1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 16/8/2011 C O R A M THE HONOURABLE Mr.JUSTICE S.MANIKUMAR W.P.(MD)No.9129 of 2011 S. Tamilarasan ...Petitioner Vs 1. The Commissioner of Police, Office of Commissioner of Police Pudukottai Road, Tiruchirapalli. 2. The Deputy Commissioner of Police, Office of the Commissioner of Police Pudukottai Road, Tiruchirapalli. ... Respondents Petition filed under Article 226 of the Constitution of India praying for the issuance of a writ of mandamus directing the respondents to defer the departmental proceedings vide charge memo in Tha.Pa.No.44/H1/2009 dated 1/6/2010 based on the criminal cases in Crime Nos.282 and 283 of 2009 pending before the learned Judicial Magistrate, Lalgudi, till the disposal of the same by the learned Judicial Magistrate, Lalgudi. For petitioner ... Mr.M.Siddharthan For respondents... Mr.T.S.Mohammed Mohideen, AGP O R D E R Seeking for a mandamus to defer the departmental proceedings initiated in Na.Ka.No.44/H1/2009 dated 1/6/2010, pending investigation in Crime Nos.282 and 283 of 2009 on the file of the learned Judicial Magistrate, Lalgudi, the petitioner has preferred the present writ petition. 2. Pleadings disclose that on 10/4/2009, the petitioner filed a case against one Nirmal and 5 others for offence under Sections 147, 341 and 323 of the Indian Penal Code in Crime No.283 of 2009. A counter case was also filed against the petitioner in Crime No.282 of 2009 implicating him as accused No.4. Pursuant to the registration of crime against the petitioner, he was suspended by the Commissioner of Police, Tiruchirapalli on 30/4/2009 with effect from 10/4/2009. On 13/5/2010, the suspension was revoked and the petitioner was posted to G.H.Police Station, Tiruchirapalli. Subsequently, the Deputy Commissioner of Police, Tiruchirapalli, issued a charge memorandum under Rule 3 (b) of the Tamil Nadu Police Subordinate Service (Discipline & Appeal) Rules, 1955 and directed the petitioner to appear on 11/12/2010. The petitioner appeared and explained his defence. In these circumstances, he has come forward to file the present writ petition, contending inter alia that, if both the criminal as well as departmental proceedings arising out of the same set of facts, are allowed to be conducted his defence in the criminal case would be exposed. The petitioner has also submitted that, if any adverse order is passed in the departmental proceedings prior to the conclusion of the criminal case, that would affect his defence in the latter. 3. In support of his contention, the petitioner has placed reliance on the decision of a Division Bench of this Court in INDIAN OVERSEAS BANK, rep. BY ITS DEPUTY GENERAL MANAGER, INQUIRY CELL, INDUSTRIAL RELATIONS DEPARTMENT, CHENNAI 600 002 AND ANOTHER Vs. P.GANESAN AND OTHERS reported in 2006 (1) CTC – 689. https://hcservices.ecourts.gov.in/hcservices/ 2 4. Considering the limited prayer, Mr.Mohammed Mohideen, Additional Government Pleader was put on notice and he submitted that, the above said decision has been reversed in INDIAN OVERSEAS BANK, ANNA SALAI AND ANOTHER Vs. P.GANESAN AND OTHERS, reported in 2008 (1) MLJ – 37 (SC) and sought for the dismissal of the writ petition. 5. Heard the learned counsel appearing for the parties and perused the materials available on record. 6. The charge against the petitioner in PR.No.44/H-1/2009 dated 1/6/2010 is extracted hereunder:- ,izg;g[ II jpU/jkpHurd;. jiyikf;fhtyh; 1731 nfhl;il nghf;Ftuj;J fhty; epiyak; jpUr;rp khefuk; vd;gtUf;F vjpuhf Rkj;jg;gl;Ls;s Fw;wr;rhl;ow;F Mjhukhf mjhtJ jtwhd elj;ij my;yJ bewp jtwp ele;J bfhs;Sjy; gw;wpa Fiw Twy;fspd; mwpf;if. JpU jkpHurd;. jiyikf;fhtyh; 1731 Mfpa ePh; 10/04/2009k; njjp 15/00 kzpf;F yhy;Fo fhty; epiya rufk; gk;guk; Rj;jp fpuhkk; khhpak;kd; nfhtpy; bjUitr; nrh;e;j eph;ky; vd;gth; irf;fps; Xl;ote;J ckJ mz;zd; kfd; Rnue;jh; vd;gth; kPJ nkhjpajhft[k; mJ rk;ke;jkhf eph;ky; vd;gthpd; cwtpdh;fs; Rnue;jh; tPl;ow;F brd;W rk;gtj;ij gw;wp nfl;f mg;nghJ Rnue;jpudpd; rpj;jg;gh Mfpa ePh; ckJ kidtp khyjpa[ld; m';F te;J tha;j;jfuhW bra;J xUtUf;bfhUth; fPnH js;spf; bfhz;L ifahy; moj;jjhft[k;. ,e;j rk;gtj;jpy; eph;ky; kw;Wk; Rnue;jpudpd; je;ij ehifad; MfpnahUf;F fhak; Vw;gl;Ls;sjhft[k; Kjy; jfty; mwpf;ifapy; Twpa[s;shh;fs;/ nkYk; fhak;gl;l ,UtUk; yhy;Fo muR kUj;Jtkidapy; rpfpr;ir bgw;W tUk; nghJ eph;ky; vd;gthpd; cwtpdh;fs; m';fpUe;j