IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 10.11.2011 CORAM THE HONOURABLE MR.JUSTICE D.HARIPARANTHAMAN W.P.NO.12558 OF 2011 AND M.P.NO.1 OF 2011 K.Suresh Kumar ... Petitioner VS. 1.Director General of Police Mylapore, Chennai – 600 004. 2.Deputy Inspector General of Police Salem Range, Salem. 3.The Superintendent of Police (Enquiry Officer) Namakkal. ... Respondents PRAYER: Petition filed under Article 226 of the Constitution of India praying for the issuance of Writ of Mandamus, to forbear the respondents to proceed further in their proceedings in P.R.No.71 of 2009 until the disposal of the criminal proceedings in C.C.No.42 of 2010 on the file of the Judicial Magistrate No.III, Salem. (Prayer amended as per order dated 29.08.2011 in M.P.No.2 of 2011 in W.P.No.12558 of 2011) For Petitioner : Ms.K.Priya For Respondents : Mr.V.Subbiah Special Government Pleader O R D E R Heard both sides. 2.The petitioner was working as an Assistant in the office of the first respondent. A charge memo dated Nil December 2009 under Rule 17(b) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules, 1955 was issued to the petitioner alleging that the petitioner aided one Senthamaraikannan, an Assistant working in the same office, who collected lakhs of rupees from the candidates who appeared for selection to the post of Sub-Inspector of Police, https://hcservices.ecourts.gov.in/hcservices/ assuring them that they could get employment to those candidates. A criminal complaint was registered in Crime No.6 of 2008 under Sections 120(B), 464, 465, 468, 471, 477(A), 448, 420 read with 120 (b) and 109 IPC on the file of the District Crime Branch, Salem. The petitioner has now filed the present writ petition seeking to forbear the respondents in proceeding further with the disciplinary proceedings, pursuant to the aforesaid charge memo, pending disposal of the criminal proceedings in C.C.No.42 of 2010 on the file of the Judicial Magistrate No.III, Salem. 3.The first respondent, by the proceedings dated 12.03.2010 appointed the third respondent as Enquriy Officer to enquire into the charges levelled against the petitioner. The enquiry commenced on 28.03.2010 and the same was held on various dates. In the meantime, the third respondent was transferred to Madurai and another person was appointed as Enquiry Officer and he is now continuing with the enquiry. 4.The grievance of the petitioner is that the documents said to have been relied on to establish the charges are not furnished to him. It is stated that 43 documents are mentioned in the charge memo. However, out of 43 documents, only 4 were furnished to the petitioner. It is the further case of the petitioner that 8 witnesses were examined so far and those witnesses were examined not in the presence of the petitioner and on the other hand, they were examined in "G" Section. The Enquiry Officer did not record their statements and somebody else recorded their statements. In these circumstances, the petitioner made a representation dated 11.03.2011 to the first respondent seeking to take action against the Enquiry Officer for the said lapses. 5.The learned counsel for the petitioner submits that since the criminal case is pending and also that the third respondent fails to follow the procedure contemplated under Law, this Court should interfere in the enquiry proceedings and stall the departmental proceedings. 6.On the other hand, the learned Special Government Pleader submits that the Department undertakes to furnish the documents relied on by the Department to establish the charges in the departmental enquiry, within a period of three weeks from the date of receipt of a copy of this order. The learned Special Government Pleader also states that the first respondent could be directed to pass orders on the representation dated 11.03.2011 of the petitioner and the first respondent, being the disciplinary authority, could redress the grievances and if the allegations are true, appropriate relief could be given by the first respondent by re-examining those witnesses in the presence of the petitioner, by the Enquiry Officer. If the allegations are not true, the first https://hcservices.ecourts.gov.in/hcservices/ respondent could reject the same. The learned Special Government Pleader further submits that there is no bar for simultaneously proceeding with the departmental action, while criminal action is pending on the same issue. 7.I have considered the submissions made on either side and perused the materials available on record. 8.The submissions of the learned counsel for the petitioner that in view of the pendency of the criminal proceedings, departmental proceedings could not go on, is not acceptable to me. It is now well settled by various decisions of this Court and the Honourable Supreme Court that the Department need not wait for the outcome of the criminal case, particularly when the standard of proof in the departmental proceedings and the criminal case is totally different. In the departmental enquiry, the Department need not prove the charges beyond reasonable doubt, while in the criminal case the guilt has to be established beyond reasonable doubt. There is no bar for the department to proceed simultaneously with the departmental enquiry, while the criminal case is pending. 9.The Honourable Apex Court in its judgment in CAPT.M. PAUL ANTHONY VS. BHARAT GOLD MINES LTD., [1999 (3) SCC 679] held that the departmental proceedings cannot be unduly delayed. The Apex Court has laid down the law and held that simultaneous departmental proceedings could go on, while criminal action is pending. In this context, para 22 of the said judgment is extracted hereunder: "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. https://hcservices.ecourts.gov.in/hcservices/ (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." In the present case on hand, already charge sheet was issued by the Department and an Enquiry Officer was appointed and the examination of witnesses was also commenced. Hence, I am not inclined to stall the departmental proceedings. 10.In view of the undertaking given by the learned Special Government Pleader to furnish documents to the petitioner, in my view, the petitioner could have no grievance. As far as the other allegation that 8 witnesses, who were so far examined not in the presence of the petitioner and examined in "G" Section, that too, not by the Enquiry Officer and by somebody else, could be looked into by the first respondent by considering the petitioner's representation dated 11.03.2011. https://hcservices.ecourts.gov.in/hcservices/ 11.In these circumstances, this Court is not inclined to interfere with the disciplinary proceedings initiated by the Department against the petitioner and the writ petition stands dismissed. While dismissing the writ petition, a direction is issued to the first respondent to consider and pass orders on the petitioner's representation dated 11.03.2011, within a period of four weeks from the date of receipt of a copy of this order. No costs. Consequently, connected miscellaneous petition is closed. TK Sd/- Asst. Registrar //True Copy// Sub Asst. Registrar To 1.The Director General of Police Mylapore, Chennai – 600 004. 2.The Deputy Inspector General of Police Salem Range, Salem. 3.The Superintendent of Police (Enquiry Officer) Namakkal. 4.The Public Prosecutor, High Court, Madras + 1 cc to Government Pleader, SR No.69036 + 2 ccs to Ms. K. Priya, Advocate SR No.68484 TEJ(CO) SR/22.12.2011 W.P.NO.12558 OF 2011 https://hcservices.ecourts.gov.in/hcservices/