Madras High Court
R.Gomathi vs The Secretary To Government on 26 August, 2021
W.P.No.3133 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 26.08.2021
CORAM
THE HON'BLE MR.JUSTICE C.SARAVANAN
W.P.No.3133 of 2019
and
W.M.P.No.3400 of 2019
(Through Video Conferencing)
R.Gomathi ... Petitioner
Vs.
1.The Secretary to Government,
Home (Police II) Department,
Fort St. George, Chennai 9.
2.The Director General of Police,
Dr. Radhakrishnan Salai,
Mylapore, Chennai 4.
3.The Deputy Inspector General of Police,
Kancheepuram Range,
Kancheepuram. ... Respondents
Writ Petition filed under Article 226 of Constitution of India, for
issuance of a Writ of Certiorari, to call for the records of the third respondent
in connection with the impugned charge memo issued in PR No.95/2018
dated 12.12.2018 and quash the same and grant such other further relief.
_______________
http://www.judis.nic.in
Page No. 1 of 14
W.P.No.3133 of 2019
For Petitioner : Mr.Venkataramani, Senior Counsel
for Mr.M.Muthappan
For Respondents : Mr.L.S.M.Hasan Fizal, Govt. Adv.
ORDER
The petitioner has challenged the impugned Charge Memo dated
12.12.2018 issued by the third respondent based on a trap laid on the
petitioner on 18.02.2008.
2. The petitioner was serving as a Sub Inspector of Police,
Tiruvelangadu Police Station, Tiruttani Taluk, Trivallur District. The
petitioner was accused of demanding and accepting bribe of Rs.50,000/- from
one K.Dhamodharan for not registering a complaint against him and his wife
lodged by the said person's daughter and son-in-law who decided to get
marriage each other. Originally, a complaint was earlier lodged by the
K.Dhamodharan's daughter and his son-in-law on 17.02.2008 against the
defacto complainant K.Dhamodharan and his wife.
3. The family dispute between the family members of the defacto
complainant K.Dhamodharan, wife, daughter and son-in-law was resolved
_______________
http://www.judis.nic.in
W.P.No.3133 of 2019
even according to the case before the Authorities. However, the allegation
was that the petitioner who was serving as a Sub Inspector of Police,
Tiruvelangadu Police Station, Tiruttani Taluk, Trivallur District had
demanded a sum of Rs.50,000/- from defacto complainant K.Dhamodharan
for not registering a complaint. Therefore, the trap was laid and
Phenolphthalein and Sodium Carbonate Test was conducted, wherein, the
finger prints of the petitioner was found for having received a sum of
Rs.50,000/- from defacto complainant K.Dhamodharan.
4. Under these circumstances, a criminal complaint in Crime
No.1/AC/2008/KM under Sections 7, 13(2) and 13(1)(d) of the Prevention of
Corruption Act was taken on the file of Vigilance and Anti-corruption,
Kanchipuram and thereafter, a charge was also filed on 02.04.2009, pursuant
to which, the learned Chief Judicial Magistrate, Tiruvallur took the case in
Special Case No.2 of 2009.
5. During the interregnum, the petitioner was placed under suspension
vide Suspension Order dated 20.02.2008. The petitioner had filed
W.P.No.15421 of 2009 and interim order came to be passed on 05.08.2009
_______________
http://www.judis.nic.in
W.P.No.3133 of 2019
by directing the respondents to allow the petitioner to re-join the duty.
Pursuant to the interim direction of this Court in W.P.No.15421 of 2009, the
order of suspension dated 20.02.2008 was revoked by the respondents by an
order dated 03.12.2009.
6. During the course of time, the Special Court by its Judgment dated
02.02.2017 in Special Case No.2 of 2009, acquitted the petitioner of the
charges in Crime No.1/AC/08/KM filed under Sections 7, 13(2) and 13(1)(d)
of the Prevention of Corruption Act.
7. The petitioner later filed W.P.No.30183 of 2018 and an order came
to be passed in the aforesaid Writ Petition on 20.03.2020, pursuant to which,
the petitioner has now been promoted as Inspector of Police.
8. It is the case of the petitioner that since in the criminal case, the
petitioner has been acquitted, impugned Charge Memo dated 12.12.2018 is
unsustainable. In the light of the decision of the Hon'ble Supreme Court and
that of this Court in the following cases, the impugned charge memo dated
12.12.2018 is liable to be quashed.
