The petitioners in W.P.No.15175 and 15176 of 2008, Grade I Police Constable and Sub Inspector of Police, have challenged the charge memos, dated 10.03.2008 issued separately to them, by the Deputy Superintendent of Police, Armed Reserve, Chennai City Police, Chennai, the second respondent and the summons, dated 04.06.2008, issued by the Assistant Commissioner of Police, Armed Reserve, Chennai City Police, Chennai, enquiry officer, third respondent.
2. As pleadings and submissions are common, the writ petitions are disposed of by a common order.
3. Short facts deduced from the affidavit filed in support of both the Writ Petitions are as follows:
When the petitioners were working in Chittalapakkam Police Station, pursuant to the registration of a Criminal case in crime No.767/2002, under
Sections 147,363,342,384,506(1),420 and
120 (B) of IPC, against them on the file of St.Thomas Mount Police Station, they were placed under suspension by the Superintendent of Police, Chengai East District, vide orders, dated 25.12.2002 and 24.12.2002 respectively. According to the petitioners, they were under prolonged suspension. Though a Criminal case was registered for various offences, the prosecution has laid charge sheet against the petitioners under
Sections 365 and
385 IPC only, on the file of the learned Judicial Magistrate II, Poonamallee. The charge sheet has been filed in the year 2002. During the course of examination in chief of PW1, the prosecution faced difficulty in marking documents, said to have been recovered from Accused No.1, as they were not available, either in the court or with the respondent police and therefore, the deposition of PW1 was stopped. The prosecution did not take proper steps to bring PW1 and mark the cheques before the Criminal Court. Though the criminal case was registered in the year 2002, the trial has began only after four years and it was protracted at the instance of the prosecution. Therefore, the petitioners were constrained to file Criminal O.P.No.24435/2007, before this Court for a direction to the respondents-police to complete the trial at the earliest. When the criminal case was pending before the learned Judicial Magistrate No.II, Poonamallee, the Deputy Commissioner of Police, Armed Reserve, second respondent, issued charge memos, dated 10.03.2008, containing the same set of allegations in the above Criminal case and the witnesses were almost the same. The charge memos were issued after a lapse of six years from the date of the alleged occurrence. Since the allegations levelled against the petitioners before the Criminal Court and the statement of facts in respect of charges framed by the second respondent are one and the same, the petitioners have made representations to the Joint Commissioner of Police, Chennai-South, first respondent to withhold the departmental proceedings, till the completion of the criminal case. But the Joint Commissioner of Police, Armed Reserve, Chennai City Police, Chennai, first respondent has appointed the second respondent as the enquiry officer. The third respondent, by his impugned letter, dated 04.06.2008, has called upon the petitioners to appear for an enquiry.
4. In the above background of facts, Dr.R.Sampath Kumar, learned counsel for the petitioners submitted that initiation of departmental proceedings, after a delay of nearly 5= years from the date of alleged occurrence or registration of the criminal case itself, would vitiate the entire proceedings. He further submitted that Courts have consistently held that though the department is empowered to take departmental action simultaneously, yet when the trial before the Court of competent Criminal jurisdiction, had already began and the evidence being common, there is absolute no need for formulation of same charges by the department.
5. Placing reliance on the judgment of the Criminal Court, rendered in C.C.No.453 of 2005 on the file of the learned Judicial Magistrate No.II, Poonamallee, acquitting the petitioners of the offences, learned counsel for the petitioners submitted that the impugned charge memos in respect of both the Writ Petitioners have to be set aside, in view of the acquittal of the criminal case, which is the foundation for initiating departmental action. He further submitted that though PW.1 did not appear before the Criminal Court, apprehending that his evidence would be shattered, but he had chosen to appear before the enquiry officer. He further submitted that as the petitioners are bound to appear before the Criminal Court, the enquiry officer, in their absence, has closed down the examination of PW.1. In these circumstances, he submitted that unless the said witness is permitted to be cross-examined, there is violation of principles of natural justice. He also submitted that the cheques alleged to have been recovered were not produced before the enquiry officer. For the above said reasons, he prayed that the disciplinary proceedings are liable to be set aside.
6. The Assistant Commissioner of Police, Armed Reserve, Grade-III, Chennai, third respondent, in his counter affidavit, has submitted that when the petitioners were serving in Chittalapakkam Police Station in the erstwhile Chengai East District, on the complaint of Mr.Murali, Airtel Connect, Chennai, a case in Crime No.767/02 under
Sections 147,363,342,384,506(i),420 and
120 (B) IPC, was registered on the file of the St.Thomas Mount Police Station. Both the Petitioners were suspended, pending investigation in the Criminal case registered against them. After the completion of investigation, a charge sheet was laid before the learned Judicial Magistrate No.II, Poonamallee. Thereafter, the departmental proceedings were initiated by issuance of the charge memos, dated 10.03.2008 to the petitioners under Rule 3(b) of the Tamil Nadu Police Subordinate Service (Discipline and Appeal) Rules. He has further submitted that the charge sheet before the Criminal Court was filed in the year 2002 itself, in time and the respondents are not responsible for the delay.
