Madras High Court
G.Chithra vs The Deputy Inspector General Of ... on 13 September, 2022
W.P.No.32894 of 2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 13.09.2022
CORAM :
THE HONOURABLE MR. JUSTICE S.M.SUBRAMANIAM
W.P.No.32894 of 2017
and
W.M.P.No.36264 of 2017
and
W.M.P.No.13878 of 2019
G.Chithra ... Petitioner
Vs.
1.The Deputy Inspector General of Police,
Salem Range, Salem. ... Respondent
Prayer: Writ Petition filed under Article 226 of the Constitution of India
for issuance of a Writ of Certiorari, to call for the records pertaining to the
charge memo issued by the respondent herein in his P.R.No.87/G1/ 2017
u/r 3(b) dated 04.10.2017 and quash the same.
For Petitioner : Mr.Ravishanmugam
For Respondent : Mr.K.H.Ravikumar
Government Advocate
ORDER
The charge memorandum issued to the writ petitioner under Rule
3(b) of the Tamil Nadu Police Subordinate Service (Discipline and
Appeal) Rules, 1955, in proceedings dated 04.10.2017 is under challenge
in the present writ petition.
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W.P.No.32894 of 2017
2. The writ petitioner joined as Sub-Inspector of Police on
16.09.2004 and regarding the allegations of demand and acceptance of
bribe, a Criminal Case was registered against him by the Department of
Vigilance and Anti-Corruption Detachment, Krishnagiri District in Crime
No.04/AC/2011 under Section 7 & 13 of the Prevention of Corruption
Act.
3. The learned counsel for the petitioner made a submission that the
charge sheet has been already filed before the competent Criminal Court
of law and the Criminal Case is yet to be disposed of. While so, the
departmental disciplinary proceedings was initiated under Rule 3 (b) of
the Tamil Nadu Police Subordinate Service (Discipline and Appeal) Rules,
1955, against the writ petitioner.
4. The learned counsel for the writ petitioner mainly contended that
the allegations set out in the departmental disciplinary proceedings and the
documents and evidences relied on are one and the same with reference to
the Criminal Case registered against the writ petitioner under the
Prevention of Corruption Act. Thus, the departmental disciplinary
proceedings are to be kept in abeyance till the final disposal of the
Criminal Case, which is now pending before the competent Court of law.
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W.P.No.32894 of 2017
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;
https://www.mhc.tn.gov.in/judis (f) The nature of both proceedings and the test applied
W.P.No.32894 of 2017
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
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W.P.No.32894 of 2017
penalty in accordance 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.
https://www.mhc.tn.gov.in/judis (l) Order of acquittal if at all passed in the criminal case
W.P.No.32894 of 2017
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.
(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
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W.P.No.32894 of 2017
of 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 widespread 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 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
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W.P.No.32894 of 2017
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.
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
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W.P.No.32894 of 2017
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. 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.
12. Based on the orders passed by this Court in W.P.No.14356 of
2019 dated 08.02.2022, the Government also issued orders in
G.O.Ms.No.66, Human Resources Management [N] Department dated
06.07.2022. The Government Order provides guidelines in the matter of
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W.P.No.32894 of 2017
simultaneous departmental disciplinary proceedings for the same set of
charges.
13. Even regarding the interference of Courts in the departmental
disciplinary proceedings or in the event of imposing punishment based on
the departmental disciplinary proceedings, the Hon'ble Supreme Court of
India distinguished by holding that acquittal in a criminal case cannot be a
ground to quash the punishment imposed in a departmental disciplinary
proceedings by conducting an enquiry. The proposition in this regard was
clearly ruled by the Apex Court in the case of The State of Rajasthan &
Ors., Vs. Phool Singh, reported in 2022 LiveLaw (SC) 735 and the
observations are as under:
“7. The question before this Court is therefore only to
see whether the respondent can be reinstated in service for
the reason that now on the same set of charges he has been
acquitted by a criminal court?
8. There should be no ambiguity in law on this
subject. A departmental proceeding is different from a
criminal proceeding. The fundamental difference between
the two is that whereas in a departmental proceeding a
delinquent employee can be held guilty on the basis of
“preponderance of probabilities”, in a criminal court the
prosecution has to prove its case “beyond reasonable
doubt”. In short, the difference between the two proceedings
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W.P.No.32894 of 2017
would lie in the nature of evidence and the degree of its
scrutiny. The two forums therefore run at different levels.
For this reason, this Court has consistently held that merely
because a person has been acquitted in a criminal trial, he
cannot be ipso facto reinstated in service.
11.............
..............
In the above case a distinction has also been drawn
by this Court between a “criminal offence” and
“misconduct”. One has to be proved in a criminal court, the
other in a departmental proceeding, and though both may
arise from the same set of facts, yet there is a clear
distinction between the two and merely because one has
been acquitted in a criminal trial, it would not amount to a
reversal of the findings of “misconduct”, which were arrived
in a departmental proceeding.”
14. In view of the facts and circumstances, there is no impediment
for the respondents to continue the departmental disciplinary proceedings
by following the principles laid down by this Court and with reference to
the judgments cited supra. The petitioner is at liberty to defend his case by
availing the opportunities to be provided as contemplated under the
Discipline and Appeal Rules.
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W.P.No.32894 of 2017
15. With these observations, the writ petition stands dismissed. No
costs. Connected miscellaneous petitions are closed.
13.09.2022
kak
Index : Yes
Speaking order : Yes
To
1.The Deputy Inspector General of Police,
Salem Range, Salem.
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W.P.No.32894 of 2017
S.M.SUBRAMANIAM, J.
kak
W.P.No.32894 of 2017
13.09.2022
https://www.mhc.tn.gov.in/judis
