Madras High Court
S.Vijayasekar vs The State Of Tamil Nadu Rep. By Its on 24 September, 2024
Author: N.Anand Venkatesh
Bench: N.Anand Venkatesh
2024:MHC:3444
W.P.Nos.24167 and 24170 of 2024
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED:24.09.2024
Coram
The HONOURABLE MR.JUSTICE N.ANAND VENKATESH
W.P.Nos.24167 and 24170 of 2024
and
W.M.P. Nos.26419, 26421, 26425 and 26427 of 2024
S.Vijayasekar .. Petitioner in
both W.Ps
Vs
1.The State of Tamil Nadu rep. By its
Principal Secretary to Government,
Home (Police XVII) Department,
Secretariat, Fort St. George,
Chennai – 600 009.
2.The Director General of Police/Director,
Fire and Rescue Services,
Egmore, Chennai – 600 008. .. Respondents in
both W.Ps
Prayer in W.P.No.24167 of 2024: Petition filed under Article
226 of the Constitution of India praying to issue a writ of certiorari to
call for the records relating to the impugned charge memo issued by
the first respondent in Letter No.e-6493/Police-XVII/2023-5 dated
03.05.2024 and to quash the same.
1/19
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W.P.Nos.24167 and 24170 of 2024
Prayer in W.P.No.24170 of 2024: Petition filed under Article
226 of the Constitution of India praying to issue a writ of certiorarified
mandamus to call for the records relating to the impugned
Government Order issued by the first respondent in G.O.(2D) No.244
Home (Police-XVII) Department dated 31.07.2024 and to quash the
same and consequently direct the respondents to allow the petitioner
to retire from service from the date of superannuation on 31.07.2024
with all consequential and other attendant benefits.
For Petitioner : Mr.G.Sankaran,
Senior Counsel
for Mr.S.Nedunchezhiyan
in both W.Ps
For Respondents : Mr.R.Neelakandan,
Additional Advocate General
assisted by
Mr.M.Bindran,
Additional Government Pleader
in both W.Ps
COMMON ORDER
The issue involved in both these writ petitions is common and
hence they are taken up together, heard and disposed of through this
common order.
2. W.P.No.24167 of 2024 has been filed challenging the
proceedings of the first respondent dated 03.05.2024 wherein charge
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W.P.Nos.24167 and 24170 of 2024
memo has been issued against the petitioner to hold an enquiry under
Rule 17(b) of the Tamil Nadu Civil Services (Discipline and Appeal)
Rules.
3. W.P.No.24170 of 2024 has been filed against the impugned
Government Order dated 31.07.2024 not permitting the petitioner to
retire from service and retaining him in service from 31.07.2024 and
for consequential direction to the respondents to allow the petitioner to
retire from service with all consequential and attendant benefits.
4. The case of the petitioner is that he was working as a
Additional Director (Operations and Training) from the year 2020.
Based on a complaint, an FIR came to be registered in Crime No.2 of
2020 by the Vigilance and Anti Corruption, Coimbatore for offence
under Sections 13(2) read with 13(1)(e) of the Prevention of
Corruption Act, 1988. The investigation was completed and prima facie
materials were collected to show that the petitioner had acquired
assets disproportionate to the known sources of income during check
period from 01.01.2006 to 31.12.2010. The final report was taken on
file by the Special Court, Coimbatore in Spl. C.C.No.6 of 2023.
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5. The petitioner was placed under suspension by the orders
passed by the first respondent dated 03.10.2023. The request made
by the petitioner for reinstatement was also rejected. A charge memo
dated 03.05.2024 came to be issued by framing two charges against
the petitioner. The first charge is that the petitioner had movable and
immovable properties to the tune of Rs.15,83,793/-, which was
disproportionate to the tune of 57% to the known sources of income.
The second charge was that the petitioner did not maintain absolute
integrity and devotion and hence had contravened Rule 20 of the Tamil
Nadu Government Servants Conduct Rules, 1973.
6. The case of the petitioner is that the charge memo has been
issued on the same set of facts/identical facts, for which the petitioner
was facing criminal proceedings.
7. The further case of the petitioner is that the petitioner filed
Crl.R.C.No.766 of 2024 before this Court against the order passed by
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the Special Judge, Coimbatore dismissing the discharge petition filed
by the petitioner. This criminal revision case came to be allowed by an
order dated 10.07.2024. As a consequence, the Special Court,
Coimbatore by order dated 07.08.2024 disposed of the criminal case
as 'discharged'.