7. Learned Additional Government Pleader further submitted that there is no bar for initiating departmental action, on the same set of facts, when a criminal case is pending disposal. According to him, as per the circular memo of the Director General of Police, Tamil Nadu in C.No.02132/AP-IV(2)/06, dated 30.03.06, instructions have been issued to take simultaneous departmental action, even if the Criminal Case is pending against the police personnel. It is also submitted that though sufficient opportunities were given to the petitioners to attend the oral enquiry, the writ petitioners have not chosen to defend the charges in the departmental enquiry, but they have straightaway approached this Court.
8. Learned Additional Government Pleader further submitted that no time limit has been prescribed under the Discipline and Appeal Rules, for initiation of the departmental proceedings and it all depends upon the nature of the charges, evidence to be collected and further course of action, etc. He also submitted that even after retirement, disciplinary action can be taken, by invoking Rule 9 of the Tamil Nadu Pension Rules. For the above said reasons, he prayed for dismissal of the Writ Petition.
Heard the learned counsel for the parties and perused the materials available on record.
9. Before adverting to the facts of this case, it is relevant to extract few decisions of the Supreme Court on the issue as to whether the department is empowered to take disciplinary proceedings, when the criminal case is pending on the same set of facts.
10. The principles underlined in Capt M. Paul Anthony v. Bharat Gold Mines Ltd. and another, reported in 1999 (3) SCC 679, at Paragraph 22, are extracted hereunder:
"(i) Departmental proceedings and proceedings in a criminal case can proceed simultaneously as there is no bar in their being conducted simultaneously, though separately.
(ii) If the departmental proceedings and the criminal case are based on identical and similar set of facts and the charge in the criminal case against the delinquent employee is of a grave nature which involves complicated questions of law and fact, it would be desirable to stay the departmental proceedings till the conclusion of the criminal case.
(iii) Whether the nature of a charge in a criminal case is grave and whether complicated questions of fact and law are involved in that case, will depend upon the nature of offence, the nature of the case launched against the employee on the basis of evidence and material collected against him during investigation or as reflected in the charge sheet.
(iv) The factors mentioned at (ii) and (iii) above cannot be considered in isolation to stay the Departmental proceedings but due regard has to be given to the fact that the departmental proceedings cannot be unduly delayed.
(v) If the criminal case does not proceed or its disposal is being unduly delayed, the departmental proceedings, even if they were stayed on account of the pendency of the criminal case, can be resumed and proceeded with so as to conclude them at an early date, so that if the employee is found not guilty his honour may be vindicated and in case he is found guilty, the administration may get rid of him at the earliest."
11. In Ajay Kumar Nag v. G.M.(PJ) Indian Oil Corporation Ltd., reported in 2005 (7) SCC 764, where the Supreme Court has explained the relative scope of departmental enquiry and criminal trial, the objectives, procedure and proof which are required in the proceedings before the Court and domestic enquiry, "11. As far as acquittal of the appellant by a criminal court is concerned, in our opinion, the said order does not preclude the Corporation from taking an action if it is otherwise permissible. In our judgment, the law is fairly well settled. Acquittal by a criminal court would not debar an employer from exercising power in accordance with the 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 the offender, the purpose of enquiry proceedings is to deal with the delinquent departmentally and to impose penalty in accordance with the service rules. In a criminal trial, incriminating statement made by the accused in certain circumstances or before certain officers is totally inadmissible in evidence. Such strict rules of evidence and procedure would not apply to departmental proceedings. The degree of proof which is necessary to order a conviction is different from the degree of proof necessary to record the commission of delinquency. The rule relating to appreciation of evidence in the two proceedings is also not similar. In criminal law, 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 a 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."
12. The competence of the Deputy Commissioner of Armed Reserve, Chennai City Police, Chennai, second respondent herein, to initiate disciplinary action under the Discipline and Appeal Rules, has not been disputed. In view of the well settled legal position stated supra, initiation of the disciplinary proceedings against the writ petitioners cannot be found fault with.
