Madras High Court
K.P.T.Stalin vs The Additional Director Of Survey ... on 8 February, 2022
W.P.(MD)No.14356 of 2019
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 08.02.2022
CORAM:
THE HONOURABLE MR.JUSTICE S.M.SUBRAMANIAM
W.P.(MD)No.14356 of 2019
and
W.M.P.(MD)No.10792 of 2019
K.P.T.Stalin ... Petitioner
-Vs-
1.The Additional Director of Survey and Land Records,
Ezhilagam, Chepauk.
2.The Assistant Director of Survey and Land Records,
Nagercoil, Kanyakumari District.
3.The Assistant Director of Survey and Land Records,
Thanjavur, Thanjavur District.
4.The Chief Secretary,
Government of Tamil Nadu,
Secretariat, Chennai-600 009. ... Respondents
(4th respondent is suo motu impleaded vide Court Order dated 08.02.2022)
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W.P.(MD)No.14356 of 2019
PRAYER: Writ Petition filed under Article 226 of the Constitution of India
for issuance of Writ of Certiorarified Mandamus, calling for the records
relating to the impugned Charge Memo issued by the 2nd respondent herein in
Na.Ka.No.2/4869/2007-2 dated 18.09.2009, quash the same and further direct
the respondents herein to regularise petitioner's suspension period from
07.07.2007 onwards with all service and monetary benefits including further
promotion within a reasonable time as may be specified by this Court.
For Petitioner : Mr.E.V.N.Siva
For Respondents : Mr.N.Satheesh Kumar
Additional Government Pleader
ORDER
The charge memo dated 18.09.2009 issued by the Assistant Director
of Survey and Land Records / second respondent is under challenge in the
present Writ Petition.
2.The writ petitioner is working as Firka Surveyor in Peravurani
Taluk Office, Thanjavur District. He was placed under suspension in
proceedings dated 07.07.2007 on account of criminal case registered against
him for the offences punishable under Sections 7, 13(2) and 13(1)(d) of
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W.P.(MD)No.14356 of 2019
Prevention of Corruption Act, 1988. Criminal trial was concluded and the
petitioner was acquitted from the criminal case through judgment dated
15.05.2017. As against the order of acquittal, Criminal Appeal in
Crl.A.No.440 of 2016 was filed by the State and the same is pending.
3.The learned counsel appearing for the petitioner mainly contended
that there was a delay of two years in framing the charges and subsequently,
no progress has been made in the disciplinary proceedings. Even after passing
an order of acquittal dated 15.05.2017, no decision was taken and therefore,
the petitioner is constrained to file this Writ Petition, challenging the charge
memo.
4.In the present case, the writ petitioner was placed under
suspension on registration of a criminal case under the Prevention of
Corruption Act, 1988. Admittedly, the petitioner was acquitted from the
criminal charges on the ground of want of evidence. The State preferred
Crl.A.No.440 of 2016, which is pending. Under these circumstances, a doubt
arises in the mind of the disciplinary authority, whether to conclude the
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W.P.(MD)No.14356 of 2019
disciplinary proceedings or to keep the proceedings in abeyance. The doubt
arises since the criminal case ended with an order of acquittal and the criminal
appeal filed is pending. There are large number of such cases of disciplinary
proceedings pending in various Government departments and Government
institutions across the State of Tamil Nadu. By taking undue advantage of the
long pendency of the criminal cases and the delay, the delinquent officials are
attempting to escape from the clutches of law and further filing Writ Petitions
after Writ Petitions at each stage, so as to frustrate the departmental
disciplinary proceedings. In the event of not dealing with these matters in an
appropriate manner, the same will end in financial loss to the State and in the
event of reinstatement, the question of backwages or other benefit would arise
and various mitigating circumstances are to be considered, in such cases
where the disciplinary proceedings are prolonged or protracted. No doubt, if
an order of conviction is passed, then the employee is to be dismissed from
service under the Tamil Nadu Civil Services (Discipline and Appeal) Rules. If
the criminal case ended with an order of acquittal, then also the department is
empowered to continue the disciplinary proceedings.
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W.P.(MD)No.14356 of 2019
5.In view of the complex nature of issues raising doubt in the minds
of the disciplinary authority, this Court is inclined to summarize the following
principles, which are all to be followed in the cases of simultaneous
proceedings (i.e., departmental disciplinary proceedings and criminal cases).
(a) It is a settled law that criminal case and the departmental disciplinary
proceedings may be initiated simultaneously as the case may be;
(b) an order of suspension, if required, may be issued in the prescribed
format as per the rules;
(c) 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;
(d) The question to be considered is whether simultaneous proceedings may
go on or not?;
(e) 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;
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(f) The nature of both proceedings and the test applied to reach final
conclusion in the matter are entirely different.
(g) 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
proceedings are conducted and completed as expeditiously as possible.
(h) There is no legal bar for both proceedings to go on simultaneously.
(i) 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
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W.P.(MD)No.14356 of 2019
with service rules.
(j) 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 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.
(k) 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.
(l) 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
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W.P.(MD)No.14356 of 2019
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.
(m)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.
(n) 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.Corruption becomes way of life which is deep-rooted almost in all
levels. An effortful action is to be progressed in order to control the corrupt
activities both in public life as well as amongst the public servants. Only in
non-corrupt public administration, we can preserve the values of
constitutional rights of the citizen. In a corrupt administration, the rights of
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W.P.(MD)No.14356 of 2019
the citizen are not protected in its complete sense. Thus, providing a
non-corrupt administration by the State / Union is also an integral part of the
constitutional mandates. For instance, in a corrupt public administration,
citizen may not get equal opportunity for employments, promotions and in all
fields of developmental activities.
