M.Sivan vs The Chief Educational Officer
2022 Latest Caselaw 7090 Mad

                                                                         W.P.(MD)No.16004 of 2021


                       BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                                DATED:05.04.2022
                                                     CORAM:

                             THE HONOURABLE MR.JUSTICE S.M.SUBRAMANIAM

                                           W.P.(MD)No.16004 of 2021
                                  and WMP(MD) Nos.12911, 12912 and 12913 of 2021

                     M.Sivan                                           ... Petitioner
                                                        Vs.

                     1.The Chief Educational Officer,
                       O/o. the Chief Educational Officer,
                       Tenkasi District.

                     2.The District Educational Officer,
                       O/o. the District Educational Officer,
                       Sankarankoil
                       Tenkasi District.

                     3.The Secretary
                       Nadar Committee Higher Secondary School
                       Ramanathapuram 627 760
                       Sivagiri Taluk
                       Tenkasi District

                     4.John Richard Ebenezer                          ... Respondents

                     PRAYER: Writ Petition filed under Article 226 of the Constitution of
                     India for issuance of a writ of Certiorarified Mandamus to call for the
                     records pertaining to the impugned order dated 16.08.2021 on the file of


                     1/14


https://www.mhc.tn.gov.in/judis
                                                                                 W.P.(MD)No.16004 of 2021


                     the respondent No.3 and quash the same as illegal and consequently for a
                     direction, directing the respondent No.3 and 4 to keep the disciplinary
                     proceedings initiated against the petitioner in pursuance to the charge
                     memo dated 02.07.2021 in abeyance till the disposal of the criminal case
                     in Crime No.147/2020 on the file of the Inspector of Police, Sivagiri
                     Police Station, Tenkasi District.


                                        For Petitioner           : Mr.T.Lajapathi Roy
                                        For Respondents          : Mr.G.V.Vairam Santhosh
                                                                 Additional Government Pleader


                                                          ORDER

The charge memo issued by the private aided school in

proceedings dated 13.08.2021 and the appointment of enquiry officer are

under challenge in the present writ petition.

2. The petitioner was holding the post of BT Assistant in the third

respondent private aided school. A criminal case was registered against

him in Crime No.147/2020 by Sivagiri Police Station, Tenkasi District

arraying the petitioner as accused No.2 under Section 4(1-A), 4(1)(g) of

the Tamil Nadu Prohibition Act. The petitioner was released on station

https://www.mhc.tn.gov.in/judis W.P.(MD)No.16004 of 2021

bail. The disciplinary proceedings were initiated by the school. Charge

memo was issued and the allegations are serious in nature. An enquiry

officer was appointed and at that stage, the petitioner has approached this

Court and an interim order was granted.

3. The learned counsel for the petitioner made a submission that

the petitioner is no way connected with the criminal charges and

subsistence allowance has not been paid for the period of suspension.

The allegations in the charge memo and the allegations in the criminal

proceedings are one and the same and therefore, the departmental

disciplinary proceedings are to be kept in abeyance.

4. The learned Additional Government Pleader opposed the

contentions by stating that the petitioner is a Teacher and the criminal

case was registered under the Prohibition Act. Therefore, charges are

serious and there is no infirmity in respect of the departmental

proceeding initiated against the writ petitioner and the writ petition is to

be dismissed.

https://www.mhc.tn.gov.in/judis W.P.(MD)No.16004 of 2021

5. Regarding the simultaneous proceedings, this Court has

elaborately considered the issue based on the judgment of the Hon'ble

Supreme Court of India and the following principles have been

summarized:

(i) It is a settled law that criminal case and the

departmental disciplinary proceedings may be

initiated simultaneously as the case may be;

(ii) An order of suspension, if required, may be

issued in the prescribed format as per the

rules;

(iii) 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;

(iv) The question to be considered is whether

simultaneous proceedings may go on or not?;

(v) The departmental domestic enquiry and the

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criminal trial shall proceed simultaneously

and the decision in the criminal case would

not materially affect the outcome of the

domestic enquiry;

(vi) The nature of both proceedings and the test

applied to reach final conclusion in the matter

are entirely different.

