IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated : 26..02..2008 C O R A M The Honourable Mrs. Justice PRABHA SRIDEVAN Writ Petition No.222 of 2008 K. Ganesan .. Petitioner versus 1. Chairman and Managing Director, Nuclear Power Corporation of Indian Limited, Mumbai-400 094. 2. SO/H & Inquiring Authority, NPCIL Hqs.12/S/2, VSB, Nuclear Power Corporation of India Ltd., V.S. Bhavan, Anushakthinagar, Mumbai-400 094. .. Respondents PRAYER : Writ Petition filed under Article 226 of the Constitution of India praying to issue a writ of mandamus, directing the respondents to keep all proceedings pursuant to Order No.NPCIL/Disc.Cell/C-49/2007/M/205 dated 18.6.2007, issued by the first respondent in abeyance till the completion of the criminal proceedings in C.C. No.28 of 2006 on the file of the Principal Special Judge for CBI Cases, Chennai. For Petitioner : M/s. P.V.S. Giridhar Associates For Respondents : Mr. V. Vijay Shanker O R D E R The often arising question regarding parallel progress of criminal proceedings and disciplinary proceedings arises in this writ petition. 2. The petitioner is working as a Scientific Officer in Madras Automic Power Station (MAPS), Kalpakkam, which is a very sensitive post. The standard of integrity and discipline required of such an officer needs hardly to be stressed. https://hcservices.ecourts.gov.in/hcservices/ 3. On 30.9.2004, an F.I.R. was registered by the C.B.I. against the petitioner alleging that he had committed the offences under Sections 120-B, 419, 420, 467, 468 read with 471 of the Indian Penal Code and Section 13(2) read with Section 13(1)(d) of Prevention of Corruption Act, 1988. The C.B.I. filed a charge sheet in the Court of Principal Special Judge for C.B.I. Cases, Chennai. On 18.6.2007, the first respondent served upon the petitioner a charge memo alleging that the petitioner had committed acts of gross misconduct, viz. failure to maintain absolute integrity and devotion to duty, commission of activities detrimental to the interest of the Corporation, causing disrepute to the Corporation and also for acts of omission and commission in contravention of the Nuclear Power Corporation of India Limited Conduct Rules, 1994. The petitioner was placed under suspension on 22.2.2007. By order dated 10.11.2007, he was granted subsistence allowance. On 12.7.2007, he submitted a letter seeking two months' time to reply to the charge memo and pointing out that the criminal proceedings in C.C. No.28 of 2006 were in progress. On 21.8.2007, the Additional General Manager declined to grant two months' time, but granted 15 days' time to the petitioner. The petitioner's request for engagement of a legal practitioner was also not acceded to. The petitioner then gave a letter on 5.9.2007 requesting the first respondent to furnish copies of documents and statements of witnesses. On 25.10.2007, the Enquiry Officer was appointed and by order of the same date, the Presenting Officer was also appointed. The petitioner received notice on 23.11.2007 for attending the preliminary hearing on 6.12.2007. On that day, the petitioner was permitted to inspect the documents on which reliance was placed. The petitioner, by letter dated 5.12.2007, pointed out that since the criminal proceedings had already commenced and as the evidence in the criminal proceedings and the departmental proceedings were identical, the compulsion to participate in the departmental enquiry would gravely prejudice him. The Enquiry Officer refused to keep the enquiry in abeyance and called upon the petitioner to furnish the name of his defence assistant, the names and addresses of the defence witnesses and additional defence documents, if any. According to the petitioner, there has been no response to his request to keep the enquiry in abeyance and therefore, he has filed this writ petition. 4. Notice of motion was ordered and a limited stay was granted. On 21.1.2008, learned counsel for the respondents took notice and submitted that the counter will be filed and the matter should be taken up since the disciplinary proceedings are being held up endlessly. The counter was filed. By consent, the main writ petition itself was argued. 5. Learned counsel for the petitioner submitted that if one reads the charge sheet filed by the C.B.I. and the charge memo issued by the first respondent, it would be clear that the charges are identical, they https://hcservices.ecourts.gov.in/hcservices/ relate to the same occurrences and the witnesses are also the same and therefore, unless the disciplinary proceedings are stayed, the petitioner would be compelled to disclose his defence in the departmental proceedings, which would in turn, prejudice him in the criminal proceedings, where he has the right to silence. Learned counsel relied on 2006 (1) C.T.C. 689 [Indian Overseas Bank vs. P. Ganesan], (2004) 7 S.C.C. 27 [State Bank of India vs. R.B. Sharma], (2006) 5 S.C.C. 446 [G.M. Tank vs. State of Gujarat] and also the oft cited judgment in (1999) 3 S.C.C. 679 [Capt. M. Paul Anthony vs. Bharat Gold Mines Ltd.]