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W.P. No. 24691 of 2022
THE HON'BLE SMT. JUSTICE P. MADHAVI DEVI
W.P. No.24691 of 2022
ORDER:
1. This writ petition is filed by the petitioner seeking a Writ of Mandamus declaring the action of Respondent No.2 in issuing the impugned charge memo vide memo vide C.No. 6/ACB-A4/PR/2021 dated 30-08-2021 along with Articles of Charges framed against the petitioner as illegal, arbitrary and in violation of principles of natural justice and consequently to direct the respondent No.3 not to conduct the disciplinary proceedings pending enquiry in Criminal Case in FIR No. 03/ACB-KNR/2022; dated 22-03-2022 on the file of the Honb'e Special Judge for SPE & ACB Cases, Karimnagar and to pass such other order or orders as this Court may deem fit and proper in the circumstances of the case.
2. Brief facts leading to the filing of the present Writ Petition are that the petitioner was initially appointed as Sub Inspector of Police in the year 1996, after due selection process. He worked at various places in Khammam District as Sub Inspector of Police till his promotion as Inspector of Police in the year 2010. 2
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3. The petitioner worked as Inspector of Police at Khanapur, of erstwhile Adilabad District from 2011 to 2013 and was further posted as Inspector, ACB, Adilabad and worked as such from 2014 to 2017. Thereafter, the petitioner was transferred to Karimnagar and worked as Inspector, ACB till 2021 and was promoted as Deputy Superintendent of Police, ACB on 26-04-2021 and worked as such till his suspension on 28-08-2021. Vide the memo dated 28-08-2021 he was served with a charge memo along with the Articles of Charge framed against the petitioner under Rule 20 of Telangana Civil Services (CC &A) Rules, 1991.
4. It is submitted that the petitioner submitted his explanation towards the charges framed against him on 30-09-2021 by duly denying the charges alleged against him and requested for dropping of further action.
5. The respondent No.2 further contemplated an enquiry under rule 20 of the Telangana Civil Services (CC &A) Rules, 1991 and appointed the respondent No.3 as the Enquiry Officer to enquire into the charges framed against the petitioner by order dated 08-12-2021.
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6. It is submitted that the respondent No.3 has commenced the enquiry by appointing the respondent No.4 as the Presenting Officer by order dated 08-02-2022 and fixed the date for preliminary hearing on 11-02-2022.
7. It is submitted that the petitioner participated in the Departmental Proceedings and during the enquiry proceedings, the respondent No.4 has cited five (05) witnesses and fixed the schedule by recording the evidence of the witnesses and participated in the enquiry on 05-03-2022.
8. It is submitted that Sri. A. Tirupathi, Inspector of Police, Karimnagar and Sri. S.P. Ravinder, Inspector of Police, Karimnagar, were examined and on 05-03-2022 Sri K. Bhadraiah, DSP, ACB, Karimnagar was examined and on 17-03-2022 Sri Madhusudhan, DSP, ACB, Warangal was also examined.
9. It is submitted that in continuation of the disciplinary proceedings, during the cross examination on 17-03-2022, the petitioner had expressed his intention of examining Smt. M. Umarani, ACB, Court Clerk, Karimnagar as defense witness and accordingly, the respondent No.3 has issued a notice to 4 W.P. No. 24691 of 2022 the defence witness Smt. M. Umarani requesting her to appear on 27-03-2022.
10. It is submitted that while the Departmental Enquiry was being conducted, the DSP, ACB, Karimnagar has filed a criminal complaint against the petitioner with identical charges as that of the Charges against the petitioner in the Departmental Enquiry, that the petitioner while working as Inspector of Police, ACB, Karimnagar range, during the period from 30-01-2018 to 02-04- 2021 has committed grave misconduct in handing the important case properties due to which certain trap amounts of Rs. 30,000/- in Crime No. 07/ACB-KNR/2017, Rs. 1,50,000/- and one I-Phone in Crime No. 09/ACB-KNR/2017 and Rs. 1,00,000/- in Crime No. 04/ACB-KNR/2017 were misplaced and that he did not make any efforts to report the missing trap amounts to his superior officer and thereby shown gross negligence towards his duties and committed grave misconduct.
