Madras High Court
V.Annasamy vs The Inspector General Of Registration on 4 April, 2012
Author: N.Paul Vasanthakumar
Bench: N.Paul Vasanthakumar
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 04.04.2012
CORAM:
THE HON'BLE MR.JUSTICE N.PAUL VASANTHAKUMAR
W.P.No.9030 of 2012
M.P.Nos.1 & 2 of 2012
V.Annasamy ... Petitioner
Vs.
1. The Inspector General of Registration,
Santhome High Road, Chennai 600 028.
2. The Deputy Inspector General of Registration
cum- Enquiry Officer, Coimbatore Division,
Coimbatore.
3. The District Registrar(Administration)
Tiruppur. ... Respondents
Petition filed under Article 226 of the Constitution of India praying to issue a writ of Certiorari calling for the records relating to the charge Memo No.44300/Aa1/2004 dated 10.04.2008 issued by the first respondent and consequential proceedings No.1658/A1/2009 dated 23.01.2012 issued by the second respondent and quash the same.
For Petitioner : Mr. Palani Selvaraj
For Respondents : Mr.V.Subbiah
Special Government Pleader
O R D E R
The prayer in the writ petition is to quash the charge memo dated 10.04.2008 and the consequential proceedings issued by the second respondent dated 23.01.2012.
2. It is the case of the petitioner that the petitioner was issued with a charge memo under Rule 17(b) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules, on the allegation that the petitioner has demanded a sum of Rs.3,200/- while functioning as Sub-Registrar at Anaimalai, Tiruppur, on 13.08.2004 from one C.Sukumar, S/o Chinnu, Coimbatore for field inspection on 23.08.2004 and he received a sum of Rs.1000/- as a first instalment and thereby violated Rule 20(1) of the Tamil Nadu Government Servants Conduct Rules. The petitioner was arrested and thereafter a criminal case was registered in Crime No.13 of 2004 by the Vigilance and Anti Corruption, Coimbatore on 23.08.2004. According to the petitioner, in the said criminal case, he was acquitted and after the acquittal of the criminal case, the petitioner submitted a representation to drop the charge memo/departmental action initiated under Rule 17(b) of the Rules. The said request was turned down by the second respondent through his proceedings dated 23.0.2012 stating that the petitioner earlier approached the first respondent seeking deferring of the departmental proceedings till the disposal of criminal case and in the criminal case, the petitioner was acquitted giving benefit of doubt. Against the said judgment, the Vigilance and Anti Corruption Department has filed an appeal and hence the charge memo framed against the petitioner cannot be dropped.
3. Learned counsel for the petitioner submitted that the petitioner having been acquitted in the criminal case, the departmental proceedings is bound to be set aside. The learned counsel also submitted that there is delay in initiation and conclusion of departmental proceedings and the charge memo is to be quashed.
4. The issues arising for consideration are
(a) Whether even after the acquittal in the criminal case, the department can proceed with the charge memo framed under Rule 17(b) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules, and
(b) Whether there is any delay on the part of the department warranting quashing of the charge memo.
5. The acquittal of the petitioner in the criminal case by the Trial court in S.C.No.9 of 2005 is on benefit of doubt and not on merits. In the trial Court judgment in several places it is stated that the evidence of witnesses are not beyond doubt and the petitioner was acquitted by giving benefit of doubt. Further the said acquittal has not become final and admittedly appeal against the acquittal is pending before the appellate court.
6. It is a well settled proposition of law that if appeal is filed and pending the judgment of the trial court has not reached its finality, as per the judgment of the Supreme Court in Omprakash Verma v. State of Andhra Pradesh reported in 2010 (6) Supreme 729 and appeal is continuation of original proceedings, as per the judgment of the Supreme Court in Mohd.Saud v. Dr.(Maj.) Shaikh Mahfooz reported in 2011 (1) MLJ 364 (SC). The petitioner also cannot contend that merely because he is acquitted in the criminal case, no disciplinary proceedings be continued. The Supreme Court in the decision in State Bank of Bikaner & Jaipur v. Nemi Chand Nalwaya reported in AIR 2011 SC 1931 in Paragraph 9 considered the said issue and held thus, "9. ....................... The standard of proof required in criminal proceedings being different from the standard of proof required in departmental enquiries, the same charges and evidence may lead to different results in the two proceedings, that is, finding of guilt in departmental proceedings and an acquittal by giving benefit of doubt in the criminal proceedings. ................"
I had an occasion to consider the said issue in the decision reported in (2010) 1 MLJ 1179 (P. Mahimaidoss v. Tamil Nadu State Transport Corporation) and in paragraph 9 the decisions of the Honourable Supreme Court and Division Bench of this Court were relied on, which reads as follows:
"9. Whether acquittal in criminal case has got any bearing in the departmental proceedings, was considered in the following cases:
(a) In (2003) 3 SCC 583 (Popli v. Canara Bank), in paragraphs 16 to 19 it is held thus:
"16. It is fairly well settled that the approach and objective in criminal proceedings and the disciplinary proceedings are altogether distinct and different. In the disciplinary proceedings the preliminary question is whether the employee is guilty of such conduct as would merit action against him, whereas in criminal proceedings the question is whether the offences registered against him are established and if established what sentence should be imposed upon him. The standard of proof, the mode of enquiry and the rules governing the enquiry and trial are conceptually different. (See State of Rajasthan v. B.K. Meena) In case of disciplinary enquiry the technical rules of evidence have no application. The doctrine of proof beyond doubt has no application. Preponderance of probabilities and some material on record are necessary to arrive at the conclusion whether or not the delinquent has committed misconduct.
