Madras High Court
G.Janarthanan vs 6 R.Venkateshwar on 7 March, 2022
W.P.(MD) No.986 of 2022
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 07.03.2022
CORAM
THE HONOURABLE MR.JUSTICE S.M.SUBRAMANIAM
W.P.(MD) No.986 of 2022
and W.M.P(MD).No.798 of 2022
G.Janarthanan ... Petitioner
Vs.
1 The Deputy Inspector General of Police,
Thanjavur Zone, Thanjavur.
2 The Additional Superintendent of Police,
Cyber Crime Wing, Nagapattinam.
3 The Deputy Superintendent of Police,
Pattukottai Sub Division,
Thanjavur District
4 C.Ramachandran
5 R.Tamilarasan
6 R.Venkateshwar ... Respondents
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W.P.(MD) No.986 of 2022
Petition filed under Article 226 of the Constitution of India
praying for issuance of Writ of Certiorari calling for the records relating to
the impugned proceedings of the Deputy Inspector General of Police
Thanjavur Zone Thanjavur District in undated P.R.No.91/2021 and quash
the same.
For Petitioner : Mr.R.Srinivas
for Mr.D.R.Murugesan
For Respondents : Mr.M.Ramesh
Government Advocate
for RR1 to 3
Mr.H.Mohamed Imran for R6
No-appearance for R4 & R5
******
ORDER
The charge memo issued under Rule 3[B] of the Tamil Nadu
Police Sub-ordinate Services [Discipline and Appeal] Rules is under
challenge in the present Writ Petition.
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2. The petitioner is working as Inspector of Police. The learned
counsel appearing for the writ petitioner mainly contended that it is a case
of malice in law as there is a personal enmity between the sixth respondent
and the writ petitioner. It is contended that the sixth respondent is a
practising advocate against whom criminal cases are pending. This apart,
the sixth respondent initiated steps to harass the petitioner by filing a false
complaint to the Authorities and filing cases before the High Court.
Therefore, the very charge memorandum itself is motivated and liable to be
set aside.
3. The learned counsel appearing for the petitioner drew a
distinction between the cases where disciplinary proceedings which are to
be kept in abeyance till the disposal of the criminal case and the disciplinary
proceedings which may be permitted to go on even during the pendency of a
criminal case. By drawing a distinction, the learned counsel is of the
opinion that the case on hand is a case where the disciplinary proceedings
are to be kept in abeyance till the disposal of the criminal case as the
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allegations, documents and evidences, both in the criminal case, more
specifically in Crime No.96 of 2009 and the departmental disciplinary
proceedings are one and the same. Therefore, the departmental disciplinary
proceedings are to be kept in abeyance.
4. The learned counsel appearing for the petitioner relied on the
judgment of the Hon'ble Supreme Court in the case of State Bank of India
and others vs. Neelam Nag and another reported in (2016) 9SCC 491,
wherein the Hon'ble Supreme Court also reiterated that during the pendency
of the criminal case, the departmental disciplinary proceedings may be kept
in abeyance. Therefore, the departmental disciplinary proceedings are to be
kept in abeyance.
5. The learned counsel appearing for the writ petitioner solicited
the attention of this Court with reference to the actions taken in Crime No.
157 of 2017 and Crime No.96 of 2019. In Crime No 96 of 2019 alone, the
petitioner is arrayed as an accused. In respect of Crime No.157 of 2017, 10
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accused persons were impleaded and the charge sheet has already been laid.
However, in Crime No.96 of 2019, the charge sheet is yet to be laid.
6. Relying on all these facts and circumstances, the learned
counsel appearing for the petitioner is of the opinion that the charges itself
are motivated and in-capable of being proceeded with, in view of pendency
of criminal case, which is either to be set aside or to be kept in abeyance.