. Learned counsel submitted that while without doubt there cannot be any straitjacket formula which would apply to all cases, in this particular case, the allegations in the F.I.R. are the basis for the charges of misconduct and therefore, in this case, the petitioner's prayer must be granted. 6. Learned counsel for the respondents submitted that it would be clear on a reading of the charge sheet and the charge memo that both are independent and can be dealt with separately. As regards the criminal prosecution, the offences involved are conspiracy, impersonation, etc., whereas in the departmental proceedings, the charges inter alia relate to failure to maintain integrity and extending assistance to private agencies and engaging himself in private trade with dishonest intention of procuring business from MAPS etc. Learned counsel submitted that no complex questions of law and facts are involved and in the criminal prosecution, as many as 58 witnesses have been named and 212 documents have been produced, whereas before the Enquiry Officer, the witnesses to be examined will only be those who are required to establish the misconduct. Learned counsel further submitted that the departmental proceedings need to be completed within the shortest possible time and the petitioner has already tried several ruses to have them postponed and that cannot be done. Learned counsel referred to 2007 (5) C.T.C. 632 [Indian Overseas Bank vs. P. Ganesan] which arose out of 2006 (1) C.T.C. 689 (supra) relied on by the petitioner, in which the judgment of this court was reversed by the Supreme Court. Learned counsel also relied on 2007 (6) M.LJ. 1329 [R. Venkatachalapathy vs. Senior Manager, Indian Overseas Bank], where a Division Bench of this Court held that criminal proceedings and departmental proceedings can go on simultaneously. 7. Should the disciplinary proceedings be stayed? Etymologically, the word "corruption" comes from a word which means "to tear". Corruption tears the social and economic fabric of our country. Corruption is a violation of human rights. The violaters have to be swiftly identified and checked. Protraction of the proceedings is not in the interest of the public nor the individual. For, if the officer who is charged is innocent, as he claims to be, he need not have the Damocle's Sword hanging over his head perilously for too long. It is to his advantage to co-operate in the conduct of the proceedings. https://hcservices.ecourts.gov.in/hcservices/ 8. The narration of facts in this case show that the criminal proceedings are in progress in the Special Court. As far as the disciplinary proceedings are concerned, the allegations made against the petitioner are of a very grave nature. The organisation where the petitioner works is one of the operating stations of the Nuclear Power Corporation of India Limited coming under the administrative control of the Department of Energy, Government of India. While there can be no doubt that every Government employee or every employee who comes under the administrative control of the Government of India or the State Government is required to have the utmost integrity, discipline and adherence to duty, there are certain organisations where stricter adherence to these standards are required of the employees. The respondent/organisation is one such organisation. Enforcement of discipline and ensuring that the ones who have strayed are eliminated is necessary so that others in the organisation will know what is required of each one of them. The disciplinary proceedings are in progress; subsistence allowance is being paid. The copies of all the relevant documents have already been made available to the petitioner. The petitioner has also been permitted to appoint a defence assistant to help him in the disciplinary proceedings. The charges made against the petitioner in the disciplinary proceedings show inter alia that he is alleged to have engaged in private trade through two fictitious firms floated by his close relatives; and that he has flouted the guidelines and issued a Certificate of Registration in favour of one of these fictitious firms, in the letter head of MAPS; and that he has used his official position to issue purchase orders in favour of the aforesaid firms. The charges against the petitioner in the criminal case are with regard to withdrawal of amounts from bank accounts where payments received from MAPS were deposited by the petitioner by impersonation which caused wrongful loss to the respondent-Corporation; production of forged sales tax and commercial tax certificates and other such offences. The documents filed in the typed set of papers would show that the petitioner has been taking time from 12.7.2007 before the Enquiry Officer on the ground that he cannot be compelled to participate in the departmental proceedings at this stage of the disciplinary proceedings. 