ck;ik fPnH js;sptpl;L fy;yhy; jhf;fp ckJ jiyapy; fhak; Vw;gLj;jpa[s;sjhf Kjy; jfty; mwpf;ifapy; Twpa[s;shh;fs;/ nkw;go rk;gtk; rk;ke;jkhf eph;ky; bfhLj;j g[fhhpd; nghpy; yhy;Fo fhty; epiya Fw;w vz;/282-09 U/s.147, 341, 323 IPC tHf;F gjpt[ bra;Js;shh;fs;/ mjpy; ePh; 4tJ vjphpahf cs;sPh;/ ePh; bfhLj;j g[fhhpd; kPJ vjphpfs; kPJ yhy;Fo fhty; epiya Fw;w vz;/238- 09 U/s.147, 341, 323 IPC tHf;F gjpt[ bra;Js;shh;fs;/ vdnt ePh; fz;zpak; kpf;f fhty; Jiwapy; eilKiw tpjpfis kPwp ele;J bfhz;l bra;if flik jtwpaJ ck;kPjhd Fw;wr;rhl;lhFk;/ Deputy Commissioner of Police, Crime Traffic, Trichy City. 7. The documents sought to be relied on in the departmental proceedings are:- (i). First Information Report in Crime No.282 of 2009 under Sections 147, 341 and 323 of IPC on the file of Lalgudi Police Station. (ii). FIR in crime No.283 of 2009 under Sections 147, 341 and 323 of IPC on the file of Lalgudi Police Station. (iii). Preliminary enquiry report dated 12/4/2009 of the Deputy Superintendent of Police, Lalgudi Sub-division, Tiruchirapalli District addressed to the Superintendent of Police. https://hcservices.ecourts.gov.in/hcservices/ 3 8. The issue as to whether simultaneous proceedings can be taken against a charged official on the same set of facts, is no more integra . 9. In the departmental proceedings, the involvement of the petitioner in a criminal case, causing disrepute to the discipline of the Police force and violation of the Conduct Rules, are the matters to be decided. Though, the petitioner has averred that the disciplinary proceedings should be kept in abeyance till the conclusion of the criminal case, the fact remains that the matter has not even reached the finality, where the Court has taken cognizance of the offences and framed specific charges. A perusal of the charges framed by the Department also does not reflect any complex question of law or fact, to be adjudicated in the departmental proceedings. It is well known that the standard of proof required in the criminal proceedings, is strict evidence and beyond all reasonable doubt whereas in the departmental proceedings, the test is preponderance of probability. 10. 161 Statements can be used for corroboration or contradiction. When the petitioner, has not even been charge sheeted so far, the question of exposure of his defence before the criminal Court, at this juncture does not arise. Even assuming that a charge sheet is filed, on the facts of this case, departmental proceedings cannot be stayed, in view of the following decisions. 11. It is well settled by the Supreme Court that simultaneous proceedings can be taken against a charged official for misconduct. It is useful to refer to a judgment in Capt.M.Paulanthony versus Bharat Gold Mines Ltd. And another reported in (1999) 3 SCC 679, wherein the Hon'ble Supreme Court, after considering the catena of decisions relating to the departmental proceedings vis-a-vis criminal case, deduced the following conclusions in para 22, which reads as under: "( 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 https://hcservices.ecourts.gov.in/hcservices/ 4 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." 12. In State bank of India and Others v. R.B.Sharma reported in 2004 (7) SCC 27, at 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." 13. In Kendriya Vidyalaya Sangathan and others versus T.Srinivas reported in (2004) 7 SCC 442, the Hon'ble Supreme Court considered a case of a Upper Division Clerk arrested by CBI after a trap and was charged for https://hcservices.ecourts.gov.in/hcservices/ 5 the offences punishable under Section 7 read with Section 13(1)(d) of the Prevention of Corruption Act. A case in this regard was pending in the trial stage before the competent court. During the pendency of the trial, the appellants decided to initiate departmental proceedings against the respondent and a charge memo framing three charges was issued to him. The first article in the memo of charges referred to the allegations of the respondent receiving Rs.200/- as bribe in violation of Rules 3(1)(i), (ii) and (iii) of the CCS (Conduct) Rules, 1964. Article II of the said charge memo referred to the conduct of the appellant in not maintaining absolute integrity and devotion to duty and acting in a way unbecoming of an employee in violation of Rules 3(1)(i), (ii) and (iii) of the CCS (Conduct) Rules, 1964. Article III of the said charge memo referred was with regard to suppression of the fact that he was in police custody on 16-9-2002 which according to the appellants was again a misconduct in violation of Rules 3 (1)(i), (ii) and (iii) of the CCS (Conduct) Rules, 1964. 