BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT RESERVED ON DELIVERED ON 13-08-2018 20-08-2018 DATED: 20.08.2018 CORAM THE HONOURABLE MR.JUSTICE M.M.SUNDRESH and THE HONOURABLE MR.JUSTICE N.SATHISH KUMAR W.A.(MD)No.746 of 2018 and C.M.P.(MD)No.4430 of 2018 [ENTITY] : Appellant Vs. 1.The [ENTITY]. 2.The [ENTITY]. 3.The [ENTITY]. : Respondents PRAYER: Writ Appeal is filed under Clause 15 of Letters Patent against the order of Writ Court dated 23.01.2018, made in [CASE NUMBER]. !For Appellant : Mr.[ENTITY], For Mr.[ENTITY] ^For Respondents : Mr.[ENTITY], Government Advocate :[ENTITY]
Aggrieved over the order of the learned Single Judge dismissing the Writ Petition to quash the charge memo dated 27.05.2009 issued by the first respondent, the present Writ Appeal has been filed.
2. The appellant/writ petitioner was prosecuted for the offence under [SECTION]/[SECTION] of the [ACT]. The above case, after a full-fledged trial, was ended in acquittal on 31.12.2008 in [CASE NUMBER] on the file of the learned Chief Judicial Magistrate, Pudukkottai. Thereafter, the first respondent issued a charge memo dated 27.05.2009 on the basis of the allegation, which was the subject matter of the criminal trial. Challenging the above said charge memo, the Writ Petition came to be filed. The learned Single Judge has dismissed the Writ Petition, by order dated 23.01.2018. Challenging the same, the present Writ Appeal came to be filed.
3. The main contention of the learned counsel appearing for the appellant is that the Criminal Court, after analysing the entire evidence, has acquitted the appellant, by judgment dated 31.12.2008. The entire allegation levelled against the appellant relates to the year 2000 that he, being a public servant, demanded bribe amount from the defacto complainant. In the process of the amount being handed over to one of the Assistants of the appellant, the Department of Vigilance and Anti-Corruption seized the amount. Thereafter, the appellant proceeded under [SECTION]/[SECTION] of the [ACT]. The same set of witnesses were examined before the Criminal Court and the Criminal Court has rightly acquitted the accused. Based on the similar allegation, the present charge memo dated 27.05.2009 was issued with such a huge delay.
4. It is the further contention of the learned counsel that the charges are sought to be proved by the same witnesses, who are already examined before the Criminal Court. Therefore, initiation of departmental proceedings is not maintainable in law. The learned Single Judge has not considered the above issue and simply dismissed the Writ Petition, which needs to be interfered with. In support of his contentions, he has relied upon the following judgments:
(i) [PRECEDENT];
(ii) Unreported judgment of a Division Bench of this Court in W.P.No.12500 of 2017, dated 29.01.2018 [Union of India, rep. by the Chief Postmaster General, Tamil Nadu Circle, Chennai-600 002 and another v. [ENTITY] and another];
(iii) W.P.(MD)No.1070 of 2012, dated 05.12.2014 [[ENTITY] vs. The Personal Assistant (General) to the District Collector, Office of the District Collector, Virudhunagar District and another]; and
(iv) W.P.No.23452 of 2010, dated 19.03.2012 [M.[ENTITY] vs. The Director of Municipal Administration, Chepauk, Chennai-600 005 and two others].
5. The learned Government Advocate appearing for the respondents submitted that the appellant was acquitted only on the ground of benefit of doubt. What is required to be seen in the departmental proceedings is only preponderance of probabilities. The authority has waited till the conclusion of the criminal trial. The appellant was acquitted only on 31.12.2008 and within a period of five months, charge memo has been issued. Therefore, it cannot be said that there is an inordinate delay in issuing the charge memo. Further, there is no mala fide attributed against the respondents. Hence, it is submitted that the order of the learned Single Judge is perfectly valid and it does not require any interference.
6. In the light of the above submissions, it has to be seen whether the charge memo issued by the first respondent dated 27.05.2009 is liable to be quashed?.
