Madras High Court
N.R.Kothandan vs The Assistant Director Of on 13 July, 2012
Author: S.Manikumar
Bench: S.Manikumar
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 13.07.2012 CORAM: THE HONOURABLE MR.JUSTICE S.MANIKUMAR Writ Petition No.33068 of 2004 and W.P.M.P.No.39993 of 2004 N.R.Kothandan .. Petitioner Vs. The Assistant Director of Survey and Land Records, Tiruvallur. .. Respondent Prayer: Writ Petition filed under Article 226 of Constitution of India praying for a writ of Mandamus directing the respondent to defer from proceeding with the Departmental Proceedings initiated in Memo.Na.Ka.No.A10/8559/2004, dated 7.9.2004, of the respondent and all other related proceedings till the disposal of the criminal case pending on the file of the Chief Judicial Magistrate, Chengalpattu, initiated in Cr.No.9/AC/2003/CC-1 of the Vigilance and Anti Corruption Unit, Chennai-600 028 and pass such further or other orders. For petitioner : Mr. M.Ravi For Respondent : Mr.K.V.Dhanapalan, AGP O R D E R:
The petitioner has sought for a mandamus directing the Assistant Director of Survey and Land Records, Tiruvallur, to defer further action on the departmental proceedings initiated in Memo.Na.Ka.No.A10/8559/2004, dated 7.9.2004, pending disposal of the criminal case on the file of the Chief Judicial Magistrate, Chengalpattu, initiated in Cr.No.9/AC/2003/CC-1 by the Vigilance and Anti Corruption Unit, Chennai-600 028.
2. According to him, when he was working as Firka Surveyor, Madhavaram Firka, Taluk Office, Ambattur, he has been falsely implicated in a criminal case registered by the vigilance and Anti Corruption Unit, City Detachment No.1, Chennai-28 in Cr.No.9/AC/2003/CC-1 and in connection with the said criminal case, he was arrested on 4.9.2003 and produced before the learned Chief Judicial Magistrate, Chengalpattu. He was granted bail on 18.9.2003 in Crl.M.P.No.348 of 2003. Based on the registration of the criminal case, vide proceedings in R.C.No. 8559/2004, dated 7.9.2004, the petitioner was placed under suspension with effect from 4.9.2003, i.e., from the date of his arrest, alleging that he had accepted a sum of Rs.1,200/- from one Mr.U.Mani, residing at No.15/1, Subbam Nagar, Kumaran Street, Madhavaram Milk Colony, chennai-51, for the purpose of transfer of patta in his wife's name. The petitioner has denied receipt of illegal gratification.
3. On the date of filing of this writ petition, charge sheet has not been filed. When the criminal case was pending, the Assistant Director of Survey and Land Records, Tiruvallur, vide proceedings in R.C.No. A10/8559/2004, dated 7.9.2004, has initiated disciplinary proceedings under Rule 17(b) of the Tamilnadu Civil Services (Discipline and Appeal) Rules. According to the petitioner, both the departmental and criminal proceedings arise out of the same set of facts and placing reliance on the decision of the Supreme Court in Paul Antony Vs.Bharat Gold Mines Limited reported in 1999 (3) SCC page 376, he has sought for a mandamus against the respondent to defer further action on the departmental proceedings.
Heard the learned counsel for the parties and perused the material on record.
4. Pleadings and material on record disclose that a criminal case has been registered against the petitioner in F.I.R. No.9/AC/2003/CC-1, dated 3.9.2003 under Section 7 of Prevention of Corruption Act, 1988, by the Vigilance and Anti-Corruption, City-1, Detachment, Chennai-28.
5. The contention of the petitioner that the facts giving rise to initiation of departmental proceedings dated 7.9.2004 under the Tamilnadu Civil Services (Discipline and Appeal) Rules and the criminal proceedings are one and the same and that therefore, serious prejudice would be caused to his defence in the criminal case, if the departmental proceedings are allowed to be continued, cannot be countenanced. Useful reference can be made in the following decisions:
The principles underlined in Capt M. Paul Anthony v. Bharat Gold Mines Ltd. and another, reported in 1999 (3) SCC 679, at Paragraph 22, are extracted hereunder:
"(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."
In 2004 (7) Supreme Court Cases 27 [State Bank of India and others v. R.B.Sharma]. In 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."
In "Kendriya Vidyalaya Sangathan and others versus T.Srinivas" reported in (2004) 7 SCC 442, the Hon'ble Supreme Court considered a case of a 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 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 the respondent. The first article in the memo of charges referred to 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 referred to the respondent suppressing 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.
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 proceedings 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. The respondents therein, 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."
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 Court in the above case further held that the standard of proof, mode of enquiry and the rules governing the enquiry and trial in both the cases are distinct and different.
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 Hon'ble Supreme Court has 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.
In Ajay Kumar Nag v. G.M.(PJ) Indian Oil Corporation Ltd., reported in 2005 (7) SCC 764, where the Supreme Court has explained the relative scope of departmental enquiry and criminal trial, the objectives, procedure and proof which are required in the proceedings before the Court and domestic enquiry, "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 objectives. 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 service rules. In a criminal trial, incriminating statement made by the accused in certain circumstances or before certain officers is totally 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 be 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."
In yet decision reported in "Hindustan Petroleum Corporation Ltd.and others versus Sarvesh Berry" [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.
In the abovesaid case, placing reliance on "M.Paul Anthony' 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."
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 conclusions 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."
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 Supreme Court, having regard to the legal position that there is no need for automatic stay in the departmental proceedings, has observed that the discretionary Writ jurisdiction under Article 226 of the Constitution of India should be exercised, keeping in view of the conduct of the parties, stage of the criminal case and whether it would expose the defence of the delinquent, if he is constrained to acquiesce himself to the departmental enquiry, pending disposal of the trial before the Court of competent jurisdiction. At Paragraph 22, the Supreme Court 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."
In the Superintending Engineer, Chennai Electrical Distribution Circle, Tamil Nadu Electricity Board, Valluvarkottam, Chennai-600 034 and another v. N.Rangaraj reported in 2009(3) MLJ 833, at Paragraph 14, held as follows:
"It is trite law that 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. It is also well settled that the standard of proof to hold a person guilty of offence, is based on strict evidence, as prosecution has to be prove the case beyond all reasonable doubt and what is required in departmental enquiry, is preponderance of probability. In view of the difference and distinction, the principles of law laid down by the Supreme Court in the above referred cases, when applied to the facts of the present case do not warrant deferment of departmental proceedings till the conclusion of the criminal case registered against the respondent. In view of the above, the contention of the respondent that his defence would be exposed cannot be countenanced."
6. Record of proceedings shows that the petitioner has obtained an interim order of stay of the departmental proceedings on 30.11.2004 in W.P.M.P.No.39993 of 2004. It is unfortunate that the respondent has not even chosen to file any counter affidavit to the writ petition for so many years. Even in the case of an offence under the Prevention of Corruption Act, no steps have been taken to vacate the interim order. In view of the decision of this Court, stated supra, the petitioner is not entitled to the relief sought for. Interim order is vacated. The writ petition is dismissed. No costs.
13.07.2012 Index : Yes/No Internet: Yes/No aes To The Assistant Director of Survey and Land Records, Tiruvallur.
S.MANIKUMAR, J. aes
W.P.No.33068 of 2004
13.07.2012