Madras High Court

P.Deepa vs The Principal on 23 March, 2022

                                                                  W.P.(MD) No.16325 of 2021


                                  BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                                 DATED: 23.03.2022

                                                      CORAM:

                                    THE HONOURABLE MR.JUSTICE S.M.SUBRAMANIAM


                                              W.P.(MD) No.16325 of 2021
                                                         and
                                             W.M.P.(MD) No.13180 of 2021


                 P.Deepa                                                         ... Petitioner
                                                         vs.


                 The Principal
                 Theni Govt. Medical College Hospital
                 Theni, Theni District                                           ... Respondent


                 PRAYER: Writ Petition filed under Article 226 of the Constitution of India for

                 issuance of writ of certiorari calling for the impugned proceedings issued by

                 the respondent in Na.Ka.No.153/CMP/2021, dated 24.08.2021 and quash the

                 same.


                           For Petitioner    : Mr.Jeganathan.C.

                           For Respondent    : Mr.M.Ramesh
                                               Government Advocate




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                                                                   W.P.(MD) No.16325 of 2021


                                                      ORDER

The charge memo, dated 24.08.2021, issued by the respondent, is

under challenge in this writ petition.

2. The petitioner is working as Staff Nurse in the Government

Medical College Hospital at Theni. The impugned charge memo reveals that a

criminal case was registered against the petitioner and she has suppressed the

same in the office of the Medical College, even after delay, the said factum was

not informed by the petitioner to the Department.

3. This Court is of the opinion that the merit involved in the

criminal case is one aspect of the matter and the misconduct of the public

servant is another aspect of the matter. In respect of certain misconducts

under the Conduct Rules, the Authorities are empowered to initiate actions

under the Discipline and Appeal Rules. As far as the charge memo is

concerned, it is not only relating to registration of a criminal case, but the

petitioner has suppressed the factum of registration of a criminal case to the

Authority Competent. Even after lapse of time, the petitioner has failed to

inform the same to the Authority concerned, which is a misconduct for which

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charges are framed against the petitioner. Therefore, the argument advanced

by the learned counsel for the petitioner that a false criminal case was

registered against the petitioner cannot be a ground to quash the

departmental disciplinary proceedings as the standard of proof required for

the criminal case cannot be compared with the proof required for the

disciplinary proceedings. Thus, the activity of the employee towards

unbecoming of public servant is also a misconduct under the Conduct Rules.

Therefore, preponderance of probabilities is enough to punish the employee

under the Discipline and Appeal Rules. Therefore, mere pendency of a

criminal case is not a bar for the Disciplinary Authority to proceed with the

departmental disciplinary proceedings.

4. The issue regarding simultaneous proceedings are now settled

by this Court and the Honourable Supreme Court. This Court by order dated

08.02.2022, in W.P.(MD) No.14356 of 2019 has formulated the following

principles:

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

departmental disciplinary proceedings may be

initiated simultaneously as the case may be;

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(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 fact

and law and the disciplinary authority is not in

possession of the required materials for the purpose

of conducting enquiry, then administrative decision

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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.

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(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 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

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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 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

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disposal of the criminal case registered under the

Prevention of Corruption Act, 1988.

5. The above principles carved out by this Court have been

affirmed by the Honourable Supreme Court in the case of State of

Karnataka and another vs. Umesh, reported in 2022 LiveLaw (SC) 304,

wherein the Apex Court in Paragraph Nos.13 and 14 has 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 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

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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 Singh [(1977) 2 SCC 491], 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 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

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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 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 Meena [(1966) 6 SCC 417];

Krishnakali Tea Estate v. Akhil Bharatiya Chah Mazdoor Sangh [(2004) 8 SCC 200]; Ajit Kumar

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Nag v. Indian Oil Corporation Ltd. [(2005) 7 SCC 764]; and CISF v Abrar Ali [(2017) 4 SCC 507].

6. The learned Additional Government Pleader made a submission

that the enquiry proceedings had already been completed and the Enquiry

Officer has also submitted a final report.

7. This being the factum, the Disciplinary Authority has to pass

final orders by following the procedures as contemplated. After passing final

orders by the Disciplinary Authority, if at all the petitioner is aggrieved, she is

at liberty to prefer appeal under the relevant Rules.

8. With the above observations and directions, the writ petition is