(vii) 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

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proceedings are conducted and completed as

expeditiously as possible.

(viii) There is no legal bar for both proceedings to

go on simultaneously.

(ix) 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 penalty in

accordance with service rules.

(x) In the criminal case, the burden of proof is on

the prosecution and unless the prosecution is

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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.

(xi) An order of conviction if any passed in the

criminal case or in criminal appeal, after

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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.

(xii) Order of acquittal if at all passed in the

criminal case 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.

(xiii) 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

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authority may obtain the true copies of the

documents and proceed with the departmental

disciplinary proceedings.

(xiv) 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.Therefore, if at all the documents and evidences are available

with the disciplinary authority, they are empowered to continue the

departmental proceedings. Even in case some documents are to be

collected from the police department or otherwise, the authorities

competent are empowered to conduct the disciplinary proceedings and

conclude the same and pass final orders. The disciplinary proceedings

and the criminal proceedings are distinct and different and pendency of a

criminal case is not a bar for conduct of disciplinary proceedings. Even

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in a recent case, the Hon'ble Supreme Court of India in the State of

Karnataka v. Umesh reported in 2022 Live law SC 304 held that unlike

criminal prosecution, where the charge has to be established beyond

reasonable doubt, in a departmental proceedings, a charge of misconduct

has to be established on preponderance of probabilities. The rules of

evidence, which apply to a criminal trial are distinct from those which

govern a disciplinary proceedings.

7. The purpose of conducting disciplinary proceedings by an

employer is to enquire into the allegations of misconduct by an

employee, which results in violation of the service rules governing the

relationship of employment. Therefore, the criminal trial and

departmental proceedings are distinct and different and there is no

impediment for the disciplinary authority to proceed with the

departmental disciplinary proceedings, even during the pendency of a

criminal case.

8. In the present case, the Enquiry Officer has already been

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appointed ie., also under challenge. The petitioner is working as BT

Assistant in a Private Aided school.

9. Section 23 of the Private School Regulations Act, contemplates

appeal against the order of punishment imposed on Teachers and other

persons employed in private schools. Even in case, an order has been

passed, such orders are appealable. Definition of order with reference to

Section 23 was provided in explanation to Section 23. The explanation

contemplates that “in this section, the expression “order” includes any

order made on or after the date of the commencement of this Act in any

disciplinary proceeding which was pending on that date.”

10. Therefore, even after the disposal of the disciplinary

proceedings, there is an appeal remedy contemplated under the Act. In

the present case, the enquiry is yet to be completed. The petitioner is

entitled to defend his case in the manner known to law. The disciplinary

authority bound to provide opportunity to the writ petitioner to defend

his case. However, it is made clear that the subsistence allowance for

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which the petitioner is entitled to be paid during the conduct of

disciplinary proceedings, the learned counsel for the petitioner made a

submission that the subsistence allowance has not been paid. If so, the

respondents are bound to pay the subsistence allowance as per the rules

in force.

11. In view of the facts and circumstances, the respondents are

directed to continue the departmental disciplinary proceedings, conclude

the same and pass final orders as expeditiously as possible by following

the procedures as contemplated. The petitioner is directed to cooperate

for the early disposal of the disciplinary proceedings and in the event of

non cooperation, the petitioner is not entitled to claim any relief on the

ground of delay in disposal of the disciplinary proceedings.

With these observations, the writ petition stands disposed of. No

costs. Consequently connected Miscellaneous Petitions are closed.

05.04.2022 Index:Yes/No Internet:Yes RR

https://www.mhc.tn.gov.in/judis W.P.(MD)No.16004 of 2021

To

1.The Chief Educational Officer, O/o. the Chief Educational Officer, Tenkasi District.

2.The District Educational Officer, O/o. the District Educational Officer, Sankarankoil Tenkasi District.

https://www.mhc.tn.gov.in/judis W.P.(MD)No.16004 of 2021

S.M.SUBRAMANIAM,J.

RR

W.P.(MD)No.16004 of 2021

05.04.2022

https://www.mhc.tn.gov.in/judis