14. A challenge was made before the Central Administrative Tribunal, Hyderabad Bench, which came to the conclusion that the first two articles of charges are identical to the charge levelled against the petitioner before the Special Court under the provisions of the Prevention of Corruption Act and the third article of charge though not a subject matter of the trial is an interconnected charge with charges 1 and 2 and therefore, allowed the Original Application of the respondent and consequently directed the appellants to keep the disciplinary proceedings in abeyance till the conclusion of the trial on the ground that proceeding with the departmental action would expose the defence of the respondent in the pending criminal trial. On appeal, the High Court agreed with the decision of the Tribunal. The correctness of the order was challenged before the Hon'ble Supreme Court. 15. The respondents, to sustain the order of the High Court, contended that the charge before the criminal court and departmental enquiry being identical, the appellants should not initiate parallel proceedings which would prohibit his defence. It was further submitted that the facts and material that would be relied upon in the departmental enquiry would be the same, upon which the prosecuting agency before a criminal court would also rely upon, hence, the respondent would be compelled to disclose his defence in advance which would seriously prejudice his case before the criminal court. The decision rendered earlier by the Apex Court in State of Rajasthan versus B.K.Meena reported in (1996) 6 SCC 417, was applied wherein, it has been held that, "The only ground suggested in the decisions of the Supreme Court as constituting a valid ground for staying the disciplinary proceedings is that 'the defence of the employee in the criminal case may not be prejudiced'. This ground has, however, been hedged in by providing further that this may be done in cases of grave nature involving questions of fact and law. It means that not only the charges must be grave but that the case must involve complicated questions of law and fact. Moreover, 'advisability', desirability' or 'propriety' as the case may be, of staying the departmental enquiry has to be determined n each case taking into consideration all the facts and circumstances of the case. Stay https://hcservices.ecourts.gov.in/hcservices/ 6 of disciplinary proceedings cannot be, and should not be, a matter of course". All these relevant factors, for and against, should be weighed and a decision taken keeping in view the various principles laid down in the Supreme Court decisions." 16. Explaining the distinction between criminal proceedings and departmental proceedings, the Hon'ble Supreme Court in B.K.Meena's case (cited supra), observed that, the approach and the objective in the criminal proceedings and the disciplinary proceedings is altogether distinct and different. In the disciplinary proceedings, the question is whether the respondent is guilty of such conduct as would merit his removal from service or a lesser punishment, as the case may be, whereas, in the criminal proceedings the question is whether the offences registered against him are established and, if established, what sentence should be imposed upon him. The Court in the above case further reiterated that the standard of proof, mode of enquiry and the rules governing the enquiry and trial in both the cases are distinct and different. 17. Therefore, applying the principles to be followed by the Courts in the matter of disciplinary proceedings with reference to acceptance of illegal gratification, the Hon'ble Supreme Court in Kendriya Vidyalaya Sangathan (cited supra), categorically held that neither the Tribunal nor the High Court did take into consideration the seriousness of the charge which pertains to the acceptance of illegal gratification and desirability of continuing the respondent in service in spite of such serious charges levelled against him. The Apex Court categorically held that both the Tribunal and the High Court proceeded as if a departmental enquiry and a criminal trial should not be proceeded simultaneously and in Their opinion, it is contrary to the principles laid down in the above cited cases. 