Madras High Court

M.Antony Sekar vs The State Through on 25 April, 2022

                                                                        W.P.(MD) No.25269 of 2019



                          BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                                DATED : 25.04.2022

                                                        CORAM

                              THE HONOURABLE MR.JUSTICE S.M.SUBRAMANIAM

                                            W.P.(MD) No.25269 of 2019
                                           W.M.P(MD).No.21875 of 2019

                     M.Antony Sekar                                           ... Petitioner

                                                         Vs

                     1. The State Through
                        The Superintendent of Police,
                        O/o.District Police Office,
                        Tirunelveli,
                        Tirunelveli District.

                     2.The Assistant Superintendent of Police,
                       Valliyoor Sub-Division,
                       Tirunelveli District.

                     3.The Deputy Superintendent of Police,
                       Alangulam Sub-Division,
                       Tirunelveli District.

                     4.The Inspector of Police,
                       Thisayanvilai Police Station,
                       Tirunelveli District.
                       Crime No.145 of 2019                                ...Respondents



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                                                                             W.P.(MD) No.25269 of 2019




                     Prayer:-Petition filed under Article 226 of the Constitution of India praying
                     for issuance of Writ of Mandamus, directing the respondents to keep the
                     departmental proceedings against the petitioner in Tha.Pa.No.71/19 in
                     abeyance till the conclusion of the criminal case against the petitioner in
                     Crime No.145 of 2019 on the file of the Inspector of Police, Thisayanvilai
                     Police Station, Tirunelveli, pending to be taken on file by the learned
                     Judicial Magistrate, Nanguneri, Tirunelveli District



                                  For Petitioner    :         Mr.B.N.Raja Mohamed

                                  For Respondents   :         Mr.A.K.Manikkam
                                                              Special Government Pleader




                                                        ******
                                                        ORDER

A writ of Mandamus has been filed to direct the respondents to

keep the departmental disciplinary proceedings initiated against the

petitioner in Tha.Pa.No.71/19 in abeyance till the conclusion of the criminal

case registered in Crime No.145 of 2019.

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2. The petitioner is working as Police Constable Grade-I and he

involved in certain election related offences and misconducts. A criminal

case was registered against the petitioner in Crime No.145 of 2019 under

Sections 279, 171(E) r/w.171(B) of IPC. The petitioner is arrayed as

accused No.2 and the criminal case is pending as of now.

3. The learned counsel appearing for the petitioner made a

submission that the documents, witnesses and allegations both in the

criminal case and the departmental disciplinary proceedings are one and the

same and therefore, the departmental disciplinary proceedings are to be kept

in abeyance, till the disposal of the criminal case by the Competent Court of

Law. This apart, the Department may not be in a position to proceed during

the pendency of the criminal case as recording of any facts may cause

prejudice to the criminal trial. Thus,the present Writ Petition is filed seeking

a direction to keep the departmental disciplinary proceedings in abeyance

till the disposal of the criminal case.

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4. The learned Special Government Pleader objected the said

contention by stating that there is no bar for the Authorities Competent to

proceed with the departmental disciplinary proceedings during the pendency

of the criminal case. In the present case, the misconduct against the

petitioner is serious in nature and more so, related to election offences. The

Department is possessing all the relevant documents for the purpose of

conducting the departmental disciplinary proceedings. Therefore, the writ

petition is to be rejected.

5. 5. This Court is of the considered opinion that the Hon'ble Supreme

Court of India in unequivocal terms held that there is no bar for continuance

of departmental disciplinary proceedings during the pendency of the

criminal case. In other words, pendency of the criminal case cannot be a

ground to keep the departmental disciplinary proceedings in abeyance.

Simultaneous proceedings are permissible in all circumstances, if the

Authorities are in possession of the materials for the purpose of conducting

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the departmental disciplinary proceedings. This Court has elaborately

considered the principles of simultaneous proceedings in W.P.(MD) No.

