Central Administrative Tribunal - Hyderabad
Janumula Madhu Babu vs Department Of Atomic Energy Hq on 12 April, 2022
OA/447/2021
CENTRAL ADMINISTRATIVE TRIBUNAL
HYDERABAD BENCH, HYDERABAD
OA/021/447/2021
Date of CAV : 31.03.2022
Date of pronouncement:12.04.2022
Hon'ble Mr. Ashish Kalia, Judl. Member
Hon'ble Mr. B V Sudhakar, Admn. Member
Janumula Madhu Babu S/o J Janumantha Rao,
Aged about 49 years, Occ: Scientific Officer- E, Group-A,
H.No.23-5-630/1, Lal Darwaza,
Hyderabad- 65.
...Applicant.
(By Advocate: Mr. P Ravi Kiran)
Vs.
1. Union of India, represented by
its Under Secretary to the Government of India,
Vigilance Section,
Department of Atomic Energy,
Anushakthi Bhavan, C.S.M. Marg, Mumbai- 400 001.
2. The Controller,
Central Complex, BARC,
Trombay, Mumbai- 400 085.
3. The Chief Administrative Officer(p),
Central Complex, BARC,
Trombay, Mumbai- 400 085.
... Respondents.
(By Advocate: Mr. V Vinod Kumar, Sr. PC to CG)
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OA/447/2021
ORDER
(As per Hon'ble Mr. Ashish Kalia, Judl. Member) Through Video Conferencing:
This application has been filed under Section 19 of the Administrative Tribunals Act, 1985 seeking the following relief:
"That this Hon'ble Tribunal may be pleased to declare the inquiry proceedings No.VIG-V15/12/2018-VIG-DAE/5544 dt. 4/5/2021 where in an inquiry has been ordered to be conducted against the applicant herein under Rule 14 of CCS(CCA) Rules, 1965 as illegal, arbitrary and not maintainable and consequently direct the respondents to drop the said proceedings and pass such other order or orders as this Hon'ble Tribunal deem fit and proper in the circumstances of the case"
2. I) The brief facts of the case are that the applicant is working as Scientific Officer-E in the respondents' organization. On 22.01.2018, a criminal case was filed against the applicant vide Crime No. 53/2018 at Saroor Nagar Police Station. On 28.05.2018, the applicant was arrested u/s 417, 493, 496, 376(1) IPC & Section 3(2)(V) of SC/ST Amendment Act, 2015 under the charges of rape, cohabitating, harassing/exploiting sexually and cheating a Scheduled Caste Women. He was sent to judicial remand for a period of nine days and, on 07.06.2018, he was released on bail. As the applicant was detained in police custody for a period exceeding 48 hours, the Department, vide Order dt. 25.07.2018, placed the applicant under deemed suspension w.e.f. 28.05.2018. The applicant has challenged the order of suspension before this Tribunal by way of OA No.897/2018 and, this Tribunal, vide Order dt. 05.02.2019, allowed the OA and the order of suspension was revoked as under:
"10. In the instant case, however, the charge does not relate to any misconduct of the applicant in discharge of his official duties, it is outside of the purview of the discharge of the duties. The charge basing on which the applicant was suspended relates Page 2 of 12 OA/447/2021 to a criminal offence which had arisen owing to some disputes with his wife. The said charge has to be only tried by a competent criminal court. It may not be necessary for the department to issue a charge memo in respect of the said charge and initiate departmental proceedings against the applicant. However, the stand taken by the respondents that the suspension would be revoked only basing on the outcome of the criminal case does not stand to reason. The disposal of a criminal case may take a considerable long time and it would not be appropriate to keep the applicant under suspension till such time. Keeping the applicant under suspension for an indefinite period conducting mechanical reviews is opposed to law. Since the charge sheet is filed against the applicant and as the charge does not relate to the discharge of the official duties of the applicant, the order of suspension needs to be revoked, otherwise it would cause much hardship and huge loss to the applicant. Therefore, we are of the considered view that the order of suspension passed by the department is liable to be revoked.
11. Consequently, the order dt. 24.08.2018 by which the suspension is extended is set aside and thereby the order of suspension is revoked. The Original Applicant is allowed accordingly. No order as to costs."