9. Now, let us look into the judgments relied on by the petitioner. 2006 (1) C.T.C. 689 (supra) has been reversed by the Supreme Court and therefore, this will not be relied on. In (2004) 7 S.C.C. 27 (supra), the matter was remanded to the High Court not because the Supreme Court accepted that the departmental proceedings had to be stayed, but because the Supreme Court found that the High Court had "after noticing the rival submissions....., come to an abrupt conclusion that the petitioner in the case before it (employee) has been able to show substantially that the entire matter in the departmental proceedings and before the criminal court is the same. No details have been indicated to justify https://hcservices.ecourts.gov.in/hcservices/ this conclusion". The Supreme Court observed that even though elaborate reasoning is not necessary, a skeletal description of how there is substantial similarity must be indicated and even that had not been done there. So, it is on this score that the matter was remanded, not because of the fact that the contention that disciplinary proceedings should be normally stayed during the pendency of criminal proceedings was accepted. (2006) 5 S.C.C. 446 (supra) is also not applicable to this case because that was a case where the employee was honourably acquitted during the pendency of the disciplinary proceedings and in that circumstance, the Supreme Court held that a finding to the contrary could not have been recorded in the disciplinary proceedings. Therefore, this decision also does not come to the aid of the petitioner. 10. Now let us look at the decisions relied on by the respondents. 2007 (5) C.T.C. 632 arose, as stated earlier, against 2006 (1) C.T.C. 689. In (1999) 3 S.C.C. 679, what is known as Paul Anthony's case, which is relied on by every officer who faces parallel proceedings, the Supreme Court has held thus : "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." https://hcservices.ecourts.gov.in/hcservices/ It is on the basis of the above guidelines that an order of stay is requested. 11. Every officer facing charges cannot jump onto the Paul Anthony bandwagon. That was a case where no subsistence allowance was paid. The appellant before the Supreme Court could not defend himself properly; he fell ill; he could not attend the enquiry and the matter was heard ex parte; then, the criminal court acquitted him; but most importantly the "raid and recovery" was the sole basis for the criminal prosecution and the departmental action. So, the Supreme Court said : "Since the facts and the evidence in both the proceedings, namely, the departmental proceedings and the criminal case were the same without there being any iota of difference, the distinction, which is usually drawn as between the departmental proceedings and the criminal case on the basis of approach and burden of proof, would not be applicable to the instant case." We cannot, therefore, automatically apply the decision in that case to every case. I am bound to examine whether the facts in the case on hand require its application. 12. In 2007 (5) C.T.C. 632, the Supreme Court held thus : "Legal position operating in the field is no longer res integra. A departmental proceedings pending a criminal proceedings does not warrant an automatic stay. The superior Courts before exercising its discretionary jurisdiction in this regard must take into consideration the fact as to whether the charges as also the evidence in both the proceedings are common and as to whether any complicated question of law is involved in the matter." ..... "The standard of proof in a disciplinary proceedings and that in a criminal trial is different. If there are additional charges against the delinquent officers including the charges of damaging the property belonging to the Bank which was not the subject matter of allegations in a criminal case, the departmental proceedings should not have been stayed. ....." In 2007 (6) M.L.J. 1329 (supra), the following paragraphs are relevant : "We find absolutely no merit in the submission of the learned counsel. It is well settled that departmental proceedings and criminal proceedings are entirely different in nature. They operate in different fields and they have different objectives. In departmental proceedings, the Enquiry Officer is not bound by any technical rules of evidence and procedure. The degree of proof which is necessary to record an order of conviction is different from https://hcservices.ecourts.gov.in/hcservices/ the degree of proof necessary to record the commission of a delinquency. The rule relating to appreciation of evidence in the two proceedings is also entirely different." ..... "The question as to whether simultaneous and parallel proceedings of criminal trial and departmental enquiry are permissible in law was considered at length in State of Rajasthan vs. B.K. Meena, A.I.R. 1997 S.C. 13, where the