_______________
http://www.judis.nic.in
W.P.No.3133 of 2019
i. Capt. M. Paul Anthony Vs. Bharat Gold Mines Ltd. and
Another, (1999) 3 SCC 679.
ii. G. M. Tank Vs. State of Gujarat and Others, (2006) 5
SCC 446.
iii. A.Thangavelu Vs. The Managing Director, Tamil Nadu
Housing Board, order dated 14.06.2018 passed by this
Court in W.A.No.976 of 2018.
iv. S.Balasubramanian Vs. The Chief Engineer (General)
and Another, order 10.07.2019 passed by this Court in
W.A.Nos.589 to 591 of 2018.
9. Appearing on behalf of the petitioner, the learned Senior Counsel
submits that Hon'ble Supreme Court in Capt. M. Paul Anthony Vs. Bharat
Gold Mines Ltd. and Another, (1999) 3 SCC 679, has dealt with the similar
circumstances of the case. In this connection, he also drew attention to
paragraph 22 of the said decision which reads as under:-
22. 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
_______________
http://www.judis.nic.in
W.P.No.3133 of 2019
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, the administration may get rid of him at the earliest.
10. The learned Senior Counsel for the petitioner referred to paragraph
Nos.30 & 31 from the decision of the Hon'ble Supreme Court in G.M.Tank
Vs. State of Gujarat and Others, (2006) 5 SCC 446 which reads as under:-
30. The judgments relied on by the learned counsel
appearing for the respondents are distinguishable on facts
and on law. In this case, the departmental proceedings and
the criminal case are based on identical and similar set of
_______________
http://www.judis.nic.in
W.P.No.3133 of 2019
facts and the charge in a departmental case against the
appellant and the charge before the criminal court are one
and the same. It is true that the nature of charge in the
departmental proceedings and in the criminal case is grave.
The nature of the case launched against the appellant on the
basis of evidence and material collected against him during
enquiry and investigation and as reflected in the charge-
sheet, factors mentioned are one and the same. In other
words, charges, evidence, witnesses and circumstances are
one and the same. In the present case, criminal and
departmental proceedings have already noticed or granted
on the same set of facts, namely, raid conducted at the
appellant's residence, recovery of articles therefrom. The
Investigating Officer Mr V.B. Raval and other departmental
witnesses were the only witnesses examined by the enquiry
officer who by relying upon their statement came to the
conclusion that the charges were established against the
appellant. The same witnesses were examined in the
criminal case and the criminal court on the examination
came to the conclusion that the prosecution has not proved
the guilt alleged against the appellant beyond any
reasonable doubt and acquitted the appellant by its judicial
pronouncement with the finding that the charge has not
been proved. It is also to be noticed that the judicial
pronouncement was made after a regular trial and on hot
contest. Under these circumstances, it would be unjust and
unfair and rather oppressive to allow the findings recorded
in the departmental proceedings to stand.
31. In our opinion, such facts and evidence in the
departmental as well as criminal proceedings were the same
without there being any iota of difference, the appellant
should succeed. The distinction which is usually proved
between the departmental and criminal proceedings on the
basis of the approach and burden of proof would not be
applicable in the instant case. Though the finding recorded
in the domestic enquiry was found to be valid by the courts
below, when there was an honourable acquittal of the
_______________
http://www.judis.nic.in
W.P.No.3133 of 2019
employee during the pendency of the proceedings
challenging the dismissal, the same requires to be taken
note of and the decision in Paul Anthony case [(1999) 3
SCC 679 : 1999 SCC (L&S) 810] will apply. We, therefore,
hold that the appeal filed by the appellant deserves to be
allowed.
11. The learned Senior Counsel for the petitioner also drew attention to
the few passages from the decision of the Division Bench of this Court in
A.Thangavelu Vs. The Managing Director, Tamil Nadu Housing Board,
dated 14.06.2018 in W.A.No.976 of 2018, wherein, a reference was made to
the decision of the Hon'ble Supreme Court in P.V.Mahadevan Vs.
Managing Director, Tamil Nadu Housing Board, 2005 (4) CTC 403 and
to the decision of the Division Bench of this Court in State of Tamil Nadu
Vs. M.Jayapaul, 2005 (2) MLJ 486.
12. The learned Senior Counsel for the petitioner further submits apart
from the fact that on merits also the issue is covered by the decision of the
Hon'ble Supreme Court and the two decision cited above, there is an
inordinate delay in the conduct of the disciplinary proceedings and nothing
precluded the Department from proceeding against the petitioner earlier.
