Madras High Court
K.Annamalai vs The Superintendent Of Police on 11 December, 2009
Author: K.Chandru
Bench: K.Chandru
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 11.12.2009 CORAM THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.NOs.14729 to 14732 of 2009 and M.P.NOS.1 TO 1 OF 2009 K.Annamalai .. Petitioner in W.P.No.14729 of 2009 M.Shanmugam .. Petitioner in W.P.No.14730 of 2009 B.Jayaraman .. Petitioner in W.P.No.14731 of 2009 C.Velumani .. Petitioner in W.P.No.14732 of 2009 Vs. 1.The Superintendent of Police, Thiruvannamalai District. 2.The Deputy Superintendent of Police, Vandavasi Sub-Divn. Vandavasi, Thiruvannamalai District. 3.The Director General of Police, Chennai-4. .. Respondents These writ petitions are preferred under Article 226 of the Constitution of India praying for the issue of a writ of mandamus to direct the respondents to keep the disciplinary proceedings in PR Nos.H1/PR42/2008, H1/PR46/2008, H1/PR45/2008 and H1/PR47/2008 dated 27.2.2008 in abeyance pending disposal of the criminal case pending in C.C.Nos.49 and 50 of 2006 on the file of the Judicial Magistrate II, Vellore. For Petitioners : Mr.K.Venkatramani, SC for Mr.M.Muthappan For Respondents : Mr.R.Neelakantan, GA - - - - COMMON ORDER
The four petitioners have filed the four writ petitions, seeking for a direction to the respondents to keep their disciplinary proceedings, dated 27.2.2008 in abeyance pending disposal of the criminal case in C.C.Nos.49 and 50 of 2006 on the file of the Judicial Magistrate-II, Vellore.
2.The first writ petitioner is a Head Constable of Vandavasi North Police Station and is presently under suspension. The second writ petitioner is also a Head Constable attached to Tiruvannamalai East Police Station, who is also under suspension. The third writ petitioner working as a Head Constable in Melchengam Police Station is also under suspension. In the fourth writ petition, the petitioner was a Head Constable at District Armed Reserve, Thiruvannamalai District and he is also under suspension. In all these writ petitions, status quo order was passed on 29.7.2009.
3.It is seen from the final report, dated 13.11.2006 that the petitioners, who are the members of Thiruvannamalai District Police Department Employees' Co-operative Thrift and Credit Society, being office bearers, have misappropriated several amounts. Therefore, they were charged under Sections 408 and 471 read with Section 35 IPC. Subsequently, the petitioners were given charge memo under Rule 3(b) of the Tamil Nadu Police Subordinate Service (Discipline and Appeal) Rules. In the charge memo, it was stated that the petitioners were guilty of falsifying records and after obtaining cheques from the society, they encashed the same. Even while they were on duty, disregarding the office work, they went to the District Co-operative Society and after taking cheques, they encashed the same in the District Central Co-operative Bank.
4.The petitioners initially challenged the charge memo in W.P.Nos.8585 of 2008, 9071 of 2008, 9569 of 2008 and 9568 of 2008 before this court. However, this court did not go into the merits of the charge memo, but merely directed the respondents to consider their representations. It is pursuant to the direction, the respondents held by an order, dated 17.7.2009, held that on the basis of the existing orders and the directions of the Supreme Court, there is no bar for conducting domestic enquiry even pending criminal case. It was also stated that the Deputy Superintendent of Police, Vandavasi was appointed as an Enquiry Officer. Subsequently, enquiry notice was also given.
5.The contention of the petitioners was that pending criminal case, departmental enquiry should be stayed.
6.Mr.K.Venkatramani, learned Senior Counsel placed reliance upon several decisions of the Supreme Court, which is as follows:
(i)Tata Oil Mills Co. Ltd. Vs. Its Workmen (AIR 1965 SC 155).
(ii)Kusheshwar Debey Vs. Bharat Coking Coal Ltd. and others (AIR 1988 SC 2118)
(iii)Nelson Motis Vs. Union of India and another (1992 (4) SCC 711)
(iv)State of Rajasthan Vs. B.K.Meena and others (1996 (6) SCC 417)
(v)Depot Manager, Andhra Pradesh State Road Transport Corporation Vs. Mohd. Yousuf Miya, etc. (1997 (2) SCC 699).