7.Ample Anti-Corruption laws are enacted and in force in our great
Nation. However, effective and efficient implementation of those laws are
lacking, on account of the fact that corrupt activities are vide spread in public
administration. Inactions, commissions and omissions, lack of expertise and
delay in investigations are vital reasons. The slackness and lacunas in the
system encourages the corrupt executives. Thus, it is duty mandatory on the
part of the State to establish a sound and sufficient Vigilance and
Anti-Corruption Wings for the effective and efficient implementation of
Anti-Corruption laws.
8.Shockingly, even in the Department of Vigilance and Anti-
Corruption, the corrupt activities are noticed. If the situations are allowed to
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W.P.(MD)No.14356 of 2019
go on in this manner, undoubtedly, it would affect the development of our
great Nation and a wrong message is sent to the future generations of our
Country. The evil consequences will undoubtedly shake the pillars of the
democratic principles.This Court is of the considered opinion that no writ
petition against a charge memo needs to be entertained in a routine manner. A
writ against a charge memo may be entertained only on certain limited
grounds, if the charge memo is issued by the Authority having no jurisdiction
or the charge memo is wholly illegal. In all other circumstances, the
delinquent official has to participate in the procedure of disciplinary
proceedings and establish his innocence or otherwise.
9.The charge memo is not liable to be quashed as it does not
adversely affect the rights of an employee and does not give rise to any cause
of action. A writ lies only when some right of a party is infringed. The charge
memo does not infringe the right of a party. It is only when a final order
imposing punishment or otherwise, it may have a cause of action. Hence, Writ
Petition, challenging charge sheet by itself is not maintainable. However, it
can be quashed on the ground that issuing authority being not competent to
issue the same.
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W.P.(MD)No.14356 of 2019
10.Government servants play a significant role in running the
administration of our great Nation. They are important constituents of the
administrative setup of the Nation. They are pillars of the Government
Departments on whose shoulders the responsibility to implement the
Government policies lies. They provide public services to the citizens at the
grass root level and in the same way, they forward grievances of the public,
their representations and demands to the higher for their effective resolution.
The Government employees have different work culture and responsibilities
as compared to the counterparts in private sector. They are smartly played and
they have some kind of perquisites given to them, but at the same time, they
have heavy responsibilities to the Government in particular and public in
general.
11.In the present case, the writ petitioner states that there are delay
in concluding the departmental disciplinary proceedings and the delay
occurred on account of doubt in the mind of the disciplinary authorities. Thus,
the doubt arises is reasonable and now, the petitioner states that he was
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W.P.(MD)No.14356 of 2019
acquitted from the criminal case in the year 2017, but no decision is taken.
But the fact remains that the State preferred a criminal appeal, which is
pending. Under these circumstances, no doubt, the petitioner need not be kept
under suspension unnecessarily for the prolonged period. However, it is
brought to the notice of this Court that the petitioner was also reinstated, but
he must be posted in non-sensitive post, till the entire disciplinary proceedings
are concluded.
12.As far as the charge memo is concerned, the same cannot be
quashed, as it must be continued even if the petitioner is acquitted from the
criminal case. As the principles are discussed in the aforementioned
paragraphs, the authorities are bound to follow the same and if the records and
evidences are available proceed with the disciplinary proceedings and if it is
not available, wait till the criminal case is concluded. The petitioner till such
time shall be posted in non-sensitive post.
13.In such circumstances, this Court is inclined to suo motu implead
the Chief Secretary to Government of Tamil Nadu, Secretariat, Chennai-600
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W.P.(MD)No.14356 of 2019
009, as fourth respondent in the present Writ Petition, only for the limited
purpose to issue proper circular to all the departments.
14.Considering the facts and circumstances, the impleaded fourth
respondent is directed to issue an appropriate circular in the line of the
procedures laid down by this Court in the aforementioned paragraphs and
direct all the departments and subordinate officials / disciplinary authorities to
follow such procedures, when a criminal case registered and disciplinary
proceedings are initiated against the public servants.
15.As far as the petitioner in the present case is concerned, the
respondents 1 to 3 are directed to take a decision whether to keep the charge
memo in abeyance, or to continue the disciplinary proceedings. In the event
of taking a decision to continue the disciplinary proceedings, they are at
liberty to collect all the relevant evidences and independently, conduct an
enquiry and conclude the same and pass final orders as expeditiously as
possible. In the event of taking a decision to keep the disciplinary
proceedings in abeyance, they can post the writ petitioner in any one of the
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W.P.(MD)No.14356 of 2019
non-sensitive post, till the disposal of the criminal case and take a proper
decision thereafter.
16.With these observations, this Writ Petition stands disposed of.
No costs. Consequently, connected miscellaneous petition is closed.
08.02.2022
(2/2)
Index : Yes / No
Internet : Yes / No
Myr
To
1.The Additional Director of Survey and Land Records,
Ezhilagam, Chepauk.
2.The Assistant Director of Survey and Land Records,
Nagercoil, Kanyakumari District.
3.The Assistant Director of Survey and Land Records,
Thanjavur, Thanjavur District.
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W.P.(MD)No.14356 of 2019
4.The Chief Secretary,
Government of Tamil Nadu, Secretariat, Chennai-600 009.
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W.P.(MD)No.14356 of 2019
S.M.SUBRAMANIAM,J.
Myr
W.P.(MD)No.14356 of 2019
08.02.2022
(2/2)
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