The charge memo dated 08.09.2014 issued by the respondent is under challenge in this writ petition. The learned counsel appearing on behalf of the writ petitioner made a submission that the petitioner was initially appointed as Typist in Labour and Employment Department on 09.04.1984 and there after promoted upto the post of Junior Employment Officer with effect from 02.02.2011 onwards.
2.When the petitioner was holding the post of Junior Employment Officer, Erode, a criminal case was registered against him in Cr.No.18/2014 under
Sections 120-B and
420 of I.P.C. The criminal case was registered on account of the complaint given by one S.Dharmalingam on 27.06.2014 stating that the Writ Petitioner had cheated him and his relatives by receiving certain amounts by promising to get any Government employment. In respect of the registration of criminal case against the writ Petitioner, he was arrested on 27.06.2014 and subsequently released on conditional bail on 29.08.2014. The petitioner states that the criminal case is still pending. During the pendency of the criminal proceedings, the respondent had issued charge memo in proceedings dated 08.09.2014 and the charge framed against the Writ Petitioner is extracted hereunder:
Fw;wr;rhl;L/1 nkny Fwpg;gplg;gg;Ls;s jpU bg/jpU/fpU!;zd;. ,sepiy ntiytha;g;g[ mYtyu; (jw;fhypf gzpePf;fk;) khtl;l ntiytha;g;g[ mYtyfk;. <nuhL mtu;fs; kPJ jpU/v!;/ ju;kyp';fk;. (j-bg/br';nfhl;ilad;(nyl;). 3/119. bkhz;oghisak;. rp';fk;ngl;il m";ry;. gthdp jhYf;fh. <nuhL khtl;lk;) mtu;fshy; 26/06/2014 njjpapl;l g[fhu; kD. <nuhL khtl;l fhty; fz;fhzpg;gghsu; mtu;fsplk; mspf;fg;gl;Ls;sjhft[k;. mg;g[fhupy; jpU/bg/fpUl;ozd; vd;gtu; fz;kzp vd;gtUld; Tl;Lr;rjp bra;J g[fhu;jhuuplk; U:/30.000-?Kk; kw;Wk; kufjk;. tonty;. b$aKUfd;. a[tuh$;. b$fjP!;tud;. tp$aFkhu; Mfpnahu;fsplKk; nru;j;J U:/9.10.000-?I bgw;Wf;bfhz;L ntiya[k; th';fpf;bfhLf;fhky;. gzj;ija[k; jpUg;gpf; bfhLf;fhky; Vkhw;wptpl;lhu; vd;w g[fhhpd; ngupy;. Fw;w vz;/18-2014 thapyhf g[yd; tprhuiz nkw;bfhs;sg;ggl;L. 27/06/2014 md;W fhiy 8/45 kzpf;F mtuJ tPl;ow;F Kd;g[ itj;J Kiwg;go ifJ bra;ag;gl;L. ePjpkd;w fhtYf;F cl;gLj;jg;ggl;Ls;sJ vd;w jfty; 27/06/2014 njjpa fojk; K:yk;. <nuhL khtl;l ntiytha;g;g[ mYtyfj;jpw;F Kjy; jfty; mwpf;if efy; ,izj;J mspf;fg;gl;Ls;sJ/
3.On a perusal of the charge memo impugned, Annexure II of the charge memo denotes the charge and the details furnished in the First Information Report. Annexure -III provides the list of documents in respect of the charges and Annexure-IV states about the witness. The said Mr.Dharmalingam, who was the complainant in the criminal case is also cited as a witness in the charge memo.
4.Thus, this Court is of the view that the charges are framed based on the compliant regarding the alleged incident and further statement of allegations and imputations are also furnished. This apart, the list of witnesses and documents were also stated in the charge memo. Thus, the charge memo is capable of proceeding in accordance with the Discipline & Appeal Rules in force.
5.The allegations against the Writ Petitioner are certainly serious and the same relates to cheating of the complainant in respect of getting the public employment by providing false promise. No doubt, the Writ Petitioner was arrested and released on conditional bail.