7. The learned counsel appearing for the sixth respondent made a
submission that the sixth respondent has no personal motive against the
petitioner. In respect of the complaint given by the fourth respondent, the
sixth respondent, as a lawyer, represented his case before the Court and
thereby, a dispute arouse. On account of that, the petitioner started acting
against the sixth respondent. Even in respect of the complaint given by the
fourth respondent against 10 accused persons, the petitioner has registered
the case against five accused persons only. Therefore, the fourth respondent
approached the Court of law. At that time of charge sheet, all the 10 persons
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W.P.(MD) No.986 of 2022
were arrayed as accused. Therefore, the sixth respondent is no way
connected with the departmental disciplinary proceedings and in respect of
criminal case, the sixth respondent was appearing on behalf of the defacto
complainant and the said capacity of the sixth respondent as a lawyer is no
way connected with the departmental disciplinary proceedings initiated
against the petitioner. However, the sixth respondent, in respect of
misconduct and other activities of the petitioner, made a complaint with the
Competent Authorities of the Police Department and filed a writ petition to
initiate action against the petitioner in W.P.(MD).No.8343 of 2021 and
during the pendency of the writ petition, the Departmental Authorities have
initiated action against the petitioner under the Discipline and Appeal Rules.
8. The learned Additional Government Pleader appearing for the
Police Department made a submission that based on the allegations, the
charge memo has been issued. The charges reveal certain allegations which
are all to be enquired into by the Competent Authorities. Therefore, the
Authorities must be permitted to continue the departmental disciplinary
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proceedings to form an opinion, after conducting enquiry and dispose of the
proceedings.
9. Considering the arguments as advanced by the respective
learned counsels appearing for the parties to the lis, let us now consider the
charges framed against the writ petitioner which reads as under:
Fw;wr;rhl;L?1 ePh; j";rht{h; khtl;lk;. gl;Lf;nfhl;il
cl;nfhl;lk;. nguht{uzp fhty; epiya Ma;thsuhf gzpg[hpe;J
te;j rkak;. jpU/rp/uhkr;re;jpud;. j-bg/rpjk;guk; Uj;jpu
rpe;jhkzp m";ry;. bul;ltay;. nguht[{uzp jhYf;fh. j";rht[{h;
khtl;lk; vd;gth; 16/06/2017?e; njjp brhj;Jj; jfuhwpy; Vw;gl;l
Kd;tpnuhjk; fhuzkhf milahsk; bjhpe;j 10 egh;fshy;
jhf;fg;l;L. nguht{uzp muR kUj;Jtkidapy; rpfpr;irf;fhf
mDkjpff; g;l;oUe;j epiyapy;. ghjpff; g;gl;l nkw;go egh;
jd;idj; jhf;fpa 10 egh;fs;kPJk; chpa eltof;if
vLf;fntz;Lbkd thf;FK:yk; th';fr; brd;w ck;kplk;
ck;Kld; te;j rpwg;g[ cjtp Ma;thsh; (2988) jpU/jkpHurd;
vd;gthplk; 16/06/2017 md;W vGj;JK:ykhf g[[fhh;
mspj;jpUe;Jk;. mg;g[fhh;kDtpy; Fwpg;gplg;gl;oUe;j 10
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egh;fs;kPJk; jf;f eltof;if vLf;fhky;. mjpy; 5
Fw;wthspfSf;F Mjuthf bray;gLk; nehf;fpy; rp//c/M/2988
jpU/jkpHurd; vd;gth; K:ykhf nkw;go kDjhuh;
jpU/uhkr;re;jpud; vd;gth; 16/07/2017 md;W thf;FK:yk;
bfhLj;jjhf xU bgha;ahd g[fhh; kDtpid jahh; bra;J
mjpy; nghypahf kDjhuhpd; ifbahg;gj;jpid ,l;L mjpy; 5
egh;fis kl;Lk; vjphpfshf Fwpg;gpl;L nghuht{uzp
fhty;epiya Fw;w vz;/157-2017 u/s. 147, 148, 294(b), 324,
506(2) of IPC?d;go tHf;F gjpt[ bra;J bghJkf;fs; kj;jpapy;
fhty; Jiwapd; ew;bgaUf;F fy';fk; tpistpf;Fk; tifapy;
ele;Jbfhz;Ls;s flik jtwpa fz;of;fj;jf;f xG';fPdkhd
bray;/
Fw;wr;rhl;L?2 ePh; nguht{uzp fhty; epiya
Ma;thsuhf gzpg[hpe;J te;jnghJ fle;j 16/06/2017 md;W
jpU/rp/ uhkr;re;jpud;. j-bg/rp//uhkr;re;jpd;. j/bg/rpjk;guk;
vd;gth; ck;kplk; mspj;j g[fhh; kDtpw;F gjpyhf rp/c/M 2988
jpU/jkpHurd; vd;gth; K:ykhf kDjhuh; bgahpy; nghypahd xU
g[fhhpid jahh; bra;Jk;. mjpy; 5 vjphpfs; kPJ kl;Lk;
eltof;if vLj;jjd; tpisthf ghjpf;fg;gl;l egh;.
