Madras High Court
R.Kumar vs The Superintending Engineer on 26 February, 2018
Author: S.M.Subramaniam
Bench: S.M.Subramaniam
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 26.02.2018 CORAM THE HONOURABLE MR.JUSTICE S.M.SUBRAMANIAM W.P.(MD)No.371 of 2013 and M.P.(MD)No.1 of 2013 R.Kumar ... Petitioner Vs. 1.The Superintending Engineer, Tamil Nadu Electricity Distribution Circle, TANGEDCO, Thanjavur. 2.The Assistant Executive Engineer, Special Maintenance, Tamil Nadu Electricity Distribution Circle, TANGEDCO, Thanjavur. ... Respondents Prayer: Petition is filed under Article 226 of the Constitution of India, to issue a Writ of Certiorari, calling for the records of the impugned charge memo in Ku.Aa.No.703/Vu.Ni.Me/Nipi.5/Ni.Vu 1/Ko.O.Na/2012 dated 21.11.2012 passed by the 1st respondent and quashing the same. !For Petitioner : Mr.G.Karnan For Respondents : Mr.S.M.Balasubramani :ORDER
The charge memo dated 21.11.2012 issued by the first respondent is under challenge in this writ petition.
2.The writ petitioner was employed as Commercial Assistant in the office of the second respondent. Initially he was appointed as Helper on daily wages basis in the year 1988, and subsequently his service was regularised in the year 1994 and promoted as Commercial Assistant in the year 2000.
3.The criminal case was registered against the writ petitioner by the Department of Vigilance and Anti-Corruption Wing, Thanjavur under Section 7, 13(1) (d) r/w 13(2) and 13(1) (a) r/w. 13(2) of Prevention of Corruption Act. The Criminal case was referred as Special C.C.No.46 of 2012 on the file of the special Court for Anti-Corruption at Tiruchirappalli. The Criminal case was ended with an order of acquittal on 28.03.2012. In view of the registration of the criminal case, the writ petitioner was placed under suspension and after the order of acquittal, he was reinstated in service in the month of September 2012.
4.The grievances of the writ petitioner is that after the order of acquittal, the impugned charge memo was issued by the first respondent in his proceedings dated 21.11.2012. The learned counsel appearing for the petitioner contended that there is a huge delay in issuing the impugned charge memo. The alleged incident took place in the year 2003 and charge memo was issued in the year 2012, therefore, there is a delay of about 8 + years in issuing charge memo and therefore, a charge memo is liable to be quashed on the ground of delay itself. It is further contented that the criminal court has acquitted the writ petitioner from the criminal charges. The facts and circumstances both in the criminal case as well as in the charge memo are similar in nature. Therefore, the departmental authorities should not be allowed to proceed with the charge memo. In other words, the learned counsel appearing for the petitioner is of the opinion that the evidence cited before the criminal Court ought to be cited before the departmental proceedings also.
5.The learned standing counsel appearing on behalf of the respondent opposed the contention by stating that the case against the writ petitioner is of corruption. Therefore, the department has initiated the disciplinary proceedings by issuing a charge memo dated 21.11.2012. The contention of the respondents is that the petitioner was arested by the officials of the Deparment of Vigilance and Anti Corruption while demanding and accepting bribe. The criminal case was registered under the provisions of the prevention of Anti-corruption Act, 1988. However, the petitioner was acquitted by the special Court only by giving him the benefit of doubt. Petitioner was not acquitted honourably.
6.The learned counsel appearing for the respondent states that the criminal proceedings and the procedure to be followed in the departmental proceedings are distinct and different. Acquittal of the petitioner in the criminal proceedings is not a bar to initiate the departmental disciplinary proceedings and the misconduct committed by the petitioner is very serious. The first respondent being an appointing authority and the disciplinary authority has rightly issued the charge memo in his proceedings dated 21.11.2012. The first respondent found that the writ petitioner was not acquitted honourably and there is a prima facie case to initiate disciplinary proceedings against the writ petitioner and issued charge memo and there is no irregularity as such.
7.In this regard, the respondent relied upon the judgment of the Hon'ble Supreme Court in the case of Divisional Controller, Karnataka State Road Transport Corporation Vs. M.G.Mittel Rao (2012) I SCC 442 in para 11 is extract hereunder:-
11.''the question of considering reinstatement after decision of acquittal or discharge by a competent criminal Court arises only if the dismissal from services was based on conviction by the criminal Court in view of the provision of Article 311 (2) (b) of the Constitution of India, or analogous provisions in the statutory rules applicable in a case. In a case where enquiry has been held independently of the criminal proceedings, acquittal in a criminal courts is of no help. The law is otherwise. Even if a person stood acquitted by a criminal court, domestic enquiry can be held, the reason being that the standard of proof required in a Domestic enquiry and that in a criminal case altogether different. In a Criminal case standard of proof required can be held, the reason being that the standard of proof required is beyond reasonable doubt while in a domestic enquiry it is the preponderance of probabilities that constitutions the test to be applied''.
