Madras High Court
K.Ganeshkumar vs The Superintendent Of Police on 1 March, 2021
W.P.(MD) No.13041 of 2018
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 01.03.2021
CORAM:
THE HONOURABLE MR.JUSTICE M.S.RAMESH
W.P.(MD) No.13041 of 2018 and
WMP(MD) Nos.15781 & 11904 of 2018
K.Ganeshkumar Petitioner
Vs
The Superintendent of Police,
District Police Office,
Tirunelveli District. Respondent
PRAYER: Writ Petition filed under Article 226 of the Constitution of
India for issuance of Writ of Certiorari, calling for the records relating to
the proceedings in P.R.No.48/2018, dated 29.05.2018, under Rule 3(b) of
the Tamil Nadu Police Subordinate Services (Discipline and Appeal)
Rules 1955, on the file of the respondent and to quash the same.
For Petitioner : Ms.P.Jessi Jeeva Priya
For Respondent : Mr.P.Mahendran
Additional Government Pleader
ORDER
The petitioner herein, while serving as Grade II Constable at
Kalakad Police station, was implicated for two charges by the first
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W.P.(MD) No.13041 of 2018
respondent herein. As per the charges, the petitioner had involved
himself in a criminal case in Cr.No.488 of 2017, for the offences under
Sections 452, 294(b), 323 and 506(ii) IPC and under Section 4 of Tamil
Nadu Prohibition of Harassment of Woman Act, 2002, on the file of the
Tenkasi Police Station. The second charge was that the petitioner had
failed to act honestly and dutiful, since he is employed in the disciplined
police station and thereby violated Rule 24(i) of Tamil Nadu Subordinate
Police Conduct Rules, 1964. The said charge memo dated 29.05.2018 is
put under challenge in the the present Writ Petition.
2.The learned counsel for the petitioner would submit that
the criminal case itself is a false case, arising out of a civil property
dispute and that the facts would reveal that the petitioner herein was
falsely implicated, due to counter complaint given by his wife against the
complainant. Even otherwise, the learned counsel for the petitioner
would submit that the charges in the departmental action as well as the
criminal case are one and the same, the authorities are not entitled to
proceed against the same simultaneously, in view of the law laid down by
the Honourable Supreme Court in the case of Paul Antony.
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W.P.(MD) No.13041 of 2018
3.The learned Additional Government Pleader would submit
that the petitioner herein hails from a disciplined police department, who
is not expected to involve himself in acts of criminal offences. Further
more, the averments in the First Information Report would indicate that
the petitioner had personally involved himself in criminal acts of
assaulting and insulting the modesty of the woman. The learned
Additional Government Pleader would also submit that if the petitioner
herein is of the view that the case is civil in nature, it would always open
to him to establish the same during the course of the departmental
enquiry.
4. I have given careful submissions made by the respective
counsels.
5.The scope of Article 226 of the Constitution of India, to
interfere with the Departmental proceedings and such charge memos
have come up for consideration before the Honourable Supreme Court of
India as well as various High Courts, wherein, it was held, barring few
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W.P.(MD) No.13041 of 2018
exceptions like incompetency of the authority, malafideness, delay, etc.,
the High Court would not normally interfere and quash a charge memo.
6.In this background, the only ground raised by the learned
counsel for the petitioner is that the criminal case is purportedly civil in
nature. I am unable to appreciate such a ground, since determining a case
to be civil or criminal in nature, would involve appreciation of the
evidence and this Court may not be justified in exercising such a venture
and stepping into the shoes of an enquiry officer.
7.Insofar as the submission that departmental proceedings
cannot simultaneously be proceeded with the criminal proceedings and
that the dictum followed in Paul Antony case would be applicable is
concerned, the Honourable Supreme Court in Divisional Controller,
Karnataka Vs. State Road Transport Corporation Vs. M.G.Vittal Rao,
reported in (2012) 1 SCC Page 442, had distinguished Paul Antony's
case and held that the dictum laid therein does not have universal
application. The relevant portion of the order reads as follows:-
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W.P.(MD) No.13041 of 2018
23.In Pandiyan Roadways Corpn. Ltd. v. N. Balakrishnan,
(2007) 9 SCC 755, this Court re-considered the issue taking
into account all earlier judgments and observed as under:
"21. There are evidently two lines of decisions of
this Court operating in the field. One being the
cases which would come within the purview of
Capt.M. Paul Anthony v. Bharat Gold Mines
Ltd(supra), andG.M. Tank v. State of Gujarat, (2006)
5 SCC C446. However, the second line of decisions
show that an honourable acquittal in the criminal
case itself may not be held to be determinative in
respect of order of punishment meted out to the
delinquent officer, inter alia, when: (i) the order of
acquittal has not been passed on the same set of
facts or same set of evidence; (ii) the effect of
difference in the standard of proof in a criminal trial
and disciplinary proceeding has not been considered
(See:Commr. of Police v. Narender Singh, (supra)
or; where the delinquent officer was charged with
something more than the subject-matter of the
criminal case and/or covered by a decision of the
civil court (See: G.M. Tank, (supra),Jasbir Singh v.
