Madras High Court
P.Bhuvaneswari vs The Revenue Divisional Officer on 4 April, 2019
Author: S.M.Subramaniam
Bench: S.M.Subramaniam
1
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 04.04.2019
CORAM
THE HONOURABLE MR. JUSTICE S.M.SUBRAMANIAM
W.P.Nos.34132, 34138, 34140 of 2018
and WMP.Nos.39664, 339670, 39672 of 2018
P.Bhuvaneswari ... Petitioner in W.P.No.34132/2018
V.Kannapan ... Petitioner in W.P.No.34138/2018
V.Saharsanamam ... Petitioner in W.P.No.34140/2018
-Vs-
1. The Revenue Divisional Officer,
Maduranthagam Division,
Kancheepuram District.
2. The Special Tahsildar,
(Adi Dravida Welfare),
Maduranthagam Division,
Kancheepuram District. ... Respondents in all WPs.
Prayer in W.P.No.34132/2018: Writ Petition filed under Article 226 of the
Constitution of India to issue a Writ of Mandamus, to directing the respondents
to keep the disciplinary proceedings issued by the 1st Respondent in
Na.Ka.AA/1717/2013 dated 14/06/2018 in abeyance, pending disposal of the
Special C.C.No.9/2013 on the file of the Chief Judicial Magistrate,
Chengalpattu.
Prayer in W.P.No.34138/2018: Writ Petition filed under Article 226 of the
Constitution of India to issue a Writ of Mandamus, to directing the respondents
to keep the disciplinary proceedings issued by the 1st Respondent in
Na.Ka.B1/3161/2008 dated 14/06/2018 in abeyance, pending disposal of the
Special C.C.No.11/2013 on the file of the Chief Judicial Magistrate,
Chengalpattu.
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2
Prayer in W.P.No.34140/2018: Writ Petition filed under Article 226 of the
Constitution of India to issue a Writ of Mandamus, to directing the respondents
to keep the disciplinary proceedings issued by the 1st Respondent in
Na.Ka.AA/2444/2013 dated 14/06/2018 in abeyance, pending disposal of the
Special C.C.No.9/2013 on the file of the Chief Judicial Magistrate,
Chengalpattu.
For petitioners : Mr.K.Venkataramani
for M/s.M.Muthappan
(Senior Counsel)
For respondents : Mr.A.N.Thambi Durai
(Special Government Pleader)
....in all WPs.
COMMON ORDER
The charge memo issued to the writ petitioners in proceedings dated 14.06.2018, is under challenge in these writ petitions. The charges against the writ petitioners are extracted hereunder:
'Fw;wr;rhl;L vz;/1 ,th; bghWg;g[tha;e;j fpuhk eph;thf mYtyuhf ,Ue;Jbfhz;L. muR CHpahpd; elj;ij tpjpfis kPwp jdJ Raeydpw;fhf fpuhk kf;fis Jd;g[Wj;jpa[k;.
tpz;zg;gj;jpd; kPJ chpa fhyj;jpw;Fs; eltof;if
vLf;fhky;. Mjha nehf;nfhL fhye;jhH;j;jpa[k;.
bghJkf;fs; rYiffs; bgWtjw;F ,ila{Whft[k;.
bghWg;gw;w Kiwapy; ele;Jbfhz;ljd; K:yk; jdJ
flikapypUe;J jtwpa[s;sPh;/
Fw;wr;rhl;L vz;/2
xU bghWg;g[s;s fpuhk eph;thf mYtyuhf
,Ue;Jbfhz;L muR gzpf;F mtg;bgah; Vw;gLk;
tifapYk;. murpd; ek;gfjd;ikia ,Hf;Fk;
tifapYk; ele;Js;sPh;/
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3
Fw;wr;rhl;L vz;/3
xU bghWg;g[s;s fpuhk eph;thf mYtyuhf
,Ue;Jbfhz;L muR tpjpfspd;go bray;glhkYk;. fpuhk eph;thf mYtyf eilKiw E}ypy; fpuhk eph;thf mYtyh;fs; flikfs; gw;wp Fwpg;gplg;gl;Ls;sJnghy;
bray;glhkYk;. fpuhk Fokf;fspd; njitfis
epiwntw;whky; jdJ tpUg;gk;nghy; jd;dpr;irahf
bray;gl;Ls;sPh;/
Fw;wr;rhl;L vz;/4
fpuhk eph;thf mYtyh; jdJ gzpapy; neh;ika[k;.
flik a[zh;t[ kw;Wk; gw;Wzh;tpd;wp bray;gl;L
jkpH;ehL muR gzpahsh; ed;dlj;ij tpjpfs; 1973
tpjp 20(1) Kuzhf bray;gl;Ls;sPh;/
Annexure-2 to the charge memo provides the statement of allegations. Annexure-3 denotes the list of documents. Annexure-4 denotes the list of witnesses to be examined.
Thus, there is no infirmity in respect of the charge memo issued against the writ petitioners.