18. In yet decision reported in Hindustan Petroleum Corporation Ltd.and others versus Sarvesh Berry reported in 2005(10) SCC 471, the question that was posed before the Hon'ble Supreme Court was that whether disciplinary proceedings can be continued despite the pendency of criminal proceedings against the respondent/employee, who was involved in the case of corruption. Short facts of the above said case are as follows: "The CBI raided the house of the respondent employee and found that he was in possession of assets disproportionate to the known sources of income and a case was registered on 5.5.1998. After completion of investigation, charge sheet was filed. In the mean time, departmental proceedings were initiated against the respondent and charge sheet was issued. The employee filed a Writ Petition before the Andhra Pradesh High Court, inter alia contended that once sanction was granted to launch criminal prosecution nothing further warrants initiation and continuance of departmental proceedings as the issues involved in both the departmental enquiry and the criminal case are identical. The appellants filed counter affidavit, contending inter alia that initiation of disciplinary proceedings and its continuation are in public interest. The three charges levelled against the employee, were viz., possession of assets disproportionate to the known sources of income and two other related to misconduct in not filing the returns at all for some years as required under Rule 13 https://hcservices.ecourts.gov.in/hcservices/ 7 (1)(c) of the Hindustan Petroleum Management Employees (Conduct, Discipline and Appeal) Rules, 1976 and the third charge relating to failure of the respondent employee to file property returns for the years 1991-92, 1994-95, 1995-96, 1996-97 and 1997-98. On behalf of the appellant, it was contended that charges 2 and 3 stated supra are different from charge no.1 which relate to possession of assets disproportionate to the known sources of income and the charge no.1 relates to corruption and therefore, it would not be proper to continue the appellant in employment as it would not be in public interest and in any event, the respondent would be able to place facts relevant to all the charges in the departmental proceedings." 19. In the above said case, placing reliance on M.Paul Anthony's case, the employee submitted that if disciplinary proceedings were allowed to continue, he would be compelled to disclose his defence and in any event as charge no.1 relates to corruption, the departmental authority have no jurisdiction to deal with the matter. After considering the decisions of the Hon'ble Supreme Court, viz., reported in "Depot Manager, APSRTC versus Moh.Yousuf Miya" (1997 (2) SCC 699; "State of Rajasthan versus B.K.Meena" (1996 (6) SCC 417 and in "Capt.M.Paul Anthony versus Bharat Gold Mines Ltd.," (1997(2) SCC 699, the Hon'ble Supreme Court in categorical terms, in para 13 held as follows: "13. It is to be noted that in cases involving Section 13(1)(e) of the PC Act, the onus is on the accused to prove that the assets found were not disproportionate to the known sources of income. The expression “known sources of income” is related to the sources known to the authorities and not the accused. The Explanation to Section 13(1) of the PC Act provides that for the purposes of the section, “known sources of income” means income derived from any lawful source and such receipt has been intimated in accordance with the provisions of any law, rules or orders for the time being applicable to a public servant. How the assets were acquired and from what source of income is within the special knowledge of the accused. Therefore, there is no question of any disclosure of defence in the departmental proceedings. In the criminal case, the accused has to prove the source of acquisition. He has to satisfactorily account for the same. Additionally, issues covered by Charges 2 and 3 cannot be the subject-matter of adjudication in the criminal case." 20. Earlier, a Division Bench of this Court, in Indian Overseas Bank, rep. By its Deputy General Manager, Inquiry