7. Admittedly, it is not in dispute that the appellant was prosecuted for the offence under [SECTION]/[SECTION] of the [ACT], for the alleged act of receiving the bribe in the year 2000 for doing favour to the defacto complainant in that case. The above case was ended in acquittal on 31.12.2008. The appellant was acquitted mainly on the ground of benefit of doubt, considering the inconsistencies and contradictions in the prosecution witnesses. Thereafter, within a period of five months, charge memo was issued by the first respondent dated 27.05.2009 for similar set of allegation, which was the subject matter of the criminal trial. As against the issuance of charge memo, the Writ Petition has been filed. The learned Single Judge has dismissed the Writ Petition, as against which, the present Writ appeal came to be filed.
8. Now, coming to the contention of the learned counsel for the appellant that in identical set of facts, the appellant was proceeded with the criminal trial, which was ended in acquittal and after acquittal, no charges can be framed, in this regard, it is useful to refer to the judgment of the Hon'ble Apex Court in [PRECEDENT], wherein, at Paragraph Nos.29 and 31, the Apex Court has held as follows:
"29. There cannot be any doubt whatsoever, as has been submitted by the learned Additional Solicitor General, that initiation of departmental proceeding is permissible even after the judgment of acquittal is recorded by the criminal court. But the same would not mean that a proceeding would be initiated only because it is lawful to do so. A departmental proceeding could be initiated if the Department intended to adduce any evidence which is in its power and possession to prove the charges against the delinquent officer. Such a proceeding must be initiated bona fide. The action of the authority even in this behalf must be reasonable and fair.
31.In [PRECEDENT] this Court opined that acquittal of a delinquent by a criminal court would not preclude an employer from taking action by the disciplinary authority, if it is otherwise permissible. Such a departmental proceeding, however, cannot be initiated mala fide. It must be conducted in accordance with law. An acquittal of a delinquent ipso facto may not absolve him from undergoing disciplinary inquiry. However, where the charges are absolutely identical, ordinarily the same would not be taken resorted (sic resort) to."
9. From the dictum laid down by the Apex Court, mere acquittal in a criminal case would not absolve the delinquent from undergoing disciplinary enquiry. It is not the case of the appellant that he was acquitted on the ground that there is no evidence on the side of the prosecution. Furthermore, a perusal of the judgment of the Criminal Court makes it clear that the appellant was acquitted only on the ground of benefit of doubt. There is no positive finding that the prosecution was not able to bring any evidence as against the accusation. Therefore, we are of the view that mere acquittal by a Criminal Court giving benefit of doubt would not absolve the delinquent from facing the departmental enquiry. What is required under the disciplinary proceedings is only a preponderance of probability. Strict rule of evidence is not applicable in a disciplinary proceedings. When that being the position, the appellant cannot contend that he cannot be proceeded departmentally for the allegations, which are serious in nature.
10. At this juncture, it is worthwhile to refer to the judgment of the Hon'ble Supreme Court in [PRECEDENT], wherein, at Paragraph No.22, the Hon'ble Supreme Court has held as follows:
"22. The conclusions which are deducible from various decisions of this Court referred to above are:
(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. We are also conscious of the fact that inordinate and unexplained delay in issuing the charge memo vitiates the disciplinary proceedings. But, in the given case, the judgment of the Criminal Court was delivered on 31.12.2008 and within a period of five months, charge memo was issued on 27.05.2009. Therefore, merely because the department has not initiated the disciplinary proceedings simultaneous with the criminal prosecution, that cannot be a ground to contend that there was a huge delay in issuing the charge memo.
12. Admittedly, in this case, the appellant was prosecuted under serious offence. Probably, only waiting for the result of the criminal case, the department has not proceeded against the appellant with the domestic enquiry. The discretion to proceed departmentally or not at the relevant point of time, when the criminal case is pending, was with the authority concerned, probably, expecting the final verdict of conviction. Therefore, though the department has not initiated departmental proceedings immediately or simultaneously with the criminal trial, we are of the view that such delay assumes insignificance. In the given case, as already referred to above, proceedings were initiated within five months after the acquittal of the appellant. Therefore, the contention of the appellant's counsel that there was huge delay in initiating the departmental proceedings cannot be countenanced.