Punjab & Sind Bank, (2007) 1 SCC 566; and Noida
Entrepreneurs' Assn. v. Noida, (2007) 10 SCC 385,
para
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W.P.(MD) No.13041 of 2018
22. .... 41.We may not be understood to have laid
down a law that in all such circumstances the
decision of the civil court or the criminal court
would be binding on the disciplinary authorities as
this Court in a large number of decisions points out
that the same would depend upon other factors as
well. (See: e.g. Krishnakali Tea Estate (supra); and
Manager, Reserve Bank of India v. S. Mani, (2005) 5
SCC 100). . Each case is, therefore, required to be
considered on its own facts."
24. Thus, there can be no doubt regarding the settled legal
proposition that as the standard of proof in both the
proceedings is quite different, and the termination is not based
on mere conviction of an employee in a criminal case, the
acquittal of the employee in criminal case cannot be the basis
of taking away the effect of departmental proceedings. Nor
can such an action of the department be termed as double
jeopardy. The judgment of this Court in Capt. M. Paul
Anthony (supra) does not lay down the law of universal
application. Facts, charges and nature of evidence etc.
involved in an individual case would determine as to whether
decision of acquittal would have any bearing on the findings
recorded in the domestic enquiry.
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W.P.(MD) No.13041 of 2018
8.Likewise, the learned single judge of this Court in the case
of R.Kumar Vs The Superintending Engineer and another in W.P.
(MD) No.371 of 2013, dated 26.02.2018, had also considered this aspect
and held as follows:
14.The point of delay argued on behalf of the writ petitioner
that the impugned charge memo was issued belatedly, this
Court is of an opinion that the criminal case was disposed of
on 28.03.2012 and thereafter, the disciplinary authorities
framed the charge memo in proceedings dated 21.11.2012.
The competent authority was of an erroneous opinion that
simultaneous proceedings are impermissible. During the
relevant point of time, the Courts were relying on the
judgment of the Hon'ble Supreme Court of India in the case of
Paul Antony. However, the Hon'ble Supreme Court in its
subsequent judgments clarified that the principles laid down
in Paul Antony case can never be followed as a rem.
However, the Hon'ble Supreme Court clarified that
simultaneous proceedings are certainly permissible. The
departmental disciplinary proceedings shall be kept in
abeyance only if the facts and circumstances are so complex
and the disciplinary authority cannot proceed with the
departmental disciplinary proceedings unless his criminal
case is disposed of. Thus, the High Courts also in many
number of cases, granted interim order that the departmental
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W.P.(MD) No.13041 of 2018
disciplinary proceedings are to be kept in abeyance during the
pendency of the criminal case. However, the Hon'ble Supreme
Court of India laid down the legal principles in the case of
G.Srinivasan vs The Deputy Inspector General of Police,
Vellor and others unambiguously that simultaneous
proceedings are permissible and in this context, it is relevant
to cite the following paragraphs, which is extracted here
under:
15.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.
16. 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.
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W.P.(MD) No.13041 of 2018
17. 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.
18. In the case of Avinash Sadashiv Bhosale v. Union of
India[(2012) 13 SCC 142], the Court held that there is no legal bar
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W.P.(MD) No.13041 of 2018
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.
19. 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
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W.P.(MD) No.13041 of 2018
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.
20. 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
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W.P.(MD) No.13041 of 2018
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.
21. 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.
22. 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
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W.P.(MD) No.13041 of 2018
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'.
23. 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.
24. 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.
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W.P.(MD) No.13041 of 2018
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)
25. 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
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W.P.(MD) No.13041 of 2018
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.
9. The aforesaid extract is self explanatory. As such, it would
not be permissible for the respondent to proceed against the petitioner
through departmental action. However, it would always be open to the
petitioner to establish his innocence before the enquiry officer. It is
needless to point out that when the enquiry officer proceeds with the
enquriy against the petitioner, the principles of natural justice requires to
be followed by extending ample opportunities to the delinquent.
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W.P.(MD) No.13041 of 2018
10.In view of the fact that the grounds raised by the
petitioner herein does not fall under any of the the exceptions, this Court
may not be justified in exercising its power under Article 226 of
Constitution of India, for the purpose of quashing the charge memo and
hence the Writ Petition does not deserve consideration.
11.In the above circumstances, the Writ Petition is
dismissed. No costs. Consequently, connected Miscellaneous Petitions
are closed.
01.03.2021
Index : Yes / No
Internet : Yes / No
vrn
NOTE:
In view of the present lock down owing to COVID-19 pandemic, a web
copy of the order may be utilized for official purposes, but, ensuring that
the copy of the order that is presented is the correct copy, shall be the
responsibility of the advocate/litigant concerned.
To
The Superintendent of Police,
District Police Office,
Tirunelveli District.
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W.P.(MD) No.13041 of 2018
M.S.RAMESH, J.
vrn
Order made in
W.P.(MD) No.13041 of 2018 and
WMP(MD) Nos.15781 & 11904 of 2018
01.03.2021
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