17. While exercising jurisdiction under Article 226 of the Constitution the High Court does not act as an appellate authority. Its jurisdiction is circumscribed by limits of judicial review to correct errors of law or procedural errors leading to manifest injustice or violation of principles of natural justice. Judicial review is not akin to adjudication of the case on merits as an appellate authority.
18. In B.C. Chaturvedi v. Union of India the scope of judicial review was indicated by stating that review by the court is of decision-making process and where the findings of the disciplinary authority are based on some evidence, the court or the tribunal cannot reappreciate the evidence and substitute its own finding.
19. As observed in R.S. Saini v. State of Punjab in paras 16 and 17 the scope of interference is rather limited and has to be exercised within the circumscribed limits."
(b) In (2005) 7 SCC 764 (Ajit Kumar Nag v. G.M.(PJ), Indian Oil Corporation Ltd.) in paragraph 11, the Supreme Court 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 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. Acquittal of the appellant by a Judicial Magistrate, therefore, does not ipso 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 service deserves to be quashed and set aside."
(c) The Division Bench of this Court in the decision reported in 2005 (1) CTC 625 (The Management of Thiruvalluvar Transport Corporation v. S.Anthonysamy) in paragraphs 8 to 13 held as follows:
"8. It is well settled that on the same charges when there is a criminal proceeding as well as a domestic enquiry, merely because the workman is found innocent in the criminal case, it does not mean that he cannot be found guilty in the departmental/domestic enquiry vide Thenmozhi v. The Chairman & Managing Director, Neyveli Lignite Corporation in W.A.Nos.202 and 203 of 2005 dated 8.2.2005.
9. In the aforesaid Division Bench decision reliance had been placed on the Supreme Court decisions in Allahabad District Co-Operative Bank Ltd., v. Vidhya Varidh Mishra, 2004 (6) SCC 482 and Secretary, Ministry of Home Affairs and Another v. Tahir Ali Khan Tyagi, JT 2002 (Supp.1) SC 520.
10. In paragraph 12 of the decision in Allahabad District Co-Op. Bank Ltd. v. Vidhya Varidh Mishra (supra) the Supreme Court observed:-
"Mr.Rao submitted that the respondent had been exonerated by the criminal Court. He submitted that the termination was only on the basis of his conviction. He submitted that as his conviction is set aside, the Courts below were right in reinstating the respondent. We are unable to accede to this submission. The termination was pursuant to a disciplinary inquiry. It is settled law that in a disciplinary inquiry a conclusion different from that arrived at by a criminal Court, may be arrived at. The strict burden of proof required to establish guilt in a criminal Court is not required in disciplinary proceeding. The respondent has not claimed that the disciplinary proceedings were not conducted fairly. As the termination was based on findings of the Disciplinary Committee, the fact that the appellate Court exonerated the respondent was no consequence."
11. Similarly, in Secretary, Ministry of Homes Affairs and Another v. Tahir Ali Khan Tyagi (supra) the Supreme Court observed (vide paragraph -6):
"Departmental proceeding and criminal proceeding can run simultaneously and departmental proceeding can also be initiated even after acquittal in a criminal proceeding particularly when the standard of proof in a criminal proceeding is completely different from the standard of proof that is required to prove the delinquency of a government servant in a departmental proceeding, the former being one of proof beyond reasonable doubt, whereas the latter being one of preponderance of probability."
12. In view of the above, we are clearly of the opinion that the Labour Court proceeded on a wrong legal basis and wrongly ordered reinstatement of the workman concerned after finding that he was guilty of negligence.
13. ...................................."
7. Further the Supreme Court has cautioned the High Courts from quashing the charge memo/show cause notice in the case of Union of India v. Kunisetty Satyanarayana reported in AIR 2007 SC 906. In the said case instead of replying the charge memo, the employee challenged the same. The Supreme Court in Paragraph 11 to 15 held thus:
"11. Instead of replying to the aforesaid Charge Memo, the respondent filed an OA before the Central Administrative Tribunal, Hyderabad which was disposed of vide order dated 15.3.2004 with the direction to the applicant to submit his reply to the Charge Memo dated 23.12.2003 and on submission of the said reply the Disciplinary Authority should consider the same. Instead of filing any reply the respondent filed a Writ Petition in the High Court which has been allowed and hence this appeal.