cah;ePjpkd;wj;jpy; ckf;F vjpuhf kDjhf;fy; bra;J khz;g[kpF
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cah;ePjpkd;wk; Crl.O.P(MD).No.19220/2018. ehs; 29/10/2018?
d; thapyhf rk;ke;jg;gl;l fhty; mYtyh;fs; kPJ Kjy; jfty;
mwpf;if gjpt[ bra;a Miz gpwg;gpj;Jk;. mjd;go nguht{uzp
fhty; epiya Fw;w vz;/96-2019 u/s. 149, 420, 465, 468, 471
r/w 109 ,/j/r?d; go 15/06/2019 md;W ck;kPJ Fw;w tHf;Fg;
gjpt[ bra;ag;gLk; mstpw;F ele;J bfhz;Ls;s xG';fPdkhd
fz;of;fj;jf;f bray;/
10. The first charge reveals that the fourth respondent, who was
the defacto complainant, has given the complaint against 10 accused
persons. However, the petitioner, who was holding the post of Inspector in
the jurisdictional Police Station, registered the criminal case against five
accused persons and allowed the remained five accused to escape from the
clutches of criminal proceedings. The said conduct of the petitioner is taken
as an allegation of misconduct by the Competent Authorities.
11. In respect of second charge, it reveals that inspite of the orders
passed by this Court in Crl.O.P(MD).No.19220 of 2018 dated 29.10.2018, a
criminal case was not registered against the petitioner. There are several
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instances leading to the facts regarding the allegations and the Department
formed an opinion that the petitioner, who was holding the post of
Inspector, has gone to the extent of the Department filing a criminal case
against him. Therefore, the Authorities framed charges specifically stating
that the conduct of the Inspector resulting in registration of criminal case
against him is a misconduct under the Rules.
12. Careful analysis of the charges are of paramount importance to
form an opinion. The first charge reveals that the petitioner, who was the
Inspector of Police, has not registered the criminal case against five persons.
Subsequently, the Authorities, while filing the charge sheet, has found that
the ten persons were involved in the allegations. Accordingly, a charge sheet
has been laid against 10 accused persons. Therefore, the Department has
formed an opinion that the petitioner has caused dis-reputation to the Police
Department.
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13. A careful perusal of the charges would reveal that there is no
allegation as against the petitioner, as far as Crime No.157 of 2017 is
concerned. In respect of Crime No.96 of 2019, the petitioner is arrayed as an
accused. However, the charge reveals that the petitioner being an Inspector,
has gone to the extent of acting unbecoming of the police official which
resulted registration of a criminal case against him.
14. The distinction to be drawn is that a public servant acting
unbecoming of public servant which is also a misconduct. The allegations in
the criminal case are to be tried by the Competent Criminal Court. The
charges are no way connected with the allegations set out in the criminal
case both in Crime Nos.157 of 2017 and 96 of 2019. However, the Conduct
Rules reveal that certain behavior of the public servants are misconducts.
