Madras High Court
V.Bhoopathy vs Union Of India on 1 April, 2015
Author: P.R.Shivakumar
Bench: V.Ramasubramanian, P.R.Shivakumar
IN THE HIGH COURT OF JUDICATURE AT MADRAS RESERVED ON : 25.02.2015 PRONOUNCED ON : 01.04.2015 CORAM: THE HONOURABLE MR. JUSTICE V.RAMASUBRAMANIAN and THE HONOURABLE MR. JUSTICE P.R.SHIVAKUMAR W.P.No.26664 of 2014 and M.P.No.1 of 2014 V.Bhoopathy ... Petitioner Vs. 1.Union of India Rep. by Senior Superintendent of Post Offices Chennai City North Division Chennai - 600 008 2.The Registrar Central Administrative Tribunal Chennai 600 104 ... Respondents Writ petition filed under Article 226 of the Constitution of India for a Writ of Certiorarified Mandamus to call for the records pertaining to the order of the 2nd respondent which is made in O.A.No.1807 of 2013 dated 24.09.2014, quash the same and consequently direct the 1st respondent to settle all the service benefits to the petitioner. For Petitioner : Mr.R.Malaichamy For Respondents : Mrs.R.Maheswari, SCGSC ------ ORDER
P.R.SHIVAKUMAR, J.
This writ petition has been filed challenging the order of the Central Administrative Tribunal, Madras Bench, Chennai dated 24.09.2014 made in O.A.No.1807 of 2013 dismissing the said original application filed by the writ petitioner.
2. The submissions made by Mr.R.Malaichamy, learned counsel for the petitioner and by Mrs.R.Maheswari, Senior Central Government Standing Counsel were heard. The impugned order and the other materials available in the form of typed set of papers were also perused and taken into consideration.
3. The petitioner was appointed as Chowkidar (night duty) Group-D (NTC) cadre on compassionate grounds on 14.11.1984. While he was working at the Chetpet Post Office, Chennai complaints were received from three persons on 29.11.1997, 04.12.1997 and 05.12.1997 alleging that demand drafts and cheques sent along with the letters by Registered post meant for complainants were not properly and promptly delivered and making some entries, the cheques and demand drafts were taken out, manipulated and encashed. On enquiry by the Assistant Superintendent of Post Offices (Vigilance), Tamil Nadu Circle, Chennai, it was found that the Registered letters kept in deposit in wooden chest of Chetpet Post office by the Registration Delivery Postal Assistant with lock and key were taken out by the applicant, who was the chowkidar/night watchman, after opening the wooden chest, during night hours using duplicate key and exchanged the cheques and demand drafts. Pursuant to the said inspection, the petitioner was placed under suspension and the matter was reported to the police, based on which a criminal case in FIR No.327/1998 was registered for an offence under Section 381 IPC. The charge-sheet filed in the said case by the Central Crime Branch before the Additional Chief Metropolitan Magistrate was taken on file as C.C.no.8554/2000.
4. Pending disposal of the criminal case, the petitioner was reinstated in service by order dated 07.09.2001. However after he was found guilty of offences punishable under Sections 381, 419, 467 r/w 468, 420 r/w 511 IPC, convicted and sentenced by the trial court by judgment dated 13.12.2007 and after the same was confirmed by the Sessions Judge on 22.07.2010 in C.A.No.29 of 2008, a show cause notice was issued and the petitioner was removed from service by an order dated 22.02.2012, referring to the provisions of Rule 19 of CCS (CCA) Rules, 1965. However, the High Court, on revision, set aside the conviction made and sentence imposed by the trial court that had been confirmed by the appellate court. Such an order came to be passed in Crl.R.C.No.1145/2010 on 27.03.2012. Subsequently, he was reinstated as MTS at Washermenpet Sub Office on 04.12.2012 and disciplinary proceedings were initiated under Memo No.F1/1-1/97-98(Vol IV) dated 18.12.2013 under Rule 14 of CCS (CCA) Rules, 1965.
5. Contending that the criminal prosecution launched on the same facts ultimately ended in his acquittal and hence the Department could not take any disciplinary action in respect of the incident that took place nearly 15 years before the issue of the charge memo; that it would be difficult for him to defend the case in the department proceedings initiated at such distance of time; that on the ground of delay and also on the ground that the criminal case on the very same facts ended in acquittal, the departmental proceedings could not be sustained and that hence the same got to be quashed, the writ petitioner filed the above said original application before the Tribunal. The Tribunal, after hearing, rejected his plea holding that the acquittal in the criminal case shall not be a bar for proceeding with the disciplinary proceedings and that the delay on the part of the Department in initiation of the departmental proceedings could be justified on the ground that he had been initially dismissed from service on his conviction by the criminal court and reinstated only on 04.12.2012 when the conviction was set aside in the revision by the High Court. Aggrieved by the same, the present writ petition has been filed.
