IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 22.12.2008 CORAM: THE HONOURABLE MR.JUSTICE K.RAVIRAJA PANDIAN and THE HONOURABLE MR.JUSTICE S.MANIKUMAR WANO.101 of 2007 & MP No.1 of 2007 1.The Superintending Engineer, Chennai Electrical Distribution Circle, Tamil Nadu Electricity Board, Valluvarkottam, Chennai-600 034. 2.G.Nageswara Rao ... Appellants Vs. N.Rangaraj ... Respondent Writ Appeal filed under Clause 15 of the Letters Patent against the order dated 14.09.2006 passed by the learned single Judge in W.P.No.22998 of 2006. For Appellant : Mr.M.Vaidyanathan For respondent : Mr.V.Vijayashankar JUDGMENT (Judgment of the Court was made by S.MANIKUMAR,J.) The above writ appeal is filed against the order made in W.P.No.22998 of 2006 dated 14.09.2006. 2. We are not in agreement with the Judgment made by the writ Court in directing the respondents to defer the departmental proceedings till the conclusion of the criminal case for the following reasons. 3. 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 VS. 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." 4. 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 VS. SARVESH BERRY). 5. Short facts leading to this appeal are as follows: The respondent was alleged to have involved in a case of misappropriation of Board's money, by tampering of documents and First Information Report was registered against him on 30.04.2005 under Sections 409, 477(A) and 420 IPC in Crime No.325/2005, on the file of the Central Crime Branch, Egmore, Chennai-8. While the said criminal case was pending, the first appellant initiated disciplinary proceedings against him and charges were framed on 12.12.2005, under the Tamil Nadu Electricity Board Clerical Employees Standing Order, for the alleged misappropriation to the tune of Rs.38,39,087/- by tampering with the Board's records. Thiru.G.Nageswara Rao, Executive Engineer, Tamil Nadu Electricity Board, Chennai was appointed as Enquiry Officer, to enquire into the charges. After participating in the departmental enquiry, the respondent has sought for a Writ of Mandamus, refraining the appellants to proceed with the charge memo, dated 12.12.2005, till the outcome of the criminal case pending in Crime No.325/2005 on the file of the Central Crime Branch, Egmore, Chennai-8. Before the Writ Court, the respondent inter-alia has contended that since the criminal case registered against him on the same set of facts was pending, any further enquiry in the departmental proceedings would expose his defence, which would detrimentally affect him, in effectively defending himself in the criminal case. It was also his contention that the continuation of such enquiry would be an infringement of his right to life under Article 21 of the Constitution of India. 6. The Writ Court which adjudicated the issue, placing reliance on the decisions reported in 2004(7) SCC 27 (STATE BANK OF INDIA AND OTHERS VS. R.B.SHARMA) and 2006(1) CTC 689 (INDIAN OVERSEAS BANK, REP. BY ITS DEPUTY GENERAL MANAGER, INQUIRY CELL, INDUSTRIAL RELATIONS DEPARTMENT, CHENNAI-2 AND ANOTHER VS. P.GANESAN AND OTHERS), and having regard to the fact that the respondent had submitted his explanation and that an enquiry was conducted on 22.06.2006, observed that since enquiry had not been completed, it cannot be said that the respondent had already disclosed all his defence and in view of the said fact, issued Mandamus, directing the appellants to defer the departmental proceedings till the criminal case is completed. 7. Assailing the order of the learned single Judge, Mr.M.Vaidyanathan, learned counsel appearing for the appellant-Board, by taking this Court through the record of enquiry proceedings submitted that the enquiry had already been completed and at that stage, the respondent has filed the Writ Petition to procrastinate the passing of final orders in the departmental enquiry. He further submitted that the scope of the departmental enquiry and the criminal case are entirely different. The amount misappropriated by tampering the Board's records for the period between 6/2000 and 3/2005, subject matter of disciplinary proceedings, was to the tune of Rs.38,39,087/-, whereas, before the criminal Court, the amount involved was Rs.10,20,793/- for the period between 7/2004 and 04/2005. 8. Placing reliance on the decision reported in AIR 1999 Supreme Court 1416 (CAPT. M.PAUL ANTHONY VS. BARAT GOLD MINES LTD., AND ANOTHER) and in particular to paragraphs 2 and 3 of the judgment with reference to the facts on hand, he further submitted that there is no complicated question of fact and law involved in the disciplinary action taken against the respondent and having participated in the enquiry, without any objection, filing of the Writ Petition, at the time of consideration of the enquiry report, on the ground that his defence before the criminal Court would be exposed, is only to protract the disciplinary proceedings, which cannot be unduly delayed. He further submitted that the decision rendered by the Division Bench in 2006(1) CTC 689 (INDIAN OVERSEAS BANK, REP. BY ITS DEPUTY GENERAL MANAGER, INQUIRY CELL, INDUSTRIAL RELATIONS DEPARTMENT, CHENNAI-2 AND ANOTHER VS. P.GANESAN AND OTHERS), relied on by the respondent, has been reversed on appeal by the Supreme Court in 2007 (5) CTC 632 (INDIAN OVERSEAS BANK V. P. GANESAN). It is also his further contention that while considering the plea of the delinquent for deferment of disciplinary proceedings, when Criminal prosecution is launched on the same set of facts, the Court has to see the stage of disciplinary proceedings, and whether serious prejudice would be caused to the right of the delinquent, in facing the criminal case. In the light of the above submission, he prayed to set aside the order made by the Writ Court, so as to enable the appellant to proceed further with the departmental action. 