Madras High Court

M.Chinnaraj vs The Principal ... on 26 September, 2022

                                                                         WP No.31872 of 2017

                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                 DATED : 26-09-2022

                                                            CORAM

                              THE HONOURABLE MR. JUSTICE S.M.SUBRAMANIAM

                                               WP No.31872 of 2017
                                                      And
                                               WMP No.35022 of 2017



                     M.Chinnaraj                       ..             Petitioner

                                                             vs.

                     1.The Principal Secretary/Commissioner of
                          Survey Settlement,
                       Survey and Land Records,
                       Chepauk,
                       Chennai – 600 005.

                     2.The Assistant Director (I/c),
                       Survey and Land Records,
                       Krishnagiri District.

                     3.The Tahsildar,
                       Pochampalli,
                       Krishnagiri District.

                     4.The Deputy Superintendent of Police,
                       Vigilance and Anti Corruption Department,
                       Krishnagiri District.       ..                 Respondents


                     1/12


https://www.mhc.tn.gov.in/judis
                                                                                       WP No.31872 of 2017




                                  Writ Petition is filed under Article 226 of the Constitution of India,
                     praying for the issuance of a Writ of Certiorarified Mandamus, calling for
                     the records relevant to the order in Roc.No.1195/2017/D1, dated 13.03.2017
                     passed by the second respondent and quash the same as illegal, improper,
                     unreasonable, arbitrary against the principles of natural justice and thereby
                     direct the second respondent to reinstate the petitioner into his service with
                     effect from 11.03.2017 with all back wages.


                                  For Petitioner                 : Mr.V.Tamil Selvan for
                                                                   Mr.A.Rajesh Kanna

                                  For Respondents-1 to 3         : Mr.D.Gopal,
                                                                   Government Advocate.

                                  For Respondent-4               : Mr.S.Rajesh,
                                                                   Government Advocate.

                                                            ORDER

The order of suspension passed by the second respondent dated

13.03.2017, is sought to be quashed in the present writ petition.

2. The petitioner was holding the post of Taluk Sub Inspector

of Survey and he was arrested in a trap case in Crime No.5 of 2017/AC/KG

under Sections 7, 13(2) r/w Section 13(1)(d) of Prevention of Corruption

https://www.mhc.tn.gov.in/judis WP No.31872 of 2017

Act, 1988. Thus the petitioner was placed under suspension.

3. During the pendency of the writ petition, the petitioner

reached the age of superannuation and not allowed to retire from service

and the order of suspension was also extended. However, the petitioner is

receiving the subsistence allowance not exceeding the provisional pension.

4. The learned Government Advocate appearing on behalf of

the respondents 1 to 3 and the learned Government Advocate, appearing on

behalf of the fourth respondent, brought to the notice of this Court that the

criminal case registered against the writ petitioner under the Prevention of

Corruption Act, is pending and the charge sheet has already been filed.

5. This being the factum, the petitioner has to approach the

Competent Authority only after the disposal of the criminal case in Special

CC No.1 of 2019 on the file of the learned Chief Judicial Magistrate,

Krishnagiri and the departmental disciplinary proceedings initiated against

him under the relevant rules in force.

https://www.mhc.tn.gov.in/judis WP No.31872 of 2017

6. It is made clear that the Disciplinary Authority is empowered

to continue the departmental disciplinary proceedings, if they could collect

the documents and the relevant records for the purpose of concluding the

departmental disciplinary proceedings. There is no bar for the Disciplinary

Authority to conclude the departmental disciplinary proceedings even

during the pendency of the criminal case.

7. Regarding simultaneous proceedings, this Court has passed

an elaborate order in W.P.(MD) No.14356 of 2019 dated 08.02.2022 and the

relevant paragraphs-5 to 8 are extracted here under:

“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).

(i) It is a settled law that criminal case and the departmental disciplinary proceedings may be

https://www.mhc.tn.gov.in/judis WP No.31872 of 2017

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 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

https://www.mhc.tn.gov.in/judis WP No.31872 of 2017

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.

(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

https://www.mhc.tn.gov.in/judis WP No.31872 of 2017

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 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

https://www.mhc.tn.gov.in/judis WP No.31872 of 2017

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 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 the citizen are not protected in its complete sense. Thus, providing a non-corrupt administration by the State / Union is

https://www.mhc.tn.gov.in/judis WP No.31872 of 2017

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 AntiCorruption, 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

https://www.mhc.tn.gov.in/judis WP No.31872 of 2017

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.”

8. Based on the judgment of this Court, cited supra, the

Government also issued an order in G.O.Ms.No.66, Human Resources

Management (N) Department, dated 06.07.2022 in the matter of

simultaneous departmental disciplinary proceedings for the same set of

charges as in the criminal case connected with the discharge of official

duties (including the trap and arrest cases).

https://www.mhc.tn.gov.in/judis WP No.31872 of 2017

9. Accordingly, the writ petition stands dismissed. However,

there shall be no order as to costs. Consequently, connected miscellaneous

petition is also dismissed.

26-09-2022

Index : Yes/No.