W.P.No.32894 of 2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 13.09.2022
CORAM :
THE HONOURABLE MR. JUSTICE S.M.SUBRAMANIAM
W.P.No.32894 of 2017
and
W.M.P.No.36264 of 2017
and
W.M.P.No.13878 of 2019
G.Chithra ... Petitioner
Vs.
1.The Deputy Inspector General of Police,
Salem Range, Salem. ... Respondent
Prayer: Writ Petition filed under Article 226 of the Constitution of India
for issuance of a Writ of Certiorari, to call for the records pertaining to the
charge memo issued by the respondent herein in his P.R.No.87/G1/ 2017
u/r 3(b) dated 04.10.2017 and quash the same.
For Petitioner : Mr.Ravishanmugam
For Respondent : Mr.K.H.Ravikumar
Government Advocate
ORDER
The charge memorandum issued to the writ petitioner under Rule 3(b) of the Tamil Nadu Police Subordinate Service (Discipline and Appeal) Rules, 1955, in proceedings dated 04.10.2017 is under challenge in the present writ petition.
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2. The writ petitioner joined as Sub-Inspector of Police on 16.09.2004 and regarding the allegations of demand and acceptance of bribe, a Criminal Case was registered against him by the Department of Vigilance and Anti-Corruption Detachment, Krishnagiri District in Crime No.04/AC/2011 under Section 7 & 13 of the Prevention of Corruption Act.
3. The learned counsel for the petitioner made a submission that the charge sheet has been already filed before the competent Criminal Court of law and the Criminal Case is yet to be disposed of. While so, the departmental disciplinary proceedings was initiated under Rule 3 (b) of the Tamil Nadu Police Subordinate Service (Discipline and Appeal) Rules, 1955, against the writ petitioner.
4. The learned counsel for the writ petitioner mainly contended that the allegations set out in the departmental disciplinary proceedings and the documents and evidences relied on are one and the same with reference to the Criminal Case registered against the writ petitioner under the Prevention of Corruption Act. Thus, the departmental disciplinary proceedings are to be kept in abeyance till the final disposal of the Criminal Case, which is now pending before the competent Court of law. https://www.mhc.tn.gov.in/judis Page 2 of 13 W.P.No.32894 of 2017
5.In view of the complex nature of issues raising doubt in the minds of the disciplinary authority, this Court is inclined to summarize the following principles, which are all to be followed in the cases of simultaneous proceedings (i.e., departmental disciplinary proceedings and criminal cases).
(a) It is a settled law that criminal case and the departmental disciplinary proceedings may be initiated simultaneously as the case may be;
(b) an order of suspension, if required, may be issued in the prescribed format as per the rules;
(c)if the records and evidences are available with the disciplinary authority, then without any loss of time, charge memorandum shall be issued and the disciplinary proceedings may go on;
(d)The question to be considered is whether simultaneous proceedings may go on or not?;
(e)The departmental domestic enquiry and the criminal trial shall proceed simultaneously and the decision in the criminal case would not materially affect the outcome of the domestic enquiry;
https://www.mhc.tn.gov.in/judis (f) The nature of both proceedings and the test applied Page 3 of 13 W.P.No.32894 of 2017 to reach final conclusion in the matter are entirely different.
(g)If the case involves complicated questions of fact and law and the disciplinary authority is not in possession of the required materials for the purpose of conducting enquiry, then administrative decision may be taken to keep the departmental proceedings in abeyance till the disposal of the criminal case. However, the advisability and desirability has to be determined considering the facts of each case by the authority concerned. Therefore, it would be expedient that the disciplinary proceedings are conducted and completed as expeditiously as possible.
(h)There is no legal bar for both proceedings to go on simultaneously.
(i) Acquittal by a criminal Court would not debar an employer from exercising power in accordance with service 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 departmental enquiry proceedings is to deal with the delinquent departmentally and to impose https://www.mhc.tn.gov.in/judis Page 4 of 13 W.P.No.32894 of 2017 penalty in accordance with service rules.
(j) In the criminal case, the 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'. To convict a person under criminal law, high standard of proof is required. Even the benefit of doubt would be a benefit for the accused in a criminal case. However, no such strict proof is required in a departmental disciplinary proceedings. Therefore, there is absolutely no bar for the respondents to continue the departmental disciplinary proceedings and conclude the same and pass final orders.
(k)An order of conviction if any passed in the criminal case or in criminal appeal, after disposal of the disciplinary proceedings, then if necessary the Head of the department or the Government may exercise the power of review as the case may be under the relevant rules.
https://www.mhc.tn.gov.in/judis (l) Order of acquittal if at all passed in the criminal case Page 5 of 13 W.P.No.32894 of 2017 or in criminal appeal, the same would not affect the final orders already passed in the departmental disciplinary proceedings based on the domestic enquiry conducted, in view of the fact that acquittal in a criminal case cannot be a ground for seeking exoneration from the departmental disciplinary proceedings.
(m)If the criminal case was registered under the Prevention of Corruption Act, 1988 and if the original records are seized by the investigating agency, then the disciplinary authority may obtain the true copies of the documents and proceed with the departmental disciplinary proceedings.
(n)As far as the departmental corruption allegations are concerned, it is not necessary that the disciplinary authority should wait for the final disposal of the criminal case registered under the Prevention of Corruption Act, 1988.