(vi)Capt.M.Paul Anthony Vs. Bharat Gold Mines Ltd. and another (1999(3) SCC 679).
(vii)Kendriya Vidyalaya Sangathan and others Vs. T.Srinivas (2004(7) SCC 442).
(viii)Hindustan Petroleum Corporation Ltd. and others Vs. Sarvesh Berry (2005(10) SCC 471).
(ix)Uttaranchal Road Transport Corpn. and others Vs. Mansaram Nainwal (2006(6) SCC 366).
(x)Noida Entrepreneurs Association Vs. Noida and others (2008 (1) SCC(L&S) 672).
7.However, there is no decision of any court holding that all enquiries must be forestalled pending criminal trial. In the present case, except for the final report filed, the petitioners have not shown any progress in the criminal case. In such circumstances, it is open to the respondents to initiate departmental action. The allegation about their unauthorised absence from duty is not the subject matter of the criminal case. Therefore, it cannot be said that criminal case and departmental enquiry are based on identical issues.
8.In this context, it is necessary to refer to the Supreme Court's judgment in Commr. of Police v. Narender Singh reported in (2006) 4 SCC 265. In paragraphs 12 to 14 it was held as follows:
"12. It is not in dispute that the standard of proof required in recording a finding of conviction in a criminal case and in a departmental proceeding are distinct and different. Whereas in a criminal case, it is essential to prove a charge beyond all reasonable doubt, in a departmental proceeding preponderance of probability would serve the purpose. (See Kamaladevi Agarwal v. State of W.B.1)
13. It is now well settled by reason of a catena of decisions of this Court that if an employee has been acquitted of a criminal charge, the same by itself would not be a ground not to initiate a departmental proceeding against him or to drop the same in the event an order of acquittal is passed.
14. In Manager, Reserve Bank of India v. S. Mani, this Court held: (SCC p.109, para 12) 12. It is trite that a judgment of acquittal passed in favour of the employees by giving benefit of doubt per se would not be binding upon the employer. [See Bank of India v. Degala Suryanarayana (1999)5 SCC 762; Ajit Kumar Nag v. G.M. (PJ), Indian Oil Corpn. Ltd.(2005) 7 SCC 764]
9.As to whether an enquiry should be stayed pending criminal case again came to be considered by the Supreme Court in State Bank of India v. R.B. Sharma reported in (2004) 7 SCC 27. In paragraphs 7,8 and 11, the Supreme Court held as follows:
7. It is a fairly well-settled position in law that on basic principles proceedings in criminal case and departmental proceedings can go on simultaneously, except where departmental proceedings and criminal case are based on the same set of facts and the evidence in both the proceedings is common.
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.
.......
11. There can be no straitjacket formula as to in which case the departmental proceedings are to be stayed. There may be cases where the trial of the case gets prolonged by the dilatory method adopted by the delinquent official. He cannot be permitted to, on one hand, prolong criminal case and at the same time contend that the departmental proceedings should be stayed on the ground that the criminal case is pending.
10.Thereafter, the Supreme Court once again in Indian Overseas Bank, Anna Salai and another Vs. P.Ganesan and others reported in 2007 (5) CTC 632 in paragraphs 20 and 21 held as follows:
"20. ...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.
21. The standard of proof in a disciplinary proceedings and that in a criminal trial is different. If there are additional charges against the delinquent officers including the charges of damaging the property belonging to the Bank which was not the subject-matter of allegations in a criminal case, the departmental proceedings should not have been stayed."
11.In the light of the above, all the four writ petitions will stand dismissed. No costs. Consequently, connected miscellaneous petitions also stand dismissed.
11.12.2009 Index : Yes Internet : Yes vvk To
1.The Superintendent of Police, Thiruvannamalai District.
2.The Deputy Superintendent of Police, Vandavasi Sub-Divn.
Vandavasi, Thiruvannamalai District.
3.The Director General of Police, Chennai-4 K.CHANDRU, J.
vvk PRE DELIVERY ORDER IN W.P.NOs.14729 to 14732 of 2009 11.12.2009