II) Thereafter, the respondents, vide Memorandum dt. 04.05.2021, ordered inquiry under Rule 14 of CCS(CCA) Rules, 1965 and two Articles of charge were framed against the applicant and he was asked to give his explanation within 10 days. The Articles of Charge are as under:
"ARTICLE - I It is alleged that Shri J Madhu Babu, Scientific Officer/E, Mineral Processing Division, Bhabha Atomic Research Centre, Hyderabad, while having a spouse living got acquainted with one Smt. Begari Saraswathi, D/o. Balaiah, Aged-28 years, Housewife N/o. H.No.1-1-85, Kotrepally(V), Vikarabad(M&Dist.), belonging to SC(Mala) Community, lured her on the pretext of marriage and through deceitful means sexually exploited her at his residence. Shri Madhu Babu later married her in a temple, cohabitated and on her conception, threatened her to abort the pregnancy by giving her pills.
By his aforesaid conduct, the said Shri J Madhu Babu has violated the provisions of Sub rule(1) of Rule 21, failed to maintain high ethical standards and honesty thereby committed an offence involving moral turpitude and acted in a manner unbecoming of a Government servant contravening the provision of clause (iii) and (vi) of sub-rule (1) of Rule 3 of Central Civil Services (Conduct) Rules, 1964.Page 3 of 12
OA/447/2021 ARTICLE - II It is alleged that the local newspaper 'Deccan Chronicle', Hyderabad edition dated 29.05.2018 published an article on the arrest of a Government employee, identified as Shri J. Madhu Babu, an employee of BARC's Scientific Wing, by the Saroor Nagar police for allegedly raping a woman and a case pertaining to rape and cheating being booked against him under relevant sections of the Indian Penal Code.
By his aforesaid conduct, the said Shri J. Madhu Babu has tarnished the image and brought disrepute to the organization, viz. Bhabha Atomic Research Centre. Shri Madhu Babu has indulged in activities contrary to law, rules, regulations and established principles and thus acted in a manner unbecoming of a Government servant thereby contravening the provisions of
(iii) and (xviii) of sub-rule (1) of Rule 3 of Central Civil Services (Conduct) Rules, 1964."
III) The applicant submitted reply to the respondents denying the Articles of charge against him. The applicant's counsel submitted that the charges does not relate to any misconduct in his official duties, as mentioned by this Hon'ble Tribunal in Order dt. 05.02.2019 and the respondents have initiated departmental proceedings after three years of registration of the FIR. The applicant was falsely implicated in a criminal case as the complainant, in the said case wanted to occupy the position of his wife, taking advantage of his situation. The applicant, whose age is 47 years, is married with two children and, due to some matrimonial disputes, his wife has been staying away from him. He further stated that during the period in dispute in criminal case, the applicant went outstation on official work. The Articles of charge framed against the applicant are absolutely false and denied the allegations made on him. He reiterated that the applicant has neither committed any offence nor contravened any provisions as mentioned in the Articles of charge for unbecoming a Government servant. The applicant's counsel further submitted that the Page 4 of 12 OA/447/2021 basic principle underlying in criminal law is that guilt of the accused has to be established beyond reasonable doubt and, when the criminal case itself is not completed, conducting departmental inquiry after three years of registration of criminal case is not maintainable. He stated that a false criminal case has been filed against him and he is a victim of the case and, the reality would be revealed only after final adjudication of the case.
(IV) The applicant's counsel has relied upon the following judgments to support his case:
The Principal Bench of this Tribunal in the case of Dr. Pankaj Kumar Vs. M/o Railways in OA No.3139/2018 dt. 26.11.2018, held as under:
"6. However, if the charges in both the sets of proceedings are almost identical, and the nature of the evidence, i.e., the list of witnesses and list of documents are almost similar, it is essential that the departmental proceedings are deferred till the conclusion of the criminal case."
The Hon'ble Supreme Court in the case of Senior Supdt. of Post Offices Vs. A. Gopalan [1997 11 SCC 239] decided on 21.02.1997, held as under:
"This Court has further held that in a criminal case, charge has to be proved by the standard of proof beyond reasonable doubt while in departmental proceedings the standard of proof for proving the charge is preponderance of probabilities."