6.The sole contention of the learned counsel appearing for the Writ Petitioner is that the nature of the allegations, both in the criminal case as well as in the departmental proceedings, are one and the same and therefore the disciplinary proceedings are to be kept in abeyance till the criminal case is disposed of.
7.However, this Court is of the opinion that in respect of the pendency of the criminal case, the respondent has chosen to frame the charges under Rule 17 (b) of the Tamil Nadu Civil Service (Discipline & Appeal) Rules. The charges were framed on the basis that the allegations are serious and records including documents and witnesses are available with the Department, so as to proceed against the Writ Petitioner under the Discipline & Appeal Rules.
8.Under these circumstances, this Court is of the opinion that the mere pendency of the criminal case is not a bar for proceeding with the departmental disciplinary proceedings. The allegations against the Writ Petitioner are certainly serious in nature and the petitioner being an officer of the Department of Employment, has involved in the case of cheating in the matter of providing public employment by extending false promise. Though, it remains as an allegation, it is for the Writ Petitioner to participate in the enquiry proceedings and prove his innocence by producing necessary documents, evidence and witnesses.
9.However, in respect of the continuation of departmental disciplinary proceedings, this Court has taken a view that the Department can very well proceed with domestic enquiry and arrive at the conclusion in this regard. When the list of documents and witnesses are available with the department, the department is at liberty to proceed with the same in accordance with the Rules in force and by providing opportunity to the Writ Petitioner.
10.The mere pendency of a criminal case alone cannot be a bar for proceeding with the disciplinary proceedings. The standard of proof require before the criminal Court of law for convicting an accused is high in nature and any benefit of doubt is to be extended in favour of the accused. However, the procedures to be followed by the criminal Court of law, are not required in case of departmental disciplinary proceedings and preponderance of probabilities are sufficient to punish a Government employee under Discipline and Appeal Rules.
11.Thus, the argument advanced in this regard by the learned counsel for the petitioner that the charges both in the criminal case and the departmental disciplinary proceedings, are similar in nature and till the disposal of the criminal case, the departmental disciplinary proceedings may not be proceeded with, deserves no merit consideration.
12.The learned counsel further states that the right of the Writ Petitioner in respect of adducing the evidence before the criminal Court, will be produced in the departmental disciplinary proceedings. This Court is of the opinion that the nature of proceedings before the criminal Court is entirely different and departmental disciplinary proceedings and the procedures to be adopted by the disciplinary Authority are unconnected with the procedures in respect of the criminal trial.
13.Thus, this Court has repeatedly emphasized that the mere pendency of the criminal case, is not a bar for proceeding with the Departmental Disciplinary Proceedings. The Hon'ble Supreme Court of India has also time and again emphasised that simultaneous proceedings are permissible.
14. The ultimate object of initiation of departmental disciplinary proceedings as well as the prosecution under criminal law, is to punish the person who has committed mis-conduct under the Government Servants Conduct Rules and any offence under IPC. The very objective of the departmental disciplinary proceedings is to punish a public servant in the event of establishing any misconduct contemplated under the Tamil Nadu Government Service Conduct Rules.
15. Thus, in view of certain procedural technicalities, the public servant cannot be allowed to escape from the clutches of the departmental disciplinary proceedings and all required is that a reasonable opportunity contemplated under the Rules have to be provided to the delinquent at the time of conducting departmental disciplinary proceedings.
16. The idea of any delinquent to protract and prolong the disciplinary proceedings cannot be encouraged by the Courts. The Constitutional Court have to consider the very purpose and objective of these Rules framed in order to conduct an effective public administration by the State and its organization.
17. Thus, it is not necessary to keep disciplinary proceedings pending during the criminal trial and both are different and distinct and unconnected with each other. Under these circumstances, there is no prohibition on the part of disciplinary authority to proceed with the disciplinary proceedings in accordance with the Rules in force. As stated in the earlier paragraphs, it is left open to the writ petitioner to submit his evidence, documents and witnesses both before the criminal Court of law as well as before the departmental disciplinary authorities. There is no possibility of causing any prejudice in this regard, in view of the fact that there cannot be two sides for truth which will have only one side and it is for the competitive authority and investigating officer to cull out the truth regarding the alleged incident.