13. No doubt, in the judgments cited by the learned counsel for the appellant, charge memos were quashed on the ground of huge delay. The facts of the above cases are not applicable to the case on hand. Similarly, in [ENTITY]'s case cited supra, this Court, taking into consideration of the list of witnesses as well as the documents similar and identical to that of criminal proceedings, quashed the charge memo.
14. In the judgment reported in [PRECEDENT], the Hon'ble Supreme Court quashed the proceedings holding that the enquiry itself is vitiated on the ground that no opportunity was given, besides, delay of nine years and the delinquent was not given certain documents. Only on that ground, the finding of the enquiry officer was quashed. But, in this case, the enquiry itself has not commenced and immediately after the charge memo, the same was stayed from the year 2010. Hence, the facts of the above case is not applicable to the present case.
15. The Honourable Supreme Court in the case of [PRECEDENT], at Paragraph No.6, has held as follows:-
?6.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 function of the court/tribunal is one of judicial review, the parameters of which are repeatedly laid down by this Court. It would be sufficient to quote the decision in [ENTITY], Excise and Taxation Officer-cum- Assessing Authority, Kamal v. Gopi Nath & Sons. The Bench comprising [ENTITY], J. (as he then was) and [ENTITY], J., affirmed the principle thus : (SCC p. 317, para 8) "Judicial review, it is trite, is not directed against the decision but is confined to the decision-making process. Judicial review cannot extend to the examination of the correctness or reasonableness of a decision as a matter of fact. The purpose of judicial review is to ensure that the individual receives fair treatment and not to ensure that the authority after according fair treatment reaches, on a matter which it is authorized by law to decide, a conclusion which is correct in the eyes of the Court. Judicial review is not an appeal from a decision but a review of the manner in which the decision is made. It will be erroneous to think that the Court sits in judgment not only on the correctness of the decision making process but also on the correctness of the decision itself."
16. In the case of [PRECEDENT] May 29, 2012], the Hon'ble Apex Court held that normally, a 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 sheet 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.
17. In the case of [PRECEDENT], it was held that writ jurisdiction is discretionary jurisdiction and hence, such discretion under [SECTION] should not be ordinarily exercised by quashing a charge sheet. No doubt, in some very rare and exceptional cases, the High Court can quash a charge sheet, if it is found to be wholly without jurisdiction or for some other reason if it is wholly illegal.
18. As already stated, the accused was acquitted only on giving benefit of doubt. Whereas, in the departmental proceedings, only preponderance of probabilities to be seen. While deciding the charge, strict rule of evidence is not applicable. Therefore, merely because the appellant was acquitted by giving benefit of doubt, it cannot be said that the charge memo issued within five months from the date of such acquittal is vitiated and liable to be quashed. Only in exceptional cases, the Court can exercise its discretion to interfere with the charges on the ground that charge memo was issued by the incompetent authority or the authority having no jurisdiction or allegations of mala fide are raised. At this stage, the Court has no jurisdiction to go into the correctness or truth of the charges and it cannot take over the functions of the disciplinary authority. Therefore, we are of the view that there is no bar for initiating disciplinary proceedings even after acquittal of the criminal case.
19. Admittedly, charge memo was issued in the year 2009. The apprehension of the appellant that there would be a bias also will not stand. The officer, who issued the charges, would not be there at present. Hence, we are of the view that there is no merit in the appeal and the order of the learned Single Judge is required to be confirmed and accordingly, the same is confirmed.
20. In fine, the Writ Appeal is dismissed. However, taking note of the fact that the allegations relate to the year 2000 and the criminal case was ended in acquittal on 31.12.2008 and charge memo was issued on 27.05.2009, we deem it fit to direct the first respondent to conclude the departmental proceedings, within a period of six months from the date of receipt of a copy of this judgment.
No costs. Consequently, the connected Civil Miscellaneous Petition is closed.
1.The [ENTITY].
2.The [ENTITY].
3.The [ENTITY].