IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 04.03.2010 CORAM THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.NO.4427 of 2010 and M.P.NOs.1 and 2 of 2010 P.Appavoo .. Petitioner Vs. 1.The Deputy Inspector General of Police, Salem Range, Salem. 2.The Director General of Police, Mylapore, Chennai-4. 3.The State of Tamil Nadu, rep. By its Secretary to Government, Home (Pol.V) Department, Secretariat, Chennai-9. 4.The Superintendent of Police, Namakkal District. .. Respondents This writ petition has been preferred under Article 226 of the Constitution of India praying for the issue of a writ of certiorari to call for the records of the first respondent in connection with the impugned charge memo issued in PR 69/B1/2009 dated 31.12.2009 and to quash the same. For Petitioner : Mr.K.Venkatramani, SC for Mr.M.Muthappan ORDER The petitioner was working as a Personal Assistant to the Superintendent of Police, Salem District from 10.6.2005. He was also the Personal Assistant (Administration) from 7.6.2006. One of his duty was to attest the copies of certificate of candidates, who seek for an employment in the police department and the Government offices. The petitioner was also empowered to verify the original certificates of candidates, who seek employment. While the petitioner was working in the office of the Superintendent of Police, a criminal case was registered in FIR No.6 of 2008, dated 16.4.2008 by the District Crime Branch, Salem under Sections 120(B), 464, 465, 468, 471, 477(A), 448, 420 IPC read with 120(B) IPC. https://hcservices.ecourts.gov.in/hcservices/ 2.The petitioner claims that his name did not find place in the FIR. One of the accused A-1, Senthamaraikannan, who was a Junior Assistant in the District Police, Salem gave confession statement. In his confession, he had stated that he had paid Rs.95000/- to the petitioner for the purpose of attesting the certificates of various persons. During investigation, the petitioner was also arraigned as A-15 in that case. While it is so, the petitioner was placed under suspension by G.O.(2D) No.315, Home (Police) Department, dated 29.5.2008. Subsequently, as he was reaching the age of superannuation on 31.5.2008, he was not permitted to retire from service. By an order in G.O. (2D)No.316, Home (Police) Department, dated 30.5.2008, he was retained in service by exercise of power under FR 56(1)(c). In the meanwhile, the petitioner moved a bail application before this court in Crl.O.P.No.20442 of 2008. During the course of proceedings, it was informed that the first accused had promised job for 25 persons and collected Rs.37,05,630/-. Since no job was secured and money was not returned, a case was registered. The petitioner was arraigned as A-15. Colluding with the first accused, the petitioner had also material gains. He was arrested on 7.8.2008. The Court had taken note of all these circumstances. By an order, dated 19.8.2008, the Court had granted bail to the petitioner. 3.Thereafter, the petitioner had moved this court with W.P.No.30059 of 2008, challenging the order of suspension, dated 29.5.2008 as well as the order retaining him in service, dated 30.5.2008 passed by the State Government and after setting aside the same, sought for a direction to respondents to permit him to retire from service with all retirement benefits. However, this court did not grant any relief. On the other hand, it had disposed of the said writ petition with the following observations: "Though the writ petition had been filed challenging the order of suspension dated 29.5.2008 of the first respondent and the consequential order dated 30.5.2008 retaining the petitioner in service, the learned counsel appearing for the petitioner would submit that the respondents could be directed to commence and complete the disciplinary proceedings, if it all if they intend to take against the petitioner within a reasonable time fixed by this court. 2.Considering the submissions made by the learned counsel appearing for the petitioner, I direct the respondents commence and complete the entire proceedings against the petitioner, if they intend to take against him and complete the same within a period of four months from the date of receipt of copy of this order. 3.At this point of time, the learned counsel appearing for the petitioner drawn my attention to the proceedings of the second https://hcservices.ecourts.gov.in/hcservices/ respondent, wherein he has recommended the case of the petitioner for safe retirement. The authorities are directed to consider the said proceedings of the second respondent also while passing orders." (Emphasis added) 4.Now, the petitioner has come forward to challenge the charge memo, dated 31.12.2009 issued against the petitioner in the present writ petition. Mr.K.Venkatramani, learned Senior Counsel leading Mr.M.Muthappan, learned counsel submitted that despite directions from this court, the respondents have not completed the enquiry. The criminal investigation has been completed and a final report has been filed before the Special Court. The court has also taken cognizance of the offence. Insofar as the petitioner is concerned, he was accused of committing an offence under Section 120-B IPC. Such an offence is only a technical offence. He is willing to face the criminal trial. In the meanwhile, if the respondents proceed with the enquiry, the petitioner will be put to grave hardship. Therefore, any further proceedings in the charge memo should be stalled. He also relied upon a judgment of the Supreme Court in Noida Entrepreneurs Association Vs. Noida and others reported in 2007 (10) SCC 385. The learned Senior Counsel also stated that though this court earlier directed completion of enquiry, since the same not having been done, in view of the subsequent development, the enquiry should be stalled. 5.This court is not inclined to agree with the said submissions. The question of keeping the disciplinary action in abeyance pending criminal trial will arise only when it is based upon the same set of facts and not in every case, pending criminal trial, the disciplinary proceedings should be stalled. On the contrary, the Supreme Court in Indian Overseas Bank v. P. Ganesan reported in (2008) 1 SCC 650 in paragraphs 23 and 24 held as follows: "23. .... 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. 24. The standard of proof in a disciplinary proceedings and that in a criminal trial is different. If there are https://hcservices.ecourts.gov.in/hcservices/ 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." 6.Apart from that, it must be stated that the petitioner cannot blow hot and cold in the matter of disciplinary action. As already extracted, while arguing in W.P.No.30059 of 2008, the counsel for the petitioner demanded commencement and completion of disciplinary proceedings within a reasonable time. A perusal of the records would show that it is the petitioner's counsel who invited such a direction from this court. Therefore, having got such a direction from this court to proceed with the enquiry knowing fully well that the criminal investigation is in progress even at the time of passing the order, the petitioner cannot turn back and seek for a contrary prayer. 7.The learned Senior Counsel appearing in the present case would contend that he was not aware whether the fact of criminal investigation was brought to the notice of the court when the earlier order dated 18.4.2009 was passed. In order to verify the same, this court directed the records relating to that writ petition to be circulated. It is found that in that case, this court was very much aware of criminal proceedings and a copy of the FIR was filed as the first document and a copy of the bail order was filed as the 11th document in the typed set. Yet, the learned Counsel who had appeared in the earlier WP made a request to direct the authorities to proceed with the disciplinary action. 8.Therefore, it is not open to the learned Senior Counsel to now seek for a restraint order from proceeding with the disciplinary action. Though it may be a privilege of the petitioner to blow hot and cold, this court cannot pass a contradictory order in respect of the very same subject matter. Having invited a positive direction from this court to conduct the enquiry against the petitioner, the present writ petition is misconceived and an abuse of process of court. 9.In the light of the above, the writ petition will stand dismissed. No costs. Consequently, connected miscellaneous petitions stand closed. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ vvk To 1.The Deputy Inspector General of Police, Salem Range, Salem. 2.The Director General of Police, Mylapore, Chennai-4. 3.The Secretary to Government, The State of Tamil Nadu, Home (Pol.V) Department, Secretariat, Chennai-9. 4.The Superintendent of Police, Namakkal District. +1cc to Govt. Pleader Sr 15214 +1cc to M/s. T.Ayngaraprabhu, Advocate Sr 15017 SAI(CO) km/12.3. W.P.NO.4427 of 2010 https://hcservices.ecourts.gov.in/hcservices/