For instance, a public servant behaving unbecoming of public servant is also
a misconduct and further, misconducts of several nature are contemplated in
the Police Conduct Rules. During the course of enquiry, no doubt, the
competent Disciplinary Authority has to consider the files relating to the
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criminal cases registered against the petitioner. Those records are very much
available with the Department which can be collected and the enquiry may
be conducted regarding the manner in which the petitioner has acted or
initiated action in his capacity as the Inspector of Police. All these aspects
are to be enquired into. This Court cannot offer any opinion at this stage.
The question arises whether simultaneous proceedings may go on in the
present case.
15. Regarding simultaneous proceedings, this Court has
formulated the following principles in W.P.(MD)No.14356 of 2019 –
08.02.2022:-
(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
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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 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
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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 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
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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 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
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W.P.(MD) No.986 of 2022
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.
16. Considering the above principles, to proceed with the
departmental disciplinary proceedings, during the pendency of the criminal
case, what is required is whether the departmental proceedings is capable of
being proceeded with or not. The first charge against the petitioner reveal
the conduct of the petitioner in registering the criminal case pursuant to the
complaint given by the fourth respondent. The second charge is regarding to
the misconduct of the petitioner acting unbecoming of a police officer,
which is a misconduct. Therefore, the allegation regarding the criminal case
in Crime No.157 of 2017 is no way connected with the departmental
disciplinary proceedings. As far as the second charge is concerned, it is also
relatable to the misconduct of the petitioner as the Inspector of Police.
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Under these circumstances, there is no bar for the Authorities to proceed
with the enquiry independently. When the documents namely First
Information Report, Charge Sheet and other relatable documents are very
much available with the Department, they can conduct an elaborate enquiry,
if necessary, by taking evidence or otherwise and conclude the same by
affording opportunity to the delinquent employee/writ petitioner. Contrarily,
the case need not be kept in abeyance till the disposal of the criminal case
unnecessarily.
17. In respect of the judgment of the Hon'ble Supreme Court
referred by the learned counsel for the petitioner, in the case of State of
Bank of India as cited supra, this Court is of the opinion that the criminal
case would not cause any prejudice to the interest of the disciplinary
proceedings or cause any prejudice to defend the case by the petitioner. As
pointed out, the petitioner is not an accused in Crime No.157 of 2017. In
Crime No.96 of 2019, though he is an accused, the charges are relating to
the misconduct under the Conduct Rules. Therefore, the Departmental
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Authorities are empowered to proceed with the departmental disciplinary
proceedings as there is no impediment.
18. The departmental disciplinary proceedings are to be concluded
as expeditiously as possible as long pendency of the departmental
disciplinary proceeding would cause prejudice to the interest of the
employee. Thus, the respondent Nos.1 to 3 are directed to proceed with the
departmental disciplinary proceedings by following the procedures as
contemplated and by affording opportunity to all the parties and dispose of
the same as expeditiously as possible, preferably within a period of six
months from the date of receipt of a copy of this Order. The petitioner is
directed to co-operate for early disposal of the departmental disciplinary
proceedings. In the event of non-co-operation on the part of the petitioner,
the same may be recorded in the proceedings itself. In such circumstances,
the petitioner is not entitled to seek any relief on the ground of delay in
disposal of the disciplinary proceedings.
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19. Accordingly, the Writ Petition stands disposed. No costs.
Connected miscellaneous petition is closed.
07.03.2022
ssb
Index:Yes
Internet:Yes
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W.P.(MD) No.986 of 2022
To
1 The Deputy Inspector General of Police,
Thanjavur Zone, Thanjavur.
2 The Additional Superintendent of Police,
Cyber Crime Wing, Nagapattinam.
3 The Deputy Superintendent of Police,
Pattukottai Sub Division,
Thanjavur District
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S.M.SUBRAMANIAM, J.
ssb
W.P.(MD) No.986 of 2022
07.03.2022
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