8. The date of superannuation of the petitioner fell on
31.07.2024. In the meantime, G.O.(2D) No.244 Home (Police-XVII)
Department dated 31.07.2024 came to be issued and the petitioner
was not permitted to retire from service on his reaching the age of
superannuation and he was retained in service. It is under these
circumstances, the charge memo and the order passed retaining the
petitioner in service have been put to challenge in these two writ
petitions.
9. The respondents have filed separate counter affidavits in both
the writ petitions.
10. The respondents have taken a stand that the discharge of
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the petitioner in the criminal proceedings by itself will not prevent the
respondents from initiating disciplinary proceedings against the
petitioner. The respondents after placing reliance upon various
judgments of the Supreme Court have taken a stand that the nature of
the proceedings is completely different when it comes to initiation of
disciplinary proceedings and the standard of proof is also different and
therefore, there is no ground to stop the first respondent from
proceeding further with the disciplinary proceedings against the
petitioner. Accordingly, the respondents have sought for dismissal of
these writ petitions.
11. The learned senior counsel for the petitioner submitted that
the disciplinary proceedings have been initiated on identical set of facts
for which the petitioner was facing criminal proceedings and therefore,
on the petitioner being discharged from the criminal proceedings, the
departmental proceedings must also fall and there is no question of
independently conducting the departmental proceedings on the same
set of facts. The learned Senior Counsel in order to substantiate his
submission relied upon the judgment of the Supreme Court in Ram
Lal Vs. State of Rajasthan and Others reported in (2024) 1 SCC
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175 and the petitioner placed specific reliance upon the following
paragraphs:
'28. Expressions like “benefit of doubt” and “honourably
acquitted”, used in judgments are not to be understood as magic
incantations. A court of law will not be carried away by the mere
use of such terminology. In the present case, the Appellate Judge
has recorded that Ext.P-3, the original marksheet carries the
date of birth as 21-4-1972 and the same has also been proved by
the witnesses examined on behalf of the prosecution. The
conclusion that the acquittal in the criminal proceeding was
after full consideration of the prosecution evidence and that the
prosecution miserably failed to prove the charge can only be
arrived at after a reading of the judgment in its entirety. The
Court in judicial review is obliged to examine the substance of
the judgment and not go by the form of expression used.
29. We are satisfied that the findings of the Appellate
Judge in the criminal case clearly indicate that the charge
against the appellant was not just, “not proved”- in fact the
charge even stood “disproved” by the very prosecution evidence.
As held by this Court, a fact is said to be “disproved” when,
after considering the matters before it, the court either believes
that it does not exist or considers its non-existence so probable
that a prudent man ought, under the circumstances of the
particular case, to act upon the supposition that it does not
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exist. A fact is said to be “not proved” when it is neither
“proved” nor “disproved” (see Viayee Singh v. State of U.P.
[(1990) 3 SCC 190].
30. We are additionally satisfied that in the teeth of the
finding of the Appellate Judge, the disciplinary proceedings and
the orders passed thereon cannot be allowed to stand. The
charges were not just similar but identical and the evidence,
witnesses and circumstances were all the same. This is a case
where in exercise of our discretion, we quash the orders of the
disciplinary authority and the appellate authority as allowing
them to stand will be unjust, unfair and oppressive. This case is
very similar to the situation that arose in G.M.Tank (G.M.Tank
vs. State of Gujarat (2006) 5 SCC 446)'
12. Per contra, learned Additional Advocate General appearing
on behalf of the respondents placed heavy reliance upon G.O.(Ms)
No.66 Human Resources Management (N) Department dated
06.07.2022. Learned Additional Advocate General submitted that
acquittal by a criminal Court would not debar an employer from
exercising power in accordance with the Service Rules and Regulations
since both the proceedings are entirely different and they operate in
different fields and having different objectives. The learned Additional
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Advocate General submitted that even after the order of acquittal is
passed in the criminal case, it will not affect the disciplinary
proceedings in any manner and there is absolutely no bar for the
respondents to proceed further with the departmental proceedings.
The learned Additional Advocate General in order to substantiate his
submission, relied upon the following judgments:
(a) Capt. M.Paul Anthony Vs. Bharat Gold Mines Ltd.,
and Anr. Reported in (1999) 3 SCC 679
(b) HPCL Vs. Sarvesh Berry reported in (2005) 10 SCC
(c) M/s.Stanzen Toyotetsu India P. Ltd., Vs. Girish V. &
Ors (dated 21.01.2014)
(d) Eastern Coalfields Limited & Ors Vs. Rabindra
Kumar Bharti (Civil Appeal No.2794 of 2022 dated
07.04.2022)
(e) A.Geetha Vs. The Tamil Nadu Generation and
Distribution Corporation Ltd., and Others (W.P.No.23883 of
2021 dated 26.03.2024)
(f) D.Deepa Vs. The Principal District and Sessions
Judge, Thiruvannamalai and Others (W.P.No.17515 of 2024
dated 02.07.2024)
13. This Court has carefully considered the submissions made on
either side and the materials available on record.