18. Thus, this Court is of an undoubted opinion that the truth alone should prevail and to cull out the truth, it is not necessary that the department proceedings be kept in abeyance till the pendency of the criminal case.
19. When the writ petitioner is of the opinion that he is innocence of the allegations and having sufficient documents and evidence to prove that he is not responsible for any such allegations of mis-conduct, then he is bound to appear and participate in the enquiry proceedings as well as in the criminal trial and prove his innocence. Contrarily and no public servant will be allowed to delay this kind litigation before the Court of law only, with an idea to protract and prolong the disciplinary proceedings as well as the criminal case.
20. This Court of a strong view that any departmental disciplinary proceedings initiated against a Government servant, should be concluded within a reasonable time and without causing undue delay. This Court is aware of the fact that long delay in concluding the department disciplinary proceedings, will cause prejudice to the Government servant in respect of their service benefits including promotions, retirement benefits, increment etc., and such being the consequence in the event of long pendency of the department disciplinary proceedings, this Court has to emphasise that the disciplinary authorities, on initiation of the disciplinary proceedings against the Government employees, must take note of these facts and conclude the same at the earliest possible time without any delay.
21. Government servants play a significant role in running the administration of the country. They are important constituents of the administrative set up of the nation. They are pillars of the Government departments on whose shoulders the responsibility to implement the 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 higher ups for their effective resolution. The Government employees have different work culture and responsibilities as compared to their counterparts in private sector. They are smartly paid and have some kind of perquisites given to them, but at the same time, they have heavy responsibilities towards the Government in particular and public in general. However, when the Government servants deviate from the established rules of conduct, the departmental disciplinary proceedings will be initiated. It is the need of the hour to analyse whether conducting departmental proceedings and criminal proceedings would amount to double jeopardy or such simultaneous proceedings are to be continued simultaneously.
22. The departmental authorities are free to exercise such lawful powers as are conferred on them by the departmental rules and regulations.
23. In the case of Sri Bhagwan Ram v. The State of Jharkand, State of Bihar and others(2017), it is well-settled that a domestic enquiry and a criminal trial can proceed simultaneously and the decision in the criminal case would not materially affect the outcome of the domestic enquiry. The nature of both the proceedings and the test applied to reach a final conclusion in the matter, are entirely different.
24. In the case of Dr.Bharathi Pandey-Deputy General Manager V. Union of India[Special Civil Application No.15602 of 2013], the Apex Court held that it is clear that the departmental inquiry proceedings in every case need not be stayed till the criminal proceedings against the petitioner are concluded. It may be done in case of grave nature involving complicated questions of facts and law. The advisability and desirability have to be determined considering facts of each case.
25. In the case of Ajith Kumar Das v. Union of India and Others[W.P.(C) NO.4036 of 2017], the Court held that the departmental enquiry is to maintain discipline in 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 guideline as inflexible rules in which the departmental proceeding may or may not be stayed pending trial in criminal case against the delinquent officer. There would be no bar to proceed simultaneously with the departmental proceeding and trial of a criminal case, unless the charge in a criminal trial is of grave nature involving complicated questions of fact and law. Offence generally implies infringement of public right, as distinguished from mere private right punishable under criminal law, and when trial for criminal offence is conducted, it should be in accordance with the proof of offence as per the evidence defined under the provisions of the Evidence Act. Conversely in the case of departmental enquiry in a departmental proceeding relates to conduct of breach of duty of the delinquent officer who punish him for his misconduct defined under the relevant statute/rule or law that strict standard of rule or applicability of Evidence Act stands excluded in a settled legal position.