Supreme Court observed : "The charges against the respondent are very serious. They pertain to misappropriation of public funds to the tune of more than Rupees one crore. The observation of the Tribunal that in the course of examination of evidence, new material may emerge against the respondent and he may be compelled to disclose his defence is, at best, a surmise – a speculatory reason. We cannot accept it as valid. ..... It is in his interest and in the interest of good administration that the truth or falsity of the charges against him is determined promptly. To wit, if he is not guilty of the charges, his honour should be vindicated early and if he is guilty, he should be dealt with appropriately without any avoidable delay. The criminal court may decide – whenever it does – whether the respondent is guilty of the offences charged and if so, what sentence should be imposed upon him. The interest of administration, however, cannot brook any delay in disciplinary proceedings. ..... There is yet another reason. 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 under the Prevention of Corruption Act (and the Indian Penal Code, if any) are established and, if established, what sentence should be imposed upon him. The standard of proof, the mode of enquiry and the Rules governing the enquiry and trial in both the cases are entirely distinct and different. Staying of disciplinary proceedings pending criminal proceedings, to repeat, should not be a matter of course but a considered decision. ....." https://hcservices.ecourts.gov.in/hcservices/ "In a recent decision in Ajit Kumar vs. Indian Oil Corporation, (2005) 7 S.C.C. 764, the employee was dismissed from service in exercise of the power under the Standing Orders of the Corporation. He was, however, acquitted by a criminal court in a case instituted against him. He, therefore, contended that after acquittal, he was entitled to reinstatement with full back wages. Rejecting the argument and explaining the scope of criminal prosecution and departmental enquiry, the Court observed as follows: "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 faily well settled. 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 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, an 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." 13. To come back to the present case, here, the criminal charges relate to criminal conspiracy, withdrawal of amount from bank by impersonation, forging of documents, etc., whereas the misconduct relates to favouring certain entities in which his relatives were involved, flouting of guidelines, misusing the letter head of MAPS and misusing his official position, etc. In the decisions cited above, the law has been stated as to how the scope of the two proceedings is different and even that incriminating statements may not always be admissible in evidence. In this case, necessarily there are some areas where the charges in the F.I.R. and the charge memo synchronise, but in some areas, they do not. That is clear from the concise description of both given above. According to the petitioner, he has not committed any wrong and therefore, his stand in the disciplinary proceedings will necessarily be one of total denial. In those circumstances, I see no reason why the departmental proceedings should be stayed. In fact, the petitioner has not made out any ground as to how he will be prejudiced https://hcservices.ecourts.gov.in/hcservices/ except to state that he will be prejudiced. Merely chanting the words "I will be prejudiced" will not help him to convince the Court. Where an officer has been alleged of committing certain offences, it is but natural that departmental proceedings also ensue. They must go on and be allowed to conclude. In every case, naturally the delinquent officer will plead that both charges arise out of the same set of facts and that departmental proceedings should be stayed, and if the Court also automatically stays the departmental proceedings, then the discipline of organisations like the respondents will suffer and that will be injurious to public interest. This is also something that Courts should look at while considering the question of stay of departmental proceedings, especially where national security itself is involved, as in the instant case. 14. For all these reasons, the writ petition stands dismissed with costs of Rs.5,000/- (Rupees five thousand only). Consequently, M.P. No.1 of 2008 is closed. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar ab To 1. Chairman and Managing Director, Nuclear Power Corporation of Indian Limited, Mumbai-400 094. 2. SO/H & Inquiring Authority, NPCIL Hqs.12/S/2, VSB, Nuclear Power Corporation of India Ltd., V.S. Bhavan, Anushakthinagar, Mumbai-400 094. 1 cc To Mr.V.Vijay Shankar, Advocate, SR.10650. 1 cc To M/s.P.V.S.Gridhar Associates, Advocate, SR.10308. W.P. No.222 of 2008 RS(CO) RVL 03.03.2008 https://hcservices.ecourts.gov.in/hcservices/