13. The next contention to be considered is whether the disciplinary proceedings should be kept in abeyance, when the delinquents are put on trial, for similar set of charges before the criminal Court of competent jurisdiction. Legal position has been made clear by the Hon'ble Supreme Court in the decision reported in 2004 (7) Supreme Court Cases 27 [State Bank of India and others v. R.B.Sharma]. In paragraph 8,the Supreme Court held as follows:-
"8.The purpose of departmental enquiry and of prosecution are two different and distinct aspects. Criminal prosecution is launched for an offence for violation of a duty the offender owes to the society, or for breach of which law has provided that the offender shall make satisfaction to the public. So crime is an act of commission in violation of law or of omission of public duty. The departmental enquiry is to maintain discipline in the service and efficiency of public service. It would, therefore, be expedient that the disciplinary proceedings are conducted and completed as expeditiously as possible. It is not, therefore, desirable to lay down any guidelines as inflexible rules in which the departmental proceedings may or may not be stayed pending trial in criminal case against the delinquent officer. Each case requires to be considered in the backdrop of its own facts and circumstances. There would be no bar to proceed simultaneously with departmental enquiry and trial of a criminal case unless the charge in the criminal trial is of grave nature involving complicated questions of fact and law. Offence generally implies infringement of public duty, as distinguished from mere private rights punishable under criminal law. When trial for criminal offence is conducted it should be in accordance with proof of the offence as per the evidence defined under the provisions of the Indian Evidence Act, 1872 (in short "the Evidence Act"). Converse is the case of departmental enquiry. The enquiry in a departmental proceeding relates to conduct or breach of duty of the delinquent officer, to punish him for his misconduct defined under the relevant statutory rules or law. That the strict standard of proof or applicability of the Evidence Act stands excluded is a settled legal position. Under these circumstances, what is required to be seen is whether the departmental enquiry would seriously prejudice the delinquent in his defence at the trial in a criminal case. It is always a question of fact to be considered in each case depending on its own facts and circumstances."
14. The above said principle has been reiterated in a subsequent decision reported in 2005 (10) Supreme Court Cases 471 [Hindustan Petroleum Corporation Ltd., and others v. Sarvesh Berry].
15. In Indian Overseas Bank v. P.Ganesan reported in 2007 (5) CTC 632, the Supreme Court, having regard to the legal position that there is no need for automatic stay in the departmental proceedings, has observed that the discretionary Writ jurisdiction under
Article 226 of the Constitution of India should be exercised, keeping in view of the conduct of the parties, stage of the criminal case and whether it would expose the defence of the delinquent, if he is constrained to acquiesce himself to the departmental enquiry, pending disposal of the trial before the Court of competent jurisdiction.
16. In the case on hand, the Criminal case in C.C.No.453 of 2005 on the file of the learned Judicial Magistrate No.II, Poonamallee registered against the petitioners has ended in acquittal. The contention that PW.1 has been examined in their absence and the petitioners were not given adequate opportunity to examine the said witnesses and therefore, there is denial of principles of natural justice, is a matter to be considered by the disciplinary/appointing authority, at the time of examination of the correctness of the findings, procedure followed by the enquiry officer. Therefore, it is premature to delve into the above said aspect. If the material documents are not marked by the department, it is always open to the writ petitioners to take advantage of the same, at the time of consideration of evidence on record, his further representation or explanation on the findings to be recorded by the enquiry officer. What is impugned in this Writ Petition is only the validity of the charges on the ground of delay and the simultaneous initiation of the disciplinary proceedings, when the petitioners are put on trial before the Criminal Court. Now that the Criminal case has ended up in acquittal, there is no bar to proceed with the departmental action.
17. After considering a catena of decisions of the Supreme Court, a Division Bench of this Court in the Superintending Engineer, Chennai Electrical Distribution Circle, Tamil Nadu Electricity Board, Valluvarkottam, Chennai-600 034 and another v. N.Rangaraj reported in 2009(3) MLJ 833, at Paragraph 14, held as follows:
"It is trite law that the purpose of departmental enquiry is to adjudge the government servant/employee's conduct under the relevant conduct or discipline and appeal rules and to maintain discipline and efficiency in Public service, whereas a criminal prosecution is launched for an offence for violation of public duty which he owes, or for breach of law, which entails punishment provided under the penal laws. It is also well settled that the standard of proof to hold a person guilty of offence, is based on strict evidence, as prosecution has to be prove the case beyond all reasonable doubt and what is required in departmental enquiry, is preponderance of probability. In view of the difference and distinction, the principles of law laid down by the Supreme Court in the above referred cases, when applied to the facts of the present case do not warrant deferment of departmental proceedings till the conclusion of the criminal case registered against the respondent. In view of the above, the contention of the respondent that his defence would be exposed cannot be countenanced."
