Madras High Court

P.Parthibaraja vs The Superintendent Of Prisons on 4 August, 2022

                                                                                  W.P.No.11859 of 2015

                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                DATED : 04.08.2022

                                                      CORAM :

                           THE HONOURABLE MR. JUSTICE S.M.SUBRAMANIAM

                                                W.P.No.11859 of 2015

                    P.Parthibaraja                                                  ... Petitioner

                                                           Vs.


                    The Superintendent of Prisons
                    Central Prison
                    Vellore                                                        ... Respondent

                    Prayer: Writ Petition filed under Article 226 of the Constitution of India for
                    issuance of a Writ of Mandamus, directing the respondent to keep the
                    disciplinary      proceedings   initiated    by    the   respondent     in    his
                    Ref.No.12123/KC2/2014 dated 31.12.2014 in abeyance pending disposal of
                    the criminal case registered in crime No.349 of 2014 dated 30.10.2014
                    pending on the file of Bagayam P.S., Vellore District.


                                          For Petitioner         : Mr.K.Venkataramani
                                                                   Senior Advocate
                                                                   For Mr.M.Muthappan

                                          For Respondent         : Mr.L.S.M.Hasan Fizal
                                                                   Additional Government Pleader




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                                                                                   W.P.No.11859 of 2015


                                                        ORDER

The charge memorandum dated 31.12.2014 issued by the

respondent is sought to be quashed in the present writ petition.

2. The petitioner entered the services of the Prison Department as

a Grade-II Warder and the petitioner was placed under suspension on

initiation of departmental disciplinary proceedings. A charge memo was

issued in proceedings dated 31.12.2014 and a criminal case was registered

against the writ petitioner in Crime No.349 of 2014 under Section 417, 420

and 506 part II I.P.C.

3. The learned Senior Counsel appearing on behalf of the writ

petitioner mainly contended that the facts, circumstances and evidences

both in the departmental disciplinary proceedings and the criminal charges

are one and the same. Therefore, the departmental disciplinary proceedings

are to be kept in abeyance, till such time the criminal case was disposed of

by the Criminal Court of Law. Further, it is contended that the allegations in

the criminal case are no way connected with the official duties of the

petitioner and therefore, the disciplinary proceedings are to be kept in

abeyance till the disposal of the criminal case.

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W.P.No.11859 of 2015

4. As far as the public servants are concerned, the misconducts

are put forth and even the offences, illegalities and misconducts outside the

scope of the official responsibilities are also falling under the provisions of

the Government Servants Conduct Rules. That apart, once a criminal case is

registered against a Government employee, it involves public interest and

the 'State' being the prosecutor, the public servant cannot claim that the

allegations in the criminal case are no way connected with the official

performance. A Government servant is expected to maintain good conduct

both inside and outside the office. A public servant enjoys special status in

the society and by virtue of the status, he is liable to maintain a good

conduct at all circumstances. This being the basic objective of the Conduct

Rules, this Court is of the considered opinion that the ground raised by the

writ petitioner that the allegations in the criminal case is no way connected

with the official responsibilities, deserves no merit consideration.

5. The learned Additional Government Pleader appearing on

behalf of the respondent brought to the notice of this Court that trial is

pending before the Learned Judicial Magistrate No.1, Vellore on the file of

Bagayam Police Station Crime No.349 of 2014.

6. As far as the simultaneous proceedings are concerned, this https://www.mhc.tn.gov.in/judis

W.P.No.11859 of 2015

Court already considered the principles of simultaneous proceedings in

W.P.(MD) No.25269 of 2019 and the relevant paragraphs are extracted

here under:

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 pro- ceedings during the pendency of the criminal case. In other words, pendency of the criminal case cannot be a ground to keep the de- partmental 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 the departmental disciplinary proceedings. This Court has elabor- ately 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 de- partmental 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 simul- taneous proceedings may go on or not?;

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W.P.No.11859 of 2015

(v) The departmental domestic enquiry and the crim- inal trial shall proceed simultaneously and the de- cision in the criminal case would not materially affect the outcome of the domestic enquiry;

(vi) The nature of both proceedings and the test ap- plied to reach final conclusion in the matter are en- tirely different.