Thus, the learned Senior Counsel for the petitioner submits that even though
_______________
http://www.judis.nic.in
W.P.No.3133 of 2019
criminal proceedings were initiated against the petitioner in Crime
No.1/AC/2008/KM under Sections 7, 13(2) and 13(1)(d) of the Prevention of
Corruption Act which was eventually taken on record as Special Case
No.2/2009, there is an inordinate delay in initiation of disciplinary
proceedings. It is submitted that the disciplinary proceeding was after the
aquittal from the Criminal proceeding and therefore the impugned charge
memo is therefore arbitrary and is liable to be interfered with.
13. Appearing on behalf of the respondents, the learned Government
Advocate submits that there is no limitation prescribed under the Rules. He
further submits that as per G.O.Ms.No.251 Personnel & Administrative
Reforms (N) Department, dated 21.04.1988, there is no bar in initiating a
collateral disciplinary proceedings even though after conclusion of the
criminal proceedings.
14. The learned Government Advocate for the respondents submits that
Charges against the petitioner are serious in nature in as much as the drop
was laid at the petitioner's house and the petitioner had touched the amount of
Rs.50,000/- which stands proved by Phenolphthalein and Sodium Carbonate
_______________
http://www.judis.nic.in
W.P.No.3133 of 2019
Test. Therefore, the impugned Charge Memo under Rule 24 of the Tamil
Nadu Subordinate Police Officers Conduct Rules cannot be interfered with.
15. I have considered the arguments advanced by the learned Senior
Counsel for the petitioner and the learned Government Advocate appearing
for the respondents. I have perused the orders passed by the Criminal Court
and the decisions cited by the learned Senior Counsel for the petitioner.
16. What is evident is that witnesses who were examined as
prosecution witness in Special Case No.2/2009 are the witnesses in the
proposed Disciplinary Proceedings as well. The Criminal Court has found the
petitioner not guilty, by holding that the prosecution is not proved the case
beyond the reasonable doubt. The decision of the Hon'ble Supreme Court
G.M.Tank Vs. State of Gujarat and Others, (2006) 5 SCC 446 cited by
the learned Senior Counsel indicates that once same witnesses were examined
in the criminal case and the criminal court on the examination comes to a
conclusion that the prosecution has not proved the alleged guilty against the
appellant beyond any reasonable doubt and acquitted the appellant by its
judicial pronouncement with the finding that the charge has not been proved,
_______________
http://www.judis.nic.in
W.P.No.3133 of 2019
it would be unjust and unfair rather oppressive to allow the findings recorded
in the departmental proceedings to stand.
17. Though G.O.Ms.No.251, Personnel & Administrative Reforms (N)
Department, dated 21.04.1988 also indicates that the respondents can initiate
disciplinary proceedings after the conclusion of proceedings, it is to be noted
that such proceedings can proceed in the light of the decision of the Hon'ble
Supreme Court in G.M.Tank Vs. State of Gujarat and Others, (2006) 5
SCC 446. The Division Bench of this Court in A.Thangavelu Vs. The
Managing Director, Tamil Nadu Housing Board, by its Judgment dated
14.06.2018 in W.A.No.976 of 2018 has also held that for initiating
disciplinary proceedings, fresh material should be there on record.
18. In this case, admittedly, the impugned charge memo does not reveal
any other additional material for either prosecuting the petitioner or
proceeding against the petitioner departmentally at this distant point of time
after a lapse of about 10 years since the petitioner was placed under
suspension on 20.02.2008. That apart, the petitioner had obtained several
orders from the Court as stated above, by virtue of which, the petitioner was
_______________
http://www.judis.nic.in
W.P.No.3133 of 2019
allowed to report the duty and was also given promotion to the post of
Inspector of Police vide order dated 20.03.2020.
19. In view of overall facts and circumstances of the case, this Court is
of the view the impugned Charge Memo dated 12.12.2018 at this distant
point of time, long after the conclusion of criminal proceedings in Special
Case No.02/2009 cannot be sustained.
20. Therefore, the Writ Petition filed by the petitioner deserves to be
allowed. Thus, the impugned Charge Memo dated 12.12.2018 stands
quashed. This Writ Petition stands allowed. No cost.
26.08.2021
Index : Yes/No
Internet : Yes/No
jen
To
1.The Secretary to Government,
Home (Police II) Department,
Fort St. George, Chennai 9.
_______________
http://www.judis.nic.in
W.P.No.3133 of 2019
2.The Director General of Police,
Dr. Radhakrishnan Salai,
Mylapore, Chennai 4.
3.The Deputy Inspector General of Police,
Kancheepuram Range,
Kancheepuram.
_______________
http://www.judis.nic.in
W.P.No.3133 of 2019
C.SARAVANAN, J.
jen
W.P.No.3133 of 2019 and
W.M.P.No.3400 of 2019
26.08.2021
_______________
http://www.judis.nic.in