In the case of Tata Oil Mills Co. Ltd. Vs. ITS Workmen [1965 AIR 155] decided on 31.03.1964, the Hon'ble Supreme Court held as under:
"As this Court has held in the Delhi Cloth and General Mills Ltd. v. Kushal Bhan,(1) it is desirable that if the incident giving rise to a charge framed against a workman in a domestic enquiry is being tried in a criminal court, the employer, should stay the domestic enquiry pending the final disposal of the criminal case."Page 5 of 12
OA/447/2021 In the case of Capt. M. Paul Anthony Vs. Bharat Gold Mines Ltd. & Anr. decided on 30.03.1999, the Hon'ble Supreme Court has held as under:
"Since the facts and the evidence in both the proceedings, namely, the departmental proceedings and the criminal case were the same without there being any iota of difference, the distinction, which is usually drawn as between the departmental proceedings and the criminal case on the basis of approach and burden of proof, would not be applicable to the instant case."
The Hon'ble High Court of Madhya Pradesh, in the case of Harish Chandra Hinuia Vs. Food Corporation of India & Ors, in WP No. 453/2022 decided on 07.02.2022, prohibited the department from conducting departmental proceedings and held as under:
"If proceedings in a criminal trial and the proceedings in a departmental are based on identical charge and, if the departmental enquiry is allowed to proceed, it will cause grave prejudice to the defence of the accused in criminal trial."
He submitted that the charges framed in the departmental proceedings are identical to that of criminal case and prayed to stay the departmental proceedings till the completion of the proceedings in the criminal case.
3. I) Notices were issued. Mr. V Vinod Kumar, learned counsel has filed a detailed reply. He submitted that one, Smt. Begari Saraswathi, lodged complaint against the applicant at Saroornagar PS, Rachakonda Police Commissionerate on 22.01.2018 alleging that she was sexually exploited on pretext of false marriage and the criminal case is pending. After reiterating the facts of the case, it is submitted that the Competent Authority decided to initiate disciplinary action against the applicant by Page 6 of 12 OA/447/2021 issuing Charge Memorandum under CCS(CCA) Rules, 1965 and, accordingly, they initiated proceedings vide Memorandum dt. 04.05.2021. The applicant has submitted a Written Statement of Defense dt. 16.06.2021 denying the charges in the Charge-sheet. It is submitted that, in terms of Central Vigilance Commission Circular No.08/07/2018 dt. 31.07.2018, the Disciplinary Authority has been vested with the powers to carry out its statutory duty/obligations by initiation of appropriate departmental actions. This is to ensure that a delinquent public servant does not get undue benefit either by the long pendency of court proceedings or by the higher standard of proof required as it is to protect innocent public servant from vexatious proceedings. It is not open to the Disciplinary Authorities to await the outcome or decision of investigating/prosecuting agency or the Court trial. Further, a view as to whether simultaneous disciplinary proceedings are to be initiated need to be invariably taken by the Competent Authorities at the time of considering the request for grant of sanction for prosecution itself. If the charge in the criminal case 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. Further, even if stayed at one stage, the decision may require reconsideration, if the criminal case gets unduly delayed.
II) He further submitted that the DoPT OM dt. 01.08.2007 have also clarified that stay of disciplinary proceedings is not a must in every case, where there is a criminal trial on the very same charges and the concerned authority may decide on proceedings with the departmental Page 7 of 12 OA/447/2021 proceedings after taking into consideration the facts and circumstances of each case and the guidelines given by the Hon'ble Supreme Court.
III) The contention of the applicant that he was implicated in a false criminal case cannot be accepted as the matter is sub-judice before the Hon'ble Criminal Court. And, as per the Charge-sheet dt. 07.08.2018 filed by the Saroor Nagar Police Station, the applicant has confessed to have committed offence and pleaded guilty of offence during the interrogation by the Assistant Commissioner of Police, L B Nagar Division, Rachakonda, Hyderabad.
IV) The respondents have relied upon the following judgments to support their case:
The Hon'ble Supreme Court in the case of Capt. M Paul Anthony(supra), in which it was held as under:
"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, administration may get rid of him at the earliest.".