6. The following are the contentions raised by the learned counsel for the petitioner:
i) The disciplinary proceedings originally sought to be initiated by placing the petitioner on suspension by the order of the first respondent dated 23.12.1997 was not proceeded with and the said proceedings were dropped on the satisfaction that it would be enough to initiate criminal proceedings against the writ petitioner and the same was the reason why the order of suspension was subsequently revoked and the writ petitioner was reinstated in service by order dated 07.09.2001.
ii) The non-initiation of departmental proceedings pending criminal proceeding and initiation of the departmental proceedings for dismissal on the ground of conviction for an offence by a criminal court relying on Rule 19 of CCS (CCA) Rules, 1965 will fortify the contention of the petitioner that the department was content with initiation of the criminal proceedings and it was of the opinion that the initiation of the departmental proceedings would be depending on the outcome of the criminal proceedings.
ii) There is no bar for conducting a parallel departmental proceedings regarding the alleged delinquency. The possibility of the delinquent/accused getting a stay of the departmental proceedings, pending disposal of the criminal case instituted on the same set of facts on which the departmental proceedings have been initiated on the premise that disclosure of his plea of defence in the departmental proceedings will cause prejudice to him in the criminal case in which he faces prosecution for an offence, is only a protection given to the accused/delinquent officer. Though he can apply for the stay of the departmental proceedings pending disposal of the criminal prosecution, depending upon the facts and circumstances, a judicial decision has to be taken by the court. As such the provision intended to protect the accused/delinquent from prejudice being caused by the disclosure of his defence, cannot be construed as an option given to the disciplinary authority either to proceed with or not to proceed with the departmental proceeding pending conclusion of the criminal prosecution.
iv) It is a case in which the department did not even initiate disciplinary proceedings and keep it pending till the completion of the criminal prosecution. On the other hand, the anticipated departmental disciplinary proceedings were dropped once for all by the revocation of suspension and reinstatement of the petitioner by order dated 27.03.2012.
v) Compendium on Postal Complaints of the year 1998 issued by the Director General of Department of Posts, makes it clear that there is no bar to initiate disciplinary action against the principal or subsidiary offenders immediately after the enquiries are over and even if the case is under police investigation or under trial in the court, subject to a rider that only in case a stay is ordered by a competent court, the disciplinary proceedings should be deferred.
vi) For cutting the delays causing hindrance to the disciplinary proceedings, necessary instructions have also been issued to take photostat copies of the relevant documents, show the same along with the original to the principal/subsidiary offenders and get their signatures on the photostat copies for having compared the same with the originals before the originals are handed over to the police or the court so that such photostat copies can be used in the conduct of disciplinary proceedings.
vii) Despite such clear and detailed instructions, the department decided not to follow the procedure contemplated in the compendium on postal complaints 1998, indicating that the department was not inclined to initiate parallel disciplinary proceedings pending completion of the prosecution of the criminal case. The same will show that the department was content with the initiation of the criminal proceedings and was of the view that the action to be taken against the writ petitioner would depend upon the result of the criminal proceedings.
viii) In any event, when there was no bar for initiating departmental proceedings parallelly to the criminal prosecution, the failure to do so for about 16 years will make it clear that there was delay and laches not in the completion of the departmental proceedings but in the initiation of the departmental proceedings itself.
ix) Even after the conclusion of the criminal proceedings, the department did not choose to initiate disciplinary proceedings on the alleged delinquency constituted by the very same facts on which the writ petitioner was prosecuted before the criminal court. On the other hand, the department was content with proceeding against him under Rule 19 of CCS (CCA) Rules, 1965 on the basis of conviction, that too, five years after the trial court convicted the writ petitioner and two years after the conviction was confirmed by the appellate court.
x) When the petitioner came successful after a long battle, which resulted in his acquittal by an order of this court in Crl.R.C.No.1145/2010 dated 27.03.2012, he was reinstated into service on 04.12.2012 and thereafter on 18.12.2013, the disciplinary proceedings were initiated. The compulsion to face the disciplinary proceedings after a long gap of 16 years, that too on the very same facts on which he was prosecuted before the trial court and got ultimately acquitted causes serious prejudice and hence the initiation of the disciplinary proceedings after such gap of 16 years shall stand vitiated.