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14. The criminal case was registered against the petitioner on
the ground that he was in possession of assets disproportionate to the
known sources of income. The FIR was registered in Crime No.2 of
2020 and it resulted in the filing of the final report before the Special
Court, Coimbatore. The final report was filed on the ground that while
the petitioner was working as a Joint Director during the check period
from 01.01.2006 to 31.12.2010, the petitioner was in possession of
disproportionate assets to the tune of Rs.15,83,793/-. As per the final
report, the petitioner had acquired disproportionate assets to the tune
of 57% more than the known sources of income.
15. The petitioner filed the discharge petition before the Special
Court, Coimbatore and it was dismissed. Aggrieved by the same, the
petitioner filed Crl.R.C.No.766 of 2024 before this Court. This criminal
revision case was allowed by order dated 10.07.2024. The learned
single Judge allowed the criminal revision case and discharged the
petitioner from the criminal case mainly on the ground that the
petitioner neither worked nor acquired assets at Coimbatore during the
check period and the very filing of the final report against the
petitioner was running contrary to the judgment of the Apex Court in
V.K Puri's case in V.K.Puri Vs. CBI reported in 2007 (6) SCC 91.
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W.P.Nos.24167 and 24170 of 2024
16. The charge memo has already been issued against the
petitioner through proceedings dated 03.05.2024 and the following
charges have been framed against the petitioner:
'Charge I
That you Thiru.S.Vijayasekar, Additional Director
(Operations and Training) (now under suspension), Fire
and Rescue Services, Chennai (formerly Joint Director,
Fire and Rescue Services, Coimbatore), while functioning
as Joint Director, Western Region, Coimbatore, during the
period from 01.01.2006 to 31.12.2010 had amassed
properties and pecuniary resources which are
disproportionate to the known sources of your income and
acquired movable and immovable assets in your name to
the extent of Rs.15,83,793/- i.e. More than 57% to your
known sources of income. Thereby you appeared to have
committed an offence punishable under Section 13(2)
read with 13(1)(e) of Prevention of Corruption Act, 1988.
Charge II
That you Thiru.S.Vijayasekar, Additional Director
(Operations and Training) (now under suspension), Fire
and Rescue Services, Chennai (formerly Joint Director,
Fire and Rescue Services, Coimbatore) have failed to
maintain absolute integrity and devotion to duty, which is
unbecoming of a member of the service under Rule 20 of
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W.P.Nos.24167 and 24170 of 2024
the Tamil Nadu Government Servants' Conduct Rules
1973.'
17. On a careful reading of the above charge memo, it is seen
that the charge memo has been issued on the same set of facts which
are identical with those facts for which the petitioner was prosecuted
on the criminal side. Though the charge memo does not mention
about the crime number and the investigation that was conducted by
the police, the fact remains that the first charge against the petitioner
is nothing but the charge which was brought against the petitioner in
the final report. That apart, it is also seen that the list of witnesses
whose names are found at Annexure IV to the charge memo are the
same witnesses whose statements were relied upon by the police to
lay the final report before the Special Court. It is therefore clear that
the facts based on which the disciplinary proceedings were initiated
and the witnesses who are going to be examined are identical to the
facts and the witnesses whose statements were recorded by the police
in the course of investigation in the criminal case.
18. The next issue is as to whether the respondents are entitled
to proceed further with the departmental proceedings inspite of the
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petitioner being discharged from the criminal case by this Court.
19. The learned Additional Advocate General has relied upon
G.O.(Ms) No.66 Human Resources Management (N) Department dated
06.07.2022. This Government Order enables the employer to proceed
further with the departmental proceedings even in a case where the
delinquent employee has been acquitted by the criminal Court. It is on
the ground that both the proceedings are entirely different and they
operate in different fields and they have different objectives.
20. The learned Additional Advocate General in order to
substantiate his submission has also relied upon various orders that
have been referred supra.
