HON'BLE MR JUSTICE GHULAM MOHAMMED AND HON'BLE MR JUSTICE G. BHAVANI PRASAD WRIT PETITION No. 1554 OF 2010 Between: B. Subash S/o Neeonbu Rao ..... PETITIONER AND The Commissioner of Police Cyberabad, Hyderabad and two others .....RESPONDENTS ORDER: (Per Hon'ble Sri Justice Ghulam Mohammed) This Writ Petition has been filed seeking a Writ of Certiorari calling for the records relating to orders dated 9.12.2009 passed in O.A.No. 5183 of 2006 by the Andhra Pradesh Administrative Tribunal, Hyderabad and quash the same as arbitrary. The petitioner herein filed O.A.No. 5183 of 2006 under Section 19 of the Andhra Pradesh Administrative Tribunal Act, 1985 challenging the impugned charge Memo dated 5.10.2005 and its connected proceedings dated 18.7.2006 issued by the Commissioner of Police, Cyberabad as illegal. Brief facts of the case are that the petitioner-applicant is a Police Constable of Ranga Reddy District and he preferred O.A to quash the charge memo dated 5.10.2005 and consequential proceedings dated 18.7.2006 where under an Enquiry Officer was appointed. It is stated that the charge memo is for harassing petitioner’s wife mentally and threatened to kill her and also for having illegal contacts with other ladies and thereby violating the conduct rules, and also by stating that he was involved in Crime No. 288/2005 for the offence punishable under Section 498-A IPC. The Tribunal after going through the entire material made available on record, dismissed the O.A holding that though four years have lapsed, it appears, there is no progress in the criminal case and therefore, it is not desirable to stay the departmental proceedings, though no relief is asked for. Being aggrieved by the same, the present Writ Petition has been filed. As seen from the record, the Commissioner of Police, Cyberabad, Hyderabad, issued a charge memo dated 5.10.2010, which reads as under: “PCO 2239, Sri B. Subash is attached to CAR Headquarters since (5) months. The PCO 2239 is having wife Smt. Pushpa and three sons. He is harassing his wife Pushpa physically and mentally and threatening her to kill by pouring kerosene and send her away from the house. He is also having illegal contacts with other ladies, violating conduct Rules. A case in Crime No. 288/2005 under Section 498-A IPC was also registered against him at Saroornagar P.S Cyberabad” By virtue of which the Investigation Officer conducted investigation, which reads as under: “Investigation revealed that LW-1 got married to A-1 in the year 1986. During the time of marriage parents of LW-1 have given 2 kg of silver, gold and other household articles. A-1 works as a police constable. LW-1 has been working as a scavenger since 17 years. A –1 is addicted to all bad vices. He has extra marital affairs with so many ladies. LW-1 is working and is running the family. A-1 went for second and third marriages. He has been harassing LW-1 physically and mentally whenever she asks him to mend his ways. He destroyed the house where LW-1 is living. He sold all the articles at home. He not only harassing his wife but also his own mother and children. He also took the T.V and fridge the complainant bought. So having vexed with the behavior of her husband she filed a case at PS Saroornagar and requested necessary legal action.” The learned counsel appearing for the petitioner Mr. C. Narender vehemently contended that in the criminal case as well as departmental proceedings stand on equal footing and facts are quite similar therefore they cannot be proceeded simultaneously. He also drawn our attention to the judgment of the Supreme Court reported in CAPT. M. PAUL ANTHONY VS. BHARAT GOLD MINES LIMITED AND ANOTEHR[1], wherein the Supreme Court at paragraph 22 held as under: “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. (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 se, 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 administration may get rid of him at the earliest.” On the other hand, the learned Government Pleader vehemently contended that even in the judgment reported in CAPT.M. PAUL NTHONY VS. BHART GOLD MINE LTD & ANOTHER, in which the petitioner is relying upon, the Supreme Court was pleased to observe that in rarest of rare cases and only in complicated cases, the proceedings may have to be stayed. But the present case stands on a different footing. The petitioner is a police constable and there is a specific charge against the petitioner that he is harassing his wife physically and mentally and he is having some illegal contacts with other ladies. The learned Government Pleader has drawn our attention to the judgment of the Supreme Court reported in NOIDA ENTREPRENEURS ASSOCIATION VS. NOIDA AND OTHERS[2], wherein the Supreme Court in paragraphs 11,13,16 held as under: 11. The purpose of departmental enquiry and of prosecution is two different and distinct aspects. The 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 proceedings 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 department 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. 