12. In our opinion, the High Court was not justified in allowing the Writ Petition.
13. It is well settled by a series of decisions of this Court that that ordinarily no writ lies against a charge sheet or show-cause notice vide Executive Engineer, Bihar State Housing Board vs. Ramdesh Kumar Singh and others JT1995 (8) SC 331, Special Director and another vs. Mohd.Ghulam Ghouse and another AIR 2004 SC 1467, Ulagappa and others vs. Divisional Commissioner, Mysore and others 2001 (10) SCC 639, State of U.P. vs. Brahm Datt Sharma and another AIR 1987 SC 943 etc.
14. The reason why ordinarily a writ petition should not be entertained against a mere show-cause notice or charge-sheet is that at that stage the writ petition may be held to be premature. A mere charge-sheet or show-cause notice does not give rise to any cause of action, because it does not amount to an adverse order which affects the rights of any party unless the same has been issued by a person having no jurisdiction to do so. It is quite possible that after considering the reply to the show-cause notice or after holding an enquiry the authority concerned may drop the proceedings and/or hold that the charges are not established. It is well settled that a writ lies when some right of any party is infringed. A mere show-cause notice or charge-sheet does not infringe the right of any one. It is only when a final order imposing some punishment or otherwise adversely affecting a party is passed, that the said party can be said to have any grievance.
15. Writ jurisdiction is discretionary jurisdiction and hence such discretion under Article 226 should not ordinarily be exercised by quashing a show-cause notice or charge sheet."
8. The second contention is that there is delay in issuing the charge memo and completion of proceedings. Hence the charge memo is to be quashed.
9. The allegation of demand of illegal gratification was made on 13.08.2004. Vigilance and Anti Corruption Department arrested the petitioner based on the registration of criminal complaint in Cr.No.13 of 2004. Investigation of the criminal complaint was made and charge sheet was filed in the criminal case in the year 2005 and the case was pending as S.C.No.9 of 2005 on the file of Chief Judicial Magistrate, Coimbatore. During pendency of the criminal case, the impugned charge memo was issued on 10.04.2008. The petitioner submitted his explanation on 23.06.2008. The explanation having been found not satisfactory, Enquiry Officer was appointed on 29.01.2009 by the first respondent.
10. The petitioner instead of participating in the enquiry, submitted a representation to defer the departmental proceedings till the disposal of the criminal case. The department therefore waited till the trial was over in the criminal case. The criminal case in S.C.No.9 of 2005 was disposed of on 15.10.2010. Again on 22.10.2010, the petitioner submitted a representation to drop the charge memo. Thus, the delay in completing the departmental proceedings is fully explained. Similar issue was considered in the case of Dr.K.Venkatraman v. State of Tamil Nadu, reported in 2010 (2) CTC 741 placing reliance on the following decisions:
(a) The Honourable Supreme Court in the decision reported in (1995) 3 SCC 134 : 1995-I LLJ 1069 (Deputy Registrar, Co-Operative Societies, Faizabad v. Sachindran Nath Panday and others) in paragraph 7 it is held as follows:
"7. On a perusal of charges, we find that the charges are very serious. We are, therefore, not inclined to close the matter only on the ground that about 16 years have elapsed since the date of commencement of disciplinary proceedings, more particularly when the appellant alone cannot be held responsible for this delay. ........"
(b) In (1996) 3 SCC 157 : (1996) 2 MLJ 54 : 1996-II LLJ 245 (Secretry to Government, Prohibition and Excise Department v. L.Srinivasan) the Supreme Court held that charges cannot be quashed only on the ground of delay.
(c) In 2007 AIR SCW 1639 (Government of A.P. And Others v. V.Appala Swamy) the Supreme Court considered similar issue and held as follows:
"10. So far as the question of delay in concluding the departmental proceedings as against a delinquent officer is concerned, in our opinion, no hard and fast rule can be laid down therefor. Each case must be determined on its own facts. The principles upon which a proceeding can be directed to be quashed on the ground of delay are:
(1) Where by reason of the delay, the employer condoned the lapses on the part of the employee.
(2) Where the delay cause prejudice to the employee.
Such a case of prejudice, however, is to be made out by the employee before the Inquiry Officer.
11. ...........................
12. Learned counsel appearing on behalf of the respondent, however, placed strong reliance on a decision of this Court in M.V.Bijlani v. Union of India and Others (2006) 5 SCC 88 : 2006-II LLJ 800. That case was decided on its peculiar facts. In that case,even the basic material on which a departmental proceedings could be initiated was absent. The departmental proceedings was initiated after 6 years and continued for period of 7 years. In that fact situation, it was held that the appellant therein was prejudiced.
13. M.V.Bijlani v. Union of India and Others (supra), therefore, is not an authority and, in fact, as would appear from the decision in P.D.Agarwal (supra), for the proposition that only on the ground of delay the entire proceedings can be quashed without considering the other relevant factors therefor."
(Emphasis Supplied) Applying the above said decisions to the facts of this case, the two issues are decided against the petitioner.
11. In fine, the writ petition is dismissed. No costs. Connected miscellaneous petitions are also dismissed.
VJY/vr To
1. The Inspector General of Registration, Santhome High Road, Chennai 600 028.
2. The Deputy Inspector General of Registration cum- Enquiry Officer, Coimbatore Division, Coimbatore.
3. The District Registrar(Administration) Tiruppur