereas, a criminal prosecution is launched for an offence for violation of public duty which he owes, or for breach of law, which entails punishment provided under the penal laws.
34. Yet another aspect to be considered is whether the charge memorandum should be interfered with the threshold in all the matters, indiscriminately by Courts. Few decisions on this aspect are worth consideration.
35. The Supreme Court in its decision reported in 1987 (2) SCC 179 ( State of U.P. V. Brahm Datt Sharma and another) dealt with the power of the Court in dealing with a charge memo at the show cause stage.
Para 9: The High Court was not justified in quashing the show cause notice. When a show cause notice is issued to a government servant under a statutory provision calling upon him to show cause, ordinarily the government servant must place his case before the authority concerned by showing cause and the Courts should be reluctant to interfere with the notice at that stage unless the notice |is shown to have been issued palpably without any authority of law. The purpose of issuing show cause notice is to afford opportunity of hearing to the government servant and once cause is shown it is open to the Government to consider the matter in the light of the facts and submissions placed by the government servant and only thereafter a final decision in the matter could be taken. Interference by the Court before that stage would be premature, the High Court in our opinion ought not have interfered with the show cause notice".
36. The Supreme Court vide Judgment in Special Director and another Vs. Mohd. Ghulam Ghouse and another [(2004) 3 Supreme Court Cases 440)] in para 5 observed as follows:
Para 5: "This Court in a large number of cases has deprecated the practice of the High Courts entertaining writ petitions questioning legality of the show cause notices investigative process to find actual facts with the participation and in the presence of parties. Unless the High Court is satisfied that the show-cause notice was totally non-est in the eye of the law for absolute want of jurisdiction of the authority to even investigate into facts, writ petitions should not be entertained for the mere asking and as a matter of routine, and the writ petitioners should invariably be directed to respond to the show cause notice and take all stands highlighted in the writ petition. Whether the show-cause notice was founded on any legal premises, is a jurisdictional issue which can even be urged by the recipient of the notice and such issues also can be adjudicated by the authority issuing the very notice initially, before the aggrieved could approach the Court. Further, when the Court passes an interim order it should be careful to see that the statutory functionaries specially and specifically constituted for the purpose are not denuded of powers and authority to initially decide the matter and ensure that ultimate relief which may or may not be finally granted in the writ petition is not accorded to the writ petitioner even at the threshold by the interim protection granted."
37. Further, the Supreme Court in the Judgment relating to Union of India and another Vs. Kunisetty Satyanarayana [(2006) 12 Supreme Court Cases
28)] in paras 13 to 16 held as follows:
para 13: It is well settled by a series of decisions of this Court that ordinarily no writ lies against a charge-sheet or show-cause notice vide Executive Engineer, Bihar State Housing Board Vs.Ramesh Kumar Singh (19961) 1 SCC 327, Special Director V. Mohd. Ghulam Ghouse (2004) 3 SCC 440, Ulagappa v. Divisional Commissioner Mysore (2001) 10 SCC 639, State of U.P. V. Brahm Datt Sharma (1987) 2 SCC 179, etc., Para 14: The reason why ordinarily a writ petition should not be entertained against a mere show-cause notice or charge-sheet is; that at that stage the writ petition may be held to be premature. A mere charge-sheet or show-cause notice does not give rise to any cause of action, because it does not amount to an adverse order which affects the rights of any party unless the same has been issued by a person having no jurisdiction to do so. It is quite possible that after holding an enquiry the show-cause notice or after considering the reply to the show-cause notice or after holding an enquiry the authority concerned may drop the proceedings and / or hold that the charges are not established. It is well settled that a writ petition lies when some right of any party is infringed. A mere show-cause notice or charge sheet does not infringe the right of any one. It is only when a final order imposing some punishment or otherwise adversely affecting a party is passed, that the said party can be said to have any grievance.
Para 15: "Writ jurisdiction is discretionary jurisdiction and hence such a discretion under Article 226 should not ordinarily be exercised by quashing a show-cause notice or charge-sheet.
Para 16: No doubt, in some very rare and exceptional cases the High Court can quash a charge-sheet or show-cause notice if it is found to be wholly without jurisdiction or for some other reason if it is wholly illegal. However, ordinarily the High Court should not interfere in such a matter."