12. A three-Judge Bench of this Court in Depot Manager, A.P. State Road Transport Corporation v. Mohd. Yousuf Miya and Ors. (1997 (2) SCC 699) analysed the legal position in great detail on the above lines.1997 AIR SCW 2098 13. The aforesaid position was also noted in State of Rajasthan v. B.K. Meena and Ors. (1996 (6) SCC 417). 1996 AIR SCW 4160 14. There can be no straight jacket formula as to in which case the departmental proceedings are to be stayed. There may be @page-SC1165 cases where the trial of the case gets prolonged by the dilatory method adopted by delinquent official. He cannot be permitted to, on one hand, prolong criminal case and at the same time contend that the departmental proceedings should be stayed on the ground that the criminal case is pending. 15. In Capt. M. Paul Anthony v. Bharat Gold Mines Ltd. (1999 (3) SCC 679), this Court indicated some of the fact-situations which would govern the question whether departmental proceedings should be kept in abeyance during pendency of a criminal case. In paragraph 22 conclusions which are deducible from various decisions were summarised. They are as follows: 1999 AIR SCW 1098 (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. 16. The position in law relating to acquittal in a criminal case, its effect on departmental proceedings and reinstatement in service has been dealt with by this Court in Union of India and Anr. v. Bihari Lal Sidhana (1997 (4) SCC 385). It was held in paragraph 5 as follows: 1997 AIR SCW 1912 5. It is true that the respondent was acquitted by the criminal court but acquittal does not automatically give him the right to be reinstated into the service. It would still be open to the competent authority to take decision whether the delinquent government servant can be taken into service or disciplinary action should be taken under the Central Civil Services (Classification, Control and Appeal) Rules or under the Temporary Service Rules. Admittedly, the respondent had been working as a temporary government servant before he was kept under suspension. The termination order indicated the factum that he, by then, was under suspension. It is only a way of describing him as being under suspension when the order came to be passed but that does not constitute any stigma. Mere acquittal of government employee does not automatically entitle the government servant to reinstatement. As stated earlier, it would be open to the appropriate competent authority to take a decision whether the enquiry into the conduct is required to be done before directing reinstatement or appropriate action should be taken as per law, if otherwise, available. Since the respondent is only a temporary government servant, the power being available under Rule 5(1) of the Rules, it is always open to the competent authority to invoke the said power and terminate the services of the employee instead of conducting the enquiry or to continue in service a government servant accused of defalcation of public money. Re- instatement would be a charter for him to indulge with impunity in misappropriation of public money." Apart from that the learned Government Pleader also drawn our attention to the judgment of the Supreme Court reported in STATE BANK OF HYDERABAD AND ANOTHER VS. P. KATA RAO[3], wherein at paragraph 18 it held as under: “18. There cannot be any doubt whatsoever that the jurisdiction of superior courts in interfering with a finding of fact arrived at by the enquiry officer is limited. The High Court, it is trite, would also ordinarily not interfere with the quantum of punishment. There cannot, furthermore, be any doubt or dispute that only because the delinquent employee who was also facing a criminal charge stands acquitted, the same, by itself, would not debar the disciplinary authority in initiating a fresh departmental proceeding and/or where the departmental proceedings had already been initiated, to continue therewith.” A perusal of these two judgments clearly show that when a charge memo issued, this Court cannot exercise the jurisdiction and the tribunal has rightly declined to exercise the jurisdiction to stay the departmental proceedings merely on the ground that the departmental proceedings stand on a different and distant footing. The charge is pending and it has to be enquired into by the Investigating Officer and at this juncture, we cannot stay the proceedings so as to know the truth or otherwise of the allegations. In the circumstance, we are not inclined to exercise our certiorari jurisdiction and the Tribunal has rightly declined to exercise the jurisdiction by not staying the departmental proceedings. Accordingly, the Writ Petition is dismissed. There shall be no order as to costs. _______________________ GHULAM MOHAMMED,J _________________________ G. BHAVANI PRASAD ,J DATE: 31.05.2010 KA ..... REGISTRAR // TRUE COPY // SECTION OFFICER To 1. 2 CD copies. [1] 1999 SCC (L&S) 810 [2] (2007) 10 SCC 385 [3] (2008) 15 SCC 657