7. Per contra, it is the contention of the learned Senior Central Government Standing Counsel representing the first respondent that the scope of the criminal proceedings and that of the departmental proceedings are different and that the fact that the criminal proceedings initiated on the same set of facts resulted ultimately in the acquittal of the accused, who is the delinquent officer, shall not be the ground on which the departmental disciplinary proceedings can be challenged. It is the further contention of the learned Senior Central Government Standing Counsel that the delay alone cannot be the ground on which the charge memo can be quashed and that the Tribunal was not wrong in dismissing the Original Application seeking quashing of the charge memo on the sole ground of delay and acquittal in the criminal case on the very same facts.
8. In this regard, there cannot be any quarrel over the proposition that the departmental proceedings and the criminal proceedings are different and there is no bar for initiation of parallel departmental proceedings on the same set of facts on which the delinquent is prosecuted in the criminal case. There is also no quarrel over the proposition that the mere acquittal of a delinquent in a criminal prosecution shall not entitle him for automatic reinstatement. Also there cannot be any doubt regarding the proposition that the standard of proof required in the departmental proceedings is not the same as required in a criminal proceedings and that strict rules of evidence shall not be applicable to departmental proceedings.
9. Here is a case in which the petitioner is not seeking quashing of the charge memo on the mere ground that he was acquitted by the High Court in the criminal revision case after having been convicted by the trial court which was confirmed by the appellate court. He has sought for the relief not only on the ground he should not be asked to face the departmental proceedings on the very same set of facts and evidence. On the other hand but the issuance of the charge memo is challenged and quashing of the same is sought on the premise that there had been enormous delay of 16 years from the date of alleged occurrence, six years from the date of judgment of the trial court in the criminal case and nearly two years (20 months) from the date of pronouncement of judgment by the appellate court in the criminal appeal, till the date of issuance of the impugned charge memo. According to the petitioner, such a delay which remains unexplained with acceptable reasons, would seriously prejudice the petitioner resulting in miscarriage of justice. The petitioner has also taken an additional ground to the effect that the department cannot be justified in initiating any disciplinary proceedings after having taken a conscious decision that the initiation or otherwise of the departmental proceedings would be based on the result of the criminal prosecution.
10. In this case, the attention of this court is drawn to the observation of the Hon'ble Supreme Court in U.P.State Sugar Corporation Ltd. & Ors. vs. Kamal Swaroop Tandon reported in (2008) 2 SCC 41, the Supreme Court made the following observations:
"27. In our opinion, Mahadevan does not help the respondent. No rigid, inflexible or invariable test can be applied as to when the proceedings should be allowed to be continued and when they should be ordered to be dropped. In such cases there is neither lower limit nor upper limit. If on the facts and in the circumstances of the case, the Court is satisfied that there was gross, inordinate and unexplained delay in initiating departmental proceedings and continuation of such proceedings would seriously prejudice the employee and would result in miscarriage of justice, it may quash them. We may, however, hasten to add that it is exception to the general rule that once the proceedings are initiated, they must be taken to the logical end. It, therefore, cannot be laid down as a proposition of law or a rule of universal application that if there is delay in initiation of proceedings for a particular period, they must necessarily be quashed."
11. In State of Punjab & Ors. Vs. Chaman Lal Goyal reported in (1995) 2 SCC 570 the Supreme Court held that "if the delay is too long and is unexplained, the court may well interfere and quash the charges but how long a delay is too long always depends upon the facts of the given case and that moreover, if such delay is likely to cause prejudice to the delinquent officer in defending himself, the enquiry has to be interdicted."
12. The other judgments referred to in the order of the Tribunal relate to the delay in completion of the domestic enquiry with which we are not concerned. As indicated supra, we are concerned with the enormous delay in initiation of the disciplinary proceeding itself. Even in case of delay in concluding the domestic enquiry, it cannot be stated that such a delay will not be a ground on which the continuance of the proceedings cannot be challenged.
13. In Secretary, Forest Department & Ors. Vs. Abdur Rasul Chowdhury reported in (2009) 7 SCC 305 the Supreme Court has held "the unexplained protracted delay on the part of the employer may be one of the circumstances in not permitting the employer to continue with the disciplinary enquiry proceedings. However, the same was made with a rider that if the delay is explained satisfactorily, then the proceedings should be permitted to continue."
