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S.Padmanaban vs Joint Commissioner Of Police on 10 July, 2018

IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 10.07.2018
CORAM :
THE HONOURABLE MR. JUSTICE S.M.SUBRAMANIAM
W.P.No.26122 of 2015
and
W.M.P. No.3184 of 2016
M.P.No. 1 of 2015

S.Padmanaban … Petitioner

Vs.
1.Joint Commissioner of Police
Traffic North, Veppery
Chennai – 600 007.

2.Deputy Commissioner of Police
Traffic (North) District
Thousand Lights
Chennai – 600 006.

3.Assistant Commissioner of Police
Traffic Madhavaram Sub-Division
Madhavaram, Chennai – 600 060.

4.Assistant Commissioner of Police
Traffic Investigation West
Annanagar, Chennai – 600 040. .. Respondents

Prayer Petition filed under Article 226 of the Constitution of India, to issue a Writ of Certiorari, to call for the records relating to the impugned order passed by the third respondent herein in his proceedings Tha.Ko.No.14/Po.Va. Tha.Pi/14, u/r.3(b) dated 04.02.2014 and quash the same.

For Petitioner : Mr.G.Bala for M/s.Bala and Daisy

For Respondents : Mrs.A.Sri Jayanthi
Special Govt. Pleader
O R D E R

The charge memo issued against the writ petitioner in proceedings dated 04.02.2014 is under challenge in this writ petition.

2.The writ petitioner is serving as a Head Constable in Traffic Planning Unit, New Commissioner Office, Chennai City. On account of certain family disputes a criminal case was registered against the writ petitioner in Crime No.9 of of 2013 before the All Women Police Station, Villivakkam, under Section 498A, 506(i) and Section 4 of Dowry Prohibition Act.

3.The learned counsel appearing on behalf of the writ petitioner made a submission that the criminal case registered is now transferred to the Court at Tuticorin and the criminal case is still pending. Under these circumstances, the third respondent issued a memorandum of charge against the writ petitioner in proceedings dated 04.02.2014. The charges against the writ petitioner are provided in Annexure I of the charge memorandum and the same is extracted hereunder.

Fw;wr;rhl;L 1/ gpiHahsp jpU/gj;kehgd; K/ep/fh/ 19976. nghf;Ftuj;J xd;wpak;. brd;id nghf;Ftuj;J fhty;. Mfpa ck;ik V1 tpy;ypthf;fk; midj;J kfsph; fhty; epiya Fw;w vz; 09-2013 rl;ltpjpfs; 498 (m). 506 (i) ,/j/r kw;Wk; 4 tujl;rpid bfhLik rl;lg;gphptpd; fPH; gjpt[ bra;ag;gl;l tHf;fpy; ,uz;lhtJ vjphpahf Fw;wk; rhl;lg;gl;Ls;sJ/ ,t;thW tujl;riz bfhLikf;F vjpuhd rl;lj;ij mKy;gLj;Jk; fhty;Jiwapy; gzpg[hpa[k; ePnu tujl;rpidf;F vjpuhf gjpt[ bra;ag;gl;l tHf;fpy; ,uz;lhtJ vjphpahf ,Ue;j bray; xGf;fKk; fl;Lg;ghLk; epiwe;j fhty;Jiwapy; jkpH;ehL rhh;epiy fhty; mYtyh; elj;ij tpjpfs; 1964 (murhiz epiy vz;/3538 cs;Jiw ehs; 04/11/1964) tpjp 4 (5) (i) kw;Wk; (ii) d;go fz;of;fj;jf;f Fw;wk;/

Fw;wr;rhl;L 2/ xGf;fKk; fl;Lg;ghLk; epiwe;j fhty;Jiwapy; gzpapy; ,Ue;J bfhz;L ckJ nkw;go xG’;fPdkhd braYf;fhf J}j;Jf;Fo khtl;l g[Jf;nfhl;il midj;J kfsph; fhty;epiya Fw;w vz;/03-2013 tujl;rpiz vjpuhd rl;lg;gphpt[ 498 (m). kw;Wk; 4 kw;Wk; 506 (i) ,/j/r gphptpd; fPH; gjpt[ bra;ag;gl;l tHf;fpy; ,uz;lhk; vjphpahd ePh; mjid ckJ cah; mjpfhhpfSf;F Kiwg;go bjhptpf;fhky; jd;dpr;irahf ,Ue;j bray; jkpH;ehL muR gzpahsh;fs; elj;ij tpjpfspd; go fz;of;fj;jf;f Fw;wk;/

4. Annexure 2 to the Charge memo provides statement of allegations and imputations of misconducts substantiating the charges. Annexure 3 provides list of witnesses to be examined and Annexure 4 provides the list of documents relied upon for the purpose of framing the charge memo against the writ petitioner. The writ petitioner has moved the present writ petition challenging the charge memo on the ground that he is no way connected with the allegations set out either in the criminal case or in the disciplinary proceedings in the impugned charge memo. The dispute was between the family members more specifically the brother of the writ petitioner and his brother’s wife. Therefore, the petitioner is no way connected with the disputes between his brother and his wife and he was unnecessarily implicated in the criminal case and subsequently the departmental proceedings were initiated under the Discipline and Appeal Rules.