17378 of 2019 on 21.02.2022 which reads as under:-

(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 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

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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.

(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 able to prove the guilt of the accused 'beyond reasonable doubt', he cannot be

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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 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

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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.

(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. The Hon'ble Supreme Court of India in the case of State of

Karnataka and another vs. Umesh reported in 2022 Live Law (SC) 304

held as follows:-

13. The principles which govern a disciplinary enquiry are distinct from those which apply to a criminal trial. In a prosecution for an offence punishable under the criminal law, the burden lies on the prosecution to establish the ingredients of the offence beyond reasonable doubt. The accused is entitled to a presumption of innocence. The purpose of a disciplinary proceeding by an employer is to enquire into an allegation of misconduct by an employee which results in a violation of the service rules governing the relationship of employment. Unlike a

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criminal prosecution where the charge has to be established beyond reasonable doubt, in a disciplinary proceeding, a charge of misconduct has to be established on a preponderance of probabilities. The rules of evidence which apply to a criminal trial are distinct from those which govern a disciplinary enquiry. The acquittal of the accused in a criminal case does not debar the employer from proceeding in the exercise of disciplinary jurisdiction.

14. In a judgment of a three judge Bench of this Court in State of Haryana v. Rattan Singh5, Justice V R Krishna Iyer set out the principles which govern a disciplinary proceedings as follows:

“4. It is well settled that in a domestic enquiry the strict and sophisticated rules of evidence under the Indian Evidence Act may not apply. All materials which are logically probative for a prudent mind are permissible.

There is no allergy to hearsay evidence provided it has reasonable nexus and credibility. It is true that departmental authorities and Administrative Tribunals must be careful in evaluating such material and should not glibly swallow what is strictly speaking not relevant under the Indian Evidence Act. For this proposition it is not necessary to cite decisions nor text books, although we

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have been taken through case-law and other authorities by counsel on both sides. The essence of a judicial approach is objectivity, exclusion of extraneous materials or considerations and observance of rules of natural justice. Of course, fairplay is the basis and if perversity or arbitrariness, bias or surrender of independence of judgment vitiate the conclusions reached, such finding, even though of a domestic tribunal, cannot be held good.

However, the courts below misdirected themselves, perhaps, in insisting that passengers who had come in and gone out should be chased and brought before the tribunal before a valid finding could be recorded. The ‘residuum’ rule to which counsel for the respondent referred, based upon certain passages from American Jurisprudence does not go to that extent nor does the passage from Halsbury insist on such rigid requirement. The simple point is, was there some evidence or was there no evidence — not in the sense of the technical rules governing regular court proceedings but in a fair commonsense way as men of understanding and worldly wisdom will accept. Viewed in this way, sufficiency of evidence in proof of the finding by a domestic tribunal is beyond scrutiny. Absence of any evidence in support of a finding is certainly available for

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the court to look into because it amounts to an error of law apparent on the record. We find, in this case, that the evidence of Chamanlal, Inspector of the Flying Squad, is some evidence which has relevance to the charge levelled against the respondent. Therefore, we are unable to hold that the order is invalid on that ground.” (emphasis supplied) These principles have been reiterated in subsequent decisions of this Court including State of Rajasthan v. B K Meena6; Krishnakali Tea Estate v. Akhil Bharatiya Chah Mazdoor Sangh7; Ajit Kumar Nag v. Indian Oil Corporation Ltd. 8; and CISF v Abrar Ali9.

7. This Court is of the considered opinion that for convicting an

employee under criminal law, a strict standard of proof is required.

However, no such strict proof is required to punish an employee under the

Discipline and Appeal Rules. Even preponderance of probabilities is enough

to punish an employee under the Discipline and Appeal Rules.

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8. This being the scope of the departmental disciplinary

proceedings, the procedures for conducting the criminal case and the

procedures contemplated for the departmental disciplinary proceedings are

different and distinct and cannot be compared. Thus, there is no impediment

for the Authorities to continue the departmental disciplinary proceedings