38. Thus the legal position in initiating departmental proceedings simultaneously is no longer res integra. The Supreme Court in more than one case, has affirmed and reiterated that, in the case of Corruption, departmental proceedings can go on, notwithstanding criminal case for the offences under the Prevention of Corruption Act. Reverting back to the case on hand, the matter pertains to an offence under NDPS Act. Criminal case has been registered on 30.06.2007 and the petitioners have been suspended on 05.09.2006. Pleadings and material on record discloses that they were under confinement for a considerable period.
39. Though learned counsel for the petitioners submitted and relied on the abovesaid decisions, for the proposition that the delay vitiates disciplinary proceedings, this Court is not inclined to subscribe to the same for the reason that the delay does not ipso facto vitiate disciplinary proceedings and it is for the Court to consider on the facts and circumstances of each case, as to whether there was an inordinate delay in initiating disciplinary proceedings and such delay whether has caused prejudice to the defence of the charged official.
40. Considering the nature of offences registered against the petitioners and others under the provisions of the Prevention of Corruption Act, this Court can always arrive and the charges levelled against the petitioners on the departmental proceedings under the Discipline and Appeal Rules, at a conclusion, as to whether the disciplinary proceedings should be quashed at the threshold, even assuming that there is any delay. In the case on hand, the nature of misconduct leading to the initiation of the disciplinary proceedings and prosecution, certainly involves a thorough and detailed investigation and enquiry into the various allegations including competitions and other acts of misconduct, referred to in the impugned charge memorandum. Merely because there is a delay of three years in initiating disciplinary proceedings and appointment of an enquiry officer, the proceedings impugned in these Writ Petitions cannot be quashed.
41. The Supreme Court while considering the propriety of the High Courts, in quashing the disciplinary proceedings at the threshold, in view of the above decisions stated supra, dealing with the scope and power of the disciplinary / appointing authorities, in initiating simultaneous proceedings and the power of the High Court in interfering with the charge memorandum at the threshold except in which exceptional cases, this Court is not inclined to subscribe to the contentions of the petitioners that the charge memorandum has to be quashed on the grounds of delay. In Kendriya Vidyalaya Sangathan and others versus T.Srinivas reported in (2004) 7 SCC 442 (2) Hindustan Petroleum Corporation Ltd. and others versus Sarvesh Berry reported in 2005(10) SCC 471, (3) Capt. M.Paul Anthony Vs. Bharat Gold Mines Ltd., and another reported in AIR 1999 SCC 1416 and (4) G.Nagarajan Vs. The Union of India represented by the Commissioner of Central Excise, reported in 2006(4) MLJ 739, the charges levelled against the officials involve Corruption. In hone of the cases, the Supreme Court intervened to Strike down the charge memorandum. The case before this Court also involve Corruption and other acts of misconduct.
42. In the decisions relied on by the learned counsel for the petitioners, there was an inordinate delay and hence, this Court has interfered with the disciplinary proceedings or the orders passed thereon. The judgments relied on by the learned counsel for the petitioner would not lend support to the case on hand.
43. On the contention that this Court should seek for an explanation from the respondents for the delay, this Court is of the view that it is for the Courts to consider the facts and circumstances of each case and arrive at a decision as to whether the appointing / disciplinary authorities should be called upon to explain the aspect of delay and if the Court, on the facts and circumstances of the case is of the opinion that such exercise is not required, need not be issue any directions.
44. On the plea that the defence of the petitioners in C.C.No. 241 of 2010 on the file of the learned Special District Judge, (EC & NDPS Act), Madurai, would be exposed, this Court, comparing the charges levelled in the impugned memorandum in P.R.Nos. 8 and 9 of 2011, and the offences for which the petitioners have been charged in C.C.No. 241 of 2010, is of the view that there is a marked difference between the enquiry conducted for reprehensible conduct of the petitioners under the Disciplinary and Appeal / Conduct Rules, in contra distinction to the offences under the penal provisions of IPC., Prevention of Corruption Act, etc. As stated Supreme in corruption matters, the Supreme Court had declined to interfere with the disciplinary proceedings.
45. In view of the above, the Writ Petitions do not deserve consideration and hence, the Writ Petitions are dismissed. Consequently, connected Miscellaneous Petitions are also dismissed. No costs. The request for deferring the decision on the disciplinary proceedings is rejected.
vsg To
1. The Deputy Inspector General of Police Vellore District Vellore
2. The Additional Superintendent of Police Crime Vellore District Vellore