11. It is submitted that the allegation in the FIR No. 03/ACB- KNR/2022 dated 22-03-2022 was for the alleged offence U/S 13 (1)(a) of Prevention of Corruption Act and 201 of IPC against the 5 W.P. No. 24691 of 2022 petitioner and the charges framed in the Departmental Enquiry are also the same and continuation of the Departmental Enquiry pending criminal investigation would gravely and deeply prejudice the defense of the petitioner to be taken during the course of Criminal Trial.
12. It is submitted that if the petitioner is made to appear in the Departmental Proceedings and adduce the evidence, the same is likely to be used against him in the criminal trial. The learned Senior Counsel appearing for the petitioner fairly admitted that there is no legal bar for both proceedings to go on simultaneously but submitted that it may not be desirable or advisable or appropriate to proceed with the Departmental Enquiry when a criminal case is pending on identical charges with the same list of witnesses and evidence. It is submitted that the stay of Departmental Proceedings is a matter to be determined having regard to the facts and circumstances of a given case. He placed reliance upon the judgment of the Hon'ble Supreme Court in the case of Captain M. Paul Anthony v. Bharat Gold Mines Limited1, in support of his above contention. He also placed reliance upon 1 1999 (3) SCC 679 6 W.P. No. 24691 of 2022 the decision of the Apex Court in the case of State Bank of India Versus Neelam Nag2. Therefore, the learned Senior Counsel for the Petitioner is seeking stay of the Departmental Proceedings pending disposal of the criminal case against him. The learned Senior Counsel appearing for the petitioner has further relied upon the judgment of the Andhra Pradesh High Court in the case of D. Ravi Babu v. Director General of Police, Andhra Pradesh and others3 in Writ Petition No. 23315 of 2020 dated 01-04-2021, for the proposition that any Departmental Proceedings should be stayed till the criminal case is completed.
13. The learned Government Pleader for Home, on the other hand, relied on the averments made in the counter-affidavit and also relied upon the judgment of this court in W.P. No. 194/2020 dated 30-09-2020 for the proposition that both the Disciplinary Proceedings as well as the Criminal Case can go on together and further that when the accused is working in the Police Department, he should have moral and ethical standards and it cannot be presumed that the petitioner in the Criminal Case would be 2 2016 (9) SCC 491 3 2021 SCC Online AP 855 7 W.P. No. 24691 of 2022 prejudiced merely because he might tamper with the witnesses or the documentary evidence in the Departmental Enquiry. Thus according to the Learned Government Pleader, there is no prohibition in continuing the Departmental Proceedings along with the Criminal Trial and the Writ Petition should be dismissed accordingly.
14. Having regard to the rival contentions and the material on record, this court finds that on the very same set of facts, both the Departmental as well as Criminal Case have been initiated against the petitioner, the Departmental Enquiry has been initiated first and at the stage of examining the defence witness, the respondents have initiated Criminal Proceedings by filing an FIR. It is settled law that the Departmental Proceedings are for the misconduct of the petitioner in carrying on his duties whereas the Criminal Case is for the alleged offence committed by him. Therefore both these proceedings are for two different set of acts and therefore can go on simultaneously. However, if both are on the basis of the same witnesses and evidence, the evidence in one inquiry is likely to jeopardize the case of the petitioner in the other Case. It was in 8 W.P. No. 24691 of 2022 these circumstances that the Hon'ble Supreme Court in the cases relied upon by the learned Senior Counsel for the petitioner had held that it would be advisable to stay the disciplinary proceedings till the conclusion of the criminal proceedings. For the sake of ready reference, the relevant findings of the Hon'ble Apex Court are reproduced hereunder:
a. Cap. M. Paul Anthony v. Bharat Gold Mines Ltd. And Another (cited supra):
"The conclusions which are deducible from various decisions of this Court referred to above are:
(i) Departmental proceedings and proceedings in a criminal case can proceed simultaneously as there is no bar in their being conducted simultaneously, though separately.
(ii) If the departmental proceedings and the criminal case are based on identical and similar set of facts and the charge in the criminal case against the delinquent employee 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.
(iii) Whether the nature of a charge in a criminal case is grave and whether complicated questions of fact and law are involved in that case, will depend upon the nature of offence, the nature of the case launched against the employee on the basis of evidence and material collected against him during investigation or as reflected in the charge sheet.