10.In Ajith Kumar Nag.. Vs. General Manager (PJ)-Vs-Indian Oil Corporation Limited Haldia and others (2205) 7 SCC 764, in para 11, the Honourable Supreme Court has held as follows:-
11.As far as acquittal of the appellant by a criminal Court is concerned, in our opinion, the said order does not preclude the corporation from taking an action if it is otherwise permissible. In our judgment, the law is fairly well settled. Acquittal by a criminal court would not debar an employer from exercising power in accordance with the Rules and Regulations in force. The two proceedings, criminal and departmental, are entirely different. They operate in different fields and have different objective.
Whereas the object of criminal trial is to inflict appropriate punishment on the offender, the purpose of enquiry proceedings is to deal with the delinquent departmentally and to impose penalty in accordance with the delinquent departmentally and to impose penalty in accordance with the service rules. In a criminal trial, incriminating statement made by the Accused in certain circumstances or before certain officers is tally inadmissible in evidence, such strict rules of evidence and procedure would not apply to departmental proceedings. The degree of proof which is necessary to order a conviction is different from the degree of proof necessary to record the commission of delinquency. The rule relating to appreciation of evidence in the two proceedings is also not similar. 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 to convicted by a Court of law. In a 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'' Acquittal of the appellant by a judicial Magistrate, therefore, does not lipso facto absolve him from the liability under the Disciplinary jurisdiction of the Corporation. We are, therefore, unable to uphold the contention of the appellant that since he was acquitted by a criminal Court, the impugned order dismissing him from services deserves to be quashed and set aside''.
8.Considering the arguments as advanced by the respective learned counsel appearing on behalf of the petitioner as well as the respondent, it is relevant to extract the charges framed against the writ petitioner:-
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9.Annexure II to the charge memo provides the statements of allegations and imputations. Annexure III enumerates the list of documents relied upon. Annexure IV to the charge memo contents the list of witnesses to be examined. Eight witnesses are cited in the list of witnesses.
10.On a perusal of the impugned charge memo, this Court is of an opinion that the charges are certainly serious and relating to demand and acceptance of bribe. Thus departmental disciplinary proceedings are certainly warranted. There cannot be any leniency in respect of corruption charges. All corruption charges ought to be dealt with iron hand. The authorities competent can never show any leniency or misplaced sympathy in respect of the corruption allegations. All such allegations are to be dealt with in accordance with law by conducting full-fledged enquiry. Thus there is no infirmity as such, in respect of the framing of the charges.
11.Next question arises that whether the delay raised by the writ petitioner can be considered or not. The Honourable Supreme Court of India time and again emphasised and reiterated that the corruption charges cannot be quashed merely on the ground of delay. In other words, delay cannot be a ground to quash the allegations relating to the corrupt activities on public service. The truth must be culled out. Thus the petitioner has to participate in the enquiry proceedings and proove his innocence before the competent authority.
12.Acquittal in a criminal case cannot be a ground for the exoneration of a Government Employee from the departmental disciplinary proceedings. The procedures contemplated under the Discipline and Appeal Rules are totally distinct and different. However, for imposing conviction under the criminal law, high standard of proof is required. The benefit of doubt favours the accused. Thus, the standard of proof required for a conviction in a criminal case is absolutely different and high in nature. However, preponderance of probabilities are sufficient to punish the Government employee under the Discipline and Appeal Rules. The facts and circumstances to be explained in the departmental disciplinary proceedings stands in a different footing. The Tamil Nadu Government Servants Conduct Rules enumerates the nature of misconducts. The rule provides that even a moral turpitude is a ground for punishing a Government Servant under the Discipline and Appeal Rules. The public servants indulging in corrupt activities, more specifically, demand and acceptance of bribe is a serious misconduct and also an offence. The appointing authority or other statutory authorities of the Department and the staff employed in a particular establishment or office, normally, be familiar with the conduct and character of the co-employees. The officials working in the Department shall have some knowledge about the incidents and other happenings in and around the office premises. Thus, all the incidents are to be examined by the disciplinary authorities while conducting departmental disciplinary proceedings. The evidence and the witnesses are to be produced and adduced at the time of the conduct of enquiry proceedings. After all an over all conduct and character of the public servant is also paramount importance.
13.The public servants are accountable and answerable to the general public. Thus, the attitude of an employee and his corrupt activities are also to be checked consistently. The public servant has to maintain his character and conduct through out both inside and outside the office. This being the very purpose and object of the Government Servants Conduct Rules, this Court is of an opinion that the writ petitioner certainly has to face the departmental disciplinary proceedings by his participation.