2. The learned Senior Counsel appearing on behalf of the writ petitioners states that pursuant to the very same allegations, the criminal case was registered against the writ petitioners, the Charge Sheet numbers were assigned and the same was laid down by the Inspector of Police, Vigilance and Anti-Corruption Wing. When a criminal case is pending against the writ petitioners, the respondents ought not to have instituted the departmental http://www.judis.nic.in 4 disciplinary proceedings, as simultaneous proceedings are impermissible.
3. In the event of allowing the respondents to continue the departmental disciplinary proceedings, the right of defense provided to the writ petitioners are denied. Thus, the charge memo itself is liable to be scrapped. At the out set, it is contended that during the pendency of the criminal case, the respondents cannot proceed with the departmental disciplinary proceedings and they have to wait till the final disposal of a criminal case.
4. The question raised is that whether the right of the writ petitioners would be prejudiced in the event of concluding the departmental disciplinary proceedings. The nature of the departmental disciplinary proceedings are entirely different and the criminal trial is no way connected with the departmental disciplinary proceedings. This apart, the moral turpitude or preponderance of probabilities are sufficient to punish an employee under the Discipline and Appeal Rules. Taking in to account, the service records and the allegations of misconduct now set out with the writ petitioners. However, trial in a criminal case stands in a different footing.
Thus, there cannot be any comparison of the departmental disciplinary proceedings as well as the criminal trial. The allegations against the writ http://www.judis.nic.in 5 petitioners are corruption.
5. This Court is of an undoubted opinion that there is no bar to proceed with the departmental disciplinary proceedings, even during the pendency of the criminal proceedings. The only yardstick is to be adopted is that the materials are not available on record to continue the departmental disciplinary proceedings. Then the Competent Authority is empowered to take a decision to keep the departmental disciplinary proceedings in abeyance. If the documents and materials are available and sufficient to continue the departmental disciplinary proceedings, then there is no bar to continue the proceedings to conclude the same and pass final orders. In case, the criminal case is ended with an order of conviction, then the suitable orders may be passed reviewing the earlier order or passing a fresh order.
6. However, the mere pendency of the criminal case would not prevent the Competent Authority from proceeding with the departmental disciplinary proceedings.
7. The cases of Corruption have to be viewed certainly serious and no leniency can be shown. The Honourable Supreme Court also, time and again, emphasised that the charges cannot be quashed on the ground of delay or on http://www.judis.nic.in 6 technical grounds when the charges are relating to demand of bribe or corruption. This being the consistent view of the Courts, the writ petitioners shall not be allowed to escape from the disciplinary proceedings on these technical grounds.
8. The disciplinary proceedings initiated against the writ petitioners 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.
9. 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.
10. Government servants play a significant role in running the administration of the Country. They are important constituents of the http://www.judis.nic.in 7 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.
11. The departmental authorities are free to exercise such lawful powers as are conferred on them by the departmental rules and regulations.
12. 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 http://www.judis.nic.in 8 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.
13. 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.
14. 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 proceedings 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 http://www.judis.nic.in 9 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.
15. 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.
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16. 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”.
17. 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 http://www.judis.nic.in 11 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.
18. 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 http://www.judis.nic.in 12 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.”
19. 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 http://www.judis.nic.in 13 'preponderance of probability'.
20. 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.
21. 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 http://www.judis.nic.in 14 (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)
22. 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 http://www.judis.nic.in 15 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.
23. In the present case on hand, the learned senior counsel made a submission that there is a delay in framing the charge memo. However, the fact remains that the criminal proceedings are pending against the writ petitioners under the Prevention of Corruption Act, and the criminal cases are in progress and going to be disposed of soon.
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24. Under these circumstances, this Court is of the considered opinion that the delay did not cause any prejudice to the writ petitioners as the allegations are under trial and the department has waited for some time and on account of the long delay, they have now issued a charge memo enabling them to continue the departmental disciplinary proceedings. Even, in case where the charge memo has not been issued after the disposal of the criminal case, the authorities can initiate the departmental disciplinary proceedings. Thus, all these circumstances, are weighed by the Competent Authorities based on the facts and circumstances. Thus, the delay did not cause any prejudice to the interest of the writ petitioners and the writ petitioners are bound to face the departmental disciplinary proceedings, in view of the fact that both the criminal case and the departmental proceedings are pending. It is left open to the writ petitioners to establish their innocence or otherwise by producing documents and adducing evidences.
25. The Hon'ble Supreme Court, time and again reiterated that the charges in relation to corrupt activities cannot be quashed, merely on the ground of delay. This being the legal principles to be followed, the relief as such sought of in these writ petitions cannot be considered at all. http://www.judis.nic.in 17
26. Accordingly, these writ petitions stands dismissed. No costs. Consequently, connected miscellaneous petitions are closed.
04.04.2019 Speaking Order/Non-speaking order Index : Yes/No Internet: Yes/No mp/pns To
1. The Revenue Divisional Officer, Maduranthagam Division, Kancheepuram District.
2. The Special Tahsildar, (Adi Dravida Welfare), Maduranthagam Division, Kancheepuram District.
http://www.judis.nic.in 18 S.M.SUBRAMANIAM, J.
mp/pns W.P.Nos.34132, 34138, 34140 of 2018 and WMP.Nos.39664, 339670, 39672 of 2018 04.04.2019 http://www.judis.nic.in