26. In the case of Avinash Sadashiv Bhosale v. Union of India[(2012) 13 SCC 142], the Supreme Court held that there is no legal bar for both proceedings to go on simultaneously. The only valid ground for claiming that the disciplinary proceedings may be stayed would be to ensure that the defence of the employee in the criminal case may not be prejudiced, but even such grounds would be available only in cases involving complex question of fact and law. Such defence ought not to be permitted to unnecessarily delay the departmental proceedings. The interest of the delinquent officer as well as the employer clearly lies in a prompt conclusion of the disciplinary proceedings.
27. The Supreme Court in the case of Karnataka State Road Transport Corporation v. M.G.Vittal Rao[(2012) 1 SCC 442] gave a timely reminder of the principles that are applicable in such situations succinctly summed up in the following words:
(i) There is no legal bar for both proceedings to go on simultaneously.
(ii) The only valid ground for claiming that the disciplinary proceedings may be stayed would be to ensure that the defence of the employee in the criminal case may not be prejudiced. But even such grounds would be available only in cases involving complex questions of facts and law.
(iii) Such defence ought not to be permitted to unnecessarily delay the departmental proceedings. The interest of the delinquent officer as well as the employer clearly lies in a prompt conclusion of the disciplinary proceedings.
(iv) Departmental Proceedings can go on simultaneously to the criminal trial, except where both the proceedings are based on the same set of facts and the evidence in both the proceedings is common.
28. In the case of NOIDA Entrepreneur Association v. NOIDA and the others[JT 2001 (2) SC 620], the Apex Court held that the standard of proof and nature of evidence in the departmental inquiry is not the same as in criminal case. The purpose of departmental enquiry and of prosecution is two different and distinct aspects. The criminal prosecution is launched for an offence for violation of a duty the offended 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.
29. In the case of State Bank of India & Ors. Versus R.B.Sharma, [AIR 2004 SC 4144], the Hon'ble Supreme Court reiterated observing that both proceedings can be held simultaneously. It held, the purpose of departmental inquiry and of prosecution is to put a distinct aspect. Criminal prosecution is launched for an offence for violation of 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 a public duty. The departmental inquiry is to maintain discipline in the service and efficiency of public service.
30.In the case of Ajith Kumar Nag v. General Manager(PJ), Indian Oil Corporation Ltd., Haldia[2005-7-SCC-764], the Honourable Apex Court considered the issue of validity of conducting departmental proceeding when the criminal case was pending against the official and held as follows:
Acquittal by a criminal court would not debar an employer from exercising power in accordance with 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 enquiry proceedings is to deal with the delinquent departmentally and to impose penalty in accordance with service Rules. 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 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'.
31. In the case of West Bokaro Colliery(Tisco Ltd.) v. Ram Parvesh Singh(2008) 3 SCC 729, the Hon'ble Supreme Court has held in the case that standard of proof required in criminal case is beyond reasonable doubt and what is required in departmental inquiry is only of finding the guilt on the basis of preponderance of probability and there is no bar in continuing both simultaneously.
32. In the case of S.A.Venkatraman v. Union of India, AIR 1954, SC 375 it has been held by the Supreme Court that taking recourse to both, does not amount to double jeopardy.
1. In Stanzen Toyotetsu India Private Limited v. Girish V. And Other (2014) 3 SCC 636. It was held that suffice it to say that while there is no legal bar to the holding of the disciplinary proceedings and the criminal trial simultaneously, stay of disciplinary proceedings may be advisable course in cases where the criminal charge against the employee is grave and continuance of the disciplinary proceedings is likely to plagiarize their defence before the criminal court.
2. The Supreme Court in State of Rajasthan v. B.K.Meena and Others (1996) 6 SCC 417 held that In certain situations, it may not be 'desirable', 'advisable', or 'appropriate' to proceed with the disciplinary enquiry when a criminal case is pending on identical charges.
Therefore, stay of disciplinary proceedings cannot be, and should not be, a matter of recourse.