14.The point of delay argued on behalf of the writ petitioner that the impugned charge memo was issued belatedly, this Court is of an opinion that the criminal case was disposed of on 28.03.2012 and thereafter, the disciplinary authorities framed the charge memo in proceedings dated 21.11.2012. The competent authority was of an erroneous opinion that simultaneous proceedings are impermissible. During the relevant point of time, the Courts were relying on the judgment of the Hon'ble Supreme Court of India in the case of Paul Antony. However, the Hon'ble Supreme Court in its subsequent judgments clarified that the principles laid down in Paul Antony case can never be followed as a rem. However, the Hon'ble Supreme Court clarified that simultaneous proceedings are certainly permissible. The departmental disciplinary proceedings shall be kept in abeyance only if the facts and circumstances are so complex and the disciplinary authority cannot proceed with the departmental disciplinary proceedings unless his criminal case is disposed of. Thus, the High Courts also in many number of cases, granted interim order that the departmental disciplinary proceedings are to be kept in abeyance during the pendency of the criminal case. However, the Hon'ble Supreme Court of India laid down the legal principles in the case of G.Srinivasan vs The Deputy Inspector General of Police, Vellor and others unambiguously that simultaneous proceedings are permissible and in this context, it is relevant to cite the following paragraphs, which is extracted here under:
....
15.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.
16. 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.
17. 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.
18. 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.
19. 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.
20. 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.
21. 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.
22. 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'.
23. 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.
24. 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)
25. 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.
15.Thus, this Court is of an opinion that in the present writ petition, the respondents were under the impression that during the pendency of the criminal case, more specifically, under the provision of Corruption Act, the departmental disciplinary proceedings need not be continued. Thus, such circumstances cannot be held in favour of the delinquent officials nor the delinquent officials would be permitted to take advantage of such delay consistently occurred at the instance of disciplinary authority and based on the pendency of the criminal proceedings. In the present writ petition, the disciplinary proceedings were initiated against the writ petitioner's son after the registration of the criminal case. The writ petitioner was placed under suspension immediately after the registration of a criminal case under the provision of Corruption Act, 1988. Thus, the disciplinary proceedings were commenced in the year 2003 itself and the departmental proceedings were kept in abeyance by the competent authorities only on the ground that the criminal case was pending against the writ petitioner. Thus, the point of delay contended has no merit consideration.
16.The delinquent officials are frequently approaching the High Courts to stop the departmental disciplinary proceedings merely on the ground that the criminal case is pending. After the criminal case is disposed of, also the delinquent officials are filing another writ petition on the ground that there is a delay in issuing the charge memo and conducting departmental enquiry proceedings. Thus, the ultimate ill motive of the delinquent officials are to see that the departmental proceedings are set aside, on one ground or other. The attempt is made to escape from the clutches of the disciplinary proceedings. When the corrupt activities of the public servants are traced, then the Courts can never encourage such attitude of the delinquents and attempts made to escape from the disciplinary proceedings. Certain illegal minds are also working out these remedies in a calculated manner so as to obtain the orders in one way or other to exonerate from the departmental disciplinary proceedings. Such back door ideas and methods moot out either by the illegal minds or at the instance of the delinquents can never and ever be encouraged by the Constitutional Courts. The whole appreciation of facts and circumstances and the nature of the allegations are to be scrupulously considered by the Courts while deciding the cases. When the allegations are in relation to heinous offences or corruption. Then the Courts can never relax the rule of law to be set in motion. There cannot be any leniency or misplaced sympathy. Corruption is spreading like a cancer in our great nation. The heinous offence of corruption is an enemy to the developmental activities of our great nation. Most of the Government policies introduced for the welfare of the common men is paralysed and not implemented in its letter and spirit on account of corrupt activities of the public servants and other persons. Thus, the Courts are also to be cautious while granting relief in the cases of corruption allegations.
17. The disciplinary proceedings initiated against the writ petitioner shall be allowed to be concluded in all respects and all such proceedings should reach its logical conclusion. Intermittent intervention in disciplinary proceedings are to be exercised cautiously and the judicial review in this regard are certainly limited and the Courts have to exercise the judicial review only on exceptional circumstances in disciplinary proceedings, more-so, when the allegations are relating to corruption.
18.Thus, this Court is of the firm opinion that in corruption cases where there are certain technical grounds, even then the enquiry should be allowed to be completed in all respects and it is left open to the delinquent officials to establish their innocence before the enquiry proceedings and the very charge memo, cannot be quashed in this regard.
19.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.
20.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.
21.Such being the view of this Court, no further adjudication on merits is to be undertaken in this writ petition. Accordingly, the writ petition stands dismissed. However, there shall be no order as to costs. Consequently, connected miscellaneous petition is also closed.
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