9. Per contra, Mr.Vijay Shankar, learned counsel appearing for the respondent submitted that the allegations relating to misappropriation, subject matter of departmental proceedings and the criminal case are one and the same. According to him, if the enquiry was allowed to proceed with, the respondent would be constrained to expose his defence, which would detrimentally affect his case before the Criminal Court and therefore, the principles stated in AIR 1999 Supreme Court 1416 (CAPT. M.PAUL ANTHONY VS. BARAT GOLD MINES LTD., AND ANOTHER) can be applied to the facts on hand. He further submitted that the decision arrived at, by the Writ Court that the departmental proceeding has to be deferred, till the conclusion of the criminal case, is fully justified in terms of the above judgment. Taking us through the record of enquiry proceedings, learned counsel for the respondent submitted that the enquiry conducted by the department could, at best, be termed only as a preliminary enquiry and without giving sufficient opportunity to the respondent, no findings could be rendered and therefore, prayed to sustain the order impugned in this Writ Appeal. 10. We have heard the learned counsel appearing for the parties and perused the materials available on record. 11. An F.I.R., has been registered against the respondent on 30.04.2005 on the file of the Central Crime Branch, Egmore, Chennai, under Sections 409, 477(A) and 420 IPC, alleging that while he was incharge of collecting Meter charges from the customers, tampered the documents and misappropriated the Board's money unlawfully to the tune of Rs.38,39,087/- for the period between June 2000 and March 2005. While the said criminal case was pending in Cr.No.325 of 2005, disciplinary proceedings were initiated by formulated charges on 12.12.2005. On receipt of the same, the respondent has submitted his explanation on 30.01.2005, refuting the allegations contained in the charge memo. By Board's proceedings, dated 04.05.2006, one Thiru.G.Nageswara Rao, Executive Engineer, O & M, Anna Salai, has been appointed as Enquiry Officer to enquire into the charges. The respondent, without any demur has participated in the enquiry proceedings. The record of proceedings, enclosed in the typed set of papers, shows that before the conclusion of the enquiry, the respondent had requested the enquiry officer to consider his written submission before taking final decision and he had also requested him to furnish the copy of the proceedings of the enquiry, so as to enable him to submit his written explanation. It is further seen that the respondent had also expressed that he was given sufficient opportunity in the departmental enquiry, excepting for certain documents, which were not provided. Reading of the explanation, dated 30.01.2006, also reveals the defence put forth by the respondent in the departmental proceedings. The respondent has acquiesced himself to the departmental enquiry and he was fully satisfied with the conduct and the manner of enquiry. Thus it could be seen that there was nothing more on the part of the respondent to offer by way of explanation, which would affect his defence, before the Criminal Court. In such view of the matter, when the enquiry proceedings were completed and the delinquent/respondent seeks for the copy of the enquiry report, so as to offer his further representation on the findings, it is not open to him to contend that the enquiry proceedings are yet to be completed. Even assuming that if there are any infirmities in the enquiry or violation of any procedure, it is well open to him to place his written defence by way of further representation to the disciplinary authority on receipt of the enquiry report. 12. 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." 13. While setting aside the order of the Division Bench, the Supreme Court in 2007 (5) CTC 632 (INDIAN OVERSEAS BANK V. P. GANESAN), having regard to the legal position that departmental proceedings, pending criminal case does not warrant automatic stay, 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. In the case on hand, the disciplinary proceedings initiated against the respondent have almost reached its finality and there is nothing more for the respondent to expose his defence and non-staying the disciplinary proceedings at this stage, in our considered view, would not cause any serious prejudice to the respondent, as there is no absolute right for deferment of departmental proceedings. As rightly pointed by the learned counsel for the appellant, the factors mentioned at Clause (ii) and Clause (ii) in Paragraph 3 of CAPT. M.PAUL ANTHONY's case, cannot be considered in isolation to stay the disciplinary proceedings, but due regard has to be given to the fact that the departmental proceedings cannot be unduly delayed, more so, when the examination of the witnesses, according to the department, was already over and that the delinquent/respondent, has also expressed his satisfaction over the manner of enquiry. In such view of the matter, the departmental proceedings cannot be allowed to be protracted. 14. Learned counsel for the respondent is also not in a position to inform this Court about the progress of the investigation and whether any charge sheet has been laid down before the competent criminal Court. 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. K.RAVIRAJA PANDIAN, J. AND S. MANIKUMAR, J. skm 16. For the above said reasons, we are inclined to interfere with the order. Accordingly, the order made in the Writ Petition is set aside and the Writ Appeal is allowed. No costs. (K.R.P., J.) (S.M.K., J.) 22.12.2008 Index: Yes/No skm To The Superintending Engineer, Chennai Electrical Distribution Circle, Tamil Nadu Electricity Board, Valluvarkottam, Chennai-600 034. W.A.No.101 of 2007