18. No period of limitation has been prescribed in the Discipline and Appeal Rules for initiation of disciplinary proceedings. Formulation of the charges and finalisation of the disciplinary proceedings involves various stages, such as, the process of collection of evidence, number of witnesses to be examined, approval from the competent authority, if required, appointment of an enquiry officer, opportunity to be given to the delinquent, consideration of the explanation, drawing up a minute, etc., for the purpose of providing a fair and reasonable opportunity to the delinquent. There is no hard and fast rule that in every case, where there is some delay, the departmental proceedings should be quashed on the ground of delay. Each case depends upon the facts involved, the nature of charges, time consumed in collection of evidence, the number of persons to be examined, the approval for initiation of departmental action, if required, and such other matters connected thereto. Though a criminal case was filed against the petitioners under crime No.767/2002, under
Sections 147,363,342,384,506(1),420 and
120 (B) of IPC, on the file of St.Thomas Mount Police, it could be seen that after thorough investigation, the Police laid charge in C.C.No.453 of 2005 for the offences only under
Sections 365 and
385 IPC on the file of the Judicial Magistrate II, Poonamallee. Therefore, it is clear that the respondents-police, before submitting the final report to the Court of competent jurisdiction, has taken adequate measures to make sure that there is some legal and acceptable evidence for acceptance of the final report, before the Criminal Court, in respect of certain offences only, as the petitioners should not be prosecuted unnecessarily for other offences, though initially the crime was registered for other offences also. Thus, it is evident that the prosecution has considered the standard of proof required in the Criminal Court.
19. As regards quashing of charges at the threshold, the Supreme Court in Union of India v. Upendra Singh reported in 1994 (3) SCC 357, the Central Administrative Tribunal examined the correctness of the charges against the respondent therein on the basis of the material produced by him and quashed the same. The Union of India preferred an appeal. The Supreme Court, after considering the decisions in T.C.Basappa v. T.Nagappa reported in AIR 1954 SC 440, which was followed in Ujjam Bai v. State of U.P., reported in AIR 1962 SC 1621 and V.D.Trivedi v. Union of India reported in 1993 (2) SCC 55, at Paragraphs 4 and 6 of the judgment in Upendra Singh's case, held as follows:
"In the case of charges framed in a disciplinary inquiry the tribunal or court can interfere only if on the charges framed (read with imputation or particulars of the charges, if any) no misconduct or other irregularity alleged can be said to have been made out or the charges framed are contrary to any law. At this stage, the tribunal has no jurisdiction to go into the correctness or truth of the charges. The tribunal cannot take over the functions of the disciplinary authority. The truth or otherwise of the charges is a matter for the disciplinary authority to go into. Indeed, even after the conclusion of the disciplinary proceedings, if the matter comes to Court or tribunal, they have no jurisdiction to look into the truth of the charges or into the correctness of the findings recorded by the disciplinary authority or the appellate authority as the case may be.
The jurisdiction of the Central Administrative Tribunal is akin to the jurisdiction of the High Court under
Article 226 of the Constitution. Therefore, the principles, norms and the constraints which apply to the said jurisdiction apply equally to the Tribunal. If the original application of the respondent were to be filed in the High Court it would have been termed, property speaking, as a Writ of prohibition. A writ of prohibition is issued only when patent lack of jurisdiction is made out. It is true that a High Court acting under
Article 226 is not bound by the technical rules applying to the issuance of prerogative writs like certiorari, prohibition and mandamus in United Kingdom, yet the basic principles and norms applying to the said writs must be kept in view."
20. Considerable time would have been consumed for collection of materials before formulation of the charges. Having regard to the totality of the circumstances and in the light of the decisions, this Court is unable to subscribe the contention of the learned counsel for the petitioners that there is any inordinate delay in initiating the departmental proceedings, warranting interference.
21. In view of the above, I do not find that the petitioners have made a prima facie case, touching upon the jurisdiction of the authority in initiating the disciplinary proceedings and there is no illegality in the impugned orders. Hence, the Writ Petitions are dismissed. Interim stay granted already is vacated. No costs. Consequently, connected Miscellaneous Petitions are also closed.
S. MANIKUMAR, J.
skm
22. Now that the petitioners have been acquitted of the charges before the Criminal Court, it is always open to them to place it before the enquiry officer for his consideration.
13.10.2009 skm To
1. The Joint Commissioner of Police (South), St. Thomas Mount, Chennai-16.
2. The Deputy Commissioner of Police, Armed Reserve-2, Chennai City Police, St. Thomas Mount, Chennai-16.
3. The Assistant Commissioner of Police, Armed Reserve-3, Chennai City Police, Pudupet, Chennai-2.
W.P.Nos.15175 and 15176 of 2008