5. This court is of an opinion that this contention raised on behalf of the writ petitioner in respect of the merits and demerits of the circumstances cannot be adjudicated in the writ proceedings under Article 226 of the Constitution of India.

6. Disputed facts can never be adjudicated in a writ proceedings. All such disputed facts are to be adjudicated either before the Competent Criminal Court or before the disciplinary authority at the time of conducting a trial enquiry. Such being the legal principles to be followed, the court has to consider whether the charge memo issued against the writ petitioner can be quashed in the given circumstances.

7. A Charge memo or a show cause notice shall be quashed in a writ proceedings only in the event of establishing that the charge memo has been issued by an incompetent authority having no jurisdiction or an allegation of malafides, the authorities against whom such an allegation is raised is to be impleaded as party respondent in the writ proceedings in his personal capacity. In the absence of any one of these legal grounds, no writ can be entertained in a routine manner.

8. Judicial review against the charge memo is certainly limited and the disciplinary authority on initiation of disciplinary proceedings against public servant must be vigilant and they must conclude the same within a reasonable period of time. The disciplinary proceedings initiated against the public servant will cause prejudice in respect of their further promotion and settlement of their terminal and pensionary benefits. Thus, the disciplinary proceedings initiated must be concluded without causing any undue delay. Any further unnecessary delay in concluding the departmental proceedings will prejudice the right of the writ petitioner.

9. This court is of an opinion that institutional respects are to be maintained. Intermittent intervention in official proceedings need not be entertained in a routine manner. Only on exceptional circumstances, the High Court can interfere during the intermittent period when the disciplinary proceedings are pending against a public servant. Disciplinary proceedings must be allowed to conclude in all respects and it is to be ensured that such conclusion should be arrived as early as possible and within a reasonable period of time. Prolonged pendency also not preferable. Long pendency of disciplinary proceedings will cause prejudice to the rights of public servants and pending disciplinary proceedings is bar for the promotion. Even the retirement benefit is not settled and therefore on initiation of disciplinary proceedings, the disciplinary authority must be cautious and dispose of the same at the earliest possible time and without causing any undue delay. However, in the present writ petition, the criminal case against the writ petitioner is pending. Therefore, the authorities have to consider two circumstances. If the department is in possession of the required documents, evidences and materials enabling the disciplinary authorities to proceed with the departmental proceedings, then they are at liberty to proceed with the same without awaiting the final judgment of the criminal case registered against the writ petitioner. If there is no material available enabling the disciplinary authorities to proceed with the departmental proceedings in respect of the charge memo framed against the writ petitioner then the disciplinary authority shall take a decision and keep all further disciplinary proceeding in abeyance till the final judgment to be delivered in the criminal case or till the disposal of the criminal case. All further action shall be restored after disposal of the criminal case now pending before the competent criminal court. Thus, the departmental authorities are duty bound to take a decision either to keep the disciplinary proceedings in abeyance or to conclude the same based on the available record in the department and the same has to be disposed by the competent Authorities and accordingly, to proceed with the impugned charge memo framed against the writ petitioner.

10. The learned counsel appearing on behalf of the writ petitioner made a submission that the nature of the allegations both in the criminal case as well as in the departmental proceedings are one and the same and therefore, the departmental proceedings are to be kept in abeyance till the criminal case is disposed of.

11. A mere pendency of a criminal case alone, cannot be a bar for proceeding with the departmental proceedings. The standard of proof required before the Criminal Court, is high in nature and even preponderance of probabilities are sufficient to punish an employee under the Discipline and Appeal Rules.

12. Government servants play a significant role in running the administration of the country. They are important constituents of the 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.

13. The departmental authorities are free to exercise such lawful powers as are conferred on them by the departmental rules and regulations.

14. 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 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.

15. 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.

16. 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 proceeding 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 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.

17. 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.

18. 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.

19. 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 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.

20. 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 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.

21. 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 ‘preponderance of probability’.

22. 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.

23. 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 (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)

24. 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 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.

25. Such being the view of this Court, no further adjudication on merits is to be undertaken in this writ petition. Accordingly, the writ petition stands dismissed. However, there shall be no order as to costs. Consequently, connected miscellaneous petition is also dismissed.

10.07.2018
maya

Index : Yes
Internet : Yes
Speaking order/non-speaking order

To

1.Joint Commissioner of Police
Traffic North, Veppery
Chennai – 600 007.

2.Deputy Commissioner of Police
Traffic (North) District
Thousand Lights
Chennai – 600 006.

3.Assistant Commissioner of Police
Traffic Madhavaram Sub-Division
Madhavaram, Chennai – 600 060.

4.Assistant Commissioner of Police
Traffic Investigation West
Annanagar, Chennai – 600 040.

S.M.SUBRAMANIAM.J,
maya

W.P. No.26122 of 2015

Dated : 10.07.2018

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