6. Corruption becomes way of life which is deep-rooted almost in all levels. An effortful action is to be progressed in order to control the corrupt activities both in public life as well as amongst the public servants. Only in non-corrupt public administration, we can preserve the values of constitutional rights of the citizen. In a corrupt administration, the rights https://www.mhc.tn.gov.in/judis Page 6 of 13 W.P.No.32894 of 2017 of the citizen are not protected in its complete sense. Thus, providing a non-corrupt administration by the State / Union is also an integral part of the constitutional mandates. For instance, in a corrupt public administration, citizen may not get equal opportunity for employments, promotions and in all fields of developmental activities.
7. Ample Anti-Corruption laws are enacted and in force in our great Nation. However, effective and efficient implementation of those laws are lacking, on account of the fact that corrupt activities are widespread in public administration. Inactions, commissions and omissions, lack of expertise and delay in investigations are vital reasons. The slackness and lacunas in the system encourages the corrupt executives. Thus, it is duty mandatory on the part of the State to establish a sound and sufficient Vigilance and Anti-Corruption Wings for the effective and efficient implementation of Anti-Corruption laws.
8. Shockingly, even in the Department of Vigilance and Anti- Corruption, the corrupt activities are noticed. If the situations are allowed to go on in this manner, undoubtedly, it would affect the development of our great Nation and a wrong message is sent to the future generations of our Country. The evil consequences will undoubtedly shake the pillars of https://www.mhc.tn.gov.in/judis Page 7 of 13 W.P.No.32894 of 2017 the democratic principles. This Court is of the considered opinion that no writ petition against a charge memo needs to be entertained in a routine manner. A writ against a charge memo may be entertained only on certain limited grounds, if the charge memo is issued by the Authority having no jurisdiction or the charge memo is wholly illegal. In all other circumstances, the delinquent official has to participate in the procedure of disciplinary proceedings and establish his innocence or otherwise.
9. The charge memo is not liable to be quashed as it does not adversely affect the rights of an employee and does not give rise to any cause of action. A writ lies only when some right of a party is infringed. The charge memo does not infringe the right of a party. It is only when a final order imposing punishment or otherwise, it may have a cause of action. Hence, Writ Petition, challenging charge sheet by itself is not maintainable. However, it can be quashed on the ground that issuing authority being not competent to issue the same.
10. Government servants play a significant role in running the administration of our great Nation. They are important constituents of the administrative setup of the Nation. They are pillars of the Government Departments on whose shoulders the responsibility to implement the https://www.mhc.tn.gov.in/judis Page 8 of 13 W.P.No.32894 of 2017 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 the higher for their effective resolution. The Government employees have different work culture and responsibilities as compared to the counterparts in private sector. They are smartly played and they have some kind of perquisites given to them, but at the same time, they have heavy responsibilities to the Government in particular and public in general.
11. As far as the charge memo is concerned, the same cannot be quashed, as it must be continued even if the petitioner is acquitted from the criminal case. As the principles are discussed in the aforementioned paragraphs, the authorities are bound to follow the same and if the records and evidences are available, proceed with the disciplinary proceedings and if it is not available, wait till the criminal case is concluded. The petitioner till such time shall be posted in non-sensitive post.
12. Based on the orders passed by this Court in W.P.No.14356 of 2019 dated 08.02.2022, the Government also issued orders in G.O.Ms.No.66, Human Resources Management [N] Department dated 06.07.2022. The Government Order provides guidelines in the matter of https://www.mhc.tn.gov.in/judis Page 9 of 13 W.P.No.32894 of 2017 simultaneous departmental disciplinary proceedings for the same set of charges.
13. Even regarding the interference of Courts in the departmental disciplinary proceedings or in the event of imposing punishment based on the departmental disciplinary proceedings, the Hon'ble Supreme Court of India distinguished by holding that acquittal in a criminal case cannot be a ground to quash the punishment imposed in a departmental disciplinary proceedings by conducting an enquiry. The proposition in this regard was clearly ruled by the Apex Court in the case of The State of Rajasthan & Ors., Vs. Phool Singh, reported in 2022 LiveLaw (SC) 735 and the observations are as under:
“7. The question before this Court is therefore only to see whether the respondent can be reinstated in service for the reason that now on the same set of charges he has been acquitted by a criminal court?
8. There should be no ambiguity in law on this subject. A departmental proceeding is different from a criminal proceeding. The fundamental difference between the two is that whereas in a departmental proceeding a delinquent employee can be held guilty on the basis of “preponderance of probabilities”, in a criminal court the prosecution has to prove its case “beyond reasonable doubt”. In short, the difference between the two proceedings https://www.mhc.tn.gov.in/judis Page 10 of 13 W.P.No.32894 of 2017 would lie in the nature of evidence and the degree of its scrutiny. The two forums therefore run at different levels. For this reason, this Court has consistently held that merely because a person has been acquitted in a criminal trial, he cannot be ipso facto reinstated in service.
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In the above case a distinction has also been drawn by this Court between a “criminal offence” and “misconduct”. One has to be proved in a criminal court, the other in a departmental proceeding, and though both may arise from the same set of facts, yet there is a clear distinction between the two and merely because one has been acquitted in a criminal trial, it would not amount to a reversal of the findings of “misconduct”, which were arrived in a departmental proceeding.”
14. In view of the facts and circumstances, there is no impediment for the respondents to continue the departmental disciplinary proceedings by following the principles laid down by this Court and with reference to the judgments cited supra. The petitioner is at liberty to defend his case by availing the opportunities to be provided as contemplated under the Discipline and Appeal Rules.
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15. With these observations, the writ petition stands dismissed. No costs. Connected miscellaneous petitions are closed.
13.09.2022 kak Index : Yes Speaking order : Yes To
1.The Deputy Inspector General of Police, Salem Range, Salem.
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