21. There is no straight jacket formula when it comes to
proceeding further with departmental proceedings after a person is
acquitted in a criminal case. Insofar as criminal proceedings are
concerned, the offence is said to have been committed against the
State and the standard of proof required is proof beyond reasonable
doubts. Whereas, the departmental proceedings confines itself to the
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status of the delinquent officer in an establishment and the standard of
proof required is preponderance of probabilities. Therefore, the nature
of proceedings, standard of proof and the objectives behind both these
proceedings are entirely different. As a consequence, it cannot be said
that where a person is acquitted in a criminal case, the departmental
proceedings can never be continued. Such a blanket bar on the
departmental proceedings is not contemplated in any of the judgments
that were relied upon by both sides.
22. For instance, where acquittal in a criminal case was as a
result of giving benefit of doubt to the delinquent employee, the same
will not come in the way of continuing with the departmental
proceedings against the delinquent officer. Therefore, under such
circumstances, the departmental proceedings can be initiated and
there is no bar in view of the acquittal in the criminal case where the
delinquent officer was given benefit of doubt. Useful reference can be
made to the judgment of the Apex Court in Divisional Controller,
Karnataka State Road Transport Corporation Vs. M.G.Vittal Rao
reported in (2012) 1 SCC 442.
23. The actual test to be applied is to see if the departmental
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proceedings have been initiated on the identical set of facts for which
the criminal case was instituted against the delinquent officer. If the
criminal proceedings and the departmental proceedings are based on
the same set of facts which are identical, the acquittal in a criminal
case will equally apply to the departmental proceedings also and the
accused person/delinquent officer cannot be independently proceeded
against by means of departmental proceedings. Useful reference can
be made to the judgment of the Apex Court in G.M.Tank vs. State of
Gujarat reported in (2006) 3 CTC 494 and this Court in
A.Thangaian and Another Vs. The Superintendent of Police,
Special Branch C.I.D. & Others reported in 2012 (5) MLJ 961.
24. It will also be relevant to take note of the judgment in Ram
Lal's case which has been referred supra. The Apex Court has
reiterated the same position and has held that where the charges in
the departmental enquiry and criminal Court are identical and the
evidence of witnesses and circumstances are also identical and the
criminal proceedings has ended in acquittal, the departmental
proceedings/disciplinary proceedings will have to fail and it cannot
independently proceed further. This judgment was rendered by the
Apex Court after taking into consideration the scope of the standard of
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proof in criminal proceedings and in departmental proceedings. The
Apex Court has held that the Court is supposed to read the entire
judgment/order to first come to a conclusion as to whether the
acquittal was by means of benefit of doubt or on the ground that
charge itself has not been proved. In the former case, there is no bar
for proceeding further with the departmental proceedings but in the
latter, departmental proceedings cannot go on.
25. Applying the above judgments to the facts of the present
case, it is seen that the facts based on which the criminal proceedings
were initiated and the present charge memo has been issued, the
witnesses who are sought to be examined and the circumstances of
both the proceedings are identical and same. Therefore, where the
criminal Court has found that there is no material even to frame
charges against the petitioner in the criminal case, it only goes to show
that the prosecution miserably failed to prove the charge against the
petitioner. Under such circumstances, there is no question of making
the petitioner undergo the ordeal of facing the disciplinary
proceedings. Hence the judgment of the Apex Court in Ram Lal's case
will squarely apply to the facts of the present case.
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26. In the light of the above discussion, the charge memo issued
by the first respondent in Letter No.e-6493/Police-XVII/2023-5 dated
03.05.2024 is hereby quashed. Consequently, the Government Order
issued by the first respondent in G.O.(2D) No.244 Home (Police-XVII)
Department dated 31.07.2024 not permitting the petitioner to retire
from service is also quashed. As a sequitur, there shall be a direction
to the respondents to allow the petitioner to retire from service with all
consequential and other attendant benefits. Necessary orders shall be
passed in this regard within a period of six weeks from the date of
receipt of a copy of this order.
27. In the result, both the writ petitions are allowed with the
above directions. There shall be no order as to costs. Consequently,
connected miscellaneous petitions are closed.
24.09.2024
Index:Yes
Neutral Citation:Yes
mmi
To
1.The Principal Secretary to Government,
Home (Police XVII) Department,
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W.P.Nos.24167 and 24170 of 2024
Secretariat, Fort St. George,
Chennai – 600 009.
2.The Director General of Police/Director,
Fire and Rescue Services,
Egmore, Chennai – 600 008.
N.ANAND VENKATESH,J.
mmi
W.P.No.24167 and 24170 of 2024
24.09.2024
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W.P.Nos.24167 and 24170 of 2024
https://www.mhc.tn.gov.in/judis