3. It is also to note that acquittal in criminal proceedings on the same set of charges, per se, does not entitle the delinquent to claim immunity from disciplinary proceedings, as observed by the Supreme Court in the case of C.M.D.U.C.O. vs. P.C.Kakkar, AIR 2003 SC 1571. In the same way, departmental proceedings may be continued even after retirement of the employee. (U.P.S.S.Corp.Ltd. vs. K.S.Tandon, AIR 2008 SC 1235)
33. Considering the above judgments, this Court is of the firm opinion that the procedure for taking disciplinary action against a Government servant is lengthy and detailed one, giving maximum opportunity to the Government servant to prove his innocence. A Government employee is expected to perform his duties with utmost diligence, efficiency, economy and effectiveness. The Government procedures are lengthy in order to ensure that the Government employees perform their responsibilities without any pressure or exterior considerations. However, at the same time, it ensures discipline amongst the employees and shows the door to the employees who have become dead wood and do not perform as per expectations of public in general and his department in particular. Disciplinary proceeding are conducted to ensure that the morale of the employees as a whole is boosted. It ought to be noted that criminal proceedings will last for years and this can lead to loss of evidences and thereby staying departmental disciplinary proceedings from being conducted simultaneously, would lead to gross miscarriage of justice. Also, it is pertinent to note the fact that the object of such departmental proceedings is not to penalise, but to assist in restoring the morale of Government servants. Thus, it is of utmost importance that the Court has to strike a balance between the need for a fair trial to the accused on one hand and the competing demand for an expeditious conclusion of the ongoing disciplinary proceedings on the other which will not have any adverse impact if is conducted simultaneously.
34. In view of an elaborated discussion made above, this Court is of the opinion that it is possible for disciplinary authority to take a decision in respect of the disciplinary proceedings in obedience to the legal principles stated above. If the facts and the circumstances are cobine in nature and without considering the judgment in the criminal case, department cannot proceeded against the writ petitioner under the Discipline and Appeal Rules and the respondent should at liberty to keep the proceedings in obeyence till the final disposal of the criminal case. If disciplinary authority is of the opinion that based on the records and documents available with the department, they can continue the disciplinary proceedings, then the all respondents shall continue and pass final orders against the nature for the disciplinary proceedings.
35. Thus, this Court follows the legal principles in the settled law in the judgments quoted in the earlier paragraphs.
36. It is necessary to clarify that even in case of taking a decision, the department disciplinary proceedings shall be kept in abeyance till the final disposal of the criminal case and the same may be recorded by the disciplinary authority, followed by assigning reasons and after the disposal of criminal case, they are at liberty proceed against the writ petitioner under the Discipline and Appeal Rules concerned. For instance, if the disciplinary authorities continue disposal of proceedings and pass orders imposing some punishment or otherwise, then also there can be no appeal to review the order of penalty after the conclusion of the criminal case and elaborate the same, if is necessary to state that if an employees is convicted in a criminal case, the final order in the disciplinary proceedings be passed before the disposal of the criminal case and it shall be reviewed under Rules 36 and 37 of the Tamil Naud Civil Service (Discipline and Appeal) Rules. In this regard, the Head of Department is to review the order and punish and otherwise, within a period of six months and for the State Government, no time limit has been prescribed. Thus, the State may review the earlier order of punishment at any time, even after the final orders are passed by the criminal Court. When there are offences in the rules of reviewing the final orders in the departmental disciplinary proceedings, the Court is of the opinion that it is not necessary that all the department disciplinary proceedings be kept in abeyance during the pendency of criminal case.
37. Thus, this Court is of the opinion that the simultaneous proceedings are permissible and the authorities are bound to complete the same at the earliest possible time without causing much delay, without review and no further adjudication on merits.
38. Accordingly, the Writ Petition stands dismissed. No costs. Consequently, connected Miscellaneous Petition is closed.
16.11.2017 kv/nvi Speaking order/Non-speaking order Index: Yes/No Internet: Yes/No To The Regional Joint Director Employment, Coimbatore 641 029.
S.M.SUBRAMANIAM, J.
kv/nvi W.P. No.31371 of 2014 and M.P.Nos.1 and 2 of 2014 16.11.2017