14. Learned Senior Central Government Standing Counsel for the respondent appearing for the department referred to a Division Bench judgment of the Delhi High Court in Om Prakash vs. Delhi Society for Prevention of Cruelty of Animals & Ors. reported in 2011 SCC OnLine Del 4016. The relevant portion is found in paragraph 9 of the judgment and the same is reproduced below:
"9. Regarding the delay in initiation of departmental proceedings and quashing of the charge-sheet on the ground of delay, we are entirely in agreement with the findings recorded by the learned Single Judge in the impugned judgment. In the present case, it is apparent that the respondent No.1 had waited for the outcome of the criminal proceedings. The appellant was prosecuted under the Prevention of Corruption Act relating to the incident dated 11th April, 1996. In case the departmental proceedings had commenced along with the criminal proceedings, the appellant would have certainly raised the grievance that he cannot be forced to disclose his defence in the departmental proceedings as it would definitely affect his interest and defence in the criminal case. It may be recorded that the second stand of the appellant is that the criminal proceedings and the departmental proceedings are on the same facts. In these circumstances, it cannot be said that the departmental proceedings/charge-sheet should be quashed on the ground of delay. Learned single judge in this connection has relied upon Food Corporation of India v. George Varghese 1991 Supp (2) SCC 143, in which the Supreme Court has held that when the department has acted fairly by staying their hands as soon as the prosecution was initiated, the employee cannot insist that after he is acquitted, the department should not initiate departmental proceedings. The Supreme Court noticed that in such cases normally a plea is taken that initiation of departmental proceedings amounts to and trying to overreach the judicial proceedings and the employee should not be constrained to file his reply as it could be used against him in the criminal proceedings."
15. In the said case decided by the Divsion Bench of the Delhi High Court, though it was held that in view of the possibility of the delinquent raising a grievance that he could not be forced to disclose his defence in the departmental proceedings as it would definitely affect his interest and defence in the criminal case, the department was justified in waiting for the outcome of the criminal proceedings, particulars regarding the date on which the criminal proceedings before the criminal court ended and the time gap between the date of judgment of the criminal court and the date of issuance of the charge memo in the departmental proceedings are not found mentioned. Even assuming that the department was waiting for the result of the criminal trial, as the delinquent could not be compelled to disclose his defence in the departmental proceedings can be taken as an acceptable explanation for the delay, such an explanation will take care of the delay up to date of pronouncement of judgment by the trial court in the criminal case, waiting for the result of the appeal or revision shall not provide an acceptable explanation for the delay in initiation of the departmental proceedings, for the simple reason that the possibility of the delinquent taking a stand that the plea of defence to be taken by him in the departmental proceedings will prejudice him in the criminal trial would no longer exists.
16. In the case on hand, the criminal trial before the trial court ended and a judgment was pronounced on 13.12.2007. Assuming that the act on the part of the department in waiting till the said date (13.12.2007) shall be a reasonable explanation for not initiating disciplinary proceedings till then, there is absolutely no explanation forthcoming for the delay caused thereafter. Even for taking action under Rule 19 of CCS (CCA) Rules, 1965, the department took more than four years from the date of conviction by the trial court. There was a gap of more than 2-1/2 years between the judgment of the trial court and the judgment of the appellate court. There was no explanation for the said delay. Even after the judgment of the appellate court, it took 20 months. For that also there is no explanation. After the judgment of the appellate court, the department chose to proceed against him under Rule 19 of CCS (CCA) Rules, 1965. Of course the non-initiation of the disciplinary proceedings under Rule 14 till his acquittal in the Criminal Revision Case by the High Court cannot be found fault with. However, there is absolutely no explanation for the delay caused from 13.12.2007 to 22.02.2012. The only inference that can be drawn from it shall be that the department had taken a decision to waive initiation of proceedings under Rule 14 of CCS (CCA) Rules, 1965 on the same set of facts based on which the prosecution was launched and on the other hand, it took a decision to go by the finding of the criminal court.
17. In the above said facts and circumstances, it can be very well said that the initiation of the disciplinary proceedings by the issuance of the Charge Memo dated 18.12.2013 shall cause serious prejudice to the petitioner leading to miscarriage of justice. Delay of more than 16 years, a considerable part of which has not been satisfactorily explained, will result in serious prejudice to the petitioner leading to miscarriage of justice. Hence we are inclined to accept the contention of the petitioner. In this regard, the Tribunal seems to have misguided itself in appreciating and applying the instructions given in the Compendium on Postal Complaints, 1998. We are unable to agree with the reasons assigned by the Tribunal for the dismissal of the Original Application. We are of the considered view that the case on hand is a fit one for quashing the departmental proceedings.
In the result, the writ petition is allowed. The order of the Tribunal dated 24.09.2014 made in O.A.No.1807 of 2013 is set aside. The disciplinary proceedings initiated under Memo No.F1/1-1/97-98(Vol IV) dated 18.12.2013 under Rule 14 of CCS (CCA) Rules, 1965 shall stand quashed. There shall be no order as to cost. Consequently, the connected miscellaneous petition is closed.
(V.R.S., J.) (P.R.S., J.)
01.04.2015
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asr
To
The Registrar
Central Administrative Tribunal
Madras Bench
Chennai
V.RAMASUBRAMANIAN, J. &
P.R.SHIVAKUMAR, J.
asr
Order in
W.P.No.26664 of 2014
01.04.2015