(vii) If the case involves complicated questions of fact and law and the disciplinary authority is not in pos- session 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 com- pleted 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 pro- ceedings, criminal and departmental are entirely dif- ferent. They operate in different fields and have dif-

ferent objectives. Whereas the object of criminal trial is to inflict appropriate punishment on offender, the purpose of departmental enquiry proceedings is to https://www.mhc.tn.gov.in/judis

W.P.No.11859 of 2015

deal with the delinquent departmentally and to im- pose 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 convicted by a Court of law. In departmental enquiry, on the other hand penalty can be imposed on the delinquent officer on a finding re- corded on the basis of 'preponderance of probability'. To convict a person under criminal law, high stand- ard 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 pro- ceedings. Therefore, there is absolutely no bar for the respondents to continue the departmental disciplinary proceedings and conclude the same and pass final or- ders.

(xi) An order of conviction if any passed in the crim- inal 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 rel- evant 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 en- quiry conducted, in view of the fact that acquittal in a https://www.mhc.tn.gov.in/judis

W.P.No.11859 of 2015

criminal case cannot be a ground for seeking exoner- ation 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 authority may obtain the true copies of the documents and proceed with the departmental disciplinary proceedings.

(xiv) As far as the departmental corruption allega- tions are concerned, it is not necessary that the dis- ciplinary 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 en- quiry are distinct from those which apply to a crimin- al trial. In a prosecution for an offence punishable under the criminal law, the burden lies on the prosec- ution to establish the ingredients of the offence bey- ond reasonable doubt. The accused is entitled to a presumption of innocence. The purpose of a disciplin- ary proceeding by an employer is to enquire into an allegation of misconduct by an employee which res- ults in a violation of the service rules governing the relationship of employment. Unlike a criminal prosec-

ution where the charge has to be established beyond reasonable doubt, in a disciplinary proceeding, a https://www.mhc.tn.gov.in/judis

W.P.No.11859 of 2015

charge of misconduct has to be established on a pre- ponderance 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 em- ployer 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 speak- ing not relevant under the Indian Evidence Act. For this proposition it is not necessary to cite decisions nor text books, although we have been taken through case-law and other authorities by counsel on both sides. The essence of a judicial approach is objectiv- ity, exclusion of extraneous materials or considera- tions and observance of rules of natural justice. Of course, fairplay is the basis and if perversity or arbit- rariness, bias or surrender of independence of judg- https://www.mhc.tn.gov.in/judis

W.P.No.11859 of 2015

ment vitiate the conclusions reached, such finding, even though of a domestic tribunal, cannot be held good. However, the courts below misdirected them- selves, 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 re- corded. The ‘residuum’ rule to which counsel for the respondent referred, based upon certain passages from American Jurisprudence does not go to that ex- tent 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 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 re- spondent. 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 Bhar-

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W.P.No.11859 of 2015

atiya Chah Mazdoor Sangh7; Ajit Kumar Nag v. Indi- an Oil Corporation Ltd. 8; and CISF v Abrar Ali9.

7. This Court is of the considered opinion that for con- victing 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 preponder- ance of probabilities is enough to punish an employee under the Discipline and Appeal Rules.

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 de- partmental disciplinary proceedings during the pendency of the criminal case. In the present case, the respondents are bound to continue the departmental disciplinary proceedings and dispose the same as expeditiously as possible by following the procedures as contemplated and by affording opportunity to the petitioner to defend his case in the manner prescribed.

7. Pursuant to the judgment of the Madurai Bench of Madras

High Court, the Government also issued a G.O.Ms.No.66, Human Re-

source Management Department dated 06.07.2022 and certain guidelines

are issued to the authorities. This being the factum, the respondent

are bound to follow the guidelines and the principles laid down by this

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W.P.No.11859 of 2015

Court for the purpose of continuing the departmental disciplinary proceed-

ings.

8. With these observations, the Writ Petition stands dismissed.

No costs.

04.08.2022