(iv) The factors mentioned at (ii) and (iii) above cannot be considered in isolation to stay the Departmental proceedings but due regard has to be given to the fact that the departmental proceedings cannot be unduly delayed.
(v) 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".
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W.P. No. 24691 of 2022 b. State Bank of India and Others v. Neelam Nag and Another4 "25.Be that as it may, the remedy of writ being an equitable jurisdiction and keeping in mind the larger public interests (atleast in cases of involvement of the employees of the Public Sector Banks in offence of breach of trust and embezzlement), the arrangement predicated in the case of Stanzen (supra) would meet the ends of justice. For, the disciplinary proceedings instituted against the respondent cannot brook any further delay which is already pending for more than 10 years". "26.We make it clear that we may not be understood to have expressed any final view on the scope of Clause 4 of the Settlement".
"27. Accordingly, we exercise discretion in favour of the respondent of staying the ongoing disciplinary proceedings until the closure of recording of evidence of prosecution witnesses cited in the criminal trial, as directed by the Division Bench of the High Court and do not consider it fit to vacate that arrangement straightway. Instead, in our opinion, interests of justice would be sufficiently served by directing the criminal case pending against the respondent to be decided expeditiously but not later than one year from the date of this order. The Trial Court shall take effective steps to ensure that the witnesses are served, appear and are examined on day‐to‐ day basis. In case any adjournment becomes inevitable, it should not be for more than a fortnight when necessary".
"28. We also direct that the respondent shall extend full cooperation to the Trial Court for an early disposal of the trial, which includes cooperation by the Advocate appointed by her".
"29. If the trial is not completed within one year from the date of this order, despite the steps which the Trial Court has been directed to take the disciplinary proceedings against the respondent shall be resumed by the enquiry officer concerned. The protection given to the respondent of keeping the disciplinary proceedings in abeyance shall then stand vacated forthwith upon expiring of the period of one year from the date of this order".
"30. In the result, we partly allow this appeal to the extent indicated above. The parties are left to bear their own costs".
15. The learned Senior Counsel for the Petitioner has also placed reliance upon the judgment of Andhra Pradesh High Court in the case of D. Ravi Babu v. Director General of Police, Andhra Pradesh and Others (cited supra). In the said case, the Andhra 4 (2016) 9 SCC 491 10 W.P. No. 24691 of 2022 Pradesh High Court has considered the judgment of the Apex Court in the Case of Captain M.Paul Anthony Versus Coal Mines Limited (cited supra) and has held that both Departmental Proceedings and the Criminal Case are based on identical and same set of facts and the charge in the criminal case against the delinquent employee 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.
16. Even in the case of Jangam Tilak Raj in W.A. No.194 of 2020 of which the learned Government Pleader for Home has placed reliance upon, the Division Bench of this Court vide judgment dated 30.09.2020 has held as under:-
"Each case has to be tested on its merits so as to see whether serious prejudice is caused to the delinquent employee if the departmental proceeding is conducted simultaneously along with the criminal trial. There cannot be a clear cut formula laid down to say as to whether the charges in the departmental proceedings are self‐same as the charges in the criminal proceedings. In a given case, if the charges in the departmental proceedings are of such nature, which cannot be enquired into for the reason such charges are totally and substantially the same as that of charges framed in the criminal proceedinqs and when the result of the criminal trial will have a direct bearing on the outcome of the disciplinary proceedings, the Court may take a view that the departmental proceedings may be deferred".
17. Having regard to the above judgments on the issue, this Court is inclined to grant stay of the Proceedings in the Departmental 11 W.P. No. 24691 of 2022 Enquiry till the conclusion of the Criminal Proceedings pertaining to FIR No. 3/DCB-KNR/2022 dated 22-03-2022. The petitioner is also directed to co-operate with the respondents for early completion of the Criminal Case against the petitioner. If the petitioner fails to co-operate with the Criminal Trial and the Criminal Trial is dragged on for more than two years at the behest of the petitioner then the stay now granted shall stand automatically vacated and the respondents shall have the liberty to continue the Departmental Proceedings and conclude the same in accordance with law.
17. This Writ Petition is accordingly allowed. There shall be no order as to costs.
18. Miscellaneous applications, if any pending, shall also stand closed.
______________________________ JUSTICE P. MADHAVI DEVI Date: 31-10-2022 nsk 12 W.P. No. 24691 of 2022