The Hon'ble Supreme Court in the case of Ajit Kumar Nag Vs. G.M. (P.J.), Indian Oil Corporation Ltd. [(2005) 7 SCC 764) in Appeal(Civil) No. 4544 of 2005 decided on 19.09.2005, held as under:
"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 a Page 8 of 12 OA/447/2021 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 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."
The Hon'ble Supreme Court in the case of Hindustan Petroleum Corporation Ltd. & Os. Vs. Sarvesh Berry in C.A. No.7980 of 2004 decided on 09.12.2004, held as under:
"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 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 proceedings 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 Page 9 of 12 OA/447/2021 of proof or applicability of the Evidence Act stands excluded is a settled legal position."
The Hon'ble Bombay High Court in the case of Prashant Rao Saheb Chormale Vs. Punyaaslok Ahilyadevi Holkar, Solapur University in W.P. No.3072 of 2021 decided on 22.07.2021, held as under:
"In this case, the Petitioner has to file reply to the charge-sheet issued by the Respondent for conducting departmental enquiry. We are not inclined to interfere with the departmental enquiry in this Writ Petition. The time to file reply to the charge sheet granted to the Petitioner in the departmental enquiry, is extended by two weeks from today."
V) In view of the submissions made and based on DoPT OM dt. 01.08.2007, Central Vigilance Commission Circular dt. 31.07.2018 and the judgments relied upon, the respondents prayed to dismiss the OA.
4. Heard the learned counsels for the parties at length and perused the pleadings on record.
5. The short issue raised in the present original application is whether the charges framed against the applicant are identical or distinct in nature and simultaneous proceedings can be continued or not. Coming to the legal position, in recent judgments, in the cases of SBI & Ors. Vs. Neelam Nag & Anr. (2016 9 SCC 491) & Stanzen Toyotetsu India Private Limited Vs. Girish V & Ors on 21.1.2014, the Hon'ble Supreme Court observed that 'simultaneous proceedings can continue. But leverage is granted to the Tribunals and Courts to see on case to case basis.' The relevant portion of Stanzen Toyotetsu(supra) is re-produced below:
".......Although the pronouncements of this Court have stopped short of prescribing any strait-jacket formula for application to all cases the decisions of this Court have identified the broad approach to be adopted in such Page 10 of 12 OA/447/2021 matters leaving it for the Courts concerned to take an appropriate view in the peculiar facts and circumstances of each case that comes up before them. Suffice it to say that there is no short cut solution to the problem. What is, however, fairly well settled and was not disputed even before us is that there is no legal bar to the conduct of the disciplinary proceedings and a criminal trial simultaneously. In Depot Manager, Andhra Pradesh State Road Transport Corporation vs. Mohd. Yousuf Miyan (1997) 2 SCC 699, this Court declared that the purpose underlying departmental proceedings is distinctly different from the purpose behind prosecution of offenders for commission of offences by them. While criminal prosecution for an offence is launched for violation of a duty that the offender owes to the society, departmental enquiry is aimed at maintaining discipline and efficiency in service. The difference in the standard of proof and the application of the rules of evidence to one and inapplicability to the other was also explained and highlighted only to explain that conceptually the two operate in different spheres and are intended to serve distinctly different purposes. The relatively recent decision of this Court in Divisional Controller, Karnataka State Road Transport Corporation v. M.G. Vittal Rao (2012) 1 SCC 442, is 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."
6. In the instant case, the charges framed against the applicant in the criminal case are of rape, cohabitating, harassing/exploiting sexually and Page 11 of 12 OA/447/2021 cheating a Scheduled Caste Woman and, the charges framed in the departmental proceedings are of immoral attitude. Both the charges i.e. charges in criminal case and departmental proceedings are of distinct in nature and not at all identical, as claimed by the applicant's counsel. Thus, we are of this opinion that there is no bar for holding simultaneous proceedings.
7. This Tribunal, after considering the legal position as well as facts and circumstances of the case, feels that the present OA lacks merits and the same is liable to be dismissed. Accordingly, the OA is dismissed without any order as to costs.
(B.V. SUDHAKAR) (ASHISH KALIA)
ADMINISTRATIVE MEMBER JUDICIAL MEMBER
/Ram/
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