Cell, Industrial Relations Department, Anna Salai, Chennai versus P.Ganesan and others reported in 2006(1) CTC 689, while considering the nature, purpose and scope of the departmental enquiry vis-a-vis the criminal proceedings and the issue as to whether departmental proceedings should be deferred till the conclusion of the criminal trial, in paras 13 and 14, held as follows: "13. It is thus fairly settled law that on basic principles proceedings in a criminal case and a departmental proceedings can go on simultaneously, https://hcservices.ecourts.gov.in/hcservices/ 8 except in some cases where departmental proceedings and criminal case are based on the same set of facts and the evidence in both the proceedings are same. It is in these cases, the Court has to decide taking into account special features of the case whether simultaneous continuance of both would be proper. There can be no straight-jacket formula as to in which case the departmental proceedings have to be stayed, and the Court will have to decide in the given circumstances of a particular case as to whether disciplinary proceedings should be interdicted, pending criminal trial. 14. In the instant case, there is no dispute that the criminal action and the disciplinary proceedings are founded upon the same set of facts. In fact, the disciplinary proceedings are solely based upon the criminal complaint lodged by the president of a rival union, who is also facing prosecution with regard to the same incident. It has been conceded before us that the bank had not conducted any independent enquiry before initiating the impugned departmental proceedings." 21. The above said decision was challenged before the Hon'ble Supreme Court. While setting aside the judgment of the Division Bench, in Indian Overseas Bank, Anna Salai and another versus P.Ganesan and others reported in (2008) 1 MLJ 37 (SC), the Hon'ble Supreme Court in para 22 held as follows: "22. The High Court, unfortunately, although it noticed some of the binding precedents of the Court failed to apply the law in its proper perspective. The High Court was not correct in its view in concluding that the stay of the departmental proceedings should be granted in the peculiar facts and circumstances of the case without analysing and applying the principle of law evolved in the aforementioned decisions. It, therefore, misdirected itself in law. What was necessary to be noticed by the High Court was not only existence of identical facts and the evidence in the matter, it was also required to take into consideration the question as to whether the charges levelled against the delinquent officers, both in the criminal case as also the in disciplinary proceedings, were same. Furthermore it was obligatory on the part of the High Court to arrive at a finding that the non-stay of the disciplinary proceedings shall not only prejudice the delinquent officers but the matter also involves a complicated question of law." 22. A Division Bench of this Court, considered a case in G.Nagarajan Vs. The Union of India represented by the Commissioner of Central Excise, reported in 2006(4) MLJ 739, where a Superintendent of Customs, Thirupur was trapped by the CBI on the charge of demand of illegal gratification for https://hcservices.ecourts.gov.in/hcservices/ 9 clearing export consignment and a criminal case in C.C.No.3 of 2005 was registered on the file of the Principal Special Judge for CBI cases for the offences punishable under Section 120(B) IPC r/w Sections 7, 13(2) and 13 (1)(d) of the Prevention of Corruption Act. Pending criminal case, the Union of India, represented by the Commissioner of Central Excise, decided to initiate departmental proceedings for having committed a gross misconduct and for the failure to discharge the duties of a public servant in connection with the clearance of export consignment in contravention of Rule 3(1)(i)(ii) and (iii) of CCS (Conduct) Rules 1964. The core contention of the petitioner before the Tribunal was that if the departmental proceedings are permitted to be proceeded with, he would be compelled to disclose his evidence in the departmental enquiry and that the same would affect his defence in the trial and cause prejudice. The Division Bench, after considering a catena of judgments, held that the question of prejudice of disclosure of defence before the